author: MAY, J.

text:
    Michelle SCHELLER, Appellant, v. Salvatore SOLLECITO, Appellee.
    No. 4D13-4055.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2014.
    Michael A. Hymowitz of Braverman & Hymowitz, Fort Lauderdale, for appellant.
    No brief filed on behalf of appellee.
   MAY, J.

A mother seeks review of an order by a successor judge, which effectively vacated a final order in a paternity action. She argues the successor judge erred in sua sponte ordering a new trial in the paternity action unless the parties could reach an agreement on the wording of the final order. We agree and reverse.

A father petitioned the court to determine paternity. The original trial court heard the evidence and orally pronounced its rulings at a November 19, 2012 hearing. The trial court then entered a final written order, incorporating its oral rulings by reference and attaching the transcript.

The order required the parties to attend reunification counseling. The mother was to submit a list of three therapists covered by her health insurance. The father was to select a therapist from that list.

The father chose a particular therapist, but for some unknown reason, the therapist was no longer available. The father asked the mother if she would see another therapist. The mother did not respond.

The father then moved for sanctions and to compel appointment of the alternative therapist as the reunification counselor. The mother responded by moving for contempt against the father for contacting the children in violation of the final order.

Due to the retirement of the original trial judge, a successor judge heard the matter on September 30, 2013. That hearing resulted in the following order:

The Court has reviewed the file and the hearing from the final order transcript was not reduced to a written Final Judgment with findings, [sic] Therefore, unless the parties can agree on the wording of the Final Judgment, the hearing will be de novo.

The mother appealed the order. The notice of appeal explained that the successor judge sua sponte vacated the final order unless the parties could agree on the wording for the final order.

Under Rule 1.530(d) of the Florida Rules of Civil Procedure, a trial court may, on its own initiative, “order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party,” but that authority exists only within 15 days following final judgment. Fla. R. Civ. P. 1.530(d) (incorporated by reference in Fla. Fam. L. R. P. 12.530). Sua sponte relief from judgment under Rule 1.540 is also limited. Fla. R. Civ. P. 1.540 (incorporated by reference in Fla. Fam. L. R. P. 12.540).

A trial court may, on its own initiative, correct clerical errors at anytime pursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which include errors that affect the substance of a judgment, must be corrected within ten days after entry of the judgment pursuant to Florida Rule of Civil Procedure 1.530, or by appellate review.

Corvette Country, Inc. v. Leonardo, 997 So.2d 1272, 1273 (Fla. 4th DCA 2009) (emphasis added) (citations omitted).

Here, the final order was entered on December 27, 2012. The successor judge entered an order sua sponte granting rehearing on September 30, 2013. This ruling exceeded the 15-day limit under Rule 1.530 and the 10-day limit under Rule 1.540. The trial court lacked jurisdiction to enter the order on appeal. See Kirby v. Speight, 217 So.2d 871 (Fla. 1st DCA 1969).

We therefore reverse and remand with instructions to enforce the final order as written.

Reversed and Remanded.

CIKLIN and LEVINE, JJ., concur.

      . While the successor judge indicated an inability to determine the terms of the final order, we have reviewed the transcript of the paternity hearing and find the terms sufficiently detailed. Because the final order incorporated the oral findings, and the transcript was attached, not only was the court's attempt to vacate the final judgment untimely and without jurisdiction, there was no reason to vacate the final judgment.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Akil EDWARDS, Appellee.
    No. 3D13-2055.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.

      Pamela Jo Bondi, Attorney General, and Nikole Hiciano, for appellee.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Before WELLS, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

The State appeals an order granting a motion in limine by the defendant/appellee, Mr. Edwards, precluding the State from introducing Mr. Edwards’ confession at trial. The legal basis for the pretrial motion and order was an alleged insufficiency of evidence of corpus delicti and this Court’s opinion in Ruiz v. State, 388 So.2d 610 (Fla. 3d DCA 1980). We conclude that Ruiz — a case involving an application of the corpus delicti rule after trial and a jury’s guilty verdict — was not controlling on the pretrial record presented here, and we reverse the order below.

Mr. Edwards was charged with being an accessory after the fact, pursuant to section 777.03(c), Florida Statutes (2012), as the getaway driver for co-defendant Leon Sheldon following the co-defendant’s commission of a strong arm robbery. Mr. Edwards gave a confession, but argued that the State had no other evidence to support the charge.

The State proffered evidence that Mr. Edwards’ girlfriend loaned him her rental car — the automobile identified by the victim by make and tag number, and as the vehicle which transported the co-defendant to and away from the strong arm robbery — the day of the crime, before the strong arm robbery occurred. The State also offered the victim’s testimony that after knocking him to the ground and taking his property, the co-defendant jumped into the car and yelled “go, go!”

The State showed substantial evidence that the injury or harm suffered by the victim occurred, and that it was occasioned by criminal conduct of the co-defendant and his getaway driver. Such evidence, which may be circumstantial evidence, is a sufficient predicate for the admission of the confession into evidence. State v. Allen, 335 So.2d 823 (Fla.1976); B.E. v. State, 14 So.3d 1145 (Fla. 3d DCA 2009).

Reversed.


text:
    P.L.A. EMERALD CORP., et al., Appellants, v. Benjamin M. ROSALES-KIVILEVITZ, et al., Appellees.
    No. 3D13-1835.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.
    Roger Cabrera (Miramar), for appellants.
    Brian Barakat, Miami; Isaac & Salgado Grondin and Jorge Isaac, for appellees.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   PER CURIAM.

Affirmed. See America Online, Inc. v. Booker, 781 So.2d 423 (Fla. 3d DCA 2001).


author: EMAS, J.

text:
    Jason Robert KONOSKI, Appellant, v. Dariush SHEKARKHAR, etc., Appellee.
    No. 3D13-2027.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.
    Roberto D. Stanziale (Fort Lauderdale), for appellant.
    Silvia Perez, for appellee.
    Before LAGOA, SALTER and EMAS, JJ.
   EMAS, J.

Jason Konoski appeals from the trial court’s entry of a final judgment of injunction for protection against domestic violence. He contends that 1) the final judgment is not supported by competent substantial evidence, and 2) the trial court erred in excluding testimony Appellant attempted to elicit from Appellee during cross-examination.

Our review of the record reveals competent substantial evidence to support the trial court’s entry of the final judgment of injunction. As to the evidentiary issue, we hold that Appellant failed to properly preserve the issue for appeal. See Frances v. State, 970 So.2d 806 (Fla.2007); Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So.3d 867 (Fla. 3d DCA 2013); A. McD. v. State, 422 So.2d 336 (Fla. 3d DCA 1982).

Finally, and although having no effect on our ultimate determination, we note with substantial concern the actions of Appel-lee’s appellate counsel in filing an appendix containing documents outside the record which were never presented to, or considered by, the trial court. In fact, the documents contained in the appendix were generated, and pertain to events occurring, after the filing of the notice of appeal in this case. Appellee never sought leave before filing these extra-record documents, and it appears there would have been be no proper basis for granting leave had it been sought. It is axiomatic that appellate review must be limited to the record made before the trial court and it is “entirely inappropriate and subjects the movant to possible sanctions to inject matters in the appellate proceedings which were not before the trial court.” Rosenberg v. Rosenberg, 511 So.2d 593, 595 n. 3 (Fla. 3d DCA 1987). As our sister court has noted:

When a party includes in an appendix material or matters outside the record, or refers to such material or matters in its brief, it is proper for the court to strike the same. That an appellate court may not consider matters outside the record is so elemental that there is no excuse for any attorney to attempt to bring such matters before the court.

Altchiler v. State, 442 So.2d 349, 350 (Fla. 1st DCA 1983) (internal citations omitted).

We strike Appellee’s appendix to the answer brief and admonish counsel for her conduct in filing it.

Affirmed.


text:
    Francisco Joel SOTOLONGO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1776.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.
    Francisco Joel Sotolongo, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Jones v. State, 922 So.2d 1088 (Fla. 4th DCA 2006) (holding that the filing of an unsuccessful petition for belated appeal does not toll finality of the judgment and sentence or extend the two-year time limit for filing a motion for postcon-viction relief under Florida Rule of Criminal Procedure 3.850).


text:
    BANK OF AMERICA, N.A., Appellant, v. Daniel Scott TACCONE, Appellee.
    No. 3D14-933.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.

      Kahane & Associates and H. Michael Muñiz (Plantation), for appellant.
    Dennis R. Haber, Miami, for appellee.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Based upon Appellee’s confession of error, and our own review of the record, we conclude that the trial court erred in denying Appellant’s motion seeking to vacate the trial court’s earlier order of dismissal. We reverse and remand the March 25, 2014 order with directions to vacate the dismissal order entered on January 10, 2014.


author: LAGOA, J.

text:
    Anthony P. LEDEA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-376.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.
    Anthony P. Ledea, in proper person.
    Pamela Jo Bondi, Attorney General, Jill, D. Kramer, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and LOGUE, JJ.
   LAGOA, J.

