author: WARNER, J.

text:
    Carlos A. LUNA, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2859.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Roger Cabrera of Cabrera & Zacea, LLP, Miramar, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

WARNER, J.

We deny appellant’s motion for rehearing, but grant the motion for written opinion. We . withdraw our previously issued opinion and substitute the following in its place.

Appellant challenges his conviction, claiming that the trial court erred in denying his motion to suppress the drug evidence seized pursuant to a search warrant. He claims that the warrant was defective, because the affidavit upon which it was issued omitted material information. We disagree and affirm.

A neighbor of appellant called the police to inform them that she suspected that drugs were being grown in appellant’s house. A road patrol officer was dispatched to the location. After speaking with the neighbor, the officer approached the home. He went around the side of the home and peeked in a window. He observed no furniture, and it appeared that the house was empty. He also looked at the electric meter which was turning “fast.” He provided this information to his superiors in an email. As a result, a detective in the narcotics unit was assigned to investigate.

Four days later, the detective went to the house. Upon approaching the front door, he experienced an overwhelming smell of marijuana, along with the sound of oscillating fans and water pumps inside the house, which he believed from his experience to be evidence of a “grow operation.” The detective then applied for a search warrant for the home. His affidavit omitted the facts of the first encounter by the road patrol officer, although the affidavit did include the information regarding the neighbor’s report. The magistrate issued the warrant.

Two days later, officers continued their surveillance of the home and saw appellant leaving the house. He was stopped, and the officers smelled marijuana, leading to his arrest. The officers then executed the search warrant, finding marijuana plants and cultivation equipment, as well as documents tying appellant to the operation.

Appellant moved to suppress the seized property, contending that the detective’s affidavit used to obtain the search warrant omitted material information of the original illegal search of the property. The trial court held a hearing at which the narcotics detective testified that he had based his investigation on the neighbor’s tip and did not consider the information from the road patrol officer. The court found that the omissions in the affidavit were not material. Even though the road patrol officer’s activities were an illegal search because of the entry onto the property without any exigent circumstances, see, e.g., Lollie v. State, 14 So.3d 1078 (Fla. 1st DCA 2009), there was a clear and unequivocal break between the illegal activity and the issuance of the search warrant due to the narcotics detective’s separate and independent investigation. After the denial of the motion, appellant pled to the charges, reserving his right to appeal this dispositive issue.

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Rowell v. State, 83 So.Sd 990, 993-94 (Fla. 4th DCA 2012) (citation and quotations omitted). “The appellate court defers to the trial court’s findings regarding the facts and uses the de novo standard of review for legal conclusions.” Nshaka v. State, 82 So.3d 174,178-79 (Fla. 4th DCA 2012) (citation omitted); see also Bethel v. State, 93 So.3d 410, 413 (Fla. 4th DCA 2012).

Appellant claims that the trial court erred in denying his motion to suppress, because the search warrant would not have been issued had the detective included in the affidavit the illegal conduct of the road patrol officer in peering in the windows, which started the investigation. With respect to search warrants, in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the court held that if a defendant makes a substantial showing that the affiant knowingly or intentionally or with reckless disregard included a false statement in a probable cause affidavit the court must hold a hearing. Id. at 156-57, 98 S.Ct. 2674. If the defendant establishes such proof by a preponderance of the evidence, the court must suppress the fruits of a search. Id. at 157, 98 S.Ct. 2674. The Franks rule has been extended to material omissions from affidavits. See Johnson v. State, 660 So.2d 648, 656 (Fla.1995). In Johnson, the court held:

[T]he Franks standard applies to alleged omissions from probable cause affidavits except that (1) the reviewing court must determine whether the omitted material, if added to the affidavit, would have defeated probable cause, and (2) the reviewing court must find that the omission resulted from intentional or reckless police conduct that amounts to deception.

Id. (emphasis in original).

There is no question that the affidavit as written provides probable cause for issuance of the search warrant. Thus, would the prior illegal entry onto the property defeat probable cause? The appellant’s contention is that the prior illegality prevents the issuance of the search warrant, because such evidence would be barred as the “fruit of the poisonous tree.” We disagree. The trial court found that the narcotic detective’s investigation was independent of the original entry on the land. The detective considered only the neighbor’s report and his own investigation. In Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984), the Supreme Court explained that a prior illegal search does not always lead to the suppression of evidence. It depends upon the nature and attenuation of the illegal conduct to the search:

The Court has never held that evidence is “fruit of the poisonous tree” simply because “it would not have come to light but for the illegal actions of the police.” See Wong Sun [v. United States, 371 U.S. 471,] 487-488, 83 S.Ct., at 417-418, 9 L.Ed.2d 441 [ (1963) ]; Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Brown v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 2259, 45 L.Ed.2d 416 (1975). That would squarely conflict with Silverthorne [v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) ] and our other cases allowing admission of evidence, notwithstanding a prior illegality, when the link between the illegality and that evidence was sufficiently attenuated to dissipate the taint. By the same token, our cases make clear that evidence will not be excluded as “fruit” unless the illegality is at least the “but for” cause of the discovery of the evidence. Suppression is not justified unless “the challenged evidence is in some sense the product of illegal governmental activity.”

Id. at 815, 104 S.Ct. 3380. Here, the illegal conduct of the road patrol officer was not the “but for” cause of the discovery of the evidence. The tip by the neighbor is what drew law enforcement’s attention to the house. Therefore, even had the information from the road patrol officer been included in the affidavit, the illegality of the officer’s entry onto the land would not have prevented the issuance of the search warrant. The omission did not compromise the remainder of the information which led the court to issue the warrant.

We reject the remaining arguments made by appellant and affirm the conviction and sentence.

MAY and CONNER, JJ., concur.

      . Contrary to appellant’s characterization, we do not view the neighbor as an anonymous tipster. She met with the officer face-to-face, and the officer knew of her residence even though she did not give her name. She was a citizen informant. See J.P.N. v. State, 931 So.2d 1066, 1068 (Fla. 4th DCA 2006); McKelvin v. State, 53 So.3d 401, 405 (Fla. 4th DCA 2011).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jack MELENDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3347.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order revoking appellant’s probation but remand to the circuit court to enter a written order memorializing its oral ruling at the end of the violation of probation hearing. See Robinson v. State, 74 So.3d 570, 572 (Fla. 4th DCA 2011).

DAMOORGIAN, C.J., GROSS and MAY, JJ., concur.


text:
    Tyrone Anthony JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3563.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Tyrone Anthony Johnson appeals his convictions for possession of marijuana with intent to sell within 1000 feet of a park, possession of MDMA with intent to sell within 1000 feet of a park, and possession of drug paraphernalia. We affirm without discussion the first issue raised by appellant. As to appellant’s second issue on appeal regarding the trial court’s denial of his second motion for new trial, we conclude that (1) appellant abandoned the motion when he filed a notice of appeal, thus divesting the trial court of jurisdiction to rule on the motion, and (2) appellant failed to appeal from the trial court’s order denying his second motion for new trial.

On July 5, 2013, after the jury found appellant guilty of the drug offenses, defense counsel filed a timely Motion to Interview Jurors and Motion for New Trial. The trial court denied the motion because the alleged misconduct inhered in the verdict. On September 13, 2013, defense counsel filed a second motion for new trial, based on newly discovered evidence. On September 20, 2013, defense counsel filed a notice of appeal. On October 16, 2013, the trial court entered its order denying the second motion for new trial.

Both parties agree that when appellant filed a notice of appeal, while his second Motion for New Trial was pending before the trial court, he abandoned the motion and divested the trial court of jurisdiction to rule on it. “[A] party abandons previously filed post-final judgment motions when he files a notice of appeal to review that very judgment.” In re Forfeiture of $104,591 in U.S. Currency, 589 So.2d 283, 285 (Fla.1991); see also Beyel Bros., Inc. v. Lemenze, 720 So.2d 556, 558 (Fla. 4th DCA 1998) (“[T]he filing of the notice of appeal divested the trial court of jurisdiction to hear a motion that pertained to the underlying final judgment.”). If the trial court issues an order without jurisdiction, the order is a nullity. Baker v. State, 128 So.3d 41, 41-42 (Fla. 3d DCA 2012).

