author: EMAS, J.

text:
    Tony ARCE, Appellant/Cross-Appellee, v. WACKENHUT CORP., Appellee/Cross-Appellant.
    No. 3D12-2807.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2014.
    Rehearing Denied Oct. 2, 2014.

      Sina Negahbani, Miami, for appellant/cross-appellee.
    Akerman LLP and Christine L. Wel-stead, Miami, for appellee/cross-appellant.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Tony Arce (“Arce”) seeks reversal of an order awarding appellate attorney’s fees and costs in favor of Wackenhut Corporation (“Wackenhut”). Wackenhut cross-appeals, seeking reversal of the lower court’s order vacating a prior order determining it was entitled to trial court fees and costs. For the reasons that follow, we affirm the lower court’s order awarding appellate fees and costs in favor of Wackenhut, and reverse the lower court’s order vacating the trial fees entitlement order, and remand for further proceedings.

FACTS

Arce was employed by Wackenhut from March 2008, until he resigned on July 22, 2003. According to Arce, he was routinely praised and commended for his work performance with Wackenhut until after he had given notice of his resignation, at which time he was reprimanded for exhibiting an ongoing pattern of substandard work.

In September 2003, Arce applied for employment with the Federal Bureau of Investigation (“FBI”) and was conditionally accepted for employment in May 2004, pending a background and employment history check. In June 2004, the FBI rescinded Arce’s employment offer, citing problems uncovered with his employment history.

After allegedly learning that Wackenhut had made “blatantly false and derogatory statements to the FBI” about him, Arce filed suit against Wackenhut for defamation and tortious interference with an employment contract. Wackenhut denied any wrongdoing and served a proposal for settlement on March 2, 2006, in the amount of $1,500.00. Arce never responded to the proposal for settlement, and on October 30, 2008, summary judgment was entered in favor of Wackenhut and against Arce on all claims, with prejudice.

Arce appealed. During the pendency of the appeal, Wackenhut moved for an award of trial court attorney’s fees and costs, pursuant to its proposal for settlement, for which the lower court granted entitlement on August 26, 2009 (the “entitlement order”).

On August 31, 2010, the appeal was concluded and this Court affirmed the summary judgment in Wackenhut’s favor. This Court also granted Wackenhut’s motion for appellate attorney’s fees and costs, remanding the cause to the trial court “to fix amount.” Thereafter, Wackenhut filed a motion with the trial court to determine the amount of both the trial court fees (for which an entitlement order had already been entered) and appellate attorney’s fees and costs (which this Court had granted and remanded to the trial court to fix the amount to be awarded). An eviden-tiary hearing was held on March 15, 2012, at which time the trial court directed Arce to submit a motion to vacate the entitlement order and a written memorandum of law regarding the court’s authority to vacate the trial attorney’s fees entitlement order and to deny costs and fees due to the lack of good faith of Wackenhut’s proposal for settlement.

Up until this point, Arce had never filed any response or objection to Wacken-hut’s two motions for attorney’s fees and costs, either with the trial court or with this Court. However, after the hearing on the motion to determine the amount of fees and costs, and at the trial court’s direction, Arce filed, on March 16, 2012, a motion to vacate the trial fees entitlement order on the basis that the proposal for settlement was not made in good faith. The trial court granted the motion to vacate, finding the nominal proposal for settlement was not made in good faith.

At a subsequent hearing, the trial court determined the reasonable amount of appellate fees and costs and rendered its final order awarding same, stating that it was doing so only because it believed it had no other choice given the appellate court’s order granting appellate fees and costs and remanding for the trial court to “fix [the] amount.” The trial court further stated that if it had “any discretion or authority to deny the [appellate] costs and fees sought by [Wackenhut], given the equities and circumstances of the case, the Court would deny any relief to [Wacken-hut].”

Arce appealed, asserting that the trial court on remand could (and should) have disallowed Wackenhut’s appellate fees and costs once the trial court determined that the proposal for settlement was not made in good faith. Arce maintains that the trial court had the authority to do so despite this Court’s granting appellate fees and remanding for the trial court “to fix amount,” Wackenhut contends that Arce waived this argument by failing to object, respond, or otherwise raise the claim of lack of good faith with this Court when Wackenhut initially moved for appellate fees and costs, and in failing to seek rehearing or clarification of this Court’s order granting the motion and remanding for the trial court to fix the amount.

Wackenhut cross-appeals the trial court’s order vacating the prior entitlement order, asserting the trial court was bound by the law of the case following this Court’s order granting appellate fees, remanding to fix amount, and issuance of the mandate.

ANALYSIS

We begin with an analysis of the pertinent law in the area of offers of judgment in Florida. Pursuant to section 768.79, Florida Statutes (2006):

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiffs award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.
(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees.
(b) When determining the reasonableness of an award of attorney’s fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:
1. The then apparent merit or lack of merit in the claim.
2. The number and nature of offers made by the parties.
3. The closeness of questions of fact and law at issue.
4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.
5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting non-parties.
6. The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.

Similarly, Florida Rule of Civil Procedure 1.442 provides:

(a) Applicability. This rule applies to all proposals for settlement authorized by Florida law, regardless of the terms . used to refer to such offers, demands, or proposals, and supersedes all other provisions of the rules and statutes that may be inconsistent with this rule.
(h) Costs and Fees.
(1) If a party is entitled to costs and fees pursuant to applicable Florida law, the court may, in its discretion, determine that a proposal was not made in good faith. In such case, the court may disallow an award of costs and attorneys’ fees.
(2) When determining the reasonableness of the amount of an award of attorneys’ fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following factors:
(A) The then-apparent merit or lack of merit in the claim.
(B) The number and nature of proposals made by the parties.
(C) The closeness of questions of fact and law at issue.
(D) Whether the party making the proposal had unreasonably refused to furnish information necessary to evaluate the reasonableness of the proposal.
(E) Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting non-parties.
(F) The amount of the additional delay cost and expense that the party making the proposal reasonably would be expected to incur if the litigation were to be prolonged.

Once the offeror establishes a right to entitlement, the trial court may in its discretion disallow an award of fees and costs if it determines that the proposal was not made in good faith. See TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606 (Fla.1995). It is the burden of the offeree (in this case, Arce) to establish a lack of good faith on the part of the offeror (Wackenhut) before the court may disallow an award to which an offeror is otherwise entitled. Camejo v. Smith, 774 So.2d 28, 29 (Fla. 2d DCA 2000).

It is evident from a plain reading of the statute and the rule that the issue of good faith is not a factor to be considered by the court in determining the amount and reasonableness of the fees and costs to be awarded. The statute and rule enumerate six factors which the court may consider; lack of good faith is not among them. Therefore, it is not procedurally appropriate for an offeree to raise lack of good faith for the first time at a hearing being held to fix the amount of the fees.

While we agree with Arce that a claim of lack of good faith is not ripe unless and until an offeror establishes entitlement to a fee award, we disagree with Arce’s contention, under the circumstances of this case, that he was permitted to raise this claim at a hearing ordered for the purpose of fixing the amount of fees and costs.

The record before this Court establishes that Arce failed to respond or object to Wackenhut’s motion for appellate fees and costs. Arce contends he did not file any pleading in response to Wackenhut’s motion because he was not contesting statutory entitlement (which he concedes Waek-enhut established). Rather, Arce asserts, he sought to contest the good faith nature of the proposal, and intended to do so at the subsequent hearing before the trial court. We cannot say that Arce’s position at that procedural point was unreasonable.

However, once this Court issued its order granting the motion and remanding with the single directive to the trial court “to fix [the] amount” of fees and costs, Arce acted at his own peril in failing to seek rehearing, reconsideration or clarification whether this Court’s order foreclosed his ability to raise lack of good faith on remand. In failing to seek a clarification of this Court’s order, Arce and the trial court were bound by the plain meaning of the order, and the mandate that followed, which implicitly and necessarily excluded any consideration of lack of good faith and became law of the case. Barrero v. Ocean Bank, 729 So.2d 412 (Fla. Bd DCA 1999). The trial court correctly determined that, in light of this Court’s order, Arce could not raise, and the trial court could not consider, Arce’s claim of lack of good faith.

Our reasoning also disposes of the cross-appeal. Because our order granting fees and costs for the appeal, and remanding for the trial court to fix amount, necessarily determined the issue of good faith (in the absence of an objection by Arce and the failure to seek rehearing or clarification) the law of the case binds the trial court as to any claimed lack of good faith on the issue of trial fees and costs as well. See Silva v. U.S. Sec. Ins. Co., 734 So.2d 429 (Fla. 3d DCA 1999). See also, Specialty Restaurants Corp. v. Elliott, 924 So.2d 834, 837 (Fla. 2d DCA 2005) (noting “this doctrine includes not only issues explicitly ruled upon by the court, but also those issues which were implicitly addressed or necessarily considered by the appellate court’s decision”).

