author: MORRIS, Judge.

text:
    US BANK, N.A., successor by merger to the Leader Mortgage Company, Appellant, v. William B. BOYER; Linda A. Elswick; W.S. Badcock Corporation; Cavalier Corporation; Tampa Bay Federal Credit Union; Premium Asset Recovery Corporation; State Farm Mutual Automobile Insurance Company, as subrogee of Lois A. Lee; Lois A. Lee; and an Unknown Person in Possession of the Subject Real Property, Appellees.
    No. 2D12-3942.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.
    Lee L. Haas of Haas & Castillo, P.A., Clearwater, for Appellant.
    Roxanne Carnegie, St. Petersburg, for Appellee William B. Boyer.
    No appearance for remaining Appellees.
   MORRIS, Judge.

US Bank,. N.A., appeals an order that dismissed with prejudice its complaint for mortgage foreclosure because U.S. Bank’s nonresident cost bond was paid by U.S. Bank’s counsel. On appeal, U.S. Bank argues that an attorney may file a nonresident cost bond on behalf of a client and that such practice does not violate the prohibition, against an attorney’s acting as a surety for his client. We agree and reverse the order of the circuit court.

I. Facts

On December 27, 2006, U.S. Bank filed its complaint to enforce a promissory note and to foreclose a mortgage on property owned by appellees William ‘ Boyer and Linda Elswick. The matter was set for trial on April 24, 2012, but on April 6, 2012, Boyer filed a request for U.S. Bank to post a nonresident cost bond pursuant to section 57.011, Florida Statutes (2011). On April 9, 2012, U.S. Bank’s attorney advanced his own funds and posted the nonresident cost bond of $100 by submitting a check in the amount of $108.50 to the clerk of the circuit court, which included $8.50 for the processing fee.

On April 24, 2012, the day the trial was scheduled to begin, Boyer filed a motion to strike the cost bond and to dismiss the case with prejudice. Boyer argued that the nonresident cost bond was defective because it violated the rules against an attorney’s acting as a surety for his or her client. See § 454.20, Fla. Stat. (2011); Fla. R. Jud. Admin. 2.505(c). Boyer also asserted that the complaint should be dismissed with prejudice because the statute of limitations for U.S. Bank’s claim had expired. The circuit court continued the trial until June 1, 2012, at which time the circuit court first heard Boyer’s motion to strike the cost bond and to dismiss the case. At the hearing, Boyer argued that U.S. Bank’s bond was defective because its attorney unlawfully acted as its surety and, alternatively, that if U.S. Bank’s attorney was not the surety, then no bond for U.S. Bank was posted because U.S. Bank did not sign it. Boyer asserted that U.S. Bank was required to obtain a bond from a surety insurer. In response, U.S. Bank argued that a nonresident cost bond is different from the type of official bond with surety contemplated in section 454.20. US Bank also pointed out that under section 57.011, its counsel could be liable for $100 of the defendants’ costs if U.S. Bank did not file a nonresident cost bond. After hearing argument from both parties, the circuit court granted the motion to dismiss with prejudice “on the basis of’ sections 57.011 and 454.20.

II. Analysis

We review de novo the circuit court order dismissing the complaint, which was based on an interpretation of two statutes. Execu-Tech Bus. Sys., Inc. v.. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000); Taurus Stornoway Invs., LLC v. Kerley, 88 So.3d 840, 842 (Fla. 1st DCA 2010).

On appeal, U.S. Bank argues that the bond in this case was a cash bond and not a surety bond ' and that rather than a pledge of a surety, U.S. Bank properly deposited $100 with the clerk of the court. Section 57.011 provides that

[wjhen a nonresident plaintiff begins an action ..., he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought.

(Emphasis added.) Section 45.011, Florida Statutes (2011), defines a “bond with surety” as

[1] a bond with two good and sufficient sureties, each with unencumbered property not subject to any exemption afforded by law equal in value to the penal sum of the bond or [2] a bond with a licensed surety company as surety or [3] a cash deposit conditioned as for a bond.

The “bond with surety” in this case was a “cash deposit conditioned as for a bond.” US Bank’s attorney did not act as a surety as contemplated by the first two types of bonds in section 45.011; instead, U.S. Bank’s attorney, acting as U.S. Bank’s agent, advanced a cash deposit of $100 to serve as the third type of “bond with surety” described in section 45.011. This was proper. See Romine v. Horobin, 139 Fla. 103, 190 So. 508, 508 (1939) (holding that such a cost bond “may be filed by the plaintiff, his agent, or attorney” and that bond filed by “plaintiffs attorney” in that case was sufficient).

Boyer convinced the circuit court that the attorney’s posting of the $100 bond violated the rule in section 454.20 that “[n]o attorney shall become surety on the official bond of any state, county, or municipal officer of this state, nor surety on any bond of a client in judicial proceedings.” See also Fla. R. Jud. Admin. 2.505(c) (“No attorneys or other officers of court shall enter themselves or be taken as bail or surety in any proceeding in court.”). We disagree and hold that section 454.20 was not violated in this case. US Bank’s attorney did hot act as the surety on the bond; rather, the $100 posted with the clerk of the circuit court acted as the surety, or security, for the bond. See Black’s Law Dictionary 1579-80 (9th ed. 2009) (defining surety as, among other things, “[a] person who is primarily liable for paying another’s debt or performing another’s obligation” or “[a] formal assurance” such as “a pledge, bond, guarantee, or security given for the fulfillment of an undertaking”); see also State of Florida ex rel. Florida Bar v. Oxford, 127 So.2d 107, 109 (Fla.1961) (considering the issue of whether an attorney was improperly acting as a surety where he advanced cash for the release from custody .of his client who was charged with a municipal offense and holding that attorney’s action “amounted to nothing more than payment of one’s fine or the loan of funds,” that attorney “did not secure any interest in the litigation,” and that attorney “did not become surety on any bond or any undertaking”).

US Bank’s attorney simply advanced the nonresident $100 cost deposit required by section 57.011, along with the $8.50 processing fee. Attorneys routinely advance their client’s costs and in doing so do not violate section 454.20. Rule 4-1.8(e)(1) of the Rules Regulating the Florida Bar specifically provides that “a lawyer may advance court costs and expenses of litigation,” even where, unlike in the instant case, “the repayment of which may be contingent on the outcome of the matter.” And according to the language of section 57.011, U.S. Bank’s attorney could have been personally responsible for this amount if U.S. Bank had not posted the bond and defendants had obtained a judgment against U.S. Bank.. See § 57.011 (providing that if the plaintiff does not file the bond after receiving notice from defendant, defendant may “move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney”); Lady Cyana Divers, Inc. v. Carvalho, 561 So.2d 612, 613-14 (Fla. 3d DCA 1990) (noting that when a defendant does not move to dismiss under section 57.011 but rather obtains a cost judgment against the plaintiff, the plaintiffs attorney may be personally liable for $100 in costs incurred by the defendant).

III. Conclusion

We hold that U.S. Bank’s attorney’s payment of the funds required for the nonresident cost bond does not violate the prohibition against an attorney’s acting as surety for his client. Accordingly, we reverse the order dismissing U.S. Bank’s complaint and remand for further proceedings.

Reversed and remanded.

SILBERMAN, C.J., and VILLANTI, J., Concur.

      . Boyer argued that the complaint should be dismissed with prejudice because the statute of limitations had expired, but it appears that the circuit court concluded that the dismissal with prejudice was dictated by section 57.011.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Archie James HINES, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2959.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.
    Rehearing Denied Sept. 3, 2013.

      Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Archie Hines appeals an order revoking his community control and the sentences subsequently imposed on his convictions for armed burglary with an assault or battery and two counts of felony battery. Mr. Hines’s appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). After an independent review of the record and of the law, we affirm the revocation of Mr. Hines’s community control and the sentences imposed for the underlying convictions following revocation. Appellate counsel noted that the written revocation order incorrectly states that Mr. Hines admitted violating conditions 9, 14, 15, and 16 of his community control when the trial court only found two violations of condition 15. However, this issue was not preserved for appellate review by an objection in the trial court or by the filing of a motion under Florida Rule of Criminal Procedure 3.800(b). See Ortuno v. State, 32 So.3d 121, 121 (Fla. 2d DCA 2009); Evett v. State, 947 So.2d 662, 662-63 (Fla. 2d DCA 2007); Jones v. State, 898 So.2d 209, 209-10 (Fla. 2d DCA 2005); Jelks v. State, 770 So.2d 183, 185-86 (Fla. 2d DCA 2000).

Affirmed.

MORRIS and SLEET, JJ., Concur.


author: KELLY, Judge.

text:
    K.M.A., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2809.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.
    Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuecaro, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

K.M.A. appeals from the trial court’s order revoking her probation, adjudicating her delinquent, and committing her to a moderate risk facility. The State concedes and we agree that it was fundamental error to revoke K.M.A.’s probation where the charging document did not state what conditions of probation were violated and the revocation order did not include specific findings. Accordingly, we reverse and remand for reinstatement of K.M.A.’s probation.

