text:
    Janard ORANGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2280.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.
    Rehearing En Banc Denied Nov. 10, 2014.

      Carey Haughwout, Public Defender, and Ellen Griffin, 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.
   FORST, J.

Appellant Janard Orange was convicted of first degree murder, as well as four counts of robbery with a firearm and one count of assault. Appellant was 16 years old at the time of the murder of Gregory Smith (“the victim”), also 16. The victim was killed as he was waiting to be picked up following his attendance at a school social function. Appellant was sentenced to life without parole for the murder, and was also given life, sentences with a mandatory minimum prison term of ten years for each of the robbery convictions.

We find no error with respect to Appellant’s convictions. However, in light of recent United States and Florida Supreme Court decisions concerning the sentencing of juveniles, we reverse Appellant’s sentence for the homicide count and remand this case for resentencing. We affirm the sentencing for the armed burglary counts, while acknowledging that conflicts between Florida’s District Courts of Appeal with respect to juvenile sentencing have recently been accepted for review by the Florida Supreme Court.

Background

In April 2009, a social function was held at Boyd Anderson High School. After the function ended, six students were outside at the back of the school waiting to be picked up. While they were waiting, a car drove past them, made a U-turn, and drove back to where the students were. One student started running away when she saw that the car was coming back towards them because she was afraid. The car stopped in front of the students. Three young men got out of the car wearing black t-shirts and masks and holding guns. The young men proceeded to take the cell phones, jewelry, and money of the students. The victim gave up his cell phone and pleaded for the young men to not take his life. He was nonetheless shot in the chest by one of the masked individuals, later identified as Appellant by the other young men in the car. Appellant and the other young men returned to the car and fled when the car’s driver alerted them that a car was coming. The victim died at the scene of the shooting.

Appellant’s conviction was based on the testimony of the robbery and assault victims and, primarily, that of the other young men in the car that evening and the girlfriend of Appellant’s co-defendant. The co-defendant testified that, when he asked Appellant why he shot the victim, Appellant replied that he “did not like [him].” One of the other young men who was in the car (and denied leaving the car to participate in the robbery), testified that, as the car passed by the students standing outside of the school, Appellant declared “that’s that n — er from Parkway I don’t like, pull the car over.” This witness further testified that, once the car stopped in front of the students, Appellant jumped out of the car and “started busting shots.” He then grabbed the victim. After the victim begged for his life, the witness recalls Appellant responding “f — k that” and shooting the victim. When he and the others asked Appellant why he shot the victim, Appellant replied “I don’t like that n — er, he’s from Parkway, f — k him.”

The co-defendant pled guilty to second degree murder and four counts of robbery. Appellant went to trial before a jury and was convicted of first degree murder, four counts of robbery with a firearm, and assault. He appeals the conviction, claiming trial court error in allowing the testimony of a former middle school counselor whose testimony established that Appellant knew the victim and had a prior “confrontation” with him. Appellant also challenges his sentences for the murder and the four robbery with a firearm convictions.

I. There was no reversible error with respect to Appellant’s convictions.

Appellant’s sole challenge to the convictions (as distinct from his challenges to the sentences) pertains to the State’s introduction of the testimony of a behavioral support counselor at the middle school that both Appellant and the victim had attended. The State initially sought to introduce this testimony to demonstrate that Appellant and the victim knew each other prior to the night of the murder and that the victim was possibly afraid of Appellant. The State noted “[t]his is not a drive-by, this is not a stranger, that’s the purpose of [the counselor’s] testimony.”

A. Appellant’s challenge to the initial direct examination does not merit reversal.

Although the objections to the counsel- or’s testimony began during the State’s opening statements, the challenges at issue occurred after the counselor was sworn in to testify. Appellant argued that anything the counselor would testify to concerning what the victim told him would be inadmissible hearsay. The State replied that it was more of an issue of relevancy and that the court would have to determine whether a pre-existing relationship between the parties, established through testimony of events from over a year ago, was relevant. The court decided to hear the counselor’s testimony outside the presence of the jury so as to make an informed decision.

After the jury was excused from the courtroom, the State began to set forth the testimony it sought to elicit from the counselor. The counselor stated that he knew both the victim and Appellant from being a behavioral specialist at their middle school. The counselor was working with the victim on problems he was having, including one with a female student. The female student wanted to get Appellant to fight the victim but the victim did not want to fight Appellant because Appellant was known as a “tough guy in the community.” The counselor approached Appellant to ask him if he wanted to fight the victim, but Appellant chuckled and said he did not want to mess with that “little boy.” Nothing further was mentioned by the victim to the counselor about Appellant. At the end of the school year, the victim approached the counselor and said that “stuff was starting up again,” but he did not say Appellant was involved.

Outside the presence of the jury and the counselor, the trial court allowed argument from the parties as to whether the testimony was relevant. The State maintained that all it wanted to elicit from the counsel- or was that he knew the victim because he worked at his school, that the victim came to meet with the counselor about a problem, this led to the counselor approaching Appellant at school and speaking to him about the victim, and that the victim again approached the counselor at the end of the. year. The State specifically stated that it was “not going to elicit any conversations from anybody else,” just what the counsel- or did. Appellant objected based on relevance and hearsay. The trial court overruled the objections in part'and clarified to the counselor that anything the victim said to him was not to be discussed in front of the jury.

The counselor was then allowed to testify in front of the jury. During the initial direct examination, the counselor stated that he was a behavioral specialist at the middle school that Appellant and the victim attended and that the victim had come to him with a concern about a year before the shooting. Without saying what the concern was, the counselor explained that he and the victim then went to the cafeteria so the victim could identify the student he had a problem with. The counselor stated that the other student was Appellant and so he approached Appellant and resolved the matter. The counselor did not say what was said between him and the victim or him and Appellant.

On appeal, Appellant challenges the admission of the initial testimony of the school counselor as irrelevant and as more prejudicial than probative. We review a trial court’s evidentiary rulings for abuse of discretion, which discretion is limited by the rules of evidence. McDuffie v. State, 970 So.2d 312, 326 (Fla.2007). “Overall, broad discretion rests with the trial court in matters relating to the admissibility of relevant evidence, and that ruling will not be overturned absent a clear abuse of discretion.” Lavallee v. State, 958 So.2d 509, 510 (Fla. 4th DCA 2007) (quoting Grau v. Branham, 761 So.2d 375, 378 (Fla. 4th DCA 2000)).

Relevant evidence is defined as “evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2011). Relevant evidence is admissible unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” §§ 90.402-403, Fla. Stat. (2011).

We find that the trial court did not abuse its discretion in concluding that the counselor’s testimony, which established that Appellant and the victim knew each other before the shooting, was relevant. As the State was arguing alternative theories of premeditated first degree murder and felony murder, the testimony went towards proving the premeditation element of the offense. Establishing that Appellant knew the victim tended to prove that the shooting was not random or merely connected to the robbery. Furthermore, even though the counselor testified to acts that occurred over a year before the shooting, the evidence was not too far removed since it was offered to show only that Appellant and the victim knew each other. Contra Nshaka v. State, 92 So.3d 843, 847-48 (Fla. 4th DCA 2012) (finding evidence inadmissible because it was too far removed and irrelevant to the crime charged).

Because the State initially questioned the counselor only to establish a connection between Appellant and the victim, without further details regarding the circumstances of the encounter or insinuating any negative feelings towards Appellant, the testimony was not unfairly prejudicial, confusing, or misleading to the jury so as to make it inadmissible, even though relevant. See §§ 90.402-.403, Fla. Stat. (2011). Contrary to Appellant’s contention that the testimony was highly prejudicial, citing Green v. State, 27 So.3d 731 (Fla. 2d DCA 2010) and Zerbe v. State, 944 So.2d 1189 (Fla. 4th DCA 2006), the counselor’s testimony was severely restricted and did not present Appellant in a negative light. The State elicited from the counselor that he saw students for a variety of reasons, even if a student just wanted to talk.

In regard to the relationship between the victim and Appellant, the testimony revealed that the victim came to the counselor with a concern and that, because of that concern, the victim walked with the counselor to the cafeteria to point out “the other student that he had a problem with.” Although the words “concern” and “problem” were used, these cannot be said to be highly prejudicial to Appellant where these are normal words that would be used with a counselor in his capacity of helping students work through any type of issue. The testimony concluded with the counsel- or explaining that he spoke with Appellant about the concern/problem and, after that, the counselor had no need to speak to Appellant about the issue again, leading to the conclusion that everything was re-, solved between the parties and leaving no indication with the jury that hostility existed between them.

The testimony, as presented in front of the jury, did not support an improper implication regarding Appellant’s probability of committing the crime, as was the case in Green, 27 So.3d at 737-38, and Zerbe, 944 So.2d at 1194. When looking at the entirety of this initial direct examination, the testimony was first relevant and also not unfairly prejudicial to Appellant so as to render it inadmissible.

Additionally, this testimony cannot be said to be a “needless presentation of cumulative evidence” where only one prior witness had testified that Appellant said he knew the victim. See §§ 90.402-403, Fla. Stat. (2011). The prior witness was one of the boys in the car with Appellant at the time of the incident and the jury could have found him not credible because of his involvement. As such, there was no abuse of discretion with the trial court allowing the initial limited direct examination of the counselor by the State.

