author: PITTMAN, Judge.

text:
    Henry J. FRYE v. Charmann FRYE.
    2110024.
    Court of Civil Appeals of Alabama.
    Sept. 28, 2012.
    Certiorari Denied Dec. 7, 2012 Alabama Supreme Court 1120056.

      H. McGriff Belser III of Belser Law Firm, L.L.C., Decatur, for appellant.
    R. Eric Summerford, Decatur, for appel-lee.
   PITTMAN, Judge.

In July 2010, Henry J. Frye (“the former husband”) filed a postdivorce action seeking to reduce his periodic-alimony obligation to Charmann Frye (“the former wife”). Following an ore tenus proceeding, the trial court entered a judgment that stated, in pertinent part:

“Pursuant to the terms of the divorce [judgment], the [former husband] was ordered to pay alimony to the [former wife] in the amount of $1,825.00 per month for a period of sixteen (16) months and thereafter in the amount of $2,200.00 per month for a period of forty-four (44) months. The total obligation of payments in the alimony provision is $126,000.00.
“Since the rendering of the divorce [judgment], there has been a change in circumstances in regard to the economic ability of the [former husband] to continue to pay the said alimony ordered pursuant to said [judgment]. It is the finding of the court that the [former husband] is no longer employed in a way consistent with the income earned during the time that the [former husband] was ordered to pay the previous alimony. The [former husband] has looked diligently and consistently to find work consistent with the prior income. The court is satisfied that the [former husband] is not underemployed but is employed to an extent that he has reasonable income and a reasonable ability to continue to advance his income with the company he is now employed with. It is, therefore, the finding of this court that the total alimony obligation of $126,000.00 shall be paid by the [former husband] herein. It is further the finding of the court that the [former husband] has paid $31,250.00 on said alimony obligation. The court, therefore, finds that the balance owing from the [former husband] to the [former wife] in the amount of alimony is $94,750.00. It is ordered by the court, given the current economic standing of the parties hereto, the amount of monthly alimony to be paid on the outstanding alimony obligation shall be $500.00 per month, commencing thirty (30) days from the entry of this order. Said amount of alimony shall continue to be paid until [the former wife’s] death, remarriage, open cohabitation with a member of the opposite sex or termination of said payments as provided by law, whichever event shall first occur.”

The record before us does not contain the divorce judgment, but it appears that that judgment was entered in July 2009. The evidence indicated that, at the time of the divorce, the former husband had been employed as a structural superintendent for BE & K, Inc., in Birmingham and had been earning an annual income of $95,000 to $100,000. In June 2010, the former husband was laid off from his employment at BE & K. He received unemployment-compensation benefits until November 2010, when he was hired by International Paper Co. to work at its pulpwood operation in Mansfield, Louisiana, where he earned an hourly wage of $14.25. At the time of the modification proceedings, the former husband had remarried and was earning a monthly gross income of $2,300 ($27,600 annually). His wife’s gross annual income was also approximately $27,000, and the couple had monthly expenses totaling $3,129. The former wife’s income had not changed since the time of the divorce. She was still earning an hourly wage of $10, or a gross monthly income of $1,600.

The evidence presented at trial supports the trial court’s finding of a material change in circumstances since the time of the divorce that warranted a reduction of the former husband’s alimony obligation from $2,200 per month to $500 per month. The former wife does not cross-appeal from the trial court’s judgment, and the former husband does not argue that he is financially unable to pay the reduced monthly amount. Instead, he argues that the trial court erred in failing to reduce his “total alimony obligation,” i.e., $94,750— the unpaid balance of $126,000, the sum of all alimony payments contemplated by the divorce judgment.

The former husband contends that, because periodic alimony is based upon an obligor’s current ability to pay, he is not obligated to pay the balance due on the original sum of $126,000 because, he says, that sum had been calculated in accordance with his ability to pay at the time of the divorce. The former husband, however, does not argue the logical corollary of that contention: that he should be required to pay reduced payments of $500 per month only for the time remaining in the 60-month payment period set in the divorce judgment. Both parties evidently understand the trial court’s modification judgment to mean that the former husband’s alimony obligation, as modified, will end when the balance of $94,750 is paid. That understanding is, presumably, based on the following portion of the judgment, which we designate “Provision A”:

“It is, therefore, the finding of this court that the total alimony obligation of $126,000.00 shall be paid by the [former husband] herein. It is further the finding of the court that the [former husband] has paid $31,250.00 on said alimony obligation. The court, therefore, finds that the balance owing from the [former husband] to the [former wife] in the amount of alimony is $91,750.00. It is ordered by the court, given the current economic standing of the parties hereto, the amount of monthly alimony to be paid on the outstanding alimony obligation shall be $500.00 per month, commencing thirty (30) days from the entry of this order.”

(Emphasis added.) In order to conclude that the former husband’s alimony obligation will end when the $94,750 balance is paid, one would have to ignore the remainder of the trial court’s judgment, however, specifically that portion of the judgment that we designate “Provision B”:

“Said amount of alimony [$500 per month] shall continue to be paid until [the former wife’s] death, remarriage, open cohabitation with a member of the opposite sex or termination of said payments as provided by law, whichever event shall first occur.”

The parties apparently interpret Provision A as an award to the former wife of the specific sum of $94,750, representing the unpaid balance of the sum of all alimony payments due under the divorce judgment, but payable in increments of $500 per month. To pay off the outstanding balance of $94,750, the former husband would have to make 189 monthly payments of $500, plus 1 payment of $250. Thus, under the parties’ reading of Provision A, the trial court extended the 60-month period during which the former husband was originally to pay alimony so that he would continue to pay alimony for 15 years, 10 months.

Provision B, on the other hand, indicates that the former husband is to pay periodic alimony for the indefinite future, subject only to the familiar, legally recognized reasons for terminating payments of periodic alimony. Irrespective of whatever else may be said of Provisions A and B, it is evident that the trial court’s modification judgment extended the time for paying periodic alimony beyond the term established in the divorce judgment. At trial, the former wife acknowledged that she was asking the court to order payment of $94,750 and to have the payments “stretched out” over time to ensure that she would receive the “full amount.” The former husband does not argue that the trial court had no authority to extend the period for payment of alimony, and it is generally recognized that, “where a termination date is provided for the periodic alimony, the court can modify the award of periodic alimony only before the date of termination.” Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999) (citing Banks v. Banks, 336 So.2d 1365, 1367 (Ala.Civ.App.1976)). See generally Russell G. Donaldson, Annot., Power to Modify Spousal Support Award for a Limited Term, Issued in Conjunction with Divorce, So as to Extend the Term or Make the Award Permanent, 62 A.L.R.4th 180 (1988). In the present case, the modification occurred before the end of the 60-month period specified in the divorce judgment.

To the extent that there is a conflict between Provision A and Provision B, we are governed by the following principles in construing the modification judgment:

“[D]ivorce judgments should ‘be interpreted or construed like other written instruments.’ Sartin v. Sartin, 678 So.2d 1181, 1183 (Ala.Civ.App.1996); see also Springer v. Damrich, 993 So.2d 481, 488 (Ala.Civ.App.2008).
“ ‘ “Separate provisions of judgments, like provisions of contracts, should be construed in pari materia, and the entire judgment — all provisions considered — should be read as a whole in the light of all the circumstances, as well as of the conduct of the parties .... Further, if the terms of a judgment are not ambiguous, they should be given their usual and ordinary meaning.” ’
“Ex parte Snider, 929 So.2d 447, 456-57 (Ala.2005) (quoting Moore v. Graham, 590 So.2d 293, 295 (Ala.Civ.App.1991)); see also Wall v. Borosky, 850 So.2d 351, 354 (Ala.Civ.App.2002).
“When interpreting possibly conflicting provisions in a judgment, specific terms are given more weight than are more general provisions. See Ex parte Dan Tucker Auto Sales, Inc., 718 So.2d 33, 36 (Ala.1998). Moreover,
“ ‘ “where there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy, the [instrument].” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000). See also Clark v. Board of Dental Exam’rs of Georgia, 240 Ga. 289, 294, 240 S.E.2d 250, 254 (1977) (“ “When a judgment is susceptible of two meanings, one of which would render it illegal and the other proper, that construction will, if reasonably possible, be given it that would render it legal.’ ” (quoting Byrd v. Goodman, 195 Ga. 621, 25 S.E.2d 34 (1943))).’
“[Ex parte ] Snider, 929 So.2d [447,] 457 [(Ala.2005)].”

Cockrell v. Cockrell, 40 So.3d 712, 715 (Ala.Civ.App.2009).

In the present case, there is “ ‘ “a choice between a valid construction and an invalid construction” ’ ” of the modification judgment, id., because accepting the “ ‘ “usual and ordinary meaning,” ’ ” id., of the language in Provision A would be consistent with the divorce court’s having awarded the former wife alimony in gross — an award that is certain as to time and amount of payment, that is vested, and that is, therefore, nonmodifiable, see Ex parte Hager, 293 Ala. 47, 55, 299 So.2d 743, 750 (1974)—and inconsistent with the divorce court’s having awarded the wife periodic alimony. We acknowledge that the trial court’s statement of the substance of the alimony award could, conceivably, be deemed to describe an award of alimony in gross. However, the divorce judgment is not before us and both parties agree that the award was one of periodic alimony. Moreover, the record contains no indication that the award was intended to be in settlement of the former wife’s inchoate marital rights and every indication that it was intended to be for the future support of the former wife payable from the current earnings of the former husband. See Huldtquist v. Huldtquist, 465 So.2d 1146, 1148 (Ala.Civ.App.1984) (construing a judgment ordering payments of $350 per month for 12 months, and then $300 a month for 8 years, to be periodic alimony, despite the fact that the time of payment and amount of payment were certain, because “the purpose of the payments was not to replace the wife’s inchoate rights in the husband’s estate (alimony in gross), but rather to pay a future allowance for support of the wife out of the husband’s future earnings”). Accordingly, we conclude that the award was either “rehabilitative alimony,” see Alfred v. Alfred, 89 So.3d 786 (Ala.Civ.App.2012), or “periodic alimony limited to a period of 60 months,” id., 89 So.3d at 791 (Moore, J., concurring in part and concurring in the result).