K.M.A., a fifteen-year-old dependent child, entered a no contest plea to possession of cannabis. The trial court withheld adjudication and placed K.M.A. on six months of probation in December 2011. Before her probation terminated, K.M.A. was placed with an aunt in Ohio; however, that placement did not work out and she was returned to Florida in April 2012. As her case manager drove her from the airport to her residence, K.M.A. jumped out of the ear at a stoplight and fled. About ten days later she was picked up and placed into secure detention for twenty-one days. Meanwhile, an affidavit of violation of probation was filed, which described K.M.A.’s escape from her guardian’s car but failed to charge her with violating any specific terms or conditions of probation.

Despite the fact that the affidavit of violation of probation failed to list specific conditions that K.M.A. violated, the circuit court revoked her probation and committed her to a moderate risk facility. At the hearing, the circuit court concluded that when K.M.A. jumped out of her guardian’s car, she knew that she was violating probation conditions prohibiting her from leaving home without permission and requiring her to keep her parents advised of her whereabouts at all times. But these specific violations were not alleged in the affidavit, and the trial court committed error when it found that K.M.A. violated her probation based on uncharged conduct. See Joslin v. State, 984 So.2d 1269, 1272 (Fla. 2d DCA 2008) (“It is not proper for a court to find a violation based on conduct not alleged in the affidavit of violation of probation.”).

Furthermore, because the affidavit failed to cite any specific conditions that K.M.A. allegedly violated, K.M.A. appeared at the hearing without adequate notice of the charges against her. “[Revoking an individual’s probation for conduct not alleged in the charging document deprives the individual of due process and constitutes fundamental error.” Wells v. State, 60 So.3d 551, 553 (Fla. 1st DCA 2011). Finally, even if K.M.A. had been adequately charged and found to have violated specific conditions, the failure of the trial court to specify the conditions violated in the revocation order would have been reversible error. See McRae v. State, 88 So.3d 384, 385 (Fla. 2d DCA 2012) (observing, in another case in which the State conceded error, that “the trial court committed reversible error by failing to specify what condition [the defendant] violated in its order revoking probation”).

Based on the foregoing, we reverse the order revoking K.M.A.’s probation and committing her to a moderate risk facility and remand for reinstatement of K.M.A.’s probation.

Reversed and remanded.

CASANUEVA and KHOUZAM, JJ, Concur.

      . The court appreciates the State’s concession of error, which has facilitated an expeditious resolution of this appeal.


author: DAVIS, Judge.

text:
    Christopher Lee JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2536.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

Christopher Lee Jacobs challenges his judgments and sentences for two felony counts of driving under the influence involving serious bodily injury and one count of misdemeanor driving while license was suspended. The only issue he raises on appeal is whether the trial court erred by entering a restitution order after he filed his notice of appeal.

The State concedes, and we agree, that the filing of the notice of appeal divested the trial court of jurisdiction; therefore, we must reverse the restitution order that was entered days after Jacobs filed his notice of appeal. See Brayley v. State, 93 So.3d 1233, 1234 (Fla. 2d DCA 2012); Renfroe v. State, 20 So.3d 1027, 1027 (Fla. 2d DCA 2009). We otherwise affirm the judgments and sentences but “remand for the trial court to have the opportunity to conduct another hearing and reimpose restitution.” See Renfroe, 20 So.3d at 1027.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and BLACK, JJ, Concur.


author: KHOUZAM, Judge.

text:
    Antonio D. WADE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2208.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.

      Joe Caimano, Tampa, for Appellant.
    Antonio D. Wade, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Antonio D. Wade appeals the summary denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for the postconviction court to award him additional presentence jail credit in case number 08-18974.

On September 17, 2008, Wade was arrested and charged in three different case numbers: 08-18226, 08-18227, and OS-18228. He was still in custody on these charges on September 24, 2008, when he received a summons notifying him that he had been charged in a fourth case number (08-18974) and that an arraignment would be held on October 13, 2008. A capias in that case number issued on September 25, 2008. Wade was charged in a fifth case number (08-19450) on October 2, 2008. A capias issued the same day, and the arrest warrant was served on Wade in jail on October 6, 2008. Ultimately, on June 25, 2009, the trial court adjudicated Wade guilty and sentenced him to concurrent terms of five years in prison on each count in all five case numbers. Wade received proper credit for the time he spent in jail between his September 2008 arrest, and the June 2009 sentencing 'in each case number except for case number 08-18974, in which he was only awarded one day of credit.

In his motion, Wade asserted that he was entitled to 281 days of jail credit for the time he spent in jail from his arrest on September 17, 2008, until his June 25, 2009, sentencing in case number 08-18974. The postconviction court denied this claim as successive because it had previously denied the same claim on the merits in its March 15, 2010, order on Wade’s first rule 3.800(a) motion. In that order, the court' had found that Wade was not in custody prior to sentencing in case number OS-18974. But the record reflects that Wade was in fact in custody in that case number prior to the. sentencing hearing. The docket report and copy of the summons show that the sheriff served Wade with a summons in case number 08-18974 on September 24, 2008, at the Hillsborough County jail; that the circuit court issued a capias in that case number on September 25, 2008; and that Wade was arraigned in October 2008. Thus, the postconviction court’s finding was in error.

Further, while Wade may not have been formally arrested until sentencing, the fact that the State failed to take the simple step of executing the warrant does not bar him from receiving jail credit for the time he spent in custody prior to sentencing in case number 08-18974. In Martinez v. State, 965 So.2d 1244, 1246 (Fla. 2d DCA 2007), this court held that “[t]o condition receipt of jail credit ... on the sole factor of when the local sheriff finally gets around to arresting his or her prisoner would be to condition jail credit on a nonjudicial factor that was beyond [the defendant’s] control and which was completely arbitrary.” Although the information, capias, and summons in case number 08-19450 issued after those in case number 08-18974, Wade received 265 days of jail credit in case number 08-19450 because the warrant was executed on October 6, 2008.

Thus, Wade is entitled to the credit he seeks. And, as the State concedes, the postconviction court’s previous order denying this claim should not bar relief “because ‘the award of jail credit is clearly incorrect as a matter of law and a failure to correct that error would result in manifest injustice.’ ” Zamora v.State, 96 So.3d 1116, 1116 (Fla. 2d DCA 2012) (quoting Bronk v. State, 25 So.3d 701, 703 (Fla. 2d DCA 2010)). Therefore, we reverse and remand for the postconviction court to grant Wade’s motion and award him the 281 days of presentence jail credit in case number 08-18974 for the time he spent in jail prior to the June 25, 2009, sentencing hearing. As it appears that Wade’s release will be imminent when he receives the additional jail credit, the postconviction court should expedite the proceedings on remand and enter an order within fifteen days of the issuance of the mandate.

Reversed and remanded with instructions.

NORTHCUTT and DAVIS, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    C.A.G., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1281.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

C.A.G. challenges the juvenile court’s finding that he violated a Tampa city ordinance prohibiting assemblies obstructing streets and sidewalks. We find no error in that decision and affirm without further comment. But we reverse the court’s order of probation because it does not state the term of the probation imposed. We remand with directions to enter a corrected probationary order. See J.M.W. v. State, 935 So.2d 630, 632 (Fla. 2d DCA 2006).

Affirmed in part, reversed in part, and remanded.

SILBERMAN, C.J., and LaROSE, J., Concur.


author: PER CURIAM.

text:
    D.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6529.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.
    Ita M. Neymotin, Regional Counsel, Second District, Bartow, and Stacy L. Sherman, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fort Myers, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

The restitution order appealed in this case is the same order at issue in D.C. v. State, 109 So.3d 1264 (Fla. 2d DCA 2013). For the reasons expressed in D.C., we reverse and remand for a new evidentiary hearing.

Reversed and remanded.

CASANUEVA, DAVIS, and BLACK, JJ., Concur.


text:
    Homero MENDIOLA, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5108.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.

      Jorge Leon Chalela, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

A jury found Homero Mendiola, III, guilty of one count of first-degree felony murder and three counts of robbery with a deadly weapon. The trial court sentenced Mr. Mendiola to life in prison on the felony murder conviction and to ten years in prison on each of the three robbery convictions. The trial court designated the sentences to run concurrently. Mr. Mendiola appeals his judgment and sentences.

On appeal, Mr. Mendiola raises a single point concerning the trial court’s denial of his motion to suppress his confession. We find no error, and the issue does not warrant further discussion. Accordingly, we affirm Mr. Mendiola’s judgment and sentences. However, we write briefly to mention the life sentence without the possibility of parole imposed on Mr. Mendiola, a juvenile, for first-degree felony murder.

Mr. Mendiola committed his offenses on August 8 and 9, 2008. At that time, he was seventeen years old. Mr. Mendiola and his two codefendants robbed three men. The record reflects that one of the codefendants — not Mr. Mendiola— fired a revolver and killed one of the three men. The trial court sentenced Mr. Men-diola on October 6, 2011. On appeal, Mr. Mendiola does not challenge his life sentence.