Furthermore, we lack jurisdiction to review the trial court’s denial of appellant’s second Motion for New Trial, because appellant did not file an amended notice of appeal of that order. See Velickovich v. Ricci, 391 So.2d 258, 260 (Fla. 4th DCA 1980) (“This court cannot review judicial acts of a trial court taking place after the filing of a notice of appeal unless those judicial acts are themselves made the subject of a new notice of appeal or other appropriate appellate proceedings.”).

Affirmed.

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

      . We note that this case is not controlled by the newly adopted amendments to the appellate rule, which render this opinion obsolete. The rule now provides that a premature appeal does not abandon a pending motion for new trial. See In re Amendments to the Florida Rules of Appellate Procedure, -— So.3d -, 39 Fla. L. Weekly S665, 39 Fla. L. Weekly S775, 2014 WL 5714099 (Fla. Nov. 6, 2014)("Rule 9.020(i) is amended to eliminate the language providing that postjudgment motions are abandoned upon the filing of a notice of appeal. The amended rule will allow an appeal to be held in abeyance until disposition of a postjudgment motion.”).


text:
    Latasia WEBB, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4232.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Latasia Webb (“defendant”) pled no contest to uttering a forged or false instrument (bank check), and in return received a withhold of adjudication and five years of probation. Two months later, defendant pled guilty to probation violations, and the court reinstated her probation with a modification that she complete six months of day reporting. Approximately three months after her probation was reinstated, the State filed new affidavits alleging defendant violated probation once again by failing to attend and successfully complete day reporting and the re-entry program (condition 18), failing to report to her probation officer (condition 1), and changing her place of residence without procuring consent from her probation officer (condition 3). At the conclusion of the hearing on the violations, the trial court found there was sufficient evidence that defendant violated all three of these probation conditions. As a result, the trial court revoked her probation, adjudicated her guilty of the underlying crime, and sentenced her to five years in prison. On appeal, defendant argues that the trial court erred in revoking her probation because the violations of both conditions 18 and 3 were founded solely on hearsay evidence. For the reasons set forth below, we reverse the trial court’s order.

“In probation revocation cases the trial court has broad discretion to determine whether a condition of probation has been violated.” Perez v. State, 801 So.2d 1001, 1001 (Fla. 4th DCA 2001). “Accordingly, the appropriate standard of review for judgments finding probation violations is whether the trial court abused its discretion in finding the violation.” Hurst v. State, 941 So.2d 1252, 1253 (Fla. 1st DCA 2006). “For a violation of a condition of probation to trigger a revocation, the violation must be willful and substantial, and the state must prove it by the greater weight of the evidence.” Tobias v. State, 828 So.2d 1066, 1068 (Fla. 4th DCA 2002). Proof sufficient for a criminal conviction is not required. See Stevens v. State, 409 So.2d 1051, 1052 (Fla.1982). Rather, “[t]he proper standard .:. is whether a preponderance of the evidence establishes that the probationer committed the charged offense.” Bowser v. State, 937 So.2d 1270, 1271 (Fla. 2d DCA 2006). While, in meeting this lesser standard, the State is permitted to introduce hearsay evidence, “hearsay alone is insufficient to establish a violation of a condition of probation.” Kiess v. State, 642 So.2d 1141, 1142 (Fla. 4th DCA 1994).

With respect to condition 3, the defendant’s probation officer testified that defendant provided her godsister’s address as her residence. When she went to this address to find defendant, defendant’s aunt stated that defendant was not living there. She also testified that another officer was sent to that same address, and that officer also received confirmation that defendant was not living there. Additionally, defendant’s probation officer testified that she called defendant’s mother who stated that defendant did not live at that address. The only non-hearsay evidence relating to this condition was the probation officer’s testimony that defendant was not at the residence when she visited. This one-time observation establishes only that defendant was not home on the day of her visit. See Rowan v. State, 696 So.2d 842, 843 (Fla. 2d DCA 1997) (testimony of probation officer that landlord told him probationer moved from approved residence was hearsay and could not support revocation of probation without additional non-hearsay evidence); Smith v. State, 690 So.2d 733, 734 (Fla. 4th DCA 1997) (testimony of probation officer that probationer’s grandmother told him that probationer no longer lived at residence, without non-hearsay evidence, was insufficient to support probation revocation); Brown v. State, 659 So.2d 1260, 1262 (Fla. 4th DCA 1995) (trial court improperly found defendant guilty of changing his residence without permission based on hearsay evidence from defendant’s community control officer, who testified that when she went to defendant’s address to verify his residence, defendant’s sister told her that defendant no longer lived there). Therefore, the State failed to establish that the violation of condition 3 was supported by competent, substantial evidence.

Defendant also raised an objection with respect to the evidence supporting condition 18. At the revocation hearing, the only evidence supporting this violation was hearsay that came via the testimony of the probation officer who testified that she received a call from the Sheriffs Office notifying her that defendant did not successfully compíete the day reporting program. No non-hearsay evidence was presented to establish a violation of condition 18. Although the trial court made a specific finding that this violation was supported by non-hearsay evidence, specifically a claimed admission by, defendant to her probation officer that she failed to complete the day reporting program, a review of the transcript shows that defendant’s actual statement was too vague to constitute an admission in this regard:

[Witness]: It was [the Sheriffs Office] monitoring her GPS. I met with her two days prior before the detectives, two or three days prior, before the detectives contacted me. And [defendant] advised me she didn’t think that [the Sheriffs Office] was properly monitoring her bracelet. And I asked her why would you say something like that?
[State]: When you say her, I am confused.
[Witness]: The offender. She said, I’m just telling you, I don’t think they are willing. I told her, yes, they are. Whatever it is that you are doing, you need to stay on task. And then I get the call and then I get the [Sheriffs Office] paper telling me that she did not successfully complete the program because they could not locate her for two or three days.

Defendant’s statement was that she did not believe the Sheriffs Office was monitoring her ankle bracelet; she said nothing about failing to complete the day reporting program. As such, the trial court improperly found defendant guilty of violating condition 18 based solely on hearsay evidence. See Smith v. State, 690 So.2d at 734; Brown v. State, 659 So.2d at 1262.

It is unclear from the record whether or not the trial court would have revoked defendant’s probation and sentenced her to five years of imprisonment based upon a violation of condition 1 alone. We therefore remand with instructions that the trial court reconsider defendant’s probation revocation and sentence in light of this opinion. See Brown v. State, 12 So.3d 877, 879-80 (Fla. 4th DCA 2009); Oertel v. State, 82 So.3d 152, 157 (Fla. 4th DCA 2012). We leave to the trial court’s discretion the issue as to what sentence, if any, defendant should receive on remand. See Davis v. State, 474 So.2d 1246, 1247 (Fla. 4th DCA 1985); see also Figueroa-Montalvo v. State, 10 So.3d 173, 175-76 n. 3 (Fla. 5th DCA 2009).

Affirmed in part, Reversed in part, and Remanded with instructions.

WARNER, TAYLOR and KLINGENSMITH, JJ„ concur.

      . Defendant concedes in her initial brief that the violation of condition 1 of her probation was supported by direct evidence, which supports a finding that she violated her probation.


author: DAMOORGIAN, C.J.

text:
    Teryleisha WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-642.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Teryleisha Wright appeals her judgment and sentence for one count of attempted first degree murder with a firearm raising two issues for our consideration. We affirm appellant’s judgment and sentence but write to address appellant’s argument that the trial court violated her due process right by sentencing her to a 25-year minimum mandatory on paper without orally pronouncing that it was doing so at her sentencing hearing.

