author: LAWSON, J.

text:
    Glover Fred CALLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2904.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.

      James S. Purdy, Public Defender, and Eliza Puchalski, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Glover Fred Calloway appeals an order denying his dispositive motion to suppress, entered prior to his plea of nolo contende-re to charges of possession of a weapon by a convicted felon and possession of twenty grams or less of cannabis. Finding that the motion to suppress should have been granted, we reverse.

Law enforcement received an anonymous tip that Calloway was involved in unspecified “drug activity” at his residence at a certain address in the City of Orlando, in Orange County, Florida. Orlando Police Department officers properly recognized that the tip, standing alone, would not justify a warrant, a search of the residence, or the detention of Calloway. See Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). Although the officers did watch the house from a distance for some period of time, they did not observe anything suspicious and decided to conduct a “knock and talk” at the residence. One uniformed officer positioned himself at the front door and a second uniformed officer positioned himself at the corner of the house, to watch a second entrance at the side of the house. The officer at the front door began knocking, and no one responded. However, the second officer observed Calloway open the side door and step partially out with one foot. When Calloway saw the uniformed officer, he exclaimed, “oh shit,” and went back into the house.

The officers then began knocking loudly on the side door. After approximately two minutes of continuous knocking (accompanied by repeated announcements that it was the police at the door), Calloway’s mother opened the side door while another occupant (the mother’s boyfriend) opened the front door. The officers ordered both the mother and her boyfriend out of the house, and also began ordering Calloway out of the house “with his hands up.” When Calloway complied, the officers ordered Calloway to the ground and handcuffed him, then conducted a “protective sweep” of the house, to confirm that it contained no other occupants. Following Calloway’s detention, Calloway volunteered that he had marijuana in the house, and his mother authorized a search of the house — during which the officers found the marijuana (with Calloway’s assistance), and also located a firearm in Calloway’s bedroom (on a top shelf, in a closet, between shirts). The officers testified that the residence was located in a high crime area.

In denying Calloway’s motion to suppress, the trial judge seems to have found that the officers’ initial action of ordering all occupants out of the house and cuffing Calloway was justified based upon Callo-way’s “flight” (back into the house) upon seeing the officers “in a high crime area.” See Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (holding that a defendant’s “unprovoked flight upon noticing the police” in a high-crime area was suggestive of wrongdoing and therefore provided reasonable suspicion justifying an investigatory detention). There are at least two problems with applying Wardlow here. Both stem from the fact that, unlike Wardlow, this case deals with a person’s reasonable expectation of privacy in his or her home. See, e.g., Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (“[T]he right of a man to retreat into his own home and there be free from unreasonable governmental intrusion” stands “[a]t the very core” of the Fourth Amendment.); Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (discussing the “overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.”); Kirk v. Louisiana, 536 U.S. 635, 637, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002) (noting that the Fourth Amendment draws a “firm line at the entrance to the home,” and thus, the police need both probable cause to either arrest or search and exigent circumstances to justify a non-consensual warrantless intrusion into a home).

First, applying Wardlow to a “knock and talk” encounter at a home would mean that those living in a high crime area would also suffer a lower level of constitutional protection against unwarranted police intrusion than those living in more desirable neighborhoods. The result would be irreconcilable with our Fourth Amendment jurisprudence, and completely unacceptable.

Second, a “knock and talk” is only justified as a consensual encounter during which officers are authorized to “approach a dwelling on a defined path, knock on the front door, briefly await an answer, and either engage in a consensual encounter with the resident or immediately depart.” Powell v. State, 2013 WL 2232319, 120 So.3d 577 (Fla. 1st DCA May 22, 2013) (citing Nieminski v. State, 60 So.3d 521, 526 (Fla. 2d DCA 2011); Waldo v. State, 975 So.2d 542, 543 (Fla. 1st DCA 2008)). Given the consensual nature of the contact, of course, a resident is supposed to have the option of refusing to open the door. Kentucky v. King, — U.S.-,-, 131 S.Ct. 1849, 1862, 179 L.Ed.2d 865 (2011) (whether knock is by “police officer or a private citizen, the occupant has no obligation to open the door or to speak.”). Allowing police to use a resident’s reaction to their presence at the home and contemporaneous clear expression of unwillingness to engage with the officers as “reasonable suspicion” to justify hauling the resident out of the home for a forced encounter would obviously render the consensual nature of the encounter illusory.

For these reasons, we hold that Wardlow does not apply to these facts. Accordingly, even in a high crime area, police conducting a “knock and talk” are not authorized to order the resident from the home or detain him, even if he opens the door and steps out briefly, but then retreats into the home upon seeing the police.

On appeal, the State also adds that the facts relayed to the officers prior to approaching the house (from the anonymous tip), when combined with Callo-way’s flight upon seeing uniformed officers in a high crime area would be enough to give them reasonable suspicion of criminal activity, thus justifying their detention of Calloway. We reject this argument for the same reasons. Officers using the “knock and talk” procedure will invariably be armed with some information similar to the tip in this case when they approach the front door of a home in an attempt to engage the occupants in a consensual conversation. If they could then use an occupant’s firm desire to avoid police by retreating into the house, or shocked reaction at seeing police, as the only extra information necessary to confirm whatever suspicion brought them to the door in the first place, it would render the consensual nature of the knock and talk procedure completely illusory and unjustifiably erode “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion”—which stands “[a]t the very core” of our Fourth Amendment protections. Kyllo, 533 U.S. at 31, 121 S.Ct. 2038. We therefore hold that the officers violated the occupants’ Fourth Amendment rights by ordering them from their home, and further violated Callo-way’s Fourth Amendment rights by handcuffing and involuntarily detaining him.

Calloway’s later admission regarding the presence of marijuana in the house was a fruit of the illegal detention, and could not be used to justify the subsequent search. United States v. Flores-Sandoval, 422 F.3d 711, 714 (8th Cir.2005) (evidence “obtained by exploitation of [an unlawful detention] instead of by means sufficiently distinguishable to be purged of the primary taint” must be excluded). His mother’s consent to search the home was also tainted by the officer’s illegal order that everyone vacate the home. See, e.g., Turner v. State, 674 So.2d 896, 897 (Fla. 5th DCA 1996) (“A consent to search given after illegal police conduct is presumptively tainted and is deemed involuntary absent ‘clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior official illegal action.’ ”) (quoting Norman v. State, 379 So.2d 643, 647 (Fla.1980)). As such, Calloway’s motion to suppress should have been granted.

Accordingly, we reverse Calloway’s convictions and sentences, along with the suppression order, and remand with directions that the trial court suppress the evidence against Calloway.

REVERSED AND REMANDED WITH DIRECTIONS.

BERGER and WALLIS, JJ., concur.

      . The officer who observed Calloway step partially out of the side door testified that he "went back into the house,” but also said that he "ran back inside the house.” Given that Calloway only had one foot outside of the threshold, his retreat into the house would have spanned less than a full step. We fail to see how this small movement could fairly be characterized as running, although that is the description that the State latches onto for its analysis. The trial court also ultimately found that Calloway's detention was justified "based on [his] flight" at the sight of police. Although questionable, for purposes of this analysis we accept the trial court’s finding that Calloway’s reaction to the sight of police constituted "flight.”

      . Calloway’s mother testified that she did not authorize the officers’ initial entry into the home to conduct the protective sweep, and that she only later consented to the search of her home because the officers threatened that if she withheld her consent they would come back with a search warrant and "tear the house up.” The trial court rejected this testimony and found that Calloway’s mother freely and voluntarily consented to the search of her home. We accept this finding, which is supported by the officers’ testimony.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Keith NASH, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1615.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.
    Keith Nash, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant appeals the order summarily denying his rule 3.800(a) motion to correct illegal sentence filed March 27, 2013, in Orange County case number 2010-CF-10164-A-O. Appellant asserts he was incarcerated in the Orange County jail from July 15, 2010 until July 19, 2010, and thus is entitled to five days’ credit for time served as opposed to the two days’ credit he was provided. In support of his claim, Appellant attached an Orange County Corrections Department “Letter of Incarceration (Body Receipt),” which is not part of the lower court record and is, therefore, hearsay. The existing record supports the trial court’s denial of relief, as acknowledged by Appellant. Because Appellant’s claim is not apparent on the face of the record, rule 3.800(a) is not available to obtain relief. Appellant’s claim must be advanced in a rule 3.850 motion since it was not presented in a rule 3.800(b) motion. Appellant has until September 12, 2013, to file a sufficient rule 3.850 motion. See Santiago v. State, 22 So.3d 789 (Fla. 5th DCA 2009) (stating that if claim cannot be resolved from face of record without resorting to fact-finding, defendant must file timely rule 3.850 motion). Accordingly, we affirm without prejudice to Appellant to file his claim in a timely and legally sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED without prejudice.

TORPY, C.J., ORFINGER and COHEN, JJ., concur.


author: COHEN, J.

text:
    Todd Allen MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2694.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Todd Moore appeals from the judgment and sentence entered after a jury found him guilty of attempted second-degree murder with a firearm and conspiracy to tamper with a witness. We affirm in part and reverse in part.