B. Appellant’s challenge to reopened direct examination does not merit reversal.

After the direct examination concluded, defense counsel explained that he wanted to elicit from the counselor that the problems the victim was having were •with various female students and one of the female students wanted to get Appellant to fight the victim but Appellant never approached the victim. The trial court commented that it seemed that now the defense was trying to “open the door” as to certain testimony that it was previously trying to keep out. Seeking to clarify, the court inquired:

Court: So, it’s my understanding, then, you have no objection to him now getting into, if I reopen his direct, what we said outside the presence of the jury.
Defense Counsel: I can’t object to it, Judge.
Court: Well, why did we have that hearing then?
Defense Counsel: Because if you would have granted my motion, this testimony would not have come in.
Court: In other words, you’re saying if part of it comes in, all of it comes in?
Defense Counsel: I think, absolutely, Judge, that this part should come in to explain the situation.
Court: You’re not waiving any objection to relevance, but you’re saying now that, based on the fact that this came in, which is non-hearsay, you are now saying that, Judge, because of, from your perspective, a misimpression left on the jury, you want to get that clarified through hearsay; is that correct.
Defense Counsel: Exactly. It would not be fair otherwise.

After each party questioned the witness outside the presence of the jury, more discussion between the attorneys, and finally the court itself inquiring of the witness, the court ruled:

My ruling is, is that I am going to grant your motion to cross-examine him of the statements regarding the fear and the concern and the relationship with [Appellant], the girlfriend, and the deceased, the victim. I am going to rule that you’re not to get into any area of [the victim] and his scholarship, the way he acted as a student, whether he was smart, whether he had a behavioral problem or otherwise, that is inappropriate and it is not relevant to what we’re doing here. I agree with you, [Defense Counsel], to some extent [the State] is creating this impression, this innuendo, •of the relationship between [Appellant] and the fear of [the victim], and I think that needs to be, since that door was opened, needs to be developed before the jury, and I’m ruling that it’s admissible under those circumstances. But what’s good for the goose is good for the gander. I’m going to let [the State] reopen his direct to let him get into that first before you cross-examine him.
... [The witness] may testify that [the victim] himself was afraid, but he cannot get into the fact that it’s known that he’s a thug or something along those lines. That is my ruling, notwithstanding your argument of reputation evidence or otherwise.

No objection was made to this compromise between the parties’ objections. Before the jury reentered the courtroom, the State asked the court whether it had permission to go into statements about the victim’s fear of Appellant. The court responded that it did, and then the court asked defense counsel if anything needed to be clarified. Defense counsel replied, “No.”

The jury then reentered the courtroom and the State reopened its direct examination of the counselor. The State elicited that the victim approached the counselor because a female student told him that Appellant wanted to fight him. The counselor stated that the victim knew Appellant to be a really tough guy; and, even though he told the counselor that he was not afraid, the counselor knew that he was afraid. This was the first time that the victim asked the counselor to handle a situation for him. The counselor approached Appellant about the victim but Appellant kind of laughed it off as if it was not a big deal.

On cross-examination, defense counsel sought the same testimony that contact between the counselor and the victim was initiated by the victim, who had been told that Appellant wanted to fight him. The defense also elicited from the counselor that, after the counselor approached Appellant, Appellant laughed it off and said something like, “I’m not going to do anything to that little boy.” The counselor agreed that Appellant did not seem angry at the time and he did not have any problems with the victim. Appellant was not mentioned again in discussions between the counselor and the victim.

On appeal, Appellant now challenges portions of the State’s reopened direct examination after the lengthy side bar conference and discussion outside the presence of the jury as to the scope of Appellant’s cross-examination of the counselor. Appellant is claiming the trial court erred in allowing such testimony, alleging the testimony was inadmissible hearsay evidence of the victim’s state of mind. However, at the trial, Appellant objected only to the State’s asking the witness whether it was uncommon for a male to “have some bravado about what they are or are not afraid of.” Appellant’s counsel challenged this questioning, stating, “Objection, your Honor, as to what’s common or uncommon.” -There was no hearsay objection, and thus the issue that Appellant attempts to address on appeal was not properly preserved for appellate review. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”) (emphasis added).

Furthermore, Appellant abandoned any hearsay challenge to the counselor’s testimony when it specifically and expressly requested the court to allow such testimony and agreed with the court that the State would be allowed to get into the details of the situation with the counselor. See Courtemanche v. State, 24 So.3d 770, 773 (Fla. 5th DCA 2009) (recognizing that an objection may be abandoned during the course of a side-bar conference); Garcia-Gallo v. State, 624 So.2d 851, 852 (Fla. 3d DCA 1993) (refusing to address the merits of certain points on appeal where they were abandoned or “expressly acquiesced to by the defendant”); Castillo v. State, 412 So.2d 36, 37 (Fla. 3d DCA 1982) (finding that timely objections may be considered abandoned when defense counsel explores the challenged subject and brings out the alleged prejudicial details). Counsel may choose to abandon an objection for reasons of strategy. See, e.g., Floyd v. State, 18 So.3d 432, 449 (Fla.2009) (“[Cjounsel eventually abandoned these objections in an attempt to place the murder in a domestic-dispute context as a means to avoid the death sentence.”); Pomeranz v. State, 703 So.2d 465, 470 (Fla.1997) (“[W]e find that [the defendant] abandoned his previous objections to admission of this evidence when he chose to pursue a strategy of repeatedly informing the jury of the dozens of other robberies and burglaries he had committed.”).

If Appellant had an issue with the lack of context or details presented by the State’s initial direct examination regarding the situation between the victim, the counselor, and Appellant, he had to make a strategic decision on how to handle it. Appellant chose to abandon its objection to the hearsay testimony so that more details would be revealed about why the victim approached the counselor and why the counselor then approached Appellant. “A criminál defendant may not take advantage on appeal of an error which he himself induced at trial.” Castle v. State, 305 So.2d 794, 797 (Fla. 4th DCA 1974); see also Ellison v. State, 349 So.2d 731, 732 (Fla. 3d DCA 1977). Appellant chose to allow the hearsay testimony to be included, knowing and understanding that this would open the door for the State to inquire into the circumstances as well. The trial court repeatedly cautioned defense counsel and repeatedly attempted to clarify what defense counsel was asking the court to allow. Counsel acquiesced to testimony being presented about the victim’s fear without objection and then did not object when the testimony was elicited in front of the jury. Whereas the State originally limited its direct examination to only relevant non-hearsay testimony, the later reopened direct examination questions and responses were induced by Appellant’s request to allow the full circumstances of the interaction with the counselor to be admitted. Therefore, Appellant cannot now, on appeal, take advantage of any error from the court allowing the testimony. See Castle, 305 So.2d at 797.

II. The trial court’s sentencing Appellant, a minor at the time of the murder, to life in prison for first degree murder and robbery with a firearm must be reversed in part and affirmed in part.

Appellant argues that the trial court reversibly erred in sentencing him to a mandatory term of life in prison without the possibility of parole for the first degree murder conviction because he was only sixteen years old at the time of the shooting, and recent United States Supreme Court decisions have found that such sentences for minors, when mandatory, violate the Eighth Amendment. Appellant’s second sentencing challenge is that the trial' court reversibly erred in sentencing him to life in prison without parole for the four robbery with a firearm convictions.

A. Miller dictates a remand of the ñrst degree murder conviction for resentencing.

In Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 2475,183 L.Ed.2d 407 (2012), the United States Supreme Court held that mandatory life sentences for juveniles under the age of eighteen at the time the offense is committed violates the Eighth Amendment of the United States Constitution. The Court explained its rationale in light of its other decisions on juvenile sentencing in Roper v. Simmons, 543 U.S. 551,125 S.Ct. 1183,161 L.Ed.2d 1 (2005) (holding that imposition of the death penalty on juveniles violates the Eighth Amendment), and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that the Eighth Amendment prohibits imposition of a life without parole sentence on a juvenile convicted of a nonhomicide offense):

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures have affected him.

Miller, 132 S.Ct. at 2468. However, “Miller did not categorically preclude sentencing a juvenile to life without possibility of parole.” Mason v. State, 134 So.3d 499, 500 (Fla. 4th DCA 2014). A sentence of life without parole cannot be mandatorily imposed on a juvenile, and the sentencing court must first “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison” before imposing the “law’s harshest term of imprisonment” for a juvenile. Miller, 132 S.Ct. at 2458, 2469, 2475.

The State does not contest that Appellant’s sentence for first degree murder violates the Supreme Court’s decision in Miller; however, the primary disagreement between the parties is the proper remedy upon reversing the sentence. Appellant is requesting this court to reverse and remand for resentencing, whereas the State’s answer brief focuses on the concept of statutory revival, which would impose a sentence of life in prison with the possibility of parole after twenty-five years.