“ ‘One of the most basic tenets of Florida law is the requirement that all proceedings affecting life, liberty, or property must be'conducted according to due process,’ which includes a ‘reasonable opportunity to be heard.’ ” Jackson v. State, 767 So.2d 1156, 1159 (Fla.2000) (quoting Scull v. State, 569 So.2d 1251, 1252 (Fla. 1990)). Therefore, “[cjriminal defendants have a due process fight to be physically present in all critical stages of trial.” Muhammad v. State, 782 So.2d 343, 351 (Fla. 2001). This “right to be present extends to the hearing where her sentence will be reconsidered” because sentencing is “a critical stage of every criminal proceeding.” Jackson, 767 So.2d at 1160. Accordingly, if a defendant’s sentence is subsequently increased due to a court’s failure to take into account a minimum mandatory at the original sentencing hearing, the defendant must be present when the sentence is modified.' Dunbar v. State, 89 So.3d 901, 907 (Fla.2012).

Here, the transcript of Appellant’s sentencing hearing reflects that the court expressed Appellant was subject to a 25-year mandatory minimum. Accordingly, we hold that the trial court did not violate appellant’s due process right and affirm the judgment and sentence in all respects.

Affirmed.

TAYLOR and CONNER, JJ., concur.

      . Appellant also argues that the trial court erred in admitting evidence of the gun and ammunition found at her mother’s hotel.


text:
    Dean Chance BALIKOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-3857.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.
    Dean Balikos, Mayo, pro se.
    No appearance required for appellee.
   PER CURIAM.

The order denying appellant’s motion to correct an illegal sentence is affirmed. An alleged error in the procedures used in imposing an enhanced sentence does not result in an “illegal sentence” that can be corrected at any time under rule 3.800(a). Ives v. State, 993 So.2d 117, 120 (Fla. 4th DCA 2008) (citing Bover v. State, 797 So.2d 1246, 1251 (Fla.2001)).

WARNER, CIKLIN and KLINGENSMITH, JJ., concur.


author: TAYLOR, J.

text:
    Michael SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-724.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2015.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R. Napodano, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

We affirm the trial court’s thorough order denying appellant’s motion for post-conviction relief.

After trial by jury, appellant was convicted of three counts of vehicular homicide and sentenced to concurrent terms of 21.5 years in prison. His charges arose from driving conduct that resulted in the death of three persons. The prosecution presented evidence that appellant ran a red light and struck a vehicle that was making a left turn across appellant’s lane. The jury acquitted appellant of three counts of DUI manslaughter, and the trial court dismissed counts of DUI and reckless driving causing serious bodily injury. We affirmed appellant’s convictions and sentences on his direct appeal.

Subsequently, appellant filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 8.850, arguing, among other things, that his trial counsel was ineffective for failing to call an accident reconstruction expert to rebut the state’s experts at trial. Following an evi-dentiary hearing on this sole ground, the trial court denied appellant’s claim of ineffective assistance of counsel.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-pronged standard of review for claims of ineffective assistance of trial counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Id. at 687,104 S.Ct. 2052.

These standards have been adopted and consistently applied by the Florida Supreme Court. See, e.g., King v. State, 597 So.2d 780, 782 (Fla.1992); Kelley v. State, 569 So.2d 754, 758-59 (Fla.1990).

Both parts of the two-prong analysis must be established before a defendant can prevail on a claim of ineffective assistance of counsel. With regard to the first prong requiring a showing of counsel’s deficient performance, judicial scrutiny is highly deferential. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (citations omitted).

At the evidentiary hearing on appellant’s claim of ineffective assistance of counsel, trial counsel testified that after evaluating all options while preparing for trial, he decided not to hire an accident reconstruction expert. He reasoned that an expert would not necessarily assist the defense and might bolster the state’s case. Appellant admitted that he was speeding through the intersection, and although he claimed the light was yellow, the state presented eyewitness testimony that he entered the intersection when the light was red. Trial counsel opined that no expert, on either side, would be able to testify as to exactly what color the light was at the time of actual impact. The trial court found trial counsel’s testimony to be credible. Further, applying the highly deferential Strickland standard, the trial court found that his decision not to call an accident reconstruction expert at trial was ■the product of reasonable, competent assistance, made after careful review of alternative options which existed at that time.

We agree with the trial court’s finding that trial counsel’s performance was not deficient in his defense against the vehicular homicide charges. And although we need not reach the second prong of the Strickland test, we similarly agree with the trial court’s conclusion that appellant failed to. satisfy the prejudice prong of Strickland, because based on the totality of the evidence at trial, there is no reasonable probability that the outcome of the trial would have been different.

Accordingly, we affirm.

Affirmed.

WARNER and CIKLIN, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Robert CURTIS and Darlene Curtis, Appellants, v. TOWER HILL PRIME INSURANCE CO., Appellee.
    No. 2D13-689.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2015.

      Raymond T. Elligett, Jr. of Buell & Elligett, P.A., Tampa, and Michael Laura-to of Austin & Laurato, P.A., Tampa, for Appellants.
    Anthony J. Russo and Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee.
   NORTHCUTT, Judge.

Robert and Darlene Curtis sued Tower Hill Prime Insurance Co. in a dispute over a sinkhole insurance claim. They appeal a final summary judgment in favor of Tower Hill. We reverse and remand for further proceedings.

The Curtises owned a home that was insured under a policy issued by Tower Hill. During the policy term, the Curtis-es made a claim for damage under the policy’s sinkhole coverage. Tower Hill retained an engineering company to investigate, and the engineering company concluded that the cause was sinkhole activity, which was covered by virtue of a Sinkhole Loss Coverage endorsement. The insurance company obtained estimates to stabilize the land and building at a cost of $93,000 to $95,000. In contrast, estimates secured by the Curtises ranged from $193,090 to $342,210. These costs were in addition to that of making cosmetic repairs to the home, which was estimated by Tower Hill at $24,218 and by the Curtises at $36,818.

After receiving the repair estimates obtained by the Curtises, Tower Hill initiated a neutral evaluation, a statutory procedure applicable to sinkhole claims and referenced in the policy’s sinkhole endorsement. The property owners then filed suit in circuit court. Their complaint alleged, in part, that the insurance company “denied the claim as a sinkhole loss and/or refused to honor the claim or pay benefits to the Plaintiffs or loss payees/third-party beneficiaries as provided for in the insurance policy.” In response to the complaint, Tower Hill filed three separate motions for summary judgment. The circuit court granted two of the motions and denied the third. Final judgment was thereafter entered in favor of Tower Hill.

We review summary judgments de novo, see Trinidad v. Fla. Peninsula Ins. Co., 121 So.3d 433, 437 (Fla.2013), applying the well-established standard that “[sjummary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law,” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). For the following reasons, we conclude that Tower Hill’s summary judgment motions were not well taken.

The two motions granted by the circuit court were captioned “No Payment Owed” and “Violation of Section 627.7074(10), Florida Statutes, and ‘Suit Against Us’ Provision,” respectively. In the former motion, Tower Hill maintained that the claim was not ripe because no payment was due under the policy and, therefore, it had not breached the contract of insurance. This motion was based on the “Loss Payment” provision in the Florida endorsement, which provided as follows:

Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable:
a. Twenty (20) days after we receive your proof of loss and reach written agreement with you; or
b. Sixty (60) days after we receive your pro.of of loss; and:
(1) There is an entry of a final judgment; or
(2) There is a filing of an appraisal award or mediation settlement with us.
c. Within 90 days of receiving notice of a property insurance claim. We will pay or deny such claims, or portions thereof, unless there are factors beyond our control that would reasonably prevent payments.

Tower Hill relies on Geico General Insurance Co. v. Grad, 849 So.2d 1196, 1199 (Fla. 4th DCA 2003), for the proposition that “[a]n insurer’s refusal to meet an insured’s demand for payment under a policy is not a breach if no payment is then due.” Thus, it contends, the Curtises cannot maintain a breach-of-contract suit until the time for payment under the loss-payment provision has come and gone without payment. But Tower Hill reads the complaint too narrowly and Grad too broadly.

Grad was a venue case, and it analyzed the plaintiffs cause of action to determine where it accrued for venue purposes. Id. at 1197. The Fourth District held that the claim was not for breach of contract; rather, it noted that the insured alleged an action “for a determination of her entitlement to, and amount of, damages.” Id. at 1197. “Although Graci’s action against Geico is, indeed, an action on the contract of insurance, it is not an action for a breach of that contract; rather, it is an action filed pursuant to the contract.” Id. at 1199. Thus, the cause of action accrued in the county where the accident occurred.