Moore raises three issues on appeal, only one of which merits discussion. The State properly concedes the jury instruction on the lesser-included offense of attempted voluntary manslaughter constituted fundamental error. See State v. Montgomery, 39 So.3d 252 (Fla.2010); see also Williams v. State, —So.3d -, 2013 WL 535449, 38 Fla. L. Weekly S99 (Fla. Feb. 14, 2013). The instruction provided that the State must prove the defendant committed an act which was intended to cause the death of the victim — essentially the same instruction held to be improper in Montgomery. The current instruction — approved by the supreme court after Moore’s trial took place — provides that the State must prove the defendant had an intent to commit an act which would have caused the victim’s death. In re Std. Jury Instrs. in Crim. Cases—Instr. 6.6, — So.3d-, 2013 WL 2349589, 38 Fla. L. Weekly D355 (Fla. May 30, 2013).

The remaining issues were either not preserved for appeal or are without merit. Accordingly, we affirm Moore’s conviction for conspiracy to tamper with a witness. We reverse his conviction for attempted second-degree murder with a firearm and remand for a new trial.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

LAWSON and EVANDER, JJ., concur.

      . This case was tried more than two years after Montgomery was decided. While the trial judge is responsible for ensuring the jury is properly instructed, we note that the jury instructions were prepared by the assistant state attorney handling the trial.

      . The jury instruction on attempted voluntary manslaughter further provides that the defendant cannot be guilty of the crime if the attempted killing was justifiable or excusable. The jury instruction used below, however, failed to include definitions of either "justifiable” or "excusable.”


author: PER CURIAM. LAWSON, J.,

text:
    Reginald Cornelius JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1843.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

BERGER and WALLIS, JJ., concur.

LAWSON, J., concurs with opinion.

LAWSON, J.,

Concurring.

Reginald Cornelius Jones appeals his conviction and sentence on a charge of aggravated assault with a firearm, arguing that the self-defense instruction used at his trial constituted fundamental error because it negated his defense by implying that Jones could only claim self defense if the victim suffered a physical injury. Because the Fourth District has repeatedly found use of the same instruction to be fundamental error on similar facts,1 think it important to note that the panel did not reach the merits of this issue because it was Jones’ trial counsel who provided the instruction to the court and requested its use. See Spicer v. State, 22 So.3d 706, 707 n. 1 (Fla. 5th DCA 2009) (declining to address jury instruction issue using fundamental error analysis where it was the defendant’s “attorney who affirmatively requested the instruction” complained of on appeal); Caldwell v. State, 920 So.2d 727, 732 (Fla. 5th DCA 2006) (“An instructional mistake does not rise to the level of fundamental error when defense counsel affirmatively requests the deletion or alteration of the jury instruction that subsequently forms the basis of the requested relief in the appellate court.”); Weber v. State, 602 So.2d 1316, 1319 (Fla. 5th DCA 1992) (“After a guilty verdict has been returned based on [a] requested instruction, defense counsel cannot be allowed to change legal positions in midstream and seek a reversal based on that error. Principles of estop-pel, waiver, and invited error, forestall the possible success of such a ruse.”) (footnotes and citations omitted). Accordingly, if Jones is entitled to relief on this issue, it will be through a timely filed motion for post-conviction relief alleging ineffective assistance of counsel for submitting an instruction to the trial judge that arguably negated Jones’ claim of self-defense. I agree with the majority that no other issue merits discussion.

      . See Garrido v. State, 97 So.3d 291 (Fla. 4th DCA 2012); Brown v. State, 59 So.3d 1217 (Fla. 4th DCA 2011); Bassallo v. State, 46 So.3d 1205 (Fla. 4th DCA 2010).


text:
    Darius Jamine POLITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3921.
    District Court of Appeal of Florida, Fifth District.
    July 26, 2013.
    Rehearing Denied Aug. 13, 2013.
    William R. Ponall and Warren W. Lindsey, of Kirkconnell, Lindsey, Snure and Yates, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

This case is before us on remand from the Florida Supreme Court which quashed our earlier decision reported at Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010).

Based on Polite v. State, 116 So.3d 270 (Fla.2013), we reverse Polite’s convictions and sentences for burglary of a dwelling with an assault or battery, robbery with a firearm, aggravated assault with a firearm and possession of a firearm by a convicted felon, and remand for a new trial.

REVERSED AND REMANDED WITH DIRECTIONS.

TORPY, C.J., LAWSON and EVANDER, JJ., concur.

      . §§ 810.02(2)(a), 775.087(1), 775.087(2); 812.13(2)(a), 775.087(2); 784.021; 775.087(2), Fla. Stat. (2008).


text:
    Drew C. HARTLEY, Appellant, v. CREWS, Ellis, Ledkins, Jackson, John Doe, Torres, Tomine, Gielow, Quinn, Diamond, Givens, Reeves, Raybon, Steene, Cook, Torino, Shell, Wallace, Roberts, DeWaters, Butler, John Doe, Appellees.
    No. 1D13-1051.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Drew C. Hartley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee (no appearances), for Appel-lees.
   PER CURIAM.

DISMISSED. All pending motions are denied.

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


text:
    David Jerome JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6065.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Appellants judgments and sentences, but remand for the trial court to enter an order revoking his probation and specifying the conditions of probation that he was found to have violated. See Leggs v. State, 27 So.3d 155 (Fla. 1st DCA 2010) (affirming, in an Anders appeal, the appellant’s judgment and sentence, but remanding with directions that the trial court enter an order specifying the conditions of probation violated). Appellant need not be present. See Baldwin v. State, 855 So.2d 1180 (Fla. 1st DCA 2003) (remanding for entry of a written revocation order conforming to the oral pronouncement in an Anders appeal).

AFFIRMED and REMANDED.

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

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


text:
    James Donnell CALDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5598.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant; James Donnell Caldwell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the appellant’s judgment and sentence, but do so without prejudice to the appellant’s right to file a rule 3.850 or 3.800(a) motion seeking additional credit. See Hope v. State, — So.3d-(Fla. 1st DCA 2013) (holding, even if claims were meritorious, appellant did not preserve sentencing claims for appellate review through contemporaneous objection or 3.800 motion).

AFFIRMED.

BENTON, THOMAS, and CLARK, JJ., concur.


text:
    Ivan CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D12-2826, 1D12-2827, 1D12-2829, 1D12-2831.
    District Court of Appeal of Florida, First District.
    July 26, 2013.
    Jeffrey E. Lewis, Regional Counsel, and Melissa Joy Ford, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee, for Appellant.
    Ivan Cunningham, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of June 25, 2013, the Court has determined that its jurisdiction was not timely invoked. Accordingly, the appeal is hereby DISMISSED.

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


text:
    Darren BINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2337.
    District Court of Appeal of Florida, First District.
    July 30, 2013.
    Darren Bines, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


author: CIKLIN, J.

text:
    Leonard JEFFERS, Appellant, v. Therese Gail McLEARY, Appellee.
    No. 4D12-2369.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.

      Andrew K. Fein and Caroline N. Johnson of Minerley Fein, P.A., Boca Raton, for appellant.
    Andrew S. Lieberman of Andrew S. Lieberman, P.A., Plantation, for appellee.
   CIKLIN, J.

Leonard Jeffers (“the Father”) appeals the Amended Final Judgment of Paternity, arguing, among other things, that the trial court impermissibly altered the time-sharing schedule without hearing testimony from both parents. We agree that under the circumstances of this case, the trial court improperly set a time-sharing schedule without considering the Father’s evidence because hearing evidence from both parents was necessary to ensure that the decision was in the best interest of the child. Accordingly, we reverse and remand the case to the trial court with instructions to allow the Father an opportunity to present evidence regarding the best interest of the child.

Facts

The Father and Therese Gail McLeary (“the Mother”) are the parents of a minor child (“the Child”). In 2010, the trial court entered an Agreed Order on Child Support. The order established child support obligations and divided the Child’s costs between the parents, but the order did not address the issue of time-sharing. According to the Father, he enjoyed time-sharing with the Child every weekend during this period. According to the Mother, the Father only had time-sharing every other weekend.

In February 2012, the Mother moved to hold the Father in contempt for failure to pay child support. The trial court scheduled a hearing on the motion for May 14, 2012. The Father, who was not represented by counsel at the time, failed to appear at the hearing. The court found that the Father had been duly noticed and proceeded with the hearing.

After the hearing concluded, the court issued a Final Judgment of Paternity which ordered the Father to pay child support arrearages and to continue paying the underlying child support obligations. The order also stated the Father was to have time-sharing every other weekend, in addition to specified holidays and special days.

The Father, at that point represented by counsel, timely filed a motion for rehearing, or in the alternative, to vacate the final judgment pursuant to Florida Rules of Civil Procedure 1.530 and 1.540. The Father attached an affidavit to the motion, in which the Father attested to the factual allegations underpinning his motion. The Father admitted receiving notice of the hearing in the mail, but waited to open the mail until he had obtained counsel, which occurred shortly after the hearing. The Father argued that his non-payment of child support occurred because he had lost his employment. The Father also stated that before the trial court entered the Final Judgment of Paternity, the Father had enjoyed time-sharing with the Child every weekend.

The trial court did not hold a hearing on the Father’s post-judgment motions and denied them.

The Father appeals the Amended Final Judgment of Paternity, arguing that the trial court failed to consider the best interest of the Child for purposes of custody and support, and that the trial court’s order was deficient because it failed to explicitly address the best interest of the Child.