We therefore affirm the order awarding appellate attorney’s fees and costs. We reverse the order vacating the order of entitlement to trial court attorney’s fees and costs, and remand with instructions to reinstate the order of entitlement and to hold a hearing to fix the amount of fees and costs without consideration of any claim of lack of good faith.

Affirmed in part, reversed in part, and remanded with directions.

      . Wackenhut’s motion for appellate fees and costs was also based on its proposal for settlement. Arce did not respond or object to Wackenhut's motion for appellate attorney's fees and costs filed in this Court; nor did Arce seek rehearing or clarification following this Court’s issuance of the order, which granted the motion and remanded to the trial court to fix the amount of fees and costs.

      . The trial fees entitlement order had been entered by Judge Ronald Friedman; the subsequent hearings were conducted by a successor judge.

      .Though not necessary to our disposition, the trial court made its finding of lack of good faith based in part on a determination that the offer was a nominal amount; Wackenhut could reasonably have expected Arce to reject such a nominal offer; and that equitable considerations of Arce's “penniless” condition favored a disallowance of any fee award. These are not valid considerations for a determination of lack of good faith. See Fox v. McCaw Cellular Commons of Fla., Inc., 745 So.2d 330 (Fla. 4th DCA 1998) (fact that offer was a nominal amount not in and of itself valid basis for concluding offer not made in good faith); Dep’t of Hwy. Safety & Motor Vehicles v. Weinstein, 747 So.2d 1019 (Fla. 3d DCA 1999) (relevant consideration is state of mind of offeror at time of offer, not whether offeree is likely to reject offer).

      . Even if the trial court could properly have considered and determined that the proposal for settlement was not made in good faith, the correct procedure would not have been to vacate the earlier order of entitlement, but rather to enter a subsequent order disallowing the award notwithstanding entitlement.

      . Although the statute and rule provide that the court shall consider the enumerated factors "along with all other relevant criteria", we conclude, based upon the history of the statute and the rule, that lack of good faith is not a relevant criterion that can be considered at the hearing to determine the reasonableness of the amount of fees. See, In re Amendments to Florida Rules of Civil Procedure, 682 So.2d 105 (Fla. 1996).

        . Beyond the terms of the statute and rule, logic and common sense dictate that the issue of good faith should be determined well in advance of a hearing to fix the amount of the award. Considerable time, money and resources are often spent in advance of a hearing to fix the amount of fees and costs, including retaining experts, taking depositions, engaging in other discovery, and preparation for the amount hearing. It would make little sense to expend these resources only to allow the offeree, at that same hearing, to attempt for the first time to raise a lack of good faith (which if established could result in a disal-lowance of fees and costs). It would appear the trial court has the discretion to trifurcate the process (separate hearings on entitlement, lack of good faith, and amount) or bifurcate the process (single hearing initially addressing entitlement and then lack of good faith, followed by a subsequent hearing on amount). If the trial court chooses to combine entitlement and good faith in a single hearing, the parties should be notified of this in advance to provide the offeree an adequate opportunity to raise the claim of lack of good faith and the offeror an adequate opportunity to prepare to contest such claim at a combined hearing.

      .It is worth noting that the trial court's entitlement order (on trial fees and costs) had been entered in August 2009 and Arce did not raise the issue of lack of good faith (as to either order) until March 2012.


source: Caselaw Access Project

author: CLARK, J.

license: Public Domain

text:
    Tashara Shonta BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2540.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Rehearing Denied Oct. 22, 2014.
    Nancy A. Daniels, Public Defender, and Kathleen Stover and Glen P. Gifford, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren Brudnicki, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

The jury convicted Tashara Brown of conspiracy to traffic in 28 grams or more of cocaine. As evidence, the State admitted both chemically tested cocaine and “untested white powder” that an officer testified was consistent with cocaine. Because the State did not use the officer’s testimony regarding the untested white powder to evidence the necessary weight requirement for trafficking, we affirm Appellant’s judgment and sentence.

The Florida Supreme Court has made clear the State may not comingle white powder prior to testing and then use that comingled substance to prove the necessary weight for trafficking. Greenwade v. State, 124 So.3d 215, 215, 227 (Fla.2013) (explaining if the State “fail[s] to independently chemically test each individual packet, ... the State [has] failed to meet its burden to prove the essential element of weight”). The court’s focus was weight. See id. at 220-28. ■

And the court’s holding was solely limited to proving “the statutory threshold for weight”:

[W]e hold that to establish beyond a reasonable doubt that individually wrapped packets of white powder meet the statutory threshold for weight in trafficking prosecutions, the State must chemically prove that each individually wrapped packet contains at least a mixture of a controlled substance before it may combine the contents and determine whether those contents meet the statutory threshold for weight.

Id. at 229; see also id. at 230-31 (“[W]e hold that to satisfy the burden of proving that the evidence seized meets the statutory threshold for weight in trafficking prosecutions beyond a reasonable doubt ....”) (emphasis added).

Here, Ms. Brown asserts Greenwade requires every white powder, in every case, be chemically tested before it can be admitted for any purpose. This reads Greenwade too broadly. Greenwade addressed one specific issue: weight. The Greenwade court made one specific holding: applicable to weight. The Greenwade court mandated one specific thing from prosecutors: “the statutory threshold for weight in trafficking prosecutions” be evidenced by chemical testing.

In line with this mandate, the State here evidenced 30.3 grams of cocaine (more than 2 grams above the statutory limit) by chemical testing of a single, non-comingled bag — as it was required to do. It is of no consequence that the State furthered its conspiracy case through testimony of a twelve-year, veteran narcotics officer that other bags of white powder were also cocaine. Testimony to identify a substance not used to prove a trafficking weight does not implicate Greenwade. Such testimony should be governed by the traditional rules of evidence, and Ms. Brown does not assert the officer’s testimony ran afoul of traditional evidence rules.

Accordingly, the court did not err in admitting the officer’s testimony regarding the untested white powder, not used as evidence of weight and only used as evidence of a conspiracy. Ms. Brown’s judgment and sentence are AFFIRMED.

VAN NORTWICK and SWANSON, JJ., concur.

      . Appellant raised two other issues. As to those, we affirm the trial court’s determinations without comment.


author: PER CURIAM.

text:
    Carlton Eugene THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1776.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Carlton Eugene Thomas, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the January 24, 2012, judgment and sentence in Leon County Circuit Court case number 2010 CF 4168 A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, C.J., BENTON and RAY, JJ., concur.


text:
    James NELSON, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-2598.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    James Nelson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Joe D. Dingess, Assistant Attorney General, Office of the Attorney General, Tallahassee, and Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

We find no error in the trial court’s October 11 and 15, 2012, orders and deny the petition. To the extent the petition is intended to appeal the trial court’s May 4, 2011, order, the appeal is untimely and, therefore, is dismissed.

LEWIS, C.J., THOMAS, and OSTERHAUS, JJ., concur.


text:
    James G. HARTSFIELD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2828.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    James G. Hartsfíeld, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is dismissed as untimely filed. See Fla. R. App. P. 9.141(c)(5)(A).

LEWIS, C.J., BENTON and RAY, JJ., concur.


text:
    Geno L. HAWKINS, Sr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2563.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Geno L. Hawkins, Sr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, RAY, and OSTERHAUS, JJ., concur.


text:
    Warren R. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1682.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2014.
    Warren R. Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Pro se petitioner Warren Johnson files a petition alleging that his appellate counsel was ineffective in First District Court of Appeal case number 1D05-5612. That case was Mr. Johnson’s direct criminal appeal, wherein this court affirmed his judgment and sentence for second-degree murder and possession of a firearm during the commission of a felony. Mandate issued in that case on July 17, 2007.

In support of this untimely petition, Mr. Johnson attaches an appendix containing a copy of an earlier petition alleging ineffective assistance of appellate counsel, which bears an institutional date stamp showing that the petition was provided to institutional officials for mailing on March 11, 2009. He avers, under oath, that he initially mailed the petition in 2009, but that this court appears not to have received it. Mr. Johnson argues that although the 2009 petition was never received by this court, because it was timely submitted for mailing, the court should find that he timely invoked the court’s jurisdiction.

A review of the petition purportedly filed in 2009 showed that it contained citations to cases decided as recently as 2013, including, inter alia, Robarás v. State, 112 So.3d 1256 (Fla.2013), Peterson v. State, 94 So.3d 514 (Fla.2012), and State v. Montgomery, 39 So.3d 252 (Fla.2010). Accordingly, this court ordered the petitioner to show cause why he should not be subjected to sanctions for his apparent attempt to commit fraud on this court. In Mr. Johnson’s response, which was also filed under oath, he places the blame on the inmate law clerk he claims prepared his petition, arguing that “[a]ny sanctions should not be contemplated in the pending cause where it’s no fault of petitioner, where the prison legal assistance has made an unintentional scriveners [sic] error in preparing petitioner’s legal documents.... ” We fail to see how an “unintentional scrivener’s error” could result in a petition allegedly filed in 2009 containing citations to cases decided four years later. Petitioner goes on to argue that Florida Rule of Appellate Procedure 9.410, governing sanctions, should only be used “where the rules and procedures of the appellate court is [sic] repeatedly abused or submission of motions submitted was [sic] frivolous .... [i]n the instant case, the petitioner has not repeatedly abused or filed frivolous motion[s] with the intention to mislead this Honorable Court, whereas, the Petitioner already has an extensive sentence of (50) years that he plead[s] to this Honorable Court to reverse” (emphasis in original). Thus, petitioner appears to suggest that sanctions are inappropriate where a party has “only” committed a single abuse of process. We disagree; in situations where, as here, the abuse of court process is egregious, a single incident may indeed warrant the imposition of sanctions under Rule 9.410.