Here, the Curtises filed an action on the insurance contract to determine their entitlement to and amount of damages. The loss-payment provision of the policy did not render the suit premature; indeed, that provision expressly contemplated that there might be a final judgment — presumably stemming from a lawsuit — before payment was due. But certainly, even when an insurance suit is filed prematurely, final summary judgment would not be the appropriate remedy where, as here, the insurance company has admitted coverage. See Shuck v. Bank of Am., N.A., 862 So.2d 20, 24-25 (Fla. 2d DCA 2003) (discussing circumstances when premature suits should be either abated or dismissed without prejudice). The circuit court erred in granting this motion for summary judgment. See Panjikaran v. State Farm Fla. Ins. Co., 77 So.3d 1278, 1280 (Fla. 2d DCA 2012) (reversing summary judgment when it was “unclear whether the parties dispute the amount of loss or a denial of coverage”).

Tower Hill’s other successful summary judgment motion contended that, by filing suit just after the insurer initiated a neutral evaluation, the Curtises violated the stay imposed by the neutral evaluation statute and breached the “Suit Against Us” provision in the insurance contract. Tower Hill asserted that neutral evaluation was a condition precedent under the policy because it was referenced in the Sinkhole Loss Coverage endorsement. It further argued that the Curtises’ filing of suit violated the neutral evaluation stay and thereby violated the Suit Against Us provision in the Florida endorsement, which stated that “[n]o action can be brought unless the policy provisions have been complied with and the action is started within five (5) years after the date of loss.”

The legislature has established a statutory neutral evaluation process applicable to sinkhole insurance claims. The statute includes a stay provision that provides as follows: “Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.” § 627.7074(10), Fla. Stat. (2011). Notably, the statute does not by its terms preclude the filing of a lawsuit. In contrast, the automatic stay provision in bankruptcy expressly prohibits the “commencement or continuation” of a judicial action against the debtor. 11 U.S.C. § 362(a)(1); see Barton-Malow Co. v. Gorman Co. of Ocala, Inc., 558 So.2d 519, 521 (Fla. 5th DCA 1990) (filing suit violates automatic stay in bankruptcy and renders complaint void as to debtor). Likewise, Florida’s medical malpractice law, which mandates the giving of a presuit notice to the defendant, expressly provides that “[n]o suit may be filed” during the 90-day presuit investigation period following the notice. § 766.106(3)(a), Fla. Stat. (2014). The neutral evaluation statute contains no such prohibition. The Curtises’ mere filing of suit did not violate the stay provision in the statute, and therefore, it did not violate the insurance policy. The summary judgment on this basis was error.

As seen, the circuit court erred by granting summary judgment on the two motions described. We must also discuss the motion that was denied. In a motion captioned “Failure to Satisfy Post-Loss Obligations,” Tower Hill asserted that the Curtises breached the policy by failing to comply with a duty after loss and that this breach negated any recovery under the policy. It advances this argument on appeal as a right-for-the-wrong-reason rationale for affirming the summary judgment. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 781 So.2d 638, 644-45 (Fla.1999) (stating the “tipsy coachman” rule).

The insurance policy’s Florida endorsement imposed on the insured certain “duties after loss,” including a duty to “show the damaged property” “as often as [Tower Hill] reasonably require[d].” It is undisputed that the Curtises met this duty with respect to Tower Hill’s engineer, but they did not cooperate with a contractor retained by the insurer to estimate cosmetic damage to the home. Tower Hill has not contended that the Curtises failed to comply with any other enumerated duty.

The circuit court correctly denied summary judgment on this' ground for two reasons. First, Tower Hill did not show that it was prejudiced by the Curtis-es’ lack of cooperation, which is required before an insured may be held to have forfeited benefits by materially breaching the insurance policy’s cooperation clause. See Am. Fire & Cas. Co. v. Collura, 163 So.2d 784, 792-94 (Fla. 2d DCA 1964) (distinguishing breach of notice-of-claim condition, where prejudice to insurer is presumed, from breach of cooperation condition, where insurer must show it was substantially prejudiced by material breach, notwithstanding that policy purported to classify cooperation condition as condition precedent); see also Bankers Ins. Co. v. Macias, 475 So.2d 1216 (Fla. 1985).

Second, the Curtises partially complied by cooperating with the investigation by Tower Hill’s engineer on the more significant aspect of damages. “[I]f the insured cooperates to some degree or explains his failure to comply, whether the insured materially breached the policy remains a question for the fact finder.” Jyurovat v. Universal Prop. & Cas. Ins. Co., 84 So.3d 1288, 1241 (Fla. 2d DCA 2012); see also Makryllos v. Citizens Prop. Ins. Corp., 103 So.3d 1032, 1034 (Fla. 2d DCA 2012) (“Such partial cooperation can raise a fact question concerning whether the insurer should be able to declare a breach of the insurance contract that precludes recovery.”).

We reverse the summary judgment and remand for further proceedings.

KHOUZAM and SLEET, JJ., Concur.

      . The form of insurance is DP 00 03 07 88, copyright Insurance Services Office, Inc., 1988, 1992, with a Florida endorsement, form DW-0023-09 (04-09).

      . Form IL-0502-00 (06/07).

      . Conversely, however, Tower Hill argued that its own filing of summary judgment motions did not violate the statutory stay because the motions were not heard until after the stay was lifted. Of course, the Curtises’ lawsuit has never been heard.

      . We cite the 2011 version of the stay provision because this court has found it procedural and thus appropriate for retroactive application. See Citizens Prop. Ins. Corp. v. Trapeo, 136 So.3d 670, 676 (Fla. 2d DCA 2014) (noting general rule that "statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract" (id. at 675 (quoting Menendez v. Progressive Express Ins. Co., 35 So.3d 873, 876 (Fla.2010) (internal quotation mark omitted)))). In this particular case, however, the difference in statutory language has no effect.

      . Duties After Loss
      In case of a loss to covered property, you must see that the following are done:
      a. Give prompt notice to us or our agent;

      d. Protect the property from further damage. If repairs to the property are required, you must:
      (1) Make reasonable and necessary repairs to protect the property; and
      (2) Keep an accurate record of repair expenses;
      e. Cooperate with us in the investigation of a claim;
      f. Prepare an inventory of damaged personal property showing the quantity, description, "actual cash value” and amount of loss. Attach all bills, receipts and related documents that justify the figures in the inventory;
      g. As often as we reasonably require:
      (1) Show the damaged property;
      (2) Provide us with records and documents we request and submit to recorded statements and examinations under oath, while not in the presence of any other "insured”, and sign the same.
      Also, your representative, including any public adjuster engaged on your behalf, must each submit to recorded statements and examinations under oath, while not in the presence of any other "insured”, and sign the same.

      h.Send to us, within 60 days after our request, your signed, sworn proof of loss which sets forth, to the best of your knowledge and belief:
      (1) The time and cause of loss;
      (2) The interests of the "insureds” and all others in the property involved and all liens on the property;
      (3) Other insurance which may cover the loss;
      (4) Changes in title or occupancy of the property during the term of the policy;
      (5) Specifications of damaged buildings and detailed repair estimates;
      (6) The inventory of damaged personal property described in 4.f. above;
      (7) Receipts for additional living, expenses incurred and records that support the fair rental value loss; ....


text:
    Carl M. COCKING, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-2419.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2015.

      Carl M. Cocking, pro se.
   PER CURIAM.

Carl M. Cocking appeals the order summarily denying his motion to vacate his sentence filed under Florida Rule of Criminal Procedure 8.850. We affirm the denial of Cocking’s claim concerning case number 08-11130 without further comment, but we reverse the denial of his claim concerning case number 09-13152.

