author: NORTHCUTT, Judge.

text:
    Michael FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2374.
    District Court of Appeal of Florida, Second District.
    March 19, 2014.
    Michael Fernandez, pro se.
   NORTHCUTT, Judge.

Michael Fernandez appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. His motion raised six grounds for relief. We reverse and remand for further proceedings on grounds one and two, and we affirm without comment the remaining four grounds.

On April 2, 2009, pursuant to negotiations with the State, Fernandez pleaded guilty to one count of felony battery in case number 08-CF-11276 and to one count of robbery in case number 09-CF-772. The trial court imposed concurrent sentences of ten years’ imprisonment as a habitual felony offender on both counts. Fernandez then filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(7), which the trial court denied after an evidentiary hearing. Fernandez appealed, and this court per curiam affirmed. Fernandez v. State, 63 So.3d 762 (Fla. 2d DCA 2011) (table decision). Thereafter, Fernandez timely filed the instant motion for relief under rule 3.850.

Grounds one and two of Fernandez’s rule 3.850 motion were related to the second-degree robbery charge in case number 09-CF-772. See § 812.13(1), (2)(c), Fla. Stat. (2009). The police affidavit and witness statement supporting the robbery charge in the information reflect that Fernandez confronted the victim as she was walking along a road. Fernandez was upset because the victim had previously reported him and his girlfriend to the police in an unrelated incident, and he asked the victim why she had done so. He became angry and punched the victim’s right side. Frightened, the victim stepped back and reached into her pocket for a pocketknife with which to defend herself. As she took the knife from her pocket, she also accidentally removed two twenty-dollar bills. Without using any additional force, Fernandez grabbed the money from the victim’s hand and fled.

In his rule 3.850 motion, Fernandez asserted that the facts contained in the police report and the victim’s statement would have supported an “afterthought” defense to the robbery charge. Robbery is the taking of property “from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money ..., when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.13(1). But the afterthought defense provides that “ ‘[i]f the force or violence is motivated by a reason other than to rob the victim, then the taking of the property would not constitute a robbery.’ ” DeJesus v. State, 98 So.3d 105, 107 (Fla. 2d DCA 2012) (quoting Perkins v. State, 814 So.2d 1177, 1178 (Fla. 4th DCA 2002)). Fernandez argued that the allegations supported an afterthought defense because the motive for his use of force — anger at the victim for calling the police — was unrelated to his taking of the victim’s money. He maintained that he could not have known the victim was carrying the two twenty-dollar bills when he used “force, violence, assault, or putting in fear” because the victim pulled the money out of her pocket after he allegedly punched her.

Fernandez alleged that his counsel performed deficiently by failing to investigate this potential defense to the robbery charge in case number 09-CF-772 and by failing to advise him of the defense before he pleaded guilty. See Gee v. State, 41 So.3d 1035, 1036 (Fla. 2d DCA 2010) (“ ‘A trial attorney’s failure to investigate a factual defense ..., which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.’ ” (quoting Williams v. State, 717 So.2d 1066, 1066 (Fla. 2d DCA 1998))). He also claimed that he would have rejected the State’s offer and proceeded to trial if his counsel had advised him of the afterthought defense, as he would have been entitled to a special jury instruction on the defense. See DeJesus, 98 So.3d at 108 (explaining that the standard jury instruction for robbery “erroneously allows the jury to ‘assume that so long as the force and the taking constituted a continuous series of acts or events the motive for the force would be irrelevant’ ” (quoting Perkins, 814 So.2d at 1179)); see also Munroe v. State, 28 So.3d 973, 976 (Fla. 2d DCA 2010) (holding that an evidentiary hearing was required to determine whether counsel performed deficiently in failing to advise the defendant of a potentially viable defense, noting that the defendant’s “claim of prejudice — that he would have proceeded to trial — is credible if he can demonstrate that the defense was viable”).

Fernandez’s claims in grounds one and two were facially sufficient and were not conclusively refuted by the transcript of Fernandez’s plea colloquy, attached by the postconviction court to its order. During the colloquy, Fernandez stated that he was satisfied with the sendees of his attorney and that he did not need counsel to file any motions or talk to any -witnesses. Based solely on this exchange, the postconviction court found that Fernandez was not entitled to withdraw his plea. This was error. Fernandez’s answers to those general questions did not conclusively refute his later claim that he was unaware of the possibility of asserting the afterthought defense when he pleaded guilty. See Hayes v. State, 120 So.3d 640, 641 (Fla. 2d DCA 2013) (holding that “acknowledge-ments and answers of [a] general nature did not conclusively refute [the defendant’s] allegation of ineffective assistance based on his counsel’s failure to pursue a specific defense”). The trial court neither asked specifically whether Fernandez’s attorney had discussed the afterthought defense with him nor asked generally whether counsel had discussed possible defenses with him.

Accordingly, we reverse the postconviction court’s summary denial of grounds one and two of Fernandez’s motion for postconviction relief. On remand, the postconviction court either shall attach additional portions of the trial record that conclusively refute these two claims or shall hold an evidentiary hearing on them.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and LaROSE, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Jason CASTELLANOS, Ashley Machin, Richard Fink, Anthony Sierra, Joy Ford, Yoedel Hernandez, and Rick Menendez, Appellees.
    No. 2D12-2008.
    District Court of Appeal of Florida, Second District.
    March 19, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellant.
    David T. Weisbrod, Tampa, for Appellee Joy Ford.

      Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellees Ashley Machín, Richard Fink, Anthony Sierra, Yoedel Hernandez, and Rick Menendez.
    No appearance for Appellee Jason Cas-tellanos.
   PER CURIAM.

The State appeals the trial court’s order granting a motion to suppress evidence and statements in the cases of Jason Cas-tellanos, Ashley Machín, Richard Fink, Anthony Sierra, Joy Ford, Yoedel Hernandez, and Rick Menendez. We have jurisdiction. See Fla. R.App. P. 9.140(c)(1)(B). We reverse the trial court’s order pursuant to our decision in State v. Mitchell, 124 So.3d 1046 (Fla. 2d DCA 2013) (holding that defendants lack standing to seek suppression relating to jurisdictional defects of coconspirator’s arrest where they had no legally cognizable privacy interest in fraudulent prescriptions and evidence developed therefrom), and remand the case to the trial court for further proceedings.

Reversed and remanded.

ALTENBERND, NORTHCUTT, and LaROSE, JJ., Concur.


author: KELLY, Judge.

text:
    Eryc CUEVAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2855.
    District Court of Appeal of Florida, Second District.
    March 19, 2014.
    Howard L. Dimmig, II, Public Defender, and Frank D.L. Winstead, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cliine, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Eryc Cuevas appeals from his sentence for lewd or lascivious molestation. He correctly argues that, although the trial court orally pronounced that he was being sentenced as a prison releasee reoffender, the written sentence contains both a prison releasee reoffender and a habitual felony offender designation. Accordingly, we affirm Cuevas’s judgment and life sentence, but remand to the trial court for correction of the written sentence to conform to the oral pronouncement. See Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003) (noting that a trial court’s oral pronouncement of sentence controls over the written document).

Affirmed in part, reversed in part, and remanded.

VILLANTI and BLACK, JJ., Concur.


text:
    STATE of Florida, Appellant, v. Joseph Michael CLIFTON, Appellee.
    No. 2D12-4255.
    District Court of Appeal of Florida, Second District.
    March 19, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

The State appeals the trial court’s order granting Joseph Michael Clifton’s motion to suppress evidence and statements. We have jurisdiction. See Fla. R.App. P. 9.140(c)(B)(l). We reverse the trial court’s order pursuant to our decision in State v. Mitchell, 124 So.3d 1046 (Fla. 2d DCA 2013) (holding that defendants lack standing to seek suppression relating to jurisdictional defects of coconspirator’s arrest where they had no legally cognizable privacy interest in fraudulent prescriptions and evidence developed therefrom), and remand the case to the trial court for further proceedings.

Reversed and remanded.

ALTENBERND, NORTHCUTT, and LaROSE, JJ., Concur.


author: GRIFFIN, J.

text:
    Douglas MANN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1478.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2014.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Colin D. Mann [“Mann”], appeals his conviction for attempted second degree murder with a weapon and aggravated battery with a deadly weapon. On appeal, Mann argues that the trial court erred by (1) instructing the jury on the victim’s right to use non-deadly force in defense of his property, and (2) denying his motion for judgment of acquittal.

On the morning of May 28, 2011, Mann stabbed Travis Wills [“Wills”] three times with a knife. According to Wills’s testimony at trial, Wills was drinking coffee on his front porch at about 5:00 in the morning when he saw a man (later identified as Mann) walking down the sidewalk. Mann stopped midway on the sidewalk and attempted to call Wills’s wife’s cat. When the cat did not respond to Mann’s call, Wills testified that Mann “continued down the sidewalk and got to my neighbor’s driveway which he then turned, walked down my neighbor’s driveway and then turned again left on to my property which put him in front of me in the front porch.” Wills continued, “At that point the cat— the cat is rather friendly at that point. He didn’t really think anything of it and approached [Mann].” “At that point, [Mann] hammer fisted the cat in the back of the head and pinned it to the ground.” According to his testimony, Wills “immediately responded with physical confrontation” by leaving the porch, yelling “hey,” and punching Mann in the face. Wills testified: ‘We fought. I assumed we were in a fistfight, but I had no idea I was being stabbed. We fought out to the sidewalk; and at that point he stabbed me again and I realized I had been stabbed.” Eventually, Wills fell to the ground in his front yard. According to Wills, Mann then “showed me the knife and told me he would kill me.” Wills then “made a diagonal” to his front porch, and Mann left the scene.

