author: NORTHCUTT, Judge.

text:
    Heath LANE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2656.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2014.

      Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Heath Lane appeals following a withheld adjudication for possession of hydroco-done. He argues, and we agree, that the circuit court erred in denying his motion to suppress the contraband. Accordingly, we reverse.

After completing an unrelated traffic stop, a sheriffs deputy began a consensual encounter with Lane, an eighteen-year-old high school student who was walking along a sidewalk nearby. The deputy turned off the lights on his patrol car and asked to speak with Lane. Lane assented, and he also agreed to show the deputy his identification. He handed his identification card and wallet to the deputy, who set them on the hood of the patrol car. The deputy then asked if he could search Lane for weapons. He later testified that he generally asks to conduct a search “as an officer safety measure ... when speaking with people in street encounters.” Lane permitted the search, during which the deputy felt and then retrieved some loose pills in Lane’s pants pocket. Lane said that a friend had given him the pills when he complained of a headache. The four pills were hydrocodone, for which Lane had no prescription.

At the suppression hearing, Lane testified that he did not feel free to leave during the encounter and that he did not recover his identification until after his release from jail. He argued that the consensual encounter became an illegal detention when the deputy asked to search him without first returning his identification and wallet. The circuit court disagreed. In its order denying the motion to suppress, the court correctly noted that law enforcement officers are not required to tell people they are free to leave during consensual encounters. Lane then entered a plea, reserving the dispositive suppression issue for appeal.

The Fourth Amendment requires the police to reasonably suspect wrongdoing before making a warrantless seizure. Golphin v. State, 945 So.2d 1174, 1180 (Fla.2006). But not every encounter is a seizure. Id. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a seizure has occurred.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (internal quotation marks omitted)). To determine whether a reasonable person would think he or she was free to leave an encounter with police, we consider the totality of the circumstances. We give deference to the lower court’s findings of fact, but we review its legal conclusions de novo. Golphin, 945 So.2d at 1182; Horne v. State, 113 So.3d 158,159-60 (Fla. 2d DCA 2013)..

Both the Florida Supreme- Court and the United States Supreme Court have recognized the potential for coercion when an officer retains a person’s identification or travel documents while asking for consent to search. “While a noncompulsory request' for an individual’s identification has been unlikely to implicate the Fourth Amendment in isolation, the retention of identification during the course of further interrogation or search certainly factors into whether a seizure has occurred.” Golphin, 945 So.2d at 1185 (citing Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion), which found that a consent to search had been negated by a seizure when officers retained a traveler’s identification and ticket without informing him that he was free to depart).

Home involved facts similar to those in this case. Brenda Horne was walking alongside a road when a deputy stopped his patrol car to speak with her. 113 So.3d at 159. Horne voluntarily gave the deputy her driver’s license, and the deputy retained the. license when he asked for permission to search her. After Horne submitted to the search, the deputy discovered two pills for which she had no prescription. In a suppression motion, Horne argued that her consent to the search was obtained during an illegal detention and that it was, therefore, not freely given. The circuit court denied the motion to suppress, but this court reversed.

In that case, we agreed with the circuit court’s conclusion that the initial encounter, when Horne gave the deputy her driver’s license, was consensual. Id. at 160. But the dispositive point was the nature of the encounter at the time Horne was asked to consent to the search. Id. (“[T]he nature of an encounter may change at any time during its course.”). This court held that the consensual encounter became a detention when the deputy asked for permission to search before .first returning Horne’s license:

We conclude that the trial court’s factual findings are supported by competent, substantial evidence but that the trial court erred in applying the law to the facts because under our de novo review, it afforded too much weight to the preliminary facts leading up to the warrants check and did not afford enough weight to those additional circumstances central to when the officer was actually requesting Horne’s consent. Under the totality of the instant circumstances, the officer’s asking to search Home without returning her license outweighs the fact that she initially voluntarily spoke with the officer and consented to the warrants check. When all of the facts as found by the trial court are considered and afforded the appropriate weight under the applicable case law, it was error to conclude that a reasonable person in Horne’s circumstances would think she was free to leave or that she was not detained as a matter of law.

Id. at 161-62 (emphasis added) (footnote omitted).

The same is true in this ease, and for the same reasons we conclude that Lane’s consent to the search of his person was not shown to be voluntary. See also Brye v. State, 927 So.2d 78, 82 (Fla. 1st DCA 2006) (holding that when deputy retained defendant’s identification after warrants check, “a reasonable person would not have felt that he or she was free to leave” and defendant’s subsequent consent to search was not shown to be voluntary). When reaching this conclusion, we have considered the totality of the circumstances, including Lane’s youth, the deputy’s retention of Lane’s wallet and identification, and the fact that Lane was not told of his right to refuse a search. See Horne, 113 So.3d at 161 n. 2 (explaining that heavy consideration was given to officer’s failure to advise that Horne was free to leave instead of consenting to search); cf. State v. Milwood, 430 So.2d 563, 565 (Fla. 3d DCA 1983) (reversing suppression of evidence and finding voluntary consent when “the defendant’s airline ticket and identification were returned to him prior to his giving consent to the search and that, additionally, the defendant was advised of his right to refuse consent”).

We reverse and remand with directions to discharge Lane.

VILLANTI and WALLACE, JJ., Concur.


source: Caselaw Access Project

license: Public Domain

text:
    John J. Benz and Tricia McLAGAN, Appellants, v. FEDERAL HOME LOAN MORTGAGE CORP., Appellee.
    No. 2D13-974.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2014.

      C. Michael Duncan of Duncan Law Offices, P.A., Tavares, for Appellants.
    Edward J. O’Sheehan of Shutts & Bowen, LLP, Fort Lauderdale, for Appellee.
   NORTHCUTT, Judge.

John Benz and Tricia McLagan, husband and wife, appeal a final summary foreclosure judgment in favor of Federal Home Loan Mortgage Corp. (Freddie Mac). We reverse because the record fails to resolve material issues of fact regarding Freddie Mac’s standing.

Freddie Mac filed the mortgage foreclosure action against Benz, McLagan, and others on March 11, 2009. The complaint alleged that the note and mortgage were recorded in January 2005 and that the mortgage was subsequently assigned to Freddie Mac “by virtue of an assignment to be recorded.” The complaint attached a copy of the mortgage only and included a count to establish a lost, destroyed, or stolen note and mortgage. National City Mortgage Co. was the lender identified in the mortgage; Benz and McLagan were identified as the borrowers. In a motion to dismiss, the borrowers asserted, in part, that Freddie Mac was not the mortgagee.

Freddie Mac eventually filed an amended complaint dropping the count to establish a lost note and mortgage and alleging that the mortgage was assigned to it “by virtue of an assignment recorded on August 31, 2009.” The attached assignment reflected that it was executed on August 5, 2009, after the foreclosure action was filed, and recorded on August 31, 2009. The assignment stated that the mortgage was assigned to Freddie Mac c/o National City Bank “as of the 3RD day of March, 2009,” eight days before the foreclosure action was filed. It was executed by a vice president of National City Bank, successor by merger to National City Mortgage Co. The amended complaint attached a copy of the note this time, but not the mortgage. The note bore an undated endorsement in blank by National City Mortgage Co.

Freddie Mac and the borrowers ultimately filed competing motions for summary judgment. The borrowers’ motion attacked Freddie Mac’s standing at the time the original complaint was filed. After a hearing, the circuit court granted summary judgment for Freddie Mac, specifically rejecting the borrowers’ challenge to standing.

Summary judgment is governed by Florida Rule of Civil Procedure 1.510, which provides in part that judgment “shall be rendered forthwith if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). We review summary judgments de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126,130 (Fla.2000).

The borrowers argue that the record does not conclusively show that Freddie Mac had standing at the time it filed the original complaint on March 11, 2009. Freddie Mac first responds that the issue is not preserved because the borrowers did not raise lack of standing as an affirmative defense. While that may have been preferable, the issue was nevertheless raised before the circuit court. As this court has explained, the issue of standing may be raised by motion rather than by pleading an affirmative defense.

[W]e reject the University’s argument that because Maynard did not raise standing as an affirmative defense prior to trial, he waived the issue.... [T]he pertinent question is whether the issue was raised at the trial court, not how it was raised .... [Standing may not be raised for the first time on appeal; however, it does not necessarily require that standing be raised only by means of an affirmative defense.

Maynard v. Fla. Bd. of Educ. ex rel. Univ. of S. Fla., 998 So.2d 1201, 1206 (Fla. 2d DCA 2009) (citations omitted).

The borrowers’ answer denied the allegations of the amended complaint that pertained to standing, they raised lack of standing in a motion for summary judgment, and they argued lack of standing in a memorandum filed in opposition to Freddie Mac’s motion for summary judgment. Thus, the standing issue was argued to and directly rejected by the circuit court, and we conclude that it was preserved for appeal.