Analysis

Generally, the standard of review for the denial of a motion for rehearing or motion for relief from judgment is whether there has been an abuse of the trial court’s discretion. See J.J.K. Int'l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008) (citations omitted). However, when the trial court makes a ruling affecting time-sharing, the trial court must have information from both parents to ensure that the court’s ultimate decision will truly be in the best interest of the child. See Armstrong v. Panzarino, 812 So.2d 512, 514 (Fla. 4th DCA 2002) (“In making a determination on child custody according to the best interests of the child ‘guidepost,’ the court should have the benefit of the testimony of both parents.” (citation omitted)); Webber v. Novelli, 756 So.2d 164, 165 (Fla. 4th DCA 2000); see also § 61.13(3), Fla. Stat. (2011) (stating that when establishing or modifying a time-sharing schedule, “the best interest of the child shall be the primary consideration”).

Because orders affecting time-sharing implicate the best interest of the child, “both parents should have the opportunity to put on evidence ... regardless of how they conduct themselves.” Webber, 756 So.2d at 165 (citing Andrews v. Andrews, 624 So.2d 391 (Fla. 2d DCA 1993)). Even when a parent willfully fails to attend a hearing, the trial court should still give the parent the opportunity to be heard and to present evidence before reaching a decision affecting time-sharing. See Armstrong, 812 So.2d at 514 (holding that trial court erred by modifying child custody plan based on default judgment where the mother willfully failed to appear).

The rule requiring testimony from both parents in decisions affecting the best interest of the child does not give parties license to abuse the judicial system. As this court cautioned:

Our holding in Armstrong ... should not be interpreted as compelling an automatic reversal of a final judgment where one party to a custody battle willfully fails to appear at a hearing. To hold that a final judgment is defective simply because a parent failed to appear at a final hearing would lead to all kinds of strategic game-playing and cause delay in the resolution of custody cases. This would be contrary to the best interest of the child.

Denker v. Denker, 60 So.3d 1104, 1107 (Fla. 4th DCA 2011).

In Denker, the father petitioned for a modification to a child custody plan, and the court scheduled a final hearing at which the mother failed to appear. After determining that the mother had notice of the hearing, the trial court proceeded with the final hearing in her absence. The court heard testimony from the father and witnesses and ultimately gave the father sole custody and ordered the mother to pay child support and the father’s attorneys’ fees. The mother did not move for rehearing or to vacate the judgment. Id. at 1105-07.

On appeal to this court, the mother argued that the trial court “reversibly erred by entering its final judgment without hearing or considering any evidence from her.” Id. at 1106. This court disagreed, noting that the mother had the opportunity to present evidence, but “simply failed to show up at the hearing.” Id. at 1107. The court also distinguished the case from Armstrong and other cases requiring reversal of default judgments because in Denker the judgment was not entered in the wake of a default. On the contrary, the court heard witness testimony and received evidence at the hearing.

A crucial distinction exists between Denker and the instant case. In Denker, the mother never moved for rehearing or to otherwise vacate the final judgment. The Denker court wrote:

A parent should have the right to move to vacate a final custody judgment on the grounds allowed by Rule 1.540(b). At the hearing on the Rule 1.540(b) motion, the court may consider the absent party’s grounds for failing to appear and hear any evidence that the party may have that would involve the party’s “meritorious defense” to the proceedings ....
Unless the [parent who failed to appear] takes the step of seeking to vacate the final judgment, the final judgment is not reversible.

Id. at 1107 (citations omitted).

Here, the Father moved for rehearing or, in the alternative, to vacate the final judgment pursuant to Rules 1.530 and 1.540. The trial court denied the Father’s motion without a hearing, and without giving the Father the opportunity to present evidence to show whether he had a “ ‘meritorious defense’ to the proceedings.” Id. (citation omitted). Case law suggests that the trial court hold a hearing on the Father’s post-judgment motions during which the Father may present his evidence, at which point the trial court should determine whether to vacate the judgment. See Webber, 756 So.2d at 165-66 (approving the trial court’s decision to allow a parent to present evidence during a hearing on a motion to vacate a final judgment following the parent’s failure to attend a hearing).

We stress that this opinion should not be extended beyond cases affecting the best interest of the child. Our cases discussing these issues emphasize that these rulings are exceptional due to the importance of the rights of the child. See Denker, 60 So.3d at 1106; Causin v. Leal, 881 So.2d 20, 22 (Fla. 4th DCA 2004); Armstrong, 812 So.2d at 514; Webber, 756 So.2d at 165. We also wish to emphasize, as we did in Denker, that parties should not misconstrue our holdings as permission to engage in “strategic game-playing” to delay the resolution of judicial proceedings affecting the rights of children. See Denker, 60 So.3d at 1107.

We also write briefly to address the Father’s argument that the Amended Final Judgment of Paternity was fundamentally defective because it failed to include explicit findings concerning the best interest of the Child. The Father is correct that “a trial court must make a finding that the time-sharing schedule is in the child’s best interests.” Winters v. Brown, 51 So.3d 656, 658 (Fla. 4th DCA 2011) (citation and quotation marks omitted). The case law is clear, however, that the written order is not fundamentally deficient for failing to address the best interest of the child. See Aguirre v. Aguirre, 985 So.2d 1203, 1206 (Fla. 4th DCA 2008) (citations omitted). The court may properly make a finding that a time-sharing schedule is in the best interest of the child at trial, and the written order is not deficient solely because it fails to address the best interest determination. See id. (citations omitted).

Here, the parties have not provided a transcript of the hearing, and this court will not assume that the trial court failed to consider the best interest of the child unless it is clear from the record. See id.; Webber, 756 So.2d at 166 n. 1 (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979)); Clark v. Clark, 825 So.2d 1016, 1017-18 (Fla. 1st DCA 2002) (noting that a party “cannot be heard to complain about the force or weight of the evidence adduced” at a hearing that was not transcribed unless it is clear from the record that the court did not address the best interest of the child at the hearing) (citations omitted). We note, however, that “[t]he better practice is for the trial court to thoroughly address the relevant considerations in its written order.” Nunes v. Nunes, 112 So.3d 696, 702 (Fla. 4th DCA 2013).

In this case, while the order is not fundamentally defective because it failed to include required findings, we must nevertheless reverse because the record is clear that the court failed to consider the Father’s evidence. Accordingly, we reverse and remand the case to the trial court with instructions to give the Father the opportunity to present testimony and evidence on the issues of time-sharing and child support at a hearing on the motion to vacate the Amended Final Judgment of Paternity. At that juncture, the trial court may properly exercise its discretion in deciding whether to vacate the judgment.

Affirmed in part; reversed and remanded in part with instructions.

DAMOORGIAN, C.J., and CONNER, J., concur.

      . The parties have not provided a transcript of the May 14 hearing.

      . Florida Family Law Rules of Procedure 12.530 and 12.540 provide that the ordinary rules of civil procedure apply for motions for rehearing and motions for relief from judgment, subject to certain exceptions that are not at issue in this case.

      .The trial court rendered an Amended Final Judgment of Paternity which made some minor revisions, none of which are relevant to this appeal.

      . The Father also argued that he received insufficient notice of the hearing. We affirm on this issue without further comment.

      . "[Wjith the overhaul to the family law statutes in 2009, the concept of ‘custody’ was replaced with ‘time-sharing’.... ” Mudafort v. Lee, 62 So.3d 1196, 1197 n. 1 (Fla. 4th DCA 2011).

      . The procedures we described in Denker and Webber may aid the trial court on remand. Denker, 60 So.3d at 1107; Webber, 756 So.2d at 165-66.


author: EMAS, J.

text:
    Paul LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1081.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.

      Carlos J. Martinez, Public Defender, and Brian Lee Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for appellee.
    Before C0RTIÑAS, EMAS, and LOGUE, JJ.
   EMAS, J.

Paul Lewis appeals from the trial court’s order denying his motion for postconviction relief. Lewis contends that his sentence of life with parole eligibility amounts to a de facto life sentence and violates Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We affirm.

The limited record in this case reveals the following :

In 1981, the defendant Paul Lewis (sixteen years old at the time), was charged with five counts of armed robbery and two counts of aggravated battery. Lewis later entered a negotiated guilty plea in exchange for five concurrent life sentences on the five armed robbery counts, with parole eligibility after twenty-five years.

In 2010, the United States Supreme Court, in Graham, held that the Eighth Amendment prohibits a state from imposing a life-without-parole sentence on a juvenile convicted of a non-homicide offense. The Supreme Court explained its rationale:

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.

560 U.S. at 48,130 S.Ct. at 2030.

Lewis filed a motion for postconviction relief asserting that his life sentences violated Graham, because his current presumptive parole release date (which according to the record below is August 3, 2042) amounts to a de facto life sentence without parole. Lewis contends, in his brief: “Given Mr. Lewis’s experience in Florida’s parole system, he contends that it does not provide a ‘meaningful opportunity’ for release as Graham requires.” However, the sentences imposed upon Lewis are not controlled by the holding in Graham; moreover, Lewis’s current presumptive parole date is a result of his own apparent failure to take advantage of the opportunity offered to him under the parole system.

When Lewis was sentenced to life in 1981, he was eligible for parole after serving twenty-five years, when he would have been forty-one years old. His sentences on their face do not violate Graham because Lewis was sentenced to life with parole eligibility.

Lewis’s “de facto life sentence” argument fails for an independent reason. Lewis’s presumptive parole release date now stands at 2042 because of a variety of disciplinary violations committed by him while serving his sentence. In March 1983, the parole commission established Lewis’s initial presumptive parole release date as July 3, 2033 (when Lewis would be 68 years old). However, just five months later, the parole commission, applying a different matrix established for youthful offenders, reduced Lewis’s presumptive parole release by 155 months-from July 3, 2033 to August 3, 2020 (when Lewis would be 55 years old).