An initial award of periodic alimony and any modification thereof must be based on the obligor’s then current earnings.

“Periodic alimony ... ‘is an allowance for the future support of the [recipient spouse] payable from the current earnings of the [paying spouse].’ [Hager v.] Hager, 293 Ala. [47] at 55, 299 So.2d [743] at 750 [(1974)]. Its purpose ‘is to support the former dependent spouse and enable that spouse, to the extent possible, to maintain the status that the parties had enjoyed during the marriage, until that spouse is self-supporting or maintaining a lifestyle or status similar to the one enjoyed during the marriage.’ O’Neal v. O’Neal, 678 So.2d 161, 164 (Ala.Civ.App.1996) (emphasis added). Periodic alimony is modifiable based upon changes in the parties’ financial conditions or needs, such as an increase in the need of the recipient spouse, a decrease in the income of the paying spouse, or an increase in the income of the recipient spouse. See Tibbetts v. Tibbetts, 762 So.2d 856, 858 (Ala.Civ.App.1999).”

TenEyck v. TenEyck, 885 So.2d 146, 152 (Ala.Civ.App.2003)

If Provision A were construed to require that the former husband pay the reduced monthly amount of periodic alimony only until he had paid the outstanding balance on the original amount due under the provisions of the divorce judgment, then that provision would constitute reversible error. That is so because the sum of all payments required by the alimony award in the divorce judgment (a) was based upon the former husband’s earnings at the time of the divorce, not upon his earnings at the time of the modification proceeding, and (b) was not a vested right of the former wife but was modifiable based on the very change in circumstances that, the trial court determined, had occurred in this case.

On the other hand, accepting Provision B as controlling and regarding Provision A as containing superfluous factual findings would result in upholding the judgment modifying the former husband’s periodic-alimony obligation. “[Wjhere there is a choice between a valid construction and an invalid construction the court has a duty to accept the construction that will uphold, rather than destroy [the judgment].” Homes of Legend, Inc. v. McCollough, 776 So.2d 741, 746 (Ala.2000) (quoted in Cock-rell, supra). We, therefore, hold that the language in Provision A — that “the total alimony obligation of $126,000.00 shall be paid by the [former husband]” and that “the balance owing from the [former husband] to the [former wife] in the amount of alimony is $94,750.00” (each of which the trial court designated a “finding”) — constitutes just that: findings of fact. The conclusion of law (and the operative portion) of the modification judgment, however, is contained in Provision B:

“Said amount of alimony [$500 per month] shall continue to be paid until [the former wife’s] death, remarriage, open cohabitation with a member of the opposite sex or termination of said payments as provided by law, whichever event shall first occur.”

Based on the foregoing, we conclude that the trial court’s judgment, interpreted as described in this opinion, is due to be affirmed.

The former wife’s request for an attorney’s fee on appeal is denied.

AFFIRMED.

THOMPSON, P.J., and THOMAS, J., concur.

BRYAN and MOORE, JJ., concur in the result, without writings.

      . In her appellate brief, the former wife argues that "[i]t is abundantly clear ... that [the former husband] just wants out of the obligation [to pay $94,750] altogether, and the [trial] court found no justification for that.”


source: Caselaw Access Project

author: WINDOM, Presiding Judge. KELLUM, Judge,

license: Public Domain

text:
    Henry Clay SMITH v. STATE of Alabama.
    CR-11-1050.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 2012.
    Rehearing Denied Oct. 26, 2012.
    Certiorari Denied Dec. 7, 2012 Alabama Supreme Court 1120156.

      Henry Clay Smith, pro se.
    Luther Strange, atty. gen., and J. Thomas Leverette, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WELCH, J., concurs. KELLUM, J., concurs specially, with opinion.

KELLUM, Judge,

concurring specially.

I write specially to note that this action appears to be Henry Clay Smith’s fifth Rule 32, Ala. R.Crim. P., petition challenging his 1995 convictions for attempted murder and first-degree assault and his resulting sentences of 99 years’ imprisonment for each conviction. I believe that allowing Smith to file multiple petitions for postconviction relief in which his claims are either precluded or without merit wastes scarce judicial resources. Therefore, I would encourage the circuit court to consider adopting sanctions like those proposed in Peoples v. State, 531 So.2d 323 (Ala.Crim.App.1988), and Procup v. Strickland, 792 F.2d 1069 (11th Cir.1986), to prevent future frivolous litigation on the part of Smith and other similarly situated inmates. See Ex parte Thompson, 38 So.3d 119 (Ala.Crim.App.2009).


author: WINDOM, Presiding Judge.

text:
    Lameca Dechawn TURNER v. STATE of Alabama.
    CR-09-0739.
    Court of Criminal Appeals of Alabama.
    Dec. 14, 2012.

      Bryan A. Stevenson, Randall S. Suss-kind, Angela Setzer, and Sia M. Sanneh, Montgomery, for appellant.
    Troy King and Luther Strange, attys. gen., and Richard D. Anderson, asst. atty. gen., for appellee.
   WINDOM, Presiding Judge.

Lameca Dechawn Turner appeals his conviction for capital murder and his sentence of death. Turner was convicted of murder made capital for taking the life of Prakaschandra Shah during the course of a robbery. See § 18A-5-40(a)(2), Ala. Code 1975. The jury, by a vote of 11-1, recommended that Turner be sentenced to death. The circuit court followed the jury’s recommendation and sentenced Turner to death.

For the most part, the facts of Turner’s crime are uncontested. On April 20, 2004, Hepal Shah, Shah’s son-in-law, was working at the Petro Southeast Mini-Mart convenience .store in Dothan. Shah went to the Mini-Mart to take Hepal some food. While Shah was there, Hepal went into the back of the store to stock a cooler. While Hepal was in the back of the store, Turner, Ray Grace, and Cordell Turner entered the store to commit a robbery. Turner pointed a 9mm semi-automatic pistol at Shah, and Shah said “no, no, no, no.” (C. 774.) At some point during the robbery, Turner shot Shah in the lower abdomen and the bullet exited Shah’s body through his buttocks. After shooting Shah, Turner and his accomplices fled. Shah died as a result of the gunshot wound.

After the crime, Turner was arrested, was read his Miranda rights, and was interrogated by Corporal Frank Meredith, Lieutenant Tony Luker, and Captain Steve Parrish of the Dothan Police Department. Initially, Turner denied any involvement in the robbery/murder. However, during the course of the interrogation, the officers confronted him with confessions of his two accomplices, which implicated Turner. Specifically, the accomplices had both informed the officers that Turner was involved in the robbery and that he was the individual who shot Shah. Captain Parrish informed Turner that his accomplices were “saying that [Turner had] murdered somebody.” (C. 769.) Captain Parrish also stated:

“[Grace and Cordell] said that you shot that clerk. They showed how you done it. When [Shah] grabbed the phone you said f* * * this and you shot.”

(C. 766.) Later, one of the police officers could be heard repeating the accomplices’ statements that Turner said “f* ⅜ * this” and shot Shah.

After being repeatedly confronted with his accomplices’ confessions, Turner confessed. Turner stated that he went to the Mini-Mart with Grace and Turner to rob it. Turner explained that he had the pistol and that he shot Shah. Turner, however, denied that he shot Shah intentionally. According to Turner, while he was holding the pistol, he accidentally fired the pistol, shooting Shah. After he accidentally shot Shah, he ran out of the store.

At trial, defense counsel’s theory of the case was that Turner was not guilty of capital murder because he did not intend to shoot and kill Shah. During voir dire of the potential jurors, defense counsel informed the venire that the defense stipulated that Turner went to the store to commit a robbery. He was armed with a 9mm pistol. While Turner had the pistol, a shot was fired that struck Shah, and Shah died as a result of the gunshot wound. Counsel then told the venire that intent would be the only issue at trial. Specifically, counsel informed the venire that it was the defense’s position that Turner shot Shah accidentally.

Later, defense counsel began his opening statement by declaring: “[Ijt’s not capital murder, ladies and gentlemen.” (R. 267.) “What [Turner] is here for today[,] he’s not asking you to let him go. He’s here to ‘fess up and tell you what he did was horrible.” (R. 267.) Counsel stated that Turner went to the store to commit a robbery and that he accidentally shot Shah. Counsel then said:

“[Turner] is here today to tell you that he committed a murder or a manslaughter, but not capital [murder]. There is no way that this is capital murder. There is no way to prove or to show that he intentionally did this. No intent.... The shooting was not intentional and it was not planned. That part was an accident. Now, it’s a horrible tragedy for [the Shah] family. [Turner has] got to live with it. And he’s going to pay the price to society. But he should not be facing capital murder.”