On the merits, we reverse. Freddie Mac filed a note endorsed in blank by the original lender, National City Mortgage Co. But the endorsement was undated, and the note was not filed with the original complaint. Freddie Mac points out that National City Mortgage merged out of existence in 2008; the endorsement necessarily predated that event. But this does not mean that Freddie Mac obtained the note in 2008. Nothing in the record shows when Freddie Mac obtained the note; specifically, the record does not establish that it held the note when it filed the foreclosure action in March 2009.

Further, the document assigning the mortgage to Freddie Mac was executed and recorded several months after the foreclosure action commenced, although it recited an effective date just prior to the date the complaint was filed. The Fourth District has explained that two competing inferences may be drawn from an assignment that prescribes an earlier effective date: that the subject of the assignment was equitably transferred on the stated effective date, or that the parties to the transfer “were attempting to backdate an event to their benefit.” Vidal v. Liquidation Props., Inc., 104 So.3d 1274, 1277 (Fla. 4th DCA 2013) (reversing summary judgment of foreclosure because the record did not reflect as a matter of law the plaintiffs standing on the date the complaint was filed).

The record in this case fails to demonstrate Freddie Mac’s standing on the date the complaint was filed. • Accordingly, we reverse the summary judgment. See Focht v. Wells Fargo Bank, N.A., 124 So.3d 308 (Fla. 2d DCA 2013) (reversing summary judgment of foreclosure when there was a genuine issue of material fact regarding the bank’s standing at the time the complaint was filed; standing not established by either bank’s subsequent filing of assignment dated after complaint filed or bank’s filing of note endorsed in blank but undated and not submitted until several months after complaint was filed). Our decision renders moot the second issue on appeal.

Reversed and remanded for further proceedings.

CASANUEVA and WALLACE, JJ„ Concur.


author: ROWE, J.

text:
    DESERT PALACE, INC., Appellant, v. Robert G. WILEY, Appellee.
    No. 1D13-4113.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.

      Barry W. Kaufman of The Law Office of Barry W. Kaufman, P.L., Jacksonville, for Appellant.
    Alfred L. Frith and John S. Penton, Jr. of The Frith Law Group, P.A., Orlando, for Appellee.
   ROWE, J.

The appellant, Desert Palace, Inc., appeals an order dismissing its action on a judgment against Robert G. Wiley. The trial court dismissed the action based on its determination that the statute of limitations had run. For the reasons that follow, we reverse.

On October 17, 1991, Desert Palace, Inc., obtained a judgment in Clark County, Nevada against Wiley. On November 9, 2006, Desert Palace domesticated the Nevada judgment under sections 55.501-509, Florida Statutes (2006), Florida’s Enforcement of Foreign Judgments Act (FEFJA), in Baker County, Florida, where Wiley then resided.

On October 12, 2011, Desert Palace filed an amended complaint against Wiley in Baker County Circuit Court, seeking a judgment against Wiley for damages plus accrued interest on the domesticated judgment. In response, Wiley filed a motion for judgment on the pleadings or to dismiss Desert Palace’s amended complaint, asserting that the statute of limitations had run. Desert Palace opposed the motion asserting that its enforcement action was properly brought within the twenty-year statute of limitations, which would not have expired until October 17, 2011.

On October 18, 2013, after hearing from both parties, the circuit court issued a final order granting Wiley’s motion to dismiss Desert Palace’s action on the October 17, 1991, judgment. The court determined that the twenty-year statute of limitations had run on the action. That order is being appealed here.

Analysis

Whether a cause of action should be dismissed is a question of law, which is reviewed de novo. City of Gainesville v. State of Florida, Dept. of Transp., 778 So.2d 519, 522 (Fla. 1st DCA 2001). Every judgment gives rise to a common law cause of action to enforce it, called an action on a judgment. Burshan v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 805 So.2d 835, 840-41 (Fla. 4th DCA 2001); see also Caiazza v. Tuff Realty Corp., 805 So.2d 29, 30-31 (Fla. 5th DCA 2001). A judgment, whether domestic or foreign, constitutes a cause of action upon which a new and independent action may be based. Crane v. Nuta, 157 Fla. 613, 26 So.2d 670, 671 (1946). The main purpose of an action on a judgment is to obtain a new judgment which will facilitate the ultimate goal of securing satisfaction of the original cause of action. Adams v. Adams, 691 So.2d 10, 11 (Fla. 4th DCA 1997) (“[I]f the statute of limitation period has almost run on the judgment ... the judgment creditor can start the limitation period anew by bringing an action upon the judgment and obtaining a new judgment.”). Once a judgment has been domesticated pursuant to FEFJA it has the same effect and is subject to the same legal and equitable defenses and rules of procedure as a Florida judgment. See Michael v. Valley Truck ing Co., Inc., 832 So.2d 213, 217 (Fla. 4th DCA 2002).

Under section 95.11(1), Florida Statutes, the statute of limitations applicable to an action on a judgment in Florida is twenty years. In Nadd v. Le Credit Lyonnais, 804 So.2d 1226 (Fla.2001), the Florida Supreme Court addressed the statute of limitations applicable to a foreign judgment under a similar statutory provision, the Uniform Out-of-Country Foreign Money-Judgment Recognition Act (UFMJRA). There, the court held that once an out-of-country judgment is domesticated in a Florida court, it becomes enforceable for a period of twenty years from the date of the judgment pursuant to section 95.11(1). Id. at 1233-34.

The Florida Supreme Court’s holding in Nadd has been extended to claims under FEFJA by other Florida courts. In Goodwin, a Florida bankruptcy court held that a bankruptcy claimant’s judgment which had been domesticated under FEFJA was subject to the twenty-year limitations’ period of section 95.11(1), and the judgment would be enforced in the same manner as any judgment entered in a Florida state court. In re Goodwin, 325 B.R. 328, 333-34 (Bankr.M.D.Fla.2005). Likewise, in 615 West 44th St. Associates v. Koch, 2014 WL 1652035 (S.D.Fla. Apr. 24, 2014), the court held that in Florida a foreign judgment domesticated under FEFJA is subject to the twenty-year statute of limitations.

We agree with the reasoning in these cases and hold that the twenty-year limitations’ period in this case would not have run until October 17, 2011, and Desert Palace timely filed its amended complaint on October 12, 2011.

Because Desert Palace filed a new action on a judgment before the twenty-year statute of limitations ran on the October 17,1991, judgment, the trial court erred by granting Wiley’s motion to dismiss. We, therefore, REVERSE and REMAND for the trial court to reinstate Desert Palace’s amended complaint.

WOLF and ROBERTS, JJ., concur.

      .Wiley argues that section 95.11 (2)(a), Florida Statutes, which subjects a foreign judgment to a five-year statute of limitations, applies to this case. We disagree. Section 95.11(2)(a) does not apply to a judgment domesticated under FEFJA. New York State Com'r of Taxation and Finance v. Friona, 902 So.2d 864, 866 (Fla. 4th DCA 2005). Simply recording a judgment pursuant to FEFJA is not viewed as an independent action on a judgment, which would fall under the five-year statute of limitations under section 95.1 l(2)(a), Florida Statutes. Michael, 832 So.2d at 217.

      . Sections 55.601-607, Florida Statutes.

      . Whether or not the statute of limitations on a judgment domesticated under FEFJA runs from the date of the original judgment or from the date the judgment was domesticated is not at issue in this case.


author: WOLF, J.

text:
    Bryan P. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4213.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.

      Bryan P. Taylor, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He alleged his sentence was illegal because the oral pronouncement of his sentence for escape included credit for time he served awaiting the escape trial, which is not reflected in the written sentence. The postconviction court did not reach the issue of whether appellant had been orally awarded the credit which he seeks. Instead, the post-conviction court held that as a matter of law, the time served awaiting a trial for escape is a mandatory continuation of the original sentence that the defendant was serving when he or she escaped. The court concluded that if appellant was entitled to credit for time served against his original sentence, appellant must first exhaust his administrative remedies with the Department of Corrections. We determine this was error. We remand for the court to address appellant’s claim pursuant to Williams v. State, 957 So.2d 600 (Fla.2007).

1. Postconviction Court’s Ruling

The postconviction court is correct that a defendant is not entitled to credit against an escape sentence for time served awaiting the escape trial. See Milne v. State, 807 So.2d 725, 726 (Fla. 4th DCA 2002). However, here appellant did not allege that he was entitled to the credit. He alleged the trial court had already awarded him that credit during the oral pronouncement of his sentence. “[A] court’s oral pronouncement of a sentence controls over the written sentencing document.” Williams, 957 So.2d at 603.