Mann’s testimony at trial recalled a somewhat different scenario. At the time of the incident, Mann had been homeless for about six to eight months. Mann testified as follows:

I was headed down towards Eola Park in the morning, at approximately 5:30 in the morning; and as I went by a house, there was two cats that had come running out meowing at me like saying hello, or whatever, and I had stopped to pet them .... They had come up right by the sidewalk. I had taken a sidestep off into a driveway, and I had squatted down, and I had petted one on its back; and then I had reached over and petted the other one. It had flopped over on his back, and I went to rub its belly because I thought that’s what it was doing; and as soon as I touched its belly, it sort of nipped at my hand and wrapped his paws around it and I had jerked my hand up .... It startled me.

The following direct examination ensued:

Q. Did you hit the cat?
A. Not at all. When I jerked my hand up, the cat that was laying on the ground that I attempted to rub its belly had jumped back up and ran away and then the other one followed it.
Q. Okay. What happened after that?
A. I thought to myself, like, silly cats, and stood back up. I got back on the sidewalk in the same direction I was heading down toward Eola Park and started walking away from the corner of the driveway there.
Q. Okay. At some point did you see Mr. Wills?
A. Not specifically. I had walked about 40 feet down to about the middle of the neighbor’s yard, and at that time I heard something crash through the bushes. I thought maybe it was the cats that had done that; but immediately after hearing something coming through the bushes, I heard somebody take a few steps behind me, and I was immediately hit in the back of the head with what felt like a baseball bat.
Q. Okay. After you were hit, what happened?
A. I was — due to the force of the blow, I was knocked down to my knees and my hands, and I had fell to the sidewalk and scraped my hands up a little bit; and then I still didn’t know what was going on. I had attempted to stand back up. I got about halfway standing back up and this person that I now recognize as Mr. Wills was in front of me directly. He at that time reached forward with his left hand and grabbed me by the left shoulder strap of my backpack.
Q. Okay. Did he strike you again?
A. I was — I was still attempting to stand up, and he had in his right hand a very large travel [coffee] mug. I don’t know exactly how large, but it was at least eight to ten-inches tall and maybe about that (demonstrating) in diameter. He at that time punched forward with it and the rim hit me directly in my left eye and splashed coffee into my eyes and my face. It had a very strong vanilla smell to it.
Q. Okay. Let me back up and ask, did you have a knife with you on this day?
A. I did have a paring knife I kept in my pocket that I used from time to time for various things.
Q. Why did you have a knife?
A. Food preparation. And also with me being homeless, I’ve run into some situations where I felt safer just having one. I’ve never had occasion to use it though.
Q. Okay. After you were punched in the eye, what happened at that point?
A. Well, at that time I was still — I had finally managed to get straightened up where he was still trying to pull me like he seen me try to pull me back down. There was two or three times that he had attempted to smash me in the face again with the coffee mug, and I had deflected it with my left hand. At that time I thought I was being mugged or possibly something worse. I didn’t know what was happening.

For that reason, Mann testified, he stabbed Wills several times. Mann testified that he left the scene and continued to walk towards Eola Park because he believed that Wills would return with his gun.

At the close of evidence, the State requested that the trial court instruct the jury on Wills’s justifiable use of non-deadly force to protect his wife’s cat. Over Mann’s objection, the trial court acquiesced and included the following modified instruction, in addition to the jury instructions on Mann’s claim of self-defense:

DEFENSE OF PROPERTY. At issue in this case is whether a person may act in defense of property. “Non-deadly” force means force not likely to cause death or great bodily harm. Travis Wills would be justified in using non-deadly force against Colin Mann if the following three facts are proved: (1) Colin Mann must have been trespassing or otherwise wrongfully interfering with personal property. (2) The personal property must have lawfully been in Travis Will’s possession, or in the possession of a member of his immediate family or household, or in the possession of some person whose property he was under a legal duty to protect. (3) Travis Wills must have reasonably believed that his use of force was necessary to prevent or terminate Colin Mann’s wrongful behavior. A person does not have a duty to retreat if the person is in a place where he has a right to be.

An affirmative defense that arises out of section 776.031, Florida Statutes, concerns a defendant’s justifiable use of non-deadly force. Accordingly, this particular instruction included by the trial court was modified to replace the word “defendant” with Wills (the victim) and the word “victim” with Mann (the defendant). Ultimately, the jury found Mann guilty of attempted second degree murder (with the use of a weapon) and aggravated battery. The trial court sentenced Mann to twenty years for the charge of attempted second degree murder and fifteen years for the charge of aggravated battery, to be served concurrently.

Generally, a trial court’s decision to give or withhold a proposed jury instruction is reviewed for an abuse of discretion. Vila v. State, 74 So.3d 1110 (Fla. 5th DCA 2011). “However, in a criminal proceeding, the trial court’s discretion is narrower because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under Florida law.” Id. For this reason, “[mjodifications to the standard jury instructions on the issue of self defense which are misleading, confusing, or misstate the law may result in reversible error.” Byrd v. State, 858 So.2d 343 (Fla. 1st DCA 2003).

In Butler v. State, 493 So.2d 451 (Fla.1986), the Florida Supreme Court considered whether the trial court’s decision to give a similar modified jury instruction constituted reversible error. In that case, the defendant, who was charged with attempted first-degree murder, claimed that the shooting was a justifiable use of force in self-defense. Id. at 452. Although the trial court had correctly instructed the jury on the defendant’s claim of self-defense, the trial court had included an additional jury instruction on the justifiable use of force in one’s own home. Id. But “since the shooting occurred in the victim’s home as opposed to the defendant’s home, the trial judge gave a modified form of the instruction by changing the word defendant to person.” Id. Thus, the jury was instructed:

If a person is attacked in his own home or on his own premises, he has no duty to retreat and has a lawful right to stand his ground and meet force with force, even to the extent of using force likely to cause death or great bodily harm if it was necessary to prevent death or great bodily harm to himself or another.

Id. (emphasis added).

On appeal, the Florida Supreme Court held that the trial court erred by giving this additional, modified instruction for two reasons: (1) the instruction was unrelated to the evidence adduced at trial, and (2) the instruction was misleading and contradictory. Id. at 452-53. The court first held that the instruction was unrelated to the evidence adduced at trial because the instruction applied to the victim’s right to use force in his home.

Second, the court held that the instruction was misleading and contradictory. Id. at 453. Whereas the instruction told the jury that the victim had the right to meet force with force in his own home, the court noted that a person only has such right if he or she reasonably believes such force is necessary to protect his person or dwelling. Id. The reasonableness of such belief (if the victim were, in fact, armed) was not litigated because the victim denied carrying a gun.

Thus, the improper instruction would naturally lead a reasonable jury to conclude that the victim had an abstract right to be armed and use force against the defendant. The instruction improperly shifted the focus of the case from the applicability of the defense of self-defense to the right of the victim to fight force with force. As a result, the confusing and misleading instruction virtually negated the defendant’s only defense, that of self-defense.

Id. Finally, the court held that “[t]he extremely misleading and confusing jury instruction that did not pertain to any evidence presented at trial did not constitute harmless error because there exists a reasonable possibility that it contributed to the conviction.” Id. Moreover, the prosecutor repeatedly told the jury that even if the defendant’s testimony was true, he should still be convicted because the victim had a right to be armed and consequently the defendant had no right to claim self-defense. Id.

Citing to Butler, the First District in Mason v. State, 584 So.2d 165 (Fla. 1st DCA 1991), reversed the defendant’s conviction for aggravated battery as a result of the trial court’s decision to instruct the jury on the victim’s lack of duty to retreat. In Mason, the charge of aggravated battery arose out of an altercation between the defendant and the victim that occurred in the victim’s front yard. The trial court properly instructed the jury on the defendant’s claim of self-defense but, as requested by the State, also gave a modified jury instruction on the victim’s lack of duty to retreat if attacked in his own home. On appeal, the court held that the modified jury instruction “was irrelevant because [the victim] was not charged with any offense, and whether or not he acted in self-defense was not at issue.” Id. at 167. The court continued:

As in Butler ... the modified instruction was misleading and confusing since it tended to shift the focus away from the issue of whether the defendant was justified in the use of force, and to place emphasis on whether the victim was justified in defending himself — a question which was not at issue in this case.

Id.

A trial court’s similar decision to instruct the jury on the victim’s lack of duty to retreat was rejected by the Fourth District in Desouza v. State, 650 So.2d 170 (Fla. 4th DCA 1995). In Desouza, the defendant was charged with attempted first degree murder in the stabbing of two victims, which occurred in the victims’ apartment during a dispute over the repayment of a loan. The defendant had argued that the stabbings were done in self-defense, and the trial court instructed the jury on the victims’ lack of duty to retreat. Citing to Butler, the Desouza court held that the court’s substitution of the word “victim” for the word “defendant” was an incorrect statement of the law and may have confused the jury. Id. at 171.

Similarly, in Hansen v. State, 898 So.2d 201 (Fla. 2d DCA 2005), the Third District reversed a defendant’s conviction for aggravated battery because the trial court charged the jury with a modified jury instruction on the victim’s lack of duty to retreat. Again, citing to Butler, the Hansen court held: “The trial court’s modified instruction shifted the focus of the case from the defendant to the victim and her right to use force.” Id. at 203. Moreover, the court was concerned that “[t]he instruction also implied that [the victim] was ‘faced with the wrongful entry to [her] home’ by [the defendant], a fact that was disputed at trial and critical to the jury’s determination of whether [the victim] was the initial aggressor and whether [the defendant] was therefore justified in using force to defend himself.” Id. By improperly shifting the focus of the case, the instruction “virtually negated the defendant’s only defense, that of self-defense.” Id. at 204 (citing Butler, 493 So.2d at 453). The court held that the trial court’s erroneous instruction was not harmless because there was a reasonable possibility that it contributed to the defendant’s convictions. Id.