The petitioner concludes by alleging, under oath, that the questionable citations in the 2009 petition came from pages that were unintentionally mixed into the copy of the original petition from a later petition by a prison law clerk who

... anticipated that this court would allow the petitioner to refile his new petition as timely, therefore, the prison legal assistant sought to prepare an amended Petition for Habeas Corpus with new precedent law that had arose [sic] since petitioner submitted his prior petition for habeas corpus that was date stamped March 11, 2009, that was lost by prison officials.... The pages 13, 22, 23, obtained in the original petition that obtain cases subsequent to the “Prison Date Stamp” [are] pages from the amended petition that got misplaced and added to the original petition during the copying process.... Wherefore, the Petitioner alleges that due to negligence on the behalf of preparing his legal documents, and his own ignorance to law and appellate procedures, these cases were mistakenly placed with the original petition date stamped March 11, 2009.

We do not find this version of events remotely convincing. The petition purportedly filed in 2009 bears consecutive page numbers. None of the pages appear to be out of order. Pages are not missing and there are no extra pages. Sentences continuing between pages are complete and fit together.

This petition is dismissed as untimely filed. See Fla. R. App. P. 9.141(d)(5). A certified copy of this opinion shall be provided to the Florida Department of Corrections to be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the Department as provided in section 944.279, Florida Statutes (2013). The petitioner is warned that future filings deemed by this court to be frivolous or malicious may result in further sanctions, including but not limited to a prohibition on any further pro se appearances before this court. See Fla. R. App. P. 9.410.

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

      . “In no case shall a petition alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence become final on direct review.” Fla. R. App. P. 9.141(d)(5).


text:
    Patrick A. HARRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2781.
    District Court of Appeal of Florida, First District.
    Sept. 11, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the August 20, 2013, judgment and sentence in Leon County Circuit Court case number 2013 CF 57 A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

LEWIS, C.J., BENTON and RAY, JJ., concur.


author: ALTENBERND, Judge.

text:
    Joseph C. VALENTE, Appellant/Cross-Appellee, v. Theresa BARION, Appellee/Cross-Appellant.
    No. 2D12-3007.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.

      Cynthia L. Greene of Greene Smith & Associates, P.A., Miami, for Appellant/Cross-Appellee.
    Marcia J. Lockwood of Lockwood Law Group, Sarasota, for Appellee/Cross-Ap-pellant.
   ALTENBERND, Judge.

Joseph C. Valente appeals the final judgment of dissolution of his marriage to Theresa Barton. She cross appeals the judgment. We affirm the dissolution but reverse the final judgment’s award of alimony to Ms. Barton and remand with special instructions.

The trial court awarded Ms. Barton permanent alimony in dissolving this twelve-year marriage. This decision was based, in large part, upon the health and employment status of the parties. In making this award of support, the trial court did not make the correct finding required by subsection 61.08(8), Florida Statutes (2011), to support the use of permanent alimony. The record at least suggests that durational alimony may be appropriate under the facts of this case. The evidence at trial strongly suggested that Ms. Barton’s health and employment status were likely to improve in the two years following the entry of the judgment. Due to extensions granted during this appeal, it has now been more than two years since the entry of the judgment.

The amount of the alimony award was $5000 per month. This award of permanent alimony appears to have been based on the wife’s financial affidavit that included substantial expenses for the marital home, which was required to be sold under the terms of the judgment. At oral argument the parties confirmed that the house already had been sold.

On remand, the court must determine whether durational or permanent alimony is appropriate and then determine the amount of that support. The court may update the evidence to determine both the type of alimony and the amount of alimony to be awarded.

The trial court also denied Ms. Barton’s request for attorney’s fees and retroactive alimony, in part, because of the award of permanent alimony. Accordingly, the trial court is authorized to revisit these issues on remand as necessary. Finally, although we are optimistic that the trial court can fashion an appropriate judgment without altering the equitable distribution in the judgment on appeal, on remand the court is authorized to revisit these other economic aspects of the final judgment if that is essential to a proper resolution of the issues.

I. THE FACTS

This couple married in 1999. Mr. Va-lente was a lieutenant in the New York City Police Department, and Ms. Barton worked for a financial services company in New York City. Following the collapse of the twin towers on September 11, 2001, the parties’ marriage began to deteriorate. Mr. Valente was on sick leave when the towers collapsed, but he was nevertheless deployed to Ground Zero. He worked extensive hours at the site over the next six months. The experience resulted in physical health issues and major depression. By 2007, he was classified as retired on full disability pension. Fortunately, his disability pension and other disability benefits have provided Mr. Valente with an annual income in excess of $125,000.

Ms. Barion received no physical injuries on September 11, but the emotional and economic aftermath of those events left her struggling as well. She lost her well-paying job. She concluded that the couple should move from their Staten Island home and make a new start in Manatee County, where she had relatives. In 2007, the couple, both in their late thirties and without children, sold their home and moved to Florida, where they purchased a new marital home.

Mr. Valente had no friends in Florida and missed New York. Perhaps due to his depression, he made many poor financial choices. Ultimately, in May 2011, Ms. Barion filed for dissolution of marriage. Mr. Valente returned to New York.

Without detailing the evidence, in the period after 2001, Ms. Barion suffered from psychological and physical issues that limited her employability and increased her expenses. The evidence did not support a finding that these conditions were permanent. Although predicting the durations of these conditions was difficult at trial, the testimony suggested that she should experience substantial improvement over the following two years.

The judgment on appeal grants a dissolution and equitably distributes the marital assets and liabilities. The assets and liabilities are relatively limited; the marital home and the wife’s retirement plans from earlier employment make up the majority of the assets. The debts are primarily the mortgage on the home, car loans, and credit card debt. The judgment then makes an award of alimony, declines to award retroactive alimony over and above the payments of temporary alimony, and denies attorney’s fees and costs. We conclude that the trial court erred in determining alimony. Unfortunately, due to the modest circumstances of the marriage and the health of the parties, this error may require reconsideration of the other portions of the final judgment.

II. IN A MODERATE-TERM MARRIAGE, THE DECISION TO GRANT PERMANENT ALIMONY REQUIRES A FINDING BY CLEAR AND CONVINCING EVIDENCE THAT PERMANENT ALIMONY IS APPROPRIATE

This case is governed by the version of section 61.08 that went into effect on July 1, 2011. See ch. 2011-92, § 79, at 1708-04, Laws of Fla. Thus, the trial court had authority to award durational alimony. See § 61.08(7). The parties’ twelve-year marriage is regarded as a moderate-term marriage. See § 61.08(4). In such a case, permanent alimony may be awarded, but the trial court must decide that it is appropriate “based upon clear and convincing evidence after consideration of the factors set forth in subsection [61.08](2).” § 61.08(8); see also Walker v. Walker, 85 So.3d 558, 554 (Fla. 1st DCA 2012) (“In order to award permanent alimony, the trial court must make specific factual determinations with regard to actual need on the part of the former spouse seeking an alimony award.”).

In this case, the trial court awarded permanent periodic alimony in the amount of $5000 per month. But the trial court supported its award with findings that appear to better support an award of durational alimony without explaining why permanent periodic alimony would be more appropriate. Specifically, the court determined that the wife is currently capable of working only part time, but it also opined that if she continued with counseling and medications as she was directed, she could be capable of full time employment in two years. The court did not explain why the alimony award should be permanent despite its finding that the need may be temporary. Because it is unclear from the record whether her condition is permanent and thus whether the trial court appropriately awarded permanent periodic alimony over durational alimony, we remand for the trial court to address the issue with specific findings. The court may take additional evidence as necessary.

We emphasize that we are not holding that the trial court cannot award permanent alimony in this case. But in light of the parties’ respective circumstances, it is important for the trial court to demonstrate that any choice for permanent alimony be based on clear and convincing evidence supporting that decision and not merely the decision to award the amount of $5000.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and MORRIS, JJ, Concur.


author: CASANUEVA, Judge.

text:
    DEPARTMENT OF REVENUE o/b/o Jason Thomas Lienhart, Appellant, v. Kimberly Marie SECOR, Appellee.
    No. 2D13-1752.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.

      Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   CASANUEVA, Judge.