Where a trial court errs in granting a defendant too much credit for time served, that credit cannot be rescinded outside of the 60-day period for modifying a sentence provided in Florida Rule of Criminal Procedure 3.800(c), even if that credit was improperly awarded. See King v. State, 913 So.2d 758, 760 (Fla. 2d DCA 2005) (finding the trial court erred in granting the State’s rule 3.800(a) motion to correct an illegal sentence by reducing the amount of jail credit awarded, finding the improperly awarded credit did not render the sentence illegal, and reducing the credit constituted an enhancement on the sentence that violated double jeopardy); Wheeler v. State, 880 So.2d 1260 (Fla. 1st DCA 2004) (granting a rule 3.800(a) motion, finding a sentence was rendered illegal when the trial court reduced previously awarded jail credit, even though that credit was improperly awarded). Here, the postconviction court erred in denying appellant’s motion as a matter of law. We need, however, to address how appellant’s claim will be handled on remand.

2. Procedure for Addressing Jail Credit Claim

There has been a great deal of confusion concerning how to address assertions regarding jail credit filed pursuant to rule 3.800(a). All claims like the ones asserted in this case, filed after July 1, 2013, will be governed by Florida Rule of Criminal Procedure 3.801. That rule will most likely resolve most of the chaos in this area. It would serve no benefit to outline the diverse opinions from the various district courts concerning this issue, because the supreme court has addressed how to handle this particular issue for claims filed prior to July 1, 2013.

In Williams v. State, 957 So.2d 600 (Fla.2007), the supreme court laid out a procedure for handling claims filed pursuant to rule 3.800(a) alleging that the oral pronouncement of sentence concerning jail credit conflicted with the written judgment and sentence. The court stated:

[Sjince we have held that the oral pronouncement is, in effect, the controlling disposition, we also conclude that the oral imposition of sentence should at all times be considered a necessary part of the official record if a transcript of the sentencing proceeding is in the court file or, alternatively, a petitioner attaches a certified copy of the sentencing transcript to the rule 3.800(a) motion. In this way the burden remains with the petitioner to demonstrate an entitlement to relief on the face of the record. If the sentencing transcript is neither in the file nor attached to the motion, the motion should be denied without prejudice to the filing of an amended motion properly attaching the sentencing transcript.

Id. at 604-05 (emphasis added).

We can find no case which overrules Williams in this limited area. We, therefore, are bound by that decision. Thus, we reverse and remand with instructions that the court address the merits of appellant’s argument following the dictates of Williams v. State, 957 So.2d 600 (Fla. 2007). Specifically, we direct the court to address appellant’s argument on the merits if the pertinent portions of the record, specifically the sentencing transcript, appear in the court file. If the transcript is not in the court file, the motion should be denied without prejudice for appellant to file an amended motion attaching the sentencing transcript.

REVERSED AND REMANDED.

PADOVANO and RAY, JJ., concur.


author: PER CURIAM.

text:
    Roy S. WHITED, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Appellee.
    No. 1D13-4673.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.
    Roy S. Whited, pro se, Appellant.
    Sarah J. Ruraph, General Counsel, Florida Commission on Offender Review, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the circuit court’s order denying in part and dismissing in part his petition for writ of mandamus in which he challenged the Florida Parole Commission’s calculation of his presumptive parole release date. We affirm on all issues but one. We find the circuit court erred in imposing liens on appellant’s inmate trust account for court costs and fees for filing his petition for writ of mandamus and subsequent appeal. See Fla. Parole Comm’n. v. Spaziano, 48 So.3d 714, 724 (Fla.2010); and § 57.085(10), Fla. Stat. Thus, we reverse the circuit court’s orders imposing the liens, and we remand with instructions that the trial court direct that appellant be reimbursed for any funds that were removed from his account. On all other issues, we affirm.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED WITH INSTRUCTIONS.

LEWIS, C.J., WOLF and WETHERELL, JJ., concur.


author: KELLY, Judge.

text:
    Sean McMULLEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4144.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2014.
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   KELLY, Judge.

Sean McMullen appeals from his judgments and sentences for burglary of an unoccupied dwelling, dealing in stolen property, and false information on a pawnbroker form. We affirm his convictions and sentences but remand for correction of a scrivener’s error in Mr. McMullen’s written judgment. See Murphy v. State, 977 So.2d 748 (Fla. 2d DCA 2008) (remanding for correction of a scrivener’s error in the written judgment in an Anders appeal). In count I of case number 12-CF-000201, Mr. McMullen was charged with and entered a guilty plea to burglary of an unoccupied dwelling. The judgment erroneously reflects a conviction for felony battery.

Affirmed; remanded with instructions.

SILBERMAN and VILLANTI, JJ., Concur.

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


author: MORRIS, Judge.

text:
    Robert ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-314.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2014.
    Robert Armstrong, pro se.
   MORRIS, Judge.

Robert Armstrong appeals the postcon-viction court order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We affirm the summary denial of ground two but reverse and remand for the postconviction court to consider ground one of Mr. Armstrong’s motion.

Mr. Armstrong pleaded no contest to attempted capital sexual battery and attempted lewd and lascivious molestation by a person over eighteen years upon a child under the age of twelve. In exchange for his pleas, Mr. Armstrong was sentenced to concurrent terms of twenty-three years’ prison followed by ten years’ sex offender probation on each count. The sentences in this case run concurrently with a five-year sentence imposed in another case.

In ground one of his rule 3.800(a) motion, Mr. Armstrong alleged that his sentences are illegal because they exceed the statutory maximum sentences for his first- and second-degree felony convictions. The postconviction court did not address this claim in its order summarily denying Mr. Armstrong’s motion, so we must reverse and remand the case for the postconviction court to consider the merits of this claim.

We note that Mr. Armstrong’s sentences appear to have been imposed pursuant to a negotiated plea agreement. Therefore, if the postconviction court finds that his sentences are illegal, he may be resentenced within the statutory maximum for each count only with the State’s agreement. See McDuffie v. State, 946 So.2d 99, 100 (Fla. 2d DCA 2006); Lang v. State, 931 So.2d 922, 922 (Fla. 2d DCA 2005). If the State does not agree to such sentences, Mr. Armstrong must be allowed to withdraw his plea. See McDuffie, 946 So.2d at 100; Lang, 931 So.2d at 922.

Affirmed in part, reversed in part, and remanded.

KELLY and BLACK JJ., Concur.


text:
    Terrance Terrell LEE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3894.
    District Court of Appeal of Florida, Fifth District.
    Aug. 22, 2014.
    Robert Wesley, Public Defender, and Daniel S. Spencer, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Terrance Terrell Lee (defendant) petitions this court for a writ of certiorari, alleging that he is entitled to receive a competency hearing under Florida Rule of Criminal Procedure 3.210(b). We grant the writ.

In a prior criminal proceeding, the trial court entered an order adjudicating the defendant incompetent to proceed and committing him to the custody of the Department of Children and Families (DCF). At some point, the defendant was released from DCF’s care, but no determination was made as to whether he continued to be incompetent.

In the instant criminal proceeding, defense counsel filed a “Notice that Defense Counsel has Reasonable Grounds to Believe Defendant is Incompetent to Proceed,” and retained a doctor to perform a confidential mental examination of the defendant. The court held a pre-trial hearing four days later. In an order emanating from that hearing, the trial court recognized that reasonable grounds had been presented to question the defendant’s competency and, therefore, the court appointed two mental health experts to examine him on the issue of his competency. Defense counsel advised the court that, under Florida Rule of Criminal Procedure 3.210(b), the court was required to hold a competency hearing within 20 days. The court disagreed, stating that the rule required a hearing to be “scheduled” within 20 days, but that the court could permissibly cancel the hearing if the court had not yet received the court-appointed experts’ reports.

Multiple competency hearings were thereafter scheduled and cancelled. Because the two court appointed expert witnesses reached contrary conclusions as to whether the defendant was competent, the trial court appointed a third expert, who has now rendered his opinion. Although the trial court has all the necessary information before it in order to hold an eviden-tiary competency hearing, no competency hearing has been held.

Florida Rule of Criminal Procedure 3.210(b) recognizes a defendant’s right to a determination of competency whenever a court or counsel “has a reasonable ground to believe that the defendant is not competent to proceed.” Fla. R. Crim. P. 3.210(b). “Once a trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, it has no choice but to conduct a competency hearing.” Monte v. State, 51 So.3d 1196, 1202 (Fla. 4th DCA 2011); see Mairena v. State, 6 So.3d 80, 85 (Fla. 5th DCA 2009) (stating that a “court must conduct a competency hearing” if it “has reasonable grounds to suggest that a defendant is not mentally competent to proceed”); Carrion v. State, 859 So.2d 563, 565 (Fla. 5th DCA 2003) (“There does not appear to be any discretion on the part of the trial court once it makes the determination that there are reasonable grounds to believe that the defendant is not mentally competent. If the trial court has reasonable grounds to believe that a criminal defendant is not competent to proceed, then the court must conduct a competency hearing.”). The hearing “shall” be set “immediately” and “shall be held no later than 20 days after the date of the filing of the motion” setting forth “a reasonable ground to believe that the defendant is not competent to proceed.” Fla. R. Crim. P. 3.210(b); see Fowler v. State, 255 So.2d 513, 514-15 (Fla.1971) (construing a previous version of rule 3.210, and “attach[ing] prime significance to the words ‘shall’ and ‘immediately’. The mandatory verb ‘shall’ makes it obligatory on the court to fix a time for a hearing if there are reasonable grounds to believe that the defendant is insane. Moreover, the mandatory ‘shall’ is followed by the word ‘immediately’ which lends urgency and significance to the duty of the judge to conduct the required hearing. The framers of the rule ... obviously did not regard lightly the necessity for a hearing.”).