This court determined in Arrington v. State, 113 So.3d 20 (Fla. 2d DCA Jan. 18) (supplemental opinion after withdrawal of mandate), review denied, 104 So.3d 1087 (Fla.2012), that the categorical rule announced in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), that the Eighth Amendment prohibits imposition of a life sentence without parole on a juvenile who commits a “nonhomi-cide” offense, does not apply to a juvenile convicted of felony murder when someone else actually committed the murder. However, we also concluded in Arrington “that Florida’s statutorily mandated life-without-parole sentence for juveniles convicted of felony murder when they were not the actual killer raises a sufficient risk of a cruel and unusual sentence that trial courts must consider whether such a sentence is proportionate given the circumstances of the juvenile’s crime.” 82 So.3d 1082.

Here, the trial court sentenced Mr. Mendiola immediately following the conclusion of the trial. Defense counsel agreed that the trial court had no discretion in sentencing Mr. Mendiola on the first-degree felony murder conviction and that the only possible sentence was life without the possibility of parole. No one raised an issue with regard to Graham, and the sentencing occurred approximately three months before this court issued its decision in Arrington. The record does not reflect the filing in the trial court of a motion to correct sentence in accordance with Florida Rule of Criminal Procedure 3.800(b)(1). Moreover, counsel for Mr. Mendiola has not filed in this court a notice of a pending motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). Thus we do not reach the issue of the legality of Mr. Men-diola’s life sentence without the possibility of parole for the first-degree felony murder conviction.

Affirmed.

DAVIS and LaROSE, JJ., Concur.

      . The record reflects that Mr. Mendiola's date of birth is April 29, 1991.


text:
    Russell Harris CALAMIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1710.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.

      John D. Middleton of The Middleton Law Office, Melrose, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Russell Harris Calamia appeals his jury conviction for extortion. Calamia contends that the court erred in instructing the jury with a definition of legal malice for the term “maliciously” in the extortion statute. § 836.05, Fla. Stat. (2009). Calamia also contends that the court erred in instructing the jury that a communication to a third party is sufficient for a “communication” within the meaning of the statute. We find merit to Calamia’s contentions and reverse and remand for a new trial.

In 1988, Calamia pleaded guilty to second-degree murder and agreed to a twenty-year sentence followed by probation. The victim’s sister, Debbie Pitts, attended every hearing in the case, including the sentencing hearing. She continued to be in constant contact with the prosecutor regarding her family’s interest in the prosecution and the subsequent probation hearings. Calamia violated his probation and was ordered to wear a GPS monitoring device. The GPS monitoring device agitated Calamia because it caused him problems at work and with his social activities. Roughly six months after Calamia’s probation hearing, his attorney received a letter in which Calamia made threats toward Debbie Pitts and her family. The attorney was concerned that he had an ethical obligation to disclose the threat of bodily harm contained in the letter. As a result, the attorney reported the contents of the letter to the assistant state attorney, but the attorney did not provide a copy of the letter. The assistant state attorney revealed the threat to Ms. Pitts and her family. The State, based upon the defense attorney’s representations, brought a violation of probation action against Calamia and, through a court order, was able to compel production of Calamia’s letter. The lower court found Calamia violated his probation. On the basis that the letter was inadmissible, Calamia appealed the violation of probation to this Court, which per curiam affirmed. See Calamia v. State, 998 So.2d 622 (Fla. 5th DCA 2008). The State then charged Calamia with extortion pursuant to section 836.05. The case went to trial, and a jury convicted Calamia of extortion. This appeal follows.

Calamia raises numerous issues on appeal; two merit discussion and require reversal. The first has to do with the jury instruction that defined the term “maliciously” as found in the extortion statute, which provides:

Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree, punishable as provided in s.775.082, s.775.083, or s.775.084.

§ 836.05, Fla. Stat. (2009) (emphasis added). At trial, without objection, the jury was instructed:

To prove the crime of extortion by written or printed threat the State must prove the following three elements beyond a reasonable doubt:
1. Russell Harris Calamia maliciously threatened an injury to the person of another, 'to wit, Debbie Pitts or a member of her family.
2. The threat was made by written or printed communication to another, to wit, James Kontos.
3.The threat was made with intent thereby to compel another, to wit, Assistant State Attorney Robert Wayne Holmes, to do any act or refrain from doing any act against his will, to wit, to accept a defense proposal or refrain from opposing a defense motion requesting the Court either reduce the probationary portion of the Defendant’s sentence of 15 years, or sentence the Defendant to either 18 months or three years in the Department of Corrections after termination of probation, said sentence being served for the offense of second degree murder in Brevard County, case number 86-504-CFA.
The word maliciously means intentionally and without lawful justification.
It is not necessary for the State to prove that the Defendant intended or had the ability to carry out the threat.

(Emphasis added).

The issue is whether this Court adopts the definition for “actual malice” or “legal malice” as it relates to the extortion statute. The instruction for “maliciously” given in this case — “intentionally and without lawful justification” — was the standard for legal malice. See Adams v. State, 799 So.2d 1084, 1089 (Fla. 5th DCA 2001) (citing Young v. State, 753 So.2d 725, 728 (Fla. 1st DCA 2000)). Calamia argues that “maliciously” should have been defined as actual malice. Unlike legal malice, actual malice requires proof of evil intent or motive. Adams, 799 So.2d at 1089 (citing Ramsey v. State, 114 Fla. 766, 154 So. 855, 856 (1934)). There is no standard jury instruction for the crime of extortion, only a proposed instruction that includes the definition of legal malice.

In Florida, two cases define “maliciously” in the context of extortion; both cases support the State’s position that legal malice is the appropriate standard. Dudley v. State, 634 So.2d 1093, 1094 (Fla. 2d DCA 1994) (citing Alonso v. State, 447 So.2d 1029, 1030 (Fla. 4th DCA 1984), to define “maliciously”). In Alonso, the Fourth District Court of Appeal provided:

[Actual malice] is not contemplated by the crime of extortion. The basic statutory ingredients are a threat made maliciously with the intent to require another to perform an act against his will. The malice requirement is satisfied if the threat is made “willfully and purposely to the prejudice and injury of another,.... ” Black’s Law Dictionary, 4th Ed.
The extortion statute prohibits only those utterances or communications which constitute malicious threats to do injury to another’s person, reputation, or property. Furthermore, the threats must be made with the intent to extort money or the intent to compel another to act or refrain from acting against his will.
Carricarte v. State, 384 So.2d 1261 (Fla.1980). A threat is malicious if it is made intentionally and without any lawful justification. Coupled with the requisite intent it constitutes the crime of extortion.

Alonso, 447 So.2d at 1030.

Calamia argues that the Fourth District’s reliance on Carnearte is misplaced. In Carnearte, the Florida Supreme Court found that the term “maliciously” in the extortion statute did not render the statute unconstitutionally vague. Carricarte, 384 So.2d at 1263. The supreme court supported its decision with other cases, only one of which provided a definition of malice. Id. (citing State v. Gaylord, 356 So.2d 313, 314 (Fla.1978)). In Gaylord, the supreme court said “maliciously” in Florida’s child abuse statute, section 827.03, Florida Statutes (1975), “[provides] a standard of conduct understandable by a person of ordinary intelligence.” Gaylord, 356 So.2d at 314. In the child abuse context, “[m]al-ice means ill will, hatred, spite, an evil intent.” Id. Therefore, Calamia contends that because the court in Carnearte relied on a definition of actual malice to withstand a vagueness challenge to the extortion statute, the Fourth District should not have adopted the legal malice standard in Alonso.

We think that the definition of actual malice, as used in Gaylord, is the instruction that should have been used in this case. We do note that the Legislature amended the child abuse statute, section 827.03, to change the definition of “maliciously” from actual malice to legal malice. Ch. 2003-130, § 1, at 790-91 Laws of Fla. (2003). However, the supreme court has not revisited the definition as set forth in the extortion statute. Although we think that the Fourth District’s analysis in Alon-so is correct and legal malice is the more appropriate definition, we are compelled to follow the supreme court’s directive in Carnearte. Therefore, we hold actual malice is the correct standard for extortion and certify conflict with Alonso and Dudley.

The State correctly contends that there was not a contemporaneous objection to this instruction; however, Cala-mia argues that the error is fundamental because it reduced the State’s burden. To be fundamental, an error in a jury instruction must be pertinent to what the jury must consider to convict. Stewart v. State, 420 So.2d 862, 863 (Fla.1982). To convict a defendant, the State must prove all essential elements of guilt beyond a reasonable doubt. State v. Cohen, 568 So.2d 49, 51 (Fla.1990) (citing In re Winship, 397 U.S. 358, 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)). It is fundamental error to use the definition of legal malice when that of actual malice is appropriate because it reduces the State’s burden on an essential element of the offense charged. See Reed v. State, 837 So.2d 366, 369 (Fla.2002) (quoting Young, 753 So.2d at 729).

Next, we address the jury instruction as it relates to “communication.” The instruction provided as follows:

The threat was made' by written or printed communication to another to-wit James Kontos.

The State, argues that Calamia is precluded from arguing that the jury instruction was incorrect based upon the doctrine of res judicata. We find the State’s argument is without merit as the prior proceeding was a probation hearing, which has substantially different procedural rules than a criminal trial on a new charge.

The statute does not define to whom the communication must be made. Presently, case law in Floridá does not clarify whether a “communication” must be sent directly, indirectly, or ever reach the victim of extortion.