Finally, in Byrd, 858 So.2d at 343, the First District reversed a defendant’s conviction for manslaughter because the trial court’s modification to the standard jury instruction on self-defense improperly shifted the jury’s attention from whether the defendant’s behavior provoked the incident to whether someone else may have been the initial cause of the use of deadly force. The Byrd court was concerned that “[t]he instruction, as read, could be reasonably understood to mean [defendant] was not entitled to assert self defense based upon the actions of one of his friends.” Id. at 344. Since the law did not preclude the defendant’s claim of self-defense based on another person’s alleged provocation, where the two were not acting in concert, the modification constituted reversible error. Id.

Here, Mann sought to establish that he was justified in his use of deadly force against Wills because he believed that he was being mugged and therefore feared for his life. As in the foregoing cases, the trial court correctly instructed the jury on Mann’s assertion of self-defense. Specifically, the trial court instructed the jury that Mann’s use of deadly force was justifiable only if Mann reasonably believed that the force was necessary to prevent imminent or great bodily harm to himself. In addition, the trial court instructed the jury that Mann’s use of deadly force was not justifiable if he initially provoked the use of force against him. However, at the State’s request, the trial court also included an additional instruction regarding Wills’s justification for using non-deadly force against Mann.

As in Butler, this modified instruction improperly shifted the focus of the case from the applicability of Mann’s claim of self-defense to Wills’s right to use non-deadly force to protect his wife’s cat. As the First District stated in Mason, because Wills was not charged with any offense, his right to act in defense of his wife’s cat is irrelevant. Although the State was understandably worried that the defense would focus on the fact that Wills attacked Mann first, such a focus is relevant and permitted because the disputed issue in this case was Mann’s reasonable belief that the use of deadly force was necessary to protect himself. Moreover, the State’s concern was properly addressed by the instruction that (1) Mann’s use of deadly force was not justified if he was the one who provoked Wills’s force in the first place, and (2) Mann’s use of deadly force was not justified if he had been committing animal cruelty on the cat. The additional jury charge regarding whether Wills was justified in his initial use of force against Mann improperly creates a presumption of provocation. Thus, as in Butler, the improper instruction might lead a reasonable jury to conclude that Wills’s right to use non-deadly force precluded Mann’s right to use deadly force. As in the earlier cited cases, we cannot say beyond a reasonable doubt that the modified instruction was harmless error. Appellant is entitled to a new trial.

REVERSED and REMANDED.

EVANDER and COHEN, JJ., concur.


text:
    Hector MELENDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3658.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2014.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Hector Melendez [“Melendez”], appeals his conviction and sentence for burglary of a dwelling in violation of section 810.02(3)(b), Florida Statutes (2012); dealing in stolen property in violation of section 812.019(1); and grand theft in violation of section 812.014(2)(c)S. On appeal, Melendez contends that the trial court erred by admitting hearsay evidence consisting of statements made by Melendez’s codefendants. Melendez further contends that the trial court erred by convicting him on both the dealing in stolen property charge and the grand theft charge.

In June of 2012, Tami Anson [“Anson”] and her family rented a house in Osceola County [the “rental house”] for their Disney vacation. On June 8, 2012, while Anson and her family were visiting Downtown Disney, the rental house was burglarized, and an iPad, Nikon camera, laptop, video camera, and two iPods were stolen. A remote locator device on An-son’s iPad directed law enforcement officers to the residence of Richard and Jacqueline Pellegrino, located on Flamingo Lakes Drive [the “Flamingo Lakes residence”]. Both the iPad and the Nikon camera were found at the Flamingo Lakes residence, and Richard Pellegrino [“Richard”] was arrested. Richard originally told Deputy Andrew Stokes [“Deputy Stokes”] that he had purchased the stolen items at a bar, but after he was placed under arrest, Richard explained that he had received the items from Jorge Velez [“Jorge”] in exchange for a loan to Jorge’s daughter, Kimberly Velez [“Kimberly”]. Jorge and his girlfriend, Yadiria Medina-Rivera [‘Yadi”], had recently moved into the Flamingo Lakes residence with Richard and Jacqueline.

Both Jorge and Yadi, who were also present at the Flamingo Lakes residence when law enforcement officers arrived, were then placed under arrest. Detective James Forgey [“Detective Forgey”] spoke with Jorge and Yadi, who confessed to their part in the burglary, grand theft, and dealing in stolen property, and implicated Melendez as a suspect. Detective Forgey then gave this information to Detective Nicholas Bardis [“Detective Bardis”], who used it to prepare the search warrant for Melendez’s residence. Upon entering Melendez’s residence, Detective Forgey and other law enforcement officers found Melendez and Kimberly in bed. When Melendez rose from the bed, an iPod (which was later identified as one of the items stolen from the rental house but which, for some reason, was not one of the items Melendez was charged with stealing and was not listed in the State’s trial exhibit as one of the stolen items), fell out of Melendez’s possession. Detective Forgey testified that Melendez, realizing that the law enforcement officers knew that the iPod was stolen, stated, “Big Deal. You’ve got me on this one.” Detective Forgey further testified that Melendez told him “I’ll be back out — I’ll be back out doing licks because probation’s a fucking joke.”

Ultimately, Melendez, Richard, Jorge, Yadi, and Kimberly were charged with burglarizing the rental house, dealing in stolen property — the iPad and Nikon camera — and grand theft of the iPad, Nikon camera, and “other personal property.” The charges against Richard were subsequently dropped.

At Melendez’s trial, the State sought to prove that Melendez took part in the burglary of the rental house and the theft and trafficking of the iPad and Nikon camera. The State elicited from Detective Forgey the information given to him by Jorge, Yadi, and Kimberly regarding the events of June 8, 2012. Over Melendez’s hearsay objection, Detective Forgey testified that, according to the codefendants’ statements, the following events occurred on June 8, 2012: Melendez and Kimberly arrived at the Flamingo Lakes residence in the early afternoon of June 8, 2012, picked up Jorge and Yadi, and drove to a neighborhood off of Poinciana Boulevard. Once there, Jorge and Yadi remained in the vehicle and Kimberly and Melendez were let out on foot just outside the neighborhood’s wall. Melendez instructed Jorge to drive the vehicle out of the area and to wait for Melendez’s phone call. Then, Melendez and Kimberly walked into the neighborhood and split up. Kimberly acted as a lookout while Melendez committed the burglary. Melendez called Jorge, who drove back to the neighborhood to pick up Melendez and Kimberly.

Melendez took the stand to testify in his defense. His defense was short and simple: he did not burglarize the rental house, he did not have an iPod with him when he was arrested, he does not know and has never met Richard and Jacqueline Pelle-grino, he did not sell Richard a laptop, Kimberly had his cell phone on the day of the burglary, and, during the burglary, he was at Walmart. Melendez was convicted on all three counts and was sentenced to sixty months for each offense to be served concurrently.

On appeal, Melendez contends that the contents of the codefendants’ statements about their — and Melendez’s — role in the burglary, theft and dealing in stolen property constituted out-of-court statements, introduced to prove the truth of the matter asserted, which were not admissible under either the rules of evidence or case law. In response, the State contends that the statements were properly admitted because they “completed the incorrect impression left by [Melendez’s] cross-examination.”

“[U]nder most circumstances, it is error to admit the details of a non-testifying codefendant’s confession into evidence against the defendant.” Ramirez v. State, 739 So.2d 568, 579 (Fla.1999). “This is because admission of a codefendant’s statements is inadmissible hearsay and violates the Confrontation Clause of the Sixth Amendment to the United States Constitution.” Id. “A codefendant’s statements are especially suspect because he has a strong motivation to implicate another, rendering these statements even less credible than ordinary hearsay.” Id. (emphasis added). However, the concept of “opening the door” allows the admission of otherwise inadmissible testimony to qualify, explain, or limit testimony or evidence previously admitted. Lawrence v. State, 846 So.2d 440, 452 (Fla.2003) (citing Rodriguez v. State, 753 So.2d 29 (Fla.2000)). The concept of “opening the door” is based on considerations of fairness and the truth-seeking function of a trial. Id. But “[because fairness is the key concern of this evidentiary principle, the mere fact that testimony may be characterized as incomplete or misleading does not automatically trigger the admission of otherwise inadmissible evidence .... ” Redd v. State, 49 So.3d 329, 333 (Fla. 1st DCA 2010). “Rather, the State must demonstrate a legitimate need to resort to such evidence to correct a false impression. Otherwise, the ‘opening the door’ rule threatens to become a pretext for the illegitimate use of inadmissible evidence, and the fairness-promoting purpose of the rule is lost.” Siegel v. State, 68 So.3d 281, 288 (Fla. 4th DCA 2011) (quoting Redd, 49 So.3d at 333). Thus, “the appropriate inquiry here is whether based on considerations of fairness, the door was opened wide enough by defense counsel’s questions to permit otherwise inadmissible and unreliable statements to be admitted into evidence.” Ramirez, 739 So.2d at 580 (emphasis added). “The issue is not always whether the door has been opened, but rather how wide it has been opened.” Rodriguez, 753 So.2d at 42.

In Ramirez, the Florida Supreme Court agreed that “the limited questions by the defense counsel on cross-examination of the officer that needed to be clarified or explained on redirect were whether there was any other ‘evidence’ that pointed to [the defendant] as the individual who raped the victim or contradicted [the defendant’s] assertion that he acted at [the codefendant’s] direction. This inquiry opened the door only to allow the State to explain that [the codefendant’s] confession contradicted these assertions.” Id. at 581. The court held that the inquiry “did not open the door to the questions on redirect regarding the details of what [the codefen-dant] stated when [the codefendant] was unavailable for cross-examination.” Id.