Here, the trial court has three reports opining on the defendant’s competency to proceed, therefore, “it is the trial court’s responsibility, as finder of fact in such proceedings, to resolve the disputed factual issue” and determine his competency. Watts v. State, 593 So.2d 198, 202 (Fla.1992); see Hernandez-Alberto v. State, 889 So.2d 721, 726 (Fla.2004) (“In situations where there is conflicting expert testimony regarding the defendant’s competency, it is the trial court’s responsibility to consider all the evidence relevant to competency and resolve the factual dispute.”).

Accordingly, the defendant’s petition for writ of certiorari is granted, and the trial court is directed to hold a competency hearing forthwith.

PETITION GRANTED; CAUSE REMANDED.

TORPY, CJ., PALMER and LAMBERT, JJ., concur.

      . Rule 3.210(b) provides, in relevant part:
      Rule 3.210. Incompetence to Proceed: Procedure for Raising the issue

      lb) If, at any material stage of a criminal proceeding, the court of its own motion, or on motion of counsel for the defendant or for the state, has reasonable ground to believe that the defendant is not mentally competent to proceed, the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition, which shall be held no later than 20 days after the date of the filing of the motion, and may order the defendant to be examined by no more than 3 experts, as needed, prior to the date of the hearing.


text:
    Joshua Tyler MUNN, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D14-1936.
    District Court of Appeal of Florida, First District.
    Aug. 25, 2014.

      Joshua Tyler Munn, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005); Kemp v. McDonough, 955 So.2d 635, 637 (Fla. 1st DCA 2007).

LEWIS, C. J., BENTON and RAY, JJ., concur.


text:
    Kahlifi McGEE, Husband, Appellant, v. Tiffany McGEE, Wife, Appellee.
    No. 1D13-5507.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2014.

      Adam R. Cowhey of Adam R. Cowhey, P.A, Tallahassee, for Appellant.
    Anthony M. Genova of Anthony Meehan Genova, P.A., Miami, for Appellee.
   PER CURIAM.

At issue is a non-final order transferring venue of this divorce case from Leon County to Miami-Dade County. See Fla. R. App. P. 9.130(a)(3)(A). For the reasons discussed below, we reverse.

This divorce proceeding was initiated in September 2013 by Former Husband in Leon County, where, according to both parties’ Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) affidavits, the parties lived as a married couple with their minor child. During September 2013, Former Husband and Former Wife got into a heated argument, and Former Husband attempted to leave the marital home with the minor child. When Former Wife tried to stop him, according to the ensuing probable cause affidavit for his arrest, he punched her in the face multiple times. Former Husband was arrested for domestic abuse, and an investigation by the Department of Children and Families (“DCF”) ensued. In the meantime, Former Wife left Leon County to stay with her mother in Miami-Dade County, and the DCF investigation was transferred there; she also sought and received, a temporary injunction against domestic violence against Former Husband from the Miami-Dade Circuit Court.

The day after the Miami-Dade Court issued the temporary injunction, the Leon County Court, based upon Former Husband’s emergency motion for child pick up, granted the motion. The conflicting orders prompted the Miami-Dade Court to contact the Leon County Court, and after “conferring on the matter” the Leon County Court stayed the child pick-up order, explaining that: (1) Former Wife was not served when the court heard the petition; (2) the court was unaware of the DCF investigation into allegations of domestic violence against Former Husband; (3) the court was unaware that the Miami-Dade Court had entered a domestic violence injunction against Former Husband with the return hearing scheduled for October 9, 2013; and (4) the court found it in the best interest of the child to stay the action until a ruling was made on the Miami-Dade domestic violence injunction.

On October 4, 2013, Former Wife filed a motion for transfer of venue of the divorce proceedings from Leon to Miami-Dade, citing as reasons, among others, that the child was enrolled in school and she was employed in the community; she was “forced” to move because of Former Husband’s violence; there was a pending domestic violence case in Miami-Dade against Former Husband; and it would be an “extreme hardship” for her to litigate in Leon County. The certificate of service indicated the motion was filed electronically by email to Former Husband’s attorney, to the same email address the attorney had sent and received filings before and since. Former Husband did not ask for a hearing, and eleven days after Former Wife’s motion to transfer venue, the trial court granted it, noting simply that it had “considered the request, reviewed the court record, and considered all relevant factors[.]” This timely appeal follows.

Venue transfer orders are reviewed for an abuse of discretion. Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627 (Fla. 1st DCA 1999). We begin by noting that venue is proper where the defendant is domiciled, where the cause of action accrued, or where the property in litigation is located. § 47.011, Fla. Stat. (2013). “In a dissolution of marriage action, the trial court is to look to the single county where ‘the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married, indefinitely if not permanently.’” Crawford v. Crawford, 415 So.2d 870, 870 (Fla. 1st DCA 1982) (citing Carroll v. Carroll, 341 So.2d 771, 772 (Fla.1977)). But a court may transfer any civil action “to any other court of record in which it might have been brought” for the convenience of the parties or witnesses or the interest of justice. § 47.122, Fla. Stat. (emphasis added). See also § 61.13(2)(d), Fla. Stat. (providing that in modification proceedings “[t]he court may change the venue in accordance with s. 47.122.”).

As the party bearing the burden of demonstrating that venue is proper in Miami-Dade County, Former Wife pieces together a panoply of proof in the record she claims supports affirming the order on appeal, which, she claims, is based upon either the “convenience of the parties” or is “in the interests of justice.” This proof includes that:

(1)All the teachers, therapists, counselors, GALs, DCF workers who interacted with the child following the domestic violence are all in Miami-Dade, as well as the records of the child’s interviews, therapy, counselling, and schooling;
(2) Former Wife was forced to flee to Miami for her and the child’s safety due to Former Husband’s violence;
(3) The financial burden of Former Wife traveling to Leon County to litigate the dissolution;
(4) The Leon County arrest/probable cause affidavit of Former Husband;
(5) Former Wife’s Petition for Injunction of Protection against Domestic Violence;
(6) The Miami-Dade County circuit court’s issuance of a Temporary Injunction against Domestic Violence in Former Wife’s favor against Former Husband; and
(7) Former Wife’s motion to transfer venue.

While we sympathize with Former Wife’s arguments, they fail for two main reasons. First, nothing in the order on appeal states that the order was granted based on either of the reasons permitted in the transfer statute. “Prior to granting a change of venue pursuant to section 47.122, a trial court must make a finding of substantial inconvenience or undue expense.” Fast v. Nelson, 22 So.3d 109, 110 (Fla. 2d DCA 2009). While the trial court may have envisioned making such a finding based upon the language in the order stating that the court had “considered the request, reviewed the record, and considered all relevant factors[,]” the fact remains that the court did not consider the applicability of section 47.122 in its ruling.

Second, and more importantly, is the fact that the transfer statute — despite providing reasons a case may be transferred — expressly limits the ability of a court to transfer a case to “any other court of record in which [the proceeding] might have been brought.” § 47.122, Fla. Stat. (emphasis added); see also Kinney Sys. v. Cont'l Ins. Co., 674 So.2d 86, 90 (Fla.1996) (establishing a four-step analysis to resolve issue of forum non conveniens, which requires the court to consider, inter alia, “ ‘whether an adequate alternative forum exists which possesses jurisdiction over the whole case,’ ” including the parties.) (internal citations omitted); Fla. R. Civ. P. 1.061(a) (codifying Kinney).

The limitation of the transfer to “any other court of record in which it might have been brought” in section 47.122, means that any transfer is limited to a county that would have been a proper venue initially. Vitale v. Vitale, 994 So.2d 1242 (Fla. 4th DCA 2008); Tindall v. Smith, 601 So.2d 627 (Fla. 2d DCA 1992). A court cannot transfer venue for the convenience of the parties or witnesses, or in the interests of justice, to a forum that would not have been appropriate for the filing of the complaint or petition in the first place.

Here, a review of the parties’ UC-CJEA affidavits reveals that neither has ever lived in Miami-Dade County. It was error for the trial court to transfer the case to that county because Leon County was the only appropriate forum where an action for divorce could have been brought. Carroll, 341 So.2d at 772. A statutory prohibition bars a second change of venue transferring a case back to the court that originally transferred it. § 47.131, Fla. Stat. An exception to this statutory prohibition is where the initial transferor court is the only one where venue is lawful, which applies here. Lottinger-Serraes v. Serraes, 774 So.2d 959, 961 (Fla. 1st DCA 2001). Because this case returns to Leon County, the Former Husband’s due process claim (i.e., that he was denied a hearing on the venue issue) need not be addressed.