Over a period of two months, Cocking communicated over the internet with an undercover detective from the Hillsbor-ough County Sheriffs Office who posed as a father offering his twelve-year-old daughter for sex. A meeting between Cocking and the daughter was arranged, and Cocking was arrested en route to the location. During a forensic examination of Cocking’s computer, law enforcement found forty-five images showing children under the age of five being sexually battered. Cocking entered an open plea in case number 09-13152 to forty-five counts of possession of photographs depicting sexual conduct by a child with intent to promote, in violation of section 827.071(4), Florida Statutes (2008). Section 827.071(4) makes it “unlawful for any person to possess with the intent to promote any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, includes any sexual conduct by a child.” The possession of three or more copies of said images is prima facie evidence of an intent to promote. Id. The trial court sentenced Cocking to concurrent terms of thirty years’ imprisonment on counts one through twenty to be followed by concurrent terms of twenty-five years’ imprisonment on counts twenty-one through forty-five, for a total of fifty-five years’ imprisonment. Cocking did not appeal.

In his rule 3.850 motion, Cocking argued that trial counsel was ineffective for failing to move to dismiss all but one of the forty-five counts alleging a violation of section 827.071(4), thereby inducing him to enter a plea to all forty-five counts when the statute only allows for one conviction under the facts of this case. He contended that he was prejudiced by receiving a much harsher sentence than he would have absent the extra forty-four counts. In support of his claim, Cocking cited Wade v. State, 751 So.2d 669 (Fla. 2d DCA 2000), and State v. Parrella, 736 So.2d 94 (Fla. 4th DCA 1999). In Parrella, the State appealed the trial court’s dismissal of three of the four counts of section 827.071(4) violations with which Parrella was charged. The Fourth District analyzed the statute to determine the legislature’s intent regarding the allowable unit of prosecution. It explained that courts have found that when the legislature uses the word “any” in describing contraband, it intends only a single unit of prosecution for possession of multiple articles of the same type of contraband. 736 So.2d at 95. Because Parrella showed undercover detectives portions of four different videos of sexual acts involving children during one meeting, the Fourth District affirmed the trial court’s dismissal of three of the four counts against him. Id. at 95-96.

This court followed Parrella in Wade. Law enforcement arrested Wade after he accepted delivery of videotapes containing child pornography. Wade consented to a search of his residence, and law enforcement found numerous reproductions of images of children involved in sexual acts. The State charged Wade with three counts of possession of child pornography with intent to promote, and a jury found him guilty as charged on all three counts. On appeal, this court reversed Wade’s convictions for two of the three counts because the offending images had been found during one search. 751 So.2d at 671.

Both Wade and Parrella were decided on direct appeals of convictions. Recently, however, this court applied their holdings in the context of a rule 3.850 postconviction proceeding. In Chesser v. State, 148 So.3d 497 (Fla. 2d DCA 2014), Chesser entered an open plea and was convicted of nine counts of possession of child pornography with intent to promote. The postconviction court granted Chesser an evidentiary hearing, after which it found that counsel was not ineffective for failing to move to dismiss eight of the nine counts. This court reversed on the authority of Wade, Parrella, and Hudson v. State, 761 So.2d 1161, 1161 (Fla. 2d DCA 2000) (reversing and remanding with directions to strike forty-seven out of forty-eight counts of possession of child pornography with intent to promote), and held that because all of the images were found during one search, there was only one episode of promotion.

Cocking has shown that trial counsel’s failure to move to dismiss all but one of the forty-five counts of violation of section 827.071(4) and his advice to enter a plea to all forty-five counts constituted deficient performance that prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The State appropriately concedes that Cocking is entitled to vacation of all but one of his convictions. Accordingly, we reverse the postconviction court’s order denying Cocking’s claim with regard to case number 09-13152. We vacate Cocking’s convictions on counts two through forty-five,, and we remand with directions for the postconviction court to dismiss those counts, to strike the sentences for those counts, and to correct Cocking’s written sentence to reflect one conviction for possession with intent to promote.

Affirmed in part, reversed in part, and remanded.

KELLY, KHOUZAM, and BLACK, JJ., Concur.


author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant, v. David PLATT, Appellee.
    No. 2D13-3159.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2015.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koelanes, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Matthew J. Salvia, Assistant Public Defender, Bartow, for Appellee.
   VILLANTI, Judge.

The State appeals the trial court’s order granting defendant David Platt’s renewed motion for judgment of acquittal as to the charge of possession of burglary tools notwithstanding the jury’s finding of guilt. Because the jury could have lawfully reached the conclusion that Platt was guilty of possession of burglary tools even though he was not guilty of burglary, we reverse.

Police found and arrested Platt inside an empty house after receiving a call reporting the presence of a suspicious person. At the time of his arrest, Platt had wire snips, a screwdriver, a crescent wrench, a socket wrench, and a utility knife with him. Platt was arrested and charged with both burglary and possession of burglary tools. At trial, there was conflicting testimony concerning the condition of the back door; one witness testified it was “unsecured” and “slightly off the hinges,” another testified that it was completely off its hinges and set to the side, and a third testified that it looked as if it had been kicked in. The jury ultimately found Platt guilty of trespassing as a lesser included offense to the burglary charge and of possession of burglary tools as charged. Platt moved for judgment of acquittal on the possession of burglary tools charge, which the court granted. In its reasoning, the court posited that Platt could not be guilty of possessing burglary tools if he had not also been found guilty of committing the burglary.

This court reviews the trial court’s grant of a motion for judgment of acquittal under a de novo standard. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). No motion for judgment of acquittal should be granted by the trial court “unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Darling v. State, 808 So.2d 145, 155 (Fla.2002) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974)).

Here, Platt was found guilty by the jury of the lesser-included offense of trespassing. Trespassing is specifically included as an offense that will support a finding of guilt for possession of burglary tools. § 810.06, Fla. Stat. (2012) ( Whoever has in his or her possession any tool, machine, or implement with intent to use the same, or allow the same to be used, to commit any burglary or trespass shall be guilty of a felony of the third degree-” (emphasis added)). As such, and contrary to the trial court’s belief, the jury could have acquitted Platt of burglary and still properly found him guilty of possession of burglary tools. See Keys v. State, 949 So.2d 1080 (Fla. 2d DCA 2007) (reversing the defendant’s conviction for burglary but affirming his conviction for possession of burglary tools). Hence, there was no error of law with the jury’s verdict, and the trial court should not have granted the motion for judgment of acquittal on the possession of burglary tools charge.

Perhaps recognizing that no error of law occurred, Platt argues that regardless of its reasoning, the court’s ruling on the judgment of acquittal was correct because there was no evidence presented at trial to show that he had actually used or intended to use the tools to get into the house and as such he could not have been convicted for possession of burglary tools. See Calliar v. State, 760 So.2d 885, 887 (Fla.1999) (finding that a guilty verdict for possession of burglary tools requires a showing that the defendant used or intended to use the tools to effectuate the burglary or trespass). Alternatively, Platt argues that any such evidence to suggest that he had used the tools to enter the house is purely circumstantial and that thus a conviction on the possession charge would be invalid. See State v. Law, 559 So.2d 187, 188 (Fla. 1989) (“Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.”). While this court will affirm a trial court’s correct ruling made for the wrong reasons, see Robertson v. State, 829 So.2d 901, 906 (Fla.2002), “whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict,” there is no error in a verdict of guilt, Law, 559 So.2d at 188.

In this case, there was evidence to show that Platt had a wide array of tools on him that fall within the ambit of burglary tools, properly defined by the trial court during jury instructions as “tool[s] or implement[s] that [are] intended to use or allowed to be used in the commission of the burglary or the trespass.” Further evidence established that Platt had entered an abandoned house and that the door had been tampered with, kicked in, or completely removed from its hinges. Given these facts, the jury could have reasonably concluded that Platt had used or intended to use the tools to effectuate entrance into the house'to the exclusion of every reasonable hypothesis of innocence. Cf. Keys, 949 So.2d at 1083 (affirming a conviction for possession of burglary tools when the defendant was seen lurking around a mobile home, .the defendant was carrying deck spikes at the time of his arrest, and the mobile home had pry marks on the back door). Accordingly, the conviction was proper even though the evidence was largely circumstantial.

In conclusion, Platt’s conviction for possession of burglary tools under these facts was totally proper despite his acquittal on the burglary count as his conviction for trespass was a sufficient predicate. Reversed and remanded for entry of a judgment and sentence on the possession of burglary tools count.

Reverséd and remanded.

