author: DAMOORGIAN, C.J.

text:
    Julius YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-677.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Julius Young appeals his judgment and sentence for burglary of a dwelling and third degree grand theft. Young raises multiple issues on appeal. We find merit in Young’s argument that the trial court reversibly erred when it permitted the prosecutor to suggest during closing that the photo lineup was credible based on a pretrial ruling. Accordingly, we reverse and remand for a new trial.

On the day the crime was committed, the investigating officer called one of the victims to the police station and presented him with a photo lineup. The victim identified the photo of Young as the man he saw in his home. The photo lineup became the subject of a defense motion to suppress, which the trial court denied. At trial, defense counsel challenged the reliability of the photo lineup, arguing during closing that the lineup was “inherently suggestive, which means it is not competent, credible, reasonable evidence.” On rebuttal, the prosecutor countered that the lineup comported with standard police procedures and went on to state:

The officer he didn’t — he didn’t suggest anything, nothing was unduly suggestive. Uh, if — if it was unduly suggestive, you wouldn’t have heard that because that would have been a matter of law for the Judge to decide. And remember we talked about that in jury selection, everyone has a role? Judge’s role is a matter of law. So if there were anything to suppress because it was unduly suggestive, it would have been suppressed, but it wasn’t.

Defense counsel objected and moved for a mistrial, claiming that the state’s argument was inappropriate because defense counsel never said that the lineup was illegal. The court denied the motion for mistrial but provided the following curative instruction:

All right, once — once again, ladies and gentlemen, you’ve heard it several times even from the attorneys and you’ll hear it from me again at this moment, decisions of law, rulings on the law are the province of the Court. I will instruct you on the law. Nothing you hear from either one of these attorneys, even if it happens to be correct, is — is your instruction on the law in this case and I will instruct you in the law momentarily.

The prosecutor concluded his rebuttal and the court instructed the jury on the law. The jury returned a guilty verdict and the trial court entered judgment against Young for burglary of a dwelling and third degree grand theft.

On appeal, Young argues that the trial court abused its discretion in denying his motion for mistrial because the prosecutor’s comments about the photo lineup suggested that the victim’s pretrial identification met a threshold standard of reliability based on the trial court’s pretrial determination. Young contends that the court’s curative instruction compounded the error because it suggested that the prosecutor’s argument “happened to be correct.” The State counters that defense counsel invited the prosecutor’s comments by attacking the credibility of the lineup during his own closing argument and that the trial court’s curative instruction was sufficient to correct any misunderstanding the comments might have conveyed to the jury. The State maintains there is no indication that the prosecutor’s comments deprived Young of a fair trial. We disagree.

When reviewing the impropriety of a prosecutor’s comments, the court must consider the comments in context. McKenney v. State, 967 So.2d 951, 955 (Fla. 3d DCA 2007). The comments are not improper if they were “invited” by defense counsel’s preceding argument on the same topic. Scott v. State, 66 So.3d 923, 930 (Fla.2011). “[Ujnder the ‘invited response’ doctrine, the State is permitted ‘to emphasize uncontradicted evidence for the narrow purpose of rebutting a defense argument since the defense has invited the response.’ ” Id. (quoting Caballero v. State, 851 So.2d 655, 660 (Fla.2003)). In Pierre v. State, 88 So.3d 354 (Fla. 4th DCA 2012), we stated:

In order for the necessity of a new trial to arise, the improper prosecutorial comments must either: “deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.” A mistrial is appropriate where the error was “so prejudicial as to vitiate the entire trial.”

Id. at 356 (citations omitted). We reject the State’s argument that the prosecutor’s comments were “invited” by defense counsel’s closing argument and hold that the prosecutor’s comments deprived Young of a fair trial by suggesting that the reliability of the photo identification had already been resolved by the trial court.

Our decisions addressing prosecutors’ closing comments about the voluntariness of confessions support this conclusion. See, e.g., Garcia v. State, 125 So.3d 260 (Fla. 4th DCA 2013); Stephenson v. State, 645 So.2d 161 (Fla. 4th DCA 1994). In Stephenson, defense counsel argued during closing that the jury should disregard the defendant’s confession because he was tricked. 645 So.2d at 163. On rebuttal, the state countered that the police did not do anything wrong because “[ijt’s not illegal [and][i]f it was, you wouldn’t even be hearing this tape.” Id. Although the trial court denied the defendant’s motion for mistrial, we held that “[tjhe prosecutor’s remark created the erroneous impression that the voluntariness of the confession had been resolved.” Id. Nevertheless, we affirmed the conviction because the jury was subsequently instructed according to the standard jury instructions for confessions — that if it determines the statement was not freely and voluntarily made, it should disregard the confession — and therefore, any error was harmless. Id. at 163-64; see also State v. DiGuilio, 491 So.2d 1129,1135 (Fla.1986).

In contrast, in Garcia, we held that a similar prosecutorial comment during closing was not harmless error because it was the last thing the jury heard. 125 So.3d at 263 (applying Stephenson). The confession in Garcia was a key component of the state’s case since the statement conflicted with the defendant’s in-court testimony. Id.

The prosecutor’s comments in this case were similar to the ones made in Stephenson and Garcia. By arguing to the jury that if the lineup was inherently suggestive it would have been suppressed, the prosecutor suggested that the reliability of the lineup had already been decided by the trial court. The trial court had the opportunity to cure this error by instructing the jury that it was empowered to form its own opinion about the credibility of the victim’s testimony and the pretrial identification of the defendant. Instead, the trial court’s instruction merely reiterated that it is the role of the court, and not the attorneys, to instruct the jury on the law. This instruction did nothing to correct the impression left on the jury by the prosecutor.

Like the confession in Garcia, the victim’s identification of Young in the photo lineup was hotly contested and crucial to the state’s case. This made the prosecutor’s comments and the lack of a meaningful curative instruction all the more significant. Accordingly, we cannot say that the prosecutor’s comments in this case constituted harmless error. See Garcia, 125 So.3d at 263 (citing DiGuilio, 491 So.2d at 1135). For these reasons, we reverse Young’s conviction and remand for a new trial.

Reversed and Remanded for a new trial.

TAYLOR and LEVINE, JJ., concur.

      . Young argues that the following constitute reversible error: (1) admitting the co-defendant's taped interview with the detective, (2) excluding the expert testimony on eyewitness identification, and (3) permitting the prosecutor’s closing comments about the credibility of the photo lineup. Young also argues that the unscored offenses must be stricken from his scoresheet and that the sentencing order must be corrected to reflect that his sentences are concurrent. Finally, Young argues that the 2008 amendment to Florida's Youthful Offender Act violated his constitutional rights. See Jackson v. State, No. 4D11-3174, 137 So.3d 470, 2014 WL 1225270 (Fla. 4th DCA Mar. 26, 2014).


source: Caselaw Access Project

author: CONNER, J. KLINGENSMITH, J.,

license: Public Domain

text:
    R.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2420.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

R.R. appeals the order adjudicating him guilty of resisting an officer without violence, contending that his motion for judgment of dismissal at trial should have been granted because the arresting officer was not performing a legal duty when R.R. continued to run, even after the officer commanded him to stop. We affirm the adjudication of delinquency.

On December 29, 2011 around 3:00 p.m., a Miami police officer on “Grinch patrol” (working to deter crime around the holidays) observed R.R. walking with another juvenile male in a parking lot between a McDonald’s and a Payless Shoe Store. The officer saw R.R. and his companion look into one vehicle, then into a second vehicle. The officer began to drive toward the two juveniles and intercepted them as they were walking toward his vehicle. In anticipation that the juveniles were going to commit or attempt to commit a burglary-on one of the vehicles, the officer turned on his lights, exited his vehicle, made eye contact, and identified himself by stating, “police, I need you guys to come over here.” Instead, R.R. and his companion ran away. The officer yelled “stop, police” and chased the juveniles in his vehicle. Eventually, the two juveniles split up, and the officer followed R.R. until he was able to apprehend R.R.

R.R. was charged with resisting an officer without violence, pursuant to section 843.02, Florida Statutes (2011). An adjudicatory hearing was conducted by the circuit court in Miami-Dade County. At the close of the State’s case, R.R. moved for a judgment of dismissal. Defense counsel argued that walking through a parking lot and simply looking into two car windows, without touching the car doors, did not give rise to a reasonable suspicion that R.R. had committed a crime. Without reasonable suspicion, the officer was therefore not engaged in the lawful execution of a legal duty when he ordered R.R. to stop. Defense counsel also argued that flight alone is insufficient to form the basis for resisting an officer without violence.

The circuit court reserved ruling on the motion for judgment of dismissal, but implicitly denied the motion when it subsequently adjudicated R.R. delinquent as charged. Jurisdiction over the case was then transferred to Palm Beach County, where R.R. resided, for disposition. Subsequently, the circuit court withheld adjudication of delinquency and placed R.R. on probation.

R.R. argues on appeal that his motion for judgment of dismissal should have been granted. The standard of review is de novo. R.H. v. State, 56 So.3d 156, 157 (Fla. 4th DCA 2011).