In support for this ruling, the Ramirez court cited with approval the Second District’s decision in Pacheco v. State, 698 So.2d 593 (Fla. 2d DCA 1997). In Pacheco, the court found that the State was properly allowed to ask whether the code-fendant had implicated the defendant because defense counsel’s questions implied that only one other person incriminated the defendant. Id. at 595. However, the court held that the State went too far when it elicited details of the confession:

The detective’s testimony and the taped statement, however, went well beyond the fact that Neilson accused Pacheco of participating in the crime. This evidence provided specific details about the commission of the offense, and it portrayed Pacheco as the instigator of the crime. Pacheco’s limited questions about Ms. Humphrey’s role in his capture did not throw the door open wide enough to admit the entire confession of a codefendant who refused to testify. This evidence was inadmissible; it violated both the hearsay rule and the Confrontation Clause.

Id.

Similarly here, the State went too far when it elicited the details of the code-fendants’ confessions because such details were not legitimately necessary to qualify or explain any misleading or incomplete impression created by Melendez’s defense counsel. At trial, the State argued that it should be allowed to introduce evidence of the codefendants’ statements — which were the basis of the search warrant of Melendez’s home — because, when Melendez’s defense counsel asked Detective Bardis about the basis of his search warrant, he said:

Q: When you said you developed information that gave you this other apartment’s address, that information came from whom?
A: From the codefendants at the Flamingo Lakes address....
Q: —and, basically, they say: we didn’t take it, somebody else did and you go some place else? ...
A: Exactly, all the information was given to me for the search warrant by another detective.

On appeal, the State contends that Melendez’s defense counsel opened the door to allowing the codefendants’ statements into evidence because Melendez’s defense counsel’s question gave the impression that the codefendants said, “We did not take the items, someone else did.” While it may be that Melendez’s defense counsel’s questions opened the door to allow the State to clarify that the codefendants had implicated themselves in the crimes, as well as implicating Melendez, the door was not opened so wide as to admit the details of the confessions into evidence. It was error to allow Detective Forgey to testify to the details of the codefendants’ confessions.

The next question is whether this error was harmless. See LaMarr v. Lang, 796 So.2d 1208, 1209 (Fla. 5th DCA 2001). There was other admissible evidence against Melendez that was introduced at trial, including Jacqueline’s testimony that Melendez and Kimberly picked up Jorge and Yadi from the Flamingo Lakes residence and returned later that night with two iPads; Jacqueline’s testimony that she heard Melendez tell Kimberly that they had to split the proceeds from the iPads with Jorge; Richard’s testimony that Melendez was with Jorge when Jorge brought the iPads to Richard’s home; Agent Molina’s testimony that Melendez’s cell phone was in use in the general location of the rental residence during the time of the burglary; Melendez’s incriminating statements; and the stolen iPod found in Melendez’s possession. We find that the error was harmless with respect to the convictions for grand theft and dealing with stolen property. It cannot be said, however, that the hearsay statements did not contribute to Melendez’s conviction for burglary. The evidence that Melendez participated in the burglary is circumstantial and not compelling without the code-fendants’ statements.

Melendez also argues on appeal that his conviction and sentence for both grand theft and dealing in stolen property violates double jeopardy.

Section 812.025, Florida Statutes (2012), provides as follows:

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

As the Florida Supreme Court explained in Hall v. State, 826 So.2d 268, 271 (Fla. 2002), section 812.025 allows the State to charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts, “but the trier of fact must then determine whether the defendant is a common thief who steals property with the intent to appropriate said property to his own use ... or whether the defendant traffics or endeavors to traffic in the stolen property.” In other words, “a defendant may be charged with both theft and dealing in stolen property, but cannot be found guilty of both crimes.” Blackmon v. State, 121 So.3d 535, 541 (Fla.2013) (quoting Goddard v. State, 458 So.2d 230, 233 (Fla.1984)).

The State contends that Melendez’s dual conviction for grand theft and dealing in stolen property is not prohibited by section 812.025 because Melendez could have been convicted of grand theft with respect to the stolen items that were never recovered (and thus not a basis for the charge of dealing in stolen property). The State points out that the information charged him with grand theft of the iPad, Nikon camera, “or other personal property.” However, a similar argument was rejected by the Third District in Jones v. State, 453 So.2d 1192, 1194 (Fla. 3d DCA 1984). In Jones, the court agreed with the defendant that section 812.025 precluded his dual conviction for grand theft and dealing in stolen property, “notwithstanding the state’s attempt to circumvent the statute’s prohibition by limiting the grand theft count to the stolen car and limiting the dealing in stolen property to the stereo component system.” Id. “Since the theft of the car and the stereo and the sale of the stereo two days later were all a portion of the same scheme or course of conduct ... the convictions and sentences for both ... cannot stand.” Id.

Recently, the Florida Supreme Court held that the proper remedy on appeal for dual convictions rendered contrary to section 812.025, but where the defendant had failed to raise section 812.025 at trial, is to vacate the conviction and sentence of the lesser offense. Blackmon, 121 So.3d at 538.

Accordingly, we affirm the conviction for dealing in stolen property and vacate the conviction for grand theft. We reverse the conviction for burglary and remand for new trial.

AFFIRMED in part; REVERSED in part; grand theft conviction VACATED.

EVANDER and BERGER, JJ., concur.

      . Detective Forgey testified that "licks” is a street term for burglaries or robberies.

      . Although the information charged Melendez with grand theft of the iPad, Nikon camera, "and other property,” the jury instructions limited the grand theft charge to the iPad and Nikon camera.

      . Additionally, any misleading and incomplete impression that may have emanated from defense counsel’s question was properly corrected through previous testimony of Detective Bardis and Detective Forgey.


text:
    Jermaine Terae MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2555.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2014.

      Robert Wesley, Public Defender, and Brice Aikens, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

Petitioner, Jermaine Terae Moore [“Moore”], petitions this Court for the issuance of a writ of certiorari after the circuit court denied his motion for an order to depose Child Protection Team [“CPT”] members, Lindsey Matthews and Victor Figueroa, two Category “A” State of Florida witnesses. Instead, the circuit court authorized the alternative of written interrogatories with a hearing to be scheduled on the motion once answers and objections were received.

The State concedes that Moore is entitled to relief, noting that “it is clear under Florida law that the defense has the right to depose these two witnesses without leave of court and interrogatories are not provided for in criminal prosecutions.” Notwithstanding the State’s concession, we see no basis for certiorari.

Moore is charged below in two separate cases with multiple counts of capital sexual battery. Moore elected to participate in discovery, and the State filed witness lists identifying Lindsey Matthews and Victor Figueroa as a Category “A” witness in each case. Moore filed written motions in the circuit court to depose Lindsey Matthews in case number 48-2011-CF-14528 and Victor Figueroa in case number 48-2011-CF-14787. On June 28, 2013, the circuit court denied both motions in an order that alternatively authorized the defense to propound written interrogatories to the two CPT members and directed that a hearing would be scheduled once the answers and objections to the interrogatories were returned. Moore filed motions for reconsideration in both cases, citing to Florida Rule of Criminal Procedure 3.220(h)(1) and the State’s lack of objection. The circuit court denied these motions. Moore then filed the instant petition for writ of certiorari in this Court seeking review of the circuit court’s orders.

Certiorari is an extraordinary remedy. Holland, v. Barfield, 35 So.3d 953, 955 (Fla. 5th DCA 2010). This Court may grant a petition for certiorari “only when the petitioner establishes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Capital One, N.A. v. Forbes, 34 So.3d 209, 212 (Fla. 2d DCA 2010). First, this Court examines prongs two and three to determine its certiorari jurisdiction. Holden Cove, Inc. v. 4 Mac Holdings Inc., 948 So.2d 1041 (Fla. 5th DCA 2007); Barker v. Barker, 909 So.2d 333 (Fla. 2d DCA 2005). If jurisdictional prongs two and three are not fulfilled, this Court should dismiss the petition rather than deny it. Capital One, N.A., 34 So.3d at 212.

Generally, trial court orders refusing to compel discovery are not reviewed by certiorari because any harm caused by the denial can be adequately remedied on appeal from the final order. See Beekie v. Morgan, 751 So.2d 694, 698 (Fla. 5th DCA 2000). “If, on plenary appeal, the denied discovery is deemed to be within the scope of permissible discovery, the petitioners will have an adequate remedy.” Palmer v. WDI Sys. Inc., 588 So.2d 1087, 1088 (Fla. 5th DCA 1991).

The obvious question to ask in this case is why the defendant sought a court order to do what he claims he is entitled to do without a court order. In the State’s response, it is suggested that a court order is obtained as a matter of “normal practice” in the Ninth Circuit, based on confidentiality concerns of the Department of Children and Families. Whatever the reason, experienced lawyers know that when a court is asked to order something to be done that does not require an order, the outcome may be neither predictable nor desirable. Concededly, there is no explanation in this record for the court’s decision to require written interrogatories to be propounded as a condition to the court’s considering the motion. The State has offered none. The trial court did not favor us with any reasons in any of the four orders it issued on the subject, and we can think of none.

We assume that the rules of criminal procedure do not offer the panoply of alternative discovery devices found in the civil rules in order to simplify and streamline the discovery process because criminal cases are governed by constitutional time constraints. Whatever the reason, it is apparent that attempting to require a criminal defendant such as Moore to use a discovery device not authorized by the criminal rules places an undue burden on the defense. With limited time and resources, the public defender is now faced with creating out of whole cloth a form of discovery for which there are no rules, no forms, no format, no method for compliance. Suppose these third-party witnesses choose not even to respond to this jury-rigged discovery?

At this point, the trial court has not finally refused the requested discovery, but merely has conditioned consideration of the motion on completion of the written interrogatory procedure. Hopefully, the trial court will reconsider its position. If not, the trial court may well enter an order for the discovery the defense seeks after review of the interrogatories and answers.

Accordingly, although it was error for the court to require use of a discovery device not recognized by the Rules of Criminal Procedure as a condition of taking discovery depositions authorized by rule, we cannot say that the order under review represents a material departure from the essential requirements of the law causing harm irremediable on plenary appeal.

