author: LEWIS, J. CANADY, J.,

text:
    Baron GREENWADE, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-598.
    Supreme Court of Florida.
    Oct. 17, 2013.

      Nancy A. Daniels, Public Defender, and Diana L. Johnson, Assistant Public Defender, Tallahassee, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Tallahassee Bureau Chief, and Therese A. Savona, Assistant General, Tallahassee, FL, for Respondent.
   LEWIS, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Greenwade v. State, 80 So.3d 371 (Fla. 1st DCA 2012). The district court certified that its decision is in conflict with the decision of the Third District Court of Appeal in Ross v. State, 528 So.2d 1237 (Fla. 3d DCA 1988), as well as the decisions of the Second District Court of Appeal in Sheridan v. State, 850 So.2d 638 (Fla. 2d DCA 2003), and Safford v. State, 708 So.2d 676 (Fla. 2d DCA 1998). We have jurisdiction. Art. V, § 8(b)(4), Fla. Const.

FACTS

On April 29, 2009, Detective Donald Bishop and other officers from the Jacksonville Sheriffs Office executed a search, warrant at a Jacksonville residence. As the officers walked up the driveway of the residence toward the garage, they observed Baron Greenwade sitting in a chair behind a table inside the garage. In an attempt to elude arrest, Greenwade fled into the house, where he was eventually captured and placed in custody. After he was detained, Greenwade told Detective Bishop, “I know why you’re here. I have been set up. What you are looking for is in the garage.” Greenwade then led Detective Bishop to the table in the garage behind which the officers had observed him sitting when they had initially arrived. On the table was a digital scale, and beside the table was a green bag with a spoon on top covered with a white residue. Green-wade admitted to Detective Bishop that the green bag contained cocaine. Inside the bag, Detective Bishop found nine one-ounce baggies that contained a white powder. After the officers read Greenwade his Miranda rights, he admitted that the contents of the green bag were his.

All nine baggies were individually field tested before they were transferred to the Sheriffs Office property room where each baggie was emptied into nine individual envelopes. Dr. Katherine Warniment, a Florida Department of Law Enforcement (FDLE) forensic chemist, testified during trial that she received one sealed Ziploc bag containing a quantity of off-white powder and was asked to identify any controlled substances in the powder. Dr. Warniment’s chemical testing revealed that the commingled powder contained cocaine. Dr. Warniment also determined that the contents of the Ziploc bag weighed 234.5 grams. Greenwade, 80 So.3d at 372.

Greenwade was charged by information with trafficking in cocaine in an amount more than 200 grams but less than 400 grams, possession of controlled substance paraphernalia, possession of a firearm by a convicted felon, and resisting an officer without violence. Greenwade pled guilty to all of the charges except trafficking. After a jury trial, Greenwade was found guilty of trafficking in cocaine and was sentenced to fifteen years’ incarceration with a mandatory minimum of seven years. The sole issue asserted by Greenwade on appeal was whether the trial court erred by denying his motion for judgment of acquittal on the trafficking charge because the State had combined, tested, and weighed the contents of all of the nine individual baggies found in his possession together instead of chemically testing each baggie for cocaine before commingling and weighing their contents. See Greenwade, 80 So.3d at 372.

The reasoning and conclusion of the decision below can be best explained by first examining our decision in State v. Yu, 400 So.2d 762 (Fla.1981). In Yu, we upheld the constitutionality of section 893.135(l)(b), Florida Statutes (1979) — the trafficking statute relevant to this appeal — against a claim that “penalizing possession of a certain amount of ‘any mixture containing cocaine’ without regard to the percentage of cocaine in the mixture [was] arbitrary, unreasonable, and a violation of due process and equal protection.” Id. at 764. In upholding the constitutionality of the statute, we stated that:

The legislature has broad discretion in determining necessary measures for the protection of the public health, safety, and welfare, and we may not substitute our judgment for that of the legislature as to the wisdom or policy of a legislative act. Section 893.135(l)(b) bears a reasonable relationship to the legitimate state objective of protection of the public health, safety, and welfare. The legislature reasonably could have concluded that a mixture containing cocaine could be distributed to a greater number of •people than the same amount of undiluted cocaine and thus could pose a greater potential for harm to the public.

Id. (emphasis supplied; citation omitted).

