author: LAWSON, J.

text:
    Anthony Duwayne HORSLEY, JR., Appellant, v. STATE of Florida, Appellee.
    No. 5D12-138.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 2013.
    Rehearing and Rehearing En Banc Denied Sept. 27, 2013.

      James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Anthony Horsley, Jr. appeals his convictions for first-degree felony murder, robbery with a firearm while inflicting death, and two counts of aggravated assault with a firearm. He also appeals his resentenc-ing to life without parole on the murder count. Regarding his resentencing, Hors-ley, who was seventeen years old at the time of these offenses, argues that the trial court erred by rejecting the idea that it had discretion under Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), to sentence him to a term of years. Miller held that a mandatory life sentence without parole for capital murders committed by juveniles — the only sentence allowed by section 775.082(1), Florida Statutes — violated the Eighth Amendment to the United States Constitution. Although this issue has been addressed by the First, Second and Third Districts, none of them have given definitive direction to trial courts regarding the available sentencing alternatives after Miller. See Neely v. State, — So.3d -, 2013 WL 1629227, 38 Fla. L. Weekly D851 (Fla. 3d DCA Apr. 17, 2013); Hernandez v. State, 117 So.3d 778 (Fla. 3d DCA 2013); Walling v. State, 105 So.3d 660 (Fla. 1st DCA 2013); Partlow v. State, — So.3d -, 2013 WL 45743, 38 Fla. L. Weekly D94 (Fla. 1st DCA Jan.4, 2013); Washington v. State, 103 So.3d 917, 920 (Fla. 1st DCA 2012); Rocker v. State, - So.3d -, 2012 WL 5499975, 37 Fla. L. Weekly D2632 (Fla. 2d DCA Nov.14, 2012). Applying the principle of statutory revival, we hold that the only sentence now available in Florida for a charge of capital murder committed by a juvenile is life with the possibility of parole after twenty-five years. Accordingly, we vacate the life without parole sentence on the murder charge, and remand for resentencing on that charge only. We affirm in all other respects. Although Horsley argues -that several alleged errors warrant a new trial on all charges, we find that none of the other issues raised by Horsley merit relief or further discussion.

With respect to the sentencing issue on which we have granted relief, we also find further elaboration to be largely unnecessary in light of two thorough and well-reasoned opinions out of the First District, authored by Judges Wolf and Makar. In a concurring opinion, Judge Wolf disagreed with the majority’s failure to provide guidance to the trial court regarding the possible sentencing options available on remand, and thoroughly analyzes the available alternatives. Washington, 103 So.3d at 920 (J. Wolf, concurring). Judge Wolf advocates for allowing judicial discretion to select a term of years sentence for those cases where life without parole would not be permitted by Miller — and a life without parole sentence for the rare case where Miller would allow that sentence. Id.

In a competing thorough and thoughtful analysis, with which we fully agree, Judge Makar concluded that statutory revival should be used to revive the 1993 version of section 775.082(1), Florida Statutes, which mandated a sentence of life with the possibility of parole after twenty-five years. Partlow v. State, — So.3d -, 2013 WL 45743, 38 Fla. L. Weekly D94, 96-97 (Makar, J., concurring in part and dissenting in part). As noted by both Judges Wolf and Makar, the judiciary’s role in a case like this — where a legislative enactment is declared unconstitutional and the alternative of having no option to address the subject would be untenable-is largely guided by the doctrine of separation of powers. In other words, the judiciary is attempting to fill a statutory gap while remaining as faithful as possible to expressed legislative intent, but also attempting to avoid judicial intermeddling by crafting our own statute to address the issue with original language. The advantage of relying upon the doctrine of statutory revival is that we simply revert to a solution that was duly adopted by the legislature itself — thereby avoiding the type of “legislating from the bench” that would be required if we were to essentially rewrite the existing statute with original language which we feel might better meet the policy goals of the current legislature. And, while we are certainly cognizant of the fact that the legislature of late appears to be less than enamored with the concept of parole, we also note that the legislature has always been adverse to judicial discretion in sentencing in homicide cases, which could result in a perceived “lenient” term of years sentence in a case of this type. We also strongly believe that many of the considerations outlined in Miller would be far better addressed years after sentencing in a parole-type setting, once the juvenile has matured into an adult and his or her conduct during decades of confinement has been evaluated, than through the forward-looking speculation necessitated if these issues are to be addressed with finality at the time of sentencing.

Our resolution of the sentencing issue renders moot Horsley’s argument that the trial court’s attempt to address the individual mitigation factors required by Miller was inadequate, rendering his life without parole sentence illegal for failure to fully comply with the dictates of Miller.

Finally, consistent with our agreement with Judge Makar’s opinion in PaHlow, we certify to the Florida Supreme Court as a matter of great public importance the following question: “Whether the Supreme Court’s decision in Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which invalidated section 775.082(l)’s mandatory imposition of life without parole sentences for juveniles convicted of first-degree murder, operates to revive the prior sentence of life with parole eligibility after 25 years previously contained in that statute?” Partlow, — So.3d at - n. 16, 2013 WL 45743, 38 Fla. L. Weekly at 98 n. 16 (J. Makar, J., concurring in part and dissenting in part).

AFFIRMED in part; REMANDED with instructions for resentencing on single charge.

ORFINGER and WALLIS, JJ., concur.

      . See Miller, 132 S.Ct. at 2469 ("appropriate occasions for sentencing juveniles to this harshest possible penalty [life without parole] will be uncommon”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jarvis HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1391.
    District Court of Appeal of Florida, Fifth District.
    Aug. 30, 2013.
    Rehearing Denied Sept. 26, 2013.
    Jarvis Ramon Haynes, Clermont, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Wright v. State, 857 So.2d 861, 874 (Fla.2003) (“Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in postcon-viction proceedings.”); see also McCloud v. State, 335 So.2d 257, 259 (Fla.1976) (holding that where defendant charged with felony murder — with robbery as the underlying felony — was found guilty of the lesser included offense of manslaughter, but also separately found guilty of robbery, “that fact does not lead to a conclusion that the robbery sentence must be vacated ... [because] the jury simply may have found the felony-murder rule too harsh in this situation [and exercised its jury pardon power].”) Gonzalez v. State, 449 So.2d 882, 887-89 (Fla. 3d DCA 1984) (same); also cf. Dross v. State, 915 So.2d 203 (Fla. 5th DCA 2005) (citing McCloud and holding that a verdict of acquittal on a charge of felony murder, with aggravated child abuse as the underlying felony, was not truly inconsistent with the jury’s conviction on the separate count charging aggravated child abuse).

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    William JARVIS, Petitioner, v. Carolanne BRACEWELL, Assistant Warden Jackson Correctional Institution, Department of Corrections, et al., Respondents.
    No. 1D13-1250.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2013.
    Rehearing Denied Sept. 26, 2013.
    William Jarvis, pro se, Petitioner.

      Jennifer Parker, General Counsel, and Barbara Debelius, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

Upon Respondents’ proper confession of error, we quash the order denying Petitioner’s “Motion for Belated Rehearing” as untimely. Although styled as a motion for rehearing, the body of the motion clearly and properly sought relief under Florida Rule of Civil Procedure 1.540(b). See Patterson v. Crosby, 917 So.2d 1033, 1034 (Fla. 1st DCA 2006) (explaining that rule 1.540(b) is the proper means for seeking relief from an order that was not furnished to a party until after the time for appeal had expired); Brown v. State, 708 So.2d 1041 (Fla. 1st DCA 1998) (same). The motion was timely under rule 1.540(b) and, thus, the trial court erred in concluding that it lacked jurisdiction to consider the motion.