In closing, we briefly note that it appears that child custody will be an issue in the underlying divorce proceeding. In an action to determine shared parental responsibility, the trial court will also rule on the visitation rights of the non-custodial parent. Guntner v. Jennings, 980 So.2d 1185, 1187 (Fla. 5th DCA 2008) (citing 3 Brenda M. Abrams, Florida Family Law § 52.24 (2007)). Here, once the matter is returned to Leon County and the court resolves the underlying divorce proceeding, it will also determine the related time-sharing issue. Section 61.13(2)(d), will then determine the venue in which any petition to modify the visitation is brought, and that venue can be changed in accordance with section 47.122. See also Gunt-ner, 980 So.2d at 1187.

REVERSED and REMANDED for proceedings consistent with this opinion.

THOMAS, ROWE, and MAKAR, JJ., concur.


author: LEVINE, J.

text:
    Louis BACCARI, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1586.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2014.
    Rehearing Denied Sept. 19, 2014.

      Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant appeals his conviction for robbery with a firearm and first-degree murder with a firearm. Appellant argues that the trial court erred by not allowing his peremptory strike of a juror and by not conducting a “genuineness” analysis after the state objected to appellant’s strike. We find this issue was not preserved for appellate review and further find the other issues raised by appellant to be without merit, and therefore, we affirm.

Appellant and a co-defendant were charged with first-degree murder with a firearm, robbery with a firearm, and accessory after the fact. Another co-defendant, Bussey, pled guilty to second-degree murder in exchange for his testimony at appellant’s and the co-defendant’s trial. At trial, Bussey testified to a robbery “gone bad” in which he witnessed appellant approach the victim’s truck. Bussey heard a gunshot and then saw the co-defendant’s gun in appellant’s hand. The jury found appellant guilty of robbery with a firearm and first-degree murder with a firearm.

During voir dire, potential juror 5-7 stated that she was a retired high school English teacher who had served as a juror in a prior criminal case. She said it was important to keep an open mind and look at the evidence because the jury needs to “weigh all the information, ... learn and understand the law, and ... apply the law to what we hear and see and make the best judgment we can.”

Appellant moved to exercise a peremptory challenge to juror 5-7, whereupon the state requested a race- and gender-neutral reason. Defense counsel stated that he was “concerned about the fact that she was a prior juror on a criminal trial [and] that she did not volunteer any answers.” He was also concerned because as a teacher, juror 5-7 “deals with young children or in a school setting,” and “[t]here have been numerous school shootings all over the country.” Because of the “well publicized issue,” defense counsel was “concerned that being in a school setting is going to prejudice, you know, her to firearms generally and that, you know, I have a belief that, you know, she’s not a good juror and I believe that that should be sufficient.” The trial court asked what juror 5-7 said that caused defense counsel to be fearful, because his reasons seemed like “generic responses.” Defense counsel stated that he did not “have anything more specific that’s not already been said.” The state pointed out that jurors who were left on the panel shared the objected-to qualities of juror 5-7; namely, juror 2-1 was also a retired teacher, and juror 1-4 had also previously served on a criminal jury. The court found that “the reasons proffered by [defense counsel] are not genuine race, ethnic or gender neutral reasons, and I will deny the peremptory challenge as to 5-7.” Appellant did not renew his objection after the court denied his challenge.

Later on, the judge announced the final make-up of the jury panel for acceptance by the parties:

The Court: 1-4, 1-10, 2-1, 2-7, 3-1, 3-6, 3-8, 4-10, 5-5, 5-9, 5-10.
[Prosecutor]: Judge, 5-7.
[Unidentified male]: 5-7.
The Court: Did I say 5-7? Oh, 5-7, thank you. 5-5, 5[-]7, 5-9, 5-10, thank you.
(Pause in proceedings.)
The Court: [Defense counsel].
[Defense counsel]: Yes, Judge.
The Court: Accept or strike?
[Defense counsel]: I’m gonna accept.
The Court: [Prosecutor], you’re the last key in the equation.
[Prosecutor]: I’ll solve the equation then and say that I’m done.
The Court: You’re accepting?
[Prosecutor]: Yes.
The Court: All right. We got a jury, then....

(Emphasis added).

After two alternates were chosen, the venire returned to open court and the trial court called out the fourteen names constituting the selected jury, which included juror 5-7. At that point, the jury was sworn. After the jury was sworn and impaneled, the court recessed for the day.

The next day, a sidebar conference regarding the challenge occurred:

[Defense counsel]: Judge, yesterday the jury panel was sworn. I had made several objections during jury selection. And in order to preserve those issues— in order to preserve those issues I needed to object prior to the jury panel being sworn. I don’t think this cures — actually, I’m almost certain that it doesn’t cure the issue, but I wanted to accept the panel subject to the previous objections I’ve made.
The Court: Okay.
[Defense counsel]: I don’t think that this is going to cure the issue. But I’ve tried several trials in front of Your Hon- or. And, typically, we wait for JOA arguments and accepting the jury panel, we do that at the bench. And I didn’t make my objection contemporaneously.
The Court: Yeah. It’s close enough to be timely. I’ll find that that’s a timely objection. The only objection I think that would be preserved as to the jury panel on behalf of anybody would be the issue of me deny or denying your peremptory challenge on that one juror.
[Defense counsel]: I understand, Judge. I just feel that anything would be waived without me, at least, saying that.
The Court: Okay.
[Defense counsel]: — I’m accepting subject to previous objections.
The Court: All right.
[Defense Counsel]: I just wanted to get that on the record.

Although the trial court stated that it was “close enough to be timely,” defense counsel clearly acknowledged and was “certain” that the objection after the jury was sworn did not “cure the issue.”

“In order to preserve the issue of whether the trial court’s ruling on a peremptory challenge constitutes reversible error, the appellant must accept the juror, or panel, subject to its prior objection and/or renew the objection before the jury is sworn.” USAA Cas. Ins. Co. v. Allen, 17 So.3d 1270, 1271 (Fla. 4th DCA 2009). The Florida Supreme Court has stated that “[u]nder our cases, the preservation of a challenge to a potential juror requires more than one objection. When a trial court denies or grants a peremptory challenge, the objecting party must renew and reserve the objection before the jury is sworn.” Carratelli v. State, 961 So.2d 312, 318 (Fla.2007). The court concluded that “[b]y not renewing the objection prior to the jury being sworn, it is presumed that the objecting party abandoned any prior objection he or she may have had and was satisfied with the selected jury.” Id. Thus, it is clear that issues related to the selection of a jury would be “waived and not preserved for appellate review where the appellant failed to either renew his objection prior to the jury being sworn or accept the jury subject to his earlier objection.” Brandon v. State, 768 So.2d 1189, 1190 (Fla. 3d DCA 2000). Finally, our court has stated that “it is necessary to renew an objection to a juror prior to the panel being sworn.” Glinton v. State, 956 So.2d 497, 500 (Fla. 4th DCA 2007) (finding that the defendant failed to preserve his objection to the trial court granting two peremptory challenges where “[p]rior to swearing in the panel, the trial court asked if the panel was acceptable to both sides,” and “the defense responded, ‘That panel’s acceptable,’ ” and defense counsel “did not object to the panel prior to the jurors being sworn”).

Appellant relies upon Sparks v. Allstate Construction, Inc., 16 So.3d 161, 164 (Fla. 3d DCA 2009), where the plaintiff “did not renew the objection before the jury was sworn, but rather waited until after lunch, before further proceedings began.” The court in Sparks found that the objection to jury selection was preserved despite the fact that the objection occurred after the swearing in of the jury panel, because “there was no affirmative acceptance of the jury.” Id. In the present case, unlike Sparks, appellant affirmatively accepted the jury at the time of impaneling and swearing in the jury.

Florida appellate courts have found objections to the denial of peremptory strikes to be preserved in criminal cases where the trial court makes assurances that the defendant’s objection is preserved before the jury is impaneled. For example, in Scott v. State, 920 So.2d 698, 700 (Fla. 3d DCA 2006), “the defense attempted to strike the juror, the court re-called the juror, subjected him to additional questioning, had the court reporter read his earlier voir dire responses aloud, and entertained argument from counsel.” After the court denied the challenge but before the jury was sworn in, “it twice assured defense counsel that the objection was preserved for the record,” and “[djefense counsel accepted the panel just a few transcript pages after the court asked if there was any other business that needed to be addressed.” Id. The Third District found the issue was preserved for appellate review. Id. See also Ingrassia v. State, 902 So.2d 357, 359 (Fla. 4th DCA 2005) (finding the defendant’s objection preserved because before the jury was impaneled, “the trial court specifically and repeatedly reassured counsel, in the course of the extensive colloquy, that the issue was on the record and preserved for appellate review”); Pinder v. State, 738 So.2d 428, 430 (Fla. 4th DCA 1999) (finding the defendant’s objection unpreserved because although the “defendant did indeed state that he was striking one of the proposed alternate jurors to preserve his ‘appellate rights,’ he necessarily had to renew his objections before the empaneling or have the trial judge expressly state ... that the earlier objections and colloquy would stand as the final objection for preservation purposes” and neither of these events occurred before the jury was sworn) (emphasis added); Schummer v. State, 654 So.2d 1215, 1217 n. 1 (Fla. 1st DCA 1995); Langon v. State, 636 So.2d 578, 578-79 (Fla. 4th DCA 1994).