Two of our sister courts have accepted the State’s position. See Horsley v. State, 121 So.3d 1130 (Fla. 5th DCA 2013), review granted, No. SC13-1938, 2013 WL 6224657 (Fla. Nov. 14, 2013); RodriguezGiudicelli v. State, 143 So.3d 947 (Fla. 2d DCA 2014). However, this court has consistently followed Miller to direct a trial court, on remand, “to conduct further sentencing proceedings and expressly consider whether any of the numerous ‘distinctive attributes of youth’ referenced in Miller apply in this case so as to diminish the ‘penological justifications’ for imposing a life-without-parole sentence upon appellant.” Daugherty v. State, 96 So.3d 1076, 1080 (Fla. 4th DCA 2012); see also Mackey v. State, No. 4D12-1573, — So.3d —, 39 Fla. L. Weekly D1526, 2014 WL 3605552 (Fla. 4th DCA July 23, 2014); Dawson v. State, 142 So.3d 948 (Fla. 4th DCA 2014); Juarez v. State, 138 So.3d 1094 (Fla. 4th DCA 2014); Brighton v. State, 141 So.3d 579 (Fla. 4th DCA 2014). Accordingly, we reverse Appellant’s sentence of life imprisonment without the possibility of parole for first degree murder, and remand for resentencing proceedings in conformity with Miller, providing the trial court with the opportunity to consider Appellant’s individual circumstances and characteristics as a juvenile and the opportunity to again impose a sentence of life without parole after considering the proper facts. We note that the Florida Supreme Court has accepted jurisdiction to resolve the conflict between the Districts in Horsley, 2013 WL 6224657.

B. Resentencing is not necessary for Appellant’s Convictions for Robbery with a Firearm.

Appellant also requests this court to reverse and remand for resentencing on his four convictions for robbery with a firearm. In Florida, armed robbery is a first degree felony “punishable by imprisonment for a term of years not exceeding life imprisonment.” § 812.13(2)(a), Fla. Stat. (2011). If a defendant possesses a firearm during the commission of the robbery, a mandatory minimum of ten years in prison must be imposed. See § 775.087(2)(a)(l)c., Fla. Stat. (2011). In the instant case, the trial court’s sentencing Appellant to life imprisonment for each robbery with a firearm conviction far exceeded the mandatory minimum and raises an issue only partially addressed by the United States Supreme Court, and currently pending before the Florida Supreme Court: whether a juvenile can be given a sentence of life in prison without parole for nonhomicide crimes that took place in conjunction with a homicide(s).

In Graham, the Supreme Court created a categorical rule prohibiting sentences of life without the possibility of parole for juveniles who did not commit a homicide offense. Graham, 560 U.S. at 74-75, 130 S.Ct. 2011. However, Florida district courts disagree as to whether this categorical rule applies in situations where a juvenile defendant commits a nonhomicide offense along with a homicide offense in the same criminal episode.

The First and Fifth Districts maintain that the Supreme Court created a bright line rule concerning life without parole sentences for juveniles convicted of nonho-micide offenses; thus, even if the same juvenile also commits a homicide offense during the same criminal incident, the trial court may not sentence the juvenile to life without parole for the nonhomicide offense. See Jackson v. State, — So.3d —, 2013 WL 3013582, 38 Fla. L. Weekly 1334 (Fla. 1st DCA 2013); Johnson v. State, — So.3d—, 2013 WL 1809685, 38 Fla. L. Weekly D953 (Fla. 1st DCA 2013); Weiand v. State, 129 So.3d 434 (Fla. 5th DCA 2013); Akins v. State, 104 So.3d 1173 (Fla. 1st DCA 2012). These districts hold to the bright line rule that the imposition of a life without parole sentence for a juvenile convicted of any nonhomicide crime is illegal and mandates reversal. See, e.g., Johnson, — So.3d—, 38 Fla. L. Weekly D953.

In Johnson, the First District certified conflict with the Third District’s decision in Lawton v. State, 109 So.3d 825 (Fla. 3d DCA 2013), review granted, No. SC13-685, 2014 WL 305688 (Fla. Jan. 14, 2014). Lawton construed a portion of the Graham decision as supporting the creation of an exception to the Supreme Court’s rule that would allow the imposition of a life without parole sentence on a juvenile for a nonhomicide offense when a homicide offense also occurred in a single criminal episode. Lawton, 109 So.3d at 828. Although the First and Fifth Districts maintain that the language is merely dicta, the Second and Third districts find the language creates a clear exception. Id.; Starks v. State, 128 So.3d 91, 92 (Fla. 2d DCA 2013); Washington v. State, 110 So.3d 1, 2-3 (Fla. 2d DCA 2012).

In Graham, the Supreme Court recognized that “[j Juvenile offenders who commit[ ] both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who commit[ ] no homicide.” Graham, 560 U.S. at 63, 130 S.Ct. 2011. The Court further explained:

It is difficult to say that a defendant who receives a life sentence on a nonho-micide offense but who was at the same time convicted of homicide is not in some sense being punished in part for the homicide when the judge makes the sentencing determination. The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.

Id. Because of this language, the Second and Third Districts contend that a life without parole sentence for a juvenile convicted of a nonhomicide offense is not illegal and may be upheld where the juvenile was convicted of a homicide offense in the same incident. See, e.g., Starks, 128 So.3d at 92. However, the Second District in Washington, although maintaining that the sentences were not illegal, still reversed a defendant’s sentences of life without parole for two nonhomicide convictions where the court was also reversing the defendant’s sentences of life without parole for two homicide convictions because the court concluded that the constitutionality of the sentences imposed for the nonhomicide convictions “probably hinges on whether the trial court, on remand, imposes life without parole for [the homicide convictions].” Washington, 110 So.3d at 3.

This District has not issued an opinion regarding the application of Graham to the instant situation where a juvenile defendant received sentences of life without parole for four nonhomicide offenses for acts that occurred-during the same criminal episode for which the defendant was also convicted of a homicide offense. We find the Lawton rationale to be more compelling, permitting the trial court to “properly consider[ ] the ... homicide as an aggravating factor justifying” the maximum sentence for the nonhomicide charges. Lawton, 109 So.3d at 829. Accordingly, we find that the life sentences for the four counts of burglary with a firearm were not illegal and we do not disturb the trial court’s sentencing with respect to those counts.

Similar to the upcoming resolution of the conflict between Districts with respect to juvenile sentencing of homicides post-Miller, the Florida Supreme Court has also accepted jurisdiction to address the conflict with respect to juvenile sentencing for nonhomicide offenses that are connected to homicides in the same criminal enterprise. Lawton v. State, No. SC13-685, 2014 WL 305688 (Fla. Jan. 14, 2014).

Conclusion

We affirm the trial court’s denial of Appellant’s motion for judgment of acquittal and uphold his convictions for first degree murder and four counts of robbery with a firearm. We reverse Appellant’s mandatory life without parole sentence for the homicide and remand for the trial court to conduct further sentencing proceedings. Finally, we affirm the sentences with respect to the four armed burglary convictions.

Affirmed in part, reversed in part, and remanded.

STEVENSON and CONNER, JJ., concur.

      . Appellant was charged with aggravated assault with a firearm and convicted of the lesser-included offense of assault. His sentence on this charge was time served, and that sentence has not been appealed. His sentences on the other five convictions are to run concurrently.


source: Caselaw Access Project

author: FORST, J.

license: Public Domain

text:
    Robert BRKLACIC, Appellant, v. Lori PARRISH, in her official capacity as Property Appraiser of Broward County, Florida, and Judith Fink, as Revenue Collector, Appellees.
    No. 4D12-2597.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.
    Rehearing Denied Oct. 8, 2014.
    Jerome R. Schechter and Danielle Greenberg of Jerome R. Schechter, P.A., Fort Lauderdale, for appellant.
    Gregory Durden of Gregory Durden, P.A., and Mila K. Schwartzreich, Fort Lauderdale, for appellees.
   FORST, J.

Appellant Robert Brklacic appeals the final summary judgment entered against him in favor of Appellees Lori Parrish (Property Appraiser of Broward County) and Judith Fink (Revenue Collector for Broward County). Appellant challenged Appellees’ assessment of an ad valorem back tax lien, penalties, and interest based on Appellees’ determination that Appellant was not entitled to a homestead exemption for his residential property in Broward County when a homestead exemption was granted for the Palm Beach County residential property of Appellant’s wife. Appellant maintains that he and his wife had established “separate family units,” entitling each of them to their own homestead tax exemption on their respective residences. . Appellees and the trial court found otherwise and, upon review of the court’s application of the Florida Constitution and Florida Administrative Code, we concur and affirm.

Background

Appellant purchased a property in Bro-ward County in 1979, and he has resided there continuously while securing a homestead tax exemption during that time. Appellant married “the love of his life” in 2001 and, as of the time of the hearing in this case, he acknowledged that he and his wife continue to maintain a predominately congenial marriage. Notwithstanding the 2001 marriage, Appellant’s wife has continued to maintain her own residence in Palm Beach County. The couple agreed to maintain their own separate residences until each retired, for personal and professional convenience. Both before and after the 2001 marriage, both spouses claimed homestead tax exemptions for their respective properties. Appellant testified that he and his wife never lived together on a daily basis, but they stayed together on weekends and holidays when they traveled together or when Appellant stayed with his wife at her home in Palm Beach County. They have no children living in either residence. Appellant also maintained that he and his wife kept separate accounts and monies.

Article VII, Section 6 of the Florida Constitution allows “[e]very person who has the legal or equitable title to real estate and maintains thereon the permanent residence of the owner” to claim a homestead tax exemption. However, subsection (b) provides, “Not more than one exemption shall be allowed any individual or family unit or with respect to any residential unit.” Art. VII, § 6(b), Fla. Const, (emphasis added).