PETITION GRANTED; ORDER QUASHED.

THOMAS, WETHERELL, and RAY, JJ., concur.


author: EMAS, J.

text:
    Johanna FADDIS, Appellant, v. The CITY OF HOMESTEAD, et al., Appellees.
    No. 3D12-3248.
    District Court of Appeal of Florida, Third District.
    Sept. 4, 2013.
    Rehearing Denied Oct. 4, 2013.
    Arnold R. Ginsberg; Kelsay D. Patterson, Tampa, for appellant.
    Weiss Serota Helfman Pastoriza Cole & Boniske, Edward G. Guedes, Coral Gables; Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Diane H. Tutt and Hinda Klein and Dale L. Friedman, Morrow & Schefer, P.A., for appel-lees.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   EMAS, J.

Johanna Faddis, the plaintiff below, appeals the trial court’s entry of a final judgment in favor of the City of Homestead and other defendants below, following an order striking Faddis’s pleadings as a sanction for committing a fraud upon the court. Given the severity of the sanction, we review the trial court’s order under a “somewhat narrowed” abuse of discretion standard. Empire World Towers, LLC v. CDR Créances, S.A.S., 89 So.3d 1034, 1038 (Fla. 3d DCA 2012) (citing Williams v. Miami-Dade Cnty. Pub. Health Trust, 17 So.3d 859 (Fla. 3d DCA 2009)).

The record contains competent substantial evidence to support the trial court’s determination, by clear and convincing evidence, that Faddis’s misconduct, including intentional acts of perjury on a central and material issue, was undertaken with intent to deceive, constituted a deliberate scheme to subvert the judicial process, and amounted to a fraud upon the court. See generally Suarez v. Benihana Nat’l of Fla. Corp., 88 So.3d 349 (Fla. 3d DCA 2012); Bertrand v. Belhomme, 892 So.2d 1150 (Fla. 3d DCA 2005).

The trial court did not abuse its discretion in striking Faddis’s pleadings and entering final judgment in favor of the defendants below, as the record amply demonstrates Faddis “sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Empire World Towers, 89 So.3d at 1038 (quoting Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) and Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)).

Affirmed.


text:
    Norbert MOEMEKA, Appellant, v. Befaithful COKER, Appellee.
    No. 1D13-2787.
    District Court of Appeal of Florida, First District.
    Sept. 9, 2013.
    Rehearing Denied Sept. 25, 2013.
    Foye B. Walker, Lake City, for Appellant.
    James G. Feiber, Jr., of Salter, Feiber, Yenser, Murphy & Hutson, Gainesville, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of August 1, 2013, the Court has determined that it lacks jurisdiction in this appeal. Accordingly, the appeal is dismissed. Appellee’s Motion to Dismiss, filed on July 24, 2013, is denied.

LEWIS, C. J., ROBERTS and MAKAR, JJ., concur.


author: WARNER, J.

text:
    Natalie LEWIS, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 4D12-1554.
    District Court of Appeal of Florida, Fourth District.
    Sept. 11, 2013.
    Rehearing Denied Oct. 17, 2013.
    Marlene S. Reiss of Law Offices of Marlene S. Reiss, P.A., Miami, for appellant.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellee.
   WARNER, J.

The sole issue presented in this appeal is whether an examination under oath as a condition precedent to the payment of PIP benefits by an insurer is a valid policy provision, precluding recovery of benefits when the insured fails to attend an examination under oath (“EUO”). Nunez v. Geico General Insurance Company, 117 So.3d 388 (Fla.2013), held that a policy condition requiring an EUO was unreasonable and unnecessary under Florida law. Consistent with Nunez, we reverse.

Appellant was injured in an automobile accident and sought both PIP benefits and uninsured motorist (“UM”) protection from appellee, Liberty Mutual, her insurer. Liberty requested that appellant appear for an EUO, to which her attorney agreed but only if it were conducted by telephone or in his office. Liberty refused and tried to reset the EUO. Appellant’s attorney continued to refuse unless the statement was taken in his office.

Appellant then filed suit for UM benefits. Liberty moved to dismiss for failure to comply with the policy provisions. While that motion was pending, appellant filed an amended complaint including a declaratory judgment count requesting a determination that the EUO was not a valid provision in the policy. Alternatively, she requested a determination that her failure to attend the EUO was reasonable. The trial court denied the motion to dismiss. Liberty answered the complaint, raising multiple affirmative defenses, and then moved for summary judgment. The trial court entered final summary judgment, finding that the EUO was a valid condition precedent to the insured’s duty to pay PIP benefits and that appellant’s failure to appear for the EUO was unreasonable.

After the trial court entered its ruling, our supreme court decided Nunez and held that an EUO provision as a condition precedent to the payment of PIP benefits was invalid and contrary to the PIP provisions of section 627.736, Florida Statutes (2009). Although the legislature had enacted an amendment to that section which permitted EUOs, that amendment was enacted after the cause of action in Nunez accrued and thus did not apply. Similarly, appellant’s cause of action accrued prior to the statutory amendment allowing EUOs. Therefore, based upon Nunez, the trial court’s final judgment must be reversed.

Even had Nunez not been decided and dispositive in this case, we would also reverse the final summary judgment, because an issue of fact remained as to whether appellant’s refusal to attend the EUO, under the conditions required by Liberty, was unreasonable. See Haiman v. Fed. Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001) (where insured cooperates to some degree or provides an explanation for noncompliance with a policy provision, a fact issue exists for resolution by the jury as to whether the policy provision was materially breached).

Liberty suggests, however, that this action was not about PIP benefits but uninsured motorist benefits. Although appellant sought UM benefits through her complaint, the amended complaint also sought declaratory judgment on the PIP claim. Because the amendment was filed prior to Liberty filing its answer, appellant was entitled as a matter of course to amend her complaint, pursuant to Florida Rule of Civil Procedure 1.190(a), which allows a party to amend a pleading “as a matter of course at any time before a responsive pleading is served .... ” (emphasis added). Not only was the PIP claim part of the amended complaint, but the trial court explicitly ruled on summary judgment on the claim that the EUO was a condition precedent to payment of PIP benefits under the policy. While Liberty suggests that this was a mistake, it never sought rehearing or clarification of the order granting summary judgment.

For the foregoing reasons, we therefore reverse and remand for further proceedings.

CONNER, J., and LEVENSON, JEFFREY R., Associate Judge, concur.


text:
    Bobby JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1660
    District Court of Appeal of Florida, Third District.
    Sept. 11, 2013.
    Rehearing Denied Oct. 8, 2013.
    Bobby Jones, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Jones v. State, 988 So.2d 1109 (Fla. 3d DCA 2008).


text:
    Anthony B. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1567.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 2013.
    Anthony B. Williams, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Cannon v. State, 92 So.3d 292 (Fla. 1st DCA 2012) (rule providing that plea may be withdrawn without any justification until it is formally accepted by trial judge only applies prior to sentencing); see also Campbell v. State, 75 So.3d 757 (Fla. 2d DCA 2011), review granted, 86 So.3d 1112 (Fla.2012).

GRIFFIN, EVANDER and BERGER, JJ., concur.


text:
    Jonathan GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-565.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 2013.
    James S. Purdy, Public Defender, and Lisa A. Haskins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Jonathan Gonzalez, appeals the order finding him in violation of probation. He contends that the order is faulty because it does not specify which conditions of his probation he violated. He also contends that the trial court erred in concluding that he violated by failure to timely pay restitution and investigative costs.