The presumptive parole release date can also be modified (extended or reduced) based upon the parole commission’s periodic review of the conduct and behavior of the prisoner while serving his sentence. See §§ 947.172-174 Fla. Stat. (2013). In Lewis’s case, the parole commission on one occasion reduced his presumptive parole release date by forty-eight months, based upon work performed by Lewis as an institutional barber. However, on at least twelve other occasions between 1987 and 2011, the parole commission extended Lewis’s presumptive parole release date (in varying amounts) based upon disciplinary violations committed by Lewis during his sentence. These modifications, a result of Lewis’s own conduct in prison, resulted in a total of 324 months’ time (twenty-seven years) added to his presumptive parole release date.

Thus, Lewis received precisely what Graham requires:

— No determination at the outset of the sentence that Lewis would never be released from prison;- and
— No guarantee of eventual release, but rather a “meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation.”

The trial court properly denied Lewis’s motion for postconviction relief.

Affirmed.

      . Neither the judgment and sentence, nor the plea colloquy, forms a part of this record.

      . The defendant received sentences of fifteen and five years, respectively, on the two aggravated battery counts, to be served concurrently with each other and concurrently with the life sentences. The sentences for these offenses do not form a part of this appeal.

      . For this reason, the “de facto life sentence” cases cited by Lewis are inapposite. In each of those cases, the defendant received a term-of-years sentence under the current statutory scheme, which offers no parole eligibility and requires a defendant to serve at least eighty-five percent of his sentence before he may be released. See § 944.275(4)(b)3 Fla. Stat. (2013); Adams v. State,-So.3d-, 2012 WL 3193932, 37 Fla. L. Weekly D1865 (Fla. 1st DCA Aug.8, 2012); Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012).

      . This initial presumptive parole release date was based, at least in part, on the fact that Lewis was convicted of five separate armed robberies with a firearm and received concurrent life sentences.

      .The parole commission reviewed Lewis’s status at least once every two years between 1987 and 2011. At each review, the commission was made aware of any disciplinary violations committed by Lewis since the previous review. Over the course of the fourteen-year period, the parole commission referenced a total of forty-three disciplinary violations, ranging in seriousness from disrespectful conduct to possession of weapons and narcotics.


author: LOGUE, J.

text:
    Noah MITCHELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1456.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before CORTINAS, EMAS, and LOGUE, JJ.
   LOGUE, J.

Noah Mitchell appeals his conviction and sentence for one count of animal cruelty. We reverse because comments made by the prosecutor during closing arguments improperly shifted the burden of proof.

I.

On October 3, 2010, following a long day of drinking while assisting with Mitchell’s move, Gary Pitterman, Mitchell, and another friend were eating steaks at Mitchell’s new house. Pitterman fed some steak from a plate to Mitchell’s dog. Mitchell, allegedly upset by this action, took the plate away from the dog and brought it into the kitchen. The dog snatched the steak and ran into another room. As Mitchell attempted to carry the dog away from its hiding place, the dog bit Mitchell. The trial focused on two differing accounts of the events that followed the dog bite.

Pitterman testified that, in response to the bite, Mitchell threw the dog on to the concrete floor, dropped his knee onto the dog’s chest, and punched the dog. Seeing the dog was injured, Pitterman threatened Mitchell that he would call the police if Mitchell did not call a veterinarian for the dog. Mitchell’s testimony presented a different account of the incident. He claimed that when the dog bit him, he dropped the dog to the ground, and then tripped over the dog. Mitchell then drove Pitterman home. Upon his return, Mitchell found that the police had already arrived at his house.

In addition to Pitterman, five other witnesses testified for the State at trial. Three police officers testified with respect to the events that transpired after their arrival on the scene. Two veterinarians, to whom the dog was brought for treatment, testified with respect to that treatment and the injuries that the dog had sustained. Veterinarian Terrasita Carro testified that the dog suffered a collapsed lung, fluid in the lungs, and several fractured ribs. She noted that rib fractures could have resulted only from a severely traumatic event, and that these types of injuries typically result from animals being hit by cars or falling from above the first story of a building.

To a large degree, the case turned on whether the jury should credit the version of events told by Pitterman or Mitchell. In this regard, Mitchell presented evidence attacking Pitterman’s credibility on several points.

During the rebuttal portion of closing argument, the prosecutor made the comments that are the basis of this appeal. First, the prosecutor argued:

What the defense is asking you do is to believe that every single witness in this case is a liar, because that’s what would have to happen for this man over here to be not guilty. Every single person has to be a liar except him.

The defense attorney objected. The judge instructed the prosecutor to rephrase the argument because it was “confusing the burden.” The prosecutor, however, returned to the same theme:

You would have to take the evidence that Doctor Carro gave you, find that she is wrong. You would have to then also take what Gary Pitterman said and that what he said didn’t happen at all, because you can’t have both what the defendant said and what Mr. Pitterman said.

Later in the rebuttal, the prosecutor returned to this theme again and argued “[i]n order to believe the defendant not guilty you would have to suspend all the evidence on its ear.” The defense objected and the court overruled the objection. The prosecutor pressed the point and told the jury “[i]t would cause you to have to ignore everything that you’ve heard.” Defense counsel again objected, and the court again overruled.

The jury ultimately found Mitchell guilty, and the trial judge sentenced him to five years of probation, with a special condition that he serve nine months in the county jail.

II.

Although “wide latitude is accorded a prosecutor during closing argument” and “the control of those comments is within the discretion of the trial court” absent an abuse of that discretion, Bass v. State, 547 So.2d 680, 682 (Fla. 1st DCA 1989), Florida courts have found reversible error for a prosecutor to make arguments that shift the burden of proof in a case. The Florida Supreme Court has explained that

[t]he standard for a criminal conviction is not which side is more believable, but whether, taking all the evidence into consideration, the State has proven every essential element of the crime beyond a reasonable doubt. For that reason, it is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.

Gore v. State, 719 So.2d 1197, 1200 (Fla.1998); see, e.g., Paul v. State, 980 So.2d 1282, 1283 (Fla. 4th DCA 2008) (“The prosecutor’s comment improperly shifted the burden to the defendant because it insinuated that the defendant needed to prove that the prosecutor’s witness was lying in order to be found not guilty.”); Atkins v. State, 878 So.2d 460, 461 (Fla. 3d DCA 2004) (“[I]t is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.”) (citation omitted); Clewis v. State, 605 So.2d 974, 975 (Fla. 3d DCA 1992) (holding that the prosecutor distorted the State’s burden of proof by shifting that burden to the defense in asserting that jurors would have to disbelieve testimony of the State’s witnesses to acquit).

In this case, the prosecutor might have been attempting to argue that defendant’s version of events was contradicted by much of the testimony presented by the other witnesses. This line of argument is, of course, perfectly appropriate. Where the prosecutor erred, however, was by framing the argument in a manner that improperly shifted the burden of proof by implying that the defendant had a burden to establish that the State’s witnesses were lying. In doing so, the prosecutor crossed the line of permissible argument into an erroneous statement of the government’s burden of proof. Covington v. State, 842 So.2d 170, 172 (Fla. 3d DCA 2003) (holding it is permissible for the State to argue that one witness should be believed and another should not, but the State cannot misstate the burden of proof while doing so).

The prosecutor’s comment that “[wjhat the defense is asking you do is to believe that every single witness in this case is a liar, because that’s what would have to happen for this man over here to be not guilty” implied that the defendant had a burden to prove that all the State’s witnesses were lying in order to establish his innocence. But the defendant has no such burden. The test for reasonable doubt is not simply which side is more believable. All of the State’s witnesses could be telling the truth and the State still would have the burden of proving beyond a reasonable doubt all of the elements of the crime. By implying that the defendant had the burden of disproving the State’s witnesses, the prosecutor’s statement impermissibly shifted the burden of proof. See, e.g., Paul, 980 So.2d at 1283; Atkins, 878 So.2d at 461; Clewis, 605 So.2d at 975.

The burden-shifting language is particularly problematic because the prosecutor’s comments indicated that Mitchell had a burden to disprove testimony that was not even in dispute. There was no dispute regarding the veracity of the statements of most of the State’s witnesses. For example, Mitchell did not challenge the police officers’ testimony that they conducted an investigation. Nor did Mitchell contest Dr. Carro’s testimony that the dog suffered a collapsed lung and fractured ribs as a result of the incident. The disputed factual issue concerned whether Mitchell had intentionally and maliciously inflicted these injuries on the animal. Given the State’s burden to prove its case beyond a reasonable doubt, the members of the jury could have believed the testimony of the police officers and the testimony of the veterinarians and still found Mitchell not guilty because they believed Mitchell’s version of the events rather than Pitterman’s.

Moreover, defense counsel timely objected to each of the prosecutor’s comments and, certainly for the last two objections, was clearly overruled by the trial judge. To prevail, therefore, the State must establish that the error reflected in the prosecutor’s comments was harmless. The harmless error analysis “places the burden on the State, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The Florida Supreme Court has emphasized that “the harmless error analysis is not an ‘overwhelming-evidence test.’ ” Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010) (emphasis in original). Instead, “[t]he question is whether there is a reasonable possibility that the error affected the verdict.” DiGuilio, 491 So.2d 1129. “The burden to show the error was harmless must remain on the State. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.” Ventura, 29 So.3d at 1089-90.

The problem with the manner in which the State framed its argument was reinforced, rather than remedied, when the State returned to this theme at least three more times in its rebuttal, even after being cautioned by the trial judge. When determining whether comments constitute reversible error, the comments “should be reviewed within the context of the closing argument as a whole and considered cumulatively within the context of the entire record.” Rivera v. State, 840 So.2d 284, 287 (Fla. 5th DCA 2003) (citations omitted).