The First District framed its analysis based upon the emphasized language above, and stated “[k]eeping in mind this policy decision by the Legislature, we consider whether the State produced evidence •that Appellant possessed between 200 and 400 grams of cocaine sufficient to survive a motion for judgment of acquittal.” Greenwade, 80 So.3d at 372 (emphasis supplied). The First District acknowledged that other district courts have held that when law enforcement officers- discover what is believed to be a controlled substance in a series of separately wrapped packets, the State must first establish that each individual packet contains the controlled substance before combining the packets and weighing the aggregate to determine if the controlled substance meets the requisite statutory weight for trafficking. Id. at 372-73; see also Sheridan, 850 So.2d at 640; Safford, 708 So.2d at 677; and Ross, 528 So.2d at 1239. The First District, however, declined to follow the holdings in Ross, Safford, and Sheridan for two related reasons. See Greenwade, 80 So.3d at 373-74.

First, the district court concluded that the rule delineated in Ross, Safford, and Sheridan “creates an untenable distinction between cases involving multiple packages of suspicious white powder and cases involving just one package.” Greenwade, 80 So.3d at 373. To illustrate the basis for its disagreement with Ross and its progeny, the First District explained:

if in this case Detective Bishop had found one large plastic bagful of powder inside the green bag Appellant led him to, there would be no question that testing a sample and weighing the powder would yield sufficient evidence to prove Appellant possessed more than 200 grams of cocaine or a mixture of cocaine. But take that same bagful of powder and split it into nine small saleable packets, and [Ross and its progeny] hold that to prove the weight element of trafficking, the State now must test a sample from each packet, determine which contain cocaine, and weigh only those — even if presumptive field testing detects cocaine in every packet ... and other circumstances, such as the way the packets are bundled together [] or an admission by the defendant [] would permit a jury to reasonably infer all the packets contain an illegal substance.

Id. (citations omitted).

Second, the district court recognized that the rationale behind requiring each individual packet of white powder to be chemically tested is to prevent law enforcement from combining and weighing the contents of bags that are similar in appearance, but do not contain controlled substances, with bags that do contain controlled substances. Id. at 374. Unpersuaded by this rationale, the First District reasoned that this Court’s interpretation of legislative policy in Yu warranted the development of a new standard to evaluate whether the State may commingle bags that are suspected to contain a controlled substance before chemically testing the aggregate for the presence of that controlled substance. Id. Specifically, the district court held:

Th[e legislative] policy [delineated in Yu ], we believe, legitimizes the practice of commingling multiple packets for chemical testing and weighing, where the circumstances attending the discovery and seizure of the packets permit the reasonable conclusion that they contained contraband, and perhaps other substances, to be used in illegal drug distribution.

Id.

Under this standard, the First District concluded that the contents of the nine individually wrapped baggies were properly commingled before they were chemically tested and. weighed due to the following circumstances that surrounded the discovery of the bags: (1) Greenwade told Detective Bishop that “What you are looking for is in the garagé”; (2) a green bag was located inside the garage which contained nine individually wrapped baggies of white powder; (3) Greenwade admitted that the green bag contained cocaine; (4) on top of the green bag was a spoon with a white powder residue on it; (5) on the table next to the green bag was a digital scale; and (6) all nine baggies were field tested. Id. This evidence, the First District concluded, together with the fact that the commingled powder tested positive for cocaine, was sufficient for the jury to find that Green-wade possessed more than 200 grams of cocaine. Id.

Consequently, the First District affirmed Greenwade’s conviction for trafficking in cocaine and certified conflict with Ross, Safford, and Sheridan “to the extent those cases hold that the. lab’s failure to test each package before commingling to determine weight renders insufficient the State’s evidence of trafficking, notwithstanding other circumstantial evidence of the offense.” Id..

ANALYSIS

Greenwade was convicted under section 893.135(l)(b)l., Florida Statutes (2009), which provides:

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams or more of cocaine, as described in s. 893.03(2)(a)4., or of any mixture containing cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree, which felony shall be known as “trafficking in cocaine,” ... If the quantity involved:
b. Is 200 grams or more, but less than 400 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 7 years, and the defendant shall be ordered to pay a fine of $100,000.

To support a conviction for trafficking in cocaine in an amount greater than 200 but less than 400 grams, the State must prove three essential elements beyond a reasonable doubt: (1) the defendant knowingly sold, purchased, manufactured, brought into the state, or actively or constructively possessed a certain substance; (2) the substance was cocaine; and (3) the quantity of the substance met the statutory weight threshold. Hernandez v. State, 56 So.3d 752, 758 (Fla.2010). .