As the State contends, it is clear that the trial court properly concluded, based on the evidence presented at the hearing, that Gonzalez did violate his probation by failing to report his place of residence and by committing new law violations. Gonzalez does not contend otherwise. Although it is not clear whether the trial court concluded he also violated because he failed to timely pay restitution and investigative costs, the State concedes the evidence was not sufficient to base a finding of violation on those payment conditions. The State also concedes that the trial court erred in failing to specify in the written order which conditions Appellant did violate. We, therefore, remand this case to the trial court to render an order specifying which conditions Appellant did violate, omitting any finding that he violated based on the conditions that he pay restitution and investigative costs.

REMANDED for entry of proper order.

SAWAYA, LAWSON and WALLIS, JJ., concur.


text:
    Douglas L. NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-343.
    District Court of Appeal of Florida, Fifth District.
    Sept. 13, 2013.
    Douglas L. Nelson, Clermont, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the decision of the lower court. However, we note that the portion of the trial judge’s order directing the clerk to amend the written sentencing forms to reflect a habitual felony offender sentence on count two in both cases is erroneous under section 775.084(l)(a)3., Florida Statutes, and strike that portion of the order.

AFFIRMED.

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


text:
    Khalif Amon JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3443.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.
    Khalif Amon Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Mark ANZALONE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4029.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.
    Mark Anzalone, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Garry Allen ULLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4133.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.
    Garry Allen Ulland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Uriyaal Abdullah MUSTAFA, f/k/a, Curtis Faulk, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-0905.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2013.
    Uriyaal A. Mustafa, ifkja, Curtis Faulk, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We grant the petition for -writ of certio-rari, quash the order of the circuit court and remand with instructions to the circuit court to allow petitioner to file a reply. See Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996).

BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.


text:
    HERITAGE CIRCLE CONDOMINIUM ASSOCIATION, INC., Appellant, v. STATE of Florida, FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF CONDOMINIUMS, TIMESHARES AND MOBILE HOMES, Appellee.
    No. 4D12-1733.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 2013.

      II Young Choi of Choi & Menezes, LLP, Miami, for appellant.
    J. Layne Smith and Garnett W. Chisen-hall, Tallahassee, for appellee.
   WARNER, J.

The trial court granted a default judgment against appellant as a sanction for discovery violations without holding a hearing and without consideration of the factors in Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993), for determining whether the ultimate sanction of dismissal was warranted. Because of the failure to consider the Kozel factors, we reverse.

The underlying proceeding arose out of an investigation by the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares and Mobile Homes (“the Division”), of complaints against appellant Heritage Circle Condominium Association regarding its failure to prepare annual financial statements and its failure to fund its required reserves. For approximately a year and a half after initiating the investigation, Heritage continually failed to produce all documents requested by the Division. As a result, the Division filed a petition to compel compliance with its investigative demands. Discovery ensued.

About a year later, the Division filed an amended complaint in which it continued to demand compliance with document production. It added causes of action alleging that Heritage had failed to file financial reports and failed to properly assess reserves, all in violation of the condominium statutes. It requested compliance and damages in the form of statutory penalties. Heritage answered, raising various affirmative defenses as to why it had not fully complied with the document request, as well as defenses as to the statutory violations.

Some nine months after filing the amended complaint, the Division propounded further requests for the production of documents. In a motion to compel compliance filed several months after the discovery demands went unanswered, the Division alleged that it had been repeatedly promised production by Heritage’s attorney, but none was forthcoming. After a hearing, the court ordered production within twenty days.

Heritage filed a response to the request to produce which did not produce all the demanded documents, and which the Division deemed insufficient. The Division then filed a motion to enforce the discovery requests, noting Heritage’s pattern of failing to comply with discovery requests. It requested that the court enter a default against Heritage as a sanction. Without holding a hearing, the trial court granted the relief, struck Heritage’s pleadings and entered a default.

The Division then moved for entry of a default judgment, requesting liquidated damages of $25,000, and attorney’s fees of $4,647.89. The court entered the final default judgment, again without a hearing. On the tenth day after the entry of the judgment, Heritage moved for rehearing. The trial court denied the motion the next day, without a hearing, finding that it was untimely and without merit. Heritage appeals.

Preliminarily, the Division concedes that the trial court erred in determining that the motion for rehearing was untimely. It argues, however, that the court also denied it as being without merit, thus disposing of the motion on substantive grounds.

On appeal, Heritage contends that the court erred in failing to conduct a hearing on the motion for sanctions, resulting in a default final judgment, and failing to consider the Kozel factors in determining whether a default was an appropriate sanction. We agree that the trial court erred in failing to conduct a hearing at which the Kozel factors could be considered.

The striking of pleadings is the most severe of all penalties and must be employed in only extreme circumstances. Fisher v. Prof'l Adver. Dirs. Co., 955 So.2d 78, 79 (Fla. 4th DCA 2007). To impose the extreme sanction, the trial court must make express findings of fact showing that the refusal to obey discovery orders constituted willful and deliberate disregard. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1272-73 (Fla.1990). In addition, so as not to punish a litigant excessively for an attorney’s malfeasance, in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), our supreme court established considerations which determine whether a dismissal or default as a sanction is warranted:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.

Id. at 818. To emphasize the care which must be taken before imposing the extreme sanction which ends a lawsuit, the court in Ham v. Dunmire, 891 So.2d 492 (Fla.2004), required that the record show that these factors were considered before the extreme sanction can be imposed:

It is imperative that trial courts strike the appropriate balance between the severity of the infraction and the impact of the sanction when exercising their discretion to discipline parties to an action. The factors articulated in Kozel provide a framework for achieving that balance. Neither the trial court nor the district court reviewed All American’s motion for sanctions in accordance with the factors outlined in Kozel. Nor does it appear that they considered whether the purposes of the rules of civil procedure would have been vindicated through imposition of a lesser sanction. The trial court’s failure to consider the Kozel factors in determining whether dismissal was appropriate is, by itself, a basis for remand for application of the correct standard.

Id. at 499-500 (emphasis added).

We have consistently required the record to show an express consideration of the Kozel factors. See Alsina v. Gonzalez, 88 So.3d 962, 964-65 (Fla. 4th DCA 2012); Bennett ex rel. Bennett v. Tenet St. Mary’s, Inc., 67 So.3d 422, 427 (Fla. 4th DCA 2011); Cook v. Custom Marine Distrib., Inc., 29 So.3d 462, 463 (Fla. 4th DCA 2010); Wilson v. Form Works, Inc., 894 So.2d 1078, 1078-79 (Fla. 4th DCA 2005); Bank One, N.A. v. Harrod, 873 So.2d 519, 520-21 (Fla. 4th DCA 2004). Other courts have agreed that the trial court must make express factual findings on the Kozel factors. Deutsche Bank Nat’l Trust Co. v. Waldorf, 92 So.3d 857, 858 (Fla. 2d DCA 2012); Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81, 85-86 (Fla. 5th DCA 2012); Smith v. City of Panama City, 951 So.2d 959, 961-62 (Fla. 1st DCA 2007).

Neither the trial court’s order striking Heritage’s pleadings and entering a default nor the final judgment contain any findings of willful and deliberate disregard of the court’s order, nor do they make any factual findings regarding the Kozel factors. Indeed, since the trial court determined the matters without a hearing, it could not have made any such findings. Based upon the foregoing authorities, we therefore reverse and remand for the trial court to hold a hearing to consider the issue of sanctions in compliance with both Kozel and Ham.