MORRIS and SLEET, JJ., Concur.


text:
    Thomas DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-1413.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2015.
    Thomas Davis, pro se.
   PER CURIAM.

Thomas Davis appeals the order denying his belated motion to withdraw plea, which the postconviction court denied as untimely without prejudice to file a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Because the circuit court erred in not resolving the belated motion on the merits as if filed under rule 3.850, we reverse.

Davis’s motion was styled as a motion to withdraw plea under rule 3.170(Z), and while the postconviction court correctly determined that the motion was untimely under that rule because it was not filed within thirty days of the rendition of the sentence, the analysis should not have ended there. When a defendant files a motion to withdraw plea under rule 3.170(i), but the time to file such a motion has passed, the postconviction court should consider it under rule 3.850 so long as it meets the procedural requirements under that rule. See Franklin v. State, 31 So.3d 948, 948 (Fla. 2d DCA 2010) (citing Houghtaling v. State, 670 So.2d 1019, 1019 (Fla. 2d DCA 1996)).

As in Franklin, Davis’s motion was timely, under oath, and raised claims that would be appropriate in a rule 3.850 motion. Accordingly, we reverse and remand for the postconviction court to consider the motion under that rule.

Reversed and remanded.

VILLANTI, WALLACE, and CRENSHAW, JJ., Concur.


author: MORRIS, Judge.

text:
    Victor PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-2644.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2015.
   MORRIS, Judge.

Victor Perez filed a motion for jail credit on December 27, 2013, which the postcon-viction court denied as untimely. But because Mr. Perez was sentenced prior to July 1, 2013, his motion was timely. See Fla. R. Crim. P. 3.801(b) (“For sentences imposed prior to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014.”); see also Marchetti v. State, 143 So.3d 1077, 1078 (Fla. 2d DCA 2014). Accordingly, we reverse and remand for the postconviction court to reconsider Mr. Perez’s motion on its merits.

Reversed and remanded with directions.

KELLY and KHOUZAM, JJ., Concur.


text:
    Sean PERRI, Petitioner, v. STATE of Florida, Respondent.
    No. 2D14-42.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2015.
    Sean Perri, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Sean Perri has filed a petition alleging ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure 9.141(d) raising four grounds. The State concedes the validity of ground three, and we grant the petition with regard to that ground; we deny the remaining grounds without further comment.

Mr. Perri was charged with numerous offenses after he fled from law enforcement officers who tried to stop his vehicle based on a tip that he was in possession of drugs and a firearm. Two of the offenses — possession of ammunition by a convicted felon and possession of a firearm by a convicted felon — were severed from the others. After a jury found Mr. Perri guilty of the other offenses, he entered an open plea to the possession charges, and the trial court sentenced him as a habitual felony offender to concurrent terms of thirty years’ imprisonment with a three-year mandatory minimum for the possession of a firearm. Appellate counsel raised one issue on appeal concerning the trial court’s failure to dismiss three of the other counts with which Mr. Perri was charged.

In ground three of his petition, Mr. Per-ri argues that appellate counsel was ineffective for failing to argue on appeal that his convictions of possession of a firearm by a convicted felon and possession of the ammunition in the firearm by a convicted felon violated his double jeopardy rights. See Boyd v. State, 17 So.3d 812, 818 (Fla. 4th DCA 2009) (holding that because “any” precedes the list of items a felon is prohibited from possessing, double jeopardy precludes more than one conviction for possession of any of the items listed) (citing Hill v. State, 711 So.2d 1221, 1224-25 (Fla. 1st DCA 1998)); accord Bell v. State, 122 So.3d 958, 960-61 (Fla. 2d DCA 2013) (citing Boyd and holding that separate convictions for a felon’s possession of ammunition found in his pocket and a firearm found in his car’s glove compartment after he was arrested for a traffic violation violated double jeopardy); Strain v. State, 77 So.3d 796, 797 (Fla. 4th DCA 2011) (holding that dual convictions of possession of a firearm by a convicted felon and possession of ammunition by a convicted felon violated double jeopardy). The State concedes that appellate counsel was ineffective in this regard, correctly noting that although this issue was not preserved for appeal, it is one of fundamental error that is not waived by the entry of an open plea. See Novaton v. State, 634 So.2d 607, 609 (Fla.1994) (noting that a plea does not preclude a later double jeopardy claim when it was not the result of a plea bargain, the double jeopardy violation is apparent from the record, and the record contains no indication that the defendant waived the violation); Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000) (relying on Novaton).

Had appellate counsel raised this issue in Mr. Perri’s direct appeal, we would have been constrained to reverse his conviction and sentence for possession of ammunition by a convicted felon. See Olivard v. State, 831 So.2d 823, 824 (Fla. 4th DCA 2002) (noting that the proper remedy for a double jeopardy violation through dual convictions is the vacation of the conviction for the lesser offense). Accordingly, we deny grounds one, two, and four of Mr. Perri’s petition, but we grant the petition as it relates to ground three. Because a new appeal would be redundant, we remand with directions for the trial court to vacate Mr. Perri’s conviction and sentence for possession of ammunition by a convicted felon.

Petition granted in part and denied in part.

KHOUZAM and SLEET, JJ., Concur.

      . Both offenses violate section 790.23(1), Florida Statutes (2009).

      . Mr. Perri asserts that he should be allowed to withdraw his plea to the possession of ammunition charge, but he must file a motion under Florida Rule of Criminal Procedure 3.850 to seek that relief. We note that the two-year time limit of rule 3.850 does not run for Mr. Perri until August 8, 2015.


text:
    Bennett K. TRESSLER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3257.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2015.

      Bennett K. Tressler, Jr., pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Via this “petition for all writs jurisdiction,” petitioner Bennett Tressler argues that his 1996 sentence, to 25 years’ imprisonment as a habitual felony offender for one count of dealing in stolen property, was vindictive. Mr. Tressler has brought eighteen appeals and original proceedings in this court relating to this 1996 judgment and sentence. Of these, eight have been postconviction appeals, and in at least three of these appeals, the petitioner has raised the same issue as he seeks to raise in this case.

Upon consideration of Mr. Tressler’s repeated collateral attacks on his judgment and sentence, we ordered that he show cause why he should not be prohibited from future pro se filings. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999). “Having considered his response, we find that he has failed to show good cause why sanctions limiting his right to appear pro se should not be imposed.” Fails v. State, 46 So.3d 1032, 1033 (Fla. 1st DCA 2010). We conclude that his repeated collateral attacks on his conviction have “substantially interfered with the orderly process of judicial administration.” Birge v. State, 620 So.2d 234, 235 (Fla. 1st DCA 1993).

Accordingly, the petition for all writs jurisdiction is dismissed, and the petitioner is hereby prohibited from filing any further pro se pleadings in this court challenging his conviction in Duval County Circuit Court case number 16-1995-CF-013383, “regardless of the remedy sought or theory raised, unless he is represented in such proceeding by a member in good standing of The Florida Bar.” Baker v. State, 939 So.2d 167, 168 (Fla. 1st DCA 2006).

PETITION DISMISSED.

ROWE, MARSTILLER, and MAKAR, JJ., concur.


text:
    Evincse DORELUS, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-67.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2015.

      Howard L. Dimmig, II, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Evincse Dorelus seeks review of his conviction for one count of felon in possession of a firearm, which was prosecuted separately after he had been acquitted of a charge of aggravated battery with a firearm causing great bodily harm that arose out of the same events. Under the unique set of facts presented here, the prosecution on the charge of felon in possession of a firearm, even though bifurcated, was nevertheless barred by Dorelus’ prior acquittal on the related charge; therefore, we must reverse and remand for discharge.