The State here fails to carry its burden to establish that the improper comments were harmless. Because Mitchell did not contest that the dog had been injured, the outcome of the trial was heavily dependent on whose version of the events the jury believed — Mitchell or Pitterman. While the State’s true burden was to establish beyond a reasonable doubt that Pitter-man’s version of events was accurate, the prosecutor’s comments gave the mistaken impression that the defendant had the burden of establishing that Pitterman and the other witnesses were lying in order to prove his innocence. This was an impossible task, given the fact that defendant was not contesting the testimony of most of the State’s witnesses. In any event, because the issue of the credibility of the two conflicting witnesses was at the heart of the case, the State cannot establish that there was “no reasonable possibility that the error contributed to the conviction.”

Reversed and remanded.


author: SHEPHERD, C.J.

text:
    Michael PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3250.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.

      Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joanne Diez, Assistant Attorney General, Miami, for appellee.
    Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
   ON MOTION FOR REHEARING

SHEPHERD, C.J.

Upon consideration of the State’s motion for rehearing, we grant rehearing, withdraw the opinion issued November 21, 2012, and substitute the following in its stead:

Michael Perez appeals from the summary denial of his Florida Rule of Criminal Procedure 3.850 motion to withdraw a guilty plea. We reverse the trial court’s order, and remand for an evidentiary hearing to determine whether Perez is entitled to withdraw his plea due to manifest injustice.

On April 15, 1999, Jimmy Ramirez was shot to death while riding his bicycle on the street. Perez, a seventeen-year-old, high school dropout, confessed to the crime one day after the killing and was arrested. At the time, one eyewitness corroborated Perez’s confession — thirteen-year-old Carlos Hernandez, who Perez was visiting at the time of the shooting. Over a year later, Perez again admitted to shooting Ramirez during a competency examination by Dr. Sanford, who also noted Perez’s history of substance abuse. Dr. Sanford found Perez competent to waive his rights. After his motion to suppress the confession was denied, Perez pled guilty to second-degree murder with a firearm, and unlawful possession of a firearm while engaged in a criminal offense. The trial court sentenced Perez to forty years in prison.

In September 2009, almost nine years after entering his guilty plea, Perez filed a motion for postconviction relief under Rule 3.850(b)(1). Perez claimed newly discovered evidence and manifest injustice, and presented two affidavits in support of his claims, one from Javier Delarosa and another from Albert Montanez. Delarosa swore Ramirez died in a drive-by shooting at the hands of a neighborhood gang leader known as Fat Steve, and explained his fear of Fat Steve’s retribution kept him from coming forward with the information at the time. Montanez corroborated Dela-rosa’s story that Ramirez was killed in a drive-by shooting. Montanez further related an incident he witnessed the day after the shooting, when Fat Steve approached Montanez and Perez, ordered Perez to get in the car, and told Montanez if he “wanted to live to see 21 ... to keep [his] mouth close[d].” Like Delarosa, Montanez did not come forward with the exculpatory information because he was afraid of Fat Steve. In his motion, Perez states he witnessed Fat Steve shoot the victim, and Fat Steve threatened to hurt him and his family if he talked. Perez also claims had he known of the existence of other witnesses willing to testify truthfully, he would not have pled.

In summarily denying Perez’s motion, the trial court noted that what Perez submitted as newly discovered evidence merely corroborates what Perez already knew, namely, his innocence. The trial court stated Perez failed to meet “his burden of establishing that vacating his plea is necessary to prevent a manifest injustice.” Perez appeals from this ruling.

On appeal from a summary denial of a motion for postconviction relief, this court must reverse “unless the record shows conclusively that the appellant is entitled to no relief.” Fla. R.App. P. 9.141(b)(2)(D) (emphasis added); see also Fla. R.Crim. P. 8.850(d); Mason v. State, 976 So.2d 80 (Fla. 3d DCA 2008). If the trial court does not conduct an evidentiary hearing, “an appellate court must accept the defendant’s factual allegations as true to the extent they are not refuted by the record.” Mason, 976 So.2d at 80. Further, summary denial of a Rule 3.850(b)(1) motion is rarely appropriate when the credibility of new evidence is at issue. McLin v. State, 827 So.2d 948, 955 (Fla.2002); see also Johnson v. State, 936 So.2d 1196 (Fla. 1st DCA 2006).

A criminal defendant must meet a high threshold to withdraw a guilty plea after sentencing. In such circumstances, the defendant must prove “withdrawal is necessary to correct a manifest injustice.” Scott v. State, 629 So.2d 888, 890 (Fla. 4th DCA 1993); see also Miller v. State, 814 So.2d 1131, 1132 (Fla. 5th DCA 2002). The defendant has the burden of demonstrating a manifest injustice through clear proof of prejudice. Williams v. State, 316 So.2d 267, 274 (Fla.1975). As recognized in Lago v. State, 975 So.2d 613, 614 (Fla. 3rd DCA 2008), where “a manifest injustice has occurred it is the responsibility of the court to correct that injustice, if it can.” As acknowledged in Tompkins v. State, 994 So.2d 1072, 1089 (Fla.2008), “the standard in Florida for a newly discovered evidence claim is more liberal than the standard for raising an actual innocence claim in federal courts.” The Tompkins court elucidated the actual innocence standard as follows:

Under federal law, a defendant is required to produce “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial” for a claim of actual innocence to be considered. House v. Bell, 547 U.S. 518, 537, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Moreover, that new evidence must establish that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” in light of all of the available evidence. Id. at 537, 126 S.Ct. 2064, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (quoting Schlup, 513 U.S. at 327, 115 S.Ct. 851, 130 L.Ed.2d 808). “ ‘[Actual innocence’ means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Moreover, the federal courts have required that defendants asserting actual innocence show that they have been diligent in presenting their claims. See Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir.2004); Baker v. Norris, 321 F.3d 769, 772 (8th Cir.2003); David v. Hall, 318 F.3d 343, 347 (1st Cir.2003); Flanders v. Graves, 299 F.3d 974, 978 (8th Cir.2002).

Id. at 1089.

In this case, because Perez alleged he pled to the charges knowing he was innocent, the trial court reasoned the testimony of Delarosa and Montanez cannot qualify as newly discovered evidence. In a similar situation, however, the Fourth District Court of Appeal determined an evidentiary hearing was required where the victim recanted and the defendant pled while “laboring under the assumption that the victim would testify that appellant had committed [the charged acts].” Whitsett v. State, 993 So.2d 1115, 1116 (Fla. 4th DCA 2008).

Perez’s claim of manifest injustice is not and cannot be conclusively refuted by the present record. Perez’s confession stands at direct odds with the newly discovered testimonial evidence to the contrary, which Perez seeks to present. The weight of this testimonial evidence, and Perez’s ability to prove a manifest injustice occurred, depends upon the credibility of Delarosa and Montanez — a credibility determination that can be made only by calling them as witnesses and evaluating their testimony in open court. Therefore, the trial court erred in denying Perez’s motion without an evidentiary hearing.

Accordingly, we reverse the trial court’s denial of Perez’s motion, and remand for an evidentiary hearing on the issue of manifest injustice.

Reversed and remanded.


text:
    Reyand SHAW, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1891.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy R.M. Thomas, Assistant Attorney General, Miami, for appel-lee.
    Before CORTIÑAS, EMAS, and LOGUE, JJ.
   EMAS, J.

Following a jury trial, Reyand Shaw was convicted of and sentenced for Lewd or Lascivious Exhibition on a Child Under Sixteen, and Lewd or Lascivious Molestation on a Child Under Twelve by a Person Eighteen Years or Older. Reyand Shaw appeals both convictions and sentences. We affirm without further discussion his conviction and sentence for Lewd or Lascivious Exhibition (Count One); for the reasons that follow, however, we reverse the conviction and sentence on the charge of Lewd or Lascivious Molestation (Count Two) and remand for a new trial on that count.

Shaw was charged in a two-count information. Count Two alleged that Shaw, “being a person of the age of eighteen (18) years or older, did unlawfully and intentionally force or entice J.F. (A MINOR), a person less than twelve (12) years of age, to touch the breasts, genitals, genital area, or buttocks, or the clothing covering the breasts, genitals, genital area, or buttocks of said defendant, in violation of 800.04(5)....”

Sections 800.04(5)(a) and (b), Florida Statutes (2006) provide:

(5) Lewd or lascivious molestation.—
(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.
(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a life felony, punishable as provided in s. 775.082(3)(a)4.

It is thus clear that a defendant who intentionally touches a victim in an area of the body prohibited by the statute, and does so in a lewd or lascivious manner, commits the offense of lewd or lascivious molestation. Perhaps less clear (at least at the time of the trial in 2011) is whether the statute requires a defendant act in a lewd or lascivious manner when he forces or entices a victim to touch the defendant in an area of the body prohibited by statute.

At the time of the trial, the standard jury instruction for lewd or lascivious molestation provided in pertinent part:

11.10(c) LEWD OR LASCIVIOUS MOLESTATION
§ 800.04(5), Fla. Stat.

To prove the crime of Lewd or Lascivious Molestation, the State must prove the following three elements beyond a reasonable doubt:

1.(Victim) was less than 12 years of age.
Give 2a or 2b as applicable.
2. (Defendant),
a. intentionally in a lewd or lascivious manner, touched the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (victim).
b. intentionally [forced] [enticed] (victim) to touch the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (defendant).
3. (Defendant) was 18 years of age or older at the time of the offense.