The Department of Revenue (the Department), on behalf of the custodial father, Jason Thomas Lienhart, filed a motion in the circuit court to establish ongoing and retroactive child support obligations of the noncustodial mother, Kimberly Marie Secor, for the parties’ two minor children. The circuit court denied the Department’s motion, finding that a prior administrative order on child support necessitated the filing of a supplemental petition for modification in that administrative case. Because the circuit court possessed jurisdiction and should have considered the Department’s motion to establish ongoing and retroactive child support obligations, we reverse for further proceedings under section 409.2563(10)(c), Florida Statutes (2012).

In 2010, the father filed a petition to determine paternity and for related relief in the circuit court after the parties’ two children, who had been residing with the mother, began residing with the father. The father’s petition to determine paternity was granted, and the court reserved jurisdiction on the issue of child support. Thereafter, the Department, on behalf of the father, filed a motion to establish ongoing and retroactive child support obligations of the noncustodial mother. At the hearing on the Department’s motion, the father testified regarding employment and income, and a child support guidelines worksheet was admitted in evidence. The mother did not appear at the hearing.

In an order dated August 29, 2012, the circuit court denied the Department’s motion, finding that the prior administrative order on child support necessitated the filing of a supplemental petition for modification in that administrative case. The Department filed a motion to vacate the order, arguing that the prior administrative order on child support was from a separate administrative case, the support obligations imposed against the father in the administrative case had terminated, and the circuit court had jurisdiction to order child support. The motion to vacate was denied after a hearing.

The issue raised on appeal involves a question of law, which we review de novo. Bakerman v. Bombay Co., 961 So.2d 259, 261 (Fla.2007). Section 409.2563 provides an administrative “procedure for establishing child support obligations in Title IV-D cases in a fair and expeditious manner when there is no court order of support.” § 409.2563(2)(a). “An administrative support order rendered under [section 409.2563] has the same force and effect as a court order and remains in effect until modified by the [Department, vacated on appeal, or superseded by a subsequent court order.” § 409.2563(11). However, “[i]t is not the Legislature’s intent to limit the jurisdiction of the circuit courts to hear and determine issues regarding child support,” § 409.2563(2)(a), and “[c]hild support obligations may also be determined by the circuit court,” Dep’t of Revenue ex rel. Gauthier v. Hoover, 40 So.3d 99, 101 (Fla. 5th d'cA 2010) (citing § 409.2563(2)(a)).

It is well established that a circuit court lacks jurisdiction to vacate or retroactively affect an administrative child support order entered pursuant to section 409.2563 administrative proceedings. Dep’t of Revenue ex rel. Chamberlain v. Manasala, 982 So.2d 1257, 1259 (Fla. 1st DCA 2008); Dep’t of Revenue ex rel. Che-vor v. Mohomed, 996 So.2d 900, 901-02 (Fla. 5th DCA 2008). However, a circuit court does have the power to issue a superseding order changing support obligations prospectively. Hoover, 40 So.3d at 102; Manasala, 982 So.2d at 1259. Authority for this modification by a circuit court is found in section 409.2563(10)(c), which states:

A circuit court of this state, where venue is proper and the court has jurisdiction of the parties, may enter an order prospectively changing the support obligations established in an administrative support order, in which case the administrative support order is superseded and the court’s order shall govern future proceedings in the ease. Any unpaid support owed under the superseded administrative support order may not be retroactively modified by the circuit court, except as provided by s. 61.14(l)(a), and remains enforceable by the [Department, by the obligee, or by the court. In all cases in which an administrative support order is superseded, the court shall determine the amount of any unpaid support owed under the administrative support order and shall include the amount as arrearage in its superseding order.

See Dep’t of Revenue ex rel. Proveaue v. Williams, 74 So.3d 115, 116 (Fla. 1st DCA 2011) (“The provisions of section 409.2563 provide for a circuit court’s prospective modification of child support payments originally established by administrative support order.”).

In the case on appeal, the Department’s motion did not seek to retroactively alter the prior administrative child support order, which obligated the father to pay child support. The support obligations imposed on the father in the administrative proceeding had previously terminated pursuant to the terms of a “Final Administrative Order Suspending Support Obligations.” Although any arrearages the father owed for support did not terminate pursuant to the terms of the administrative order, in the case of a superseded administrative order, any past-due support obligation will not be retroactively modified and will remain enforceable. See § 409.2563(10)(c). Thus, though a prior administrative support order remains in effect pertaining to the arrearage amount the father owes, see § 409.2563(11), the circuit court had the authority to enter a subsequent court order establishing the mother’s child support obligations, see § 409.2563(10)(c); Williams, 74 So.3d at 116.

Because the relief requested by the Department falls within the circuit court’s authority as provided in section 409.2563, the circuit court possessed jurisdiction to consider the Department’s motion and should have treated the same as filed pursuant to section 409.2563(10)(c). We reverse and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and WALLACE, JJ., concur.

      . This issue was not raised or discussed at the hearing, nor was the court's ruling explained in the order beyond the following statement: "Petitioner was ordered to pay support to Respondent in 2005DR4174, thus necessitating the filing of a Supplemental Petition for Modification.” However, we must assume that the circuit court determined it lacked jurisdiction to consider the Department's motion due to the existence of the prior administrative order on child support, requiring the Department to proceed administratively with a petition for modification.

      . The order states, in part:
      C. The support obligations suspended by this order shall remain suspended for up to one year, during which time they may be reinstated prospectively, after notice, if the
      [father] stops living with the children. If the support obligations are not reinstated during the one year period, then they will terminate without additional action by DOR. D. DORs file in this matter will be closed upon administrative termination of the support obligations, unless at such time there is outstanding past-due support owed. If past-due support is owed after one year from the date of this order, DORs file in this matter will be closed upon satisfaction of the outstanding past-due amount.


text:
    Alejandro VELASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2140.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.
    Howard L. “Rex” Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Alejandro Velasquez appeals his judgments and sentences for burglary of an unoccupied dwelling and dealing in stolen property. After the court sentenced Mr. Velasquez to two concurrent sentences of ten years’ imprisonment followed by five years’ probation, Mr. Velasquez filed a timely pro se motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(7). The trial court dismissed the motion without prejudice to Mr. Velasquez to file a facially sufficient motion. Following an extension of time, Mr. Velasquez filed an amended motion that the trial court accepted as timely and facially sufficient. Mr. Velasquez appeared pro se at the hearing on his motion and requested the appointment of counsel. The trial court refused to appoint conflict-free counsel and denied the motion to withdraw plea.

As the State properly concedes, Mr. Velasquez was entitled to counsel at the hearing on the motion to withdraw his plea because it was a critical stage of the proceeding. See Estrada v. State, 113 So.3d 873, 873 (Fla. 2d DCA 2012); Kepford v. State, 64 So.3d 189, 192 (Fla. 2d DCA 2011). As in Estrada and Kepford, we reverse the order denying the motion to withdraw plea and remand for the trial court to appoint conflict-free counsel and rehear Mr. Velasquez’s motion.

Notably, the State intended to seek prison releasee reoffender and habitual felony offender sentencing if Mr. Velasquez was convicted at trial. As Mr. Velasquez was charged with second-degree felonies, if he qualified for these enhancements, he would have faced up to thirty years’ imprisonment on each count, with fifteen-year mandatory minimum terms. See §§ 775.082(9)(a)(3)(c), 775.084(4)(a)(2), Fla. Stat. (2011). Conflict counsel may be able to assist Mr. Velasquez in assessing whether withdrawing his plea is in his best interest.

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ., Concur.


text:
    King Solomon WARE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-452.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    King Solomon Ware, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris and L. Charlene Matthews, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant was convicted of two counts of sexual activity with a minor child 12 years of age or older, but less than 18 years of age by a person in familial or custodial authority, and two counts of lewd or lascivious molestation of a minor child 12 years of age or older, but less than 16 years of age. He appeals the summary denial of his supplemental third amended motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850, which raised 20 grounds for relief. We affirm the lower court’s summary denial of all issues, except for the summary denial of ground 19, which is discussed below, because each issue is either conclusively refuted by the record, legally insufficient after amendment, without merit as a matter of law, or is inherently incredible.

The victim in this case delayed reporting to law enforcement that she had been sexually battered and molested by Appellant. Anticipating an attack on her credibility, the State successfully argued, pretrial, that the victim should be allowed to testify that she did not immediately report these crimes because she was afraid of Appellant as she had witnessed him commit acts of domestic violence on her mother. Over objection, the trial court, citing to Williamson v. State, 681 So.2d 688 (Fla.1996), permitted the testimony. In ground 19, Appellant alleges that his counsel was ineffective by failing to object at trial and thereafter move for a mistrial because the victim’s trial testimony did not support the State’s proffered theory that the victim failed to timely report the crimes because she was afraid of Appellant. In response, the State recommends that this court remand ground 19 to the trial court to either attach record documents that will conclusively refute the ground or conduct an evidentiary hearing. See, e.g., McLin v. State, 827 So.2d 948, 954 (Fla.2002) (“To uphold the trial court’s summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record.” (quoting Foster v. State, 810 So.2d 910, 914 (Fla. 2002))). We agree and reverse the summary denial of ground 19 and remand with instructions that the trial court either attach portions of the record that conclusively refute this ground or grant an evidentia-ry hearing.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

ORFINGER, EVANDER and LAMBERT, JJ., concur.


author: SILBERMAN, Judge.

text:
    STATE of Florida, Appellant, v. Christopher VINCI, Appellee.
    No. 2D13-4638.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Ardyn V. Cuchel of The Law Office of Ardyn V. Cuchel, P.A., Tampa, for Appel-lee.
   SILBERMAN, Judge.