Anthony P. Ledea appeals an order denying his Motion to Mitigate, Modify or Reduce Sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(c). Such an order, however, is not appealable. See Smith v. State, 4 So.3d 1254 (Fla. 3d DCA 2009); Lusskin v. State, 717 So.2d 1076 (Fla. 4th DCA 1998). Accordingly, the appeal is dismissed.


author: SHEPHERD, C.J.

text:
    In re DOWNTOWN REPORTING, LLC., et al.
    No. 3D13-0757.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.

      Scott W. Sakin, for Michael Frost, Charity Riviera-Garcia and Downtown Reporting, LLC.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   ON SHOW CAUSE ORDER

SHEPHERD, C.J.

On June 20, 2014, this Court ordered Downtown Reporting, LLC, Michael Frost, the company’s Owner-Manager, and Charity Riviera-Garcia, Transcription Department Manager in the company’s Miami-Dade County office, to show cause why they should not be held in contempt for failure to comply with this Court’s orders, and for failure to cause the timely filing of transcripts in the following fourteen criminal appeals pending in this Court:

1. Mitchell vs. State, 3D13-757

2. Debose vs. State, 3D13-2119

3. Samuel vs. State, 3D13-2559

4. Simpson vs. State, 3D13-2639

5. State v. Blanco, 3D13-2754

6. Aruca vs. State, 3D13-2765

7. Williams vs. State, 3D13-2832

8. Tisdale vs. State, 3D13-2934

9. Gutierrez vs. State, 3D13-3225

10. Gyden vs. State, 3D13-3226

11. Shearill-Williams vs. State, 3D13-3245

12. Briceno vs. State, 3D13-3263

13. Jenkins vs. State, 3D14-214

14. Rojas-Tellez vs. State, 3D14-370

Downtown Reporting, LLC, has offices in Miami-Dade and Broward Counties. Its business is the transcription of legal proceedings in both civil and criminal cases, ranging from depositions taken outside the courtroom to hearings and trial proceedings held in court. The company is one of several court reporting companies that have contracts with the State of Florida to serve as “official reporters” for all proceedings in the criminal division of the Eleventh Judicial Circuit comprising Miami-Dade County. Downtown Reporting is not an “official reporter” in Broward County. The order to show cause in this case concerns Downtown Reporting’s disregard of orders of this Court and lack of diligence in timely producing transcripts in cases arising out of the criminal courts of Miami-Dade County, now on appeal in this Court.

Florida Rule of Appellate Procedure 9.140(f)(1) requires the record on appeal to be served by the clerk of the lower court fifty (50) days after the filing of a Notice of Appeal in all criminal cases. In cases such as those before us, where the transcripts will require the expenditure of public funds — most criminal cases — Florida Rule of Appellate Procedure 9.140(f)(2)(A) requires the appellant — most often, but not always, the defendant below — to designate those portions of the transcript which he desires to be transcribed for use in the appeal within ten (10) days of the date of filing the Notice of Appeal. The appel-lee — the State in all but one of the fourteen cases before us — has twenty (20) days thereafter to designate additional portions of the proceedings it wishes to have included in the record. See Fla. R. App. P. 9.200(b)(1). The court reporter has thirty (30) days after service of a designation to file the transcripts with the clerk of the lower tribunal. Fla. R. App. P. 9.200(b)(2). The appellant’s initial brief is due thirty (80) days after the record is served. Fla. R. App. P. 9.140(g).

Significantly, however, the rule applicable to criminal cases further prescribes that, “the clerk [of the circuit court] shall not serve the record until all proceedings designated for transcription have been transcribed by the court reporter(s) and filed with the clerk.” See Fla. R. App. P. 9.140(f)(1). If, as a result of court reporter delay, the record is not served by the date required, the clerk of the circuit court must (and does) file in this Court and serves on the parties and court reporter a Notice of Inability to Complete the Record. Id. In fact, a diligent court reporting firm already will have filed a motion for extension of time to file the transcripts in this Court. See Fla. R. App. P. 9.200(b)(3)(stating “If the transcript(s) cannot be completed within 30 days of the service of the designation, the approved reporter ... shall request such additional time as is reasonably necessary and shall state the reasons therefor.”) As Downtown Reporting knows, this Court is generous about granting extensions of time to court reporters and counsel in criminal cases. However, there comes a time when enough is enough. For the reasons next explained, this is one of those times.

The dates the appellants filed their designations to the Downtown Reporting, LLC, in these fourteen cases range from September 30, 2013, to February 24, 2014. Excluding the designation in Mitchell v. State, Case No. 3D13-757, supra, Downtown Reporting was responsible for the production of seventy-two days of transcripts in the remaining thirteen cases. Between September 30, 2013 and December 31, 2013, Downtown Reporting produced two of the designated transcripts. During the next six months, from January I, 2014 to June 20, 2014, the date the Court issued its show cause order, Downtown Reporting produced a mere twenty additional transcripts. As of June 20, 2014, fifty transcripts remained to be produced in thirteen cases. In nine of the cases, the Court had placed Downtown Reporting under a “No Further Extensions (NFE) Order,” pursuant to which the designated transcripts were made due on dates ranging from March 5, 2014, through June 20, 2014, with clear notice no further motions for extension of time to produce the transcripts would be entertained. In three other cases in which Downtown Reporting was at least sixty days beyond this Court’s most recent extension order in each case, the public defender took the proverbial “bull by the horns” and filed its own show cause motions after Downtown Reporting failed to meet court-extended filing dates.

Nevertheless, in a stunning display of disregard for the processes and orders of this Court, Downtown Reporting, on June II, 2014, moved the Court for an extension of time to July 11, 2014, to file the transcripts in all nine cases on which it already had been given an NFE and in which the time for filing in all but four had expired. More remarkably, the motions were serially filed through the Court’s electronic portal over a period of just a few minutes. Each motion was signed and filed by the same individual, Downtown Reporting’s Miami-Dade County Transcription Department Manager, Charity Riviera-Garcia. Ms. Riviera-Garcia admitted to the Court at the hearing held on the show cause order that the July 11, 2014, date inserted in each motion had no relation to the reality of what was occurring at Downtown Reporting, and that she did not ask any of the reporters before filing the motions how much time each believed was “reasonably necessary” to complete and file the transcripts or that particular reporter’s explanation of the “reasons” for the delay. See Fla. R. App. P. 9.200(b)(3). This Court’s show cause order issued eight days after these filings.

Discussion

This Court recognizes that the docket of the criminal division of the Circuit Court of the Eleventh Judicial Circuit is the largest in the state, placing a heavy burden on all who labor in this division of the circuit court. However, the defendants in those courts also have a due process right to have their appeals heard in a timely manner. See Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir.1980) (“We are convinced that due process can be denied by any substantial retardation of the appellate process, including an excessive delay in the furnishing of a transcription of testimony necessary for completion of an appellate record.”). The obligation to assure that criminal appeals in this District are expeditiously processed ultimately falls to this Court. The Court finds, based upon the record of this case, that the conduct of Downtown Reporting in these exemplar cases is, indeed contemptuous. As counsel for Downtown Reporting concedes, this Court has the power to fine or take other remedial action against Downtown Reporting. See Freeman v. State, 621 So.2d 472 (Fla. 4th DCA 1993) (imposing a $250.00 fine on a court reporter for failure to timely file a transcript for appeal). However, the Court also recognizes the large effort Downtown Reporting had made to “right its ship” since our show cause order issued. That order included a requirement that Downtown Reporting provide the Court with a report on the status of the transcripts on June 30, 2014, one week before the show cause hearing date. As of that date, Downtown Reporting had filed seventeen of the delinquent fifty transcripts. On the morning of hearing, Downtown Reporting advised the Court it had completed the transcripts for all but one of the Court’s fourteen exemplar cases. Based upon this showing, the Court will exercise its discretion to discharge the order to show cause.

However, the court emphasizes to Downtown Reporting and all other persons or entities that may receive a “No Further Extensions” order from this Court, that the Court says what it means, and means what it says in such an order. Failure to comply with a “No Further Extensions Order” from this Court may be deemed contemptuous, absent a showing of extraordinary good cause. Henceforth, Downtown Reporting shall timely comply with orders issued by this Court. In the event Downtown Reporting is unable to comply with a “No Further Extension” order, Downtown Reporting shall file a proper motion indicating the extraordinary circumstances that warrant relief from the order.