The Florida Department of Revenue is charged with the responsibility to establish rules and regulations for assessing and collecting taxes. § 195.027(1), Fla. Stat. (2012). Thus, the Department of Revenue created Administrative Code Rule 12D-7.007 to address the homestead tax exemption. Subsection (7) provides, in relevant part:

A married woman and her husband may establish separate permanent residences without showing “impelling reasons” or “just ground” for doing so. If it is determined by the property appraiser that separate permanent residences and separate “family units ” have been established by the husband and wife, and they are otherwise qualified, each may be granted homestead exemption from ad valorem taxation under Article VII, Section 6,1968 State Constitution.

Fla. Admin. Code R. 12D-7.007(7) (emphasis added).

In 2010, the Property Appraiser sent Appellant a notice of intent to file a lien against his Broward County property because Appellant received a homestead exemption for that property for the years of 2002 to 2009, but the Property Appraiser found that Appellant was not qualified for such an exemption. Appellant then filed a complaint against the Property Appraiser and the Revenue Collector, alleging that he is entitled to the exemption because he has always maintained the subject property as his permanent residence and, even though he is married, the spouses have established separate family units. The complaint requested the court to cancel the tax lien and reestablish the homestead exemption to the Broward County property.

The trial court granted the Property Appraiser’s motion for summary judgment, finding that the undisputed facts and the evidence support the conclusion that Appellant and his wife were a single family unit and, as such, Appellant has not shown entitlement to a homestead tax exemption as his wife received one in Palm Beach County.

Analysis

As noted above, the pertinent Constitutional provision states, “Not more than one exemption shall be allowed any individual or family unit or with respect to any residential unit.” Art. VII, § 6(b), Fla. Const, (emphasis added). Two individuals (Appellant and his wife) received two homestead exemptions with respect to two residential units (their respective Bro-ward and Palm Beach County residences). Appellant argues that he and his wife are separate “family units” and, as such, entitled to their own separate homestead exemptions for their respective separate permanent residences. Neither the Property Appraiser nor the trial court challenged Appellant’s claim that he and his wife primarily resided in separate permanent residences; the sole contested issue is whether the trial court properly determined, on summary judgment, that Appellant and his wife constituted one family unit and were thus limited to one homestead exemption. No constitutional or statutory definition for “family unit” exists, and no Florida appellate case addressed the issue until Wells v. Haldeos, 48 So.3d 85 (Fla. 2d DCA 2010). In Wells, a husband owned and permanently resided on a property in Florida and sought a homestead tax exemption. Id. at 85. The husband had been separated from his wife for a few years before he purchased the home and sought the exemption. Id. However, the exemption was denied under the provision allowing for only one exemption per family unit because the wife owned and permanently resided on a property in the state of New York where she was already receiving a residency-based property tax exemption. Id.

The trial court in Wells found that the husband was entitled to the exemption and the Second District affirmed, holding that the husband and wife constituted separate family units. Id. at 85-88. Significantly, “[t]he trial court found that it would defy logic for two people ‘who have no contact with one another, who don’t have any connections of a financial, emotional or any other way to call them a family unit.’ ” Id. at 86 (emphasis added). In arriving at its decision, the Second District relied on Fla. Admin. Code R. 12D-7.007(7), as well as our previous decision regarding protection of a homestead from liens in Law v. Law, 738 So.2d 522 (Fla. 4th DCA 1999), the Florida Supreme Court’s decision regarding another constitutional tax exemption in Judd v. Schooley, 158 So.2d 514 (Fla.1963), and advisory opinions from the Florida Attorney General, which all agreed that married persons may establish separate homesteads under certain circumstances. Wells, 48 So.3d at 87-88. The Second District concluded that “in the unique circumstances presented in [Wells ], where the husband and wife have established two separate permanent residences in good faith and have no financial connection with and do not provide benefits, income, or support to each other, each may be granted a homestead exemption if they otherwise qualify.” Id. at 88. It appears that the Second District, in defining “family unit” for the purposes of the exemption, focused on the fact that the husband and wife were estranged.

In Law, we, albeit faced with a different constitutional provision protecting a homestead from liens, focused on whether the husband and wife were in an “intact marriage” to determine whether a husband and wife could have two homesteads. Law, 738 So.2d at 525. The husband arid wife in Law were separated, and permanently living apart when the husband sought to claim one residence as his homestead to be exempt from liens while the wife was living in the couple’s former home where they claimed a homestead tax exemption. Id. at 528. We arialyzed the purpose of the homestead exemption against creditors as a means of protecting the family unit and concluded that there is “nothing inconsistent with our policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements of the exemption.” Id. at 525 (emphasis added).

The advisory opinions from the Florida Attorney General offer further guidance as to how to define a “family unit” for homestead tax exemption. In opinion number 75-146, the Attorney General was asked to advise whether a married, yet separated, husband and wife could claim separate homestead tax exemptions when they each established a separate permanent residence. Op. Att’y Gen. Fla. 75-146 (1975). The question was answered in the affirmative because the separation (as in, estrangement) of the parties made them separate family units. Id.; see also Op. Att’y Gen. Fla.2005-60 (2005) (explaining that opinion number 75-146 found that the married individuals could obtain separate homestead exemptions because of the circumstances where the spouses were separated ). In the same opinion, the Attorney General referenced opinion number 64-05, which found that a married couple living separately but still residing together for periods of time could not be entitled to separate homestead tax exemptions. Op. Att’y Gen. Fla. 75-146 (1975) (explaining that opinion number 64-05 concluded that a husband and a wife could not both be “granted [a] homestead tax exemption on dwelling houses maintained by each of them merely because they spend a large part of the time in their separate dwelling houses”) (quoting Op. Att’y Gen. Fla. 64-05 (1964)).

Subsequent advisory opinions consistently emphasize that married individuals can obtain separate exemptions only when they have established separate permanent residences and separate family units. See, e.g., Op. Att’y Gen. Fla.2005-60 (2005); Op. Att’y Gen. Fla.2008-13 (2008). This suggests that, with respect to the legal authorities that have addressed the definition of “family unit,” the focus is more than just where the members of the family live, contrary to Appellant’s contention in the instant case. The foregoing law and persuasive authority favor finding that a married couple constitutes a single family unit when the marriage is intact, as opposed to the couple being separated or estranged. A single family unit would thus exist where spouses (even though living in separate primary residences or even separate permanent residences) live together at different periods of time, support each other in some financial or emotional way, and/or present themselves as a married couple (as opposed to estranged individuals who are just technically still married). See Wells, 48 So.Bd at 88; Law, 738 So.2d at 523-24.

Conclusion

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000); Fla. R. Civ. P. 1.510(c). The burden is on the moving party to conclusively show that no genuine issue of material fact exists. Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009). “If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.” McCabe v. Fla. Power & Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011) (quoting Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010)).

We affirm the trial court’s judgment that the Property Appraiser satisfied the criteria for a summary judgment decision in this case. There are no issues of material fact as to whether Appellant and his wife constituted one “family unit” as that term has been construed, and, as such, they were limited to one homestead exemption. Appellant has presented ample evidence that the Broward County residence was his primary residence and that there was little intermingling of the cou-pie’s finances. However, he and his wife were not “separated” as that term is understood in the context of the marital relationship, and the couple regularly spent time together in the same residence.

Because the undisputed facts are sufficient to establish that Appellant and his wife maintained an intact marriage during the operative years, they are a single “family unit” entitled to one homestead tax exemption, which Appellant’s wife claimed during each year of the time period at issue (2002-09). As such, Appellant was not entitled to a second homestead tax exemption and the final summary judgment order is affirmed.

Affirmed.

STEVENSON and CONNER, JJ., concur.

      . Appellant never asserted that he and his wife were "estranged” or living separate lives 24/365. If he had done so, it would have placed the Property Appraiser and her staff in the position of determining whether the couple's marriage was no longer intact — "your honor, Exhibit 33 is a photo of the Defendant and his wife holding hands." On the flip side, an argument could be made that a couple with a very intact relationship who split their time between two residences may be able to claim two homestead exemptions so long as they are not legally married. One commenter has referred to this as the " ‘unwed’ loophole.” Amanda S. Coffey, Pillow Talk and Property Taxes: Florida’s Family Unit Requirement for Homestead Exemption and the Modem Marriage, 41 Stetson L. Rev. 401, 416 (2012). Although we need not meander down that thorny path in the instant case, the ambiguity and perhaps unforeseen consequences associated with the definition of the term "family unit” may merit legislative scrutiny in the near future.


author: DAMOORGIAN, C.J.

text:
    Gustavo A. REYES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4577.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.

      Carey Haughwout, Public Defender, and James Melntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

Gustavo Reyes appeals his convictions and sentences for one count of sexual battery by a person over age eighteen of a person under the age of twelve, one count of lewd and lascivious molestation, and one count of battery. He makes the following arguments on appeal: 1) the court abused its discretion by denying two of Appellant’s juror challenges during voir dire, 2) Appellant’s conviction for lewd and lascivious molestation must be reversed because the jury instruction on the charge did not mirror the charging information, 3) the trial court abused its discretion when it denied Appellant’s motion for judgment of acquittal for sexual battery, and 4) the court abused its discretion by admitting statements made by the Victim to her mother under the child-victim hearsay exception. We affirm in all respects and write only to address Appellant’s argument regarding the discrepancy between the information and jury instruction on his lewd and lascivious molestation conviction.