(R. 268-69.)

At trial, to rebut Turner’s defense that the shooting was an accident, the State presented Terry Hanks, an individual who was incarcerated with Turner in the Houston County jail. According to Hanks, he and Turner were housed in different cells, and Turner confessed to him through the air-ventilation system. Specifically, Hanks testified that Turner stated through an air vent that “he shot [Shah] because he wouldn’t give him the money.” (R. 386.)

The State also admitted into evidence the recording of Turner’s interrogation in which the officers stated that Turner’s accomplices had told them that Turner intended to shoot Shah. The recording also contained a police officer’s statement that the accomplices had informed the officers that when Shah “grabbed the phone[J [Turner] said f* * * this and [he] shot.” (C. 766.)

Later, during Corporal Meredith’s testimony, the following occurred:

“Q: If I could, let me ask you, Mr. Meredith, if I could, the questions are asked by Lt. Luker or Parrish or yourself to elicit a statement from the defendant the terminology we used that, we know you didn’t mean to do it, an accident, was there any evidence to show that it was an accident?
“A: No, sir.
“Q: Would you tell the ladies and gentlemen of the jury, explain to them when you do an interview why you used term or terms used to a defendant Lameco [sic] Turner? Why do you say that? “A: It’s used in our experience and training it’s used to elicit a response. We know the evidence from the other two co-defendants, their statements, led us to believe that [Turner] said, pardon me, f* * * this, and shot the man. We knew it wasn’t an accident for that statement and then the shooter.”

(R. 585-86.)

After the State rested its case, defense counsel presented evidence indicating that Hanks believed that he would be given favorable treatment for his testimony against Turner. Specifically, Rhyeem Kinsey, an individual who had been incarcerated with Hanks, testified that he overheard Hanks say that Hanks was going to testify against Turner in exchange for “going home.” (R. 685.) Kinsey said Hanks’s “exact words were that if the State sticks to what they said they were going to do, then, I’m going to tell them that [Turner] robbed the guy and that [Turner] did the shooting.” (R. 686.)

During closing arguments, the State used Turner’s accomplices’ statements to the police to show that Turner intended to shoot Shah:

“And you heard in the course of [Turner’s] statement it was recorded that that’s what Cordell [Turner] and Ray [Grace] said.... That you heard Steve Parrish and Tony Luker, or one or them two of them or maybe Frank, say, [the accomplices] said that you shot the man because he wasn’t giving you the money. That is what happened.”

(R. 717.) Defense counsel objected to the State’s argument on the grounds that it relied on hearsay and on facts not in evidence. The State responded that “it is in the statement that was played.” (R. 717.) After the State’s response, the circuit court overruled defense counsel’s objection.

At the conclusion of the trial, the jury found Turner guilty of capital murder. Thereafter, the jury recommended that Turner be sentenced to death. The circuit court followed the jury’s recommendation and sentenced Turner to death.

On appeal, Turner argues, among other things, that the State improperly used the statements of his nontestifying accomplices. Specifically, Turner argues that the State’s admission of evidence consisting of his accomplices’ out-of-court confessions to law enforcement constituted inadmissible hearsay and violated his right to confront the witnesses against him. See Rule 802, Ala. R. Evid.; U.S. Const. Amend. VI. Although Turner objected to the State’s use of the statements during closing arguments, he did not object to the admission of his accomplices’ statements; therefore, he failed to properly preserve this issue for appellate review. C.B.D. v. State, 90 So.3d 227, 237-38 (Ala.Crim.App.2011) (“In order for this court to review an alleged erroneous admission of evidence, a timely objection must be made to the introduction of the evidence, specific grounds for the objection should be stated and a ruling on the objection must be made by the trial court.” (citations and quotations omitted)).

However, because Turner has been sentenced to death, his failure to preserve this issue is not fatal to his appeal. Rather, this Court must notice any plain error. Rule 45A, Ala. R.App. P. Rule 45A states:

“In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.”

(Emphasis added.)

In Ex parte Brown, 11 So.3d 933 (Ala.2008), the Alabama Supreme Court explained:

“ ‘ “To rise to the level of plain error, the claimed error must not only seriously affect a defendant’s ‘substantial rights,’ but it must also have an unfair prejudicial impact on the jury’s deliberations.’” Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App. 1998)). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:
“‘The Rule authorizes the Courts of Appeals to correct only “particularly egregious errors,” United States v. Frady, 456 U.S. 152, 163 (1982), those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings,” United States v. Atkinson, 297 U.S. [157], at 160 [ (1936) ]. In other words, the plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” United States v. Frady, 456 U.S., at 163, n. 14.’
“See also Ex parte Hodges, 856 So.2d 936, 947-48 (Ala.2003) (recognizing that plain error exists only if failure to recognize the error would ‘seriously affect the fairness or integrity of the judicial proceedings,’ and that the plain-error doctrine is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result’ (internal quotation marks omitted)).”

11 So.3d at 938. “The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal.” Hall v. State, 820 So.2d 113, 121 (Ala.Crim. App.1999). Thus, although Turner’s failure to object will not bar this Court from reviewing any issue, it will weigh against any claim of prejudice. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991).

“The Sixth Amendment’s Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ ” Crawford v. Washington, 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Thus, “the Sixth Amendment [prohibits the admission of] testimonial hearsay [statements offered for the truth of the matter asserted], ... and interrogations by law enforcement officers fall squarely within that class.” Crawford, 541 U.S. at 53; see also id. at 59 n. 9; (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985) (explaining that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted”)). Similarly, under the Alabama Rules of Evidence:

“ ‘Hearsay is not admissible except as provided by [the Alabama Rules of Evidence], or by other rules adopted by the Supreme Court of Alabama or by statute.’ Rule 802, Ala. R. Evid. ‘“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ Rule 801(c), Ala. R. Evid.”

Hillard v. State, 53 So.3d 165, 167 (Ala.Crim.App.2010). Accordingly,

“It is well settled that[, when offered for the truth of the matter asserted,] a non-testifying codefendant’s statement to police implicating the accused in the crime is inadmissible against the accused; it does not fall within any recognized exception to the hearsay rule and ... [it] violates the accused’s confrontation rights. See Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); R.L.B. v. State, 647 So.2d 803 (Ala.Crim. App.1994); Ephraim v. State, 627 So.2d 1102 (Ala.Crim.App.1993).”

Jackson v. State, 791 So.2d 979, 1024 (Ala.Crim.App.2000). See also Lilly v. Virginia, 527 U.S. 116, 139, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (holding that the admission of an accomplice’s out-of-court confession violated the petitioner’s Confrontation Clause rights); Hillard, 53 So.3d at 169 (holding that a codefendant’s statement to police was inadmissible hearsay under Rule 802, Ala. R. Evid.).

Here, the State offered evidence establishing that Turner’s accomplices gave confessions to police officers and, in those confessions, stated that, during the commission of the crime, Shah “grabbed the phone[, and Turner] said f* * * this and ... shot [Shah].” (C. 766.) The State also offered evidence that the accomplices told the police officers that Turner murdered Shah. The confessions of Turner’s accomplices to police officers were, without a doubt, testimonial. Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 195, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (quoting Crawford, 541 U.S. at 68 (explaining that “ ‘[whatever else the term [“testimonial”] covers, it applies at a minimum ... to police interrogations’ ”)). Further, during closing arguments, the State used the accomplices’ statements to show that Turner intended to kill Shah. See R. 717 (arguing that the accomplices’ statements establish that Turner shot Shah because Shah would not give them money). The State’s use of the accomplices’ statements during closing argument leaves no room to doubt that the statements were offered for the truth of the matter asserted. Accordingly, the introduction of statements by Turner’s non-testifying accomplices to police officers during their interrogations violated Turner’s right to confront the witnesses against him, constituted inadmissible hearsay, and “adversely affected [his] substantial right[s].” Rule 45A, Ala. R.App. P. See also Jackson, 791 So.2d at 1024.

The introduction of the accomplices’ statements not only “adversely affected [Turner’s] substantial right[s],” Rule 45A, Ala. R.App. P., but “also ha[d] an unfair prejudicial impact on the jury’s deliberations.” Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002) (citations and quotations omitted). As stated above, Turner conceded that he went to the Mini-Mart to commit a robbery, and, during the robbery, he shot and killed Shah. Turner’s sole defense was that he did not intend to kill Shah; instead, he argued that he shot Shah accidentally. To rebut Turner’s defense, the State presented evidence establishing that Turner shot Shah, and it asked the jury to draw the inference that Turner intended Shah’s death from the fact that he used a deadly weapon. However, Shah was shot in the lower abdomen near his pelvis and the bullet exited his body through his buttocks. Thus, although the jury could have inferred an intent to kill by the use of a deadly weapon, it also could have inferred from the location of Shah’s wound that Turner did not intend to kill him. The State also presented testimony from Hanks, an inmate, who said Turner confessed to him through an air vent that “he shot [Shah] because [Shah] wouldn’t give him the money.” (R. 386.) Defense counsel, however, presented evidence tending to impeach Hanks’s testimony. Specifically, defense counsel presented evidence indicating that Hanks had received favorable treatment. Further, Kinsey testified that he heard Hanks’s statement that he was testifying against Turner in exchange for being allowed to “go home.” Although the use of a deadly weapon and Hanks’s testimony was some evidence of Turner’s intent, that evidence cannot be characterized as overwhelming.