To prove the crime of resisting an officer without violence, “the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or a combination thereof, constituted obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla.2009). “An officer’s command to stop is a lawful execution of a legal duty if there is reasonable suspicion to support the stop.” Palmer v. State, 112 So.3d 606, 607 (Fla. 4th DCA 2013) (citing C.E.L., 24 So.3d at 1186). “Whether an officer’s suspicion is reasonable is determined by the totality of the circumstances which existed at the time of the stop and is based solely on facts known to the officer before the. stop.” State v. Gonzalez, 840 So.2d 401, 403 (Fla. 4th DCA 2003) (quoting Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001)). “For reasonable suspicion justifying a detention to exist, ‘the detaining officer[ ] must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’” Tillman v. State, 934 So.2d 1263, 1273 (Fla.2006) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). The officer “must be able to articulate something more than an ‘inchoate and unpartic-ularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581,104 L.Ed.2d 1 (1989).

Here, R.R. fled before the officer commanded him to stop, but after the officer initially drove toward the juveniles to intercept them, stopped his patrol car, turned on his overhead lights, stepped out of his vehicle, made eye contact, and identified himself by stating, “police, I need you guys to come over here.” We are satisfied that prior to issuing the command to stop, the officer engaged in an investigatory stop, rather than a consensual encounter. See Errickson v. State, 855 So.2d 700, 702 (Fla. 4th DCA 2003) (“Courts have routinely held that an officer’s use of emergency lights ‘evidences an investigatory stop rather than a consensual encounter because the use of emergency lights leads the citizen to believe that he or she is no longer free to leave.’ ”) (quoting Young v. State, 803 So.2d 880, 882 (Fla. 5th DCA 2002)); Houston v. State, 925 So.2d 404, 407 (Fla. 5th DCA 2006); cf. G.M. v. State, 19 So.3d 973, 979 (Fla.2009) (rejecting a per se rule that use of emergency lights constitutes a seizure under the Fourth Amendment, but holding instead that the use of emergency lights is one factor to consider). However, the real issue in this case is whether the officer had a reasonable suspicion necessary to justify a stop when the command to stop was given. Mosley v. State, 739 So.2d 672, 675 (holding that an initial invalid pursuit ripened into probable cause to arrest for resisting arrest without violence based on the defendant’s observed discard of cocaine pipe during chase).

The only reasons articulated by the officer for initially detaining R.R. were his observations, around 3:00 p.m., four days after Christmas, that R.R. and his companion were walking around vehicles in a parking lot and looking into one vehicle and then a second vehicle. The officer did not testify that he saw the juveniles attempting to enter any vehicle, or that the location was a “high crime” area. Based on the facts articulated by the officer, there was no reasonable suspicion of criminal activity to initially justify an investigatory stop.

In the context of loitering and prowling prosecutions, our sister courts have held that looking into windows, without more, is insufficient to raise a reasonable suspicion of criminal activity. See A.L. v. State, 84 So.3d 1272, 1273-74 (Fla. 3d DCA 2012) (holding that two individuals between two apartment buildings pulling themselves up to look into windows at 7:15 p.m. in December was insufficient to establish that the individuals were loitering at a time, in a place, or in a manner unusual for law-abiding individuals); K.H. v. State, 8 So.3d 1155, 1156 (Fla. 3d DCA 2009) (finding that two individuals walking around a parked running pickup truck at 11:00 p.m., putting their hands on the windows, peering in, and walking rapidly away upon observing an officer exiting his vehicle was not a founded suspicion for loitering and prowling); Bowser v. State, 937 So.2d 1270, 1271 (Fla. 2d DCA 2006) (holding that four individuals observed for twenty minutes walking the street at 2:00 a.m. looking into unoccupied vehicles in a very dark area was not sufficient to raise justifiable alarm of an immediate threat); Addis v. State, 557 So.2d 84, 84 (Fla. 3d DCA 1990) (determining that defendant, who looked like a drifter, observed by an officer walking down an alley at 2:40 a.m., looking into parked vehicles, did not justify an arrest for loitering and prowling). If looking into windows in the dark of night, standing alone, is insufficient to establish that a suspect is engaged in behavior unusual for law-abiding citizens and insufficient to raise a justifiable alarm of an immediate threat, it is difficult to discern how such behavior in a parking lot, in the middle of the afternoon, even during the holiday season, can raise a reasonable suspicion justifying an investigatory stop.

The State argues, however, that flight from the police after an officer observes activity consistent with potential auto burglary is, by itself, sufficient to establish reasonable suspicion to conduct a stop, based on C.E.L. In C.E.L., the defendant was arrested after fleeing from officers in a high-crime area and failing to obey their commands to stop. The defendant engaged in no suspicious behavior prior to fleeing from the officer. Concluding it was bound by the U.S. Supreme Court’s opinion in Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), which held an individual's unprovoked, headlong flight from the police in a high-crime area can create sufficient reasonable suspicion to warrant an investigative stop, our supreme court held that the defendant’s continued flight in knowing defiance of the officer’s lawful order to stop constituted resisting an officer. C.E.L., 24 So.3d at 1189. While C.E.L. is distinguishable from the facts of this case, where the officer gave no testimony that the area in which R.R. was observed looking into cars was a “high crime” area, there are legal principles discussed by our supreme court in C.E.L. which are applicable to the resolution of this case.

The court noted that in Wardlow, the U.S. Supreme Court observed that “ ‘[h]eadlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.’ ” Id. at 1185 (quoting Wardlow, 528 U.S. at 124, 120 S.Ct. 673). The court went on to state that the U.S. Supreme Court “concluded that flight from police could be one relevant factor in determining reasonable suspicion.” Id.

More important to our decision is the supreme court’s resolution of a conflict between the Second District’s en banc decision in C.E.L. v. State, 995 So.2d 558 (Fla. 2d DCA 2008), and the decision of the Third District in D.T.B. v. State, 892 So.2d 522 (Fla. 3d DCA 2004), on the issue. of whether section 843.02 requires a reasonable suspicion of criminal activity to exist before an individual flees, when officers first approach a suspect. The supreme court agreed with the Second District that “section 843.02 provides no basis for the interpretation that reasonable suspicion must arise before the flight begins.” C.E.L., 24 So.3d at 1188. More specifically, the court held:

Under the statute’s plain language, it is of no consequence whether the obstructing conduct is initiated before the officer has any legal duty to act. The essential inquiry should instead focus on whether the officer was lawfully executing a legal duty when the obstructing conduct occurred.

Id. at 1188-89.

Although the officer in this case may not initially have had sufficient grounds for an investigatory stop when he exited his vehicle and instructed R.R. and his companion to come to him, once R.R. engaged in an unprovoked, headlong flight from the officer, that behavior, coupled with the officer’s prior observations of R.R. looking into the windows of two parked cars in a parking lot during the holiday season, supplied the officer with sufficient reason to conduct an investigatory stop. When the officer then commanded R.R. to stop, and the flight continued, R.R. committed the offense of resisting an officer without violence.

Having determined that the officer had grounds for an investigatory stop at the time he commanded R.R. to stop, and that the officer was performing a legal duty when the command was given, the circuit court properly denied R.R.’s motion for judgment of dismissal.

Affirmed.

TAYLOR, J., concurs.

KLINGENSMITH, J., concurs in part and dissents in part with opinion.

KLINGENSMITH, J.,

concurring in part and dissenting in part.

While I concur with the majority’s decision to affirm R.R.’s adjudication for resisting an officer without violence, I write to express my dissent from the portion of the opinion stating that there was no reasonable suspicion of criminal activity that would have justified an investigatory stop by the officer for loitering and prowling. Under the facts, I believe there would have been a sufficient basis for the officer to detain R.R. based on his observation of R.R.’s actions and the totality of the circumstances prior to ordering him to stop.

There are two elements to a loitering and prowling charge: (1) that the defendant loitered or prowled “in a place, at a time or in a manner not usual for law-abiding individuals” and (2) such loitering took place 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). See also C.H.S. v. State, 795 So.2d 1087, 1090 (Fla. 2d DCA 2001); Jaudon v. State, 749 So.2d 548, 549 (Fla. 2d DCA 2000). Alarm is presumed under the statute if the defendant flees, conceals himself or any object, or refuses to identify himself when law enforcement appears. See C.H.S., 795 So.2d at 1090.

“Whether the inference drawn by police was objectively reasonable involves the application of logic and judicial experience and is reviewable de novo.” Wallace v. State, 8 So.3d 492, 494 (Fla. 5th DCA 2009). “[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). If the totality of circumstances is ambiguous, involving conduct that can be interpreted as lawful or as criminal activity, police may detain an individual to resolve the ambiguity. Rhoden v. State, 941 So.2d 5, 9 (Fla. 2d DCA 2006) (citing Wardlow, 528 U.S. at 125, 120 S.Ct. 673).

In support of its decision, the majority relies in part on several cases, including Addis v. State, 557 So.2d 84 (Fla. 3d DCA 1990). I do not find the facts as presented in those cases to be controlling here. In Addis, the defendant was observed by a police officer at 2:40 a.m. walking down an alley looking into parked vehicles. Id. The officer was not responding to any call about suspicious persons when he first saw the defendant. Although the defendant never tried any of the car door handles, the officer, believing that Addis was thinking of breaking into a ear, drove into the alley shining his high beam headlights on him. The defendant, who was dressed like a “drifter,” looked back at the police car and started walking in another direction. The officer then stopped him and asked what he was doing in the alley. The defendant did not have identification and did not give the officer straightforward answers regarding his purpose in the alley. Id. at 85. When he could not allay the officer’s suspicions and could not answer questions posed to him, defendant was arrested for loitering and prowling. A search incident to his arrest revealed drug paraphernalia and cocaine in defendant’s possession.