So ordered.

      . The Court held a hearing on the Order to Show Cause issued in this matter on July 7, 2014. The Court also ordered Richard L. Polin, Assistant Attorney General, Maria E. Lauredo, Assistant Public Defender, "the appropriate, most knowledgeable from the Court Reporting Services Department of the Administrative Office of the Courts, Eleventh Judicial Circuit, and Linda Kelly Kearson, General Counsel to the Circuit Court to appear at the hearing. Ms. Kelly Kearson also appeared on behalf of the Court Reporting Services Department of the Administrative Office of the Courts.

      . Florida Rule of Appellate Procedure 9.110(e) imposes the same fifty (50) day deadline for appeals taken from final judgments and final orders in civil cases, except for appeals from final orders in dependency and termination of parental rights proceedings, which proceed on an expedited basis. See Fla. R.App. P. 9.146(g).

      . This timeline is modified in the event of a cross appeal. All but two of the cases before us are direct appeals from a judgment of conviction and sentence. Mitchell v. State, 3D13-757, is an appeal from an order denying a motion for post-conviction relief pursuant to rule 3.850 and State v. Blanco, Case No. 3D 13-2754, is an appeal from an order granting a motion to dismiss the information. Cross-appeals are rare in all of these type cases, as are supplemental designations.

      . Eight of the fourteen were filed in 2013.

      . The designation to Downtown Reporting in Mitchell v. State was filed on January 14, 2014, and listed five transcript dates. On June 27, 2014, one week after this Court issued its show cause order. Downtown Reporting filed an affidavit with the trial court stating there were no transcripts for the designated dates. It took Downtown Reporting more than 150 days to make this seemingly simple determination.

      . The transcript hearing dates for these fifty transcripts dated as far back as to May 22, 2012.

      . Downtown Reporting had already had extensions of time ranging from 123 to 133 days in each of these cases. In one case, Tisdale v. State, Case No. 3D 13-2934, Downtown Reporting received a de facto 166 day extension of time because the Court overlooked ruling on one of Downtown Reporting's many motions for extension of time in these exemplar cases.

      . Actually ten: Downtown Reporting also filed a motion for extension in Mitchell v. State, which it had yet to determine it had not reported the listed hearings. We disregard this mistake among mistakes.

      . If Downtown Reporting were to meet a July 11 deadline, its reporters would have to complete and file forty-eight additional days of transcript in thirty days — twenty-six transcripts more than it produced in the prior 270 days.

      . According to Ms. Kelly Kearson, the Court Reporting Service Department of the Administrative Office of the Courts has no procedure in place to attempt to monitor the performance of the court reporting firms it hires to service in the criminal division of the Circuit Court of the Eleventh Judicial Circuit. The management practice of the Department in this regard was perplexingly described to the court by Ms. Kelly Kearson as “reactive,” initiated in the usual case by a complaint by a trial judge of the service he or she was receiving.

      . It perhaps bears mention that the number of transcripts filed does not equate to completed records. As a practical matter, the brief of an appellant often cannot be prepared until counsel has access to all transcripts which have been designated for use in that particular appeal.


text:
    Fritz THERMIDOR, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2937.
    District Court of Appeal of Florida, Fifth District.
    Aug. 28, 2014.

      Adam L. Pollack, of the Law Office of Adam L. Pollack, P.A., Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Fritz Thermidor Jr., seeks a writ of habeas corpus directing the trial court to set reasonable bail on the charge against him of robbery with a firearm. We grant the writ.

Petitioner was arrested for robbery with a firearm, home invasion robbery with a weapon, aggravated assault with a deadly weapon without intent to kill, battery, criminal mischief, and tampering with a witness. Bond was granted on all counts except for the robbery with a firearm charge. Robbery with a firearm is a first-degree felony punishable by life imprisonment. See § 812.13(2)(a), Fla. Stat. (2013).

Decisions regarding the setting of bail and conditions of a defendant’s pretrial release are reviewed under an abuse of discretion standard. Hernandez v. Roth, 890 So.2d 1173, 1174 (Fla. 3d DCA 2004). However, unless the defendant is charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, the defendant shall be entitled to pre-trial release on reasonable conditions. See Art. I, § 14, Fla. Const.; Fla. R. Crim. P. 3.131; State v. Arthur, 390 So.2d 717, 717 (Fla.1980). The State carries the burden of establishing that guilt is evident or the presumption is great. Seymour v. State, 132 So.3d 300, 303 (Fla. 4th DCA 2014) (holding that the State is held to a degree of proof greater than that required to establish guilt beyond a reasonable doubt).

- [3] According to testimony at the bond hearing, Petitioner entered the victim’s home demanding money for cleaning supplies. The victim had apparently given Petitioner money earlier that day for cleaning supplies but it was not enough to cover the cost. Petitioner had a gun and broke the victim’s locked bedroom door. In the bedroom, Petitioner emptied out the victim’s purse and knocked the victim’s cell phone from her hand. The victim recovered her cell phone, fled the room, and locked herself in the bathroom to call 911. Based on the record, it appears that Petition did not take any of the victim’s money or other property from the home.

Defense counsel argued that because there was no theft, there was no evidence that a robbery had taken place. The trial court apparently found that Petitioner deprived the victim of the phone when he slapped it from her hand and her purse when he rummaged through it. Accordingly, the trial court found that the proof of guilt was evident and the presumption was great that Petitioner had committed robbery with a firearm, and denied bond.

To prove the crime of robbery, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) took the (money or property described in charge) from the person or custody of (person alleged).
2. Force, violence, assault, or putting in fear was used in the course of the taking.
3. The property taken was of some value.
4. The taking was with the intent to permanently or temporarily [deprive (victim) of [his][her] right to the property or any benefit from it] [appropriate the property of (victim) to [his][her] own use or to the use of any person not entitled to it].

Fla. Std. Jury Instr. (Crim.) 15.1 (Robbery).

Based on the evidence presented at the bond hearing, the State did not meet its burden of proving that guilt was evident or the presumption great that Petitioner committed robbery with a firearm. Significant questions exist as to whether there was a “taking” as required to prove robbery. Therefore, we grant the petition and direct the trial court to set a reasonable bond on the robbery with a firearm charge.

PETITION GRANTED; CAUSE REMANDED.

PALMER, EVANDER and COHEN, JJ., concur.

      . Theoretically, the jury could find that the slapping of the cell phone from the victim’s hand or the rummaging through the victim’s purse technically constituted a taking under the theory that it temporarily deprived the victim of her property. However, the State’s burden to justify the denial of bond is greater than that required to prove the case beyond a reasonable doubt.


author: BERGER, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Ebenezer BOSOMPEM, Appellee/Cross-Appellant.
    Nos. 5D12-3471, 5D13-119.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    James S. Purdy, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appel-lee/Cross-Appellant.
   BERGER, J.

The State of Florida appeals the downward departure sentence imposed against Ebenezer Bosompem for the crime of attempted second degree murder. The State argues that the departure was not supported by competent, substantial evidence. We agree and reverse.

It is undisputed that Bosompem, while intoxicated, choked and threatened to kill the victim. The events leading up to the incident involve Bosompem, a resident of the Orlando Rescue Mission, being asked to leave by the victim, Ronald Watson, the night manager at the Mission, for violating the Mission’s no-drinking policy. Upon being asked to leave, Bosompem pushed the victim into a corner, grabbed him by the throat, and attempted to punch him. Bosompem maintained a tight grip around the upper part of the victim’s throat, making it difficult for the victim to breathe. During the choking, the victim’s face was described as pale and turning blue, and his eyes were also bulging. The attack lasted about five minutes and did not stop until others intervened. In fact, it took the help of four people to free the victim from Bosompem’s grasp.

At sentencing, the State asked the trial court to sentence Bosompem to five years in prison, followed by five years of probation. His prior record included two convictions for misdemeanor trespass in a structure, a petit theft conviction, and three separate convictions for disorderly intoxication, all of which occurred between 2006 and 2011.

Bosompem sought a time served sentence, arguing that the incident was isolated, that he was intoxicated, showed remorse and was willing to accept the consequences of his actions. The State objected to a downward departure, based on the fact that the defendant’s prior record included intoxication and trespassing. The prosecutor emphasized that all of Bosompem’s priors involved him being drunk and refusing to leave a particular place, and that this time it escalated into a physical altercation.

After stating that “intoxication is not a defense to the charge but it does provide some basis for departure,” the trial court found that the offense was committed in an unsophisticated manner and sentenced Bosompem to serve thirteen months in the Department of Corrections, a departure well below the 48.9 months he scored. The trial court did not specifically find, either in writing or orally, that the crime was isolated or that Bosompem showed remorse.