Rather, the most damning evidence the State presented to show that Turner intended to kill Shah was the accomplices’ statements and Corporal Meredith’s testimony relating to those statements. From the accomplices’ statements, the jury knew that, during the robbery, Shah “grabbed the phone[, and Turner] said f* * * this and ... shot him.” (C. 766.) Further, Corporal Meredith testified that the accomplices’ statements established that the shooting was intentional. Clearly, the accomplices’ statements and Corporal Meredith’s testimony that they “knew [that the shooting] wasn’t an accident from [the accomplices’] statement[s]” (R. 585-86), struck at the heart of Turner’s only defense and undoubtedly impacted the jury’s deliberations.

Accordingly, this Court holds that plain error resulted from the introduction of evidence of Turner’s nontestifying accomplices’ confessions in violation of Turner’s right to confront the witnesses against him and in violation of Rule 802, Ala. R. Evid. As a result, this Court reverses Turner’s conviction and sentence of death and remands this cause for further proceedings.

REVERSED AND REMANDED.

WELCH, KELLUM, BURKE, and JOINER, JJ., concur.

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

      . Although Turner raises numerous issues on appeal, this Court addresses only one.


author: DAMOORGIAN, J.

text:
    Damian TUKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4897.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Damian Tukes, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

This is an appeal from a summary denial of Damian Tukes’ petition for writ of habe-as corpus challenging his conviction and sentence for robbery with a firearm which became final in 2004. Tukes contends that the standard jury instructions given in his case failed to require his jury to find the firearm element of the charge beyond a reasonable doubt. We affirm.

We first note that the habeas petition is subject to dismissal because the Florida Rules of Criminal Procedure require that all challenges to a criminal defendant’s conviction or sentence shall be made through a Rule 3.800 or Rule 3.850 motion. Bradley v. Tucker, 95 So.3d 212 (Fla.2012) (Table) (citing Baker v. State, 878 So.2d 1236 (Fla.2004)); Childers v. State, 909 So.2d 462 (Fla. 4th DCA 2005). Even assuming Tukes filed his request for relief under the appropriate rule, if construed as a motion for post-conviction relief, the motion is facially untimely as it was filed more than seven years after his conviction and sentence became final in violation of the two-year limitation period prescribed by Rule 3.850(b). Parks v. State, 101 So.3d 1265, 1265 (Fla. 4th DCA 2012).

Finally, the motion was correctly described as successive by the trial court. The ground raised here was available to Tukes from the beginning of his post-conviction filings, which included a motion to correct illegal sentence, a petition for writ of habeas corpus alleging appellate counsel ineffectiveness, a petition for “all writs” jurisdiction in the Florida Supreme Court, a motion for post-conviction relief and a petition for belated appeal from summary denial of that motion. Thus, Tukes’ piecemeal presentation of his claims in various post-conviction proceedings constituted a violation of Rule 3.850(f), and thereby subjected the pending filing to dismissal on that basis as well. Jackman v. State, 88 So.3d 325, 327 (Fla. 4th DCA 2012).

In light of Tukes’ history of filing legally frivolous pro se pleadings re-litigating issues that were or could have been presented in his initial direct appeal in this case, we deem this appeal legally frivolous. Accordingly, by separate order, Tukes shall show cause why he should not be barred from filing any further pro se appeals in this court, challenging his conviction or sentence for robbery with a firearm in case number 01-19111 CF10A. See State v. Spencer, 751 So.2d 47, 49 (Fla.1999); § 944.279(1), Fla. Stat. (2012).

Affirmed.

WARNER and POLEN, JJ., concur.

      . On the merits, Tukes’ contention that the jury instructions given in his case failed to require his jury to find the firearm element of the charge beyond a reasonable doubt was rejected by this Court in State v. Jacobs, 8 So.3d 448, 449 (Fla. 4th DCA 2009) and Rug-er v. State, 941 So.2d 1182, 1185 (Fla. 4th DCA 2006). The Standard Jury Instruction 3.7 sufficed to inform the jury that a material allegation made in an information must be proven beyond a reasonable doubt.


author: PER CURIAM.

text:
    Nicolas A. MANZINI, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-286.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Rehearing Denied May 31, 2013.
    Nicolas A. Manzini, West Miami, pro se.
    No appearance required for respondent.
   PER CURIAM.

Petitioner Nicolas Manzini seeks a writ of prohibition to prevent his continued prosecution on a charge of second degree grand theft brought under section 812.014(2)(b)l., Florida Statutes (2005). According to the State, petitioner, an attorney who represented a criminal defendant in a fraud case, failed to return monies entrusted to him by his client to use as restitution as part of plea negotiations.

Petitioner allegedly withdrew monies exceeding the amount of the check given to him by the complaining witness sometime between February 28 and April 28, 2006. The original information in petitioner’s case was filed on March 3, 2011. By way of a motion to dismiss under Fla. R. Crim. P. 3.190(c)(4), petitioner sought dismissal of the charge against him based on the five-year statute of limitations under section 812.035(10), Florida Statutes (2005). In his motion, Petitioner argued that the money given to him by the criminal defendant client he was representing had been fully withdrawn from his law firm trust account by February 28, 2006, rendering the March 3, 2011 filing of the information in this case presumptively untimely. See Studnicka v. Carlisle, 553 So.2d 392, 393 (Fla. 4th DCA 1989).

While the motion to dismiss was under advisement, the State filed an amended information on June 27, 2012 which re-alleged the date of the offense as April 28, 2006. Based on this amendment to the original information, the trial court denied petitioner’s motion to dismiss, and subsequently denied a second motion to dismiss filed after the denial of his first motion. It is from the denial of this second motion to dismiss that petitioner moved this court to grant his petition for writ of prohibition to halt his continued prosecution, arguing that the trial court erred in denying the motion to dismiss based on the statute of limitations for grand theft, and so lacked jurisdiction to proceed against him.

Prohibition is an appropriate vehicle to challenge a trial court’s continued jurisdiction to preside over a criminal prosecution said to be beyond the statute of limitations for the offense charged. See Matos v. State, 961 So.2d 1077, 1077 (Fla. 4th DCA 2007). Thus, we have jurisdiction to review petitioner’s claim that the trial court erred in denying his second motion to dismiss.

We find the trial court’s denial was not legal error because petitioner’s motion was traversed by the State below, and the traverse specifically disputed facts as to petitioner’s authority over the funds he received and the date by which those funds were fully dissipated from petitioner’s trust account. See generally State v. Kalogeropolous, 758 So.2d 110, 111-12 (Fla.2000) (outlining the specificity required of a traverse to defeat a motion to dismiss); see also O’Malley v. Mounts, 590 So.2d 437, 439 (Fla. 4th DCA 1991) (holding that, for statute of limitations purposes, a crime of theft occurred when defendant exceeded his authority as to funds entrusted to him, not when he first received the funds); Padgett v. State, 519 So.2d 663, 665 (Fla. 4th DCA 1988) (same). Moreover, since the amended information filed in this case did not broaden or substantially expand the number or nature of the original charge against petitioner, it “related back” to the filing of the first information, rendering the amended information timely for statute of limitations purposes. See State v. Bonawitz, 997 So.2d 460, 462 (Fla. 4th DCA 2008); State v. Garofalo, 453 So.2d 905, 906-07 (Fla. 4th DCA 1984). Accordingly, we deny the petition for writ of prohibition filed by petitioner on the merits.

Petition for writ of prohibition is denied.

MAY, C.J., GROSS and CONNER, JJ„ concur.


author: CLARK, J.

text:
    Timothy Preston CHAVERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6015.
    District Court of Appeal of Florida, First District.
    May 9, 2013.
    Rehearing Denied July 9, 2013.

      Terry P. Roberts, Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

Appellant challenges his conviction of first-degree murder and mandatory sentence of life without possibility for parole. For the following reasons, the judgment and sentence are reversed and this case remanded for new trial.

On March 4, 2010, Chris Pitcock died of a gunshot wound as he drove his car away from an encounter with Appellant and another teenager. Appellant, aged 17 at the time, was arrested the next day and interrogated at the police station by a law enforcement officer. At the beginning of the interrogation, the following exchange took place:

Officer: So I want to go over your Miranda warnings. That means you have the right to remain silent, okay?
Appellant: Uh-huh.
Q: Anything you say can and will be used against you in a court of law.
A: Uh-huh.
Q. You have the right to talk to a lawyer and have him or her present with you while you’re being questioned.
A: Uh-huh.
Q: Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any further questioning, if you wish. If you decide to answer questions now, without your lawyer being present, you have the right to change your mind at any time and request a lawyer be present before any further questioning. So if you don’t like the way it’s going, you can say, whoa, [detective].
A: I don’t have no lawyer, so —
Q: You —
A: I don’t even have no money to call a lawyer.
Q: Okay. But, understand, you know, you could have one, but — do you have any questions about these? Do you understand them?
A: Uh-huh.
Q: You do? Do you understand the rights? Could I get an initial right there? And if you want to talk to me now.

(emphasis added). Appellant then proceeded to make statements to the officer in response to questioning and the interrogation was recorded on a DVD. His statements included his description of his meeting with the victim the day of the shooting, sitting in the victim’s car prior to any occurrence of violence, and his expressions of callous disregard for the fate of Mr. Pitcock and shooting incidents in general.