PETITION FOR WRIT OF CERTIO-RARI DISMISSED.

COHEN and WALLIS, JJ., concur.

      . Before issuing an unusual order like the one in this case, it would be helpful if trial judges give some thought to the consequences of their actions. A defendant in Moore's position might simply acquiesce in the trial court’s denial of discovery and then might well succeed in arguing on plenary appeal, after a conviction, that the denial of the motion to depose the witnesses was "built in” reversible error, requiring a new trial. Apart from the expense and uncertainty involved in such an endeavor, as the State points out, a new trial would require the victims to testify again.


author: COHEN, J.

text:
    Arturo MENDEZ-JORGE and Mayra Rodriguez-Cabrera, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D13-2714, 5D13-2716.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2014.

      Daniel J. Fernandez of Fernandez & Hernandez, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

In this consolidated appeal, Appellants, Arturo Mendez-Jorge and Mayra Rodriguez-Cabrera, appeal their judgments and sentences for trafficking in cannabis, possession of a place for trafficking, theft of electricity, and possession of paraphernalia. Appellants pleaded no contest to the charges, reserving their right to appeal the order denying their dispositive motions to suppress evidence found in their home upon execution of a search warrant. On appeal, they argue that the law enforcement officers who executed the search warrant violated the “knock and announce” rule by failing to give Appellants a reasonable amount of time to respond before forcibly entering their home. We disagree and affirm.

The trial court made the following findings of fact: On the morning of Monday, March 18, 2013, Appellants were observed walking around their property. At approximately 12 p.m. that same day, several deputies from the Hernando County Sheriffs Office went to Appellants’ home to execute a search warrant. Upon arriving at the home, the deputies approached the house as the deployment vehicle’s public address system announced over a loud speaker: “Sheriffs Office, search warrant.” Once at the front door, one of the deputies, Deputy Galarza, knocked loudly and yelled, “Policía, Policía.” After waiting five to ten seconds, he again knocked and announced law enforcement’s presence. When no one answered, the deputies used a battering ram to enter. At least twenty seconds elapsed from the initial loud speaker announcement to entry into the home. Deputy Galarza was aware that the house was used as a grow house for cannabis, and he admitted that he was not concerned about the destruction of evidence or any other exigency.

It is undisputed that law enforcement both knocked and announced their authority in the instant case. The question presented is whether the amount of time the deputies waited between their initial knock and announcement and the forced entry was reasonable. The trial court’s application of the law to the facts is reviewed de novo. Sowerby, 73 So.3d at 331.

The Florida Legislature codified the common law knock-and-announce rule at section 933.09, Florida Statutes (2012), which provides:

The officer may break open any outer door, inner door or window of the house, or any part of the house or anything therein, to execute a search warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.

Section 938.09 thus requires law enforcement officers to give due notice of their authority and purpose and to be “refused admittance” before they are authorized to forcibly enter a home. The refusal can be either express or implied by a lack of response. See Kellom v. State, 849 So.2d 391, 394 (Fla. 1st DCA 2003). “Where officers knock, announce their authority and purpose, and enter with such haste that the occupant does not have a reasonable opportunity to respond, the search violates section 933.09.” Spradley v. State, 933 So.2d 51, 53 (Fla. 2d DCA 2006) (citing Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001)).

Section 933.09 does not set forth a certain period of time that an officer must wait following his knock and announcement before he is authorized to force entry into the home. In determining the reasonableness of the wait time, the courts have consistently eschewed bright-line rules, instead taking a totality of the circumstances approach that emphasizes the fact-specific nature of the reasonableness inquiry. See United States v. Banks, 540 U.S. 31, 36, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003) (“[W]e have treated reasonableness as a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of the circumstances in a given case .... ”); see also Hudson v. Michigan, 547 U.S. 586, 590, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (“Our ‘reasonable wait time’ standard is necessarily vague.” (quoting Banks, 540 U.S. at 41, 124 S.Ct. 521)); State v. Pruitt, 967 So.2d 1021, 1023 (Fla. 2d DCA 2007) (“There is no bright line answer; the only answer found in our case law is that the occupant must have a ‘reasonable opportunity’ to respond. Time periods less than five seconds are rarely deemed adequate, and periods in excess of fifteen seconds are often adequate.”). Thus, the question is whether, given the information known to law enforcement at the time of the warrant’s execution, the officer can reasonably infer that he has been refused admittance by the occupants. See Banks, 540 U.S. at 39, 124 S.Ct. 521 (“[T]he facts known to the police are what count in judging reasonable waiting time .... ” (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)).

In determining the reasonableness of the wait time, some factors the courts have considered include the nature of the underlying offense, the time of day the warrant is executed, the size of the home, whether any activity or movement is observed within the home at the time of execution, and whether any exigencies exist. In the face of exigent circumstances, such as the imminent destruction of evidence, “the amount of time preceding entry is less imperative.” Pruitt, 967 So.2d at 1026. Needless to say, the fact-specific nature of the reasonableness inquiry has resulted in different outcomes for similar time frames. Compare Randall v. State, 793 So.2d 59 (Fla. 2d DCA 2001) (holding that ten-second delay between knock and announcement and forced entry was unreasonable in executing search warrant for drugs where there was no evidence that firearms might be present or that the occupants posed a threat to law enforcement and where warrant was executed between 6 a.m. and 7 a.m. when it was still dark outside), and Richardson, 787 So.2d at 907 (holding that ten-second wait before forcible entry into cocaine dealer’s home at 5:30 a.m., and with no indication of exigent circumstances, was not long enough), with Banks, 540 U.S. at 38, 124 S.Ct. 521 (concluding that officers’ delay of fifteen to twenty seconds was reasonable where, after announcing their presence by knocking on door of drug dealer’s two-bedroom apartment in the middle of the afternoon and calling out “police search warrant,” police forced entry, and explaining that “when circumstances are exigent because a pusher may be near the point of putting his drugs beyond reach, it is imminent disposal, not travel time to the entrance, that governs when the police may reasonably enter”), and Pruitt, 967 So.2d at 1026 (concluding that twelve-second delay was reasonable where, at 5:15 a.m., police forced entry to execute search warrant on home of major player in heroin trafficking operation and where officers were aware that trafficker was a suspect in a murder investigation in which the murder weapon was an AK-47).

It is undisputed that the instant case did not involve exigent circumstances. Thus, this Court must consider whether twenty seconds was a reasonable amount of time from which the officers could infer that they were being refused admittance. We conclude that the deputies’ twenty-second wait time was reasonable. The warrant was executed during the middle of the day, after Appellants had been observed walking around the property. Moreover, law enforcement’s presence had been announced over a loud speaker as the officers approached the door. Under these circumstances, when Appellants did not answer the door after twenty seconds, it was reasonable for law enforcement to believe that Appellants were denying them entry.

Appellants’ reliance on Spradley is misplaced. There, the Second District held that a fifteen-second delay before forcing entry into a two-story home was unreasonable where law enforcement officers executed a warrant at 9:41 p.m., when the occupants could reasonably be expected to be preparing for bed. And, most importantly, during that fifteen-second time frame, law enforcement had detonated an explosive distraction device outside the house, and the officers were yelling at people in the backyard and detaining others in the side yard. The Spradley court concluded that, under the totality of the circumstances, the actions of the officers “succeeded in eliminating any chance that the occupants may have had to permit a peaceable entry.” 933 So.2d at 56. Here, in contrast, the warrant was executed midday, no such distraction device was used, and, as found by the trial court, “the entire focus of the announcement of the deputies’ presence and purpose at [Appellants’] residence was directed on the front of the house and would have reasonably alerted anyone with an inclination to answer the front door to do so.”

We find no merit in the other argument Appellants raise on appeal. Accordingly, we affirm.

AFFIRMED.

BERGER and WALLIS, JJ., concur.

      . In their brief, Appellants rely on the facts elicited during Deputy Galarza’s pre-hearing deposition. Specifically, they emphasize that during his deposition, the deputy testified that he waited only five to ten seconds before forcing entry, but at the hearing on the suppression motions, he stated that he waited a longer period of time. Appellants base their legal argument on the notion that only five to ten seconds elapsed between the knock and announcement and the entry into the home. Although there were discrepancies between Deputy Galarza's deposition testimony and hearing testimony, the trial court weighed that testimony and found that the deputy waited at least twenty seconds before forcing entry into the home. Because the trial court’s findings of fact are supported by competent, substantial evidence, this Court is bound by those findings. See Sowerby v. State, 73 So.3d 329, 331 (Fla. 5th DCA 2011). By basing their arguments on the facts as stated in the deputy’s deposition testimony — rather than those found by the trial court — Appellants are in essence asking this Court to reweigh the evidence, which we are not permitted to do.


text:
    J.L.B., Appellant, v. S.J.B. a/k/a S.G., Appellee.
    No. 5D13-2906.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2014.

      J.L.B., Brandon, pro se.
    S.J.B. a/k/a S.G., Orlando, pro se.
   ON MOTION FOR REHEARING

COHEN, J.

On consideration of the appellant’s motion for rehearing, rehearing en banc, clarification and certification, we grant the appellant’s motion in part, withdraw our opinion filed on February 14, 2014, and substitute the following opinion in its stead.

J.L.B. (“Former Husband”) appeals from the supplemental final judgment for modification of timesharing/parenting plan. We affirm in part and reverse in part.