In order to depart from the guidelines, a trial court must first determine if there is a valid legal ground and adequate factual support to allow for a departure. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). This determination presents a mixed question of law and fact that will be sustained if the trial court applies the correct law and its ruling is supported by competent, substantial evidence. Id. Second, the trial court must determine whether departing is the best sentencing option for the defendant. Id. at 1068. The trial court’s determination about whether it should depart is reviewed for an abuse of discretion. Id. “If the trial court does not articulate in writing the basis for departure, the sentence may be affirmed if the court orally pronounced on the record a valid basis for the departure.” State v. Subido, 925 So.2d 1052, 1057 (Fla. 5th DCA 2006).

A trial court may depart from the guidelines if “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)0'), Fla. Stat. (2011). There must be competent, substantial evidence to support all three elements. See Subido, 925 So.2d at 1057. Intoxication, however, cannot be used to justify a downward departure. § 921.0026(3), Fla. Stat. (2011) (“[T]he defendant’s substance abuse or addiction, including intoxication at the time of the offense, is not a mitigating factor under subsection (2) and does not, under any circumstances, justify a downward departure from the permissible sentencing range.”); see also Subido, 925 So.2d at 1057. Indeed, a reason for departure that is primarily based on the defendant’s impairment is legally insufficient. State v. Gilson, 800 So.2d 727, 730 (Fla. 5th DCA 2001).

Here, it is apparent from the record that the trial court inappropriately considered Bosompem’s intoxication as a factor to conclude that the crime was unsophisticated. This was error. Additionally, the trial court never made any specific oral or written findings that the crime was isolated or that Bosompem showed remorse. Without all three elements, the sentence cannot stand. See State v. Thompson, 844 So.2d 814, 815 (Fla. 5th DCA 2003) (“Any departure based on [section 921.0026(2)(j) ] must be supported by written reasons or orally pronounced findings of fact on each of the three elements.”). Accordingly, we reverse the sentence imposed on Bosompem and remand for resentencing within the guidelines.

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

TORPY, C.J., and LAWSON, J„ concur.

      . This consolidated case also involves a cross-appeal by Bosompem of his judgment and sentence. Bosompem argues that the trial court erred when it denied his motion for judgment of acquittal and when it imposed costs of investigation to the Orlando Police Department in the amount of $355. Finding no error on either issue, we affirm.


author: WALLIS, J. BERGER, J.,

text:
    Jerry CREW, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4911.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   WALLIS, J.

Jerry Crew (“Appellant”) appeals his judgment and sentences for second-degree felony murder and robbery, arguing primarily that he is entitled to a new trial because the trial court abused its discretion by denying a request for a special jury instruction on Appellant’s theory of defense to robbery. At trial, Appellant’s theory of defense was that the taking of property was an afterthought and, therefore, a theft, not robbery. On appeal, Appellant secondarily argues that the prosecutor’s improper comments in closing argument were fundamental error and, therefore, require a new trial. We agree on both issues and reverse.

Darshawn Broadwater regularly sold crack cocaine to Appellant. On the morning of April 16, 2011, Broadwater sold drugs to Appellant, who was residing in a motel. After the sale, Broadwater went to an apartment complex where he met two friends, Leroy Gadson and Donnell Ellis, to make a plan to retaliate against Lawrence Kloc, a rival drug dealer who robbed Gadson and Ellis. In the early afternoon, Broadwater called Appellant and said they planned to lure someone into the motel room and beat him up. Shortly thereafter, Broadwater returned to the motel with Gadson and Ellis, who both had firearms. Broadwater gave Appellant crack cocaine three times to convince him to let them use the motel room. Appellant agreed, called Kloc, and told him that Appellant would purchase drugs at the motel. Kloc then arrived with two cohorts, who remained in an SUV while Kloc entered the motel room. Broadwater hid behind the bed. Gadson and Ellis hid in the bathroom. Kloc entered the room, where he was immediately engaged in a fight with Gadson and Ellis. The combatting groups fired shots during the struggle. Ellis ran out of the room, and one of Kloc’s cohorts shot Ellis in the parking lot, killing him. During the struggle, Kloc dropped the drugs in the room. Broadwater testified to collecting and hiding the drugs in a car at the opposite end of the parking lot. He specifically testified that he hid the drugs in anticipation of law enforcement’s arrival and investigation when he said he was “just thinking about getting the place clean before the police get here because [he] didn’t want to go to jail.” The only mention of Appellant’s location during the attack was the State’s suggestion that Appellant hid in the shower.

Broadwater provided conflicting testimony about whether Appellant knew that the plan to attack Kloc included robbery. Initially, Broadwater testified on direct examination that he, Gadson, and Ellis concealed the true plan to beat up Kloc, which included “going through his pockets.” Broadwater indicated later on direct examination that Appellant knew before the attack occurred of a plan to take Kloc’s property. On cross-examination, Broad-water was impeached with his deposition by defense counsel, who read into evidence Broadwater’s statements that he, Gadson, and Ellis concealed their plan to rob Kloc because Appellant would not have participated. The State never provided evidence that Appellant would “share in the proceeds” of a robbery.

Appellant requested the following special jury instruction — usually referred to as an “afterthought” instruction — for second-degree felony murder and robbery:

If the force or violence is motivated by reason other than to rob Lawrence Kloc, or if the taking of property occurred as an afterthought to the use of force or violence against Lawrence Kloc, the taking does not constitute robbery, but may still constitute theft.[]

At the charge conference, the State conceded that the standard instruction did not cover the theory of defense and the special instruction was a correct statement of the law and not misleading or confusing. As such, the State and the Appellant argued only about whether evidence in the record supported the special instruction. The trial court ultimately denied Appellant’s request for the special afterthought instruction, finding that — despite the State’s concession at trial — the standard instruction covered the theory of defense.

The trial court instructed the jury on the standard instruction on robbery for the felony-murder charge, in pertinent part, as follows:

Robbery is defined as follows: One, Jerry Crew took U.S. currency and/or illegal narcotics from the person or custody of Lawrence Kloc. Two, force, violence, assault or putting in fear was used in the course of the taking. Three, the property taken was of some value. Four, the taking was with the intent to permanently or temporarily deprive Lawrence Kloc of his right to the property or any benefit from it, appropriate the property of Lawrence Kloc to his own use or to the use of any person not entitled to it.[]
In closing, the prosecutor argued: For three days, we’ve been in this courtroom and we’ve been listening to Mr. Zimmet’s [] denials and nonsense about his client’s involvement in a robbery.
You see, he just wants to limit his client’s involvement. He doesn’t mind that Jerry Crew was involved in luring somebody to a room....
What Mr. Zimmet is doing is he’s throwing his client under the bus. But he’s throwing his client under the bus for the lowest charge that the law will allow.
There’s nothing to show that Mr. Crew wasn’t there, and that Mr. Crew was not involved in all of this. Those are undeniable facts. And so if Mr. Crew was there and involved, then let’s see how little we can make him involved for. Let’s see how little we can say he actually did.
And so we’ll pick battery, a misdemean- or. We’ll pick a misdemeanor, one of the lowest offenses the law will allow.
In just a little while, Mr. Zimmet is going to get up and he’s going to talk about how his client has morals and how his client tried to tell these boys no. Ladies and Gentlemen, there isn’t a moralistic thing about Jerry Crew. Not one. He was fine with all of this. Every bit of it right up until that boy died. And then he knew he’d be responsible.
So if he wants to get up here and talk about the morals of his client and he’s okay with a beating but not okay with a robbery, please. Please. Jerry Crew doesn’t have a moralistic thing about him. Not one. Jerry Crew is nothing more than a hopeless old crack addict .... [H]e’s been buying drugs from Darshawn Broadwater since he was 16. Two and three times a day for six years.
This is a moralistic person? This is a person who has a limitation on what’s wrong and what’s right? No. Not at all.
This is a guy who’s looking for a score the only way that he can get it, every way that he can get it. And so, sure, he said no, he said no. They gave him three hits of cocaine. And they offer him an opportunity for more. And so that crackhead, that crackhead was all in.
And so when it comes time to pay for what he’s taken, what he’s used for free, take the options of paying or getting more. No, I’m not going to pay. I’ll take some more cocaine. I’ll take all this for free that you’ve given me and I’ll take a little more. Because after all, the deal was they were going to split it. They were all going to share in the proceeds. So he’s going to get free cocaine again.
You’re going to stick your neck out to a drug dealer with guns and friends with guns over a battery and you’re not going to get anything from it? Nonsense. That’s ludicrous. If this guy’s in for a penny, he’s in for a pound. Just like Mr. Broadwater says. They were going to split the proceeds.
He got high off of ten or 20, little pieces. He’s going to have ten times that in his room again. My God, imagine how high he’s going to be. His little crackhead eyes are going to glow.
Jerry Crew, are you going to do this? He agrees to make the calls. He agrees to make the calls and get this going. By the way, Jerry, did we happen to mention to you why we were doing this? Did we happen to tell you why we’re doing it? If we didn’t tell you about it before, did we tell you that this drug dealer just robbed us just a few days prior for $1,200 with the money and drugs? And you can have a share in what we take off of him. It’s like Christmas came early for a crackhead. And even better, Jerry doesn’t even have to participate in the violence. When it goes down, he gets to jump in the shower and wait for the violence to stop. I mean, think about it. You can almost see him in that little fleabag hotel in that filthy little shower. I mean, they started a fire with the three hits that they gave him. The three little bites of his favorite thing in the world. The thing that he bought every day, two and three times a day, for six years. They started a little fire and you can see his little beady crackhead eyes glowing in that shower.
And so what is so important? Why all the calls? Unless you’ve got a stake in it. Unless you’re going to get a share in what’s about to happen. Unless your crackhead little brain is fluttering a million miles a second thinking about more of your favorite thing in the world. Favorite.[]
Mr. Zimmet wants you to believe that his poor, misunderstood client is out in the parking lot doing deep knee bends. Please. Really? You saw his knee in the picture. Deep knee bends?