There, the Third District found that the facts articulated did not meet the probable cause requirements of the statute where the defendant was arrested because: (a) the defendant “had looked into two parked cars,” (b) “had no identification, (c) the officer did not believe that the defendant had a particular destination, and (d) the officer did not consider the defendant’s answers to be straightforward.” Id. As such, the Third District ruled that this behavior was not criminal and did not support an arrest for loitering and prowling. In so holding, the court stated:

Something more than the above is needed before such an arrest can be considered legally justified. Additional facts and circumstances would be needed to tip the balance in favor of upholding the arrest and resulting search. Here, for example, no door handles were tried and no cars were repeatedly circled by the appellant. Therefore, with the arrest being unlawful, it was error for the trial court to deny the defendant’s motion to suppress the evidence gathered therefrom.

Id. (emphasis added).

Various facts in combination with others may lead an officer to have reasonable suspicion. The reasonable suspicion standard requires courts to examine the totality of circumstances, or “whole picture,” to determine whether the detaining officers had a “particularized and objective basis” for suspecting the person stopped of criminal activity. Price v. State, 120 So.3d 198, 200 (Fla. 5th DCA 2013). Factors commonly considered among the totality of circumstances in determining reasonable suspicion are “the time and day, the location, the physical appearance of the suspect, the suspect’s behavior, the appearance and manner of ... [movement], and anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge.” Id. at 202 (quoting State v. K.N., 66 So.3d 380 (Fla. 5th DCA 2011)).

In this case, the arresting officer was on “Grinch patrol” in Miami in order to deter crime around the holidays. While on patrol on December 29, 2011, the officer observed R.R. and another male juvenile in an area of parked cars by a fast food restaurant and a shoe store. R.R. was seen walking around the vehicles and looking inside of them. Believing that the juveniles were going to commit or attempt a burglary on one of the vehicles, the officer turned on his lights, exited his vehicle, made eye contact, and identified himself by stating “Police, I need you guys to come over here.” R.R. then took flight but was soon apprehended.

The majority overlooks the fact that R.R. was seen repeatedly circling more than one vehicle while also looking into the cars through their windows — a critical fact cited by the Addis court as missing from their factual scenario. Addis, 557 So.2d at 85. Coupled with the additional fact that these vehicles were parked in a commercial area at a time of year when police (and criminals) know that cars are more likely to contain holiday shopping merchandise (hence the activity’s nickname the “Grinch patrol”), R.R.’s actions were sufficient to raise alarm with the officer and justify an investigation.

"While I would agree that the “mere act” of looking into windows, without more, has been established by case law to be insufficient to raise reasonable suspicion, I believe under the specific circumstances of this case there were sufficient additional facts to satisfy the requirements for a valid investigatory stop relating to a possible loitering and prowling charge.

      . Because unprovoked, headlong flight can be one factor establishing a reasonable suspicion of criminal activity, C.E.L., 24 So.3d at 1185, the cases cited above regarding loitering and prowling are distinguishable. None of the cases involving loitering and prowling prosecutions contained facts of an unprovoked, headlong flight.


author: PER CURIAM.

text:
    Alfredo HERNANDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-4030.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    Louis G. Carres and Randall Berman, West Palm Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Alfredo Hernandez seeks a second appeal, alleging that his appellate attorney was ineffective for failing to file a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentence before the initial appellate brief was filed. See Martinez v. State, 123 So.3d 701, 703 (Fla. 1st DCA 2013) (appellate counsel may be deemed ineffective for failing to file such a motion). He claims that counsel should have preserved for appellate review an error arising from the trial court’s failure to order preparation of a presentencing investigation report (“PSI”). See Albarracin v. State, 112 So.3d 574, 574 n. 1 (Fla. 4th DCA 2013) (“The trial court’s failure to consider a mandatory presentence investigation report before sentencing a defendant is a sentencing error that can be preserved via the filing of a rule 3.800(b) motion.”). We grant the petition.

Hernandez was convicted of trafficking in marijuana in an amount greater than twenty-five pounds (count I), and unlawfully renting property for the purpose of trafficking or manufacture of a controlled substance (count II). His scoresheet provided for a minimum term of thirty-four and a half months in prison. His convictions authorized maximum terms of thirty years and five years respectively. Count I required a three year mandatory minimum term. See § 893.135(l)(a)l., Fla. Stat. (2011).

The trial court sentenced Hernandez to a ten year prison term for count I, with the three year mandatory minimum, and to a concurrent five year term on count II. The trial court did not order a PSI before it imposed the sentences, and no post-sentencing motion raised the absence. This court affirmed the direct appeal, which did not present any sentencing challenges. Hernandez v. State, 95 So.3d 240 (Fla. 4th DCA 2012). Hernandez then filed this petition alleging ineffective assistance of counsel in failing to file a rule 3.800(b)(2) motion to argue that the trial court should have ordered the PSI for both counts.

The state concedes that, as a first-time felony offender, Hernandez was entitled to the PSI with respect to count II, and therefore counsel was ineffective for failing to file the rule 3.800(b)(2) motion to preserve the issue. It argues, however, that counsel was not ineffective with respect to count I, as Hernandez was not entitled to the PSI because of the mandatory minimum term for that crime. See Comparato v. State, 419 So.2d 1131, 1134 (Fla. 1st DCA 1982) (where probation is not a viable alternative, the trial court is not required to order a PSI before sentencing). We accept the state’s concession, grant the petition, and authorize a new appeal, which will permit the filing of the rule 3.800(b)(2) motion. In doing so, as discussed below, we afford Hernandez greater relief than that offered by the state’s limited concession.

The state and Hernandez’s point of disagreement concerns a first-time felony offender’s right to a PSI in a case which carries a minimum mandatory sentence. Florida Rule of Criminal Procedure 3.710(a) provides:

In all cases in which the court has discretion as to what sentence may be imposed, the court may refer the case to the Department of Corrections for investigation and recommendation. No sentence or sentences other than probation shall be imposed on any defendant found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.

(emphasis added).

First-time felony offender Hernandez was entitled to preparation of the PSI before his sentencing on count II, the count without a mandatory minimum, because probation was not imposed. See Comparato, 419 So.2d at 1134. Probation was not an alternative for count I, which carries a mandatory minimum three year term. However, under the plain language of the rule, a PSI should have been prepared for both counts because Hernandez did not receive a sentence of probation on either count.

The state relies on Comparato’s holding that the mandatory language of rule 3.170, requiring a PSI for all first-time felony offenders who are not sentenced to probation, does not apply to defendants for whom probation was not a potential sentence because of the drug trafficking mandatory minimum term. As support, Com-parato cited the supreme court’s decisions of Hargrave v. State, 366 So.2d 1 (Fla. 1978), and State v. Brunson, 369 So.2d 945 (Fla.1979). We disagree with Compara-to ’s view that Hargrave and Brunson pre-elude a first felony offender’s entitlement to a PSI where a mandatory minimum term prevents the court from imposing a probationary sentence.

The rule itself does not limit the PSI accordingly. The plain language provides that, with respect to first-time felons and felons under the age of eighteen years, “[n]o sentence or sentences other than probation shall be imposed ... until after such investigation has first been made and the recommendations of the Department of Corrections received and considered by the sentencing judge.” The committee notes point to the mandatory nature of the PSI in those two instances, but comment: “[o]f course, no report is necessary where the specific sentence is mandatory, e.g., the sentence of death or life imprisonment in a verdict of first degree murder.”

Such was the case in Hargrave, where the defendant was convicted of first-degree murder, meaning life in prison or death were the only legal sentences that could have been imposed. 366 So.2d at 4. The supreme court reasoned that the trial court had no discretion to place the defendant on probation, and therefore no PSI was required. Hargrave relied on Thompson v. State, 328 So.2d 1 (Fla.1976), which held that “once the jury returns a verdict of first degree murder, the trial court is exempt from the mandatory presentence requirements of Rule 3.710.” 328 So.2d at 4.

Brunson also differs from this case because the juvenile felon in that case was before the trial court for sentencing following a violation of probation. 369 So.2d at 946. Brunson construed rule 3.710 “to allow the trial judge to exercise his discretion ... and sentence the juvenile as if he were a second felony offender over the age of eighteen.” Id. at 947. It did so based on Barber v. State, 293 So.2d 710 (Fla. 1974), which held that if a first-time felon is placed on probation and violates that probation, a PSI is not required before sentencing the felon to prison. Id. at 711-12.

We point out that Hargrave is a 1978 case, decided prior to the creation of mandatory minimum terms such as the one at issue in this case. § 893.135(1)(a)1., Fla. Stat. (2011); see also Mandatory Minimum Sentences: Exemplifying the Law of Unintended Consequences, 28 Fla. St. U.L. Rev. 935, 935-36 (2001) (noting mandatory mínimums became popular in the mid-1980s). It is significant in this case that the trial court did not impose the minimum mandatory three year term on count 1, but rather exercised its discretion to impose a ten year term, which was within the allowable range of three to thirty years. Had the court imposed only the minimum mandatory sentence, Hargrave suggests that no PSI would be required for count I.