In what is a far too frequent occurrence, Former Husband and S.J.B. (“Former Wife”) have engaged in years of litigation involving their minor children. The parties’ marriage was dissolved by a final judgment entered on September 17, 2008. Since then, they have filed numerous pleadings attacking the other’s parental fitness. In March 2010, Former Husband filed a supplemental petition to modify the parenting plan. In that petition, he sought sole parental responsibility and, in pertinent part, alleged that Former Wife had filed a false report of abuse (presumably against him) and had violated court orders regarding their parenting plan. That petition was dismissed by the trial court in April 2010. Subsequently, in December 2011, Former Husband filed another supplemental petition to modify the parenting plan, this time alleging that the parties’ children had been removed from Former Wife by the Department of Children and Family Services and placed into his custody. At one point in that petition he sought sole parental responsibility, and at another he merely sought a modification of the time-sharing schedule. In this context, the case proceeded to trial. At the conclusion of the trial, the court found that Former Husband met his burden of establishing a substantial change in circumstances and entered a supplemental final judgment granting him majority time-sharing and ordering Former Wife to pay child support. Former Husband timely appealed.

First, Former Husband argues that the trial court erred in placing the burden of proof on him to establish a substantial change of circumstances and not requiring Former Wife to plead or prove a substantial change in circumstances. The case proceeded to trial on Former Husband’s December 2011 petition, and thus the court correctly placed the burden on him. In any event, the trial court found that a substantial change in circumstances had occurred and ruled almost entirely in Former Husband’s favor, including granting him majority time-sharing. The court’s finding, regardless of who bore the burden of proof, was supported by ample evidence. Essentially, Former Husband’s only complaint concerns the fact that the court granted Former Wife visitation. In this regard, the court had broad discretion to craft a time-sharing and visitation plan. Schwieterman v. Schwieterman, 114 So.3d 984, 987 (Fla. 5th DCA 2012) (citing Miller v. Miller, 842 So.2d 168, 169 (Fla. 1st DCA 2003)). We hold that it did not abuse that discretion.

Next, Former Husband contends that the trial court erred in setting Former Wife’s child support obligation based upon three children rather than four. While the record on appeal is not entirely complete, apparently the parties adopted one child and received a stipend from the State of Georgia for over $430 per month. The trial court ordered that stipend, which had been going to Former Wife, be paid to Former Husband instead. That amount was clearly intended for the child’s support and, given Former Wife’s financial condition, we find no abuse of discretion in how the trial court calculated the child support. Cf. Wallace v. Dep’t of Rev. ex rel. Cutter, 774 So.2d 804, 807 (Fla. 2d DCA 2000) (holding that where children receive Social Security dependent benefits, the benefits must be credited towards noncustodial disabled parent’s child support obligation); see also Sealander v. Sealander, 789 So.2d 401, 403 (Fla. 4th DCA 2001) (concluding that former husband was entitled to credit against child support obligation for Social Security benefits that parties’ child received as a result of former husband’s voluntary early retirement).

Additionally, Former Husband submits that the trial court used the incorrect date in calculating the amount of retroactive child support owed by Former Wife. Because Former Husband did not plead for retroactive child support in his December 2011 supplemental petition and the issue was not tried by consent, we decline to hold that the trial court abused its discretion in calculating the retroactive child support due.

Lastly, Former Husband argues that the trial court erred in awarding the IRS dependency exemptions to the parties in alternating years because Former Wife did not request such relief in her pleadings. We agree. See Newberry v. Newberry, 881 So.2d 749, 751 (Fla. 5th DCA 2002) (“A trial court lacks jurisdiction to enter any judgment on an issue not raised by the pleadings.” (citing Cortina v. Cortina, 98 So.2d 384 (Fla.1957))). Accordingly, we reverse that portion of the supplemental final judgment. We affirm in all other respects.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PALMER and EVANDER, JJ., concur.

      . Former Husband argues that because the children were adjudicated dependent, Former Wife must establish that there has been a substantial change in circumstances since that adjudication. However, the dependency adjudication was based upon his consent to dependency; thus, he cannot use that adjudication to shift the burden of proof.

      . Due to the vast amount of pleadings filed in this case, confusion understandably arose regarding the operable petition. This is illustrated by the fact that the supplemental final judgment incorrectly states that the cause came before the court on Former Husband's March 2010 supplemental petition, which had previously been dismissed as insufficient. However, it is clear from the record and the trial transcript that the trial and supplemental final judgment were based on Former Husband’s December 2011 supplemental petition.

      .Specifically, Former Wife was granted unsupervised visitation on the condition that she first complete three supervised visits with the Family Ties program.


text:
    Nicholas J. FREDERICK, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1125.
    District Court of Appeal of Florida, Fifth District.
    March 21, 2014.
    James S. Purdy, Public Defender, and Noel A. Pelella, 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.

Nicholas Frederick appeals the judgment and sentence entered against him after a jury found him guilty of numerous charges. Because the aggravated assault convictions on Counts V and VI involved the same victims as in Counts II and III and each offense occurred within the same criminal episode, we vacate the convictions on Counts V and VI based on double jeopardy principles. Fleming v. State, 75 So.3d 397, 400 (Fla. 5th DCA 2011). In all other respects, we affirm.

AFFIRMED, in part; VACATED, in part.

PALMER, EVANDER and BERGER, JJ., concur.

      . At trial, the jury found Frederick guilty of the following: Count I, attempted voluntary manslaughter (as a lesser included offense of attempted first-degree murder); Counts II and III, aggravated assault (as lesser included offenses of attempted first-degree murder); Count IV, resisting an officer with violence; Counts V-VIII, aggravated assault; Count IX, fleeing or attempting to elude a law enforcement officer at high speed or with wanton disregard; and Count XI, grand theft of a motor vehicle.


author: MORRIS, Judge.

text:
    Christopher Michael HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2799.
    District Court of Appeal of Florida, Second District.
    March 21, 2014.

      Jonathan K. Thiele of Jonathan K. Thiele, P.A., Lakeland, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Christopher Henderson appeals his conviction for second-degree murder. He raises four issues on appeal; we find merit in only one of his arguments, and we reverse and remand for a new trial.

I. Facts

Henderson’s ex-girlfriend, Loren Spaugh, worked with the victim, Corey Burdette. On the night of Burdette’s death, Burdette was hanging out with Spaugh at Spaugh’s house. Henderson arrived later at Spaugh’s house and engaged in a verbal and then physical altercation with Burdette. During the physical altercation, Henderson stabbed Burdette with a knife that Henderson had been carrying, resulting in Burdette’s death. At trial, Henderson claimed that he acted in self-defense in stabbing Burdette.

Henderson contends that the trial court committed reversible error when it allowed, over a defense objection, double hearsay testimony that Loren Spaugh told Jessica Hicks that Henderson stated “I’ll kill that MF’er,” referring to the victim, Corey Burdette, a month before the charged incident. He argues that the statement was inadmissible hearsay and was highly prejudicial to his defense. The following facts are relevant to this issue.

During the State’s case-in-chief, the State questioned Spaugh, an eyewitness to Burdette’s death, regarding an incident that had occurred at her place of employment a month or so prior to Burdette’s death:

Q. Okay. Now, a month or so prior to December 30th, had there been some kind of an incident at Marco’s Pizza when you and [Burdette] were there and the defendant came in?
A. Yes.
Q. Can you tell the jury a little bit about that?
A. His hand brushed across the small of my back insignificantly. There wasn’t anything groping, just a brush across the small of the back.
Q. When you say “him,” who do you mean?
A. [Burdette].
Q. Okay.
A. And that was it.
Q. Okay. And did — what was the defendant’s reaction or what did he say or do in response to that?
A. He wasn’t thrilled about it, but I don’t remember it being a big deal.
Q. Okay. Did he, meaning the defendant, either say something to you in person or send you a text message that expressed his displeasure?
A. A displeasure, yes. I don’t remember exactly what was said.
Q. Okay. But it wasn’t anything positive?
A. No.

Later, Jessica Hicks, Spaugh’s friend, testified that she was also at Spaugh’s house and witnessed the fight that led to Burdette’s death. During defense counsel’s cross-examination of Hicks, the following exchange occurred:

Q. Okay. And as I understand it, you actually were interviewed five times by the detective?
A. Yes, I believe so.
Q. And on two of the occasions you called him up and told him you remembered something else and you wanted to talk to him?
A. No, that’s not true. I called him twice because he asked me to do something for him.
Q. Okay.
A. And the first time he didn’t answer and the second time I left a voice-mail.

Defense counsel then moved on to other questions.

On redirect examination, the State asked Hicks if a detective questioned her “about an incident that happened a month or so before at the Marco’s Pizza” where Spaugh and Burdette worked. The defense objected on the basis of hearsay, anticipating that the State was “going to get her to say what she was told by Loren Spaugh.” The State responded that it was a prior inconsistent statement of Spaugh because during Spaugh’s testimony, Spaugh stated that she did not recall what Henderson said to her regarding the incident at Marco’s Pizza. The State represented that Hicks “is going to testify that [Spaugh] told her the defendant said, I’m going to kill that MF.” The State also argued that the statement was an admission by the defendant that went to his intent and that the testimony would show “state of mind.” The defense further objected on the basis of section 90.403, Florida Statutes (2010), and argued that even though the defense asked Hicks if she had called the detective on two other occasions, the defense did not open the door to anything.

The trial court allowed the State to proffer the following testimony from Hicks: “[Spaugh] said that [Henderson] got really angry and he said I’ll kill that MF’er.” Hicks testified that this was in response to Burdette’s touching Spaugh at Marco’s Pizza. The trial court then made the following ruling:

THE COURT: ... Now, the circumstance here is one — the record will speak to itself as to what the witness, Loren Spaugh, testified to when she was — received inquiry concerning that incident. It’s being offered as something inconsistent with what she represented here. It’s also being offered apparently, and this caused the [c]ourt a moment’s concern, because it’s coming from Loren [Spaugh] and through her; but it’s being offered to show as well a state of mind at that time or a subsequent time. Plus, I will tell you that counsel with respect you did inquire about those other contacts with Detective Rader and kind of left that out there. This is what that was about. So for all of those reasons, I’m going to overrule the objection.