In- the instant case, both counsel for the co-defendant and defense counsel attempted to exercise a peremptory challenge to juror 5-7 during voir dire. The state objected and requested a race- and gender-neutral reason. After defense counsel gave three reasons, the trial court denied the peremptory challenge, and voir dire continued. The transcript reflects that the trial court asked the parties for approval of the final makeup of the jury panel which included juror 5-7. Both defense counsel and counsel for the co-defendant accepted the panel, without commenting on juror 5-7. Then two alternates were selected, and the twelve jurors — including juror 5-7 — were sworn in and impaneled for this case. At no point prior to the impaneling and swearing in of the jury did defense counsel, or counsel for the co-defendant, reassert any objection to any juror, or specifically juror 5-7. The court recessed for the day. The next morning, defense counsel re-raised the denial of his peremptory challenge in an attempt to “cure” his failure to preserve the issue, and the trial court found it “close enough to be timely.”

Appellant asks this court to find the issue preserved based almost entirely on the trial court’s acceptance of the objection by appellant the next day after the jury was sworn and impaneled, and after appellant had affirmatively accepted the jury the prior day. We decline to find that this issue is preserved for appellate review. It is entirely possible that appellant, although objecting initially, decided to accept the jury as constituted and decided to forego any further objection at the time the jury was sworn and impaneled. It is also possible that overnight appellant had second thoughts and decided to reassert his initial objection after affirmatively accepting the jury. Appellant’s “action in accepting the jury” could very well have “led to a reasonable assumption that he had abandoned, for whatever reason, his earlier objection,” thereby supporting the prospect that he waived his objection. See Joiner v. State, 618 So.2d 174, 176 (Fla.1993).

We note that Sparks, the case appellant relies upon, is a civil case and that as such, jeopardy does not attach like it would in a criminal proceeding. Courts have recognized that the point at which a jury is impaneled and sworn in criminal proceedings is of paramount importance. See, e.g., State v. Roberson, 888 So.2d 727, 728-29 (Fla. 5th DCA 2004) (“Jeopardy attaches in a criminal prosecution when the jury is impaneled and sworn.”); State v. Gaines, 770 So.2d 1221, 1225 (Fla.2000) (noting that “[t]he Fifth Amendment to the United States Constitution and article I, section 9 of the Florida Constitution protects an accused against being twice put in jeopardy for the same offense,” and such “jeopardy attaches in a criminal proceeding when the jury is impaneled and sworn”) (citation omitted); Crist v. Bretz, 487 U.S. 28, 35-36, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) (“The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury .... [and the] defendant’s ‘valued right to have his trial completed by a particular tribunal’ is now within the protection of the constitutional guarantee against double jeopardy, since it is that ‘right’ that lies at the foundation of the federal rule that jeopardy attaches when the jury is empaneled and sworn.”).

We find that appellant abandoned his earlier objection when he affirmatively accepted the jury at the time the jury was sworn and impaneled without any reference to his prior objection. To allow appellant to come back to court the next morning, and reverse himself, regardless of the trial court’s willingness to accept appellant’s belated acceptance “subject to previous objections,” would insert great uncertainty to the jury selection process.

In summary, we find the appellant’s action was insufficient to preserve the issue for appellate review, and we find the other issues raised by appellant to be without merit, and as such we affirm.

Affirmed.

CONNER and KLINGENSMITH, JJ., concur.


author: TAYLOR, J.

text:
    Michael ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-498.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2014.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant, Michael Roundtree, challenges his convictions for armed robbery and two counts of false imprisonment. We reverse, concluding that the trial court erred in admitting an interrogation of appellant which primarily consisted of the officer expressing his personal opinion as to appellant’s guilt.

The relevant facts are as follows. On the morning of December 12, 2010, a man robbed a store in West Palm Beach. The incident was captured on the store’s surveillance video. The robber was wearing a cloth rag on his head and a mask that covered his face from the nose down.

The robber showed the two store clerks an object that appeared to be a gun. The robber grabbed money, MP3 players, and deodorants. He told the two store employees to go inside a storage room and to wait there while he took some things. He then shut the door behind them. The employees waited in the room for about twenty minutes and then called the police. Neither store employee could identify the robber.

The robber was not wearing gloves when he handled the deodorant containers. Before exiting the store, the robber left some deodorants on the counter. A certified print examiner went to the store after the robbery and processed the scene for fingerprints. There were several latent fingerprints of value found on the deodorants that the robber handled. All of the identifiable fingerprints on the deodorants matched appellant’s fingerprints.

In January 2011, an officer interrogated appellant. Most of the interview was played to the jury, but the trial court excluded a portion of the interview containing a reference to appellant having been in jail.

In the interview, the officer repeatedly accused appellant of committing the robbery and appellant repeatedly denied committing the robbery. Appellant told the officer that he shopped at the store “a couple of weeks ago,” but appellant could not give an exact date.

When appellant continued to maintain his innocence, the officer stated: “I’m not going to believe you, I’m not going to change my mind. I’ve seen it on video and I have your fingerprints, okay? That’s how I got you here today.”

The back-and-forth between appellant and the officer continued for a while. The officer reiterated his opinion as to appellant’s guilt and appellant continued to deny that he robbed the store.

Appellant again stated: “I didn’t rob anybody.” The officer replied: ‘You did.” Appellant then said: ‘You keep saying that. You ain’t going to believe me regardless.” The officer replied: “I’m not— I’ve got video and scientific proof, okay?”

Later, the officer showed appellant the surveillance video of the robbery and said: ‘You start talking to her and I guess just forgot about the deodorants. That’s all we have. That’s all I need to (unintelligible) and the deodorants are right there. (Unintelligible.)” Appellant responded, “(Unintelligible) I’m guilty regardless.”

Appellant’s wife testified for the defense, claiming that appellant was at home with her on the morning of December 12, 2010. She also testified that about two weeks before Christmas in 2010, she and appellant were at the store in question to pick up a few items, including deodorants. The deodorants were for each member of the family. Appellant’s wife had grabbed three or four deodorants. When she met appellant at the front of the store, she saw that he had also grabbed several deodorants, so she told him to place the deodorants back on the shelf.

The jury found appellant guilty of robbery with a firearm and two counts of false imprisonment. This appeal ensued.

A trial court’s decision on the admissibility of evidence is reviewed under an abuse of discretion standard. Hudson v. State, 992 So.2d 96, 107 (Fla.2008). But the trial court’s discretion is limited by the rules of evidence. Id.

Because a witness’s opinion as to the credibility, guilt or innocence of the accused is generally inadmissible, “it is especially troublesome when a jury is repeatedly exposed to an interrogating officer’s opinion regarding the guilt or innocence of the accused.” Jackson v. State, 107 So.3d 328, 339-40 (Fla.2012). Nonetheless, “a police officer’s statements during an interrogation are admissible if they provoke a relevant response or provide context to the interview such that a rational jury could recognize the questions are interrogation techniques used to secure confessions.” Id. at 340.

In Jackson, the Florida Supreme Court held that the trial court abused its discretion in admitting the defendant’s videotaped interrogation in which the officers repeatedly expressed their opinions about the defendant’s guilt. Id. at 330, 341-42. The supreme court explained that while the detectives may have intended to secure a confession by consistently expressing their conviction as to the defendant’s guilt, they did not secure a confession throughout their dialogue. Id. at 341. Moreover, although the detectives’ opinions about the defendant’s guilt and the weight and sufficiency of the evidence were not expressed during in-court testimony, admission of these statements essentially permitted the State to improperly elicit police opinion testimony and invade the province of the jury. Id. Even to the extent the detectives’ statements did yield somewhat relevant responses, our supreme court explained that this evidence should not have been admitted, as the statements had minimal probative value when compared with the inappropriate statements by the detectives. Id. at 341-42.