Background

This is a child molestation case stemming from events that occurred between Appellant and a three-year-old extended relative (the “Victim”). One day, the Victim’s mother witnessed Appellant French-kissing the Victim. She immediately separated the Victim from Appellant, and the Victim told her mother that Appellant touched her private parts with his fingers and genitalia. After the Victim’s mother called the police, Child Protective Services interviewed the Victim, who confirmed that Appellant molested her. Additionally, a physical examination of the Victim revealed that she had “nonspecific vaginitis.”

Based on this information, law enforcement conducted a Mirandized interview of Appellant, who admitted that he kissed the Victim, that he digitally penetrated the Victim’s vagina, and that he rubbed his penis on the Victim’s vagina while she was wearing underwear. Appellant was subsequently arrested and charged by amended information with one count of sexual battery and three counts of lewd and lascivious molestation. The sexual battery count (Count I) was predicated on the allegation that Appellant penetrated the Victim’s vagina with his finger. The three lewd and lascivious molestation counts were predicated on the allegations that: Appellant touched the Victim’s vagina with his finger (Count II), Appellant touched the Victim’s vagina with his penis (Count III) and Appellant “tongue kissed” the Victim (Count IV).

After considering the evidence, the jury found Appellant guilty of Count I (sexual battery), Count II (lewd and lascivious molestation), Count III (lewd and lascivious molestation), and of the lesser offense of battery on Count IV (originally lewd and lascivious molestation). The court adjudicated Appellant guilty of Count I, Count III, and Count IV, and imposed concurrent sentences of life without the possibility of parole on Count I, twenty-five years on Count III, and credit for time served on Count IV. The court did not adjudicate or sentence Appellant on Count II, as the state abandoned the charge due to double jeopardy concerns.

Analysis

Appellant takes issue with the jury instruction provided on Count III, lewd and lascivious molestation, which was predicated on the allegation that Appellant touched the Victim’s vagina with his penis. Appellant did not object to the instructions given to the jury and, therefore, this Court can only review for fundamental error. “An erroneous jury instruction is fundamental when it reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Abbott v. State, 958 So.2d 1140, 1142 (Fla. 4th DCA 2007) (citations and quotations omitted).

“A defendant is entitled to have the charge against him proved substantially as alleged in the indictment or information and cannot be prosecuted for one offense and convicted and sentenced for another, though the offenses are of the same general character or carry the same penalty.” Zwick v. State, 730 So.2d 759, 760 (Fla. 5th DCA 1999). “ ‘[WJhere an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment.’ ” Deleon v. State, 66 So.3d 391, 393 (Fla. 2d DCA 2011) (quoting Long v. State, 92 So.2d 259, 260 (Fla.1957)). Thus, when the state limits a charging document to a specified factual theory, the jury instruction should not go outside of that factual theory. See Trahan v. State, 913 So.2d 729, 730 (Fla. 5th DCA 2005).

The challenged instruction provided that the jury could find Appellant guilty of Count III if it found that he “intentionally touched in a lewd or lascivious manner the clothing covering the vagina and/or vaginal area of [the Victim] with his penis.” Appellant argues that the inclusion of the phrase “the clothing covering” was impermissible since the information on Count III read as follows:

COUNT 3: GUSTAVO A. REYES ... did unlawfully and intentionally touch [the Victim]. A person less than 12 years of age, in a lewd and lascivious manner the breast, genitals, genital area, or buttocks, or the clothing covering them {or} did force or entice [the Victim] to so touch GUSTAVO A. REYES, in that GUSTAVO A. REYES did cause his penis to touch the vaginal area, or vaginal genitalia area of [the Victim], contrary to Florida Statute 800.04(5)(a) and (b).

Appellant’s argument implies that there is a substantive difference between touching the clothes covering a body part and touching an actual body part. We disagree.

The constructs of the English language ignore the fact that a person is most likely wearing clothing when referencing the act of touching another’s body, as the distinction is irrelevant to the act. By way of example, an information charging a defendant with battery would never allege that the defendant committed battery by “striking the victim on the shirt covering his arm.” This is because the presence of clothing is irrelevant to whether the defendant struck the victim’s arm. In this vein, even if the jury instruction had not included the challenged “clothes covering” language, a reasonable jury would have understood that Appellant could still have “touched” the Victim’s vagina with his penis even if the “touching” took place over a pair of underwear. Accordingly, the difference between the information and the jury instruction on Count III was, at the most, a matter of semantics and did not rise to the level of fundamental error. See Johns v. State, 838 .So.2d 635, 637 (Fla. 5th DCA 2003) (evidence that defendant attempted to place the victim’s penis on his mouth supported jury’s finding that defendant committed act charged in the information, which was that the defendant placed the victim’s penis in his mouth as there is no material difference between the two acts).

Based on the foregoing, we affirm Appellant’s judgment and sentence.

Affirmed.

TAYLOR and FORST, JJ., concur.


author: GROSS, J.

text:
    Orlando SANCHEZ, Appellant, v. CITY OF WEST PALM BEACH, Appellee.
    No. 4D13-4819.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.
    Rehearing Denied Oct. 17, 2014.

      Michael F. Amezaga of Orner & Orner, P.L.L.C., Boca Raton, for appellant.
    Christopher Van Hall, West Palm Beach, for appellee.
   GROSS, J.

In a forfeiture proceeding under the Florida Contraband Forfeiture Act, §§ 932.701-932.706, Florida Statutes (2013) (the “Act”), Orlando Sanchez appeals from a non-final order entered after an adversarial preliminary hearing finding probable cause to support the City of West Palm Beach’s continued seizure of $11,165.00 in U.S. currency. Because the circuit court prevented Sanchez from calling witnesses and introducing evidence at the hearing, we reverse and remand for a new adversarial preliminary hearing.

Factual Background

In July 2013, West Palm Beach police officers seized $11,165.00 in U.S. currency from Sanchez pursuant to the Act on the belief the money had been acquired from illegal gambling. As provided by section 932.703(2)(a), Florida Statutes (2013), Sanchez requested the trial court conduct an adversarial preliminary hearing. The trial court held a hearing pursuant to section 932.703(2)(c), for the purpose of determining whether there was probable cause to believe the currency had been or was being used in violation of the Act. Prior to the hearing, counsel for Sanchez submitted a memorandum of law in support of his position, describing the parties’ evidentiary burden under Wright v. Florida Department of Highway Safety & Motor Vehicles, 531 So.2d 352, 355 (Fla. 1st DCA 1988), a case decided prior to the enactment of the current version of the Act.

The Preliminary Adversarial Hearing

At the hearing, an officer testified that on July 3, 2013, at about 11:30 p.m., he pulled over Sanchez’s vehicle after observing it run two stop signs. Upon approaching the vehicle, the officer “instantly smelled marijuana” emanating from Sanchez’s rolled-down window, leading the officer to call for backup. When a second officer arrived and confirmed the marijuana odor, the two removed Sanchez and proceeded to search his vehicle.

After pinpointing the smell to the vehicle’s center console, the first officer opened a red paper shopping bag believing it would contain “a large amount of marijuana.” As it turned out, the bag contained eight hundred dollars in loose cash along with “two blocks” of U.S. currency bound by rubber bands, each consisting of $5,000 in twenty-dollar bills. Underneath the shopping bag, the officers located a misdemeanor amount of marijuana. The record does not reflect how the amount of marijuana seized produced the extent of the odor the officers described.

Believing the currency to be the proceeds of a narcotics sale, the first officer questioned Sanchez regarding the source of the cash, to which Sanchez responded that he had won it at the dog track. Following continued questioning, however, Sanchez changed his story, stating the he “won it [at] a friend’s house playing poker.” Since residential gambling is illegal, the first officer seized the cash along with three hundred sixty-five dollars found on Sanchez’s person.

In his defense, Sanchez denied saying that he had been gambling at a friend’s house. He testified that he was a professional gambler and that he had won the seized currency during a successful night at the Palm Beach Kennel Club. To corroborate his claims, Sanchez offered into evidence gambling tickets and racing programs from the Kennel Club, all dated July 3, 2013, claiming they were in his car at the time of the search. In addition, Sanchez submitted tax returns, in which he accounted for his prior gambling winnings.

Although the City objected to this evidence, claiming that (1) Sanchez was not permitted to introduce documentary evidence at an adversarial preliminary hearing that was unknown to the state at the time of the seizure, and (2) the evidence was otherwise irrelevant to whether the first officer had probable cause to seize the currency, the court considered these documents.

To further support his claim, Sanchez sought to call a Kennel Club employee to testify (1) that he saw Sanchez at the Kennel Club on the night in question, (2) that “anyone can claim their cash winnings in $20 bills,” and (3) that he heard Sanchez scream “I won” in Spanish. The trial court excluded the witness, finding that Sanchez had already made a sufficient showing to negate the City’s claim of probable cause. The trial court cautioned, however, that the probable cause determination was “without prejudice,” meaning the City could “come back” when it had more evidence.

Motion for Reconsideration

The following week, the City moved for reconsideration, contending Sanchez’s recitation of the parties’ evidentiary burdens was erroneous as an “incomplete citation based on a case [Wright ] that preceded the current forfeiture statutory scheme.” Under the applicable scheme, the City averred that the sole purpose of an adversarial preliminary hearing is to determine whether the seizing agency has probable cause to believe the property subject to forfeiture was used in violation of the Act. Thus, the City argued, Sanchez’s testimony regarding his gambling career along with the inclusion of the gambling tickets, the racing programs, and the Kennel Club employee’s testimony was irrelevant since such evidence was not privy to the seizing agency at the time of the seizure.