Based on the foregoing, we accept Hernandez’s argument that the state’s construction of rule 3.710 ignores the precise holdings in Hargrave and Brunson because those decisions do not expressly or necessarily hold that rule 3.710 is inapplicable in sentencing a first-felony offender where a court retains wide ranging sentencing discretion. See Peer v. State, 983 So.2d 34, 35 (Fla. 1st DCA 2008) (“Rule 3.710(a) clearly mandates that the trial court first order a PSI before sentencing a first felony offender to more than probation.”).

The plain language of the second sentence of the rule requires the PSI for a first time felony offender where probation is not ordered. However, the first sentence of the rule allows the trial court to obtain the PSI where it has discretion in sentencing. While the PSI was required in Hernandez’s case with respect to the non-mandatory count II, once prepared, it would have been available to the trial judge who was faced with significant sentencing discretion for count I, a range of three to thirty years. See, e.g., German v. State, 27 So.3d 130, 132 (Fla. 4th DCA 2010) (noting trial court’s “considerable discretion in sentencing within the minimum and maximum allowed by law”). Therefore, even if appellate counsel could not be deemed ineffective for relying on Comparato as to count I, the failure to move for a PSI as to count II still had consequences as to count I. See Martinez, 123 So.3d at 705 (“In order to establish prejudice, petitioner need only show that the trial court’s order undermines confidence that the sentence was correctly imposed.”)

Consequently, we grant Hernandez a new appeal on the sentence in both counts, to allow appellate counsel to file an appropriate rule 3.800(b)(2) motion. This opinion shall be filed with the lower tribunal and treated as the notice of appeal of the judgment and sentence entered in February 2011. Upon receipt, the clerk of the lower court shall certify a copy of this opinion to this court in accordance with Florida Rule of Appellate Procedure 9.040(g). The appeal shall proceed under a new case number, which shall be assigned upon receipt in this court of the certified opinion. All time requirements of the Florida Rules of Appellate Procedure shall run from the date of this opinion. If Hernandez qualifies for appointed counsel, the trial court shall appoint counsel to represent him on appeal.

We certify conflict with Comparato to the extent it is inconsistent with this opinion.

Petition granted. Conflict certified.

WARNER, LEVINE and CONNER, JJ. Concur.


author: FORST, J.

text:
    Marcia L. WEISER, Appellant, v. Sandy WEISER, Robert Weiser, and Lawrence Taube, Appellees.
    No. 4D13-1691.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.

      Gary Brookmyer of Brookmyer, Hoch-man, Probst & Jonas, P.A., Palm Beach Gardens (withdrawn after filing brief), for appellant.
    John P. Morrissey of John P. Morrissey, P.A., West Palm Beach, for appellee Sandy Weiser.
    Jeffrey H. Skatoff and Anya Van Veen of Clark Skatoff, P.A., Palm Beach Gardens, for appellee Robert Weiser.
   FORST, J.

Appellant Marcia Weiser appeals a non-final order of the trial court granting in part Appellee Lawrence Taube’s Amended Motion to Ratify Distributions and Other Relief, which required Appellant to return $15,200 to the guardianship of her mother. For reasons stated below, we affirm.

Lawrence Taube was the former plenary guardian of Appellant’s mother before Appellant and her brother, Appellee Sandy Weiser, became co-guardians in January 2018. In an effort to complete his duties as guardian, Taube prepared and filed a final report, including a final accounting. Taube then filed an Amended Motion to Ratify Distributions and Other Relief pursuant to the Office of Clerk and Comptroller’s (OCC) request. That request sought approval of expenditures and disbursements, including $15,200 in transfers from one guardianship account to another titled in the names of Appellant and her mother. No claim was presented in the motion that the $15,200 was used for any purpose other than for the care of Appellant’s mother, and the motion went unopposed.

In addressing the $15,200 in transfers at the hearing on the motion, Taube noted that Appellant transferred the funds pursuant to a prior court order requiring a discretionary and a non-discretionary account to be kept by the guardianship. Taube further explained that, although the OCC viewed the transfers as compensation to Appellant as the mother’s caregiver, his records show that the funds were not used as payment to Appellant personally, but appeared to be solely for the care of her mother. Throughout the hearing, the trial court took issue with the way large amounts of money were spent on items and doctors that were deemed to be of questionable benefit to the mother. After hearing arguments, the trial court ordered that the entire $15,200 be put back into the guardianship account from which it was initially taken.

The trial court later issued an order on Taube’s motion, denying in part and granting in part his requests to ratify certain distributions and expenditures. With respect to the matter at hand, the trial court ruled, “Marcia Weiser is directed to return $15,200.00 to the existing Guardianship account within ten (10) days from the date of this Order.” Appellant now appeals this mandate in the order.

Appellant argues that the trial court denied her due process when it ordered relief (return of the transferred funds) that had not been requested in the motion. As this argument has not been preserved for review, reversal is only proper if the trial court’s ruling constitutes fundamental error. See Aills v. Boemi, 29 So.3d 1105, 1108-09 (Fla.2010). Fundamental error occurs when the error goes “to the heart of a trial and vitiate[s] its fairness .... ” Grau v. Branham, 761 So.2d 375, 378 (Fla. 4th DCA 2000).

Upon review of the record, we conclude there was no fundamental error. Appellant was clearly put on notice that the issue of the $15,200 would be discussed at the hearing (as the transfer of these funds was specifically referenced in the Amended Motion to Ratify Distributions and Other Relief). The request for relief asked for approval of the expenditures and “any other relief the court deems appropriate and just.” Taube noted at the beginning of the hearing that the $15,200 was one of the two “items that were of concern to the auditor.” The attorney for one of the appellees stated that his client believed Appellant used all or a portion of the $15,200 for her own benefit and not the benefit of the ward. Although Appellant was an active participant in the hearing, neither she nor her attorney specifically objected to the ruling with respect to the $15,200. Appellant was on notice and given an opportunity to be heard. There was no due process violation; consequently, there was no fundamental error.

Affirmed.

DAMOORGIAN, C.J., and MAY, J„ concur.


text:
    Paul FRANCOIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1243.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    Christian Dunham of Christian Dunham, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Paul Francois, appeals his convictions for two counts of grand theft and one count of organized scheme to defraud. Appellant raises arguments with respect to the trial court’s denial of his motions for judgment of acquittal, for a special jury instruction, and for a mistrial. We find no error and affirm these issues without further discussion.

Appellant also argues that the grand theft convictions violate double jeopardy because grand theft is a lesser-included offense of organized scheme to defraud. We agree, and we therefore reverse and remand for the trial court to vacate appellant’s grand theft convictions, and resen-tence him solely on his organized scheme to defraud conviction. See. Pineda v. State, 3 So.3d 1289, 1289 (Fla. 4th DCA 2009) (“All the elements of the crime of theft are included within the offense of organized fraud. . Therefore, a defendant cannot be convicted of both crimes without a double jeopardy violation.”) (citation omitted); see also Pizzo v. State, 945 So.2d 1203, 1207 (Fla.2006) (“Because organized fraud includes all of the elements of grand theft as well as an additional element, grand theft is a lesser offense of organized fraud.”).

Affirmed in part, reversed in part, and remanded.

MAY, CIKLIN and LEVINE, JJ„ concur.


author: WARNER, J.

text:
    B.G., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1719.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

B.G., a juvenile, appeals an order adjudicating him delinquent. He argues the disposition order should be corrected because it fails to list his age, the degree of offenses, and the statutory maximum for the offenses, and also improperly assessed him a fee for teen court. Because this information is essential to determining the appropriate length of a juvenile commitment, we agree that the order is deficient. Although B.G. finished his secure detention prior to the issuance of this opinion, we address the issue because it is capable of repetition yet evading review. See N.W. v. State, 767 So.2d 446, 447 n. 2 (Fla.2000) (noting the case “became moot ... when the six months of community control expired. However, because periods of supervision or community control may expire before a case may be reviewed, this case presents a controversy capable of repetition, yet evading review, which should be considered on its merits”).

Florida Rule of Juvenile Procedure 8.115(d) provides, in relevant part, that a disposition order shall state: (1) “the name and age of the child”; and (2) “the disposition of each count, specifying the charge title, degree of offense, and maximum penalty defined by statute and specifying the amount of time served in secure detention before disposition.” This court has held that a “disposition order must specify the period of commitment imposed by the court.” Q.K. v. State, 945 So.2d 650, 651 (Fla. 4th DCA 2007) (quoting S.B. v. State, 834 So.2d 964 (Fla. 2d DCA 2003)); see also J.A.W. v. State, 873 So.2d 523, 524 (Fla. 4th DCA 2004) (“The disposition order must clearly articulate the maximum length of commitment.”).

The disposition order committing B.G. failed to specify the statutory maximum for the offenses, as well as his age. Thus, it is impossible to tell, from the face of the order, the maximum length of B.G.’s commitment. It is not possible to determine the statutory maximum by referring to the statutes either, since the order simply lists “grand theft,” which could refer to a first, second, or third degree felony. See § 812.014(2), Fla. Stat. (2011).

We thus reverse for correction of the disposition order to conform to the requirements of the rule. We also direct that the assessment for teen court costs be deleted in the amended disposition. See C.C. v. State, 127 So.3d 685, 685 (Fla. 4th DCA 2013).

FORST and KLINGENSMITH, JJ„ concur.