The State appeals an order suppressing evidence obtained by search and seizure in this prosecution for possession of oxyco-done and possession of alprazolam. Because the deputy had probable cause to seize the prescription pill bottle and the pills in it, we reverse the order suppressing evidence and remand for further proceedings.

At the suppression hearing, Deputy Travis Sibley was the only witness to testify. Deputy Sibley stopped Christopher Vinci’s vehicle around 11:00 p.m. because the deputy believed the driver was impaired. The deputy obtained Vinci’s driver’s license, and Vinci advised the deputy that he had a firearm in the glove box. There was a passenger in the front seat. Deputy Sib-ley told them to leave their hands where he could see them and requested backup for officer safety reasons. When the backup deputy arrived, Deputy Sibley asked Vinci if he would mind exiting the vehicle. Deputy Sibley asked if there were any other guns or anything else illegal in the vehicle, and Vinci responded, “No, no, you can search.”

As Vinci stepped out of the vehicle, Deputy Sibley observed a large orange pill bottle in the driver’s side door pocket. The area was well lit, and the deputy had his spotlight shining on Vinci’s vehicle. The deputy said he could read the label because it was in a very large font and the bottle was sitting up out of the top of the door pocket. The label had the name Christopher Vinci on it, and Deputy Sibley knew that to be the driver because he had identified him by his driver’s license. The deputy could also see on the label “Subox-one, two milligrams.” In addition, Deputy Sibley could see the open side of the bottle without the label and saw two pills. One was a small blue pill that he could not identify. The other was white and bar shaped; based on his training and experience, he knew it was Xanax or alprazolam. He could see all this without touching the bottle. The deputy also knew that Xanax did not resemble Suboxone. Deputy Sib-ley believed Vinci had committed the crime of possession of a controlled substance.

The deputy then picked up the prescription bottle, knowing there was Xanax in the Suboxone bottle. The deputy looked at Vinci and just said, “Suboxone.” Vinci said he had Suboxone and some Xanax and that he had a prescription for all of it. Deputy Sibley determined that the white pill was in fact Xanax and used the website Drugs.com to verify that the other pill was oxycodone. Vinci never indicated that he had a prescription for oxycodone. Vinci was subsequently arrested for possession of oxycodone and possession of alprazolam.

At the suppression hearing the State argued that even if Vinci’s consent did not extend to searching the contents of the prescription bottle, when Deputy Sibley observed the Xanax in the prescription bottle marked Suboxone the illicit nature of the substance was immediately apparent. The State asserted that because the white pill in the bottle did not match the label, the deputy had probable cause to seize the bottle and the pills in it. The trial court, however, suppressed the evidence on the basis that when the deputy observed the Xanax in the prescription bottle the illicit nature of the substance was not immediately apparent because a person could legally possess Xanax, as opposed to an item like cocaine.

On appeal of a trial court’s ruling on a motion to suppress, we employ a mixed standard of review in which the trial court’s determination of historical facts is subject to reversal only if the record lacks competent, substantial evidence to support the trial court’s determination. State v. KS., 28 So.3d 985, 986 (Fla. 2d DCA 2010). Our review of mixed questions of law and fact and of legal conclusions is de novo. Id.

The State argues on appeal that Deputy Sibley had probable cause to open the prescription pill bottle and seize its contents. The trial court recognized that to seize evidence in plain view the incriminating nature of the evidence must be immediately apparent. See State v. Walker, 729 So.2d 463, 464 (Fla. 2d DCA 1999); Keller v. State, 946 So.2d 1233, 1234 (Fla. 4th DCA 2007). As this court has stated, “Such a determination merely requires that the facts available to the officer would lead a reasonable man of caution to believe that certain items may be contraband.” Walker, 729 So.2d at 464.

Based on the facts as determined by the trial court, the trial court erred in ruling that the incriminating nature of the items in the pill bottle was not immediately apparent to the deputy. The trial court based its conclusion on the fact that the deputy did not know whether Vinci had a prescription for Xanax. However, having a valid prescription is a defense to possession of a controlled substance. See §§ 499.03(1), 893.13(6)(a), Fla. Stat. (2012); O’Hara v. State, 964 So.2d 839, 840-41 (Fla. 2d DCA 2007). Section 499.03(2) further provides that “possession of a drug under subsection (1) by any person not exempted under this section, which drug is not properly labeled to indicate that possession is by a valid prescription of a practitioner licensed by law to prescribe such drug, is prima facie evidence that such possession is unlawful.”

Thus, possession of Xanax in a container that is not for a Xanax prescription provides prima facie evidence that the possession is unlawful. Based on this statute and the testimony the trial court relied upon, the incriminating nature of the white pill was immediately apparent and the deputy had probable cause to seize it. A valid prescription would have been a defense, but the deputy was not required to anticipate Vinci’s defenses. See Keller, 946 So.2d at 1235.

We note that in Smith v. State, 95 So.3d 966, 967 (Fla. 1st DCA 2012), the First District reversed the denial of a motion to suppress when an officer seized a plastic bag containing several white pills that was on the seat of the defendant’s car. That case is distinguishable because “[t]he deputy did not testify to any markings on the pills, or lack thereof, which helped him identify what they were; he observed only that they were larger than a certain brand of breath mint and larger than aspirin tablets.” Id. at 970. There, the appellate court recognized that the deputy had “testified that in his experience, ‘many people’ carry their prescription medications in plastic or other types of bags, and that such practice ‘is not uncommon.’” Id. at 969. Although the practice is not uncommon, section 499.03(2) shows that the practice results in a prima facie case of illegal possession of a controlled substance. The Smith case did not mention section 499.03(2). However, based on the facts presented, the court observed that “the incriminating nature of the pills was not immediately apparent to the deputy.” Id.

In State v. Deaton, 109 So.3d 338, 340 (Fla. 4th DCA 2013), the Fourth District determined that an officer lacked probable cause to make an arrest for a felony based on one oxycodone pill found in the defendant’s pocket during a consensual search. The court observed that oxycodone can be possessed lawfully with a prescription and that “it is not unusual for a traveler with a valid prescription to separate a pill from a prescription bottle for later consumption.” Id. The Deaton case also did not mention section 499.03(2).

Based on section 499.03(2) and the facts relied upon by the trial court, we determine that the trial court erred as a matter of law in determining that the deputy illegally seized the prescription pill bottle and the pills in it. Thus, the trial court should not have suppressed the evidence.

Vinci also makes a tipsy coachman argument that the suppression should be affirmed because the trial court erred as a matter of law in determining that the deputy made a lawful stop of Vinci’s vehicle for a DUI investigation. To support a valid stop for a DUI offense an officer needs only a founded suspicion of criminal activity. State, Dep’t of Highway Safety & Motor Vehicles v. DeShong, 603 So.2d 1349, 1352 (Fla. 2d DCA 1992). Erratic driving such as weaving within a traffic lane has been determined sufficient to support a reasonable suspicion of a DUI offense. See id. “The courts of this state have recognized that a legitimate concern for the safety of the motoring public can warrant a brief investigatory stop to determine whether a driver is ill, tired, or driving under the influence in situations less suspicious than that required for other types of criminal behavior.” Id.) see also State v. Davidson, 744 So.2d 1180, 1180-1181 (Fla. 2d DCA 1999). In Roberts v. State, 732 So.2d 1127, 1128 (Fla. 4th DCA 1999), the court determined that “Roberts’ continuous weaving, even if only within her lane, during the time that she was being followed presented an objective basis for suspecting that she was under the influence.”

Here, at around 11:00 p.m., the deputy observed Vinci for approximately a mile weaving within his lane. Vinci’s vehicle would drift to the right side of the lane and hit the reflectors and then drift to the left side of the lane and hit the reflectors, and Vinci consistently did this for about a mile. He then turned on his left turn signal, slowly drifted over into the left lane, continued driving, and left his turn signal blinking. Under these circumstances, the trial court did not err in determining that the deputy had a reasonable suspicion to make an investigatory stop to determine whether Vinci was impaired. Therefore, we reject Vinci’s argument regarding the stop of his vehicle.

Based on the analysis above regarding the seizure of the pill bottle and its contents, we reverse the suppression order and remand for further proceedings.

Reversed and remanded.

BLACK and SLEET, JJ„ Concur.