The present case is governed by Jackson. During the interrogation, the officer repeatedly expressed his personal belief that appellant was guilty. Moreover, here, as in Jackson, the vast majority of the officer’s statements did not provoke relevant responses from appellant. Indeed, the officer never secured a confession from appellant. In addition to the officer’s repeated opinions about appellant’s guilt, the jury was also permitted to hear a statement by the appellant which, because of its ambiguity, had little or no evidentiary value. The quip — “(Unintelligible) I’m guilty regardless” — cannot fairly be interpreted as an admission of guilt under the circumstances of this case. Appellant’s statement must be examined in the context of the entire interrogation. When appellant’s statement is read in context, we interpret the statement as meaning that the officer would consider him guilty regardless of his protestations of innocence. This is the only interpretation that makes sense in light of appellant’s repeated denials that he committed the robbery, the officer’s statements to the effect that he was not going to believe appellant, and appellant’s reply to the officer that “[y]ou ain’t going to believe me regardless.” (Emphasis added.) Any relevance of appellant’s statement — “(Unintelligible) I’m guilty regardless” — was minimal in comparison to the impropriety of admitting the officer’s opinions as to appellant’s guilt.

Accordingly, we find that the trial court should have excluded the entire interrogation at trial. See Pausch v. State, 596 So.2d 1216, 1219 (Fla. 2d DCA 1992) (finding that the jury “could not have reasonably been expected to isolate and extract from the recording that which was admissible as evidence of the crime while disregarding the aspersions of guilt created by [the detective’s] words”).

Although we conclude that the trial court committed error by admitting the interrogation under the facts of this case, we take the opportunity to acknowledge that situations may exist where “the prejudice of an interrogating officer’s statements could be obviated or reduced by reading a limiting instruction to the jury.” Jackson, 107 So.3d at 341 n. 15. In Eugene v. State, 53 So.3d 1104 (Fla. 4th DCA 2011), we gave an example of an instruction that a trial judge might use to address the problem of unfair prejudice when a defendant’s interrogation contains accusatory non-hearsay statements by police officers:

A recorded police interrogation of the defendant has been introduced into evidence in this trial. During the interrogation, any statements made by the police interrogator are not to be considered by you jurors as evidence of the defendant’s guilt. The statements made by the police interrogator during the interview of the defendant have not been introduced into evidence to prove the truth of the matters asserted in those statements. In fact, the statements made by the police interrogator during the interrogation of the defendant may be false and misleading. It is permissible for a police officer conducting an interrogation of a defendant to make false and misleading statements to the defendant in order to further the aims of the interrogation. However, it is not permissible for you jurors to rely on such police interrogator’s statements as proof of the defendant’s guilt.

Id. at 1112 n. 4. In cases where an interrogating detective’s statements about a crime provoke relevant responses from the defendant, we would encourage trial judges to “instruct the jury on the limited purpose for which the jury has been allowed to hear the interrogator’s statements.” Id.

In conclusion, we find that the admission of the officer’s statements during the interrogation permitted the state to elicit a police officer’s opinion as to appellant’s guilt, thereby invading the province of the jury. In this contested identity case, we cannot conclude that the error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). We reverse and remand for a new trial.

Reversed and Remanded.

CIKLIN and GERBER, JJ., concur.

      . The remaining issues are either moot or without merit.


author: CONNER, J.

text:
    V.C.B. and E.G.B., Appellants, v. Sultan SHAKIR, Appellee.
    No. 4D14-1292.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2014.
    Nancy L. Hoffman of Nancy L. Hoffman, P.A., Fort Lauderdale, for appellant.
    No brief filed for appellee.
   CONNER, J.

The maternal grandparents appeal the trial court’s order denying their petition to terminate the father’s parental rights and to adopt their grandchild. They argue that the trial court erred in interpreting section 63.089, Florida Statutes (2014) and Florida case law to require a finding that the father exhibited a willful disregard for the child’s safety prior to terminating the father’s parental rights. We agree and reverse because the trial court misinterpreted the statutory grounds for termination of parental rights due to abandonment under Chapter 63, Florida Statutes. On remand, we direct the trial court to enter an order granting termination of parental rights because the trial court made sufficient findings to support termination and to consider further proceedings to allow adoption of the child by the grandparents.

The child was born in August 2002. In March 2010, the mother died leaving behind the child she conceived with the father. In August 2010, the grandparents filed their petition in court seeking to terminate the father’s parental rights and to adopt the child pursuant to Chapter 63, Florida Statutes. The petition sought termination of parental rights on the basis that the father abandoned the child.

In its order denying the grandparent’s petition, the trial court found by clear and convincing evidence that the father had abandoned the child, both “financially and emotionally,” based on the definition of “abandoned” contained within section 63.032, Florida Statutes (2014). The trial court further stated, however:

W. That the Court has considered the holding In Beagle v. Beagle, 678 So.2d 1271 (Fla.1996) and Florida Statute Section 63.089(4)(a). The Court interprets both authorities to require a finding that the Respondent/Father willfully disregarded the minor child’s safety prior to terminating the Respondent’s parental rights.
X. The Court finds that while the Respondent/Father abandoned the minor child, the Respondent/Father did not exhibit a willful disregard of the minor child’s safety which this Court finds to be a requirement prior to terminate [sic] parental rights.

(emphasis added). The grandparents appeal this order.

Legal Analysis

“[W]here the question involves interpretation of a statute, it is subject to de novo review.” Brown v. City of Vero Beach, 64 So.3d 172, 174 (Fla. 4th DCA 2011) (citing Tasker v. State, 48 So.3d 798, 804 (Fla.2010)).

Chapter 63, known as the “Florida Adoption Act,” allows a petitioner who is a relative of the child to seek termination of parental rights and adopt a child in the same petition. § 63.087(3), Fla. Stat. (2014). If a duly executed consent by a parent is not filed with the court, notice of the proceedings must be given to the parent. § 63.089(2)(a)3., Fla. Stat. A court may enter a judgment terminating parental rights if the court determines by clear and convincing evidence, supported by written findings of fact, that the parent has been properly served with notice of the proceedings, “and has been determined under subsection (4) to have abandoned the child.” § 68.089(3)(e), Fla. Stat.

Subsection (4) of Section 68.089 provides:

(4) Finding of abandonment. — A finding of abandonment resulting in a termination of parental rights must be based upon clear and convincing evidence that a parent or person having legal custody has abandoned the child in accordance with the definition contained in s. 63.032.

§ 63.089(4), Fla. Stat. (2014).

Section 63.032(1) defines “abandoned” as:

“Abandoned” means a situation in which the parent or person having legal custody of a child, while being able, makes little or no provision for the child’s support or makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities. If, in the opinion of the court, the efforts of such parent or person having legal custody of the child to support and communicate with the child are only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.

§ 63.032(1), Fla. Stat. (2014) (emphasis added).

Section 63.089(4) further states:

(a) In making a determination of abandonment at a hearing for termination of parental rights under this chapter, the court shall consider, among other relevant factors not inconsistent with this section:
1.Whether the actions alleged, to constitute abandonment demonstrate a willful disregard for the safety or welfare of the child or the unborn child;
2. Whether the person alleged to have abandoned the child, while being able, failed to provide financial support;
3. Whether the person alleged to have abandoned the child, while being able, failed to pay for medical treatment; and
4. Whether the amount of support provided or medical expenses paid was appropriate, taking into consideration the needs of the child and relative means and resources available to the person alleged to have abandoned the child.

§ 63.089(4), Fla. Stat. (emphasis added).

In denying the petition, the trial court not only focused on the language of subsection (4)(a)(l) emphasized above, but also our supreme court’s decision in Beagle v. Beagle, 678 So.2d 1271, 1276 (Fla.1996).

At issue in Beagle was the 1993 amendment to section 752.01, Florida Statutes, which allowed grandparents to petition for visitation rights. The court narrowly focused its attention on the portion of the statute that allowed grandparental visitation in situations in which a child is living with both natural parents and at least one parent objects to the visitation. The court discussed the liberty interest a parent has “in determining the care and upbringing of their children free from the heavy hand of government paternalism.” (citing Padgett v. Dep’t of Health and Rehabilitative Serves., 577 So.2d 565, 570 (Fla.1991)) (internal quotation marks omitted).

The court noted that the fundamental liberty interest in parenting is specifically protected in the privacy provision of Article I, section 23 of the Florida Constitution. Beagle, 678 So.2d at 1275. The court declared the portion of the statute unconstitutional because it did not require a showing of harm to the child. Without harm to the child, the court concluded there was no compelling state interest to justify interference with a parent’s liberty interest and privacy rights to raise the child by allowing grandparents to have visitation over a parent’s objection. The court stated:

With this foundation, we address a very narrow question. Does the State have a compelling state interest in imposing grandparental visitation rights, in an intact family, over the objection of at least one parent? We find that the challenged paragraph, as currently written, does not demonstrate such a compelling state interest. Our standard is stringent. We have previously held that the statute requiring parental consent prior to an abortion did not satisfy the compelling state interest standard. In re T.W., 551 So.2d 1186 (Fla.1989). On the other hand, we have approved State interference with the fundamental right of parents to raise their children where the State is acting to protect the children from harm. For example, we have allowed the State to terminate parental rights where a substantial risk of significant harm to a child exists. Padgett, 577 So.2d at 571. We have also recognized that the State has a compelling interest in preventing the sexual exploitation of children within the home. Schmitt v. State, 590 So.2d 404 (Fla.1991), cert. denied, 503 U.S. 964, 112 S.Ct. 1572,118 L.Ed.2d 216 (1992). Our cases have made it abundantly clear that the State can satisfy the compelling state interest standard when it acts to prevent demonstrable harm to a child.
The challenged paragraph does not require the State to demonstrate a harm to the child prior to the award of grand-parental visitation rights. Based upon the privacy provision in the Florida Constitution, we hold that the State may not intrude upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm.