In Duan v. State, 970 So.2d 903 (Fla. 1st DCA 2007), the First District set forth a jury instruction that required the communication be made to the person being extorted. Id. at 905-06. However, the issue in Duan was whether a threat of mental injuries is prohibited under the statute. Id.

Similarly, in Dudley, the Second District affirmatively resolved the issue of whether convictions on both the extortion statute, section 836.05, and the statute criminalizing a threat of bodily harm, section 836.10, constitute a violation of double jeopardy. Dudley, 634 So.2d at 1094. Section 836.10 provides, as follows:

Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The court held that in order to find that convictions for both offenses violate double jeopardy, the elements of making a written threat are subsumed within the Offense of the extortion statute. Dudley, 634 So.2d at 1094. In the criminal threat statute, “ ‘the threat is to the recipient of the communication or a member of his family.’ ” Suggs v. State, 72 So.3d 145, 147 (Fla. 4th DCA 2011); (quoting State v. Wise, 664 So.2d 1028, 1030 (Fla. 2d DCA 1995)). Thus, Dudley implies that a threat must be communicated to the person threatened for criminal liability to attach under the criminal threat statute. By analogy, a threat to a person becomes extortion only when the threat is used to coerce the person to whom the threat is communicated.

Although the issue of whether the communication must be made to the coerced party was not directly addressed in Dudley, the Second District Court explained in dicta:

To prove extortion in a case such as this, it is incumbent upon the prosecution to show that there was a malicious threat of injury against a person, which was communicated in writing for the purpose of compelling that person to commit an act or to refrain from acting against his will.

634 So.2d at 1094 (citing § 836.05, Fla. Stat.). The statement implies that the person being written to is the person being compelled to act against his or her will.

The plain reading of the extortion statute does not define “communication” or to whom it must be made. Calamia argues that he must have intended that the communication somehow, directly or indirectly, reach the party that Calamia is attempting to coerce. The statute requires “intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will....” § 836.05, Fla. Stat. We infer that the communication must be made in verbal or written form with the intent that it reach the person being compelled to act against his or her will. By not indicating that the communication must be direct, the statute does not exclude indirect from its meaning. In this interpretation, the State must show that the communication, if not made by Calamia directly to the person being compelled, be made indirectly (i.e., to a third party) with intent that the communication reach the person being compelled. Otherwise, the State would be required to show that the communication’s end point is an intermediary and never go further, which is what happened in the present case.

We interpret the statute to mean that the intent to compel is coupled with the intent that the communication, either directly or indirectly, reaches the coerced person. Applied here, if Calamia made a communication to his lawyer, Calamia must do so intending that his lawyer send the message to the person Calamia intended to compel, so the coercion can actually occur. The jury instruction did not reflect that. It required the jury to find only that the threat was made by written or printed communication to the lawyer. The instruction on communication was fundamentally erroneous and requires this Court to reverse the judgment and conviction and remand for a new trial.

As previously stated, we hold that Carn-earte requires use of an actual malice standard for the crime of extortion and, as to this issue, certify conflict with the Fourth District Court of Appeal’s holding in Alonso, 447 So.2d at 1030, and the Second District Court of Appeal’s holding in Dudley, 634 So.2d at 1094. We likewise certify as a question of great public importance:

IS THE STATE REQUIRED TO PROVE ACTUAL MALICE TO SUSTAIN A CONVICTION FOR THE CRIME OF EXTORTION UNDER SECTION 836.05, FLORIDA STATUTES?

We find no error on the part of the trial court as to the other issues raised by Calamia.

CONFLICT CERTIFIED; QUESTION CERTIFIED; REVERSED and REMANDED.

LAWSON and BERGER, JJ„ and JACOBUS, Senior Judge, concur.

      . Calamia did not object to the definition of “maliciously.” However, he made other objections during the charge conference to the State’s proposed jury instructions, the subject of which concern the second issue in this appeal.


text:
    Emmett B. HAGOOD, III, Appellant, v. WELLS FARGO N.A., etc., Appellee.
    No. 5D12-2016.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.

      Craig L. Lynd, Angela M. Domenech and Richard W. Withers of Kaufman, En-glett & Lynd, PLLC, Orlando, for Appellant.
    Roy A. Diaz and Ryan T. Cox of SHD Legal Group, P.A., Fort Lauderdale, for Appellee.

      . Appellant’s initial brief mistakenly identifies Mr. Lynd’s middle initial as "L” rather than "R.”

   ON THE COURT’S MOTION FOR SANCTIONS

PER CURIAM.

Pursuant to rule 9.410, this Court, on its own motion, notified Appellant’s counsel of its intent to impose sanctions and provided counsel an opportunity to show cause why sanctions should not be imposed. Hagood v. Wells Fargo, 112 So.3d 770 (Fla. 5th DCA 2013). Counsel separately filed written responses. The responses do not refute the fact that the initial brief was based entirely on a false assertion of fact and was, therefore, frivolous. Nor do any of the responses refute the fact that the reply brief improperly relied on facts not supported by the record, lacked record references, and improperly interjected a new point on appeal.

Mr. Lynd asserts that his name was placed on the briefs because he is a partner at Kaufman, Englett & Lynd, PLLC (“KEL”), and he might have been needed at oral argument. He did not review the briefs or work on the case. Ms. Domenech asserts that, working remotely as a part-time employee of KEL, she simply drafted the initial brief at Mr. Withers’ request, using the trial lawyer’s electronic notes. She did not review the record on appeal or the firm’s physical file, and she was not aware that the briefs contents were false. When she submitted the initial brief for Mr. Withers’ review, she asserts that she “made it clear” that she had not reviewed the motion for summary judgment or motion for rehearing. Due to a gap in employment, Ms. Domenech did not see the answer brief or participate in the preparation of the reply brief. Inexplicably, although she handled the oral argument for the firm, she asserts that it was not until after oral argument that she realized her “draft” initial brief had been mistakenly filed with the Court. Finally, Mr. Withers, who admits that “everything that went wrong with this case at the appellate level is my fault,” maintains that he relied on Ms. Domenech’s work and was not told by his paralegal that the brief prepared by Ms. Domenech was a “draft” or he “would have read it a lot more carefully.” Curiously, Mr. Withers’ response manifests a hindsight belief that his threshold error in this case was that he should have filed a petition for certiorari seeking to challenge the denial of the motion for rehearing, rather than a direct appeal.

Although the responses by the lawyers satisfy this Court that no intentional misconduct occurred in this case, they evince systemic flaws in internal procedures, a lack of understanding of substantive law and rules of procedure, a lack of supervision by senior lawyers, and multiple acts of professional negligence that began in the trial court and continued through the oral argument. The left-hand-did-not-know-what-the-righthand-was-doing defense is not acceptable. Even negligent violations of rules of procedure may justify sanctions. Accordingly, this Court imposes a $1,000 fine on counsel, jointly and severally, to be paid to the Clerk of this Court within thirty days.

This Court also admonishes all counsel that each attorney of record is responsible for the content of the entire document when his or her name appears on the document. Each attorney who appears in a proceeding and authorizes his or her name to be affixed to an appellate brief or other pleading cannot avoid responsibility for the content of the brief by later claiming limited or no involvement in its preparation.

The court reserves jurisdiction to enforce this order.

TORPY, BERGER, JJ., and JACOBUS, Senior Judge, concur.


text:
    Mollie W. McKINNON, Individually, and as Trustee of the Veronica A. Weinstein Irrevocable Living Trust, Appellant, v. Leslie WEINSTEIN and Bari Weinstein, Appellees.
    No. 5D12-3925.
    District Court of Appeal of Florida, Fifth District.
    June 28, 2013.
    Rehearing Denied July 25, 2013.

      Jay S. Levin and Andrew Jackson of Jackson Law Group, LL.M., P.A., St. Augustine, for Appellant.
    Kenneth A. Tomchin and Brett P. Abner of Tomchin & Odom, P.A., Jacksonville, for Appellees.
   PER CURIAM.

Appellant, Mollie McKinnon, is the trustee of the Veronica A. Weinstein Irrevocable Living Trust (“Trust”). Appellees filed suit below seeking to force the trustee to distribute assets, which they claim to be due to them from the Trust. Following a hearing on the matter, the trial court issued an order essentially freezing all Trust assets indefinitely, until it could conduct further proceedings to sort out the parties’ claims. The order, which both parties characterize as a temporary injunction, does not contain any findings that would support an injunction, and does not require the posting of any type of bond. And, although neither party requested the injunction, neither party appealed from the order. Instead, McKinnon later filed a motion with the trial court, arguing that the injunction should be set aside because it was improperly entered. When the trial judge denied that motion, McKinnon appealed from the later denial order in an improper attempt to belatedly challenge the original injunction order. See, e.g., Betancourt v. Estate of Misdraji, 13 So.3d 489 (Fla. 3d DCA 2009) (declining to consider issues raised on appeal from denial of successive petition to re-open estate when same issues had been decided in prior orders from which moving party had not appealed); Ferguson v. Ferguson, 921 So.2d 796 (Fla. 5th DCA 2006) (holding that former husband was not entitled to evidentiary hearing, on petition to modify alimony where he failed to demonstrate substantial change in circumstances since entry of a prior order denying modification of alimony from which he did not appeal); M.G. v. State, 711 So.2d 1377 (Fla. 1st DCA 1998) (holding that mother’s failure to appeal prior contempt order precluded her challenge to prior order in appeal from later order entered based upon prior contempt order).