      . See Ray v. State, 40 So.3d 95, 98 (Fla. 4th DCA 2010) (stating that the tipsy coachman doctrine allows an appellate court "to affirm a lower court’s holding when the lower court reached the correct result despite using incorrect reasoning”).


author: VILLANTI, Judge.

text:
    Armistar COLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5843.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.
    Armistar Cole, pro se.
   VILLANTI, Judge.

Armistar Cole appeals the summary denial of his amended motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the postconviction court failed to attach those portions of the record that allegedly support its ruling, we reverse and remand for further proceedings.

This is Cole’s second appearance in this court concerning his motion for postconviction relief. Cole timely filed his original rule 3.850 motion, raising twelve grounds for relief. The postconviction court summarily denied eleven of his claims and denied the twelfth after an evidentiary hearing. , On appeal, this court affirmed the denial of all of Cole’s claims except claims (l)(d) and (2)(e) and a portion of claim (2)(a), each of which had been summarily denied as facially insufficient. Cole v. State, 89 So.3d 993, 994 (Fla. 2d DCA 2012). As to claims (l)(d), (2)(e), and the portion of claim (2)(a) dealing with the impeachment of the lead detective, we reversed and remanded for the postconviction court to afford Cole leave to amend if he could do so. Id.

On remand, Cole waived further argument as to claims (l)(d) and (2)(e). Thus, his amended motion addressed only the portion of claim (2)(a) in which he alleged that counsel was ineffective for failing to properly cross-examine the lead detective with his prior deposition testimony concerning alleged deficiencies in his investigation. These amended allegations addressed the pleading deficiencies this court had identified in its prior opinion. Id. at 995.

The postconviction court subsequently denied Cole’s amended claim (2)(a), finding that the evidence presented at trial, including “the victim’s identification of Defendant as the perpetrator of the crime, the brutal surveillance video of the robbery, and the recorded jail calls from Defendant to his wife advising her to get rid of a DVD player,” conclusively refuted Cole’s allegations. However, the postconviction court failed to attach those portions of the trial record that allegedly supported this conclusion. Hence, the postconviction court’s order is legally deficient. See Fla. R. Crim. P. 3.850(f)(5) (“If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.”) Accordingly, we must reverse the order denying Cole’s amended claim (2)(a) and remand for the postconviction court to provide those attachments that support its ruling.

Affirmed in part; reversed in part; remanded with directions.

CASANUEVA and WALLACE, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Corrie JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5940.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.

      Corrie Jackson, pro se.
   KHOUZAM, Judge.

Corrie Jackson appeals the denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the denial of all but one of his claims without comment and remand for the postconviction court to consider Mr. Jackson’s claim of a sentencing scoresheet error in ground four of his motion.

On May 18, 2010, Mr. Jackson pleaded guilty as charged to one count of lewd and lascivious battery, and the trial court sentenced him to two years’ community control, followed by ten years’ sex offender probation. On January 3, 2011, Mr. Jackson admitted to violating community control, and the trial court sentenced him to seven years’ prison. In his motion for postconviction relief, Mr. Jackson alleged that his scoresheet erroneously added eighty victim injury points for penetration because the information failed to charge penetration and the factual basis for the plea provided by the State did not include penetration. He further alleged that there was an extremely high probability that the same seven-year sentence would not have been imposed with a correct scoresheet.

The postconviction court erred in finding this claim was untimely under rule 3.850. This claim challenges the sentence imposed upon Mr. Jackson’s violation of community control on January 3, 2011. His motion, which was filed on October 26, 2012, and amended to add this claim on November 16, 2012, and December 6, 2012, was timely filed as to this claim.

Mr. Jackson pleaded a claim of score-sheet error that can be determined from the face of the record, and this is a cognizable claim under rule 3.850. See Mann v. State, 974 So.2d 552, 553 (Fla. 5th DCA 2008) (holding a defendant who pleaded guilty as charged to three counts of lewd and lascivious battery and one count of lewd and lascivious molestation was entitled to relief under rule 3.850 because the defendant’s scoresheet assessed victim injury points for penetration as to all four counts, but three counts of the information did not specifically allege penetration). On remand, the postconviction court shall consider whether the claim is conclusively refuted by the record and, if not, whether the record conclusively shows that the same sentence would have been imposed with a correct scoresheet. See State v. Anderson, 905 So.2d 111, 118 (Fla.2005) (“Because it is essential for the trial court to have the benefit of a properly calculated scoresheet when deciding upon a sentence, we agree that the would-have-been-imposed standard should apply to motions filed under rule 3.850 to correct scoresheet error.”).

Affirmed in part, reversed in part, and remanded.

VILLANTI and LaROSE, JJ„ Concur.


text:
    Rodrick Newton ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3160.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    James S. Purdy, Public Defender, and Frank W. Scott, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Rodrick Newton Allen was convicted of trespass, battery, and domestic battery by strangulation. The victim was his former girlfriend. Allen contends that his convictions for battery and domestic battery by strangulation violate the prohibition against double jeopardy and that his conviction for battery must be reversed. The State concedes that the two convictions occurred at the same time and location, were committed against the same victim during the same episode, and no temporal break occurred between the commission of the two offenses. The State properly suggests that if the two convictions violate the proscription against double jeopardy, the less serious offense of battery should be the conviction and sentence that is vacated.

We conclude, based on the facts and circumstances of this case, that a double jeopardy violation has occurred, see Ramirez v. State, 113 So.3d 105 (Fla. 5th DCA 2013), and that the conviction for battery by strangulation should be affirmed and the lesser offense of battery should be reversed. We, therefore, remand this case to the trial court to vacate the battery conviction and sentence.

AFFIRMED in part; REVERSED in part; REMANDED.

SAWAYA, ORFINGER, and BERGER, JJ., concur.


text:
    Gregory Frank DIDION, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3998.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    Stephen G. Henderson and Maria Vaeth Henderson, of Stephen G. Henderson, P.A., Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Gregory Didion appeals the order finding him in violation of his probation for committing new law offenses and the sentence imposed on the underlying offenses. He argues that the trial court erred in finding him in violation (1) where there was no non-hearsay evidence to corroborate the hearsay evidence; (2) because the verdict was not supported by the weight of the evidence; and (3) because the necessary elements of the alleged crimes were not established. He also argues that, when sentencing him, the court improperly considered prior alleged violations that had been dismissed. As to these issues, we affirm without further discussion.

Didion also argues that the court erred by entering a judgment that did not specify the condition he was found to have violated, instead finding him guilty of “on site violation of state probation.” We agree with Didion that the judgment contains what appear to be scrivener’s errors. The Affidavit of Violation of Probation alleged that Didion had violated Condition 5 of his probation by committing the new law offenses of burglary of an occupied dwelling and criminal mischief, but as Didion correctly points out and the State concedes, the judgment does not specify which condition Didion violated. Although it is obviously Condition 5, the judgment erroneously specifies that Didion committed an “on site violation of state probation,” which is a nonexistent offense. Therefore, we remand this case to the trial court to correct the scrivener’s errors in the judgment by striking the reference to the nonexistent offense and to specify the condition of probation Didion violated.

AFFIRMED; REMANDED to correct scrivener’s errors.

SAWAYA, PALMER, and LAMBERT, JJ., concur.


text:
    Kenneth G. ROGERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-503.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2014.
   PER CURIAM.

The postconviction court denied Kenneth G. Rogers’ motion filed under Florida Rule of Criminal Procedure 3.850 on the ground that it was untimely. In the postconviction court proceedings, the State argued, and the postconviction court agreed, that the motion filed on March 6, 2013, was untimely because it was filed more than two years following his sentencing after violation of probation on February 18, 2008. Rogers did not immediately appeal the 2008 judgments and sentences but later filed a successful petition for belated appeal within the time limit provided under Florida Rule of Appellate Procedure 9.141(c)(5). Although both the State and the postconvietion court were aware that Rogers had filed a successful petition for belated appeal in this court, they overlooked its significance.

Once this court granted Rogers’ petition for belated appeal, appellate case number 2D10^4415 was initiated. This court affirmed Rogers’ judgments and sentences and issued its mandate on March 7, 2012. The time for Rogers to file a motion under rule 3.850(b) then began to run on the date of this court’s mandate. See Twardokus v. State, 69 So.3d 359, 360 (Fla. 2d DCA 2011). Thus, Rogers’ motion was timely filed, and the postconviction court should have reviewed it on the merits.

Reversed and remanded for further proceedings.

NORTHCUTT, MORRIS, and BLACK, Concur.