Dorelus was charged with one count of aggravated battery with a firearm causing great bodily harm and one count of felon in possession of a firearm after his wife sustained an injury to her hand on Thanksgiving in 2012. Early in the proceedings, Dorelus moved to sever the two charges, which motion was granted without qualifications, and the State proceeded to trial first on the more serious aggravated battery charge. At that trial, Dorelus’ wife testified that' she and Dorelus were home alone in the afternoon. At some point, they both took a nap, and she awoke from that nap to find Dorelus gone. She called and texted him, but he did not respond. When he did return home, he accused her of having another man at the house. She denied this, but the argument continued. Finally, Dorelus left the room, and his wife thought the argument was over. However, according to her, Dorelus returned to the living room with a handgun, pointed it at her, and fired, hitting her in the hand. Dorelus immediately retrieved a towel for her, and he drove her to the emergency room. He stayed with her at the hospital for a short time but then left. Once he was gone, she told hospital personnel what had happened, and they alerted the police. An ensuing search of Dorelus’ residence revealed blood and a bullet fragment by the sofa where Dorelus’ wife testified that she had been sitting when she was shot, but no firearm.

Dorelus was arrested the next day, but no firearm was found in either his possession or in the car he was driving. Dorelus waived his Miranda rights and gave a videotaped statement to the police, which the State played for the jury. In that statement, Dorelus stated that he returned home from a barbeque with friends to find a man with one gold tooth leaving his home. When Dorelus confronted the man, the man made a statement indicating that he had been intimate with Dorelus’ wife. When Dorelus’ wife approached the open door to the house, a scuffle between the two men ensued. During the scuffle, the gold-toothed man pulled a handgun from the waistband of his pants. Dorelus said that he tried to grab the man’s hand to get the gun away from him and that in the struggle “one shot went off.” Dorelus later reiterated that the man had the gun and “when he started firing, I pushed him and went inside.” It was then that Dore-lus discovered that his wife had been shot. He grabbed a towel to wrap around her hand and drove her to the hospital. Dore-lus said in his statement that he and his wife argued in the car about the gold-toothed man and that his wife threatened that if he did not stop arguing with her, she would blame him for the injury.^ When this argument continued at the hospital, Dorelus left.

At the close of all evidence, the trial court instructed the jury on the offenses of aggravated battery with a firearm causing great bodily harm, felony battery, battery, and improper exhibition of a firearm. The State did not object to the instructions on any of these lesser offenses. The jury subsequently acquitted Dorelus of both the charged offense and all of the lesser offenses.

Shortly thereafter, the State proceeded to trial on the previously severed charge of felon in possession of a firearm. At that trial, the State again called Dorelus’ wife to testify, and her testimony was substantially identical to that presented at the earlier trial. At the close of the case, the jury found Dorelus guilty of felon in possession of a firearm.

In this appeal, Dorelus argues that his conviction and sentence for felon in possession of a firearm should be reversed because the State was collaterally estopped from prosecuting him on that charge after he was acquitted of the related charge of aggravated battery in the earlier trial. On the facts presented here, we agree.

The doctrine of collateral estop-pel in the context of a criminal charge arises from the Fifth Amendment guarantee against double jeopardy, but it arises only in a fairly limited set of factual and procedural circumstances. As this court has explained, “[w]hen an issue of ultimate fact has once been determined by a valid and final judgment in a criminal case[,] it cannot be again litigated between the same parties.” State v. Short, 513 So.2d 679, 681 (Fla. 2d DCA 1987) (citing Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)). For the doctrine to apply, “the fact sought to be foreclosed must necessarily have been determined in the defendant’s favor; it is not sufficient that the fact might have been determined in the first trial.” Id. (citing United States v. Irvin, 787 F.2d 1506 (11th Cir.1986)) (emphasis added); see also Gragg v. State, 429 So.2d 1204, 1206 (Fla.1983) (holding that the pertinent question when dealing with a claim of collateral estoppel is whether the factual issue was actually decided by the prior jury in reaching its verdict); State v. Strong, 593 So.2d 1065, 1067 (Fla. 4th DCA 1992) (holding that the doctrine of collateral estoppel “precludes the government from relitigating certain facts in order to establish the fact of the crime, which includes a redetermination of evi-dentiary facts as well as ultimate facts”). Hence, it is not the fact of the acquittal that is dispositive; it is the factual findings that necessarily underlie that acquittal that are dispositive.

As a procedural matter, the burden is on the defendant to prove by convincing, competent evidence that the jury necessarily determined the fact sought to be foreclosed in the initial trial. Short, 513 So.2d at 681. However, satisfying this burden is hampered by the fact that juries in criminal cases do not generally render special interrogatory verdicts; instead, they return general verdicts of guilty or not guilty. Therefore, “where a previous judgment of acquittal in a criminal case is based upon a general verdict, the court is required to examine the record and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose.” Id. (citing Ashe, 397 U.S. at 444, 90 S.Ct. 1189). In conducting this examination, courts are guided by the Supreme Court’s admonition that

the rule of collateral estoppel in criminal cases is not to be applied with the hy-pertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the ease, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.”

Ashe, 897 U.S. at 444, 90 S.Ct. 1189 (citations and footnote omitted). Therefore in this case, we must examine the record of Dorelus’ aggravated battery trial to determine whether that jury necessarily found that Dorelus did not possess a firearm so as to preclude the subsequent prosecution for the offense of felon in possession of a firearm.

The evidence adduced at the first trial was set forth above. In instructing the jury on the aggravated battery charge, the trial court told the jury that the State could prove its case by proving that Dore-lus intentionally touched or struck his wife while using a deadly weapon and that he caused her great bodily harm. The court also instructed the jury on the lesser-included offenses of battery and improper exhibition of a firearm. In instructing the jury on the improper exhibition charge, the trial court explained that the State could prove its case by proving that Dore-lus “had or carried a firearm” and exhibited it in a rude, careless, angry, or threatening manner in the presence of another person. In rejecting both of these charges and acquitting Dorelus, the jury necessarily had to reject his wife’s testimony and conclude that Dorelus had not “had or carried” a firearm. There is simply no other rational basis for the jury’s verdict acquitting Dorelus given the evidence presented at trial. Had the jury believed that Dorelus held or possessed the gun but did not shoot his wife, it should have found him guilty of improper exhibition of a firearm. By acquitting him of that charge, the jury necessarily concluded that Dore-lus did not “have or carry” a firearm. And because a rational jury necessarily made this factual finding in reaching its verdict in the aggravated battery trial, the subsequent prosecution of Dorelus for felon in possession of a firearm was barred by the doctrine of collateral estoppel.

This result, while uncommon, is not unprecedented. For example, in Davis v. State, 645 So.2d 66, 67 (Fla. 4th DCA 1994), the defendant was charged with aggravated assault by pointing a handgun, carrying a concealed weapon, resisting arrest without violence, and felon in possession of a firearm. The court severed the felon in possession charge, and the defendant went to trial on the charges of aggravated assault, carrying a concealed weapon, and resisting without violence. Id. At trial, two police officers testified that as the defendant fled from them, he pulled a handgun from beneath his clothing and pointed it directly at them. Id. The defendant admitted to being at the scene, but he denied having a gun. Id. The trial court instructed the jury not only on the charged offenses, but also on the lesser offenses of assault and improper exhibition of a firearm. Id. The jury acquitted the defendant of all charges, including the lesser offenses that involved a gun and specifically the lesser offense of improper exhibition of a firearm. Id.

Despite this acquittal, the State sought to prosecute the defendant on the felon in possession charge. Id. He moved to dismiss the charge, which motion was denied. Id. The defendant was thereafter convicted on that charge, and he appealed. Id. In reversing on collateral estoppel grounds, the Fourth District reasoned:

If the jury had simply based its acquittal on the aggravated assault charge on its belief that defendant was more concerned with escape than threat, it had the option of finding defendant guilty of improper exhibition of a firearm if it believed the officers’ testimony. A verdict of not guilty on this lesser offense as well leads us to the inescapable conclusion that the jury necessarily decided that defendant did not possess a firearm.

Id. at 68. Based on the evidence presented at trial, the court held that the prior jury’s rejection of all the charges and possible lesser offenses necessarily meant that the jury had determined that the defendant did not possess a gun, and it reversed the conviction for felon in possession and remanded for discharge. Id.

This case is almost factually indistinguishable from Davis. Like the jury in Davis, if the jury here did not believe that the State proved the intent element of aggravated battery, it had the option of finding Dorelus guilty of improper exhibition of a firearm. The jury’s rejection of that charge leads us, as it did the Fourth District in Davis, to the inescapable conclusion that the jury necessarily determined that Dorelus did not have or possess a firearm, and this determination precludes his subsequent prosecution for felon in possession of a firearm as a matter of law.