The defense then asked for a limiting instruction because “a prior inconsistent statement that is admitted to attack the credibility of a witness may not be considered to prove the truth of the contents of the prior statement.” The State responded that it is double hearsay and that “because it’s a statement by the defendant and it would be admissible either through Loren Spaugh or any other witness, ... it is substantive evidence.”

The court then opined that if the statement was only being offered as a prior inconsistent statement, the jury should be instructed but that the statement was in fact being admitted “on more than one bas[is].” The trial court stated that the statement was “made essentially on an 803 basis of state of mind at the time, also to show subsequent acts. It is to show a prior inconsistent statement. It is hearsay within hearsay.” The trial court also ruled that the defense had opened the door by asking Hicks if she had extra contacts with police. The defense asked for a continuing objection, which the trial court allowed.

Before the jury, Hicks testified about the incident at Marco’s Pizza:

A. Oh, well, Detective Rader asked me about an incident that had happened at Marco’s about a month earlier and— involving [Burdette] and [Spaugh] and [Henderson]. I guess [Spaugh] and [Burdette] worked together and [Henderson] was there [and] saw [Bur-dette] touch [Spaugh’s] back and he got really mad.
Q. And did [Henderson] say something to [Spaugh] about that — about that?
A. I don’t know if it was directly at [Spaugh], but I know he said something along the lines of, I’ll kill that MF’er.

II. Analysis

“[E]ach hearsay statement must fall under an exception for [double hearsay] statements to be admissible.” Gosciminski v. State, 994 So.2d 1018, 1026 (Fla.2008) (citing § 90.805, Fla. Stat. (2007)); Charles W. Ehrhardt, Ehrhardt’s Florida Evidence, § 805.1 (2013 ed.) (“Double or multiple hearsay, i.e., a hearsay statement which includes another hearsay statement, is admissible when both statements conform to the requirements of a hearsay exception.”).

Henderson’s statement to Loren Spaugh was an admission by the defendant and was admissible under the hearsay exception in section 90.803(18). See Love v. State, 971 So.2d 280, 286 (Fla. 4th DCA 2008). But Spaugh’s statement to Hicks does not fall within a hearsay exception. The State argued, and the trial court concluded, that Hicks’s'testimony was admissible because it went to “state of mind.” Henderson’s statement to Spaugh may have proven Henderson’s state of mind or may have explained ■ subsequent acts by Henderson, but in Spaugh’s statement to Hicks, Spaugh was the declarant and this portion of the statement was not offered to prove Spaugh’s state of mind or to explain subsequent acts by Spaugh. Cf. § 90.803(3)(a)(1 )-(2) (allowing admission of “[a] statement of the declarant’s then-existing state of mind ... when such evidence is offered to ... [p]rove the declar-ant’s state of mind, emotion, or physical sensation at that time or at any other time when such state is an issue in the action” or “[p]rove or explain acts of subsequent conduct of the declarant”).

As one of its reasons for admitting Hicks’s testimony as substantive evidence, the trial court reasoned that the defense had opened the door by asking Hicks about her multiple contacts with the detective. “As an evidentiary principle, the concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence previously admitted.” Ramirez v. State, 739 So.2d 568, 579 (Fla.1999) (quoting Tompkins v. State, 502 So.2d 415, 419 (Fla.1986)).

Because fairness is the key concern of this evidentiary principle, the mere fact that testimony may be characterized as incomplete or misleading does not automatically trigger the admission of otherwise inadmissible evidence under the “opening the door” rule. Rather, the State must demonstrate a legitimate need to resort to such evidence to correct a false impression. Otherwise, the “opening the door” rule threatens to become a pretext for the illegitimate use of inadmissible evidence, and the fairness-promoting purpose of the rule is lost.
In deciding whether fairness requires the admission of evidence under the “opening the door” principle, a court should consider the “general unreliability of inadmissible evidence.” Ramirez v. State, 739 So.2d 568, 580 (Fla.1999). The more unreliable the evidence is, the less likely it is that fairness requires its admission. See id. Hearsay is sometimes admissible under the “opening the door” principle. Nevertheless, the inherent unreliability of hearsay is a factor to be considered when it is sought to be admitted under this principle. See Ramirez, 739 So.2d at 580. In such a situation, “the appropriate inquiry ... is whether based on considerations of fairness, the door was opened wide enough by defense counsel’s questions to permit otherwise inadmissible and unreliable statements to be admitted into evidence.” Id.

Redd v. State, 49 So.3d 329, 333 (Fla. 1st DCA 2010) (citations omitted).

Here, defense counsel’s questions showed that Hicks talked to the detective on five occasions and that Hicks called the detective on two occasions to talk about “something else” she remembered. This questioning tended to suggest that Hicks did not have a good memory of the charged incident. When the State asked its follow-up question of Hicks on redirect, the State clarified that one of the interviews was about the incident at Marco’s Pizza. Even if the State’s redirect question was aimed at correcting a false impression that was caused by defense counsel’s questioning of Hicks, it was not necessary for the trial court to allow the double hearsay statement regarding the incident at Marco’s Pizza. On redirect, the State clarified that the Marco’s Pizza incident was the reason Hicks had spoken to the detective on another occasion, and the details of what Hicks knew of that incident (through hearsay) were not necessary to correct any false impression caused by defense counsel’s questioning of Hicks. See Ramirez, 739 So.2d at 581 (holding that defense counsel opened the door to the State clarifying that codefen-dant’s statement implicated defendant but “[i]t did not open the door to the questions on redirect regarding the details of what [codefendant] stated”); Pacheco v. State, 698 So.2d 593, 595 (Fla. 2d DCA 1997) (holding that defense opened door to question explaining that codefendant had implicated defendant but defense “did not throw the door open wide enough to admit” the substance of codefendant’s hearsay statement to detective). It cannot be said that defense counsel’s questions during cross-examination opened the door wide enough to allow the admission of unreliable and otherwise inadmissible hearsay testimony through Hicks.

The trial court also ruled that Hicks’s testimony regarding Spaugh’s statement was proper impeachment as a prior inconsistent statement by Spaugh. “Florida courts have held that a witness’s inability to recall making a prior statement is not synonymous with providing trial testimony that is inconsistent with a prior statement.” Brooks v. State, 918 So.2d 181, 200 (Fla.2005), receded from on other grounds by State v. Sturdivant, 94 So.3d 434 (Fla.2012). Spaugh did not remember Henderson’s specific reaction to the incident at Marco’s Pizza, and the State never asked Spaugh if she had made a prior statement to Hicks about Henderson’s reaction. It is questionable whether the State could impeach Spaugh, its own witness, when it did not specifically ask her about whether she made a statement to Hicks or whether she remembered the contents of that statement to Hicks. See generally Morton v. State, 689 So.2d 259, 264 (Fla.1997) (“In a case where a witness gives both favorable and unfavorable testimony, the party calling the witness should usually be permitted to impeach the witness with a prior inconsistent statement. Of course, the statement should be truly inconsistent, and caution should be exercised in permitting impeachment of a witness who has given favorable testimony but simply fails to recall every detail unless the witness appears to be fabricating.”), receded from on other grounds by Rodriguez v. State, 753 So.2d 29 (Fla.2000); Brumbley v. State, 453 So.2d 381, 385 (Fla.1984) (“The purpose of allowing evidence of prior inconsistent statements is to counteract the effect of testimony harmful to the interest of the impeaching party”).

But we need not decide whether Hicks’s testimony was properly permitted as a prior inconsistent statement by Spaugh because the required limiting instruction was not given. The trial court ruled that the testimony was admissible as substantive evidence and therefore denied the instruction limiting the testimony for impeachment purposes. Because the trial court erred in admitting the testimony as substantive evidence, the trial court also erred in denying the defense’s request for a limiting instruction. See Ivery v. State, 548 So.2d 887, 888 (Fla. 2d DCA 1989) (“The trial court erred in not instructing the jury that [the witness’s] prior inconsistent statement was relevant only to [the witness’s] credibility and not as proof or evidence of the defendant’s guilt.”); see also Smith v. State, 880 So.2d 730, 735 (Fla. 2d DCA 2004) (“If the State had successfully used the ... statements for impeachment purposes, Smith would have been entitled to a limiting instruction to the jury that the ... witnesses’ prior inconsistent statements were relevant only to the issue of their credibility and not as substantive evidence.”).

III. Conclusion

In sum, we conclude that the trial court erred in admitting Hicks’s double hearsay testimony as substantive evidence because one of the statements did not qualify as an exception to the hearsay rule and because the defense did not open the door wide enough. We also conclude that the statement could not be used for impeachment purposes because the trial court did not provide a limiting instruction to the jury. In addition, the error in admitting Hicks’s double hearsay testimony was not harmless. The content of Hick’s testimony, i.e., that Henderson said “I’ll kill that MF’er” in reference to Bur-dette, the victim, was damaging to Henderson’s defense. It suggested that Henderson had the motive and intent to harm the victim and thus refuted Henderson’s claim of self-defense. Accordingly, we reverse his conviction and remand for a new trial.

Reversed and remanded.

DAVIS, C.J., and NORTHCUTT, J., Concur.


author: KHOUZAM, Judge.

text:
    John Wesley ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4329.
    District Court of Appeal of Florida, Second District.
    March 21, 2014.

      John Wesley Ellis, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John Klawikofsky, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

John Wesley Ellis appeals an order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Ellis was convicted in August 1998 of sexual battery by an adult on a child under twelve and burglary of a dwelling with assault or battery. He was sentenced as a prison releasee reoffender (PRR) to life in prison for each conviction. We affirm but write to discuss two of Ellis’s claims.