      . As a practical matter, B.G. alleges the error is likely to recur in Broward County because "[u]nlike other counties, critical data (such as the áppellant’s age, the exact charge per statute, and the maximum penalty under law) is not automatically merged into the document by a computerized data-processing system” because the disposition orders "are handwritten by a courtroom clerk.”


text:
    Antyone Dirone DUPREE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-2907, 4D13-2908.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    Carey Haughwout, Public Defender, and Virginia Murphy, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

These are consolidated appeals by Anty-one Dupree from his adjudications for violation of probation in lower court case number 09-2219CF10A and convictions and sentences in lower court case number 13-5145CF10A. Dupree’s assistant public defender filed a motion to withdraw as counsel and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The State has made no objection to the motion to withdraw.

Review of the Anders brief and the entire record on appeal reveal no issues of arguable merit which could be advanced on Dupree’s behalf. We do note, however, that the circuit court failed to reduce its findings of revocation of probation to -writing. We affirm the revocation of probation and resulting sentences, along with the convictions and sentences in the other, consolidated case, but remand for entry of a written order of revocation specifying which conditions of probation Dupree violated. See Nagy v. State, 993 So.2d 601 (Fla. 4th DCA 2008); Campbell v. State, 776 So.2d 1036 (Fla. 4th DCA 2001).

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


text:
    Jawan BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3423.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    Jawan Bell, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jawan Bell seeks review of an order that summarily denied his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. His motion was timely filed within two years of his judgment and sentence. The trial court did not direct the state to respond to the motion, attach documents to refute the claim, or otherwise explain its denial. If the reason for the denial was because the motion was deemed insufficient for lack of a proper oath, the court must allow the defendant time to correct this defect. See Fla. R.Crim. P. 3.850(f)(2). We therefore reverse and remand for reconsideration under rule 3.850.

WARNER, MAY and LEVINE, JJ., concur.


text:
    Tommie Lee McKELIVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-361.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2014.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Capiro v. State, 97 So.3d 298, 300 (Fla. 4th DCA 2012) (observing that “[ijneffective assistance of counsel claims are usually reserved for postconviction relief, and can be addressed on direct appeal only ‘where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious’ ”).

GROSS, GERBER and FORST, JJ., concur.


author: LEVINE, J.

text:
    Orin NEIMAN, Richard Hersh and Chuck Detore, Appellants, v. KAHN, CHENKIN & RESNICK, P.L., Rexecon International Corp. and Frank Reilly, Appellees.
    No. 4D12-4147.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    June Galkoski Hoffman of Fowler White Burnett P.A., Fort Lauderdale, for appellants.
    Howard. N. Kahn of Kahn & Resnik, P.L., Dania, for appellee Kahn, Chenkin & Resnik, P.L.
   LEVINE, J.

Appellants appeal a final summary judgment in favor of appellee, Kahn, Chenkin & Resnick, P.L. (“the law firm”), in an action for breach of an attorneys’ fee agreement. Because we find that appellants were similarly situated to their code-fendants, who presented genuine issues of material fact that precluded summary judgment against the codefendants, summary judgment should have likewise been denied against appellants. We therefore reverse and remand.

Rexecon International Corp., Frank Reilly, Orin Neiman, Richard Hersh, and Chuck Detore (“defendants”) retained the law firm to represent them in an underlying lawsuit. The fee agreement between the parties included a “timely objection clause” requiring defendants to read all billing statements and notify the law firm, in writing, of any errors or discrepancies “within fifteen days from the date of said statement.” An “arbitration clause” in the agreement provided that “[i]n the event of a timely objection to any statement for services rendered, the resulting fee dispute and any dispute concerning costs or interest shall be resolved through binding arbitration.” The “arbitration clause” also provided that “any claims concerning the performance or breach of performance by [the law firm] or its attorneys, ... specifically including but not limited to any claims for negligence, breach of fiduciary duty or breach of contract, shall also be settled through binding arbitration.”

The law firm filed a breach of contract complaint against defendants, alleging that they were indebted to the firm for services rendered and had refused to make payment upon demand. The law firm attached to the complaint the fee agreement and a single invoice showing the outstanding balance.

Detore, Rexecon, and Reilly filed individual answers denying all material allegations of the law firm’s complaint. Defendants filed an amended answer and motion to dismiss alleging that the fee agreement required mandatory arbitration of all disputes, and that the law firm failed to inform them about a mandatory arbitration clause in the contract governing the underlying suit, thereby increasing the firm’s fees. The law firm moved for summary judgment and fees, and filed an affidavit in support thereof by attorney Howard Kahn, asserting statements consistent with the law firm’s allegations.

Counsel for Rexecon filed an affidavit of Rexecon’s president, Frank Reilly, in opposition to summary judgment. Reilly stated that defendants hired the law firm and advised the law firm that they had “very limited resources” and that the firm’s “legal strategy should be aimed at having the underlying suit dismissed as quickly as possible.” Reilly stated the law firm failed to inform defendants that the contract in the underlying suit had an arbitration provision, which defendants believed would have resulted in a quick dismissal of the underlying suit, thereby saving Rexecon “millions of dollars.” Nei-man, Hersh, and Detore (“appellants”) did not file affidavits in opposition to the law firm’s summary judgment motion.

The trial court denied the law firm’s motion for summary judgment as to Rexe-con and Reilly, but granted the motion against appellants. The trial court also directed the law firm to submit a final judgment. The court then entered, without modification or objection, the law firm’s proposed final judgment against appellants. The judgment noted that appellants had not filed opposition affidavits.

Appellants moved for reconsideration arguing that Reilly’s affidavit was submitted on behalf of all defendants, not just on behalf of Reilly and Rexecon. Appellants asserted that the same grounds precluding summary judgment against Rexecon and Reilly should have precluded summary judgment against appellants, regardless of whether appellants signed Reilly’s affidavit. The court denied appellants’ motion.

We review de novo a trial court’s granting of summary judgment. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000).

Appellants assert the trial court erred in disregarding Reilly’s affidavit relative to them and in entering summary judgment where the record reflects that all defendants were similarly situated and genuine issues of material fact existed. The law firm responds that Reilly’s affidavit could not be used in opposition to summary judgment against appellants because, as to them, it constitutes inadmissible hearsay, and appellants are not similarly situated to Rexecon and Reilly.

In Anthony v. Burkhart, 28 F.Supp.2d 1289, 1247 (M.D.Fla.1998), the plaintiff claimed that the defendants conspired against him. The court found this claim created a premise of joint liability between the defendants. After summary judgment was entered in favor of two defendants, the court found, pursuant to Frow v. De La Vega, 82 U.S. 552, 554, 15 Wall. 552, 21 L.Ed. 60 (1872), that summary judgment should likewise be entered in favor of the third defendant even though he failed to file any affidavit in support thereof. Frow stands for the proposition that:

[I]f at trial facts are proved that exonerate certain defendants and that as a matter of logic preclude the liability of another defendant, the plaintiff should be collaterally estopped from obtaining a judgment against the latter defendant, even though it failed to participate in the proceeding in which the exculpatory facts were proved.

Days Inns Acquisition Corp. v. Hutchinson, 707 So.2d 747, 749 (Fla. 4th DCA 1997) (quoting Farzetta v. Turner & Newall, Ltd., 797 F.2d 151,154 (3d Cir.1986)). See also Ing Bank, fsb v. First Conti Mortg., Inc., 6:09-CV-1708-ORL-35, 2011 WL 1790507, at *3 (M.D.Fla. Apr. 13, 2011) (refusing to enter summary judgment against one defendant because the “motion is addressed to the actions and/or inactions of both” defendants thereby creating a “risk of inconsistent judgments” should summary judgment be entered against the defendant where the court could not determine liability, if any, of the co-defendant).

It is apparent from the record that appellants are similarly situated to Rexecon and Reilly. First, it is undisputed that all defendants signed the exact same fee agreement with the law firm. Second, the complaint and motion for summary judgment did not contain any allegation that differentiated appellants from Rexecon and Reilly, nor any allegation that each defendant’s liability was based on any unique or different circumstance. Third, Kahn’s affidavit did not assert that appellants should be treated differently from Rexecon and Reilly. Thus, the predicate facts are shared by all defendants.

Further, all five defendants filed an amended answer containing the same allegations presented in Rexecon’s answer and affirmative defenses. Rexecon’s affirmative defenses assert that “[the law firm’s] claims are barred by the arbitration provision of its engagement agreement” and that “[the law firm’s] fees are not reasonable and Defendants notified [the firm] of their objections to his bills within a reasonable time after receiving them.” (emphasis added). Finally, Reilly’s affidavit shows that appellants were similarly situated to himself and Rexecon, as he asserts facts on behalf of appellants in the affidavit: “I and the other defendants hired Plaintiff,” “I and the other Defendants informed Mr. Kahn at the beginning of his engagement that the Defendants had very limited resources,” and “We believe that Mr. Kahn breached his duty of care to Defendants.” (emphasis added). The law firm’s argument that the affidavit is hearsay as applied to appellants is not convincing because “[o]n hearing a motion for summary judgment ... a court is authorized to consider forms of evidence, such as affidavits, which would normally be inadmissible at trial.” Baskin v. Griffith, 127 So.2d 467, 473-74 (Fla. 1st DCA 1961).