(Emphasis added). The prosecutor then commented on the defense counsel’s out-of-court questioning and cross-examination of a State witness that suffered a stroke after April 16, 2011, as follows:

And what does this evidence tell us? That this woman who has nothing to gain, who knows none of these people, comes to court and tells you what happens. She gets questioned and questioned and questioned and questioned by three defense attorneys for an hour and a half off scene and here in the courtroom. ... Same thing with the stroke. What a cheap shot. He wants you to think she has a problem with her memory. Her family doesn’t think so. Her friends don’t think so.... The only thing that comes from this is a deviation from her normal life and harassment. She didn’t want to come in here. You saw her.
This is a guy who committed a crime because he’s a crackhead, and he was going to get free crack out of it. He didn’t have to get his hands dirty. The other young kids were going to do all the work for him and he was going to share in the proceeds. That’s what the evidence is, folks. There is no evidence to the contrary.
And so the evidence in this case is clear. It is crystal clear that these people committed a crime together, that they lured a drug dealer there and they were sharing in the proceeds.
Because that’s what we’re talking about here. We’re talking about justice for DJ and we’re talking about letting that man walk. Couldn’t be more clear. Even with this penny-anti [sic] little misdemeanor charge. Misdemeanor. Right. Misdemeanor? The kid’s dead. People were shot. People were robbed. Misdemeanor?
Today we’re asking you for justice for DJ.... Hold him accountable for what he’s done. Don’t let him get out of here and make this cheap. Don’t make it cheap. Don’t make it a misdemeanor. You all know what a misdemeanor means.
But in just a minute, I’m going to invite Mr. Zimmet to step up. I’m going to invite him to tell you what a good guy, what a moralistic guy that his client is.

(Emphasis added). The prosecutor then began referring to Appellant’s counsel solely by his first name when addressing the jury for the remainder of the closing argument. The prosecutor finished the closing argument by discussing Ellis’ family, as follows:

But if you don’t make it above the line, you don’t even get a choice. The law says those things below the red line do not count, will not qualify....
Anything below that line diminishes this boy’s life. It spits in his family’s face. Says that that man right there had nothing to do with this and it pardons him for his conduct.
And so that’s really why Art [] wants you to find battery, is because if he knows that if you find that battery, then his client gets to walk out of here without facing any of the facts of what he’s done ...
Don’t diminish this boy’s life. Don’t spit in his family’s face. DJ Ellis was a young man in this community. He meant something. He meant something to his family. He meant something to this community. He died before he had a chance to live his life.

(Emphasis added).

During deliberations, the jury requested Broadwater’s testimony about the conversation in the motel room with Appellant. The trial court instructed the jurors that they must rely on their recollections. The jury returned a guilty verdict for second-degree felony murder and robbery.

I. The trial court erred by denying Appellant’s request for an “afterthought” instruction.

It is well-settled in Florida that “[t]he standard jury instructions are presumed correct and are preferred over special instructions.” Stephens v. State, 787 So.2d 747, 755 (Fla.2001) (citing State v. Bryan, 290 So.2d 482 (Fla.1974)). Thus, an appellant “has the burden of demonstrating that the trial court abused its discretion in giving standard instructions.” Id. at 755-56 (citing Phillips v. State, 476 So.2d 194 (Fla.1985); Williams v. State, 437 So.2d 133 (Fla.1983)). Florida case law narrows a trial judge’s discretion in a criminal trial “because a criminal defendant is entitled to have the jury instructed on his or her theory of defense, if there is any evidence to support this theory, and so long as the theory is recognized as valid under the law of the state.” Davis, 922 So.2d at 444 (citing Worley v. State, 848 So.2d 491, 492 (Fla. 5th DCA 2003)). “To establish entitlement to a special jury instruction, the defendant must prove the following three factors: (1) the special instruction correctly states the law and is not confusing or misleading, (2) the standard instruction is not adequate to explain the theory of defense, and (3) there is evidence supporting the special jury instruction.” DeJesus v. State, 98 So.3d 105, 107 (Fla. 2d DCA 2012) (citing Wheeler v. State, 4 So.3d 599, 605 (Fla.2009)).

First, the State correctly conceded at trial that the afterthought instruction, which was nearly identical to the instruction in Davis, correctly stated the law and was not misleading. See Davis, 922 So.2d at 443-44; see also DeJesus, 98 So.3d at 107-08 (holding that the trial court abused its discretion when it failed to give defendant’s requested afterthought instruction for a robbery charge when DeJesus’ girlfriend “went though [sic] the seemingly unconscious victim’s pockets on her own initiative”). Second, this court has consistently held that the standard instruction does not adequately explain the afterthought theory of defense. Davis, 922 So.2d at 443; Concepcion v. State, 938 So.2d 559 (Fla. 5th DCA 2006). Third, we hold that the evidence at trial supported Appellant’s theory of defense, justifying the special instruction.

Specifically, Broadwater’s testimony, although conflicting, supported the defense that the taking was an afterthought, which if believed by a jury, would have resulted in convictions for battery and theft, not robbery. Broadwater provided inconsistent trial testimony concerning whether the plan to rob Kloc was concealed from Appellant. One version of Broadwater’s testimony supported Appellant’s defense that he was not aware of the plan to rob Kloc, which entitled Appellant to the special afterthought instruction. We therefore reverse on this issue and remand for a new trial.

II. The cumulative effect of the prosecutor’s misconduct in closing argument was fundamental error.

In Servís v. State, 855 So.2d 1190, 1193 (Fla. 5th DCA 2003), this court recently discussed the appropriate standard of review for fundamental error in closing argument when a defendant did not object to some comments and objected generally to others, as follows:

Because [the defendant] did not object to some of the comments about which he appeals, and because other objections were general, we must determine whether the comments were so prejudicial as to constitute fundamental error. Freeman v. State, 717 So.2d 105 (Fla. 5th DCA 1998); Caraballo v. State, 762 So.2d 542, 548, n. 18 (Fla. 5th DCA 2000). “Fundamental error in closing arguments occurs when the prejudicial conduct in its collective import is so extensive that its influence pervades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury.” Silva v. Nightingale, 619 So.2d 4, 5 (Fla. 5th DCA 1993).

Furthermore, our supreme court stated that when reviewing prosecutorial misconduct, it “considers the cumulative effect of objected-to and unobjected-to comments when reviewing whether a defendant received a fair trial.” Merck v. State, 975 So.2d 1054, 1061 (Fla.2007) (citing Brooks v. State, 762 So.2d 879, 898-99 (Fla.2000)).

“A criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury’s view with personal opinion, emotion, and nonrecord evidence.” Ruiz v. State, 743 So.2d 1, 4 (Fla.1999). “The assistance permitted includes counsel’s right to state his contention as to the conclusions that the jury should draw from the evidence.” Id. (quoting United States v. Garza, 608 F.2d 659, 662 (5th Cir.1979)). “While wide latitude is permitted in closing argument, ... this latitude does not extend to permit improper argument.” Gore v. State, 719 So.2d 1197, 1200 (Fla.1998) (citation omitted). The prosecutor’s arguments are best categorized in four areas.