The trial court agreed and granted the City’s motion for reconsideration, finding that it mistakenly relied upon Wright to justify admitting “testimony relating to [Sanchez’s] occupation, income sources, ownership rights to the currency, and whereabouts on or about July 3, 2013 that related to the source of the Currency” along with “documentary evidence that included gambling receipts, gambling programs, and income tax returns.” As a result, the trial court stated that it would “reconsider the evidence presented ... pursuant to the appropriate standards.”

Evidentiary Hearing on Reconsideration

Having granted the City’s motion for reconsideration, the trial court conducted a second adversarial preliminary hearing. The City re-called the officers to testify that they found no gambling receipts or racing programs within Sanchez’s car at the time they seized the currency.

After the City rested, Sanchez again took the stand. As before, Sanchez sought to admit the gambling receipts, the racing programs, and the Kennel Club employee’s testimony. Upon the City’s objection, however, the trial court barred Sanchez from proceeding, finding the evidence to be outside the scope of the adversarial preliminary hearing. As a result, since the City’s largely unrebutted evidence established that Sanchez admitted to receiving the money through illegal gambling, the trial court ruled the City had probable cause to believe the seized currency was used in violation of the Act.

The Florida Contraband Forfeiture Act

Under the Florida Contraband Forfeiture Act, real or personal property “used in violation of any provision of the [Act,] or in, upon, or by means of which any violation of the [Act] has taken or is taking place,” may be seized and ultimately forfeited through civil proceedings. § 932.703(l)(a), Fla. Stat. (2013); see also City of Coral Springs v. Forfeiture of a 1997 Ford Ranger Pickup Truck VIN No. 1FTCR10A4VTA62475 FL Tag 3U16BDE, 803 So.2d 847, 849-50 (Fla. 4th DCA 2002). To effectuate a forfeiture under the Act, the seizing agency must engage two stages: a seizure stage and a forfeiture stage. See Gomez v. Vill. of Pinecrest, 41 So.3d 180, 184 (Fla.2010). At the seizure stage, the trial court must determine “whether there is probable cause to believe that the property has been used in violation of the Act.” In re Forfeiture of: $221,898 in U.S. Currency, 106 So.3d 47, 49 (Fla. 2d DCA 2013) (citation omitted). If probable cause exists, the matter then proceeds to a subsequently scheduled forfeiture proceeding, during which “ ‘the court or jury determines whether the subject property shall be forfeited.’ ” Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1164 (Fla.2006) (quoting § 932.701(2)(g), Fla. Stat. (2002)).

While now codified by sections 932.703 and 932.704, Florida Statutes (2013), this two-step approach to forfeiture proceedings has its origins in Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991), a case concerning a due process challenge to the Act’s then-current procedure. Prior to the Real Property decision, the above-mentioned seizure and forfeiture stages were truncated into a single proceeding, initiated either by the State within 90 days of the seizure or by the claimant in an action to recover the property. § 932.703(1), 932.704(1), Fla. Stat. (1991). At the proceeding, the “governmental entity seeking forfeiture b[ore] the initial burden of going forward” by demonstrating “probable cause that the res subject to forfeiture was illicitly used within the meaning of the forfeiture statute.” In re Approximately Forty-Eight Thousand Nine Hundred Dollars ($48,-900.00) in U.S. Currency, 432 So.2d 1382, 1385 (Fla. 4th DCA 1983). If this hurdle was cleared, the burden then shifted to the claimant “to rebut the probable cause showing, or by a preponderance of the evidence, to establish that the forfeiture statute was not violated or that there is an affirmative defense which entitles the appellant to repossession of the item.” Lobo v. Metro-Dade Police Dep’t, 505 So.2d 621, 623 (Fla. 3d DCA 1987).

The problem with this streamlined process, as the court noted in Real Property, was that it impinged upon the claimant’s “compelling interest! ] to be heard at the initiation of forfeiture proceedings against their property rights to assure that there [wa]s probable cause to believe that a person committed a crime using that property to justify a property restraint.” 588 So.2d at 964 (emphasis added). As Justice Bark-ett explained:

Property rights are among the basic substantive rights expressly protected by the Florida Constitution. Art. I, § 2, Fla. Const.; see Shriners Hosps. for Crippled Children v. Zrillic, 563 So.2d 64, 68 (Fla.1990) (article I, section 2 protects all incidents of property ownership from infringement by the state unless regulations are reasonably necessary to secure the health, safety, good order, and general welfare of the public). Those property rights are particularly sensitive where residential property is at stake, because individuals unquestionably have constitutional privacy rights to be free from governmental intrusion in the sanctity of their homes and the maintenance of their personal lives. Art. I, §§ 2, 12, 23, Fla. Const. Additionally, Floridians have substantive rights to be free from excessive punishments under article I, section 17 of the Florida Constitution, and to have meaningful access to the courts pursuant to article I, section 21 of the Florida Constitution. All of these substantive rights necessarily must be protected by procedural safeguards including notice and an opportunity to be heard. Art. I, § 9, Fla. Const.; see Hadley v. Department of Admin., 411 So.2d 184 (Fla.1982); State ex rel. Gore v. Chillingworth, 126 Fla. 645, 657-58, 171 So. 649, 654 (1936).

Id. (emphasis added). The resulting determination was that due process “requires that ‘those claiming an interest in the property' be provided with notice and the opportunity to be heard at each stage of the proceeding.” City of Fort Lauderdale v. Baruch, 718 So.2d 843, 847 (Fla. 4th DCA 1998) (quoting Real Property, 588 So.2d at 957) (emphasis added); Sheffey v. Futch, 250 So.2d 907, 910 (Fla. 4th DCA 1971) (“[D]ue process has been defined in non-criminal situations as contemplating reasonable notice and an opportunity to appear and be heard.” (citations omitted)).

To bring the Act’s procedure in compliance with due process, the Real Property Court held that the initial seizure of property — whether real or personal — must be tethered to providing all interested parties with “notice” and an “opportunity for an adversarial preliminary hearing ... as soon as possible.” 588 So.2d at 965. If requested, the adversarial preliminary hearing was required to take place “within ten days of the request” so that the trial court could “make a de novo determination as to whether probable cause exists to maintain the forfeiture action.” Id. at 965.

In response to the Real Property decision; the Legislature amended the Act in 1992 to “create both the adversarial preliminary hearing and a category of ‘person entitled to notice’ who must be notified of the right to the hearing.” Velez, 934 So.2d at 1165; see also Ch. 92-54, §§ 1, 3, Laws of Fla. Consistent with due process, a person falling within this enumerated category “has the right to litigate the issue of probable cause at an adversarial preliminary hearing.” Chuck v. City of Homestead Police Dep’t, 888 So.2d 736, 745 (Fla. 3d DCA 2004) (emphasis added). With regard to the evidence to be presented at the hearing, section 932.703(2)(c), Florida Statutes (2013), provides:

When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act.

The focus of this statute is on the evidence of probable cause that exists at the time of the adversarial preliminary hearing, not just what the police officers knew at the time the property was seized. The wording of section 932.703(2)(c) compels the conclusion that, unlike a Fourth Amendment challenge, the pertinent inquiry at the adversarial preliminary hearing is “whether there ‘is’ probable cause to believe that a violation of the Act occurred or is occurring, not whether there ‘was’ probable cause to believe that a violation of the Act occurred at the time of seizure.” Beary v. Bruce, 804 So.2d 579, 581 (Fla. 5th DCA 2002) (emphasis added); see also City of Coral Springs v. Forfeiture of a 1997 Ford Ranger Pickup Truck VIN No. 1FTCR10A4VTA62475 FL Tag 3Ul 6BDE, 803 So.2d 847, 850 (Fla. 4th DCA 2002) (stating that the question of importance is “ ‘whether the information relied upon by the state is adequate and sufficiently reliable to warrant the belief by a reasonable person that a violation has occurred’ ”) (quoting Medious v. Dep’t of Highway Safety & Motor Vehicles, 534 So.2d 729, 732 (Fla. 5th DCA 1988). This interpretation of the statute is consistent with the Supreme Court’s identification in Real Property of the constitutional interests at play; if the State cannot establish probable cause of a statutory violation early in the proceedings, its seizure of the property ends without the delay that would accompany a forfeiture trial. We note that “establishing the owner’s actual or constructive knowledge” — i.e., whether the owner knew the property was being used in an illegal manner — is not required until the forfeiture trial. Gomez, 41 So.3d at 181.

Because the section 932.703(2)(e) probable cause inquiry focuses on the evidence that exists at the time of the hearing, it makes no constitutional or statutory sense to force the “opposing” party at an “adversarial” hearing to remain mute when in possession of evidence capable of rebutting the agency’s claims of a statutory violation. See Velez, 934 So.2d at 1166 (“[I]n using the term ‘adversarial,’ the statute contemplates that the preliminary hearing would involve opposing parties.” (citing Black’s Law Dictionary 58 (8th ed. 2004))). To give full effect to the statutory scheme and to the requirements of due process, we reject the City’s position that a claimant’s evidence rebutting probable cause — evidence that the subject property is not the product of illegal conduct — is inappropriate at an adversarial preliminary hearing. See Pope v. Pope, 901 So.2d 352, 353 (Fla. 1st DCA 2005) (“‘Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf ..., and the denial of this right is fundamental error.’ ”) (quoting Pettry v. Pettry, 706 So.2d 107, 108 (Fla. 5th DCA 1998); Begens v. Begens, 617 So.2d 360, 361 (Fla. 4th DCA 1993) (“An opportunity to be heard includes the right to present evidence bearing on the issues.”). Only where “no person entitled to notice requests an adversarial preliminary hearing” is the court’s review limited to the traditional probable cause determination where the court “review[s] the complaint and the verified supporting affidavit to determine whether there was probable cause for the seizure.” § 982.704(5)(b), Fla. Stat. (2013).