In this appeal, the State contends that this argument was not sufficiently preserved by defense counsel’s oral motion in limine which sought to preclude the State from introducing any testimony from Do-relus’ wife in the felon in possession trial concerning her version of events because the jury had necessarily rejected that version by acquitting Dorelus in the earlier trial. Instead, the State contends that Dorelus was required to file a motion to dismiss in order to preserve this issue. See Suiero v. State, 248 So.2d 219, 221 (Fla. 4th DCA 1971) (holding that the defendant’s failure to raise the defense of collateral estoppel in the trial court waived that defense). We reject this contention.

While we agree that the better practice would have been to raise this issue in a motion to dismiss, we note, however, that the doctrine of collateral estoppel implicates a fundamental right that arises from the Fifth Amendment guarantee against double jeopardy. See Ashe, 397 U.S. at 445, 90 S.Ct. 1189. It is inconsistent with both the double jeopardy clause and the notion of a fair trial for the State to force the defendant to essentially stand trial for and resurrect his defenses to a charge of which he has already been acquitted. Cf. Diaz v. State, 609 So.2d 1337, 1341 (Fla. 3d DCA 1992) (concluding that it is fundamentally unfair to a defendant to allow the State to present evidence at a subsequent trial of crimes for which the defendant was acquitted at an earlier trial). And a double jeopardy violation constitutes fundamental error that may be raised for the first time on appeal — pleading niceties notwithstanding. See, e.g., James v. State, 61 So.3d 492, 493 (Fla. 2d DCA 2011); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005) (“[A] ‘violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal.’ ” (quoting Hunsicker v. State, 881 So.2d 1166, 1169 (Fla. 5th DCA 2004))); Hunt v. State, 769 So.2d 1109, 1110 (Fla. 2d DCA 2000). Hence, the issue here is one of fundamental error, which could be properly raised for the first time in this appeal.

For all of these reasons, we reverse Dorelus’ conviction and sentence for felon in possession of a firearm and remand for discharge.

Reversed and remanded.

CASANUEVA and LaROSE, JJ., Concur.

      . Dorelus was also charged by second amended information with one count of tampering with a witness and two counts of violating his pretrial release. While these additional charges are irrelevant to the issues presented in this case, we note that the State subsequently dismissed the tampering charge.

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


text:
    Christian WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3377.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2015.
    Christian B. Williams, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this postconviction case, we affirm in all respects, except the summary disposition on claim H, which relates to the affidavit of Deltinard Tousaint. The trial court erroneously determined that the facially sufficient affidavit should be disregarded because it probably would not be believed. Under the circumstances here, an evidentiary hearing is required. See Simpson v. State, 100 So.3d 1258 (Fla. 4th DCA2012).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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


text:
    Rachel PRESTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-2187.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2015.
    James S. Purdy, Public Defender, and Frank W. Scott, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Rachel Preston appeals the order finding that she violated her community control and probation and sentencing her to prison. We affirm without comment. We remand this matter so that the trial court may enter an order setting forth which conditions of her community supervision had been violated. Resentencing is not necessary.

AFFIRMED and REMANDED FOR ENTRY OF A CORRECTED ORDER.

ORFINGER, BERGER and EDWARDS, JJ., concur.


text:
    James THOMSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-2957.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2015.
    Michael T. Donnelly, of Albert & Don-nelly, LLC, Melbourne, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vineent>-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 4, 2014 judgment and sentence in Case No. 05-2012-CF-036087, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

LAWSON, WALLIS and LAMBERT, JJ., concur.


text:
    Louise LE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-4278.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2015.
    Louise Le, Brooksville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the November 22, 2013, judgment and sentence in Case Nos. 2012-CF-585; 2012-CF-826; and 2013-CF-211, in the Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, ORFINGER and EDWARDS, JJ., concur.


text:
    Michael Todd JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-4370.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2015.
    Steven J. Guardiano, Daytona Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 28, 2014, judgment and sentence in Case No. 2012-35959-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, EVANDER and LAMBERT JJ., concur.


text:
    Frank John DUEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-4375.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2015.
    Michael A. Graves, Public Defender, and Scott T. Schmidt, Assistant Public Defender, Ocala, for Petitioner.
    Pamela Jo Bondi, Attorney General Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed ■with the trial court and be treated as the notice of appeal from the August 7, 2014 judgment and sentence in Case No. 2012-CF-921-A, in the Circuit Court in and for Marion County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, COHEN and WALLIS, JJ., concur.


author: BLACK, Judge.

text:
    L.A.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D14-429.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2015.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   BLACK, Judge.

L.A.R. appeals the withhold of adjudication and disposition order relating to charges of burglary of an unoccupied conveyance and petit theft. L.A.R. contends that the, trial court erred in denying his motion for dismissal because the fingerprint evidence was insufficiént to establish that he committed the crimes. We agree. Since the only evidence implicating L.A.R. were his fingerprints found on a bag containing a newspaper that was left in the vehicle by someone other than the victim and the State failed to show that the fingerprints could only have been made at the time of the crime, reversal is appropriate. See Hill v. State, 973 So.2d 655, 656 (Fla. 2d DCA 2008) (reversing burglary conviction where “the only evidence implicating [the appellant] were the fingerprints, and the State failed to show that the prints could only have been made at the time of the crime”); Seneca v. State, 760 So.2d 995, 995-6 (Fla. 4th DCA 2000) (holding that “where the only evidence linking appellant to the burglary were his fingerprints on a car battery apparently thrown through the window of the burgled structure” and “the state failed to prove that the fingerprints could only have been made at the time the crime was committed, the trial court erred in denying the motion for judgment of acquittal”); Shores v. State, 756 So.2d 114, 115-16 (Fla. 4th DCA 2000) (holding that where “[t]he only evidence linking [the appellant] to the burglary was one of his fingerprints on a box of ammunition in a drawer which had been ransacked by the burglar,” the evidence was insufficient to sustain a conviction because the ammunition box was accessible to the public at the sporting goods store before being purchased there by the victim).

Reversed and remanded to vacate the dispositions.

KELLY and WALLACE, JJ., Concur.


text:
    John SCHITTINO, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Julie L. Jones, Secretary, et al., Respondents.
    No. 1D14-0832.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.
    John Schittino, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Eric Gonzalez, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

Petitioner seeks review of an order dismissing his petition for writ of mandamus challenging a disciplinary action. We deny the petition for writ of certiorari on the merits. However, as respondent concedes, the underlying proceedings constituted a “collateral criminal proceeding” and therefore imposition of the lien was improper. See Jackson v. McDonough, 28 So.3d 61 (Fla. 1st DCA 2006). We quash the circuit court’s order on indigency imposing a lien for initiating the petition for writ of mandamus. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.


text:
    Bill SCHREFFLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3835.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.
    Bill Schreffler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

To the extent it seeks a belated appeal of the May 2014 order denying petitioner’s motion for postconviction relief, the amended petition for belated appeal fails to articulate any specific facts demonstrating an entitlement to a belated appeal of that order, and is therefore legally insufficient. To the extent the amended petition seeks a belated appeal of petitioner’s September 2010 judgment and sentence, it is untimely pursuant to Florida Rule of Appellate Procedure 9.141(c)(5)(A), and petitioner has failed to allege sufficient facts to avoid that procedural bar. Accordingly, the petition seeking belated appeal is DENIED.

ROBERTS, RAY, and MAKAR, JJ., concur.


text:
    James L. JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4023.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.
    James L. Johnson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on April 21, 2014, in Columbia County Circuit Court case number 12-356-CF, is granted. Upon issuance of a mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The lower tribunal is directed to appoint counsel to represent appellant on appeal if he is determined to be entitled to the appointment of counsel at public expense.

ROBERTS, RAY, and MAKAR, JJ., concur.


text:
    Troy Lewis MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5265.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2015.
    Troy Mitchell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

PADOVANO, CLARK, and MARSTILLER, JJ., concur.