Because McKinnon did not appeal from the injunction order, we will not consider the propriety of that order on appeal. However, given the questionable nature of the original injunction order, and the obvious problems that freezing all Trust assets could pose for all concerned, we would hope that the trial court can quickly resolve the parties’ dispute.

AFFIRMED.

LAWSON and BERGER, JJ„ and JACOBUS, Senior Judge, concur.


author: ALTENBERND, Judge.

text:
    Daniel LaSALLA, Petitioner, v. POOLS BY GEORGE OF PINELLAS COUNTY, INC., Respondent.
    No. 2D12-4276.
    District Court of Appeal of Florida, Second District.
    June 28, 2013.
    Courtney L. Fish and Leonard S. Eng-lander of Englander Fischer, St. Peters-burg, for Petitioner.
    Thomas John Dandar, Tampa, for Respondent.
   ALTENBERND, Judge.

Daniel LaSalla has filed a petition seeking the issuance of a common law writ of certiorari to quash the circuit court’s order denying certiorari relief. The circuit court reviewed an order entered by a county court. Thus, this is a second-tier certiora-ri proceeding. We deny the petition and write primarily to explain that, for purposes of the concept of subject matter jurisdiction, a county court that applies the Florida Small Claims Rules in a particular proceeding is not a separate court from a county court that applies the Florida Rules of Civil Procedure. This is true even if a county court has elected to create a “small claims division” to handle cases under the Florida Small Claims Rules. To the extent that Tax Certificate Redemption’s, Inc. v. Meitz, 705 So.2d 64 (Fla. 4th DCA 1997), discusses the “jurisdiction” of a small claims court as distinct from the jurisdiction of county court, we believe that discussion is incorrect.

This case began in 2006 as a two-count complaint filed in the small claims division of the Pinellas County Court. In that complaint, Pools by George of Pinellas County, Inc. (PBG) sought $5000 from Mr. LaSalla for breach of a contract. PBG claimed that it had performed work on Mr. LaSalla’s pool deck for which it had not been paid. In count two, the complaint sought to foreclose a construction lien.

Claims in equity, including claims to foreclose construction liens, are not intended to be resolved under the Florida Small Claims Rules. Fla. Sm. Cl. R. 7.010(b) (“These rules are applicable to all actions at law of a civil nature in the county courts.” (Emphasis added.)). Nevertheless, apparently without objection, this case went to judgment in the county court’s small claims division. Mr. LaSalla did not timely appeal that judgment.

Thereafter, Mr. LaSalla retained counsel who argued that the small claims division did not have subject matter jurisdiction to enter that judgment or a subsequent award of attorney’s fees. Procedurally, this case then became very complex. For purposes of this opinion, it is sufficient to understand that the circuit court, in an appellate proceeding, concluded it must follow the law explained in Tax Certificate, and it reversed an order of attorney’s fees entered by the county court small claims division. Thereafter, following additional proceedings, Mr. LaSalla argued that the judgment in the small claims division was void for lack of subject matter jurisdiction. The circuit court rejected that argument in the certiorari proceeding as we do in this proceeding.

Not all county courts choose to have small claims divisions. Pinellas County does have such a division. The Florida Small Claims Rules do not discuss the need for such a division but describe the scope of the rules as follows:

These rules are applicable to all actions at law of a civil nature in the county courts in which the demand or value of property involved does not exceed $5,000 exclusive of costs, interest, and attorneys’ fees.

Fla. Sm. Cl. R. 7.010(b).

These rules do not create a “small claims court.” They simply create rules of procedure for use in county court when the amount in controversy is small. If the amount in controversy changes during a proceeding and exceeds the amount specified in the small claims rules, but is not large enough to warrant a transfer to circuit court, the parties should be entitled to request the court to begin using the Florida Rules of Civil Procedure. See Fla. Sm. Cl. R. 7.020 (providing that the Florida Rules of Civil Procedure may apply to an action proceeding under the small claims rules by order of the court or stipulation by the parties). A shift to these rules, however, is not a change of “jurisdiction” or a transfer to another court. At all times, the proceeding is filed in county court under the jurisdictional rules governing county courts. See § 34.01, Fla. Stat. (2005).

As a constitutional matter, it would be impossible for the legislature or the supreme court to establish a separate small claims court unless the constitution were first amended. Article V, section 1 of the Florida Constitution specifies that “judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts.” It expressly states: “No other courts may be established by the state, any political subdivision or any municipality.”

Accordingly, although the initial judgment in county court may have been entered with the. use of the wrong set of procedural rules, that judgment was not void and the county court had subject matter jurisdiction over the case. Thus, the circuit court did not depart from the essential requirements of the law in the certio-rari proceeding that is challenged in this second-tier certiorari proceeding. If any error occurred in this case, that error may have occurred when the circuit court understandably followed the Fourth District’s decision in Tax Certificate and reversed the county court’s order awarding attorney’s fees on the basis of that decision.

Petition for writ of certiorari denied.

KELLY and SLEET, JJ., Concur.

      . Florida Small Claims Rule 7.100(d), which is comparable to Florida Rule of Civil Procedure 1.170(j), discusses a transfer when a case is beyond the jurisdiction of the county court. The transfer contemplated by both rules appears to be a transfer from county to circuit court.

      . In Pinellas County, Administrative Order No. 91-19 addresses cases that are "transferred” from the small claims division to the county civil division and vice-versa. "Transfer” is not used in a jurisdictional sense in this order. The transfer discussed is similar to a transfer from one division of circuit court to another. It is noteworthy that a "transfer” under Order 91-19 reassigns the case to another division, but keeps the same county judge on the case. Thus, for practical purposes, the "transfer” merely shifts the rules of procedure applicable in the courtroom. In re Section Assignments, Fla. Admin. Order No. 91-19 (June 21, 1991), available at http:// www.jud6.org/legalcommunity/Legal Practice/AOSAndRules/aos/aos91/A091-19CTY.htm.


author: TAYLOR, J.

text:
    Rebecca Ann CALDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3563.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.

      W. Grey Tesh, West Palm Beach, and Michael Ufferman, Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

We affirm appellant’s convictions for three counts of grand theft and one count of making a false entry into corporate books, because the trial judge did not abuse his discretion in excluding the testimony of a defense witness in the trial of this case. We write, however, to comment upon remarks the trial judge made to defense counsel during his cross-examination of state witnesses.

Appellant complains that the trial court’s comments to defense counsel during his cross-examination of the state’s witnesses improperly abridged her constitutional right of confrontation/cross-examination and amounted to fundamental error. We disagree. The record shows that defense counsel was able to conduct a vigorous and thorough cross-examination of the witnesses in spite of the trial court’s unsolicited intervention and comments during cross-examination.

We do not repeat these remarks, because we do not wish to memorialize them in this opinion. However, we do not condone them. In our view, the trial court’s remarks to defense counsel during his cross-examination were undignified and inappropriate. See Fla. Code of Jud. Conduct, Canon 3B(4) (2012) (“A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity-”). As the Michigan Supreme Court explained:

Pert remarks and quips from the bench have no place in the trial of a criminal case, do not comport with judicial dignity and the injurious effect of such, though thoughtlessly uttered, may prove exceedingly damaging to the party entitled to a fair trial.
The accused had a right to be represented by an attorney and have the attorney treated with the consideration due such an officer of the court and belittling observations aimed at the attorney are, necessarily, injurious to the one he represents.

People v. Neal, 290 Mich. 123, 287 N.W. 403, 405-06 (1939).

We find no error in the trial court’s imposing the “crime-prevention cost,” pursuant to section 775.083(2), Florida Statutes (2010), without also imposing a fine. The crime prevention cost is mandatory and must be imposed regardless of whether or not the defendant was required to pay fines under a separate statutory basis. See Bryant v. State, 47 So.3d 952, 953 (Fla. 2d DCA 2010).

We also find no error in the trial court’s failure to refer to the specific statutory authority for imposing costs in the written order. See Johnson v. State, 944 So.2d 474, 477 (Fla. 4th DCA 2006) (holding that the trial court could impose statutorily mandated court costs on defendant without referring to the statutory authority for their imposition). We distinguish Houle v. State, 33 So.3d 822, 823 (Fla. 4th DCA 2010), cited by appellant, because, unlike here, in Houle there was no statutory authority for the fee imposed by the trial court.

Affirmed.

MAY and GERBER, JJ., concur.