We also agree with Heritage that, even if a default were warranted, it was entitled to an evidentiary hearing on the issue of damages and attorney’s fees. Although the Division contends that the damages were liquidated, we disagree. Damages are liquidated “when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Cellular Warehouse, Inc. v. GH Cellular, LLC, 957 So.2d 662, 665 (Fla. 3d DCA 2007) (citing Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 662 (Fla. 5th DCA 1983)). Damages are not liquidated “if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment.” Id. (citing Bowman, 432 So.2d at 663). Claims for attorney’s fees are unliquidated damages. Id. See also Watson v. Internet Billing Co., Ltd., 882 So.2d 533, 534 (Fla. 4th DCA 2004).

The Division sought penalties for statutory violations and attorney’s fees. Clearly, Heritage was entitled to a hearing on the issue of the amount of attorney’s fees. In addition, the damage penalty required the application of a penalty amount to the number of condominium units at Heritage. This would require the taking of at least some evidence of the number of units. Moreover, the statute permits the penalty amount to be mitigated, and Heritage had the right to present evidence on mitigation. Finally, even the Division admits in its brief that the $25,000 figure is not supported by its own calculation of the proper penalty amount, which shows that the penalty damages were unliquidated and required an evidentiary hearing.

For the foregoing reasons, we reverse and remand for proceedings consistent with this opinion.

CIKLIN and CONNER, JJ., concur.

      . The Division argues that Heritage failed to preserve the issue by raising the trial court’s failure to raise Kozel factors in the trial court. Since there was never a hearing, Heritage was not provided an opportunity to raise the issue. It was not required to file a written response to the motion for sanctions, which was never set for a hearing. In addition, although Kozel was not mentioned in the motion for rehearing from the default judgment, Heritage did raise Kozel factual matters. Moreover, the trial court’s rulings were error apparent on the face of the record. See, e.g., Alsina, 83 So.3d at 965.


author: MAY, J.

text:
    Luckson TILUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2794.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 2013.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jacqueline N. Brown, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

An altercation in the jail brings this case to us. The defendant appeals his conviction and sentence for battery on a law enforcement officer. He claims three errors in the trial court’s rulings: (1) permitting improper cross-examination of the defendant concerning his criminal history; (2) giving confusing and misleading jury instructions; and (3) denying his motion to strike his aliases from the information. We find merit in all three and reverse.

A detention deputy was helping dispense medication to inmates when the defendant began yelling that he wanted his medication. The deputy told the defendant to calm down, entered the cell, and escorted the defendant to his bed. The defendant sat on the bed, but continued shouting. When the deputy attempted to handcuff him, the defendant resisted.

Another deputy entered the cell to assist. He told the defendant that he would use pepper spray if he did not stop resisting. The defendant appeared to calm down, but as the first deputy turned away, the defendant aggressively grabbed the first deputy’s wrist and jacket. Fearing for his safety, the deputy pulled away and struck the defendant several times in the face. The defendant then kicked the deputy, causing injuries. Other personnel responded and handcuffed the defendant. The incident was recorded on the jail’s surveillance cameras; the video was played at the defendant’s trial.

The State charged the defendant with battery on a law enforcement officer. The information included two of the defendant’s aliases. The defendant moved to strike the aliases from the information, but the trial court denied the motion.

At the beginning of the trial, the court read the information as written, including the defendant’s aliases. During voir dire, three potential jurors were troubled by the defendant’s aliases, including one who indicated that she could not be unbiased because of them. However, none of those jurors were ultimately selected.

The defendant testified at trial. During direct examination, the following exchange took place:

Q: And how many crimes have you been convicted of?
A: Possibly eight.
Q: Eight crimes. And an additional one of those crimes, any crimes of dishonesty?
A: Possibly.

On cross examination, the State asked about the defendant’s prior convictions:

Q: Mr. Tilus, have you ever been convicted of a felony?
A: Yes, sir.
Q: And how many times have you been convicted of a felony?
A: Possibly eight, nine.
Q: Possibly or is it certainly?
A: Possibly.
DEFENSE COUNSEL: Can we have a side bar and discuss this?
THE COURT: Rephrase it.
Q: Have you been convicted of at least eight felonies?
A: Yes, sir.
Q: Have you been convicted of a misdemeanor crime involving dishonesty?
A: Possibly.
Q: Have you been convicted of at least one crime involving a misdemeanor of dishonesty?
A: Possibly.
THE STATE: May I proceed, Your Honor?
Q: Back in 2002. Do you remember committing the offense of Unlawful Use of a Name?
A: I was arrested and charged with those charges, yes.
Q: Were you convicted of that crime?
A: I pleaded out to it.
Q: Is that a yes or a no?
A: Pleaded out no contest, yes.
Q: Are there others—
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
A: Possibly, I don’t know. I can’t date back, I can’t keep track of all of my records. I don’t have a document.
Q: If I showed you the disposition form—
DEFENSE COUNSEL: I’m going to object to the improper impeachment. Request a side bar?
THE COURT: Approach.
THE STATE: He was just saying ... I should be allowed to go into the cases because he said possibly on that. He said maybe admitted nine.
THE COURT: You can as far as I’ll let you go and you can finish up by saying so at least eight times you’ve been prior convicted. Then move on.
Q: Mr. Tilus, so you’ve been convicted of at least eight felonies and one misdemeanor crime involving dishonesty; is that correct?
A: Possibly, sir, yes.
Q: Possibly. Is it yes or possibly?
A: Possibly. Because I don’t have the actual documents in front of me, so I couldn’t tell you exactly yes.
THE COURT: The door is open now.
THE STATE: All right.

The State then, over defense objection, continued to question the defendant about the details of his prior convictions: two for battery on a law enforcement officer, two for resisting an officer without violence, two for possession of cocaine, two for trespass, one for aggravated assault with a deadly weapon, one for unlawful use of an identification, one for attempted tampering with evidence, and one for delivery of cocaine.

Prior to jury deliberation, the court instructed that one of the elements the jury had to find was that the deputy “was engaged in the lawful performance of his duties when the battery was committed.” During deliberations, the jury asked for the definition of “lawful performance of his duties.” -In response, the trial court stated: “The Court now advises you that these are not specific terms of art. You are to apply your ordinary and common understanding of the meaning of those words.” Further, over defense objection, the trial court gave an additional instruction:

[A] person is not justified in the use of force to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he is known or reasonably appears to be a law enforcement officer. A law enforcement officer, or any person whom the officer has summoned or directed to assist them, is not justified in the use of force [if] the execution of a legal duty is unlawful and known by him to be unlawful.

Thereafter, the jury asked for “clarification if ‘lawful’ means an appropriate or effective performance of duties within the guidelines of BSO. Do we as jurors decide if the officer was lawful in his performance of duties?” The trial court, again over defense objection, gave the jury a written response: “The term ‘lawful’ does not refer to appropriate or effective. ‘Lawful’ as used in the instruction means legal and not illegal or unlawful.”

The jury found the defendant guilty. The trial court sentenced him to fifty months’ imprisonment. From his conviction and sentence, the defendant now appeals.

Improper Cross-Examination

The defendant argues that the State was allowed to improperly impeach him by using details of his prior convictions. The State responds that the defendant opened the door by attempting to mislead the jury about the number of his convictions. We disagree with the State.