A grand jury indictment was filed on March 22, 2010, charging Appellant with the first-degree murder and attempted armed robbery of Pitcock. Upon Appellant’s motion to suppress his statement to the officer at the police station, the trial court suppressed portions of Appellant’s statement on grounds not at issue here. However, the court denied suppression of the portions of the interrogation immediately following the purported waiver quoted above. For the unsuppressed material, the court found that Appellant knowingly and intelligently waived his Miranda rights prior to the commencement of the interrogation.

The trial took place August 2 and 3, 2011. The unsuppressed portions of the interrogation amounting to approximately 65 transcribed pages were published to the jury during trial over defense counsel’s renewed objection.

At the close of the evidence, the court discussed the jury instructions with counsel, including lesser included offenses, for the charged crimes. Second-degree murder was not discussed as a lesser included offense to first-degree murder and defense counsel did not request that it be included as a lesser included offense. The judge instructed the jury as agreed by the parties, and there was no objection to the instructions for first-degree murder. Second-degree murder was not presented to the jury as a lesser included offense. The jury returned a verdict of guilty as charged on both counts.

The trial court’s partial denial of Appellant’s motion to suppress his statement to law enforcement must be reversed because Appellant’s right to the presence of counsel for the interrogation was not validly waived. “Before a defendant’s self-incriminating statements may be admitted into evidence, ‘a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’” U.S. v. Rodriguez, 518 F.3d 1072, 1076 (9th Cir.2008) (quoting Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). This is especially true where the suspect is a juvenile. Ramirez v. State, 739 So.2d 568, 575 (Fla.1999).

“[A]n ambiguous waiver must be clarified before initial questioning.” Alvarez v. State, 15 So.3d at 745. “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation.” U.S. v. Rodriguez, 518 F.3d 1072, 1080 (9th Cir. 2008) (considering waiver of right to remain silent when officer inquired if suspect “wished to speak to him” and suspect responded “I’m good for tonight.”). See also Miles v. State, 60 So.3d 447, 451 (Fla. 1st DCA 2011) (“If the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation.”).

Here, the State did not meet its heavy burden to show a knowing and intelligent waiver of Appellant’s right to appointed counsel because Appellant’s statement that he did not have the money for a lawyer indicated that he did not intelligently understand he had the right to appointed counsel even if he could not afford one. See Martinez v. State, 564 So.2d 1071 (Fla.1990); Fields v. State, 402 So.2d 46 (Fla. 1st DCA 1981). Because the officer’s response to Appellant’s statement did not clarify Appellant’s right to the presence of counsel regardless of his lack of financial resources, Appellant’s waiver of that right was not valid. Accordingly, Appellant’s subsequent statements placing him in the victim’s vehicle on the evening in question and other incriminating statements should have been suppressed. The State failed to prove beyond a reasonable doubt that the error was harmless because publication of the portions of the DVD at issue could have contributed to the jury’s verdict on both counts. See Miles v. State, 60 So.3d 447 (Fla. 1st DCA 2011); State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Regarding the jury instructions, the indictment charged Appellant with first-degree murder under section 782.04, Florida Statutes (2010), encompassing both premeditated murder and felony murder. The jury was instructed on both premeditated and felony murder. While second-degree murder is not a necessary lesser included offense for felony murder, see Coicou v. State, 39 So.3d 237 (Fla.2010), it is a necessary lesser included offense for premeditated murder. See Fla. Std. Jury Inst. (Crim.) 7.2. Accordingly, an instruction on second-degree murder was required. Omitting this option for the jury was fundamental error. State v. Abreau, 363 So.2d 1063 (Fla.1978); See also State v. Montgomery, 39 So.3d 252 (Fla.2010); Pena v. State, 901 So.2d 781 (Fla.2005) (if the jury is not instructed on a necessary lesser included offense, it is impossible to determine whether the jury would have found the defendant guilty of that lesser offense; per se error).

Because Appellant is entitled to a new trial, we need not reach the issue of the sentencing at this time. See Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); Washington v. State, 103 So.3d 917, 920 (Fla. 1st DCA 2012) (“a discourse by this Court on other sentencing options is premature.”).

The judgment and sentence are reversed and this case is remanded for a new trial.

LEWIS and RAY, JJ., concur.

      . This is not a case where a suspect validly waived his right to have counsel present prior to questioning and then subsequently attempted to revive (or invoke) the right at a later point in the interrogation. See State v. Owen, 696 So.2d 715 (Fla.1997); Alvarez v. State, 15 So.3d 738 (Fla. 4th DCA 2009) ("Invocation and waiver of constitutional rights are distinct inquiries ... and should not be merged.”).


text:
    Kevin & Sandra KENNEDY, Appellants, v. WELLS FARGO BANK, N.A., Appellee.
    No. 1D12-5773.
    District Court of Appeal of Florida, First District.
    May 10, 2013.
    Rehearing Denied July 5, 2013.
    Tanner Andrews, DeLand, for Appellants.
    Dean A. Morande, Michael K. Winston and Christopher M. Sacco of Carlton Fields, P.A., West Palm Beach; Julie An-thousis of Ronald Wolfe & Assoc., P.A., Tampa; and April Walker of Carlton Fields, P.A., Orlando, for Appellee.
   PER CURIAM.

Appellee’s Motion to Dismiss for Lack of Appellate Jurisdiction is granted. DISMISSED.

VAN NORTWICK, THOMAS, and ROBERTS, JJ., concur.


text:
    Christopher WATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1494.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    Christopher Watson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

It appearing that petitioner only recently sought leave to amend his motion for postconviction relief to add an additional claim, the petition for writ of mandamus is DENIED as premature.

CLARK, MARSTILLER, and SWANSON, JJ, concur.


text:
    Alvin SHARPE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1517.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Rehearing Denied July 9, 2013.
    Michael J. Titus, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant; Alvin Sharpe, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Alvin Sharpe appeals his judgment and 20-year sentence for aggravated battery with a firearm. Appellate counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), representing that no good faith argument could be made that reversible error occurred below. Having reviewed the record, we affirm Appellant’s conviction and prison sentence.

However, appellate counsel identified several errors with the imposition of costs and fines at sentencing, and scrivener’s errors in Appellant’s Criminal Punishment Code Scoresheet that require correction. Appellant preserved these errors in a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Because this motion was not ruled on within sixty days, it is considered to have been denied. Fla. R. Crim. P. 3.800(b)(2)(B).

We first find the trial court erred by imposing in the written judgment and sentence a $1,050 fine pursuant to section 775.083, Florida Statutes; a 5 percent surcharge in the amount of $52.50 pursuant to section 938.04, Florida Statutes; and a $20 court cost pursuant to section 938.06, Florida Statutes. Because the trial court failed to orally pronounce the fine, the imposition of the fine, surcharge, and cost was error. See Pullam v. State, 55 So.3d 674, 675 (Fla. 1st DCA 2011). On remand, the trial court may re-impose the fine, surcharge, and court cost after providing notice to Appellant and following the proper procedure. See Williams v. State, 82 So.3d 186 (Fla. 1st DCA 2012) (reversing judgment for fines, costs, and surcharges “because the trial court failed to delineate the discretionary fine(s) when announcing at sentencing that it would impose $1,522.50 in costs and fines,” and stating the assessments may be re-imposed on remand after giving appellant notice and following proper procedure). If, however, the trial court elects not to re-impose the fine, surcharge, and court cost, it should enter a corrected Judgment for Fines, Costs, Fees, and Surcharges striking these amounts. See Nix v. State, 84 So.3d 424, 426 n. 2 (Fla. 1st DCA 2012).

We further find the trial court erred by imposing the legal assistance lien of $100 without first advising Appellant of his right to contest the amount. See § 938.29(5), Fla. Stat.; Fla. R. Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.”); see also McCarthan v. State, 91 So.3d 268, 269 (Fla. 1st DCA 2012) (“[W]e strike the one hundred dollar indigent legal assistance lien imposed, since appellant was not given notice of his right to a hearing to contest the amount of this lien.”); Vaughn v. State, 65 So.3d 138, 139 (Fla. 1st DCA 2011) (“[T]he state properly concedes that that the Public Defender fee should be stricken because the trial court did not advise Vaughn of his right to contest the amount.”); Parker v. State, 44 So.3d 1190, 1191 (Fla. 1st DCA 2010) (striking public defender costs because those “fees were not announced at sentencing and the appellant was not advised of his right to a hearing to contest the amount of the fees.”). On remand, the trial court is directed to advise Appellant of his right to a hearing to contest the indigent legal assistance fee. Fla. R.Crim. P. 3.720(d); see Vaughn, 65 So.3d at 138 (citing Bryant v. State, 661 So.2d 1315, 1316-17 (Fla. 1st DCA 1995)).

Finally, Appellant’s scoresheet incorrectly reflects that the sentencing judge was Kathleen Dekker; the primary offense date was 6/10/1952; the statute for tampering with physical evidence is section 918.361, Florida Statutes; and the total sentence imposed was thirty years. Further, it fails to indicate the date of sentencing. The scoresheet should be corrected to reflect that the sentencing judge was Charles W. Dodson; the primary offense date was June 10, 2006; the statute for tampering with physical evidence is section 918.13, Florida Statutes; the maximum sentence allowable and total sentence imposed was twenty years; and the date of sentencing was March 1, 2012. See Davis v. State, 95 So.3d 442 (Fla. 1st DCA 2012) (affirming appellant’s convictions and sentences; remanding to trial court for correction of scrivener’s error on scoresheet).