      . The comments complained of were made outside the presence of the jury.


text:
    Perry JOSEPH, Petitioner, v. STATE of Florida, Respondent.
    No. 4D12-2380.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Rehearing En Banc Denied Nov. 12, 2013

      Perry Joseph, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner, Perry Joseph, seeks a writ of habeas corpus based on alleged ineffective assistance of appellate counsel in Joseph v. State, 41 So.3d 307 (Fla. 4th DCA 2010). In Joseph, appellate counsel raised four grounds for reversal of petitioner’s convictions for second degree murder and attempted robbery with a firearm, including a challenge to two comments by the prosecutor during closing argument which petitioner claimed violated his right to a constitutionally-fair trial by shifting the burden of proof from the state to petitioner. In this petition, petitioner claims appellate counsel should have raised additional grounds for finding the prosecutor’s closing argument cumulatively improper. Petitioner also contends that appellate counsel should have challenged on appeal the admission into evidence of a portion of one of his police statements which referenced him having committed previous armed robberies with the charged co-defendants (“every time they want to go do some [robberies] they come get me because I am a good driver, I am going to get away from the cops”).

A writ of habeas corpus is appropriately issued when appellate counsel has performed deficiently so as to compromise the appellate process, undermining confidence in the reliability of the outcome. Buzia v. State, 82 So.3d 784, 792 (Fla.2012). However, failure to raise a non-meritorious issue(s) on appeal does not constitute appellate ineffectiveness. Barwick v. State, 88 So.3d 85, 108 (Fla.2011). Nor must counsel raise every issue with potential merit, as part of “appellate counsel’s responsibilities is to ‘winnow out’ weaker arguments on appeal [so as] to focus upon those most likely to prevail.” Nerey v. State, 634 So.2d 206, 206 (Fla. 3d DCA 1994) (citation omitted); see also Valentine v. State, 98 So.3d 44, 57 (Fla.2012).

In Barwick, the Florida Supreme Court noted that, in Rimmer v. State, 59 So.3d 763, 786 (Fla.2010), it had previously addressed “the applicable standard” for reviewing claims of ineffective assistance of direct appeal counsel, setting forth the following:

Appellate counsel’s ineffectiveness is properly raised in a petition for writ of habeas corpus. See Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). In order to grant habeas relief on the basis of ineffectiveness of appellate counsel, this Court must determine whether the alleged omissions are of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance and, second, whether the deficiency in performance compromised the appellate process to such a degree as to undermine confidence in the correctness of the result.

Barwick, 88 So.3d at 106-07. “The defendant has the burden of alleging a specific, serious omission or overt act upon which the claim of ineffective assistance of counsel can be based.” Freeman v. State, 761 So.2d 1055, 1069 (Fla.2000). Here, we have examined the challenges. petitioner alleges should have been made by his appellate counsel on direct appeal with respect to various comments made by the prosecutor during closing argument, but find “the alleged omissions are [not] of such magnitude as to constitute a serious error or substantial deficiency falling measurably outside the range of professionally acceptable performance.” Rimmer, 59 So.3d at 786.

Likewise, petitioner’s complaint that appellate counsel’s failure to seek appellate review of the admission of that portion of his police statement which referenced prior robberies constitutes ineffective assistance of counsel is unavailing, as the evidence was admissible to show petitioner’s knowledge of the robbery plan among his co-defendants out of which these charges arose. See, e.g., Johnson v. State, 112 So.3d 564 (Fla. 4th DCA 2013). Thus, we find appellate counsel was not ineffective in foregoing a meritless claim on petitioner’s direct appeal. Lamb v. McNeil, 41 So.3d 964, 965 (Fla. 4th DCA 2010).

Accordingly, the petition for writ of ha-beas corpus is denied.

STEVENSON, MAY and FORST, JJ„ concur.


text:
    Leon J. NOEL, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Jetro Holdings, Inc., Appellees.
    No. 4D12-4201.
    District Court of Appeal of Florida, Fourth District.
    July 3, 2013.
    Leon J. Noel, Hollywood, pro se.
    Louis A. Gutierrez, Tallahassee, for ap-pellee Reemployment Assistance Appeals Commission.
   PER CURIAM.

Affirmed. See Hillsborough Cnty., Dep’t of Emergency Med. Servs. v. Unemployment Appeals Comm’n, 433 So.2d 24, 25 (Fla. 2d DCA 1983) (“Continued absenteeism caused by personal problems for which an employee bears culpability amounts to misconduct per se for purposes of section 443.101(l)(a).”).

WARNER, STEVENSON and TAYLOR, JJ., concur.


author: PER CURIAM. EVANDER, J.,

text:
    STATE of Florida, Petitioner, v. Jason Michael REID, Respondent.
    No. 5D13-1694.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2013.
    Jeffrey L. Ashton, State Attorney, Orlando, and John N. Knutton, Assistant State Attorney, Kissimmee, for Petitioner.
    Ernest J. Mullins, Kissimmee, for Respondent.
   PER CURIAM.

The Petition for Writ of Prohibition is denied. A writ of prohibition is meant to be very narrow in scope and should be employed with great caution. English v. McCrary, 348 So.2d 293, 296 (Fla.1977). Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction. Id.

PETITION DENIED.

SAWAYA and BERGER, JJ., concur.

EVANDER, J., concurs, with opinion.

EVANDER, J.,

concurring.

Athough I believe that the State has a meritorious argument on the underlying substantive issue, I agree that a writ of prohibition does not lie in the instant case. Furthermore, the alleged prospective error of the trial court can be remedied on plenary appeal. See Cox v. State, 412 So.2d 354 (Fla.1982) (reversal of judgment and sentence appropriate where trial court, over objection of State, accepted plea to lesser offense; jeopardy did not attach).


author: LaROSE, Judge.

text:
    In re FORFEITURE: OF 2006 NISSAN MURANO, IDENTIFICATION NO. JN8AZ08T76W400799. City of St. Petersburg, Appellant, v. Latasha Henderson, Appellee.
    No. 2D12-2912.
    District Court of Appeal of Florida, Second District.
    July 10, 2013.

      Andrea R. Luce and Don Gibson of City of St. Petersburg, St. Petersburg, for Appellant.
    Lynley B. Flagler of Flagler Law, P.A., St. Petersburg, for Appellee.
   LaROSE, Judge.

This is a forfeiture case. The City of St. Petersburg argues that the trial court should not have dismissed with prejudice its forfeiture complaint against Latasha Henderson. In so ruling, the trial court felt bound by our decision in Floyd v. State (In re Forfeiture of: 1992 Pontiac Firebird No.1G2FS23T3NL212004), 47 So.3d 344 (Fla. 2d DCA 2010). We have jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A). The facts in Floyd differ substantially from those now before us. We conclude that Floyd is inapposite. Accordingly, we must reverse.

We recite the relevant facts briefly. The City seized Ms. Henderson’s vehicle as property subject to forfeiture. The seizure stemmed from a traffic stop where law enforcement officers discovered evidence relating to check fraud offenses committed by Ms. Henderson. Officers arrested Ms. Henderson and seized her vehicle on November 30, 2011. In its initial complaint, the City erroneously alleged that the vehicle was seized on November 21, 2011. Ms. Henderson moved to dismiss the complaint under Floyd, asserting that the City failed to file its complaint within forty-five days of the seizure. See § 932.701(2)(c), Fla. Stat. (2011). The City amended the forfeiture complaint, this time alleging that the vehicle was seized on November 30, 2011.

At the hearing on her motion, Ms. Henderson argued that the City could not amend the complaint to cure a timeliness defect and to make material changes. The City argued that the amended complaint corrected a scrivener’s error concerning the seizure date, related back to the filing of the initial complaint, and did not otherwise substantially alter earlier allegations. The trial court ruled that Floyd required dismissal.

Floyd involved the Florida Contraband Forfeiture Act. See § 932.701-.706, Fla. Stat. (2008). Haines City filed its complaint for forfeiture, identifying Mr. Floyd’s vehicle as the subject property. The complaint described a bank robbery with the date of occurrence, name and location of the bank, name of the bank teller, manner of the robbery, and the amount stolen. The fleeing vehicle was described as a Jeep Cherokee. 47 So.3d at 345. Some six months later, Haines City sought to amend its complaint. The amended complaint alleged that the subject property was a Firebird. The pleading also alleged a new robbery date, a different bank and location, a different manner of the robbery, and a different amount stolen. The trial court ruled that the amended complaint related back to the date of the original complaint. We reversed. Id. at 345, 346-47.

Section 932.701(2)(c) requires the seizing agency to promptly proceed by filing the complaint within forty-five days after seizure.

Because the statute ... provides for the deprivation of a property right, its procedural requirements cannot be regarded as immaterial or a matter of mere convenience. We hold that the requirement in section 932.704(4) to “promptly proceed” with a forfeiture action is mandatory, and that under section 932.701(2)(c), “promptly proceed” means what it says: “to file the complaint within 45 days after seizure.”

Floyd, 47 So.3d at 346 (quoting DeGregorio v. Balkwill, 853 So.2d 371, 374 (Fla.2003)).

Haines City argued that the amended complaint should relate back under Florida Rule of Civil Procedure 1.190(a) and (c). Floyd, 47 So.3d at 346. Under rule 1.190(c), as long as the claims alleged in an amended pleading arise from the same “conduct, transaction, or occurrence” alleged in an initial, timely filed pleading, the expiration of the statute of limitations in the interim will not bar the claims asserted in the amended pleading. Id. (citing Flores v. Riscomp Indus., Inc., 35 So.3d 146, 147 (Fla. 3d DCA 2010)).