We review the trial court s eviden-tiary rulings concerning the defendant’s prior convictions for an abuse of discretion. See Stallworth v. State, 53 So.3d 1163, 1165 (Fla. 1st DCA 2011).

“A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment-” § 90.610, Fla. Stat. (2012). “Unless the witness answers untruthfully, this inquiry is generally restricted to the existence of prior convictions and the number of convictions.” Fotopoulos v. State, 608 So.2d 784, 791 (Fla.1992). “Even where the witness denies the conviction, the specific offense is identified only incidentally when the record of the conviction is offered into evidence.” Sneed v. State, 397 So.2d 931, 933 (Fla. 5th DCA 1981) (citing Fulton v. State, 335 So.2d 280, 284 (Fla.1976)).

“However, when a defendant attempts to mislead or delude the jury about his prior convictions, the State is entitled to further question the defendant concerning the convictions in order to negate any false impression given.” Fotopoulos, 608 So.2d at 791. Or, if a defendant tries to characterize his or her prior convictions in a favorable light, the door is opened to further inquiry regarding the convictions. Baker v. State, 102 So.3d 756, 759 (Fla. 4th DCA 2012). Neither of those circumstances occurred here.

We find this case similar to Stallworth v. State. There, the witness gave the following testimony:

Q. Now, Mr. Ducree, have you ever been convicted of a felony?
A. Yes, I have.
Q. How many times?
A. Numerous of times.
You don t know how many times? G?
I think you mentioned it earlier. <⅞
Would eight times sound right? <3?
Could be right. <ri
I’m sorry. <3?
It could be right. <\

Stallworth, 53 So.3d at 1164. Following this line of questioning, the prosecutor asked about the details of the convictions. Id. at 1164-65.

The First District held that the witness’s responses were not false, and did not constitute incorrect information. Id. at 1166. “Because [the witness] did not deny his prior convictions or the number of convictions, and did not otherwise mislead the jury, the trial court erred by allowing the State to further question him regarding his felony record.” Id. The proper method to impeach a witness who provides inaccurate or misleading information regarding prior convictions is to admit certified copies of the convictions. Id.

Similarly here, the defendant did not give misleading information or attempt to downplay his convictions. He simply responded “possibly” when asked about the number of his convictions. He explained that he could not “keep track of all of his records” because he did not “have the actual documents in front of [him], so [he] couldn’t tell [the prosecutor] exactly yes.”

The defendant did not open the door. The State should not have been allowed to question the defendant about the specifics of his prior convictions. The trial court abused its discretion in permitting the State free rein in cross-examining the defendant concerning his prior convictions. We therefore reverse on this issue.

The Jury Instructions

The defendant next argues that the trial court’s responses to the jury’s questions concerning the lawfulness of the deputy’s duties were misleading and confusing. The State responds that the court’s instructions were correct and denies they were misleading or confusing. Once again, we disagree with the State.

A trial court’s charge to the jury comes to the appellate court with a presumption of correctness. Carter v. State, 6 So.3d 106, 107 (Fla. 4th DCA 2009). We review the giving of additional instructions for an abuse of discretion. King v. State, 59 So.3d 272, 274 (Fla. 4th DCA 2011) (citing Perriman v. State, 731 So.2d 1243, 1246 (Fla.1999)).

“A trial judge is not restricted to the written jury instructions when a jury poses a question during its deliberations, and may clarify a point of law for a confused jury with a brief, clear response.” McGirth v. State, 48 So.3d 777, 788 (Fla.2010). However, a court commits reversible error “when an instruction is not only an erroneous or incomplete statement of law, but is also confusing or misleading.” McKenzie v. State, 830 So.2d 234, 236-37 (Fla. 4th DCA 2002). “[T]he inquiry is whether the jury might reasonably have been misled.” Id. at 237.

Here, the defendant was charged with battery on a law enforcement officer. One of the elements of the crime is that the officer was lawfully executing a legal duty. Perry v. State, 968 So.2d 70, 71-72 (Fla. 4th DCA 2007).

Telling the jury that it must determine the “lawfulness” or “unlawfulness” of the police behavior, without more, as was proposed here, does nothing to further the ends of justice. Unfortunately, there is no standard instruction appropriate to all circumstances so courts have struggled with these instructions. The court must avoid an instruction that is tantamount to directing a verdict on the issue, but the court should decide all applicable issues of law and properly instruct the jury so that it can decide disputed issues of fact and apply the facts to the law.

Brown v. State, 36 So.3d 826, 829-30 (Fla. 5th DCA 2010).

The court properly instructed the jury on the elements of battery on a law enforcement officer. During deliberations, however, the jury asked the meaning of “lawful performance of his duties.” The court responded, over defense objection, with an incomplete, incorrect and misleading instruction.

The court’s instruction on use of force correctly stated the law concerning the use of force when a defendant is charged with resisting arrest, pursuant to section 776.051, Florida Statutes (2010). But the defendant was not charged with resisting arrest; he was charged with battery on a law enforcement officer. The instruction injected the issue of “good faith” where it did not belong.

Defense counsel called the court’s attention to the fact that the instruction did not answer the jury’s question, which became clear when the jury again asked for clarification on the meaning of “lawful.” This time, the trial court, again over defense objection, gave the jury a written response. “The term ‘lawful’ does not refer to appropriate or effective. ‘Lawful’ as used in the instruction means legal and not illegal or unlawful.”

In short, the instructions failed to inform the jury how they could determine whether the deputy was lawfully executing his duties. Simply telling the jury that “lawful” means “legal” was incomplete, and the instruction on “good faith” was incorrect and misleading. We therefore reverse on this issue.

The Information and the Aliases

Finally, the defendant argues the trial court abused its discretion by allowing the defendant’s aliases to remain on the information because they were prejudicial. The State responds that no Florida case has held that admission of aliases is reversible error. This issue alone may not have warranted a reversal but, because the ease may be retried, we direct the trial court to eliminate any concern over the use of the irrelevant and potentially harmful aliases in this case.

We review this issue under an abuse of discretion standard. Ray v. State, 755 So.2d 604, 610 (Fla.2000).

‘While there appear to be few reported cases on the point, all agree that such use of aliases may be derogatory to the reputation of the defendant, and should be avoided, but that the question of whether prejudicial error exists should be determined by the surrounding circumstances of the case.” A.G. Barnett, Annotation, Propriety and effect, in criminal case, of use of alias of accused in instructions to jury, 87 A.L.R.2d 1217 (1963).

As the Third Circuit has noted:

Another practice which provokes comment is that of loading a defendant with a long list of aliases. This, it is true, may afford protection to a defendant, if called upon to prove former jeopardy. None the less the string of aliases may be so arranged as to carry the implication that the defendant belongs to the so-called criminal class and thus half convict him as soon as the indictment is disclosed to the jury.

D'Allessandro v. United States, 90 F.2d 640, 641 (3d Cir.1937) (affirming the conviction because the issue was unpre-served). In Lee v. State, 410 So.2d 182 (Fla. 2d DCA 1982), the Second District reversed, finding the use of the defendant’s aliases “particularly harmful” where the State elicited the aliases from a detective who testified that he obtained the names from the defendant’s FBI “rap sheet.” Id.

We think the same is true here. During voir dire, at least three jurors expressed concern over the defendant’s aliases, and the aliases were not relevant to the charge. If the case is retried, the trial court should strike the aliases from the information.

Reversed and Remanded for a New Trial.

GERBER and CONNER, JJ., concur.