The evidence Sanchez sought to offer— his statements regarding his profession, his gambling receipts, the racing programs, and the testimony of the Kennel Club employee — falls within the scope of a preliminary adversarial hearing. As touched upon previously, the probable cause inquiry focuses on whether “the property subject to forfeiture was used in violation of the Forfeiture Act.” Velez, 934 So.2d at 1164. This is distinct from the issue of the claimant’s knowledge, which relates to the seizing agency’s required showing at the forfeiture stage “that the [claimant] either knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity.” § 932.703(6)(a), Fla. Stat. (2013). Sanchez’s evidence went to the heart of the probable cause determination — whether the currency seized was the product of illegal gambling. At the adversarial preliminary hearing, the City’s sole evidence of the currency’s illegality was Sanchez’s purported admission to the officers that the cash came from winnings at a residential poker game. To that end, Sanchez’s employment, his gambling receipts, the programs, and the testimony of the Kennel Club employee were all pertinent to demonstrating the actual source of the money and whether the currency was the product of illegality at all.

We therefore reverse and remand for an adversarial probable cause hearing consistent with this opinion.

MAY and CIKLIN, JJ., concur.

      . Because this order was later withdrawn, we do not address this curious order. It would seem that the Act and Supreme Court precedent entitle an interested party to a timely ruling on the issue of probable cause.


author: PER CURIAM.

text:
    Gregory John LANDRUM, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2776.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, 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.
   ON MOTION FOR REHEARING

PER CURIAM.

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

Gregory Landrum appeals his conviction for possession of a firearm by a convicted felon. Landrum argues that because the state failed to produce either the “whole record” of his prior conviction or a certified copy of the prior felony judgment, an indispensable element of the crime was not proven. We agree and reverse.

The appellate analysis required in this matter is straightforward. At trial and over the objection of the defendant, the state attempted to prove Landrum’s prior felony conviction with copies of several different sets of Landrum’s fingerprints, including one set indicating that Landrum was “adjudicated guilty,” and a redacted photograph identification card from the Department of Corrections. After the state rested, Landrum moved for judgment of acquittal on the ground that the state did not introduce competent evidence of his felony conviction. The trial court denied the motion and ultimately Landrum was found and adjudicated guilty and sentenced to prison.

The essence of the state’s prosecution — and indeed the central element that must be proven before a defendant may be found guilty of this crime — is the issue of a prior felony conviction. See § 790.23, Fla. Stat. (2011). And, most important to our holding in this case, the number of possible methods available to the state to offer this proof at trial is strictly limited to two: (1) admission of the “whole record” pertaining to the previous felony conviction, Warren v. State, 74 So.2d 688 (Fla.1954), or (2) a certified copy of the judgment for the prior conviction in substantial conformance with Florida Rule of Criminal Procedure 3.986, Keith v. State, 844 So.2d 715 (Fla. 2d DCA 2003).

Prior to the creation of rule 3.986, the state was required to submit the “whole record” of the prior conviction to prove its existence. See Warren, 74 So.2d at 688. The “whole record” includes the ' “information, the plea of the accused, the jurisdiction of the-court, the verdict of the jury, and the judgment and sentence of the court.” Id.

The second viable method of proof of a prior conviction exists through rule 3.986 as recognized in Keith. 844 So.2d at 716. Promulgated by the Florida Supreme Court in 1975, rule 3.986 sets forth standard forms for judgments and sentences to be used by all courts. See In re Fla. Rules of Criminal Procedure, 315 So.2,d 172 (Fla.1975). A judgment and sentence in conformance with rule 3.986 includes a defendant’s fingerprints as well as information about each essential component of the “whole record” delineated in Warren. Keith, 844 So.2d at 716.

While Warren’s “whole record” requirement for proof of a prior conviction remains the law of this state, the requirement “is satisfied by a certified copy of a judgment and sentence in conformance with rule 3.986.” See id. (citation omitted).

fingerprints and photograph identification card presented by the state at trial did not set forth the “whole record” and the state did not avail itself of the abbreviated method permitted by rule 3.986. Because the state failed to prove the heart of its case by either of the two approved methods, the defendant was not lawfully convicted of the charged crime. Therefore, we reverse and remand with instructions that Landrum be discharged.

In light of our holding, the other issues before us are moot.

Reversed and remanded with instructions.

MAY, CIKLIN and LEVINE, JJ., concur.

      . In passing, we note that the legislature has expressly provided that the records of the Department of Highway Safety and Motor Vehicles can be used to show that a defendant has been previously convicted of the offense of driving under the influence. § 316.193(12), Fla. Stat. (2014). That alternate method of proof, however, is obviously not applicable in the instant case.


author: SCHER, ROSEMARIE, Associate Judge.

text:
    Gloria Ann STRATTON, Appellant, v. PORT ST. LUCIE MGT, LLC d/b/a Emerald Health Care Center, Appellee.
    No. 4D13-1778.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.
    Rehearing Denied Oct. 17, 2014.

      Jeffrey C. Fulford of Jeffrey C. Fulford, P.A., Stuart, for appellant.
    James H. Wyman of Hinshaw & Culbertson LLP, Coral Gables, for appellee.
    Michael L. Forte of Rumberger, Kirk & Caldwell, P.A., Tampa, for Amicus Curiae Florida Defense Lawyers Association.
   SCHER, ROSEMARIE, Associate Judge.

Gloria Ann Stratton appeals the trial court’s order denying her attorney’s fees and costs under an “Admission Agreement” entered into with Port St. Lucie Mgt, LLC d/b/a Emerald Health Care Center (“Emerald”), a nursing home facility. Stratton asserts that her claim for attorney’s fees and costs arises out of a contract allowing fees to Emerald if Emerald prevailed in the same underlying action; accordingly, as the prevailing party, under section 57.105(7), Florida Statutes (2008), she is entitled to fees. Under the expansive and unique attorney’s fee provision within this contractual agreement between the parties, as well as the course of the arbitration proceedings, we agree and reverse.

Under the Admission Agreement, Stratton consented to care and treatment at Emerald’s facility; Emerald was obligated to use reasonable care toward Strat-ton, “the Resident.” Additionally, the agreement contained an arbitration provision and attorney’s fee provision allowing Emerald to recover attorney’s fees and costs for any legal action or proceeding if Emerald was found to have committed “no wrongdoing.” The parties proceeded to arbitration with a stipulation that “wrongdoing” meant negligence. Although not required under the arbitration rules, Strat-ton filed an amended petition including a claim for attorney’s fees and costs under the agreement. Implicit within the parties’ stipulation on the meaning of wrongdoing was the understanding that Emerald would be moving for fees if the arbitrators determined Emerald was without wrongdoing. Based on this understanding, Stratton also operated under the assumption that if Emerald was determined to be responsible for wrongdoing and responsible for her damages, she, too, would be entitled to reciprocal fees.

In Florida Hurricane Protection and Awning, Inc. v. Pastina, 43 So.3d 893, 895 (Fla. 4th DCA 2010), this court reiterated that section 57.105(7) is to be strictly construed. The contractual provision between the parties allowing fees is the key to determining whether the party claiming fees has an enforceable right under section 57.105(7); the parties are entitled to no more than allowable under the contract and, correspondingly, no less:

The statute is designed to even the playing field, not expand it beyond the terms of the agreement.... In Inland Dredging Co. v. The Panama City Port Authority, 406 F.Supp.2d 1277 (N.D.Fla.2005), Judge Hinkle explained: “[T]he purpose of the statute is simply to ensure that each party gets what it gives.... Under [section] 57.105(7), plaintiff gets what it gave: the ability to recover fees in litigation arising under these contractual provisions.” Id. at 1283. The statute renders “bilateral a unilateral contractual clause for prevailing party attorney’s fees.” Indem. Ins. Co. of N. Am. v. Chambers, 732 So.2d 1141,1143 (Fla. 4th DCA 1999); see also Holiday Square Owners Ass’n, Inc. v. Tsetsenis, 820 So.2d 450, 453 (Fla. 5th DCA 2002) (holding fee provision becomes bilateral under section 57.105(7), “even though solely in a defensive posture.”)
Simply put, the statute means what it says and says what it means; nothing more, nothing less. Our court and others have consistently read the statute in the same way.

Id.

In this case, the non-drafting party is enforcing the same type of finding in the same type of action that would have allowed attorney’s fees to Emerald. Because the expansive wording of the provision at issue would have allowed Emerald to recover attorney’s fees if the arbitrators’ findings had been in its favor, under the agreement, Stratton also is entitled to her attorney’s fees and costs.

Reversed.

GROSS and MAY, JJ., concur.


text:
    Carl D. LAMBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1305.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.

      Carl D. Lambert, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, Melynda L. Melear, Assistant Attorney General, West Palm Beach, for ap-pellee.
   On Confession of Error

PER CURIAM.