I. PRR DESIGNATION BASED ON FORCIBLE FELONY CONVICTION

Ellis argues that the PRR enhancement could not be imposed on his sentence for burglary with assault or battery because burglary of a dwelling is not a forcible felony. The PRR statute in effect at the time of the offenses provided, in pertinent part, as follows:

(8)(a)l. “Prison releasee reoffender” means any defendant who commits, or attempts to commit:
o. Any felony that involves the use or threat of physical force or violence against an individual; ...
within 3 years of being released from a state correctional facility operated by the Department of Corrections or a private vendor.

§ 775.082, Fla. Stat. (1997). This court has held that the interpretation of this language must follow that of the catch-all provision included within the definition of “forcible felony” in section 776.08, Florida Statutes, because the language of the two provisions is substantively identical. Walker v. State, 965 So.2d 1281, 1282-88 (Fla. 2d DCA 2007). As the Florida Supreme Court has explained,

“in the strict and literal sense required by Florida law, th[e] language [of the catch-all provision of section 776.08] can only mean that the statutory elements of the crime itself must include or encompass conduct of the type described. If such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of the final clause of section 776.08.”

State v. Hearns, 961 So.2d 211, 215 (Fla.2007) (quoting Perkins v. State, 576 So.2d 1310, 1313 (Fla.1991)). In other words, to determine whether a given offense (not listed separately as a forcible felony) can be included in the catch-all provision, we consider only the statutory elements of the offense — not whether in the particular case the evidence showed that force or violence had been used. Thus, because battery can be committed by simple touching as well as by striking or intentionally causing bodily harm, battery is not a forcible felony under the catch-all provision of section 776.08 even where the record shows that the defendant committed the battery in the form of striking or effecting bodily harm. Id. at 218-19.

As for the offense in the present case — burglary with assault or battery— the same conclusion is required. See Santiago v. State, 76 So.3d 1027, 1031 (Fla. 3d DCA 2011). A conviction of assault alone would support PRR sentencing because the definition of assault encompasses a threat of violence without any nonforce alternatives. Id. (citing Shaw v. State, 26 So.3d 51 (Fla. 5th DCA 2009)). However, because burglary with assault or battery encompasses the alternative of battery, which includes the nonforce option of mere touching, that offense cannot support the PRR enhancement under section 775.082(8)(a)(l)(o). Id. So Ellis is correct that his PRR enhancement is not supported under this section, but our analysis does not end there.

II. PRR DESIGNATION BASED ON A “CLEAR JURY FINDING”

Another offense in the list of predicates for the PRR enhancement identified in section 775.082(8)(a)(l) is “q. Burglary of an occupied structure or dwelling” (emphasis added). Ellis argues that the enhancement could not be imposed on his sentence for burglary with assault or battery because the jury made no finding that the burglarized dwelling was occupied. This claim is cognizable under rule 8.800(a). See Watkins v. State, 14 So.3d 1128, 1130 (Fla. 2d DCA 2009).

The State’s information clearly charges Ellis with burglary of an occupied dwelling, in that it recites that

[Ellis] did unlawfully enter or remain in a certain dwelling, the property of [the victim], with intent to commit an offense therein and, while in the aforesaid dwelling, the said John Wesley Ellis did make an assault or battery upon [victim] (a child, less than 12 years of age), contrary to Sections 810.02(1) and 810.02(2)(a), Florida Statutes ....

The verdict form indicates that the jury found Ellis “guilty of Burglary of Dwelling with Assault or Battery as charged” but does not specifically include the word “occupied.”

The general rule is that it is error to enhance a defendant’s sentence where the jury has not made a clear finding on the factual basis for the enhancement. See Lee v. State, 130 So.3d 707, 710 (Fla. 2d DCA 2013) (addressing an enhancement under section 775.087(2)(a)(3), Florida Statutes (1999), which requires a sentence of twenty-five years to life where the defendant “discharged” a firearm or destructive device and as a result, the victim suffered “death or great bodily harm”). Ideally, an interrogatory verdict form should be used to address an enhancement. See id. But the harmless error analysis has also been extended to this context. See id.; Knight v. State, 6 So.3d 733, 735 (Fla. 2d DCA 2009). In Lee, the court was “convinced beyond a reasonable doubt that the actual jury made a clear finding that Mr. Lee discharged a firearm causing great bodily harm” even though the verdict form did not mention “discharging” the firearm or inflicting “great bodily harm.” Lee, 130 So.3d at 710.

In this case, Ellis’s motion was insufficient as it merely informed the post-conviction court of a problem with the verdict form. Ellis also needed to identify those parts of the record that demonstrate that this error was not harmless. In a rule 3.800(a) proceeding, “the burden [is on] the [movant] to demonstrate an entitlement to relief on the face of the record.” Williams v. State, 957 So.2d 600, 604 (Fla.2007). Stated more specifically:

[T]he motion must affirmatively allege that the trial court records demonstrate on their face an entitlement to relief. A mere conelusory allegation that the answer lies in the record is insufficient to satisfy the pleading requirements of the rule. At a minimum, a rule 3.800 motion should state where in the record the information can be located and explain how the record demonstrates entitlement to relief.

Santiago v. State, 22 So.3d 789, 789-90 (Fla. 5th DCA 2009) (citations omitted). As Ellis has not identified parts of the record that would tend to demonstrate that a rational jury would not have found that the dwelling was occupied, his motion does not warrant relief.

We conclude that although the forcible felony prong in section 775.082(8)(a)(l)(o) does not support the PRR enhancement for Ellis’s conviction for burglary of a dwelling with assault or battery, Ellis’s rule 3.800(a) motion did not sufficiently demonstrate from the face of the record that the trial court erred in applying the enhancement under section 775.082(a)(l)(q). Accordingly, we affirm the postconviction court’s order.

Affirmed.

NORTHCUTT and CASANUEVA, JJ., Concur.

      . § 784.03(l)(a), Fla. Stat. (1997) (defining battery). The offense at issue in Hearns was battery on a law enforcement officer, a detail that does not affect our analysis in this case.

      . The PRR statute was later amended to omit from item q. the requirement that a dwelling be occupied: "Burglary of a dwelling or burglary of an occupied structure.” § 775.082(9)(a)(l)(q), Fla. Stat. (2001); see ch. 2001-239, § 1, Laws of Fla.

      . The postconviction court did not attach the original information, but this court directed supplementation of the record with the information.


text:
    Albert Glenn McNORTON, Appellant, v. Gloria Susan McNORTON, Appellee.
    No. 2D12-626.
    District Court of Appeal of Florida, Second District.
    March 21, 2014.
    Catherine L. Combee, Bartow (withdrew after briefing), for Appellant.
    Albert Glenn McNorton, pro se.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellee.
   NORTHCUTT, Judge.

Albert McNorton challenges several aspects of the final judgment dissolving his marriage to Gloria McNorton. We agree with only one of his complaints.

It is uncontested that Mr. McNorton. withdrew funds from two marital retirement accounts to buy himself a new residence and to use for his living expenses. The circuit court properly determined that the withdrawn funds were applied to a purpose unrelated to the marriage, and it correctly charged those assets to Mr. McNorton’s share of the equitable distribution. But the court erred by additionally charging him with lost earnings on the withdrawals.

We question whether lost earnings are properly included in an equitable distribution; we have found no other example in case law. But we do not need to decide that issue because in this case the evidence was woefully insufficient on this point. A circuit court’s valuation of an asset must be supported by competent, substantial evidence. Tradler v. Tradler, 100 So.3d 735, 738 (Fla. 2d DCA 2012). “Substantial evidence” means “ ‘some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities)’ ” that has definite probative value. Lonergan v. Estate of Budahazi, 669 So.2d 1062, 1064 (Fla. 5th DCA 1996) (quoting Dunn v. State, 454 So.2d 641, 649 n. 11 (Fla. 5th DCA 1984)).

Here, the only evidence offered to prove either the fact or the amount of the supposed lost earnings on the retirement account withdrawals came from Ms. McNorton’s accountant. He testified that he calculated the alleged loss by first determining the dates that Mr. McNorton withdrew funds from the accounts. He then ascertained the ending balances of a Standard and Poor’s index on those dates and compared them to the ending balance of the index on November 25, 2011, the Friday before the dissolution trial began. He applied the percentage increase in the index to the amounts withdrawn from the accounts to arrive at the amount by which the withdrawn sums would have appreciated if they had been left in the accounts.

The accountant’s testimony was insufficient for the simple reason that Ms. McNorton offered no proof of how the funds in the retirement accounts were actually invested. For all the court knew, they were held in bond funds or money market accounts. And even if the accounts were invested in stocks, the increases (or decreases) in their values could not be determined by consulting an index that was not shown to be relevant to those particular investments. Without evidence of the composition of the retirement investments, the increase in a Standard and Poor’s index simply had no probative value. In short, the accountant’s testimony in this regard was speculative. As such, it could not justify charging Mr. McNorton with lost earnings on the retirement fund withdrawals. See Lassett v. Lassett, 768 So.2d 472, 474 (Fla. 2d DCA 2000).

We reverse the final judgment insofar as it charges Mr. McNorton’s share of the equitable distribution with lost earnings of $13,167 and $254. On remand the court shall adjust the equitable distribution scheme accordingly. The judgment is affirmed in all other respects.

Affirmed in part, reversed in part, and remanded.

VILLANTI and SLEET, JJ., Concur.

      . Significantly, the accountant did not disclose which of the many Standard and Poor’s indices he consulted or why. Perhaps the most widely known of them is the S & P 500, based on the market capitalizations of 500 large companies having common stock listed on the New York Stock Exchange or the NASDAQ Stock Market. Other well known Standard and Poor's indices are the S & P Mid-Cap 400, the S & P SmallCap 600, and the S & P Composite 1500. The S & P Dow Jones Indices company website lists 1,625 different indices having varying compositions and weighting methodologies. S & P Dow Jones Indices, http://us.spindices.com. (last visited Feb. 11, 2014).