Greenwade does not dispute that the State has established the first two' elements of trafficking, as he admits that he was in possession of cocaine. Rather, Greenwade contends that the trial court should have granted his motion for judgment of acquittal and entered judgment in his favor on the trafficking charge because the State combined, tested, and weighed the contents of the nine baggies found in his possession together before and instead of chemically testing each individual baggie for cocaine before commingling and weighing their total contents in the aggregate. Consequently, the issue before the Court today is whether the State’s failure to independently chemically test each individually wrapped baggie of off-white powder rendered the State’s evidence in support of the third element of weight insufficient as a matter of law.

Standard of Review

The rule of law in Florida is clear that the State is required to prove each and every element of the offense charged beyond a reasonable doubt to establish a prima facie case. See Baugh v. State, 961 So.2d 198, 203-04 (Fla.2007). If the prosecution fails to meet this burden, the case should not be submitted to the jury, and a judgment of acquittal should be granted. Id. at 204. This Court reviews the denial of a motion for judgment of acquittal de novo, and will not reverse a conviction that is supported by competent, substantial evidence. See Caylor v. State, 78 So.3d 482, 492 (Fla.2011). Florida law recognizes that the State has presented sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. See id. Consequently, the State is not required to conclusively rebut every possible variation of events which could be inferred from the evidence. See Durousseau v. State, 55 So.3d 543, 557 (Fla.2010) (quoting State v. Law, 559 So.2d 187, 189 (Fla.1989) (footnote omitted)). Once the State meets this threshold burden, it is the responsibility of the jury to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Id.

The Law in Florida

The line of Florida cases relevant to the conflict issue effectively began in 1988 with the decision of the Third District in Ross. In Ross, two officers observed the defendant throw a brown paper bag to the ground and then walk away, only to return shortly thereafter to pick the bag up, place something in it, and then throw it back to the ground again. 528 So.2d at 1238. The officers detained the defendant and searched the bag. Id. The officers discovered two bundles of individually wrapped plastic packets containing white powder in the bag. Id. The first bundle contained thirty-six individually wrapped packets, while the second bundle contained fifty-six packets. Id. A forensic chemist tested two of the packets, one from the first bundle and one from the second, and concluded that those packets contained cocaine. Id. The two packets that tested positive for cocaine were then combined with all of the remaining packets from each bundle and weighed. Id. The chemist testified that the white powder found in all ninety-two packets looked alike after a visual inspection. Id. Although the total weight of the packets which had been chemically tested fell below the statutory weight for trafficking, the aggregate weight of the two chemically tested packets along with the other ninety untested packets satisfied the statutory weight threshold. Id.

The defendant was charged with trafficking in cocaine under section 893.135(l)(b), Florida Statutes (1985). Id. After the evidence was presented during trial, the defendant moved for a judgment of acquittal, alleging that the State had failed to establish that the defendant was in possession of twenty-eight grams or more of cocaine — an essential element of the crime. Id. at 1239. The trial court denied the motion, and the jury subsequently convicted the defendant of trafficking. Id.

On appeal, the Third District reversed the defendant’s conviction,- holding that to sustain a cocaine trafficking conviction it is essential that each packet of white powder be individually chemically tested and found to contain cocaine, and that the total weight of the material in the tested packets equal or exceed the requisite statutory weight. Id. The Third District further concluded that only a visual examination of untested packets was insufficient to convict a defendant of trafficking because visual examination does not establish that the substance contained within an individual packet is cocaine. Id. The district court reasoned that simply because one or two packets containing cocaine are found amongst other packets containing a similar-looking white powder is no assurance that the latter untested packets also contain cocaine because: (1) the white powder contained within each individual packet may be any one of a vast variety of other white powdery chemical compounds not containing cocaine; and (2) the material in the untested packets was intentionally separated from the material in the tested packets. Id. at 1239-40.

The district court did recognize other case law which allows random positive testing of one allegedly illegal pill commingled in a single packet that contains other similar-looking pills, or the random positive testing of a substance suspected to be marijuana commingled in a single bag that contains similar-looking material, to demonstrate that the entire packet or bag contains illegal pills or marijuana. However, the district court distinguished those cases from the random testing of only one of many individually wrapped packets of a substance suspected to be powdered cocaine. Id. at 1240. The court reasoned that when suspected drugs are taken from a single package — i.e., which have been commingled by the defendant — it is a fair inference that the remaining similar-looking commingled material is chemically identical to the random positive sample. However, the same inference cannot be made where the untested material has not been commingled with the random sample by the defendant, but is contained in a separately wrapped package from which a random sample is not tested. Id. Consequently, the Third District limited the principle of law to require independent chemical testing only when the suspected substance is contained in individually wrapped packets. Id. at 1240.