(Emphasis added.)

As can be seen, where the crime charged involves the defendant touching the victim, the 2011 standard jury instruction required proof that the defendant acted in a lewd or lascivious manner. By contrast, where the charge involves the defendant forcing or enticing the victim to touch the defendant, the 2011 standard jury instruction required no such proof.

At the charge conference, Shaw objected to the standard jury instruction because it did not require, as an essential element, that the State prove that the defendant acted in a lewd or lascivious manner when he forced or enticed the victim to touch the defendant. Defense counsel argued that the language of the statute (“or forces or entices a person ... to so touch the perpetrator”) requires proof that the defendant, in the forcing or enticing, acted in a lewd or lascivious manner.

The trial court overruled Shaw’s objection and charged the jury as follows:

To prove the crime of lewd and lascivious molestation, the State must prove the following three elements beyond a reasonable doubt:
[Number one], J.F. (A Minor) was less than 12 years of age;
Number two, Reyand Christopher Shaw intentionally forced or enticed J.F. (A Minor) to touch the genitals, genital area, clothing covering the genitals or clothing covering the genital area of Re-yand Christopher Shaw; and,
Number three, Reyand Christopher Shaw was 18 years of age or older at the time of the offense.

In 2013, while this case was on appeal, the Florida Supreme Court amended this standard jury instruction addressing the very infirmity raised by Shaw during the charge conference. The amended standard jury instruction, as applied to the allegations in this case, now reads in relevant part:

11.10(c) LEWD OR LASCIVIOUS MOLESTATION
§ 800.04(5), Fla. Stat.

To prove the crime of Lewd or Lascivious Molestation, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) was less than 12 years of age.
2. (Defendant), in a lewd or lascivious manner, intentionally [forced] [enticed] (victim) to touch the [breasts] [genitals] [genital area] [buttocks] [clothing covering the breasts] [clothing covering the genitals] [clothing covering the genital area] [clothing covering the buttocks] of (defendant).
3. (Defendant) was 18 years of age or older at the time of the offense.

(Emphasis added to amendatory language.).

The State argues on appeal that Shaw did not adequately preserve this error, and that an unpreserved objection to a missing element in an instruction is not fundamental error where that element relates to an undisputed issue at trial. See Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008). While the proposition of law is correct, the State’s premise is not. A reading of the transcript of the charge conference establishes that Shaw properly and contemporaneously objected to the standard jury instruction, asserting that it failed to include any requirement that the State prove Shaw acted in a lewd or lascivious manner. Because Shaw in fact made a contemporaneous objection and adequately preserved the error, the failure to instruct on this essential element requires reversal and a new trial on the charge of Lewd or Lascivious Molestation (Count Two). See State v. Delva, 575 So.2d 643 (Fla.1991).

Affirmed in part, reversed in part, and remanded for a new trial on Count Two of the information.

      . See In re Standard Jury Instructions in Criminal Cases—Report No. 2012-01, 109 So.3d 721 (Fla.2013). We note that the trial judge did not have the benefit of the Supreme Court's opinion amending the standard jury instruction, as it was issued two years after the trial.

      . Shaw concedes that this omitted element did not pertain to a material issue in dispute at trial.


text:
    The STATE of Florida, Appellant, v. Mark CONROY, Appellee.
    No. 3D11-1197.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jay E. Silver, Assistant Attorney General, Miami, for appellant.
    Jeffrey D. Swartz, Riverview, for appel-lee.
    Before CORTIÑAS, EMAS and LOGUE, JJ.
   EMAS, J.

The State of Florida appeals from the entry of an order dismissing four of the five counts in the State’s third amended information. The State contends that because the amended information was filed before defendant filed his notice of expiration, the trial court erred in dismissing the amended charges. We affirm in part and reverse in part.

Appellee Mark Conroy (“Conroy”) was arrested on February 24, 2008. On March 17, 2008, the State filed an information charging Conroy with Shooting or Throwing a Deadly Missile (Count One) and Criminal Mischief (Count Two).

In May 2008, the State filed an amended information, charging Conroy with Criminal Mischief (Count One) and Attempted First Degree Murder (Count Two). Count Two alleged that the victims of the Attempted First Degree Murder were “CLAUDIO PRADO and/or BELKIS VASQUEZ and/or LAZARO PRADO and/or ANGEL PRADO.”

In May 2009, following several continuances, the State filed a second amended Information, charging Conroy with Attempted First Degree Murder (Count One) (again alleging multiple victims in the same conjunctive/disjunctive manner); Shooting or Throwing a Deadly Missile (Count Two); and Aggravated Assault with a Firearm (Count Three). Count Three alleged that the victims of the Aggravated Assault were “CLAUDIO PRADO and/or BELKIS VASQUEZ and/or LAZARO PRADO and/or ANGEL PRADO.” Conroy was arraigned and the matter was set for trial on August 31, 2009.

After several additional continuances in 2009 and 2010, the matter was reset for trial on February 7, 2011. At that time the State requested a continuance of the trial date. Conroy did not object to the State’s request but' indicated he would file a demand for speedy trial. The court granted a State continuance and the matter was set for trial on April 25, 2011.

On February 22, 2011, Conroy filed a Demand for Speedy Trial pursuant to Florida Rule of Criminal Procedure 3.191(b). On February 23, the court held a hearing on the speedy demand and reset the trial date from April 25 to March 8. However, at a hearing on March 2, the State advised it would not be ready for trial March 8, but recognized that the original trial date of April 25 was no longer appropriate because a speedy demand had been filed and the April 25 trial date would fall outside the speedy trial period.

Defense counsel indicated that he would not file a notice of expiration until April 25, 2011. The court reset the trial to the original date of April 25, 2011.

On April 25, 2011, the day of the scheduled trial, the State filed its third amended information, which is the subject of this appeal. This third amended information contained the original (and unamended) charge of Shooting or Throwing a Deadly Missile but significantly altered the Attempted First Degree Murder and Aggravated Assault counts in the following manner:

Instead of a single count of Attempted First Degree Murder alleging four possible victims conjunctively and disjunctively (i.e., “CLAUDIO PRADO and/or BELKIS VASQUEZ and/or LAZARO PRADO and/or ANGEL PRADO”), the third amended information alleged two separate counts of Attempted First Degree Murder, naming Claudio Prado as the victim in Count One and Belkis Vazquez as the victim in Count Two;

In addition, instead of a single count of Aggravated Assault with a Firearm alleging four possible victims conjunctively and disjunctively (i.e., “CLAUDIO PRADO and/or BELKIS VASQUEZ and/or LAZARO PRADO and/or ANGEL PRADO”), the third amended information alleged two separate counts of Aggravated Assault with a Firearm, naming Claudio Prado as the victim in Count One and Belkis Vazquez in Count Two.

Thus, instead of three counts (Shooting or Throwing a Deadly Missile, Attempted First Degree Murder, and Aggravated Assault), this information now contained five counts (Shooting or Throwing a Deadly Missile, two counts of Attempted First Degree Murder, and two counts of Aggravated Assault).

On the same day that the State filed its third amended information, Conroy filed his notice of expiration of the speedy trial period (which he could have filed eleven days earlier, but for defense counsel’s agreement not to file it until April 25).

Conroy moved to dismiss all five counts of the third amended information. Following argument from both sides, the court entered an order dismissing Counts One and Two (Attempted First Degree Murders) and Four and Five (Aggravated Assaults), but denied the motion as to Count Three (Shooting or Throwing a Deadly Missile). This appeal by the State followed.

While the granting of a motion to dismiss based on speedy trial grounds is generally reviewed de novo, see State v. Nelson, 26 So.3d 570, 573-74 (Fla.2010), the instant case presents multiple standards of review. Because the trial court granted the motion, at least in part, on a determination that the filing of the third amended complaint, after expiration of the speedy trial period, violated the intent and effect of the speedy trial rule and resulted in prejudice to the defendant, the trial court’s action requires an exercise of judgment and discretion, which we review under an abuse of discretion standard. See e.g., State v. Gillis, 876 So.2d 703 (Fla. 3d DCA 2004) (applying abuse of discretion standard to review dismissal of information based upon violation of discovery rules); Hernandez v. City of Miami, 35 So.3d 942 (Fla. 3d DCA 2010) (applying abuse of discretion standard to review court’s dismissal of civil action as a sanction). To the extent our review involves the trial court’s interpretation or construction of the speedy trial rule itself, the standard of review is de novo. See Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006).

Florida Rule of Criminal Procedure 3.191(b) (2011) provides:

(b) Speedy Trial upon Demand. Except as otherwise provided by this rule, and subject to the limitations imposed under subdivisions (e) and (g), every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days, by filing with the court a separate pleading entitled “Demand for Speedy Trial,” and serving a copy on the prosecuting authority.
(1) No later than 5 days from the filing of a demand for speedy trial, the court shall hold a calendar call, with notice to all parties, for the express purposes of announcing in open court receipt of the demand and of setting the case for trial.
(2) At the calendar call the court shall set the case for trial to commence at a date no less than 5 days nor more than 45 days from the date of the calendar call.
(3) The failure of the court to hold a calendar call on a demand that has been properly filed and served shall not interrupt the running of any time periods under this subdivision.
(4)If the defendant has not been brought to trial within 50 days of the filing of the demand, the defendant shall have the right to the appropriate remedy as set forth in subdivision (p).