Because all defendants were similarly situated, it does not follow that the trial court could deny summary judgment as to Rexecon and Reilly but grant it against appellants. See Burkhart, 28 F.Supp.2d at 1247; Ing Bank, 2011 WL 1790507, at *8. The affirmative defenses in Rexecon’s answer and sworn allegations in Reilly’s affidavit created genuine issues of material fact common to all defendants. Accordingly, we reverse the final judgment against appellants and remand for further proceedings consistent with this opinion.

Reversed and remanded.

MAY and CIKLIN, JJ., concur.

      . The trial court denied defendants’ motion to dismiss, but that order did not strike or otherwise affect their amended answer.


text:
    Alberto RIVERA, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3128.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    Rehearing Denied April 16, 2014.
    Alberto Rivera, Punta Gorda, pro se.
    No appearance required for appellee.
   On Order to Show Cause

PER CURIAM.

We previously affirmed the summary denial of the appellant’s petition for writ of habeas corpus, which the trial court correctly treated as an untimely and successive rule 3.850 motion. Rivera v. State, 2014 WL 553786 (Fla. 4th DCA Feb. 13, 2014).

In an order issued on August 17, 2011, in case number 4D11-329, the appellant was cautioned that any further abusive, repetitive, malicious, or frivolous filings might result in sanctions such as a bar on pro se filings in this court and referral to prison officials for disciplinary procedures. See State v. Spencer, 751 So.2d 47 (Fla.1999); § 944.279(1), Fla. Stat. (2009). Nevertheless, the instant appeal is taken from the denial of a petition filed in June of 2013 which is substantially similar to the motion at issue in case numbers 4D11-329, 4D08-2231, and 4D08-5184.

When we affirmed the denial in the instant case, we also issued a Spencer order, directing the appellant to show cause why this court should not impose the sanction of no longer accepting his pro se filings. Appellant responded to the order but has not satisfactorily shown why we should not impose sanctions pursuant to Spencer. He continues to insist that because he obtained a document establishing that he failed to appear on a DUI charge in Georgia, where his nonappearance was considered a conviction and his bond forfeiture a fine, that said conviction therefore was “uncounseled” and could not be counted as one of the three or more prior DUI convictions necessary to make the one charged in the instant case a felony under section 316.193(2)(b)3., Florida Statutes (2003). It is not as simple as that. See Yacoub v. State, 85 So.3d 1179, 1180 (Fla. 4th DCA), rev. denied, 104 So.3d 1087 (Fla.2012) (setting forth steps involved in defendant’s establishing the state’s improper reliance on prior uncounseled misdemeanor DUI conviction to obtain felony charge).

The appellant’s response convinces this court of the need to impose sanctions to prevent his abuse of postconviction relief procedures. See McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010). Therefore, the Clerk of this court is directed to no longer accept any filings by Alberto Rivera, Sr., in trial court case number 50-2003-CF-010679-AXXX-MB unless the documents have been reviewed and signed by a member in good standing of The Florida Bar. The appellant’s pro se filings in connection with said lower tribunal case number will no longer be accepted by this court.

Sanctions imposed.

WARNER, GROSS and LEVINE, JJ„ concur.


text:
    Nathaniel Terrence BRYANT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D13-669.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The order appealed is affirmed without prejudice to the defendant’s right to appeal any subsequently-entered civil restitution lien in favor of St. Lucie County.

Affirmed without prejudice.

STEVENSON, TAYLOR and CONNER, JJ., concur.


text:
    Randall William BRAZEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2887.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his resentencing for three counts of dealing in stolen property and two counts of giving false information to a pawnbroker. He argues that the circuit court erred in failing to orally pronounce his drug offender conditions of probation at the resentencing. The state argues that the defendant failed to preserve this issue through the filing of a Florida Rule of Criminal Procedure 3.800(b) (2012) motion to correct sentencing error before this appeal or while this appeal was pending.

We agree with the state. Although the defendant filed a rule 3.800(b) motion which led to his resentencing, he did not file another rule 3.800(b) motion after his resentencing based on the new alleged sentencing error. Thus, we affirm without prejudice to the defendant filing a Florida Rule of Criminal Procedure 3.850 (2012) motion based on the failure to file a second rule 3.800(b) motion. See Fortner v. State, 23 So.3d 1275, 1276 (Fla. 2d DCA 2010) (“A claim that counsel was ineffective in failing to file a rule 3.800(b)(2) motion to correct sentencing error ... is cognizable in a petition alleging ineffective assistance of counsel.”).

Affirmed without prejudice.

STEVENSON, MAY and GERBER, JJ., concur.


text:
    AMR, Limited Partnership, Appellant, v. HAWKS LANDING PROPERTY OWNERS’ ASSOCIATION, INC., Appellee.
    Nos. 4D13-350, 4D13-925.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    Rehearing Denied May 15, 2014.
    Brenda Cox of Brenda Cox, P.A., Boca Raton, for appellant.
    Marc A. Silverman of Frank, Weinberg & Black, P.L., Plantation, for appellee.
   PER CURIAM.

Affirmed. See Aventura Mgmt., LLC v. Spiaggia Ocean Condo. Ass’n, 105 So.3d 637 (Fla. 3d DCA 2013).

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


text:
    Rolando RAMOS, Appellant, v. SABADELL UNITED BANK, N.A., et al., Appellees.
    No. 4D13-3570.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.
    Stephanie Y. Parchment of Juan J. Perez & Associates, P.A., Pembroke Pines, for appellant.
    Andrew Fulton, IV, of Kelley & Fulton, P.L., West Palm Beach, for appellee Saba-dell United Bank, N.A.
   PER CURIAM.

Appellant appeals the trial court’s Final Judgment of Foreclosure with Assessment of Attorney’s Fees and Costs. Appellee, Sabadell United Bank, N.A., confesses error and acknowledges that, at the time the trial court entered the final judgment of foreclosure, the affirmative defense based on paragraph 22 created a disputed issue of material fact. We reverse the Final Judgment of Foreclosure and remand without prejudice to appellee filing an amended motion for summary judgment addressing the disputed issue raised in the affirmative defense.

Reversed and Remanded.

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


text:
    Cleo LeCROY, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-10.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2014.

      James L. Eisenberg and Kai Li Aloe Fouts of Eisenberg & Fouts, P.A., West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Atwell v. State, 128 So.3d 167, 169 (Fla. 4th DCA 2013) (petition for discretionary review pending in SC14-193); Guzman v. State, 110 So.3d 480, 483 (Fla. 4th DCA 2013). But see Gridine v. State, 89 So.3d 909 (Fla.2011), rev. granted, 103 So.3d 139 (Fla.2012).

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


author: STEVENSON, J.

text:
    James P. MULLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3246.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2014.

      Carey Haughwout, Public Defender, and Dea Abramsehmitt and Paul E. Petillo, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

James P. Mullins appeals his convictions for manslaughter and two counts of culpable negligence resulting in personal injury, arguing that improper comments during closing argument compel reversal. We agree and reverse.

Evidence at Trial

Anthony Gehle died as the result of an automobile collision that immediately followed an altercation between him and the defendant. Gehle’s daughter and sister-in-law were also in the car and sustained injuries in the crash. Gehle’s death and the injuries sustained by the daughter and the sister-in-law gave rise to criminal charges against the defendant.

Evidence at trial established that Gehle and his wife, Angela, were separated and that Angela was currently involved and residing with the defendant. On the day of the collision, Angela and the defendant had been arguing. Gehle arrived at Angela’s home with the daughter they shared and his sister-in-law. Witnesses called by the State testified the defendant became aggressive toward Gehle and, after the defendant punched Gehle, Gehle got in his car to leave. As Gehle put the car in drive, the defendant ran towards Gehle’s car. Gehle’s wife testified that the defendant jumped on the hood. Others could say only that the defendant wound up on the car’s hood.

Gehle’s wife and daughter testified that the defendant attempted to punch Gehle through the car’s window. In response to all of this, Gehle accelerated, ran through the stop sign, and turned onto the main road. Seconds later, Gehle’s car was struck by an oncoming truck.

The driver of the truck testified that, as Gehle’s car approached the intersection, he saw the defendant reaching in through the window. He could not say, however, whether the defendant was trying to hold on or was trying to punch the driver. The defendant rolled off the hood just prior to the car going through the stop sign and the impact.

The Prosecutor’s Comments in Closing

During the initial closing, the prosecutor argued the defendant’s jumping on the hood of Gehle’s car, as Gehle was attempting to leave and defuse the situation, constituted the reckless conduct and culpable negligence necessary to establish the defendant’s guilt of manslaughter. The theme of the defendant’s closing was that Gehle caused his own death. Defense counsel argued that, even if it was true that the defendant had jumped on the hood, it was Gehle who accelerated, rather than stopping the car. And, he reminded the jury that, with the exception of the truck driver, all the State’s witnesses had reasons to favor Gehle.

In rebuttal, the prosecutor argued the evidence proved it was the defendant who was the aggressor and the defendant who set the chain of events in motion by jumping on the hood and trying to punch Gehle through the window. The prosecutor then argued the following:

Other witnesses said that he was punching, Angela Gehle, KG. and Estrés Gomez. Is this somebody who would do that? Absolutely. If you want to find him not guilty here’s what you would have to find. Look at it the other way, if you want to find him not guilty here are the things that you would have to find to make that not — to check that not guilty box off. Angela Gehle, KG. and Amber Anthony all fabricated their testimony. They all got wp on the stand. They raised their right hand, they looked you square in the eye and they lied. Are you prepared to believe that? They all said that when they said that they saw the defendant jump onto the hood of the car and swing. They all lied about that. You would also have to find — . (Emphasis added).