      . The State claims the error was harmless. We disagree. As the beneficiary of the error, the burden is on the State to prove beyond a reasonable doubt that the incomplete instruction did not contribute to the verdict; it has failed to do so. State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


text:
    M.J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3106.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 2013.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, 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.
   WARNER, J.

In this appeal from an adjudication of delinquency, the juvenile contends that the trial court erred in denying his motion to suppress his confession, which resulted from what he claims was an illegal detention for loitering and prowling. We agree that, even though the deputy could have reasonably stopped the juvenile for truancy, he did not have probable cause to arrest the juvenile for loitering and prowling. Thus, the transport and questioning of the juvenile at the police station, which resulted in the juvenile’s confession to burglary, violated his Fourth Amendment rights. We reverse.

On a Thursday about mid-day, Broward Deputy Sheriff Johnson, who was on road patrol, observed appellant, M.J., in front of a house in a high crime area of Broward County. Deputy Johnson knew M.J. from prior dealings, including the fact that he was seventeen and should have been in school at that time. The deputy made a u-turn in his vehicle to initiate a truancy investigation. By the time he turned around, he saw M.J. start running and disappear from his view. The deputy stopped at the house where he had seen M.J., went up to the porch, and found M.J. lying along the concrete wall inside the porch.

The deputy grabbed M.J. and told him to stand up. He then read M.J. Miranda rights. He asked M.J. what he was doing there. M.J. said he was at the house to see a friend. The deputy knocked on the door but no one answered.

A second deputy came on the scene and Deputy Johnson, being suspicious about the circumstances, walked around the house. In some bushes on the side of the house, he discovered three boxes containing new sports sneakers. At that point, about five or ten minutes after M.J. was detained, Deputy Johnson noticed the home’s resident, whom he knew from prior dealings, at the home’s window. Through the window, the resident told the deputy that M.J. had brought the shoes to his residence. The deputy knew that the resident had prior burglaries on his record. The deputy never asked the resident whether M.J. had permission to be on his property.

The officer arrested M.J. for loitering and prowling and transported him to the sheriffs office where an interrogation was conducted. At the time of the arrest, the deputy had “no idea that the sneakers were stolen.” When he got to the station, however, a third deputy informed him that a burglary of shoes had been reported. M.J. ultimately confessed to that burglary during the interrogation.

Deputy Johnson admitted that generally a truancy investigation would result in the return of the child to school or the child’s parents. He did not return M.J. to school because he arrested him for loitering and prowling. The circumstances Deputy Johnson identified as supporting the arrest were M.J.’s running and hiding from him when he turned his vehicle around and that M.J.’s explanation as to why he was on the porch — to see a friend — was not “valid,” because when Deputy Johnson looked at the resident through the window, it appeared as though the resident had just awoken.

The trial court ruled that Deputy Johnson was authorized to commence a truancy investigation. Based upon the totality of the circumstances after Deputy Johnson observed M.J. fleeing from him, the court believed the circumstances were “suspicious” and justified Deputy Johnson’s continued detention and investigation of M.J. The court then denied the motion to suppress.

M.J. reserved the right to appeal the denial of the motion to suppress, and the state did not contest the dispositive nature of the motion. Following the denial, he entered a no contest plea to the charge of burglary of a dwelling. The court withheld adjudication and sentenced M.J. to juvenile probation. This appeal follows.

Our standard of review requires us to defer to the trial court’s factual findings but review its legal conclusions de novo. Connor v. State, 803 So.2d 598, 605 (Fla.2001); State v. E.W., 82 So.3d 150, 151 (Fla. 4th DCA 2012). The trial court made the factual finding that the officer was authorized to conduct a truancy investigation when he stopped M.J. Section 984.13, Florida Statutes (2012), allows a law enforcement officer to take a child “into custody” when “the officer has reasonable grounds to believe that the child is absent from school without authorization ... for the purpose of delivering the child without unreasonable delay to the appropriate school system site.” § 984.13(l)(b), Fla. Stat. (2012). The officer may also deliver the child to his parents if the student has been suspended or expelled from school. Id. Therefore, Deputy Johnson had the authority to take M.J. into custody.

Truancy, however, is not a crime. See C.G. v. State, 689 So.2d 1246, 1247 (Fla. 4th DCA 1997). While a law enforcement officer has the authority to take a juvenile into custody, that authority is limited to returning the child to school or the child’s parents. The officer does not have the statutory authority to transport the child to a police station for further questioning based upon truancy.

Where the officer has reasonable suspicion that a person is involved in criminal activity, the officer may conduct an investigatory stop. See Popple v. State, 626 So.2d 185, 186 (Fla.1993). That investigation should be limited and cannot extend beyond the place of initial encounter. See Kollmer v. State, 977 So.2d 712, 715 (Fla. 1st DCA 2008). To transport an individual for additional questioning, a law enforcement officer must have probable cause for an arrest.

Where ... the detained individual is physically removed from the scene and involuntarily transported to the police station for questioning and/or investigation, the courts have had little difficulty in construing such a detention to be a de facto arrest requiring either probable cause or prior judicial authorization.

Id. (citing Saturnino-Boudet v. State, 682 So.2d 188, 193 (Fla. 3d DCA 1996)); see also Mathis v. Coats, 24 So.3d 1284, 1287 (Fla. 2d DCA 2010). In this case, Deputy Johnson placed M.J. under arrest and transported him to the sheriffs office for questioning; therefore, the question we must answer is whether the totality of the circumstances provided him with probable cause to arrest M.J. for loitering and prowling.

Section 856.021, Florida Statutes (2012), provides: “It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” § 856.021(1), Fla. Stat. (2012). When a person takes “flight upon appearance of a law enforcement officer” or “manifestly endeavors to conceal himself or herself or any object,” this is a circumstance for consideration in determining the alarm or immediate concern element. § 856.021(2), Fla. Stat. (2012). Prior to arrest, a law enforcement officer must give the suspect the opportunity to explain his conduct. Id.

We have explained, “[b]ecause of its potential for abuse, the loitering statute must be applied with special care.” P.R. v. State, 97 So.3d 980, 982 (Fla. 4th DCA 2012) (citing Springfield v. State, 481 So.2d 975, 977 (Fla. 4th DCA 1986)). “It is not to be used as a ‘catch-all’ provision when there is an insufficient basis for another charge.” Id. (citing B.A.A. v. State, 356 So.2d 304, 306 (Fla.1978)).

The statute is comprised of two elements. “To satisfy the first element, the state must prove that ‘the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved.’ ” P.R., 97 So.3d at 983 (quoting E.C. v. State, 724 So.2d 1243, 1244 (Fla. 4th DCA 1999)). “To satisfy the second element, the state must demonstrate that the loitering occurred under ‘circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.’” Id. at 983 (quoting § 856.021(1), Fla. Stat. (2010)). In P.R., we explained:

“[T]he offense of loitering and prowling must be completed prior to any police action.” E.C. [v. State, 724 So.2d 1243, 1245 (Fla. 4th DCA 1999)]. And because flight from police comes after the officers’ presence is made known, flight alone is insufficient to satisfy the elements of loitering and prowling. See Hunter v. State, 32 So.3d 170, 175 (Fla. 4th DCA 2010) (“Although the defendants both fled toward their residence when the officers announced their presence, this flight does not retroactively supply the elements that an officer must observe to satisfy the requirements of loitering and prowling.”).