Subdivision (p) provides the remedy and so-called “recapture period” once the applicable speedy trial period has expired:

(p) Remedy for Failure to Try Defendant within the Specified Time.
(1) No remedy shall be granted to any defendant under this rule until the court has made the required inquiry under subdivision (j).
(2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.
(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime.

Here, Conroy filed his demand for speedy trial on February 22, 2011. The fifty-day period within which to bring Con-roy to trial expired on April 13, 2011. However, due to scheduling difficulties, the court set the trial for April 25, 2011, with Conroy’s agreement that the defense would not file a notice of expiration until that date. But the defendant did not agree to extend the speedy trial period, nor did the State request, or the trial court determine, that such an extension was warranted under the circumstances. See Rule 3.191(1) (setting forth exceptional circumstances permitting an extension of the speedy trial period).

Therefore, it is clear that by April 25 the speedy trial period had expired although no notice of expiration had yet been filed. The State contends that, because no notice of expiration was filed by the time the State filed its third amended information, the trial court erred in dismissing the four counts of the third amended information.

The trial court determined that dismissal was warranted because:

—The third amended information was filed after the expiration of the speedy trial period;

—The third amended information added two new substantive counts, exposing Con-roy to an additional mandatory minimum sentence of forty years on the additional counts, and an additional maximum sentence of life (attempted first degree murder) and five years (aggravated assault).

—The State’s filing of the third amended complaint to add these two new counts, more than three years after the initial information, after expiration of the speedy trial period, and on the day of trial, violated Rule 3.191(o).

Rule 3.191(0) provides:

(o) Nolle Prosequi; Effect. The intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode, whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.

Cases applying this subdivision of the rule have held:

[Although the state may amend an information after the speedy trial time expires, the state may not circumvent the intent and effect of the speedy trial rule by lying in wait until the speedy trial time expires and then amending an existing information in such a way that results in the levying of new charges (if those new charges arise from the same facts and circumstances giving rise to the original charge).

Pezzo v. State, 903 So.2d 960, 962 (Fla. 1st DCA 2005).

Upon our review of the record, we hold that there was competent substantial evidence to support the trial court’s determination that the State’s actions were intended to avoid the intent and effect of the speedy trial rule.

The next question is whether the trial court abused its discretion in finding Conroy was prejudiced by the filing of the third amended information after the expiration of the speedy trial period. We hold that the court did not abuse its discretion in making this determination. The third amended information now contains a total of five counts (instead of three), and the resulting prejudice to Conroy is obvious: after the speedy trial had expired and on the day trial was scheduled to commence, the State added two new, previously-un-filed charges (one count each of Attempted First Degree Murder and Aggravated Assault) exposing Conroy to possible additional sentences of life in prison and two twenty-year minimum mandatory terms. We conclude that the trial court did not abuse its discretion in determining that the amended information, adding two new counts after expiration of the speedy trial period and on the day of trial, resulted in prejudice to Conroy. See State v. Clifton, 905 So.2d 172 (Fla. 5th DCA 2005) (finding prejudice flowed from State amending information to include additional arson count after the expiration of the speedy trial period).

It is self-evident that permitting the State to charge new substantive offenses on the day of trial, after the speedy-trial-upon-demand period has expired, could adversely affect Conroy’s preparation and readiness for trial, thereby forcing Conroy to withdraw his previously-filed speedy demand to prepare to meet the newly-filed charges. The record supports the trial court’s determination of prejudice which flowed from the State’s actions.

However, the court dismissed not only these “new” charges (Counts Two and Five), but dismissed Counts One and Four as well, presumably on the basis that these were now “different” charges, since the State amended the original counts to remove the “and/or” language and the allegation of multiple victims. We hold that the trial court erred in the dismissal of these counts. Because this requires the interpretation of the phrase “new and different charges” under Rule 3.191(o), we review de novo this aspect of the court’s order.

In granting the dismissal, the trial court should have tailored the dismissal to vitiate the prejudice suffered by Conroy as a result of the State’s amendment. Instead of dismissing the four counts (i.e., both attempted murder and both aggravated assault charges) the court should have either required the state to elect among the counts (Count One or Two but not both; Count Four or Five but not both) or should simply have stricken the third amended information and reinstated the second amended information, thus placing the parties back in the same position they occupied prior to the filing of the third amended information. See Whitehall v. State, 81 So.Sd 599 (Fla. 2d DCA 2012) (reinstating the prior original information because the amended information constituted a new charge filed after the speedy trial period had expired).

The trial court evidently concluded that, because the State “split” the attempted murder count into two “new” counts (removing the “and/or” and instead charging a single victim in each of the two counts), both Counts One and Two (and Counts Four and Five) were all “new” charges. We hold that this was an erroneous application of Rule 3.191(o). Surely if the State, instead of filing a new information with new charges, had merely amended Count One and Count Three to remove the multiple victim allegations and allege only a single victim in each of those counts, there could be no claim of prejudice by Conroy.

In conclusion, we hold the trial court did not abuse its discretion in determining that the State’s filing of the third amended information, after the expiration of the speedy trial period but before the filing of the notice of expiration, and the addition of new and different charges on the day of trial, resulted in cognizable prejudice to the defendant and violated Rule 3.190(o).

However, we reverse that portion of the trial court’s order dismissing counts One, Two, Four and Five, and remand to the trial court with directions to reinstate the second amended information.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

      . Contraiy to the position, it took before the trial court, the State argues on appeal that the speedy trial period had not yet expired on April 25, the date on which the third amended information was filed. The State's position on appeal is incorrect. Pursuant to Florida Rule of Criminal Procedure 3.191(b), ("Speedy Trial upon Demand”), a defendant has a right to demand a speedy trial. Within five days of the demand, the trial court must hold a calendar call and set the case for trial no less than five days, nor more than forty-five days, from the date of the calendar call. If the defendant has not been brought to trial within fifty days of the filing of the demand, the defendant is entitled to file a notice of expiration and the appropriate remedy under Rule 3.190(p).
      The speedy trial demand was filed on February 22, 2011. Thus, the speedy trial period began to run on February 23, 2011 (see Fla. R. Jud. Admin. 2.514(a)), and the fifty-day speedy trial period expired on April 13, 2011, entitling Conroy to file a notice of expiration after that date (but for his agreement to withhold filing of the notice until the trial date of April 25).

      . Count Three of the third amended information is not a subject of this appeal.

      . In determining the appropriate standard of review, the focus should be not on the nature of the procedural act (e.g., granting a sworn motion to dismiss v. granting a motion to suppress) but rather the underlying adjudicative basis for the action (e.g., conclusions of law v. determinations of fact). Where the procedural act is premised on more than one adjudicative basis, we may be required to apply multiple standards of review. See generally Philip J. Padavano, Florida Appellate Practice, §§ 19:3-6, 27:7 (2013).

      .As will be seen in the discussion infra, the order of dismissal is premised upon Florida Rule of Criminal Procedure 3.190(o), which provides that the
      intent and effect of this rule shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode, whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.
      (Emphasis added).

      . On a more general note, practitioners are reminded that they are required to include, in their brief, the applicable appellate standard (or standards) of review. See Fla. R.App. P. 9.210(b)(5). Neither brief included a standard of review. This requirement is not a mere formality; determining the appropriate standard of review establishes the proper framework for our analysis and the degree of deference afforded the trial court’s determinations.

      . Subdivision (j) addresses the defendant’s availability for trial and is not relevant to the instant case.

      . Counts One, Two, Four and Five each charge that Conroy, in the commission of the crime, discharged a firearm; if Conroy is convicted as charged, the trial court is required to impose a mandatory minimum prison sentence of twenty years on each of those counts, to run consecutively. See §§ 775.087(2)(a)2 and (2)(d), Fla. Stat. (2011).

      . Pezzo involved application of subdivision (o) to a speedy trial without demand; however, the analysis is equally applicable to the instant facts.

      . Generally, the filing of a signed and sworn amended information effects a nolle prosequi of the prior information. State v. Belton, 468 So.2d 495 (Fla. 5th DCA 1985); State v. Stell, 407 So.2d 642 (Fla. 4th DCA 1981). However, because we are directing the reinstatement of the second amended complaint, the State need not refile it, and the parties are each returned to the position they held before the order of dismissal. See Geiger v. State, 532 So.2d 1298 (Fla. 2d DCA 1988).

      . During this appeal it has been suggested that the second amended information was legally defective because of the use of disjunctive/conjunctive allegations of multiple victims in a single count. Because attempted first degree murder and aggravated assault are each a specific intent crime, the requisite intent must be directed toward a specific victim and, thus, the "and/or” language in the charges would appear to be improper. Separate and distinct offenses may not generally be alleged in a single count of an information. State v. Dell'Orfano, 651 So.2d 1213 (Fla. 4th DCA 1995).
      We need not reach this issue, nor do we determine whether an amendment to cure these perceived defects would be proper after the speedy trial period has expired. However, an amendment that cures an otherwise defective pleading is generally not the type of "prejudice” envisioned by the rules. See Lackos v. State, 339 So.2d 217 (Fla.1976) (granting the State's amendment to include the correct corporate name when the defendant failed to show any prejudice); Fla. R. Crim. P. 3.140(j) (providing "[a]n information on which the defendant is to be tried that charges an offense may be amended on the motion of the prosecuting attorney or defendant at any time prior to trial because of formal defects.”); State v. Garcia, 692 So.2d 984 (Fla. 3d DCA 1997) (holding state was entitled to amend information on day of trial to correct date of alleged offense from June 24 to July 24, where no prejudice flowed from late correction of scrivener’s error). An amendment which adds a new substantive charge or substitutes a new and previously-unnamed victim are examples of the type of prejudice sought to be prevented under the rule. Pezzo, 903 So.2d at 962.


text:
    Angelo WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1805.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and EMAS and FERNANDEZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Angelo Williams was charged with robbery with a deadly weapon or firearm. Williams was convicted for robbery with a weapon, as a lesser included offense and sentenced to ten years in prison.