And, during this portion of the argument, the following Power Point slide was on the screen:

Not Guilty?

Angela Gehle, [K.G.], and Amber Anthony, all fabricated their respective testimonies when they said that they saw Defendant jump onto the hood of the car and swing;
Even though the defendant did nothing wrong (in fact, he was the victim of a crime), he fled the crime scene anyway. Even though an enraged man was on the front of a moving car trying to punch the driver, the death of Tony Gehle is his own fault because he should’ve stopped at a stop sign that he couldn’t even see. (Italicized emphasis added).

Defense counsel objected, insisting the comments amounted to a burden shifting argument and that, in fact, the entire presentation was a burden shifting argument. Defense counsel subsequently elaborated, explaining the prosecutor was arguing that, to find the defendant not guilty, the jurors had to believe the witnesses were lying and this was not the burden or standard. The judge ultimately overruled the objection and no curative instruction was given.

Burderu-Shifting Comments Prohibited

While counsel is afforded wide latitude in making closing remarks to the jury, it is improper to make comments that serve to shift the burden of proof. See, e.g., Mitchell v. State, 118 So.3d 295, 296 (Fla. 3d DCA 2013). Our supreme court has held that improper burden-shifting arguments include those that suggest the jury’s finding as to the defendant’s guilt turns upon which witnesses are more believable or which witnesses are lying, rather than upon whether the State has proven the elements of the charged offenses beyond a reasonable doubt.

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

Gore v. State, 719 So.2d 1197, 1200 (Fla.1998). See also Mitchell, 118 So.3d at 296-97 (holding prosecutor’s arguments that “[w]hat the defense is asking you do is to believe that every single witness in this case is a liar, because that’s what would have to happen for this man over here to be not guilty” and that “[i]n order to believe the defendant not guilty you would have to suspend all the evidence on its ear” were improper, burden-shifting arguments); Northard v. State, 675 So.2d 652, 653 (Fla. 4th DCA 1996) (arguments that if the jury believed the defendant’s version of events, police could not possibly be telling the truth; that the jury had to decide whether police fabricated their testimony; and that “in order to find him not guilty you’re going to have to believe that the defendant was telling the truth and the officer was lying” were improper).

Here, the prosecutor’s remarks, inviting the jurors to determine the defendant’s guilt based upon their assessment of the credibility of the witnesses, run afoul of these principles. The prosecutor told the jurors that, to find the defendant not guilty of manslaughter, they would have to find that all the witnesses lied about seeing the defendant jump on the hood of the car and swing. This is a misstatement of the law and the State’s burden. The defendant’s guilt hinged not upon whether the witnesses lied about seeing the defendant jump on the hood of the car and swing, but upon whether the jury believed that the defendant’s actions caused Gehle’s death and whether the defendant’s actions rose to the level of culpable negligence.

Having found the comments were improper, we turn to the question of whether their making can be deemed harmless. We find the State cannot meet its burden in this regard. See Davis v. State, 121 So.3d 462, 491 (Fla.2013) (“ ‘The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.’”) (quoting State v. DiGuilio, 491 So.2d 1129,1135 (Fla.1986)).

It was defense counsel’s position that it did not really matter whether the defendant purposefully jumped on the hood or whether he wound up on the hood because Gehle struck him because, at the end of the day, the crash and Gehle’s death were caused by Gehle’s reaction — accelerating, rather than stopping. The prosecutor, though, placed emphasis on the testimony establishing that the defendant purposefully jumped on the hood and part of the theme of the prosecutor’s closing was that the defendant’s act of jumping on the hood was tantamount to culpable negligence. Having equated the defendant’s jumping on the hood to culpable negligence, the prosecutor then told the jury the defendant could be found not guilty only if it found all the witnesses were lying and this had not happened. The impact of the prosecutor’s verbal assertions were exacerbated by the fact that, during the side-bar addressing defense counsel’s objection, the jurors were looking at a slide reinforcing the notion that the defendant could be found not guilty only if the witnesses “fabricated” their testimony that the defendant had jumped on the hood of the car and swung.

Accordingly, the defendant’s convictions are reversed and this case is remanded for a new trial.

Reversed and Remanded.

MAY and GERBER, JJ., concur.

      . During his initial argument, the prosecutor stated:
      The question that you should ask in this case is well, how did the defendant get on the hood the car? ... He either as four witnesses have stated, he either ran over and jumped on the hood of that car or Tony Gehle tried to run him over_[Rjemem-ber we have to — I have to prove this reckless disregard for human life. What can— can anybody think of an act that’s more reckless and — and is likely to endanger more people than to jump on the hood of a moving car that’s less than ten feet away from an intersection.
      Later, during rebuttal argument, the prosecutor continued with the theme:
      Had he not jumped on the hood of that car ... had he not jumped on the hood of that car we wouldn't be here today.... If this defendant had not run and jumped on the hood of that car ... we wouldn’t be here today....
      ... And you can hold this defendant accountable for jumping onto the hood of a moving car, which blocked his view.... He [the defendant] created these circumstances through his anger. He jumps onto the hood of a car and he caused that man to panic which caused him to run the stop sign....


text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Ameriquest Mortgage Securities, Inc., Asset-Backed Pass-Through Certificates, Series Arsi 2006-M3, Appellant, v. Robin M. HUBER, et al., Appellees.
    No. 4D12-3696.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2014.

      H. Michael Muniz of Kahane & Associates, P.A., Plantation, for appellant.
    Louis B. Vocelle, Jr., of Vocelle & Berg, LLP, Vero Beach, for appellees Robin M. Huber and Thomas Huber.
   FORST, J.

In this foreclosure action, Appellant Deutsche Bank National Trust Company appeals the trial court’s final judgment granting Appellees Robin and Thomas Huber’s motion for involuntary dismissal. Appellant argues that the trial court reversibly erred in two respects: (1) dismissing the action where Appellant presented the original promissory note at trial but moved a copy of the note into evidence; and (2) determining the rights of its servicing agent, a non-party. For the reasons stated below, we find no merit in the former argument, but remand for correction in regard to the latter.

Our standard of review for a motion for involuntary dismissal is de novo. Deutsche Bank Nat’l Trust Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012). A motion for involuntary dismissal under Florida Rule of Civil Procedure 1.420(b) in a non-jury trial can be equated to a motion for directed verdict in a jury trial. See id. at 60 n. 1. ‘When an appellate court reviews the grant of a motion for involuntary dismissal, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Id. at 60. The granting of a motion for involuntary dismissal operates as an adjudication on the merits, unless the court specifies otherwise, finding that the non-moving party has not shown the right to relief under the applicable facts and law. Fla. R. Civ. P. 1.420(b).

“This court has recognized that possession of the original note is a significant fact in deciding whether the possessor is entitled to enforce its terms.” Clarke, 87 So.3d at 61 (citing Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010)). Because a promissory note is a negotiable instrument, a plaintiff seeking to foreclose on a defendant must produce the original note (or provide satisfactory explanation of the failure to produce) and surrender it to the court or court clerk before the issuance of a final judgment in order to take it out of the stream of commerce. See, e.g., Downing v. First Nat’l Bank of Lake City, 81 So.2d 486, 488 (Fla.1955); Clarke, 87 So.Sd at 60-61; Johnston v. Hudlett, 32 So.3d 700, 704 (Fla. 4th DCA 2010).

In the instant case, although Appellant presented the original note to a witness at trial, Appellant only moved a copy of the note into evidence. Contrary to Appellant’s arguments, we find this case distinguishable from our decision in Clarke, because here, no record evidence exists to show that Appellant surrendered the original note to the court before the final judgment was issued, nor did Appellant offer a satisfactory explanation as to its failure to do so. See Clarke, 87 So.3d at 59-61. Appellant maintains that it surrendered the note in a “package” to the clerk following the trial and requests this court to make the “logical and equitable” presumption that the original note was in the “package” surrendered to the court. However, this court does not make “logical and equitable” leaps of faith, as it cannot (and should not) make any such determination unsupported by the record before it. Appellant further contends that the trial court’s decision should be reversed because “the proof was in the pudding.” This may be true as, for all we know, the original promissory note was in that pudding. Nonetheless, it was not admitted into evidence at trial (although a copy of the note was moved into the record) and there is no indication that the original note has been previously filed with the court or the court clerk. Contra Clarke, 87 So.3d at 59. As such, we affirm the final judgment granting involuntary dismissal. See Downing, 81 So.2d at 488.

We do find error with the trial court’s determination in the final judgment that Appellant’s servicing agent, American Home Mortgage Servicing, Inc., lacked standing to bring the foreclosure action on behalf of Appellant. The record clearly reflects that Appellant filed the foreclosure complaint on its own behalf, having the servicing agent merely verify the complaint pursuant to Florida Rule of Civil Procedure 1.110(b). A plaintiffs loan servicing agent is a proper representative to verify a mortgage foreclosure complaint. See U.S. Bank, N.A. v. Wanio-Moore, 111 So.3d 941, 941 (Fla. 5th DCA 2013). The trial court improperly applied this court’s decision in Elston/Leetsdale, LLC v. CWCapital Asset Management LLC, 87 So.3d 14 (Fla. 4th DCA 2012), to base the involuntary dismissal in part on the servicing agent’s lack of standing. Since the record is clear that the servicing agent was not a party to the action as it was not the entity that filed the complaint, it was improper for the court to make such a determination. Rustom v. Sparling, 685 So.2d 90, 90 (Fla. 4th DCA 1997) (“The trial court may not adjudicate the rights of a non-party.”). Therefore, although we affirm the dismissal on the grounds stated above, we remand for the trial court to strike the portions of the final judgment claiming the servicing agent filed the complaint on Appellant’s behalf and determining the servicing agent’s lack of standing as a basis for dismissal.