A. The prosecutor misrepresented the evidence.

“Clearly, comments on matters not in evidence are improper.” Merck, 975 So.2d at 1071. Furthermore, misquoting a defendant or implying a defendant said something is a misrepresentation of the evidence. State v. Cutler, 785 So.2d 1288 (Fla. 5th DCA 2001) (reversing conviction, holding that defendant never made statement prosecutor implied during closing argument, and characterizing the statement as “a figment of the prosecutor’s imagination or mis-memory”); Swearingen v. State, 91 So.3d 885 (Fla. 5th DCA 2012) (reversing on other grounds but noting that prosecutor’s statement in closing argument that the “victim told the 911 operator that a bullet “wizzed’ past his head” was a mischaracterization of the evidence when no such statement was made, which the appellate court “will not condone”); Robinson v. State, 989 So.2d 747 (Fla. 2d DCA 2008) (reversing where the prosecutor stated in closing that a witness said “get the [defendant] out of here” because the prosecutor’s statement was a “false characterization of the testimony” and noting that although circumstantial evidence supported the prosecutor’s statement in closing argument, it was “hardly the same force as the ersatz ‘evidence’ argued in closing”).

Here, the central issue for whether Appellant was guilty of robbery is if he knew about the plan in advance. The prosecutor clearly and continuously misrepresented the conversation between Broadwater and Appellant by arguing in closing that Appellant would “share in the proceeds” of a robbery. The prosecutor also falsely attributed the statement to Broadwater by arguing, “Just like Mr. Broadwater says. They were going to split the proceeds.” No evidence exists in the record to suggest Broadwater, Ellis, and Gadson would be sharing the proceeds with Appellant. Contrary to the prosecutor’s statement, Broadwater never testified that they were going to share in the proceeds. The entire argument is, as this court has previously stated, “a figment of the prosecutor’s imagination or mis-memory.” Cutler, 785 So.2d at 1289. On this point alone, this court would likely have reversed had the entire issue been preserved with contemporaneous objections and motions for mistrial. Still, when this error is considered with the following instances of misconduct, the combined errors are fundamental.

B. The prosecutor engaged in demeaning and ridiculing personal attacks on the Appellant.

“It is improper for a prosecutor to refer to the accused in derogatory terms, in such manner as to place the character of the accused in issue.” Pacifico v. State, 642 So.2d 1178, 1183 (Fla. 1st DCA 1994) (citing Lewis v. State, 377 So.2d 640 (Fla.1979); Donaldson v. State, 369 So.2d 691 (Fla. 1st DCA 1979)); Gore, 719 So.2d at 1201 (“It is clearly improper for the prosecutor to engage in vituperative or pejorative characterizations of a defendant or witness.” (citations omitted)); Ruiz v. State, 743 So.2d 1, 9 (Fla.1999) (finding the prosecutor’s statement that “if that guy were Pinocchio, his nose would be so big none of us would be able to fit in this courtroom” as inappropriate).

As in Gore, “the prosecutor abandoned any semblance of professionalism and engaged in needless sarcasm.” 719 So.2d at 1201 (finding prosecutor’s remarks during closing — “but there’s one thing the Judge can’t ever make me say and that is he can never make me say that’s a human being” — inappropriate because “vituperative or pejorative characterizations of a defendant” are “clearly improper”). Here, the State degraded Appellant by repeatedly asserting “there isn’t a moralistic thing” about Appellant and calling him a drug addict in various permutations like “nothing more than a hopeless old crack addict,” a “crackhead,” “our favorite crackhead,” “little beady crackhead eyes,” and “crackhead little brain.” In summation, the prosecutor continued, “This is a guy who committed a crime because he’s a crackhead and he was going to get free crack out of it.” These are the vituperative or pejorative characterizations of a defendant that are clearly improper.

C. The prosecutor engaged in demeaning personal attacks on defense counsel and disparaged his theory of defense.

“Verbal attacks on the personal integrity of opposing counsel are inconsistent with the prosecutor’s role and are unprofessional.” Merck, 975 So.2d at 1070 (finding that prosecutor’s statements that defense counsel instigated defendant to read science and literature while imprisoned as a mitigation strategy were disparaging). “A prosecutor may not ridicule a defendant or his theory of defense.” Servis, 855 So.2d at 1194 (citation omitted) (emphasizing as improper statements like “the second tragedy in this case is the defense doing all they can to throw whatever they can against the wall and see what sticks” and repeated iterations of “the defense wants you to believe”). The prohibition against disparaging defense counsel includes comments about cross-examinations of witnesses. Fuller v. State, 540 So.2d 182, 185 (Fla. 5th DCA 1989) (noting “it [was] improper to personally attack defense counsel for cross-examining the child victim”); Chambers v. State, 924 So.2d 975, 978 (Fla. 2d DCA 2006) (“[T]he prosecutor’s expressed indignation at the ... need for her to face questioning by defense counsel as to her credibility was improper.” (citations omitted)); Redish v. State, 525 So.2d 928, 931 (Fla. 1st DCA 1988) (holding the “prosecutor’s personal attack on defense counsel as ‘cheap tricks’ to be clearly beyond the bounds of proper closing argument”); Jackson v. State, 421 So.2d 15, 15 n. 1 (Fla. 3d DCA 1982) (noting that calling opposing counsel a “cheap shot artist” is improper).

Here, at the beginning of closing argument, the prosecutor provided that “[f]or three days, we’ve been in this courtroom and we’ve been listening to Mr. Zimmet’s denials and nonsense about his client’s involvement in a robbery.” The prosecutor repeatedly referenced the defense attorney not minding Appellant’s actions, “throwing his client under the bus,” disparaging the defense attorney’s choice of the “lowest offense the law will allow,” and sarcastically saying “Mr. Zimmet wants you to believe that his poor, misunderstood client....”

The prosecutor’s comments about the defense counsel’s out-of-court questioning of a witness who suffered a stroke was inappropriate, as well. The prosecutor’s argument that “[s]he gets questioned and questioned and questioned and questioned by three defense attorneys for an hour and a half off scene and here in the courtroom” and referring to cross-examination as a “cheap shot” violates established case law. The prosecutor needlessly referred to the defense attorney’s closing argument with sarcasm when he said, “I’m going to invite Mr. Zimmet to step up” and “tell you what a good guy, what a moralistic guy that his client is.” Finally, the prosecutor’s references to defense counsel by first name only was denigrating in light of the sarcastic argument on the theory of defense.

D. The prosecutor urged the jury to consider improper grounds to find Appellant guilty.

A prosecutor’s “request that the jury show sympathy for the victim ... is clearly improper.” Johns v. State, 832 So.2d 959, 962 (Fla. 2d DCA 2002) (citing Thomas v. State, 787 So.2d 27, 30 (Fla. 2d DCA 2001); Brown v. State, 593 So.2d 1210, 1211-12 (Fla. 2d DCA 1992)). “[D]uring closing arguments a prosecuting attorney should not attempt to elicit the jury’s sympathy by referring to the victim’s family.” Johnson v. State, 442 So.2d 185, 188 (Fla.1983) (citations omitted). Furthermore, asking for justice for the victim’s family is improper. Edwards v. State, 428 So.2d 357, 359 (Fla. 3d DCA 1983) (holding that the prosecutor’s argument was an improper appeal to the jury for sympathy for the victim’s family where the prosecutor said, “I ask you for justice both on behalf of myself and the people of the State of Florida, also on behalf of [victim’s] wife and children”). Similarly, implying the jury should not let a defendant walk out can carry improper implications. See Pacifico, 642 So.2d at 1182-83 (finding statements like “does he walk out of this courtroom today laughing, or do you make him take responsibility for what he did to [the victim] that night” constitute an implicit instruction to the jurors that it is their duty to society to find a defendant guilty).

Here, the prosecutor urged each of the types of improper grounds, when he said “we’re talking about letting that man walk,” “[d]on’t let him get out of here and make this cheap,” and “you all know what a misdemeanor means.” The prosecutor further told the jury that by convicting Appellant of a lesser-included charge, it would be allowing a lower sentence, because the “client gets to walk out of here without facing any of the facts of what he’s done.” Finally, at the end of the prosecutor’s rebuttal closing, he made an improper appeal to emotion by asking the jury to convict for the victim’s family, by repeatedly saying that convicting Appellant of a lesser-included charge “spits in his family’s face.” By using the imperative mood when he said, “Don’t spit in his family’s face,” the prosecutor improperly implied that it would be the jury spitting in the victim’s family’s face.

E. The cumulative effect of the prosecutor’s arguments is fundamental error.

The cumulative effect of the prosecutor’s comments, which as seen above are well-documented errors, denied Appellant a fair trial. Pacifico, 642 So.2d at 1182-83 (finding the cumulative effect of prosecutorial improprieties as fundamental error); Ser-vís, 855 So.2d at 1197 (same). As such, we also reverse and remand for a new trial based on the prosecutor’s misconduct.