      . In contrast, "[t]he filing of an unsuccessful petition for belated appeal does not toll the rendition of a judgment and sentence for purposes of calculating the two-year window.” Martin v. State, 941 So.2d 1173, 1173 (Fla. 5th DCA 2006) (citing Jones v. State, 922 So.2d 1088 (Fla. 4th DCA 2006)).


text:
    Travis MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2156.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    Travis Moore, Century, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, 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 February 12, 2014 order denying postconviction relief filed in Case Nos. 2002-CF-10686, 2002-CF-12204, 2002-CF-13050, and 2002-CF-14827, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, EVANDER and LAMBERT, JJ., concur.


text:
    Duwan PARHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2286.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    Duwan Parham, Milton, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, 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 final order denying Petitioner’s motion for postconviction relief entered December 9, 2013, in Case Nos. 08-86556-CFAES; 08-36558-CFAES; and 08-32730-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(e)(6)(D).

PETITION GRANTED.

TORPY, CJ., LAWSON and EVANDER, JJ., concur.


text:
    Henry L. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2327.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    Henry L. Robinson, Raiford, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, 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 January 27, 2014 and February 26, 2014 orders denying Petitioner’s motion for postconviction relief in Case No. 10-CF-4115, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

EVANDER, BERGER and LAMBERT, JJ., concur.


text:
    Edward Lee CONLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-394.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2014.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the judgment and sentence. However, our independent review of the record pursuant to State v. Causey, 503 So.2d 321 (Fla. 1987), revealed a sentencing error. The trial judge orally sentenced Appellant to serve 20 years in the Department of Corrections (“DOC”) as a habitual felony offender, with a minimum mandatory of 15 years in the DOC as a prison releasee reoffender. However, the sentence, as written, imposes the 20-year sentence, but makes no mention of the 15-year minimum mandatory sentence. The oral pronouncement of sentence controls over the written sentence. Beard, v. State, 27 So.3d 186, 187 (Fla. 5th DCA 2010) (citing Williams v. State, 957 So.2d 600, 603 (Fla.2007)).

Nevertheless, “sentencing errors that occur after the effective date of the amendments to Florida Rule of Criminal Procedure 3.800(b) ... cannot be reviewed by an appellate court if, as here, the issue was not raised at sentencing or in a timely post-sentencing procedure pursuant to rule 3.800.” Dunbar v. State, 35 So.3d 54, 55 (Fla. 5th DCA 2010) (citations omitted). The judgment and sentence is, therefore, affirmed without prejudice to Appellant’s right to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(a). See id.; Polite v. State, 847 So.2d 1156 (Fla. 5th DCA 2003).

AFFIRMED.

ORFINGER, WALLIS and LAMBERT, JJ., concur.

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


author: SUAREZ, J.

text:
    Manuel HERRERA, Petitioner, v. The STATE of Florida, et al., Respondents.
    No. 3D14-2199.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant Attorney General, for respondents.
    Before WELLS, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

Manuel Herrera seeks a writ of habeas corpus to remedy his detention without bond. At the defendant’s appearance at the alias capias calendar, the trial court failed to determine whether Herrera’s failure to appear in court for pre-trial sounding was willful, and failed to make the necessary findings that “no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.” Art. I, § 14, Fla. Const.; § 907.041(4)(e), Florida Statutes (2014). See State v. Blair, 39 So.3d 1190 (Fla. 2010). As such, we grant Herrera’s petition for writ of habeas corpus only insofar as we remand to the trial court for an expedited bond hearing pursuant to section 907.041(4)(c), Florida Statutes (2014). The trial court’s determination shall include, but is not limited to, Herrera’s willfulness in failing to appear at his scheduled pre-trial sounding. Herrera shall remain in detention pending the outcome of the hearing.

Petition granted; remanded for an expedited bond hearing.

This opinion shall take effect immediately notwithstanding the filing or disposition of any motion for rehearing.


author: ROTHENBERG, J.

text:
    Larry Robert WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1877.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.

      Eugene F. Zenobi, Regional Counsel, and Roberta G. Mandel, Special Assistant Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   ROTHENBERG, J.

The defendant, Larry Robert Williams, who was charged with first degree murder and shooting into a public or private building, appeals his conviction for the lesser included offense of manslaughter and for shooting into a public or private building. The sole issue raised on appeal is whether the trial court erred by denying the defendant’s motion to suppress his statements. Because we find that the trial court’s order denying the defendant’s motion to suppress is supported by competent substantial evidence, we affirm.

At approximately midnight on August 4, 2004, Lindsey Graham was shot and killed when someone fired through her bedroom window while she was speaking to her friend Brandi Cooper on the telephone.

After conducting their investigation and obtaining probable cause to believe the defendant was the person who shot and killed Ms. Graham, Miami-Dade County homicide detectives went to the defendant’s home the following afternoon. The detectives found the defendant seated in a car parked in front of the house, took the defendant into custody, and placed the defendant under arrest. After obtaining consent to search the residence from the defendant and his mother via a consent-to-search form, the detectives searched the defendant’s home, and the murder weapon, an AK-47, was recovered in the attic.

When the defendant was taken into custody and advised that he was under arrest for the homicide of Ms. Graham, he spontaneously stated, “How many years am I gonna get for this?” The detectives did not respond to this spontaneous statement, nor did they acknowledge the defendant’s repetition of this question during his transport to the homicide bureau other than to advise the defendant to wait until they got to the homicide office where his questions would be answered. At the homicide office, the defendant was advised of his rights with the use of a Miranda rights warning form, which the defendant executed, thereby waiving his rights and agreeing to speak with Detective Romagni without having a lawyer present. The defendant then provided a videotaped statement admitting to the homicide.

The defendant does not dispute that his statement was a voluntary statement free from coercion or any promises made to him by the police. The sole issue raised on appeal is whether the defendant possessed the mental capacity to make a knowing and intelligent waiver of his rights when he was questioned by the police.

After conducting an evidentiary hearing, the trial court issued an order denying the defendant’s motion to suppress the defendant’s statements. The trial court’s order reflects that the trial court considered the testimony of the detectives, the videotaped statement of the defendant, the photographs of the crime scene, the consent-to-search form, the Miranda rights waiver form, and the deposition testimony of two psychologists who were retained or appointed to determine the defendant’s competency to waive his rights. The trial court specifically found that the defendant and his mother knowingly and willingly consented to the search of the premises, the defendant had the mental capacity to understand his waiver and the impact of his waiver, and the defendant’s statements and admissions were freely and voluntarily given.

The trial court’s ruling on a motion to suppress evidence is presumed to be correct and is entitled to great deference. San Martin v. State, 717 So.2d 462, 469 (Fla.1998). The reviewing court interprets the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. Id.

Although the defendant’s I.Q. scores were in the lower range, the defendant, who was twenty-two years old at the time of his statement, advised the detectives that he had an eleventh grade education; he was enrolled to obtain his GED; he was not under the influence of any alcohol, illicit drugs, or medication; he did not suffer from a mental illness; and he understood the proceedings. The defendant’s statement reflects that the defendant had no difficulty providing relevant personal information, including addresses, phone numbers, and employment history. He stopped the detective and asked questions when he did not understand what was being asked. For example, before responding to two of the Miranda questions, he asked the detective to explain more fully what his rights were and what he was waiving, and after further explanation, he stated that he understood and was willing to waive those rights. During his statement, the defendant confirmed that when he executed the rights waiver form, he did so freely and voluntarily and that he understood the rights he was waiving. Additionally, the defendant’s statement was consistent with the physical evidence and the testimony of the witnesses.

Because the trial court’s findings are supported by competent substantial evidence, we affirm.

Affirmed.

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


author: WELLS, Judge.

text:
    Craig HEPBURN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2815.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   WELLS, Judge.

Craig Hepburn appeals from a final judgment of civil commitment as a sexually violent predator pursuant to the Jimmy Ryce Act. See §§ 394.910-394.932, Fla. Stat. (2012). While we agree that the State’s attempt to illustrate the meaning of the term “menace” by making an analogy to an escaped zoo lion was improper, we affirm first because the error was not properly preserved for review and did not rise to the level of fundamental error and second because on the record before us the error was harmless.

Affirmed.

      . We note that this analogy (made by the same trial attorney) has been urged as error in two separate cases which have come before this court within a span of only one week. While those errors to date have not been properly preserved nor proved legally sufficient to support reversal, we need say no more than verbum sapienti satis est.


text:
    F.T., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1590.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Mary-Grace L. Mendoza, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and EMAS and SCALES, JJ.
   EMAS, J.

We affirm the lower court’s determination, following an adjudicatory' hearing, that F.T. committed the offense of petit theft of retail merchandise.

F.T. was charged with stealing several items of merchandise from a J.C. Penney store. The total amount of the merchandise allegedly stolen was $100 or more but less than $300, which would constitute first-degree petit theft, a first-degree misdemeanor. See, § 812.014(2)(e), Fla. Stat. (2012). At trial, the court permitted the loss prevention officer to testify, over objection, to the price contained on the price tags attached to the merchandise taken from the store by F.T. The Appellant contends that the witness’ testimony regarding the dollar amount contained on the price tags constituted inadmissible hearsay.

While a charge of theft of retail merchandise is prosecuted pursuant to the general theft statute (sections 812.012 and 812.014, Florida Statutes (2013)), it is also subject to separate and more specific statutory treatment under section 812.015.