Affirm and remand for portions of the final judgment to be stricken.

GROSS and GERBER, JJ., concur.


text:
    Nicholas LAGRO, Appellant, v. Victor LOPEZ, Appellee.
    No. 4D13-1355.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2014.
    Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort Lauderdale, and Kristin Cantrell of Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellant.
    Thomas H. Wright, III of Siegel, Siegel & Wright, Boca Raton, for appellee.
   PER CURIAM.

Affirmed. See Lopez v. Lopez, 922 So.2d 408, 410 (Fla. 4th DCA 2006) (stating that “ ‘whether the conduct meets the statutory requirement [for entry of a domestic violence injunction] is a question of fact for the trier of fact.’ ”); Olin v. Roberts, 42 So.3d 841, 842 (Fla. 1st DCA 2010) (indicating that “domestic violence” does not include “stalking by use and threat of court” because it does not meet the “no legitimate purpose” standard); Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010) (‘When considering whether a petitioner has reasonable cause to fear becoming the victim of imminent domestic violence, ‘the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.’ ”).

GROSS, GERBER and FORST, JJ., concur.


text:
    Leaustin BARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4324.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2014.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Barnett v. State, 121 So.3d 643 (Fla. 4th DCA 2013).

STEVENSON, TAYLOR and CONNER, JJ., concur.


author: DAVIS, Chief Judge.

text:
    Toni A. VALENTINE, Appellant, v. Martin E. VALENTINE, Appellee.
    No. 2D12-5245.
    District Court of Appeal of Florida, Second District.
    April 25, 2014.
    Lorena L. Kiely, Tampa, for Appellant.
    Karol Williams of Karol Williams, P.A., Tampa, for Appellee.
   DAVIS, Chief Judge.

Toni A. Valentine, the Former Wife, challenges the final judgment of dissolution of her marriage to Martin E. Valentine, the Former Husband. We affirm the award of durational alimony and certain aspects of the equitable distribution. We reverse those portions of the final judgment regarding the conceded error in the child support worksheet, as well as any other calculations based thereon, and the conceded discrepancy in the equitable distribution and its attached schedule.

The parties were married for eighteen years and have two children. The Former Wife argues that the trial court erred in calculating the child support guidelines for two minor children where only one child remained a minor at the time of the dissolution and in listing erroneous incomes for the parties on the child support worksheet. She further argues that these errors resulted in improper calculations impacting the award of a fifty-fifty split of all uncovered medical and dental expenses for the child, the requirement that she maintain life insurance for the minor child where she was the primary custodial parent, and the trial court’s failure to require the Former Husband to continue paying for the private school the minor child always had attended.

The Former Husband concedes that reversal is required due to the erroneous calculation for two minor children. We agree and reverse those portions of the order involving this erroneous calculation, and we remand for the trial court to recalculate the child support guidelines for one minor child. On remand the trial court should utilize the correct income statements of the parties and should recal-eulate the determinations on the matters of insurance and obligations for medical treatments and school as necessary.

While we affirm the majority of the equitable distribution, including the division of the marital home, without further comment, we write to address two of the Former Wife’s distribution-related claims. First, she argues that the equalization payment required by the final judgment is significantly different than that required by the equitable distribution schedule attached to the final judgment. The Former Husband concedes that the schedule and final judgment do not match, and we reverse and remand for the trial court to correct that discrepancy. Second, we note that the award of fifty percent of any proceeds from a potential book the Former Wife may write about the death of her sister must be read specifically as a reservation of jurisdiction for a future court to determine whether any portion of this as-yet-unwritten publication is marital property. In the equitable distribution section of the final judgment, the trial court required that the Former Wife convey to the Former Husband “[f]ifty percent of marital future proceeds from book written by Wife.” But the final judgment also states that “[t]he Family Law Court shall reserve [jurisdiction] as to all current and future issues regarding the equitable distribution of the any [sic] proceeds, royalties[,] or financial gain generated from the journal/book that was written during the course of this marriage, or related matters” and that “[t]he court reserves jurisdiction as to the equitable distribution matters regarding the Wife’s book.” We read this language in the final judgment to be a reservation of jurisdiction to consider the matter in the future rather than an award of any actual interest at this time. Therefore, if the Former Wife publishes a book based on the journal she kept during the marriage or publishes the journal itself, the court retains jurisdiction to review the issue postpublication and to then determine what portion, if any, of the royalties might qualify as martial assets.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and KHOUZAM, JJ, Concur.

      . We note that the trial court uses the term temporary alimony to describe its award of durational alimony. We treat the award as durational alimony and affirm it without further comment.

      . During the marriage, the Former Wife's sister died under tragic circumstances and the Former Wife kept a detailed journal regarding the death and her feelings. The Former Husband suggested that this journal, or a book based thereon, might be published by the Former Wife and that a portion of the royalties should be awarded to him in the equitable distribution plan as a marital asset. During discovery, the Former Husband sought details about the prospects of the Former Wife’s publishing the journal or book, to which she responded that she has no publication intentions. However, in a protective order, the trial court placed the Former Wife on notice that should she ever publish the journal or book, the Former Husband must be notified in order to facilitate a determination of whether any of the proceeds of the actual publication qualify as marital assets.


author: CASANUEVA, Judge.

text:
    John Barryman STARLING, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4340.
    District Court of Appeal of Florida, Second District.
    April 25, 2014.
   CASANUEVA, Judge.

John Barryman Starling appeals an order summarily denying his unsworn motion to vacate, set aside, or correct sentence. Despite the fact that the title of the motion mirrors the title of Florida Rule of Criminal Procedure 3.850, the postconviction court erroneously treated the motion as filed under rule 3.170(1) and denied the motion as untimely because it was not filed within thirty days of rendition of his sentence. For this reason, we reverse the postconviction court’s order.

Mr. Starling, who entered into a negotiated plea in June 2006 for several Polk County charges, alleges that his attorney was ineffective for failing to correct a misunderstanding at sentencing regarding the amount of credit for time served he was to receive. This credit was apparently tied to the date of his arrest on federal charges— January 8, 2002 — but instead the date mentioned at sentencing was July 9, 2003. Although his attorney promised to correct this mistake, which he apparently thought was a scrivener’s error of some sort, he failed to do so. If the postconviction court is unwilling to correct this error, Mr. Starling seeks to withdraw his plea.

However, on its face, this motion is untimely. Mr. Starling did not file an appeal; therefore, the time for him to file a timely rule 3.850 motion expired sometime in July 2008. But Mr. Starling claims that he has been in federal custody and deprived of his constitutional right of access to the courts because Florida law materials are not available in his federal prison. At the time Mr. Starling filed his motion, he was incarcerated in a federal prison in Kentucky. Now he is imprisoned in a Florida state prison.

Mr. Starling previously raised this problem with lack of access to Florida legal materials in a petition for writ of habeas corpus, which the postconviction court dismissed without prejudice to his right to file a facially sufficient postconviction motion requesting tolling of the time for filing based on his federal incarceration. The dismissal was affirmed by this court in case number 2D13-1348. This rule 3.850 motion represents Mr. Starling’s attempt to file the motion authorized in the habeas proceeding, and the postconviction court should examine it on the merits.

We reverse the order denying Mr. Starling’s motion because the postconviction court failed to examine his motion under the appropriate rule. Unfortunately, as noted, Mr. Starling’s motion was not sworn. Accordingly, on remand, the post-conviction court shall enter an order authorizing Mr. Starling to file a sworn motion within sixty days. See rule 3.850(f)(2). If Mr. Starling files such a motion, the postconviction court should first examine whether the time for him to file a rule 3.850 motion was tolled during his incarceration in federal prison. See Ruiz v. State, 3 So.3d 385 (Fla. 2d DCA 2009); Ramsey v. State, 965 So.2d 854 (Fla. 2d DCA 2007).

Reversed and remanded with directions.

VILLANTI and MORRIS, JJ., Concur.


author: MORRIS, Judge.

text:
    Willie James COOPER, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1125.
    District Court of Appeal of Florida, Second District.
    April 25, 2014.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   MORRIS, Judge.

Willie James Cooper, III, appeals the revocation of his probation and his resulting prison sentences. We affirm the revocation of his probation and his sentences without comment, but we remand for the correction of two scrivener’s errors in the order of revocation. See Senat v. State, 62 So.3d 1236 (Fla. 2d DCA 2011). The order states that Cooper admitted the violations and that he violated conditions “1, 2, 5, 9, [and] 11,” but the record reflects that Cooper did not admit the violations and that the trial court found Cooper in violation of condition 3 (not condition 2) ■ along with conditions 1, 5, 9, and 11. On remand, the trial court is directed to correct the order.

Affirmed; remanded with directions.

ALTENBERND and WALLACE, JJ., Concur.