We affirm Appellant’s conviction and prison sentence. We reverse the Judgment for Fines, Costs, Fees, and Surcharges and remand for correction of sentencing errors as set forth above. We further direct the trial court to enter a corrected scoresheet.

AFFIRMED, in part; REVERSED, in part; and REMANDED with directions.

WETHERELL, ROWE, and MARSTILLER, JJ., concur.


author: CONNER, J.

text:
    Alan RUFF, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5274.
    District Court of Appeal of Florida, Fourth District.
    May 22, 2013.
    Rehearing Denied July 12, 2013.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Alan Ruff appeals his conviction for first-degree murder and sentence of life in prison. He raises two issues on appeal: (1) whether the trial court erred in failing to give a limiting instruction for testimony admissible only for purposes of impeachment; and (2) whether the trial court erred in denying Ruffs motion for judgment of acquittal on the grounds that the State failed to present prima facie evidence of premeditation. Concluding that neither issue has merit warranting reversal, we affirm the conviction and sentence and write only to address the first issue.

At the time of the murder, Ruffs daughter was living with him. His daughter was first interviewed by law enforcement a few days after the murder. In her first statement, his daughter said Ruff was home at the time of the murder. After law enforcement became aware of some phone conversations between Ruffs daughter and one of her co-workers that occurred the morning of the murder, the daughter was interviewed again. When confronted with the telephone conversations with the coworker, the daughter admitted Ruff was not at home around the time of the murder. A little over a year later, Ruffs daughter gave a third statement at the office of Ruffs attorney. At that time, she again stated that Ruff was not at home around the time of the murder and admitted she had lied in her first statement to law enforcement.

At trial, Ruffs daughter testified that her father was at home around the time of the murder. She explained that she had lied at the request of her mother, who was seeking custody of her younger brother.

During the trial, the State presented evidence of the details of the phone conversation between Ruffs daughter and her co-worker. The co-worker testified:

A: We were on the phone and she just mentioned that her father had just gotten home and—
Q. Okay.
A. You know, she sound funny, she sound, and she told me that something was wrong and he had scratches on him and he had blood on his shirt and I asked her if everything was okay and she said, yeah, yeah, I’ll call you back.

Ruffs counsel objected and asked for a limiting instruction on grounds the coworker’s testimony was hearsay admissible only to impeach the daughter and not as substantive evidence of Ruffs guilt. The trial court ultimately held that any instruction would confuse the jury and denied the request for an instruction. Ruff argues the trial court reversibly erred in refusing to give a limiting instruction.

The standard of review is abuse of discretion, although such discretion is limited by the rules of evidence. Akien v. State, 44 So.3d 152, 154 (Fla. 4th DCA 2010).

We agree that absent any other basis for admission of the impeachment testimony, the trial court erred in failing to give the requested instruction. Kingery v. State, 523 So.2d 1199, 1204 (Fla. 1st DCA 1988) (denying the defendant’s request for a limiting instruction was reversible error where witness’s deposition testimony was admissible for impeachment purposes, but not as substantive evidence).

However, the State argues that the trial court should be affirmed on tipsy coachman grounds because the daughter’s statement to her co-worker was admissible as a spontaneous statement. • Section 90.803(1) provides a hearsay exception for “a spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.” § 90.803(1), Fla. Stat. (2010). “A spontaneous statement must be made at the time of, or immediately following, the declarant’s observation of the event or condition described ... the statement must be made without the declarant first engaging in reflective thought.” Ibar v. State, 938 So.2d 451, 467 (Fla.2006) (internal quotations omitted). The co-worker’s testimony supports the conclusion that Ruffs daughter was describing to the coworker her perceptions of her father as she was seeing him arrive home. Because the spontaneous statement was not inadmissible hearsay, it could be used for substantive purposes and a limiting instruction was not required.

Affirmed.

STEVENSON and DAMOORGIAN, JJ., concur.

      . The tipsy coachman doctrine "permits an appellate court to affirm a trial court's decision on a ground other than that raised, below, and argued on appeal, where there is support for the alternative theory or principle of law in the record before the trial court.” Advanced Chiropractic & Rehab. Ctr. v. United Auto. Ins. Co., 103 So.3d 866, 869 (Fla. 4th DCA 2012) (internal quotations omitted); Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999).


text:
    Matthew GOLDTRAP, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1932.
    District Court of Appeal of Florida, First District.
    May 23, 2013.
    Rehearing Denied July 8, 2013.

      G. Ray Cauthon, III, Gainesville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his conviction for lewd and lascivious molestation on a child between the ages of 12 and 16. We find no error by the trial court in prohibiting Appellant from introducing evidence that the -victim previously had made a false allegation of sexual abuse against another individual. However, we find the trial court erred by allowing the State to introduce evidence of the victim’s prior consistent statements made in text messages she sent to two individuals after her alleged motive to fabricate arose. Because the evidence did not qualify under the hearsay exception for introducing prior consistent statements, and because- the court’s error cannot be considered harmless, we reverse Appellant’s conviction and remand for a new trial.

The indictment filed against Appellant alleged that he molested the victim between February 1, 2010, and April 27, 2011. At trial, the victim testified to three incidents in which Appellant, her uncle, molested her. The first occurred during a weekend stay at the home of Appellant and his family; the other incidents occurred after she had moved in with them. The victim testified that after each incident, she “texted” her boyfriend to tell him what happened. She also confided in a church counselor by text message following the third incident. The counselor, in turn, reported the information to the Department of Children and Families, who sent an investigator the following day to interview the victim.

Appellant testified that the victim began living with him and his family in early March 2011. He testified he was a strict disciplinarian, often raised his voice to his children and to the victim, and was quick to lose his temper. He said his relationship with the victim started to deteriorate “just two weeks or so prior to my arrest,” with the victim frequently arguing with him. Appellant described an “ugly” argument between them two or three days before the arrest. The argument concerned a boy whom the victim had invited to the house without permission, he believed, and when he demanded to know more about the boy, an argument ensued. Appellant testified he told the victim he would no longer let her live in his home if she did not obey his rules. Defense counsel focused on this incident when cross-examining the victim, in addition to questioning her about inconsistencies in her testimony.

Asserting a need to rebut an implied charge that the victim fabricated the molestation claims, the State sought to introduce evidence of the victim’s prior consistent statements — the text messages to her boyfriend and to the church counselor. The trial court granted the State’s request, finding the evidence admissible to refute the defense’s claim of “recent fabrication predicated upon a diminishing relationship with the uncle.” Thereafter, the boyfriend testified that the victim texted him after each incident, telling him about the molestation. The church counselor testified she received a message from the victim in late April 2011 saying Appellant was making her “uncomfortable,” and that the victim confirmed, when asked, that Appellant had touched her “inappropriately.”

Evidentiary rulings are reviewed for abuse of discretion. See generally Johnson v. State, 969 So.2d 938, 949 (Fla.2007). But such rulings must comply with the Evidence Code and associated case law. See id.; Ortuno v. State, 54 So.3d 1086, 1088 (Fla. 1st DCA 2011).

Prior consistent statements, which normally would be inadmissible hearsay, are admissible if “offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication^]” § 90.801(2)(b), Fla. Stat. (2011). To be admissible under section 90.801(2)(b), “the [consistent] statement must have been made ‘prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.’” Ortuno, 54 So.Sd at 1088-89 (quoting Preston v. State, 470 So.2d 836, 837 (Fla. 2d DCA 1985)). “A prior consistent statement is not admissible under section 90.801(2)(b) ‘merely because the opposing lawyer has attacked the credibility of the witness or challenged the truthfulness of the statement given by the witness at trial.’” J.B.J. v. State, 17 So.3d 312, 318 (Fla. 1st DCA 2009) (quoting Monday v. State, 792 So.2d 1278, 1280 (Fla. 1st DCA 2001)). “In general, prior consistent statements of a witness are inadmissible to corroborate or bolster the witness’ trial testimony.” Jenkins v. State, 547 So.2d 1017, 1020 (Fla. 1st DCA 1989). Indeed, “[a] witness’ credibility is always an issue at trial, and a general attack on that credibility does not satisfy the hearsay exception rule.” Id. at 1021.

Here, Appellant explicitly raised a charge of fabrication by the victim, offering his strict parenting style, the broken relationship between himself and the victim, and their “ugly” argument as motives for falsely accusing him of molestation. Thus, the circumstances supporting a motive to fabricate arose as early as March 2011, when the victim moved in with Appellant and his family. Accordingly, only the consistent statement she made before that time-the first text message to her boyfriend during a weekend stay with Appellant-was admissible under section 90.801(2)(b). See Ortuno, 54 So.3d at 1088-89. Neither the text messages to the boyfriend after the victim moved in with Appellant, nor the April 2011 text message to the church counselor, should have been admitted as prior consistent statements; they served only to bolster the victim’s credibility.

Because the victim’s testimony was the State’s only evidence against Appellant, the case turned on her credibility. As such, we cannot deem the trial court’s error in admitting the prior consistent statements harmless. Accordingly, we reverse Appellant’s conviction and remand for a new trial.

REVERSED and REMANDED.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.