Based on the above analysis, the Third District concluded that the State had failed to present sufficient evidence to submit the question of whether the defendant was guilty of trafficking in cocaine to the jury. Id. at 1240-41. Specifically, the court noted

the fact that [the forensic chemist] broke open all of the above ninety-two [] packets, poured their contents into two envelopes, and thereby created two separate packets containing a mixture of cocaine weighing 38.8 grams cannot satisfy the [S]tate’s burden of proof on this issue. Obviously, the [S]tate’s representative cannot himself make his own packets of cocaine by combining separately wrapped packets of tested and untested material which in the aggregate weigh [the requisite statutory weight] or more; the packets which he tests and weighs must be the packets as seized from the defendant.

Id. at 1241. Consequently, the Third District reversed the defendant’s conviction and remanded the case to the trial court with directions to reduce the conviction to simple possession of cocaine. Id.

After Ross, the cases in this area have primarily followed two paths. Almost every case that has addressed the issue of whether the State is required to individually chemically test white powdery substances discovered in separate containers has adopted the rule articulated in Ross. These cases have not limited Ross’s application to only cocaine, but have expanded the principle of law to other controlled substances, such as heroin and methamphetamine, that share a similar powdery appearance. A second line of cases represented by a relatively small number of cases recognizes the rule in Ross, but has determined the rule to be distinguishable based on the character of the controlled substance involved.

Cases That Have Adopted Ross

In each case that has adopted Ross as controlling, a suspected controlled substance was found in at least two individually wrapped packets. Those packets were commingled before each separate package was individually chemically tested. In all of these cases except one, the appellate court has relied upon Ross to hold that the State failed to present sufficient evidence to support the essential element of weight.

For example, in Safford, the evidence at trial demonstrated that the defendant possessed two bags that were seized from his home. Safford, 708 So.2d at 677. One bag contained rock cocaine while the other contained forty individually wrapped foil pack-' ets of a white powdery substance suspected to be powder cocaine. Id. The forty individual packets were combined by the investigative officer into one mixture, and then the aggregate powder chemically tested positive for cocaine. Id. The aggregate substance satisfied the statutory threshold for the trafficking charge, and the defendant was convicted of trafficking for possessing twenty-eight grams or more of cocaine. Id. On appeal, the Second District adopted the reasoning of Ross and held that the chemist’s failure to test each individual packet before the contents of all packets were combined and weighed mandated the reversal of the defendant’s trafficking conviction. Id.

In Sheridan, the defendant was arrested and charged with trafficking in an amount greater than fourteen grams of methamphetamine after two baggies allegedly containing the controlled substance were seized from the defendant’s vehicle. Sheridan, 850 So.2d at 631-40. During trial, the State’s forensic chemist testified that he had tested and weighed one baggie, and that its contents tested positive for meth-amphetaraine and weighed twenty-three grams. Id. at 639. The chemist also testified that he had not seen or tested a second baggie. Id. Based on the evidence adduced at trial, the district court concluded that law enforcement commingled the contents of the two baggies into one before the bags were independently chemically tested. Id. at 640. Relying upon the reasoning of Safford and Ross, the Second District stated

The substance found by the detective was a powdery material, according to State testimony, similar in appearance to other noncontrolled substances, such as vitamin powder or flour. Therefore, the contents of each baggie should have been tested separately, and, if found to be the same controlled substance, the weights combined. As the State bears the burden of proof as to the amount, it is inappropriate to permit the State to commingle ... the contents without testing and then assert that the contents of each baggie when aggregated meet the trafficking quantity.... The State’s procedure created an assumption as' to the amount without the necessary proof. Thus, the evidence of trafficking was legally insufficient and should not have gone to the jury.

Id. (footnote omitted). Based on this analysis, the district court held that the State, by commingling the contents of the packets before chemically testing each packet individually, failed to establish that the defendant possessed a sufficient amount of methamphetamine to satisfy the statutory threshold for trafficking. Id. at 641.