Id. For example, in D.S.D. v. State, 997 So.2d 1191, 1194 (Fla. 5th DCA 2008), the Fifth District held that “[possession of burglary tools may support a suspicion of imminent criminal activity after the fact, but the offense of loitering and prowling must be completed prior to any police action.” See also E.C., 724 So.2d at 1245-46 (possession of a twelve-inch screwdriver supports a suspicion of imminent criminal activity after the fact, but was insufficient to support an arrest for loitering and prowling). In addition, as we noted in Hunter v. State, 32 So.3d 170, 175 (Fla. 4th DCA 2010), mere flight from an officer is insufficient to establish the crime of loitering and prowling without an officer’s reasonable suspicion that a crime has been committed or is about to be committed.

Deputy Johnson saw M.J. and suspected him of being a truant, not of committing a crime. M.J.’s flight after observing the deputy, who knew him, did not provide probable cause for a loitering and prowling arrest. Indeed, it may have been quite normal of a truant to flee from law enforcement. All other conduct on which the deputy relied in his decision to arrest M.J. occurred after stopping and detaining M.J. Even if the deputy were allowed to rely on the discovery of the sports shoes as part of the probable cause on which he based the arrest, he admitted that he had no idea that the shoes were the subject of a burglary. Assuming that M.J. had possessed them, he could have purchased them. Thus, the deputy had only a bare suspicion that M.J. was up to something. There was nothing at the time and place of MJ.’s detention to provide probable cause that any criminal activity had occurred, was occurring, or was about to occur.

Because Deputy Johnson did not have probable cause to support an arrest for loitering and prowling, M.J.’s detention and transport to the station for questioning was illegal, making his confession the fruit of an illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 485-87, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The court erred in denying its suppression. As the issue is dispositive, we direct that the court dismiss the delinquency petition on remand.

CONNER, J., and LEVENSON, JEFFREY R., Associate Judge, concur.


text:
    Dulie Alonzo GREEN, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2247.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 2013.
    Dulie Alonzo Green, Jr., in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Geter v. State, 115 So.3d 385 (Fla. 3d DCA 2013).


text:
    Lionel TATE, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1965.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 2013.
    Lionel Tate, Live Oak, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s April 10, 2013 Motion for Discharge. The motion was an untimely request for postconviction relief and no valid exception to the time limitation is alleged in the motion. Fla. R.Crim. P. 3.850(b).

STEVENSON, MAY and GERBER, JJ., concur.


author: PADOVANO, J.

text:
    Stephon Eugene CARGILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2582.
    District Court of Appeal of Florida, First District.
    Sept. 18, 2013.
    Robert A. Morris and Elliott A. Smith of The Law Offices of Robert A. Morris, LLC, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany A. Rhodaback, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PADOVANO, J.

The defendant appeals his conviction for sale of cocaine. He contends that the trial judge should have granted his motion to strike the jury panel on the ground that the jurors did not represent a fair cross section of the community. We conclude that this issue was not preserved for appellate review, because the motion was not presented in writing before the questioning of individual jurors. Accordingly, we affirm.

Prospective jurors were assembled in the courtroom in Franklin County on April 13, 2011, for two trials scheduled to begin that week. The trial judge administered the oath to the jurors and asked them questions regarding the legal requirements for service on a jury. When the qualification procedure was completed, the jurors were called at random for each of the two cases, the first being the case against the defendant.

The prosecutor and defense attorney questioned the jurors who had been called to serve in the defendant’s case and ultimately selected a six-person jury and one alternate for the trial. Subsequently, defense counsel voiced the following objection:

Your Honor, I do have to make one procedural objection just is that the panel, and I recognize that a lot of this has to deal with demographics, but the panel lacked any African-Americans this morning. So I just for that purpose would just like to lodge that objection just in case Mr. Cargill at some point in time needs to address that on appeal.

At that point, the trial judge asked defense counsel why he had waited until after the voir dire examination to make the objection. Specifically, the judge inquired, “So I don’t know what you’re asking that — now that we have selected the jury, what are you asking that I do.” Defense counsel responded by stating, “It is something I didn’t do on the front end, but I just wanted to make sure that for record preservation purposes that I noted there were not African-Americans in the panel.” The judge then denied the motion to strike the jury panel.

Following this ruling, the clerk of the court administered the trial oath to the jurors and the trial began. At the close of the trial, the jury found the defendant guilty as charged of the sale of a controlled substance within 1000 feet of a church. The trial judge adjudicated the defendant guilty of the crime and sentenced him to a term of twelve years in the Department of Corrections. The defendant then filed this appeal.

A defendant facing criminal charges in state court has a right under the Sixth Amendment to a trial by jury. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). As an essential component of this right, the jury must be selected from a group of people who represent a fair cross section of the community. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The fair-cross-section requirement is implicit in the nature of the right to a trial by jury. As the Court explained in Taylor, the right to a trial by jury presupposes that the prospective jurors will be drawn from a pool that is “broadly representative” of the community, and the purpose of affording the right to a jury trial would not be served if “distinctive groups” of people were excluded from the jury pool. Id. at 698; see Gordon v. State, 704 So.2d 107 (Fla.1997); Michael E. Allen, Florida Criminal Procedure, § 17:10 (2011).

The standard governing a claim that the jury panel does not fairly represent the community is set out in Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). There, the Court held that in order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process. Id. at 364, 99 S.Ct. 664.

The defendant contends that the trial court should have granted his motion to strike the jury panel because it did not include any African-American jurors. However, this issue was not raised properly in the trial court and it is therefore not open for consideration on review. The motion to strike should have been directed to the jury venire as a whole, not to the panel of jurors selected to serve in the defendant’s case. It should have been made in writing and it should have been considered in an evidentiary hearing before the trial began.

Rule 8.290 of the Florida Rules of Criminal Procedure provides that a “challenge to the panel shall be in writing,” that it “shall specify the facts constituting the grounds,” and that it must be “made and decided before any individual juror is examined.” By the terms of the rule, a challenge to the panel “shall be tried by the court” before the jury selection begins in a particular case. These provisions give the parties an opportunity to present statistical data pertaining to the representation of distinctive groups within the community, and other evidence pertaining to the method of identifying particular citizens who will be summoned to serve on a jury. If a distinctive group has been systematically excluded in the jury venire, the error can be corrected before the defendant is forced to stand trial before a jury that does not fairly represent the community.

The motion in the present case was not made until after the jurors had been selected to serve in the defendant’s trial. By that time, it was too late to assert a claim that the jury venire did not represent a fair cross-section of the community. If the motion had been made before jury selection, as required by rule 3.290, the trial court would have been required to consider the merits of the defendant’s claim in an evidentiary hearing. The defendant would have had an opportunity to prove that a “distinctive group” of prospective jurors had been “systematically excluded” and therefore underrepresented in the jury pool. Duren, 439 U.S. at 364, 99 S.Ct. 664. The state would have had an opportunity to respond with evidence to the contrary, and the court would have been in a position to offer a remedy.

The guidelines established in Taylor and Duren ensure that juries are drawn from a fair cross-section of society. While these guidelines no doubt improve the odds that a particular jury will be fairly representative of the community, that is not required as a matter of constitutional law. As the court stated in Taylor, “[i]t should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” Taylor, 419 U.S. at 538, 95 S.Ct. 692. It is clear from these principles that the defendant’s rights were not violated merely because the jury selected from the venire did not include African-Americans.

For these reasons, we conclude that the trial judge correctly denied the defendant’s motion to strike the jury panel. Finding no other error, we affirm the defendant’s conviction and sentence.