REVERSED and REMANDED for NEW TRIAL.

LAMBERT, J., concurs.

BERGER, J., concurs, with opinion.

BERGER, J.,

concurring.

This case reads like a primer on what not to do during closing arguments. The errors committed by the prosecutor are so numerous and so egregious, and the comments directed at opposing counsel are so unprofessional, I am amazed it was allowed to occur unchecked, which is why I write separately to address this issue.

In his concurring opinion ih D’Auria for and on Behalf of Mendoza v. Allstate Ins. Co., 673 So.2d 147, 147 (Fla. 5th DCA 1996) (Antoon, J., concurring), Judge An-toon explained:

Trial judges have the important responsibility of ensuring that trials maintain their function as forums for the search of truth. By properly fulfilling this obligation, trial judges have the unique ability to exercise a certain amount of control over whether the public perceives and understands trials as having such a function.

Although the trial judge in the instant case properly sustained objections by defense counsel, not once was the jury instructed to disregard the improper comments, nor was the prosecutor called to task for his conduct.

In my view, sitting silent absent an objection by opposing counsel, tacitly, albeit unintentionally, condones such conduct. As Judge Schwartz noted in Borden, Inc. v. Young, 479 So.2d 850, 851 (Fla. 3d DCA 1985), “it is no longer — if it ever was— acceptable for the judiciary to act simply as a fight promoter, who supplies an arena in which parties may fight it out on unseemly terms of their own choosing....” Judges have a responsibility to protect jurors from improper closing arguments. See DAuria, 673 So.2d at 147; Borden, 479 So.2d at 851. Failing to do so demeans the system of justice we serve to protect.

      . The State charged Appellant with: (1) second-degree felony murder (firearm) in violation of sections 782.04(3) and 777.011, Florida Statutes (2011); (2) robbery with a deadly weapon in violation of sections 812.13(2)(a) and 777.011, Florida Statutes (2011); and (3) tampering with physical evidence in violation of section 918.13, Florida Statutes (2011). The jury found Appellant guilty of the first and second charges and not guilty of the third.

      . Appellant raises other meritorious issues, which we do not address because they are moot as the result of the reversal.

      . At trial, only Broadwater testified about the conversations with Appellant before Kloc arrived. Neither Appellant nor Gadson testified.

      . In a pretrial motion, Appellant requested the special instruction, which tracked the language we approved in Davis v. State, 922 So.2d 438, 443 (Fla. 5th DCA 2006). There, this court reversed and remanded for a new trial after the trial court denied a request for an afterthought instruction. The requested instruction provided: "If the evidence shows that the taking of property occurred as an afterthought to the use of force or violence which resulted in the death of the victim, the taking does not constitute robbery, but may still constitute theft.” Id.

      . The trial court instructed the jury on the same instruction for robbery when reading the instructions for the robbery charge.

      . The prosecutor made numerous statements that violated Appellant’s right to a fair trial. The transcript of the closing argument is replete with egregious statements. For us to identify each would require us to provide the entire transcript, which we decline to do. Accordingly, we include only those statements we wish to discuss.

      .Appellant’s trial counsel.

      . The prosecutor continued with multiple references to Appellant as “our favorite crackhead.”

      . Appellant’s trial counsel.

      . The absence of the robbery conviction, which was the condition-precedent felony, would have foreclosed a felony-murder conviction.

      . The assistant state attorney prosecuting this case is not a novice. According to The Florida Bar website, he has been practicing law in Florida since 2006.


text:
    Rigaud COLIN, Appellant, v. Rosa COLIN, Appellee.
    No. 5D13-3314.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.
    Elaine A. Barbour, Orlando, for Appellant.
    Nicholas A. Shannin, of The Shannin Law Firm, P.A., Orlando, for Appellee.
   PER CURIAM.

Rigaud Colin appeals the entry of a domestic violence injunction against him, which prohibited him from having contact with his wife, Rosa Colin. Finding no error, we affirm.

Rosa believed Rigaud had been unfaithful and, in his absence, removed the couples’ mattress and box springs from the bedroom to the patio. When Rigaud later returned home, he confronted an angry Rosa who stood in his way when he attempted to return the bed to the bedroom. He struck her multiple times with the box springs causing injury, which prompted Rosa to seek medical treatment.

Rosa subsequently sought a temporary injunction for protection and filed for a dissolution of marriage. At the hearing for the injunction, the court asked Rigaud if he had a problem with the issuance of a temporary support order. His attorney objected, arguing that his client would not have the ability to maintain himself as a self-employed non-wage earner because he had lost his home office in the marital home. Rosa pointed out that Rigaud had an office from which he conducted his real estate business and that he had a tax preparation business.

After hearing testimony that Rosa was hit several times with the box springs and viewing pictures received into evidence of the resulting bruising, the court entered a domestic violence injunction. Based on a child support worksheet and without objection, the court ordered Rigaud to pay Rosa $2,109.13 per month child support for two children.

Rigaud appeals claiming that there was insufficient evidence to support either the injunction or the amount of child support. He urges that the injunction must be reversed because the judgment did not include individualized findings to support the conclusion that he committed an act of domestic violence.

The issue of individualized findings was not preserved, even assuming the necessary findings are not “either express or apparent within the judgment.” See Mathieu v. Mathieu, 877 So.2d 740, 741 (Fla. 5th DCA 2004). As stated in Math-ieu:

The Third District Court of Appeal has taken the approach that a party cannot complain on appeal about inadequate findings in a dissolution case unless the alleged defect was brought to the trial court’s attention in a motion for rehearing. This strikes us as sensible and we adopt this approach. In the usual case, we will treat the lack of adequate findings as an unpreserved error unless previously brought to the trial court’s attention.

Id. (citation Omitted). We find sufficient evidence in the record to support the issuance of the injunction.

Concerning the amount of child support, again the issue was not preserved. Ri-gaud complains that the court did not take sufficient evidence regarding his income. The court did not inquire into the income of either business and there is nothing to explain how his income was listed as $10,000 per month on the child support worksheet. But when specifically asked about the worksheets, Rigaud’s attorney stated that they did not “have any objections to those.” The question of the amount was not timely raised below and will not be considered now. See Keech v. Yousef, 815 So.2d 718, 720 (Fla. 5th DCA 2002).

AFFIRMED.

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


author: COHEN, J.

text:
    Gregory TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3911.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.

      James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Gregory Taylor appeals his judgment and sentence after a jury found him guilty of possession of a firearm by a violent career criminal. He argues that the trial court reversibly erred by allowing inadmissible hearsay into evidence. Although the trial court’s analysis on the hearsay issue was faulty, we affirm because the statements at issue were admissible under the excited utterance exception to the hearsay rule.

At trial, Taylor’s ex-girlfriend, Tambra Bacon, testified that shortly after their relationship ended, she was driving her new boyfriend’s car to a McDonald’s when she saw Taylor standing in the middle of the road. After making eye contact with Bacon, Taylor walked in front of her vehicle, yelled out various insults, and threatened to kill her. As Bacon sped away, she saw a gun in Taylor’s hand and heard what sounded like three gunshots. She then drove to a nearby restaurant, where she dialed 911. However, upon seeing a police officer nearby — later identified as Officer Carlos Davila — she hung up and told him what happened.

Officer Davila’s testimony was generally consistent with Bacon’s. Additionally, he testified that he observed bullet holes in the door of the car she was driving. Crime scene technicians located bullets inside the vehicle driven by Bacon. However, law enforcement did not find evidence of spent cartridges at the scene, nor could they locate any witnesses. The trial court allowed Officer Davila to relate to the jury what Bacon told him about the shooting.

The issue on appeal is whether the trial court erred in allowing Officer Davila to testify about the initial statements Bacon made to him at the restaurant. Below, the State argued that the statements were admissible pursuant to the excited utterance exception to the hearsay rule. The defense responded that the excited utterance exception was inapplicable because Officer Davila testified that Bacon had calmed down. The trial court agreed with the defense and ruled that the statements were not excited utterances. Nevertheless, the trial court ruled, sua sponte, that because the declarant, Bacon, was available and subject to cross-examination, the statements to Officer Davila were “not hearsay at all.” In so ruling, the trial judge articulated a common misconception about the hearsay rule.

Hearsay is defined as “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(D(c), Fla. Stat. (2013). Hearsay is inadmissible unless an exception applies. See §§ 90.802-.803, Fla. Stat. (2013).

In the instant case, Bacon’s statements to Officer Davila at the restaurant were obviously out-of-court statements. Furthermore, the State offered the statements to prove the truth of the matter asserted, i.e., Taylor was in possession of a firearm and shot at Bacon. The statements have no other apparent relevance. Thus, Bacon’s statements to Officer Davila were clearly hearsay.