      . The victim also testified that at some time prior to the alleged molestations, Appellant had entered her bedroom and leaned over her as she lay in bed, but did not touch her.


text:
    Willie JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3925.
    District Court of Appeal of Florida, Fourth District.
    May 29, 2013.
    Willie Johnson, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Richardson, 915 So.2d 86 (Fla.2005); Johnson v. State, 790 So.2d 1163 (Fla. 2d DCA 2001) (affirming denial of rule 3.800(a) motion to correct illegal sentence and noting that prior felony convictions in three different case numbers sentenced on the same day constituted one prior felony for purposes of meeting the sequential requirement of section 775.084(5), Florida Statutes).

STEVENSON, GROSS and LEVINE, JJ., concur.


author: MAY, C.J.

text:
    Edwin DeJESUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-332.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Antony P. Ryan, Regional Counsel, and Genevieve Hall, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his judgment and two concurrent life sentences for first degree murder and attempted robbery, both with a firearm. He argues the trial court erred in denying his motions for mistrial, and in allowing the victim’s two sons to testify to the identity of their father. We find no error and affirm.

Two brothers were home watching television when they heard gunshots. They immediately went outside and found their father lying on the ground. Their father died as a result of a gunshot wound. The State charged the defendant with first degree murder and attempted robbery, both with a firearm. The defendant was later convicted of these crimes.

On appeal, the defendant argues the trial court abused its discretion in denying his motions for mistrial when the State, in rebuttal argument, commented on: (1) testimony regarding the character of the victim’s neighborhood; and (2) why a witness would accept a plea agreement. The State responds that the defense failed to preserve the issue as to both comments, and that the challenged comments were made in response to the defense’s closing argument.

Because the defense made a general objection to the argument concerning the neighborhood, it failed to preserve the issue for appellate review. See Jones v. State, 760 So.2d 1057, 1058 (Fla. 4th DCA 2000) (finding a generic “improper argument” objection during closing lacks the requisite specificity to preserve the matter for appeal). The defendant’s challenge to the plea agreement comment is also unpre-served because he raises a different ground for reversal on appeal than what he argued during trial. See Chamberlain v. State, 881 So.2d 1087, 1100 (Fla.2004). Even assuming proper preservation, we find no merit in the argument.

“Attorneys have wide latitude in arguing to a jury.” Jackson v. State, 89 So.3d 1011, 1018 (Fla. 4th DCA 2012). However, they “must ‘confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.’ ” Hosang v. State, 984 So.2d 671, 672 (Fla. 4th DCA 2008) (quoting Knoizen v. Bruegger, 713 So.2d 1071, 1072 (Fla. 5th DCA 1998)). “When evaluating a prosecutor’s comment, the comment ‘should be examined in the context in which it was made.’ ” Jackson, 89 So.3d at 1018 (quoting Lubin v. State, 963 So.2d 822, 824 (Fla. 4th DCA 2007)).

As our supreme court has explained,
In order to require a new trial based on improper prosecutorial comments, the prosecutor’s comments must “either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.”

Walls v. State, 926 So.2d 1156, 1167 (Fla.2006) (quoting Spencer v. State, 645 So.2d 377, 383 (Fla.1994)).

Here, the prosecutor’s arguments were not so inflammatory so as to deprive the defendant of a fair trial. Further, the prosecutor’s rebuttal argument was a direct response to the defense’s closing argument and a logical inference from the evidence. Because the State’s arguments were invited by the defense and were reasonable inferences from the evidence, the trial court did not abuse its discretion in denying the defendant’s motions for mistrial.

The defendant also argues the trial court committed fundamental error by allowing both of the victim’s sons to identify their father. We disagree. First, the defense did not object when the State had the first son identify the victim. Then, when the defense objected to the second son’s identification, it only argued that the testimony was unnecessary and that it would be unfairly prejudicial if the son began to cry on the stand.

“It is a well and long established rule in Florida that a member of the deceased victim’s family may not testify for the purpose of identifying the victim where non-related witnesses are available to make such identification.” Scott v. State, 256 So.2d 19, 19-20 (Fla. 4th DCA 1971). Here, it is not clear whether there were other witnesses available to identify the victim.

Even if the trial court committed error in allowing the sons to testify, we would find it harmless. See Thompson v. State, 565 So.2d 1311, 1314 (Fla.1990). There, our supreme court held that the trial court did not commit reversible error by allowing a father to identify a picture of his daughter, the victim, while on the witness stand. Id. Even though the State made no effort to find other witnesses for identification purposes, any error was harmless because the father “displayed no emotional outburst or other unduly prejudicial behavior to improperly influence the jury.” Id.

The same is true in this case. According to the record, neither son became emotional while on the stand. And their testimony was relevant to other aspects of the crime, as they witnessed the aftermath of the shooting.

Affirmed.

TAYLOR and GERBER, JJ., concur.


text:
    Jeffrey E. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2638.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Jeffery E. Carter was charged with and convicted of two counts of aggravated battery. The State alleged he attacked two individuals using a knife. Carter appeals his conviction contending the trial court erred by (1) allowing a deputy to testily about two statements obtained from other witnesses; (2) giving the standard justifiable use of deadly force instruction at the State’s request over his objection; and (3) allowing improper rebuttal testimony. We affirm the trial court on giving the justifiable use of deadly force instruction, but reverse for a new trial after concluding the admission of improper hearsay testimony by the deputy and improper rebuttal evidence was harmful.

Factual Background

Carter, the two victims (J.W. and D.B.), and the eyewitnesses were all homeless persons living in tents in the woods. Both victims and the eyewitnesses corroborated each other’s testimony, describing Carter as an aggressive person. More than one testified that on the Thursday before the incident, Carter came to J.W.’s campsite after work looking for alcohol to drink. Everyone at the campsite had been drinking. When his requests for alcohol were declined and he was asked to leave, Carter refused and got into a scuffle with J.W. During the scuffle, J.W.’s earring was ripped out.

According to some of the witnesses, the next night, J.W. and D.B. were at S.W.’s campsite with S.W. and his girlfriend. The group had been drinking most of the day. Carter came to the campsite and an argument between Carter and J.W. ensued. There was another scuffle between the two during which Carter elbowed J.W. in the ribs, knocking him down. After knocking J.W. to the ground, Carter looked at D.B. and asked him if he had a problem. D.B. said he didn’t have a problem; then Carter pointed at D.B. and said, “I’ll be back to get you.” Carter left, and the group continued drinking. Sometime between midnight and 2:00 a.m., while the group was drinking and socializing around S.W.’s campsite, Carter walked up and punched J.W. Almost immediately after being punched, J.W. realized that Carter had a weapon in his hand. J.W. testified that just after he was punched, Carter hit D.B., the other victim, in the face. J.W. explained: “Blood spurted out, [D.B.] fell to the ground, [Carter] ran and I took my shirt off and applied it as a tourniquet to his face. Every time his heart would beat blood would pump out his face.”

D.B. testified that he saw Carter approaching with a knife and hit J.W. He then clarified that Carter “kind of bull rushed right around the side of the palm tree, hit [J.W.] in the chest, [and] slit him a little bit.” D.B. explained that without saying anything Carter immediately turned from J.W. to attack him. Carter then ran away.

Carter offered a self-defense version of the events. He explained that on the night of the attack all in the group were drinking excessively; he agreed that he got into a fight, but denied being armed with a knife. He testified that he, J.W., and S.W. (an eyewitness) made a bet on a football game on Thursday for five dollars each. Carter testified that when he went to collect his winnings, everybody started screaming and looking at him like he was crazy. He decided it was best to just leave and go back to his tent. Later that night he again tried to get the money he had won, but by this time at night J.W. was “wild.” Carter testified that J.W. was standing up and getting violent, so he became afraid and punched him with his bare hand. He acknowledged that he and J.W. had gotten in several “tussles” over the two years that they had known each other. Carter denied having a knife, but admitted that he punched J.W. in the chest. He further explained that he had noticed D.B. was in the motion of standing up to attack him, so he told D.B. to go ahead and stand up. He admitted that he punched D.B. to avoid being attacked by him, but again denied that he had a knife.

Testimony was presented that after the attack, deputies responded to the scene and took statements from the two victims and several eyewitnesses.

Improper Hearsay Evidence by a Deputy

During the testimony of one of the deputies responding to the scene, the following occurred:

[STATE:] Have you made any inquiry at this time as to who a potential suspect was?
[DEPUTY:] I asked [D.B.], you know, who did this to you, and he indicated a black—
[DEFENSE:] Objection, hearsay, Your Honor.
[STATE:] Your Honor, may we approach?
[COURT:] No, overruled. He’s here.
[DEPUTY:] He indicated a black man named Jeffrey Carter.
[DEPUTY:] I talked to [S.W. (an eyewitness) ]. As fire and rescue was taking [D.B.] away, [S.W.] stated that—
[DEFENSE:] I’m gonna object to hearsay, Your Honor.
[COURT:] [S.W.] was here, I’ll allow it.
[STATE:] You can go ahead, sir.
[DEPUTY:] [S.W.] indicated to me that Jeffrey Carter came into the camp, punched [J.W.] in the chest. He then looked at [D.B.], told him to stand up, indicated something to the effect of I’m here to kill and then slashed [D.B.] across the face and fled south into the wooded area.

(emphasis added.) Carter argues the court improperly denied his hearsay objections.