Affirmed.

WETHERELL and SWANSON, JJ„ concur.


text:
    Carlton DALEY, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-2461.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Carlton Daley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Charles F. Rivenbark, II, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Parker v. McNeil, 9 So.3d 761 (Fla. 1st DCA 2009) (stating that the remedy of belated appeal is unavailable for an order denying mandamus relief); Powell v. Fla. Dep’t. of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999) (remedy of belated appeal only applies to criminal proceedings).

WOLF, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Samuel SAPP, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-3015.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Samuel Sapp, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of certiorari is hereby converted to an appeal and is dismissed for lack of jurisdiction. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

WOLF, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Phillip L. BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3145.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.

      Phillip L. Bell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is dismissed as moot.

WOLF, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Eric L. WILRIDGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3172.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Eric L. Wilridge, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is DISMISSED as moot.

WOLF, VAN NORTWICK, and ROWE, JJ., concur.


text:
    Larry R. PRUNTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4218.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Larry R. Prunty, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Carl Lester CARR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4064.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.

      Carl Lester Carr, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Clarence E. WALLESKE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3936.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Clarence E. Walleske, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Nicholas CECIL, Petitioner, v. DEPARTMENT OF CORRECTIONS Michael D. Crews, Secretary, Florida Department of Corrections, Respondents.
    No. 1D13-3648.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.
    Nicholas Cecil, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Gibson v. McDonough, 937 So.2d 721 (Fla. 1st DCA 2006).

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Quinton James Robert PIPER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3394.
    District Court of Appeal of Florida, First District.
    Sept. 19, 2013.

      Quinton James Robert Piper, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Phillip A. GOOLSBY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1426.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 2013.
    Phillip A. Goolsby, Daytona Beach, pro se.
    No appearance by Respondent.
   PER CURIAM.

In the latest of his many appellate filings in his 1996 case, Phillip A. Goolsby has filed a habeas petition, raising an issue of speedy trial, first claimed by him in a habeas petition 12 years, and many pleadings, ago. His issue is successive, as well as untimely and without merit — as shown by the fact that, two years later, he litigated the matter all the way up to the United States Supreme Court. Goolsby v. State, 860 So.2d 991 (Fla. 5th DCA 2003), cert. denied, 542 U.S. 925, 124 S.Ct. 2887, 159 L.Ed.2d 785 (2004), review dismissed, 898 So.2d 937 (Fla.2005).

We conclude that Goolsby has provided no valid reason to be allowed continued pro se access to this Court. We hold that he is abusing the judicial process by the continued filing of frivolous pleadings, and that he should be barred from further pro se filings in Osceola County Circuit Court Case No. 96-CF-91-A. See Isley v. State, 652 So.2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”). See also Hastings v. State, 79 So.3d 739, 742 (Fla.2011); Steele v. State, 14 So.3d 221, 223 (Fla.2009); Hutchinson v. State, 979 So.2d 377, 378 (Fla. 4th DCA 2008); Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006).

The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Phillip A. Goolsby, and any further pleadings will be summarily rejected by the Clerk unless filed by a member in good standing of The Florida Bar. The Clerk of this Court is therefore directed to forward a certified copy of this opinion to Goolsby and the appropriate institution for consideration of available disciplinary procedures. See §§ 944.279(1), 944.28(2)(a), Fla. Stat. (2013). Rehearing "will not be entertained.

Future pro se filings PROHIBITED; Certified Opinion FORWARDED to Gools-by and the Department of Corrections.

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


text:
    Maurice Ronell DUMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4486.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 2013.
    Maurice Ronell Dumas, Graceville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Maurice Ronell Dumas appeals the summary denial of his motion for return of property. Dumas contends that his motion was in proper form and a summary denial without any record attachment was improper. We agree.

On December 6, 2010, Dumas pled guilty to possession of cannabis not more than 20 grams, a first-degree misdemeanor, and received a sentence of 364 days in the county jail. On July 13, 2012, Dumas filed a motion for the return of $1,046, which he claims was taken from him at the time of his arrest. His motion alleged that it was his money and that it was not being held as the fruit of any criminal activity, as evidence, or for any fine or forfeiture. The lower court summarily denied Dumas’ motion, stating “[ajfter review, it appears the money was forfeited,” but it failed to attach any records to support its findings. This was error. See Davis v. State, 63 So.3d 888, 889 (Fla. 5th DCA 2011).

Accordingly, we reverse and remand for attachment of the records demonstrating the cash was forfeited, or in the absence of such records, for an evidentiary hearing.

REVERSED and REMANDED.

SAWAYA, COHEN and BERGER, JJ., concur.


text:
    Eric Carlton JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4427.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 2013.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Eric Jones’ judgment and sentences, but remand to correct scrivener’s errors in the judgment.

Jones entered into a negotiated plea agreement with the State calling for him to plead guilty to the lesser included offenses of burglary of an occupied structure (count 1) and robbery with a weapon (count 2). The trial court correctly recognized these negotiated plea terms and sentenced Jones accordingly. However, the amended judgment incorrectly reflects convictions for the offenses of burglary of a structure with an assault or battery (count 1) and robbery with a firearm or deadly weapon (count 2). These errors have no impact on Jones’ sentences, as his sentences constitute legal sentences consistent with the negotiated plea agreement. As such, we remand this matter to the trial court with instructions to correct the judgment to reflect the correct convictions.

AFFIRMED and REMANDED.

PALMER, LAWSON and EVANDER, JJ., concur.

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


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. Robert Alton WINBUSH, Appellee.
    No. 5D12-3660.
    District Court of Appeal of Florida, Fifth District.
    Sept. 20, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Shannon Timmann, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the drug offender probation sentence imposed by the trial court on Robert Winbush. Determining that Winbush was not eligible to receive drug offender probation, we reverse.

Winbush pled nolo contendere to the crime of delivery of cannabis, in violation of section 893.13(l)(a)2 of the Florida Statutes (2011). At sentencing, Winbush scored 63 points on his sentencing score-sheet which translated to a sentencing range of between 26.25 months’ and five years’ imprisonment, but he requested that the trial court impose a term of drug offender probation instead of a prison sentence.

The drug offender statute reads, in relevant part, as follows:

948.20. Drug offender probation
(1) If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a), or other nonviolent felony if such nonviolent felony is committed on or after July 1, 2009, and notwithstanding s. 921.0024 the defendant’s Criminal Punishment Code scoresheet total sentence points are 60 points or fewer, the court may either adjudge the defendant guilty or stay and withhold the adjudication of guilt. In either ease, the court may also stay and withhold the imposition of sentence and place the defendant on drug offender probation or into a post adjudicatory treatment-based drug court program if the defendant otherwise qualifies.

§ 948.20, Fla. Stat. (2011). Because he scored more than 60 points on his sentencing scoresheet and he was not convicted of an offense specifically referenced in the drug offender probation statute, Winbush was ineligible to receive drug offender probation. Cf. McGrill v. State, 82 So.3d 130 (Fla. 4th DCA 2012) (holding that the defendant, who pled no contest to the charge of possession of cocaine in violation of section 893.13(6)(a),⅛ fell within the express parameters of the drug offender probation statute and thus qualified to receive drug offender probation).

Accordingly, Winbush’s sentence is reversed and this matter is remanded for re-sentencing.

Conviction AFFIRMED; Sentence REVERSED; Cause REMANDED.

TORPY, C.J. and GRIFFIN, J., concur.