Based upon the State’s proper and commendable confession of error that the trial court improperly denied the defense’s peremptory challenges to two prospective jurors upon an erroneous conclusion that the defense’s proffered reasons for the challenges were not race and gender neutral, we reverse the judgment and sentence and remand for a new trial.

Reversed and remanded.


author: SCHWARTZ, Senior Judge.

text:
    Mark F. PETERSON, Appellant, v. LAKE SURPRISE II CONDOMINIUM ASSOC., et al., Appellees.
    No. 3D13-352.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Mark F. Peterson, in proper person.
    Samuel A. Persaud; Daniel C. Consueg-ra and Christopher Hixson, Seminole, for appellees.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

We find there is clear error in each of the two post-final default judgment of foreclosure orders challenged on appeal:

1) There is no lawful basis for the order granting a Fla. R. Civ. P. 1.540(b)(1) motion for relief from the default judgment, which was based upon the mortgagee’s conscious and deliberate — but sadly mistaken — decision, made contrary to advice of counsel, that it was not necessary to answer the complaint. A conscious decision not to comply with the requirements of the law cannot be “excusable neglect” under the rule or any other equivalent requirement. See Geer v. Jacobsen, 880 So.2d 717 (Fla. 2d DCA 2004) (holding that a conscious but erroneous decision not to answer complaint cannot be excusable neglect); U.S. v. Hooper, 43 F.3d 26 (2d Cir.1994) (holding that failure to file timely notice of appeal due to ignorance of the law does not establish excusable neglect justifying late filing).
2) The same is true of the order vacating the regularly conducted judicial sale of the property at which the appellant was the purchaser. See Lazcar Intern., Inc. v. Caraballo, 957 So.2d 1191 (Fla. 3d DCA 2007) (“For a trial court to grant a motion to set aside a default final judgment, the moving party must show three things: (1) the failure to file a responsive pleading was the result of excusable neglect; (2) the moving party has a meritorious defense; and (3) the moving party acted with due diligence in seeking relief from the default.”); Cicoria v. Gazi, 901 So.2d 282 (Fla. 5th DCA 2005) (limiting the jurisdiction of a trial court to vacate a judicial sale, after the issuance of a certificate of sale, to instances in which there is misconduct in the sales process or irregularities in the notice process); see also Fla. Stat. § 702.07 (2012) (“[t]he circuit courts of this state, and the judges thereof at chambers, shall have jurisdiction, power, and authority to rescind, vacate, and set aside a decree of foreclosure of a mortgage of property at any time before the sale thereof has been actually made (emphasis added).

The orders under review are therefore reversed and the cause is remanded to the trial court with directions to confirm the final default judgment of foreclosure, the sale, and the certificate of title issued to the appellant.

Reversed and remanded.


author: FERNANDEZ, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Ivonne LAUGHLIN-ALFONSO, Appellee.
    No. 3D12-675.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.

      Russo Appellate Firm, Ubaldo J. Perez, Jr., and Elizabeth K. Russo, Miami, for appellant.
    Alvarez, Carbonell, Feltman, Jimenez & Gomez, and Paul B. Feltman, Coral Gables, for appellee.
    Before LAGOA and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   FERNANDEZ, J.

State Farm Florida Insurance Company-appeals the trial court’s order denying its motion for attorney’s fees. We reverse because State Farm’s nominal settlement offer to its insured Ivonne Laughlin-Alfon-so was not made in bad faith and, as such, State Farm was entitled to an award of attorney’s fees.

Laughlin-Alfonso submitted a supplemental home damage claim to State Farm through her public adjustor, after which State Farm requested several documents from Laughlin-Alfonso that included a Sworn Proof of Loss. Laughlin-Alfonso did not comply with State Farm’s requests.

Laughlin-Alfonso thereafter filed suit. She once again did not comply with any of State Farm’s requests during the course of discovery. She also denied State Farm’s nominal settlement offer.

The trial court ultimately entered summary judgment for State Farm. State Farm then moved for attorney’s fees under section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442. The trial court denied the motion and found that State Farm made the initial settlement offer in bad faith.

We conclude that State Farm did not act in bad faith when it made the nominal settlement offer to Laughlin-Al-fonso. The abuse of discretion standard of review governs this Court’s review of a trial court’s determination that a proposal for settlement was not made in good faith. See Event Servs. Am., Inc. v. Ragusa, 917 So.2d 882, 884 (Fla. 3d DCA 2005). It is well established that insureds must comply with conditions precedent to filing a lawsuit against their insurer, including submission of a Sworn Proof of Loss. See Gonzalez v. State Farm Fla. Ins. Co., 65 So.3d 608 (Fla. 3d DCA 2011); Edwards v. State Farm Fla. Ins. Co., 64 So.3d 730, 732-33 (Fla. 3d DCA 2011). To determine whether State Farm’s settlement offer was justified, we consider whether “the record demonstrates conclusively that, at the time [the offer] was made, ‘[State Farm] ... had a reasonable basis ... to conclude that [its] exposure was nominal.’” Dep’t of Highway Safety & Motor Vehicles v. Weinstein, 747 So.2d 1019, 1020 (Fla. 3d DCA 1999) (quoting Fox v. McCaw Cellular Commc’ns, Inc., 745 So.2d 330, 333 (Fla. 4th DCA 1998)).

The terms of the State Farm insurance policy required Laughlin-Alfonso to assist State Farm in its investigation of her claim to the best of her ability before she filed suit. The record reflects that Laughlin-Alfonso did not respond to any of State Farm’s requests and failed to submit a Sworn Proof of Loss. Laughlin-Alfonso also failed to respond to State Farm’s discovery requests. Additionally, she failed to submit any credible evidence to support her supplemental claim, other than the public adjuster’s report.

We thus conclude that State Farm had a reasonable basis to believe that its exposure was nominal and did not act in bad faith when it made the settlement offer to Laughlin-Alfonso. We therefore reverse the trial court’s order denying State Farm’s motion for attorney’s fees, and remand with instructions to enter an attorney’s fee award in State Farm’s favor.

Reversed and remanded with instructions.


text:
    JPMORGAN CHASE BANK, etc., Appellant, v. Ivelisys SARMIENTO, et. al., Appellees.
    No. 3D12-2766.
    District Court of Appeal of Florida, Third District.
    July 31, 2013.
    Shapiro, Fishman & Gaché, LLP, Ileen J. Cantor and Ronald M. Gaché, Boca Ra-ton, for appellant.
    Ivelisys Sarmiento, in proper person; Alberto N. Moris for appellee, Kendall Lake Towers Condominium Association, Inc.
    Before WELLS, SUAREZ and FERNANDEZ, JJ.
   FERNANDEZ, J.

JPMorgan Chase Bank, etc., appeals the trial court’s order of dismissal for failure to prosecute. We reverse and remand for further proceedings because record activity occurred within sixty days of when Chase received notice of failure to prosecute.

In October of 2009, Chase filed the underlying mortgage foreclosure suit. By May of 2010, the case had stalled, and on June 1, 2011, the trial court sent Chase notice of failure to prosecute. Chase thereafter filed a Motion to Amend Plaintiffs Name and Change Case Style, and the court issued an order finding good cause why the action should remain pending.

On June 14, 2012, the trial court sent Chase a second notice for failure to prosecute. Chase then filed a motion for summary judgment, a notice of filing an original loan document, and three amended affidavits in support of summary judgment.

We conclude that there was record activity sufficient to preclude dismissal for failure to prosecute. Florida Rule of Civil Procedure 1.420(e) allows the court to dismiss an action where “it appears on the face of the record that no activity ... has occurred for a period of 10 months....” Fla. R. Civ. P. 1.420(e). After giving proper notice, the court may dismiss the action “[i]f no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice....” Id. The Florida Supreme Court has taken a “bright line interpretation of rule 1.420(e), under which any filing of record is sufficient to preclude dismissal....” Chemrock Corp. v. Tampa Elec. Co., 71 So.3d 786, 792 (Fla.2011) (emphasis added).

The record reflects that Chase timely filed multiple filings with the trial court after it received the June 14, 2012, notice for failure to prosecute. Such record activity is sufficient to preclude dismissal. See Chemrock, 71 So.3d at 792; Nalley v. Rotstein, 109 So.3d 894 (Fla. 5th DCA 2013); Miami-Dade Cnty. v. Walker, 948 So.2d 68 (Fla. 3d DCA 2007). Therefore, the dismissal order is reversed and remanded for further proceedings.

Reversed and remanded for further proceedings.

      . When the trial court dismissed the case, it also struck Chase’s filing of the original note, asserting that it was in violation of an administrative order which instructed plaintiffs not to file an original note. The Eleventh Judicial Circuit Administrative Memorandum 12-E provides that the law firm who files an original note would be responsible to its client and to the borrower for any subsequent loss or inability to locate the note. The memorandum, however, does not state that filings, including an original note, will be stricken. Thus, it was error for the trial court to strike Chase’s filing and dismiss the action. Cf. U.S. Bank Nat’l Ass’n v. Cowell, 86 So.3d 1214 (Fla. 3d DCA 2012).