We accept the State’s confession of error in this appeal and reverse the order denying appellant’s jail credit motion. We remand for further proceedings consistent with Florida Rule of Criminal Procedure 3.801.

Reversed and remanded.

MAY, LEVINE and FORST, JJ., concur.


text:
    Henry PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-647.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.
    Henry Paul, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Angela E. Noble, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s order denying appellant’s rule 3.800(a) motion to correct illegal sentence. Appellant claims that he received consecutive youthful offender sentences which exceed the six-year statutory cap and which are illegal under Allen v. State, 526 So.2d 69 (Fla.1988). He also claims that his written sentence is inconsistent with the court’s oral pronouncement in some unspecified way. We conclude that “review of the record establishes that the defendant did not satisfy the burden of showing entitlement to relief on the face of the record.” Johnson v. State, 60 So.3d 1045, 1051 n. 2 (Fla.2011); see also Williams v. State, 957 So.2d 600, 604 (Fla.2007) (holding that the movant has the burden of demonstrating an entitlement to relief in a rule 3.800(a) proceeding).

Affirmance is without prejudice for appellant to file a sworn and sufficient rule 3.850 motion within the time remaining under the rule or to file a' rule 3.800(a) motion that demonstrates an entitlement to relief from the face of the record.

WARNER, MAY and FORST, JJ., concur.


text:
    James Clifford JERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-853.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.
    James Clifford Jerry, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the portion of this appeal challenging the trial court’s order dated January 30, 2014. The remainder of the appeal is addressed in an order to follow.

Affirmed.

DAMOORGIAN, C.J., CIKLIN and Levine, JJ., concur.


author: CONNER, J.

text:
    Kenneth Bernard LAWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1252.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.

      Philip J. Massa of Philip J. Massa, P.A., West Palm Beach, (withdrawn as counsel after filing brief) and Ronald Hurst, Greenacres, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Kenneth Bernard Laws appeals his judgment and sentence after a jury found him guilty of first-degree murder, robbery with a firearm while masked, conspiracy to commit robbery with a firearm while masked, and three counts of false imprisonment with a firearm. The charges arose from a robbery resulting in the shooting death of the store owner. Laws argues that the trial court erred by (1) excluding photographs and testimony of a defense witness, (2) giving the standard jury instruction on principals when conspiracy was one of the charged crimes, and (3) denying his motion for judgment of acquittal as to one of the counts of false imprisonment. We affirm, and write to discuss only the second issue.

Laws asserts in his brief that “[i]t is error to instruct a jury on the Principal theory on a conspiracy charge.” He cites Evans v. State, 985 So.2d 1105 (Fla. 3d DCA 2008), in support of this assertion.

In Evans, the Third District determined that Evans’s conviction for conspiracy had to be vacated for a new trial because the standard instruction on principals (“the principals instruction”) was given to the jury. However, the procedural posture of the issue presented in Evans is completely different from the procedural posture of the issue in this case.

In Evans, Evans was convicted of three counts of substantive offenses and six counts of conspiracy. Id. at 1106. At the charge conference, the trial court proposed to give the principals instruction. Evans objected on the basis that it was legally impossible to be a principal to a conspiracy, arguing “either you are a member or not.” Id. More importantly, Evans specifically asked that the trial court explain to the jury that the principals instruction applied to the substantive offense and not the conspiracy offenses. Id. The State contended the principals instruction was sufficient without any cautionary explanation and the trial court agreed. Id.

Relying on several opinions rendered by all of the district courts in Florida which hold that a person aiding and abetting another in the commission of a crime is insufficient to convict either person of a conspiracy to commit the substantive offense, the Third District concluded “[t]rial counsel’s objection to the principal instruction was well taken” and reversed the convictions for conspiracy, remanding for a new trial. Id. Although not explicitly stated, we construe Evans to hold it is reversible error not to grant a request for a limiting instruction regarding the principals instruction when the defendant is charged with substantive charges to which the instruction is applicable, as well as conspiracy. We do not construe Evans to hold that the principals instruction is inap•propriate whenever conspiracy is tried along with substantive offenses.

In this case, Laws was charged with five substantive offenses and one conspiracy offense. During the charge conference, prior to discussing either the conspiracy instruction or the principals instruction, an issue came up as to the wording of the instructions for the murder and robbery charges. A draft of proposed instructions was prepared using the following language: “Kenneth Bernard Laws, or others with whom Kenneth Barnard Laws was acting as a principal.” Laws objected to the wording stating: “No, I would ask that that language be stricken. They’ll be instructed on principals later on.” The trial court sustained the objection and struck the words “or others with whom Kenneth Barnard Laws was acting as a principal” from all the substantive offenses. After discussing the instructions for murder and robbery, the trial court next discussed the draft instructions for conspiracy:

COURT: All right. So criminal conspiracy, no lessers, right? Guilty, not guilty, here’s the instruction, standard; everybody all right with that?
DEFENSE: Yes.

Next, the court discussed the draft instructions for the three counts of false imprisonment. The next instruction in the sequence was the principals instruction, during which the following exchange occurred:

■ COURT: All right. Principals, standard instruction, defendant objects to the law of principals?
DEFENSE: Yes.
COURT: Overruled....

At no point during the charge conference, particularly when the conspiracy and principal instructions were discussed, did Laws request .an instruction specifically advising the jury that the principals instruction did not apply to the conspiracy charge. More importantly, Laws objected to the language “Kenneth Bernard Laws, or others with whom Kenneth Barnard Laws was acting as a principal” in regards to the substantive offenses. That language would not have been used in the instruction on conspiracy. If the language had remained for the substantive offenses, the structure of the instructions would have made it obvious that the principals instruction applied to the substantive offenses and not the conspiracy offense. By asking the trial court to strike that language from the substantive instructions and failing to ask for a limiting instruction, Laws invited the error he complains about on appeal. Procedurally, Laws cannot seek a reversal. See Czubak v. State, 570 So.2d 925, 928 (Fla.1990) (“Under the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.” (citations omitted)).

Affirmed.

GROSS and GERBER, JJ., concur.

      . Evans was a post-conviction relief proceeding, alleging ineffective assistance of appellate counsel for failure to raise on appeal the objection Evans raised at trial to the principals instruction. However, it is not the post-conviction proceeding context which makes the procedural posture of Evans different from this case. It is the manner in which the issue was raised before the trial court that makes the procedural posture different.


text:
    Sabir Abdul-Haqq YASIR, Appellant, v. Howard C. FORMAN, Clerk of Courts, Appellee.
    No. 4D13-3336.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2014.
    Sabir Abdul-Haqq Yasir, Lake City, pro se.
    No appearance for appellee.
   FORST, J.

The petitioner appeals the trial court’s order denying his motion to tax costs. As neither the order nor the record explains the trial court’s rationale in denying the motion, we reverse and remand.

Background

The petitioner — who is incarcerated— sent two public records requests to the Broward County Clerk’s office, seeking copies of documents from the court file in his criminal case. The first request was dated September 3, 2012, and the second was dated October 1, 2012. Seemingly receiving no response from the Clerk’s office, the petitioner sought a judicial means of compelling the requested documents. He filed a petition for writ of mandamus on December 26, 2012, which was granted by the trial court. With this mandate from the court, the Clerk’s office finally complied with the petitioner’s records requests. In doing so, the petitioner incurred costs for copies and mailing.

The petitioner then filed a motion to tax costs. The trial court summarily denied this motion. The petitioner now appeals the denial of his motion to tax costs.

Trial Court failed to make sufficient findings to support its summary denial of the motion.

Mandamus is an appropriate means of compelling compliance with the Public Records Act. Weeks v. Golden, 764 So.2d 633, 634 (Fla. 1st DCA 2000). A party is entitled to “the reasonable costs of enforcement” under section 119.12, Florida Statutes (2013), when “such agency unlawfully refused to permit a public record to be inspected or copied[.]” “Unlawful refusal under section 119.12 includes not only affirmative refusal to produce records, but also unjustified delay in producing them.” Lilker v. Suwannee Valley Transit Auth., 133 So.3d 654, 655-56 (Fla. 1st DCA 2014); see also Office of State Attorney for Thirteenth Judicial Circuit of Fla. v. Gonzalez, 953 So.2d 759, 760 (Fla. 2d DCA 2007); Barfield v. Town of Eatonville, 675 So.2d 223, 224 (Fla. 5th DCA 1996); Brunson v. Dade Cnty. Sch. Bd., 525 So.2d 933 (Fla. 3d DCA 1988).

In this case, the petitioner sent two public records requests before having to resort to the courts in order to compel compliance with his requests. Nearly four months after the petitioner sent his first request, and with an order from the court, the Clerk’s office finally surrendered the requested documents. The order denying the petitioner’s motion to tax costs does not address this delay. Thus, we are unable to surmise whether the Clerk’s refusal/delay was justified. If not, then the petitioner would be entitled to his costs pursuant to section 119.12. Lilker, 133 So.3d at 655-56.

Although section 119.12 provides a basis for costs associated with enforcing compliance with the Public Records Act, some postage, envelope and copying costs can also be awarded to a party who is incarcerated so long as those costs are reasonable. Weeks v. Golden, 846 So.2d 1247, 1249-50 (Fla. 1st DCA 2003). Accordingly, we reverse the order denying the petitioner’s motion to tax costs and remand the case for further proceedings consistent with this opinion.

Reversed and Remanded.

STEVENSON and CIKLIN, JJ., concur.