Nevertheless, the trial court reasoned that Bacon’s statements were “not hearsay at all” because she testified and was subject to cross-examination. However, an out-of-court statement offered for the truth of the matter asserted can be considered non-hearsay only if it falls under section 90.801(2), Florida Statutes. That section provides that certain statements are not hearsay if the declarant testifies at trial, is subject to cross-examination, and the statement either: (1) is inconsistent with the declarant’s in-court testimony and was given under oath; (2) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or (3) is offered as identification of a person. § 90.801(2), Fla. Stat. The only non-hearsay basis that is potentially relevant here — and the only one that the State raises on appeal — is identification. Officer Davila’s testimony went well beyond a statement of identification. His testimony related, in its entirety, the events of the shooting as explained by Bacon. Accordingly, the trial court erred when it concluded that Bacon’s statements to Officer Davi-la were not hearsay.

On appeal, the State persuasively argues that the statements were admissible as excited utterances, and that we should therefore affirm pursuant to the tipsy coachman doctrine. An excited utterance is “a statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” § 90.803(2), Fla. Stat. For a statement to constitute an excited utterance, three requirements must be met: (1) there must have been an event startling enough to cause nervous excitement; (2) the statement must have been made before the declarant had time to contrive or misrepresent; and (3) the statement must have been made while the declarant was still under the stress of excitement caused by the event. State v. Jam, 524 So.2d 660, 661 (Fla.1988). The excited state can exist for a substantial amount of time after the event occurs. Id. (quoting C. Ehrhardt, Florida Evidence § 803.2 at 473-74 (2d ed. 1984)). When assessing the duration of the excited state, the court should ask whether the declarant had time for reflective thought and the capacity for conscious misrepresentation. See id. at 662 (“[A]n accurate rule of thumb might be that where the time interval between the event and the statement is long enough to permit reflective thought, the statement will be excluded in the absence of some proof that the declarant did not in fact engage in a reflective thought process.” (quoting E. Cleary, McCormick on Evidence § 297 at 856 (1984 3d ed.))).

Whether the declarant made an excited utterance is a preliminary question of fact for the trial court, and the court’s ruling is reviewed for an abuse of discretion. Frederick v. State, 923 So.2d 1288, 1288 (Fla. 5th DCA 2006). That discretion is limited, however, by the rules of evidence and the doctrine of stare decisis, and a court abuses its discretion when it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence. Delhall v. State, 95 So.3d 134,155 (Fla.2012).

Here, Bacon testified that she saw Officer Davila immediately after the shooting occurred and that she was “emotional, crying, upset, [and] panicking” when she told him what happened. Officer Davila described Bacon’s demeanor consistently: “She was shaken up. You know, talking really fast, stuttering. I tried to calm her down a little bit so she could start telling me what’s going on. And once she calmed down slightly she was able to tell me [what happened].” As Davila spent time with Bacon, he observed her start to calm down. Specifically, he testified: “She wasn’t shaking as much. She did keep looking over her shoulder once in a while but she was able to — the pitch of her voice lowered so she was able to talk, you know, she had self control.” Apparently, the trial court seized upon Officer Davila’s testimony that Bacon “calmed down slightly,” and concluded that her statements were not excited utterances.

Examining the evidence as a whole, however, we find that this was an abuse of discretion. There was no evidence that Bacon had sufficient time for reflection, and the evidence demonstrated that she was still in a state of panic as she related the events, which had occurred just minutes before, to Officer Davila. Although she may have calmed down enough to speak to Officer Davila, she was still shaking and appeared excited. Cf Hudson v. State, 992 So.2d 96, 108 (Fla.2008) (holding that the fact that declarant’s voice did not sound excited was not determinative of whether his statements met the requirements of section 90.803(2), Florida Statutes, and noting that “[s]ome people remain calm of voice when under stress”). Under these facts, Bacon’s statements were excited utterances. Accordingly, we find that, under the tipsy coachman doctrine, the admission of the statements was not error.

AFFIRMED.

EVANDER, J„ and HARRIS, C.M., Senior Judge, concur.

      . § 790.235, Fla. Stat. (2012). Taylor was also charged with shooting into an occupied vehicle under section 790.19, Florida Statutes (2012). Following his conviction for possession of a firearm, the State nolle pressed the remaining charge.

      . This does not necessarily mean that the shooting did not occur: if the weapon used was a revolver rather than a semi-automatic handgun, no spent cartridges would have been present.

      . The tipsy coachman doctrine states that "if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.” Dade Cnty. School Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999). While the State does not specifically cite to the tipsy coachman doctrine, as a practical matter, that is the doctrine relied upon.


text:
    Donald Craig GORE, Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D12-907.
    District Court of Appeal of Florida, First District.
    Sept. 2, 2014.
    Appellant Donald Craig Gore, pro se.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee. Barbara Debelius, Assistant General Counsel, Department of Corrections, Tallahassee.
   PER CURIAM.

This is an appeal of a final order in Circuit Court Case No. 2011-41-CA dismissing a petition for writ of habeas corpus in which Appellant, a prison inmate, alleged his entitlement to immediate release. The trial court issued its ruling without affording Appellee an opportunity to show cause concerning whether Appellant was properly awarded all jail, prison, and gain-time credit. On Appellee’s proper concession of error, we reverse the order and remand with instructions that the trial court issue an order for Appellee to show cause regarding (1) whether Appellant has been properly awarded all jail, prison, and gain-time credits that are due under the law and as set forth in Gisi v. State, 4 So.3d .613 (Fla.2009), and Rabe-deau v. State, 2 So.3d 191 (Fla.2009), and (2) whether such an award would affect Appellant’s consecutive 21-year sentence. To ensure consistent rulings on substantially similar issues, we direct the trial court to consolidate this case and Circuit Court Case No.2012-178-CA (appealed as # 1D12-2828) for further proceedings.

REVERSED and REMANDED with instructions.

ROBERTS, RAY, and SWANSON, JJ., concur.


text:
    Donald Craig GORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2828.
    District Court of Appeal of Florida, First District.
    Sept. 2, 2014.
    Appellant Donald Craig Gore, pro se.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee. Barbara Debelius, Assistant General Counsel, Department of Corrections, Tallahassee.
   PER CURIAM.

This is an appeal of a final order in Circuit Court Case No. 2012-178-CA denying Appellant’s petition to invoke all writs jurisdiction, which the trial court treated as a petition for writ of habeas corpus and denied. The petition alleged Appellant’s entitlement to immediate release from prison. The trial court issued its ruling without affording Appellee an opportunity to show cause concerning the Florida Department of Corrections’ (“Department”) application of Appellant’s credits. On the Department’s proper concession of error, we reverse the order and remand with instructions that the trial court issue an order for the Department to show cause regarding (1) whether Appellant has been properly awarded all jail, prison, and gain-time credits that are due under the law and as set forth in Gisi v. State, 4 So.3d 613 (Fla.2009), and Rabe-deau v. State, 2 So.3d 191 (Fla.2009), and (2) whether such an award would affect Appellant’s consecutive 21-year sentence. To ensure consistent rulings on substantially similar issues, we direct the trial court to consolidate this case and Circuit Court Case No. 2011-41-CA (appealed as # 1D12-907) for further proceedings.

REVERSED and REMANDED with instructions.

ROBERTS, RAY, and SWANSON, JJ„ concur.


text:
    Brandon Rashald MILTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1075.
    District Court of Appeal of Florida, First District.
    Sept. 2, 2014.
    Brandon Rashald Milton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking belated appeals of the judgments and sentences rendered on January 9, 2014, in Suwannee County Circuit Court case numbers 04-396CF, 05-632CF, and 05-646CF, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in each of the three cases. If petitioner qualifies for the services of appointed counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeals authorized by this opinion.

ROBERTS, MARSTILLER, and SWANSON, JJ., concur.


text:
    Sherri COLLINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1744.
    District Court of Appeal of Florida,. First District.
    Sept. 2, 2014.
    Sherri Collins, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In light of the lower tribunal’s order granting an evidentiary hearing on petitioner’s pending motion for postconviction relief, we deny the petition for writ of mandamus on the authority of Munn v. Florida Parole Commission, 807 So.2d 738 (Fla. 1st DCA 2002). However, we encourage the circuit court to promptly schedule the evidentiary hearing it has granted and to dispose of the matter pending before it as promptly as circumstances permit.

ROBERTS, MARSTILLER, and SWANSON, JJ„ concur.


text:
    Elius POLY, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D13-6177.
    District Court of Appeal of Florida, First District.
    Sept. 2, 2014.
    Elius Poly, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, THOMAS, and ROBERTS, JJ., concur.