Whether an objection is erroneously overruled is reviewed by an abuse of discretion standard. Mitsubishi Motors Corp. v. Laliberte, 52 So.3d 31, 37 (Fla. 4th DCA 2010). However, the rules of evidence limit the trial court’s discretion. Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

“Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2010) (internal quotation marks omitted). Hearsay is inadmissible except as provided by statute. § 90.802, Fla. Stat. (2010). In determining whether a prior out-of-court statement is hearsay, it does not matter that a person has testified as a witness during the trial. Carter v. State, 951 So.2d 939, 944 (Fla. 4th DCA 2007) (“Hearsay includes an out-of-court statement of a witness who testifies at trial, as well as an out-of-court statement by someone who is not a witness on the stand testifying to the statement.”). If the State intended to use the prior statements of D.B. and S.W. to prove something other than the truth of what was asserted, the State did not make that known. The trial court’s comment to the effect that the witness had testified at trial did not make the prior statements non-hearsay, and the admission of the pri- or statements was error.

Citing Robertson v. State, 829 So.2d 901, 906 (Fla.2002), the State asks us to affirm the admission of the prior statements as the correct result even if the trial court asserted the wrong reasons because the prior statements can be admitted as prior consistent statements.

“Section 90.801(2)(b), [Florida Statutes (2010) ] provides that a statement is not hearsay if the declarant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with his testimony and offered to rebut a charge of improper influence, motive, or recent fabrication.” Neal v. State, 792 So.2d 613, 614 (Fla. 4th DCA 2001) (citation omitted). However, “[t]he exception [allowing a prior consistent statement as non-hearsay] involving impeachment by bias or corruption or improper motive is only applicable where the prior consistent statement was made ‘prior to the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify.”’ Jackson v. State, 498 So.2d 906, 910 (Fla.1986) (quoting McElveen v. State, 415 So.2d 746, 748 (Fla. 1st DCA 1982)); Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974). Stated another way, a prior consistent statement is inadmissible under section 90.801(2)(b) if it is made after the witness’ motive to lie arose. Id.

At trial and on appeal, Carter argued that the motive for the victims and eyewitnesses to fabricate a story against him arose prior to the incident in which the victims were injured. Carter, as he contended in opening statements, testified that the victims and eyewitnesses did not like him prior to the incident, and the victims and eyewitnesses were part of a clique within the camp. There was no evidence presented about an incident occurring between the date D.B and S.W. made statements to the deputy and their testimony at trial which would support a claim of recent fabrication. Because the alleged motive to fabricate existed prior to the statements by witnesses to the investigating officer, the prior consistent statements were inadmissible.

Having reviewed the record, we determine the erroneous admission of prior consistent statements was not harmless error. This is particularly true because the deputy stated S.W. said something to the effect that Carter appeared with an intent to kill, which none of the other witnesses testified about. Also, we have specifically warned that a police officer testifying about prior consistent statements by a witness is not only hearsay, but also improper bolstering. Barnes v. State, 576 So.2d 439 (Fla. 4th DCA 1991). As we said in Barnes, “[w]hen a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave.” Id. at 440. Because the error was not harmless, reversal for a new trial is required.

Justifiable Use of Deadly Force Instruction

Carter requested a jury instruction on the justifiable use of non-deadly force, but objected to the State’s request for an in-struetion on the justifiable use of deadly force. Carter testified that he was not armed with a knife. He cites Williams v. State, 65 So.3d 1209 (Fla. 2d DCA 2011), for the proposition that the trial court should properly deny an instruction on the justifiable use of deadly force where the defendant denied using a knife during a fight and where the victim testified the defendant cut him with a knife. He also argues the State requested an instruction on the justifiable use of deadly force to create a straw man closing argument which was prohibited in Brown v. State, 524 So.2d 730 (Fla. 4th DCA 1988). Because the case is remanded for a new trial, we address Carter’s argument.

Williams is inapplicable to this case because it is factually distinguishable. In Williams, the defendant asked for instructions on both the justifiable use of deadly force and non-deadly force. The Second District held the trial court properly denied giving an instruction on the justifiable use of deadly force because the defendant testified he did not use a knife in the scuffle with the victim. The logic of the holding is obvious: the defendant cannot testify that he did not use deadly force and then inconsistently ask for an instruction in support of that defense.

In this case, it was the State, rather than the defense, that asked for an instruction on the justifiable use of deadly force. The State asked for the instruction to avoid the jury being confused over an issue raised by the defense: the justifiable use of non-deadly force. This is not a case in which the party asking for an instruction was taking inconsistent positions. Instead, the State was trying to demonstrate the evidence did not support a defense of justifiable use of either deadly or non-deadly force.

This is also not a case in which the holding in Brown applies. In Brovm, the State improperly raised a defense of alibi where the defendant offered neither evidence nor argument raising the defense. Brown, 524 at 731. In other words, the State improperly raised an issue of a “straw man defense” in order to easily knock it down. Moreover, in the process of raising the defense by innuendo, the State managed to impermissibly leave the impression that the defense had the burden to prove a defense it never raised. There is nothing factually similar to Brown in this case. It is Carter who raised the defense of self-defense. There are two species of self-defense: justifiable use of deadly force and justifiable use of non-deadly force. Where conflicting evidence supports both species, it is for the jury to decide if either species exists.

“If the type of force used is clearly deadly or non-deadly as a matter of law, only the applicable instruction should be given. Otherwise the question of whether the force used by a defendant was ‘deadly’ or ‘non-deadly’ should be submitted to the jury.” Williams v. State, 727 So.2d 1062, 1063 (Fla. 4th DCA 1999) (citations omitted). “[0]nly the discharge of a firearm has been held to be deadly force as a matter of law.” Id. (citation omitted).

This case is factually more similar to the situation we addressed in Marshall v. State, 747 So.2d 1045 (Fla. 4th DCA 2000). There, the defendant was charged with aggravated assault with a firearm. Claiming self-defense at trial, the defendant withdrew his request for an instruction on the justifiable use of deadly force after the trial court granted the State’s request to give an instruction on the justifiable use of non-deadly force. The trial court refused the defense request to withdraw the instruction on justifiable use of deadly force since there was evidence of use of a firearm. After the defendant was convicted of a lesser misdemeanor charge, he appealed contending it was error to give an instruction on the justifiable use of deadly force over his objection. We held:

Because it is for the jury to determine whether the force involved was deadly or non-deadly, we affirm the trial court’s determination to give both charges. See Garramone v. State, 636 So.2d 869, 871 (Fla. 4th DCA 1994); Cooper v. State, 573 So.2d 74, 76 (Fla. 4th DCA 1990). Moreover, “[t]he state, like the defendant, is entitled to all applicable jury instructions” supporting its theory of the case. Diggs v. State, 489 So.2d 1228, 1228 (Fla. 5th DCA 1986).

Id. at 1045-46.

We find no error in the trial court instructing the jury on the justifiable use of deadly force.

Improper Rebuttal Evidence

During cross-examination, Carter stated that the testimony of the State’s witnesses at trial was inconsistent with written statements the witnesses gave to law enforcement shortly after the incident. The thrust of his comments was that the witnesses had gotten together and talked sometime after the incident and that is why their testimony was consistent at trial. The State then asked Carter if he recalled the testimony of one of the deputies that he took recorded oral statements from the witnesses at the scene. Carter stated he doubted the statements were recorded because he never saw a transcript of those statements. The State acknowledged the oral recorded statements had not been transcribed, but then asked Carter “you would agree that if they all gave statements that night that were consistent, they did not have time to create that because the police were called immediately?” Carter responded, “Oh, I would agree with you, if you say it in that matter, ma’am, I have to agree with you that way because it makes sense.”

Over Carter’s objection, the State called the deputy who took the recorded oral statements as a rebuttal witness. The deputy confirmed he took recorded statements from five witnesses, including J.W. and S.W. The State then asked, ‘Were their versions of what happened consistent with each other?” The deputy responded, “For the most part. And what I did was I separated everybody so as soon as I would interview — it would be together but I’d take the person and move them over, interview them and then I’d take the next person and remove them and move them over and by myself with them, so it wasn’t like they were together.”

We agree with Carter that the rebuttal testimony was improper for two reasons. First, Carter never affirmatively denied that recorded oral statements were taken that night. He merely doubted the statements were recorded because he never saw a transcript of them. Second, the deputy’s testimony constituted improper bolstering. If the State was seeking to rebut Carter’s charge that the written statements by the witnesses differed from their testimony before the jury, it is the written statements which should have been introduced, not the officer’s opinion that the witnesses gave consistent oral statements on the night of the incident. Moreover, if the recorded oral statements on the night of the incident were the crux of the rebuttal, the recorded oral statements should have been introduced, not a witness’s opinion about their consistency.

The rebuttal testimony was improper and harmful as improper bolstering, requiring reversal.

Conclusion

We affirm the trial court on giving an instruction on justifiable use of deadly force, but reverse the trial court for allowing improper and harmful hearsay testimony regarding witnesses’ statements made at the scene and improper, harmful rebuttal testimony. A new trial is required.

Reversed and remanded for a new trial.

GROSS and CIKLIN, JJ., concur.

      . In support of its holding regarding the deadly force instruction, the Second District cited earlier cases holding that the defendant cannot properly ask for a justifiable use of deadly force instruction after denying using a knife where the State's evidence shows the victim was cut with a knife by the defendant.

      . Carter asked for the inclusion of the portion of the justifiable use of non-deadly force dealing with duty to retreat. The trial court instructed the jury, "If the defendant was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony.” (emphasis added.)

      . Apparently the firearm was not discharged and deadly force did not apply as a matter of law. Williams v. State, 727 So.2d 1062, 1063 (Fla. 4th DCA 1999).