Floyd observed that although the relation back doctrine generally should be liberally applied, forfeiture statutes make for harsh exactions and must be strictly construed. ‘Due process mandates that the provisions of the forfeiture act be strictly interpreted in favor of the person being deprived of their property.’ ” Id. (citations omitted).

By the time Haines City realized the error in its initial complaint, the forty-five-day filing deadline had passed. Instead of dismissing the complaint, Haines City sought to amend with wholly new details. Id. The allegations in the amended complaint did not arise from the same conduct, transaction, or occurrence as those in the original complaint. Id.

In this case, the City’s original forfeiture complaint alleged the wrong seizure date. A fair reading of the initial complaint leads to the conclusion that the seizure date was the same date on which law enforcement officers arrested Ms. Henderson, November 30, 2011. The amended forfeiture complaint merely corrected the seizure date. The other factual allegations remained untouched. The amended complaint did not add new occurrences, locations, identities, or crimes. Accordingly, the trial court erred in dismissing the City’s amended forfeiture complaint with prejudice.

Reversed and remanded for further proceedings.

NORTHCUTT and SILBERMAN, JJ., Concur.


text:
    Patrick GUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4722.
    District Court of Appeal of Florida, Fourth District.
    July 10, 2013.
    Patrick J. Curry, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowiez, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence. The issue he raises with respect to the amendment of the information during trial was disposed of by this court in the appeal of his co-defendant in Jean v. State, 11 So.3d 421 (Fla. 4th DCA 2009). His claim that his statement should have been suppressed because he invoked his rights at a magistrate’s hearing lacks merit because it did not occur when custodial interrogation was imminent, see Sapp v. State, 690 So.2d 581, 584 (Fla.1997), and also because appellant himself reinitiated contact with police after the invocation. See Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981) (“[H]aving expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Emphasis added)). Finally, he was not entitled to a judgment of acquittal. See Perry v. State, 801 So.2d 78, 86-87 (Fla.2001) (property can be taken from a person’s custody “if it is sufficiently under the victim’s control so that the victim could have prevented the taking if [he] had not been subjected to the violence or intimidation by the robber”).

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    CELERITY CONSTRUCTION, INC., and NTC Development, Ltd., Petitioners, v. EMPIRE INDEMNITY INSURANCE CO., as subrogee of Lakeview at Carlton Lakes Condominium Association, Inc.; Empire Indemnity Insurance Co., as assignee of Lakeview at Carlton Lakes Condominium Association, Inc.; Patnode Roofing, Inc.; and Southern Gulf-West Construction, Inc., Respondents.
    No. 2D12-5219.
    District Court of Appeal of Florida, Second District.
    July 12, 2013.
    W. Scott Hamilton and Diane R. McGinness of Price, Hamilton & Price, Chtd., Bradenton, for Petitioners.
    Michael W. McLeod of Seiden, Alder, McLeod & Goodman, P.A., Boca Raton, for Respondents, Empire Indemnity Insurance Co. .
    No appearance for remaining Respondents.
   PER CURIAM.

Denied.

CASANUEVA, MORRIS, and SLEET, JJ., Concur.


text:
    Bobby A. LATULIP, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-430.
    District Court of Appeal of Florida, Fifth District.
    July 19, 2013.
    Bobby A. Latulip, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Bobby A. LaTulip appeals from the summary denial of his seven-issue Rule 3.850 Motion for Postconviction Relief, filed after LaTulip entered what appears to have been a favorable negotiated plea to charges in two separate cases. In denying relief, the trial court described most of the claims as “facially insufficient,” which could lead a reader to conclude that the trial court simply identified pleading deficiencies such that LaTulip should have been given an opportunity to amend his postconviction motion. See Spera v. State, 971 So.2d 754 (Fla.2007). However, the denial order identified no pleading deficiencies. Rather, the trial court addressed the merits of each claim, explaining why LaTulip was not legally entitled to relief as to each. The trial court was correct in its analysis and denial of LaTulip’s claims on the merits, and we affirm.

AFFIRMED.

ORFINGER, LAWSON and BERGER, JJ., concur.


author: WALLIS, J.

text:
    Tony THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1820.
    District Court of Appeal of Florida, Fifth District.
    July 19, 2013.
    Tony Thomas, Lake City, pro se.
    No Appearance for Appellee.
   WALLIS, J.

Appellant challenges the trial court’s order that dismissed Appellant’s second Florida Rule of Criminal Procedure 3.800(a) motion for a lack of jurisdiction. We reverse.

Appellant’s first rule 3.800(a) motion challenged the accuracy of his sentencing scoresheet. The trial court denied the motion, and Appellant appealed the order. See Thomas v. State, 114 So.3d 954 (Fla. 5th DCA 2013), reh’g denied (June 7, 2013). During that appeal, Appellant filed his second rule 3.800(a) motion. The trial court dismissed the second motion because Appellant’s first rule 3.800(a) motion was pending before this Court. Because the issue raised in Appellant’s second motion is distinct from the issue raised in his first motion, we hold that the trial court erred in dismissing Appellant’s second motion for lack of jurisdiction. See McFarland v. State, 808 So.2d 274, 274 (Fla. 1st DCA 2002) (“[Wjhere the issues in each motion are not related to each other, the trial court does not lose jurisdiction over the later-filed motion.”).

Accordingly, we reverse and remand for the trial court to consider the instant rule 3.800(a) motion on its merits.

REVERSED and REMANDED.

TORPY, C.J., and BERGER, J., concur.


text:
    John KITTRELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3563.
    District Court of Appeal of Florida, Fifth District.
    July 19, 2013.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges his convictions and sentences on ten counts of capital sexual battery, eight counts of lewd or lascivious molestation, and one count of lewd or lascivious exhibition. We affirm the convictions and sentences on all counts except Counts 1, 4, 8, 15 and 19. Because the State failed to introduce independent evidence to prove these counts, it was error to admit Appellant’s confession to these crimes and Appellant is entitled to a new trial. See Corona v. State, 64 So.3d 1232 (Fla.2011) (ordering new trial after concluding that without confession, permissible evidence failed to establish corpus de-licti of charged crime).

AFFIRMED in part; REVERSED in part and REMANDED.

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

      . No attempt was made to introduce the confession pursuant to section 92.565, Florida Statutes (2011).


text:
    Odaine W. KERR, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1443.
    District Court of Appeal of Florida, Fifth District.
    July 19, 2013.
    Odaine W. Kerr, Raiford, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, 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 order denying Petitioner’s motion for postconviction relief, rendered January 31, 2013, in case number 2007-CF-002379-A, in the Circuit Court in and for Hernando County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, ORFINGER, and LAWSON, JJ., concur.


author: STEVENSON, J.

text:
    Mihai ARNAUTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4752.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.

      Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Defendant Mihai Arnauta was tried by jury and convicted of aggravated white collar crime, organized scheme to defraud, and unlawful use of a scanner. On appeal, defendant alleges error in the denial of his motion to suppress, the failure to grant a judgment of acquittal for the aggravated white collar crime count due to a deficiency in the information, and in an evidentiary ruling allowing admission of a surveillance video. We affirm as to all issues raised and write solely to address defendant’s claim concerning the deficiency in the information.

Count I of the information charged aggravated white collar crime in violation of section 775.0844, Florida Statutes (2010). Charges were filed after police discovered that the defendant had used an ATM skimming device to withdraw money from customer accounts and after police searched the defendant’s residence, storage units and vehicle, discovering a multitude of ATM parts, molds, ATM keypads, circuit boards, blank bank credit cards, magnetic strips, and bank card readers/writers. At trial, Citibank employees testified 171 accounts had to be closed and re-opened as customers used their cards during the period when the ATM machines were compromised. Money was removed from thirty-one accounts, with the loss to Citibank totaling more than $44,000 plus the cost of closing and re-opening the accounts.

. The White Collar Crime Victim Protection Act, Florida Statutes section 775.0844, addresses “white collar crime,” which includes. a variety of offenses by which victims “are deceived and cheated by criminals who commit nonviolent frauds and swindles, frequently through the use of the Internet and other electronic technology and frequently causing the loss of substantial amounts of property.” § 775.0844(2), Fla. Stat. Subsections (4) and (5) of the statute define “aggravated white collar crime,” providing as follows:

(4) As used in this section, “aggravated white collar crime” means engaging in at least two white collar crimes [described in (3) ] that have the same or similar intents, results, accomplices, victims, or methods of commission, or that are otherwise interrelated by distinguishing characteristics and are not isolated incidents, provided that at least one of such crimes occurred after the effective date of this act.
(5) Any person who commits an aggravated white collar crime as defined in this section and in so doing either:
(a) Victimizes 10 or more elderly persons, as defined in s. 825.101(5);
(b) Victimizes 20 or more persons, as defined in s. 1.01; or
(c) Victimizes the State of Florida, any state agency, any of the state’s political subdivisions, or any agency of the state’s political subdivisions,
and thereby obtains or attempts to obtain $50,000 or more, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 775.0844(4)-(5), Fla. Stat.