Under the general theft provisions, “value” is defined in relevant part as follows: Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense. § 812.012(10)(a)l., Fla. Stat. (emphasis added).

However, where the offense charged is retail theft, a different definition of “value” applies:

“Value of merchandise” means the sale price of the merchandise at the time it was stolen or otherwise removed, depriving the owner of her or his lawful right to ownership and sale of said item.

§ 812.015(l)(d), Fla. Stat. (emphasis added).

Therefore, it is not the market (actual) value of the retail merchandise, but rather the “sale price” (in this case, as indicated on the price tag) that establishes “value” for purposes of determining the degree of a retail theft offense. In a theft of retail merchandise, it is irrelevant for example that the “market value” of the stolen item may be significantly more or less than the price stated on the tag affixed to it. The State can meet its burden of proving “value” for purposes of retail theft by simply introducing evidence of the sale price as stated on the price tag, and need not prove “value” as might be required in a non-retail theft case, by external. proof of what the market might determine is a fair price between a willing seller and a willing buyer, or what it might cost for the merchant to replace the stolen item. Scott v. State, 519 So.2d 734 (Fla. 3d DCA1988).

When someone steals merchandise from a retail merchant, he or she is on notice that the sale price as stated on the attached price tag is sufficient to establish the value of the property for retail theft purposes, even if that “value” is not the actual market value of the item. This is reinforced by the last portion of the retail theft statute’s definition of “value,” because retail theft deprives the owner “of her or his lawful right to ownership and sale of the item,” meaning a sale of the item at the price contained on the tag affixed to the item.

In this sense, the use of the term “value” in the retail theft statute is a misnomer and can cause confusion. The common understanding of the term “value” is “actual worth” or “market value”, the latter serving as the definition under the general theft statute. But the Florida Legislature has ascribed a different definition of “value” for retail theft purposes. Where the item stolen is retail merchandise, the “value” is simply the price stated on the price tag affixed to the item at the time it was stolen. Therefore, in a retail theft prosecution, the contents of the price tag are being admitted not to prove the truth of the matter asserted (i.e., the item’s actual worth or market value) but only to establish its stated value, the only requirement for determining the degree of the offense under the retail theft provision.

The difference between these two concepts (stated price v. market value) is illustrated by comparing a retail theft case to a non-retail theft case. If a person steals a shirt from a store and the price stated on the tag affixed to the shirt is $100, the content of that price tag is not hearsay because it is not coming in to prove the truth of the matter asserted but only to establish what the tag “says”. Its independent relevance is only as a result of the statutory language of the definition of “value,” which is simply the price affixed to the retail item at the time it was stolen.

By contrast, assume instead that a person buys that same shirt, paying $100 as stated on the price tag affixed to the shirt. The shirt is stolen from the buyer later that same day, before the buyer even has a chance to remove the price tag. An arrest is made, and that individual is charged with non-retail theft (since the shirt was not stolen from a retail merchant). At trial, if the State sought to introduce the price tag on the shirt to prove “value,” it would be hearsay, because the State would be seeking to introduce this evidence not for the purpose of simply establishing the amount contained on the price tag affixed to the shirt (since that is not the definition of “value” applicable in a non-retail theft case) but rather in an attempt to prove the truth of the matter asserted: that the actual worth or market value of the shirt (i.e., the definition of “value” applicable in a non-retail theft case) is $100. Under these circumstances, evidence of the market value would generally be demonstrated in the conventional manner — the buyer/victim could testify what he paid for the shirt, for example, and testify that the shirt was new and had never been worn. But the price tag itself would remain hearsay and (absent a predicate under section 90.803(6), Florida Statutes — the business records exception — or meeting some other hearsay exception) would not be admissible.

This distinction between the definition of value for retail theft and value for non-retail theft cases guides our conclusion that the testimony in this case was not hearsay. This conclusion is consistent with our sister court’s holding in Watson v. State, 415 So.2d 128 (Fla. 4th DCA 1982) (holding loss prevention officer was properly permitted to testify to her contemporaneous observation of the sale price stated on the price tags affixed to the stolen items of retail merchandise).

Affirmed.

      . The Appellant thus contended, both at the adjudicatory hearing and on appeal, that the admissible evidence was insufficient to establish that the value was $100 or more, therefore requiring the charge be reduced to second-degree petit theft, a second-degree misdemeanor. See §§ 812.012(10(b); 812.014(3)(a), Fla. Stat. (2012).

      . "Value” is defined by Merriam-Webster as "a fair return or equivalent in goods, services, or money for something exchanged.” Merriam-Webster’s Dictionary, http://www. merriam-webster.com/dictionary/value (last visited August 13, 2014).

      . This is not to say that a defendant could not seek to counter evidence of the price tag's contents with evidence to establish that the "sale price” was different than that appearing on the price tag if, for example, the merchant advertised a "50% off” sale at the time the item was stolen.

      . However, if a proper foundation was laid, the price indicated on the price tag could be introduced and considered as some evidence of the actual market value of the shirt.

      . It would also appear that this analysis conflicts with the decision of our sister court in Lukaj v. State, 729 So.2d 965 (Fla. 1st DCA 1999). However, we do not agree that a business records foundation must be laid before a witness is permitted to testify to her contemporaneous observation of the contents of the price tag affixed to the stolen item of retail merchandise.


author: SALTER, J.

text:
    SCI FUNERAL SERVICES OF FLORIDA, INC., Petitioner, v. Raul MUÑOZ, etc., et al., Respondents.
    No. 3D14-1240.
    District Court of Appeal of Florida, Third District.
    Sept. 17, 2014.

      Gray Robinson and Ted C. Craig, Miami, for petitioner.
    Billbrough & Marks and Geoffrey B. Marks, Coral Gables, for respondents.
    Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
   SALTER, J.

SCI Funeral Services of Florida, Inc. (“SCI”), seeks a writ of certiorari quashing a circuit court order allowing the respondents to assert a claim for punitive damages. We grant the petition.

The proposed third amended complaint alleged the following facts. The respondents, plaintiffs below, are the parents of Yetsiyel Muñoz Ceballos, deceased. One of Mr. Ceballos’s parents entered into a contract with a Miami funeral home (Auxi-liadora Funeraria Nacional, or “Auxiliado-ra”). The contract contemplated that Mr. Muñoz Ceballos’s body would be shipped to Cuba, where a wake and burial would be conducted.

SCI, doing business as “Gold Coast Crematory” and not affiliated with Auxiliado-ra, allowed Auxiliadora to store human remains in SCI’s cooler for a fee. Auxilia-dora’s employees, not SCI’s, transported Mr. Muñoz Ceballos’s body to SCI’s cooler, where they entered in SCI’s log book the date, the location in the cooler where the body was placed, Mr. Muñoz Ceballos’s name, an Auxiliadora employee’s name and signature, and an abbreviation showing that Auxiliadora was the funeral home. At the same time, the same two Auxiliadora employees delivered the body of another, unrelated, decedent, using the same log book procedure. The remains of the second decedent were to be cremated.

It was later determined that Auxiliadora shipped the remains of the unrelated decedent to Cuba (instead of the remains of Mr. Muñoz Ceballos) and that Mr. Muñoz Ceballos’s body was cremated at the SCI facility. The allegations and pretrial discovery relating to Auxiliadora also alleged that its owner, Mr. Alkhalifa, and other employees deceived Mr. Muñoz Ceballos’s family for days regarding the actual circumstances of the cremation. There were no such allegations regarding SCI or its own employees.

In their proposed third amended complaint, Mr. Muñoz Ceballos’s parents sought damages against Auxiliadora for tortious interference, intentional infliction of emotional distress, violation of Florida Statutes Chapter 497, and punitive damages, and against SCI for negligence, violations of Chapter 497, and punitive damages. The trial court declined to make findings that would impute the alleged conduct of SCI’s employee or employees to SCI under the applicable statutory procedure. Subsections 768.72(2) and (8), Florida Statutes (2013), specify:

(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:
(a) “Intentional misconduct” means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.
(b) “Gross negligence” means that the defendant’s conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.
(3) In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent meets the criteria specified in subsection (2) and:
(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or
(c)The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.

Here, as in Coronado Condominium Ass’n, Inc. v. La Corte, 103 So.3d 239 (Fla. 3d DCA 2012), the respondents failed to proffer evidence satisfying any of the three categories of corporate involvement established in section 768.72(3)(a), (b), or (c), as required to subject SCI to a punitive damages claim. The respondents’ failure to comply with this statutory procedure and the trial court’s resulting order may be redressed by certiorari. Espirito Santo Bank v. Rego, 990 So.2d 1088 (Fla. 3d DCA 2007).

Based on these authorities and our review of the record, we grant the petition and quash the order granting leave to the plaintiff/respondents to add a punitive damages claim against SCI.

      . The Florida Funeral, Cemetery, and Consumer Services Act. § 497.001, Fla. Stat (2013).