Id. at 1276 (emphasis added).

Although, the trial court was correct in determining that it was required to find harm to the child prior to infringing upon the father’s fundamental right to parent, the trial court erred in determining the harm had to be in the nature of a willful disregard for the safety or welfare of the child The definition of “abandoned” in Chapter 63 does not require such a finding. Section 63.089(4)(a) simply states the court shall consider, among other relevant factors, whether actions alleged to constitute abandonment demonstrate a willful disregard for the safety or welfare of the child. In essence, the trial court construed “abandoned” more narrowly than the statute requires.

We reach that conclusion because section 63.089(4) states the sole ground for termination of parental rights, absent consent, and requires a finding by clear and convincing evidence that the parent has “abandoned” the child as defined in section 63.032(1). We construe the provisions of section 63.089(4)(a) to simply list factors the trial court should consider which the legislature deemed to be particularly pertinent. We do not construe the provisions of section 63.089(4)(a) to limit the definition of “abandoned” under section 63.032(1) to only those situations.

As we observed in J.S. v. S.A., 912 So.2d 650, 662 (Fla. 4th DCA 2005), “[c]ourts agree that the passage of time can be harmful to the well-being of a child and that a stable home environment for the child deserves consideration along with the interest of biological parents.” In this case, the trial court made ample findings that the child has been abandoned by the father and harmed to the point that his liberty interest and privacy right to raise his child have been forfeited. The child’s right to a stable home environment provided by the grandparents must prevail.

We therefore reverse the trial court’s order denying termination of the father’s parental rights and remand the case with instructions that the trial court enter an order terminating the father’s parental rights and entertain the necessary proceeding to grant the adoption.

Reversed and remanded.

WARNER and GROSS, JJ„ concur.

      . The trial court made extensive findings of fact in its written order to support the conclusion that the father abandoned the child by failing to provide emotional and financial support for the child and by failing to maintain any meaningful contact with the child. The trial court found the father’s conduct was willful and "was not caused by anything other than [the father’s] inaction." The father had no contact with the child for four years prior to the final hearing and had not provided any financial support for five years prior to the final hearing, despite having a substantial annual income. The trial court specifically found that "based upon the clear and convincing evidence presented to the Court, [the father] is unfit to provide for the care and control of the child.” Although not explicitly stated, we are satisfied the trial court was inclined to grant the petition, but concluded the law would not support termination.

      . We note that in the context of termination of parental rights under Chapter 39, Florida Statutes,
      ‘Harm’ to a child’s health or welfare can occur when any person:

      (e) Abandons the child. Within the context of the definition of "harm,” the term "abandoned the child” or "abandonment of the child” means a situation in which the parent ... while being able, has made no significant contribution to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.
      § 39.01(30)(e), Fla. Stat. As can be seen, the definition of "abandon” in Chapter 39 is very similar to the definition in Chapter 63.


text:
    B.B., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D14-1007.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2014.
    Rebecca S. Taylor of the Law Offices of Rebecca S. Taylor, P.A., Coral Springs, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

B.B., the father, appeals an order adjudicating his minor children dependent. We reverse based on our reversal of the dependency order as to the mother in E.R. v. Department of Children & Families, 4D14-885, 2014 WL 3843064 (Fla. 4th DCA 2014). The trial court held one evi-dentiary hearing as to both parents and entered one order of dependency. The sum and substance of the facts relied upon in adjudicating the children dependent as to the mother were the same as the facts relied upon in adjudicating the children dependent as to the father. Because competent substantial evidence did not support a finding of imminent risk of neglect and harm as to the mother, it also does not support a finding of imminent risk of neglect and harm as to the father.

Reversed.

LEVINE, CONNER and KLINGENSMITH, JJ, concur.


author: VAN NORTWICK, J.

text:
    Reginald Jerome SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1890.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2014.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Charles R. McCoy, Senior Assistant Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Following our affirmance of the judgment and sentence for second-degree murder in Smith v. State, 43 So.3d 923 (Fla. 1st DCA 2010), Reginald Jerome Smith, appellant, sought discretionary review with the Florida Supreme Court, which stayed consideration pending its decision in Hay-good v. State, 109 So.3d 735 (Fla.2013). After rendering its decision in Haygood, the Supreme Court ordered the State to show cause why it should not grant Smith’s petition for discretionary review. The State did not respond and the Supreme Court accepted jurisdiction, granted Smith’s petition for review, quashed our decision affirming Smith’s judgment and sentence, and remanded for reconsideration in light of Haygood. Smith v. State, 137 So.3d 1022 (Fla.2014). We ordered supplemental briefing to address the application of Haygood to the disposition of Smith’s appeal.

As explained in another of our recently reconsidered cases, the Haygood Court “held that giving the erroneous manslaughter by act instruction is not cured by also instructing the jury on culpable negligence manslaughter where the defendant is convicted of an offense not more than one step removed from manslaughter and the evidence supports a finding of manslaughter by act but does not reasonably support a finding that the death occurred due to the defendant’s culpable negligence.” Salonko v. State, — So.3d —, 2014 WL 2810565, 39 Fla. L. Weekly D1324 (Fla. 1st DCA June 27, 2014) (citing Haygood, 109 So.3d at 743). The Supreme Court explained in Haygood that for the culpable negligence manslaughter instruction to remedy the harm caused by giving the erroneous manslaughter by act instruction, the culpable negligence instruction should “render the erroneous manslaughter by act instruction to be impertinent or immaterial to what the jury must consider in order to convict.” Haygood, 109 So.3d at 742. The Supreme Court determined that even though the jury had been instructed on culpable negligence manslaughter and manslaughter by act:

The evidence in this case supported a finding that Haygood intentionally committed an act or acts, and that the act or acts resulted in the victim’s death. The evidence also supported a finding that he had no intent to kill the victim. Significantly, there was no evidence to support a finding that Turkey’s [the victim’s] death resulted from culpable negligence.

Id. at 741-42. Under those circumstances, the Supreme Court held that the culpable negligence instruction did not render the manslaughter by act instruction immaterial; “[t]hus the erroneous manslaughter by act instruction was fundamental error ...” Id. at 742; see also Salonlco, — So.3d at —, 39 Fla. L. Weekly at D1324 (reversing appellant’s conviction for second-degree murder and remanding for new trial when evidence did not reasonably support a finding that the victim’s death was caused by appellant’s culpable negligence).

The Haygood facts mirror the relevant facts in Smith’s case. Here, the evidence and argument focused on Smith’s state of mind at the time of the shooting: whether he was committing second-degree murder or manslaughter by act or whether he was acting in self-defense. As was the case in Haygood, here there was no evidence from which the jury could find Smith guilty of the lesser included offense of manslaughter by culpable negligence. Thus, the instruction on culpable negligence did not render the erroneous manslaughter by act instruction impertinent or immaterial.

The State argues that the factual scenario presented here is analogous to Saldana v. State, 139 So.3d 351 (Fla. 2d DCA 2014). In Saldana, the defendant was charged with, inter alia, attempted first-degree murder; the jury was instructed on lesser included offenses, including attempted manslaughter by act; and the jury ultimately found him guilty of the lesser included offense of attempted second-degree murder. Id. at 352. On appeal, the defendant argued fundamental error occurred when the jury was given the erroneous instruction on attempted manslaughter by act and he was convicted of a crime one step removed from the offense that was the subject of the erroneous instruction. Id. at 352-53. The Second District held that giving the erroneous instruction on attempted manslaughter by act was not fundamental error because the element of intent was not in dispute and the only question for the jury was whether the defendant’s use of force was justified as self-defense. Id. at 353.

We find Saldana is factually distinguishable from the instant case. In the case under review, there was testimony that Smith told law enforcement that his gun discharged by accident after he armed himself in response to the victim pulling a gun on him first, as well as testimony that Smith deliberately discharged the firearm. Thus, the evidence indicates that Smith either purposefully fired the gun, in self-defense or otherwise, or that the gun acci-dently discharged while Smith was wielding it in self-defense. Significantly, this circumstance distinguishes the instant case from Saldana, where the defendant conceded that he intended to shoot the victim and the sole question for the jury was whether the shooting was justified or excusable.

Accordingly, Haygood is controlling and we REVERSE Smith’s judgment and sentence for second-degree murder, and REMAND for a new trial.

BENTON, and WETHERELL, JJ„ concur.