Count I of the information in this case charged as follows:

Mihai Arnauta on or about or between June 1, 2010 and July 6, 2010, ... did engage in at least two white collar crimes, to wit: Grand Theft, Organized Scheme to Defraud, Unlawful Use of Scanning Device, having the same or similar intents, results, accomplices, victims, methods of commission, or that are otherwise interrelated by distinguishing characteristics and are not isolated incidents; which crimes victimized, and by which crimes Mihai Arnauta obtained or attempted to obtain $50,000.00 or more, contrary to Florida Statute 775.0844(5). (1 DEG FEL)

(emphasis added; spacing after “victimized” as in original). The information seems to have been interrupted mid-sentence and failed to allege which of the three classes of victims described in subsection (5) was involved. The defendant raised this deficiency for the first time after the close of the evidence, insisting the omission entitled him to a judgment of acquittal. The trial court denied the motion. We affirm as the late-raising of the issue waived the defect. See Fla. R. Crim. P. 3.190(c) (stating that “[ejxcept for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived”); Ford v. State, 802 So.2d 1121, 1130 (Fla.2001) (“Where a defendant waits until after the State rests its case to challenge the propriety of an indictment [or information], the defendant is required to show not that the indictment [or information] is technically defective but that it is so fundamentally defective that it cannot support a judgment of conviction.”).

Defendant has sought to avoid this result by asserting the deficiency was adequately raised at arraignment. The earlier-filed motion to dismiss, however, only generally alleged that the information “fails to aver all the elements essential to constitute the offense,” that “[t]he allegations of the Information are such that they fail to adequately advise the Defendant of the charge,” and that “[t]he Information is so vague, insufficient and uncertain in its terms as to embarrass and hinder the Defendant in the preparation of his defense thereto and to make it impossible to be certain of what purported offense the Defendant is called upon to defend.” The motion fails to specify the deficiency or even which of the four counts to which the argument is directed and, as such, is too vague to preserve any claim concerning a specific defect. See Garcia v. State, 492 So.2d 360, 368 (Fla.1986) (applying “complete omission of an essential element” standard where defendant filed several pretrial motions to dismiss generally alleging indictment failed to charge violation of laws of state, but none of motions specifically complained of indictment’s failure to allege premeditation); Whitman v. State, 97 Fla. 988, 122 So. 567, 568 (1929) (“When one desires to attack an indictment by a motion to quash because of some substantial or formal defect in it appearing upon its face, the motion should specifically point out the alleged defect.”).

Here, at trial, there was no evidence that the class of victims was elderly persons or the State of Florida or its agencies, leaving only the third class of victims applicable — “20 or more persons.” Thus, the information was not so fundamentally defective that it could not support a judgment of conviction nor so prejudi-cially vague that it denied defendant the ability to mount a proper defense. Defendant’s convictions are, accordingly, affirmed.

Affirmed.

GROSS and TAYLOR, JJ., concur.


text:
    Jesus MACHADO, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-498.
    District Court of Appeal of Florida, Fourth District.
    July 24, 2013.
    Jesus Machado, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Rutherford v. State, 93 So.3d 1132 (Fla. 1st DCA 2012); Negron v. State, 932 So.2d 1250 (Fla. 3d DCA 2006).

WARNER, GROSS and TAYLOR, JJ., concur.


author: SLEET, Judge.

text:
    Ricardo DELGADO-GEORGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5813.
    District Court of Appeal of Florida, Second District.
    July 26, 2013.

      Paul C. Coffman, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawifowsky, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

Ricardo Delgado-George challenges his judgment and sentence for actual or constructive possession of a conveyance used for the trafficking, sale, or manufacture of controlled substances in violation of section 893.1351(2), Florida Statutes (2010). Because we find that the State presented insufficient evidence to support a conviction under section 893.1351(2), we reverse Delgado-George’s judgment and sentence. We affirm his remaining convictions.

I. FACTUAL BACKGROUND

In the early morning hours of January 7, 2011, Detectives Mark Dainty and Steven Valk of the Polk County Sheriffs Office stopped a black Chevy Impala in the parking lot of a local bar for a perceived traffic infraction. Delgado-George was the driver of that vehicle. As the detectives approached, they detected an odor of marijuana emanating from the vehicle. According to Detective Valk, Delgado-George explained that his vehicle smelled like marijuana because he had recently finished smoking marijuana at a friend’s house. Detective Dainty asked Delgado-George whether he had any weapons or contraband in the vehicle, and Delgado-George produced a velvet Crown Royal bag from his jacket pocket that he handed to Detective Dainty. Detective Dainty then read Delgado-George his Miranda rights and opened the bag, discovering seven individually packaged baggies of marijuana. A field test was performed on the contents, and they tested positive for marijuana.

After Delgado-George was placed under arrest, Detective Dainty asked him to explain why he possessed marijuana that was individually packaged. According to Detective Dainty, Delgado-George responded that before he was stopped he intended to sell the drugs inside the bar. Delgado-George asserted, however, that he never told Detective Dainty that he intended to sell the marijuana inside the bar and that he informed Detective Dainty that he was meeting a friend at the bar to discuss buying a car. Delgado-George explained that the marijuana was individually packaged when he purchased it, and he did not bother to repackage it. According to Delgado-George, he has never sold marijuana from his car, nor did ■ he intend to sell marijuana from his car on the morning he was stopped by the detectives.

As a result of the evidence gathered from the traffic stop, the State charged Delgado-George with possession of cannabis with intent to sell (Count I), possession of drug paraphernalia (Count II), and actual or constructive possession of a conveyance used for trafficking, sale, or manufacture of controlled substances (Count III). During trial, at the end of the State’s casein-chief, Delgado-George moved for a judgment of acquittal on Count III, arguing that the State presented insufficient evidence to establish that Delgado-George used his vehicle for the sale of marijuana. The trial court denied the motion. After the defense rested, Delgado-George renewed his motion for judgment of acquittal as to Count III, but it was again denied. The jury returned a verdict of guilty on all three counts.

On appeal, Delgado-George argues that the trial court erred by denying his motion for judgment of acquittal because the State presented insufficient evidence to support a conviction under section 893.1351(2).

II. ANALYSIS

This court reviews the denial of a motion for judgment of acquittal under a de novo standard. Gizaw v. State, 71 So.3d 214, 217 (Fla. 2d DCA 2011) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). This case also involves an issue of statutory interpretation, which is also subject to de novo review. Mendenhall v. State, 48 So.3d 740, 747 (Fla.2010).

At issue in this case is whether Delgado-George’s actions violated section 893.1351(2). Section 893.1351(2) provides, in pertinent part:'

A person may not knowingly be in actual or constructive possession of any place, structure, .or part thereof, trailer, or other conveyance with the knowledge that the place, structure, or part thereof, trailer, or conveyance will be used for the purpose of trafficking in a controlled substance, as provided in s. 893.135; for the sale of a controlled substance, as provided in s. 893.13; or for the manufacture of a controlled substance intended for sale or distribution to another.

As this court observed in L.A.P. v. State, the starting point in any analysis of legislative intent is the statutory language itself. 62 So.3d 693, 694 (Fla. 2d DCA 2011). Furthermore, a presumption exists that the legislature understands the meaning of the words it uses and intends those meanings to apply in the statute. Id. (citing Overstreet v. State, 629 So.2d 125, 126 (Fla.1993)). “[W]ill be used” is the operative language of section 893.1351(2). Thus, in the present case, the focus should be on the use of the vehicle in the sale. In other words, the true intent at issue under the statute is the use the accused intended for the vehicle.

Viewing the evidence adduced at trial in the light most favorable to the State, the testimony and evidence established that Delgado-George intended to sell the marijuana in his possession at the time of the traffic stop. Notwithstanding this evidence, the State provided no evidence that Delgado-George’s intended sale (or sales) had any nexus to his vehicle. Here, Delgado-George’s use of the vehicle could have facilitated a sale simply because it was a means of transportation to the location where he intended to consummate the sales. Absent Delgado-George’s admission, however, there was nothing unique about this vehicle that would indicate its intended use was to traffic, sell, or manufacture controlled substances. The evidence was too attenuated to create a nexus between the vehicle and drug activity to show that Delgado-George possessed his car with the knowledge that the car would be used for the sale of controlled substances. The vehicle was not a necessary component of the sale nor was it used specifically for conducting sales of controlled substances.

We are unconvinced by the State’s argument that Delgado-George’s statement during the traffic stop that he intended to sell the marijuana in the bar was sufficient evidence that he intended to use his vehicle for that purpose. There was ample evidence to convict of possession of cannabis with intent to sell and possession of drug paraphernalia with or without the vehicle; however, the State presented inadequate evidence that Delgado-George “intended to use his vehicle” for the sale of controlled substances.

Accordingly, we conclude that the Státe presented insufficient evidence to create a nexus between Delgado-George’s intent to sell a controlled substance and the use of the vehicle such that the State failed to show that a crime was committed under section 898.1351(2). Therefore, we reverse Delgado-George’s judgment and sentence for possession of a conveyance with knowledge that the conveyance would be used for the sale of controlled substances.

Reversed in part; affirmed in part.

ALTENBERND and KELLY, JJ„ Concur.

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