Safford and Sheridan are only two examples of the numerous cases that have adopted Ross in nearly every circumstance in which the State has commingled individually wrapped containers of white powder before chemically testing each container independently. See, e.g., Jackson v. State, 76 So.3d 1130, 1132 (Fla. 4th DCA 2012) (holding that the State failed to meet its burden of demonstrating that the defendant possessed the requisite statutory weight of cocaine under Ross when only one of eight baggies of a substance suspected to be powdered cocaine was tested before the contents of all the bags were commingled and weighed); Campbell v. State, 563 So.2d 202, 202 (Fla. 3d DCA 1990) (noting that the State properly conceded that, based on Ross, the trial court erred in denying the defendant’s motion to dismiss his trafficking conviction when the chemist only tested the contents of one or two heroin capsules found in the defendant’s change purse); State v. Clark, 538 So.2d 500, 501 (Fla. 3d DCA 1989) (holding that the State failed to meet its burden of demonstrating that the defendants possessed the requisite statutory weight of heroin when the forensic chemist commingled and weighed the contents of a few capsules that tested positive for heroin with several untested capsules containing a similar white powdery substance).

In Mosley v. State, the defendant was arrested and charged with trafficking in cocaine following a drug transaction with a confidential informant. 100 So.3d 1214, 1215 (Fla. 2d DCA 2012). During trial, a detective testified that the evidence recovered from the defendant included a shopping bag which contained two individually wrapped single-ounce baggies of white powder. Id. Each baggie field tested positive for cocaine and was then commingled into a single bag. Id. The State’s chemist testified that the aggregated substance tested positive for cocaine and weighed slightly over fifty-five ounces. Id. The chemist further testified that he also tested both emptied baggies individually, and the residue left in each baggie tested positive for cocaine. Id.

The defendant was convicted of trafficking in cocaine, and his conviction was affirmed by the Second District. Id. at 1216-17. The Second District specifically recognized that the law delineated in Sheridan, Safford, and Ross required chemical testing of each individual baggie prior to commingling the contents of each bag together. Id. at 1216. However, it found these cases to be distinguishable and concluded that:

based on the unique circumstances of this case[,] the State presented sufficient evidence of the requisite statutory weight for trafficking. The State’s expert chemist not only testified that the aggregate substance weighed 55.3 grams and contained cocaine, he also testified that he tested each individual empty baggie, and each contained traces of co~ caine. Accordingly, from this evidence, viewed in a light most favorable to' the State, a jury may reasonably infer that the individual substances constituted eo-caine and the aggregate weight of the substances met the requisite weight to support a trafficking conviction.

Id. (citation omitted). Although factually distinguishable from Ross, the court in Mosley advised that the better, evidentiary practice is to first test the substance of each bag before commingling the individual containers. Id. The evidence in the present case does not replicate the evidence in Mosley.

The application of Ross has not been limited to direct appeals where defendants have challenged the trial court’s- failure to grant a motion for judgment of acquittal. Some defendants have successfully asserted ineffective assistance of counsel claims upon alleging and proving that trial counsel failed to challenge the State’s procedure of collecting and testing evidence in accordance with the requirements of Ross. For example, in Bellizia v. Florida Department of Corrections, 614 F.3d 1326, 1328 (11th Cir.2010), the defendant testified that he was approached by two men who threatened to kill his family if he did not help them smuggle drugs into the United States. The defendant swallowed thirty-three individually wrapped pellets given to him prior to boarding his flight from Venezuela to Miami. Id. Upon arriving in Miami, the defendant lost consciousness and was admitted to the hospital, where the pellets were discovered and surgically removed. Id. The lab technician chemically tested and weighed one pellet, which tested positive for heroin, but did not test or weigh the remaining pellets. Id. Instead, the technician assumed the remaining thirty-two pellets contained heroin, approximated their weight based on the weight of the one tested pellet, and concluded that the aggregate weight of all the pellets was 291.2 grams. Id. Based on the technician’s testimony, the defendant was convicted of trafficking in twenty-eight grams or more of heroin and sentenced to a mandatory minimum of twenty-five years’ incarceration. Id.

The defendant filed a habeas petition in federal district court alleging that his state trial counsel performed ineffectively by failing to move for a judgment of acquittal on the basis that the State failed to prove that he possessed the requisite statutory weight of heroin. See id. The federal district court agreed and found that Bellizia’s counsel was ineffective for failing to challenge the State’s testing procedures under Ross. Id. The Eleventh Circuit Court of Appeals affirmed, stating that “Ross sets out the controlling bright-line rule that the State must test each separately wrapped package that is suspected of containing controlled substances in order to establish the identity and weight of the controlled substance.” Id. at 1330. Consequently, the Eleventh Circuit concluded:

In this case, the district court made factual findings that the substance, inside the separately wrapped pellets . was “akin to powder drugs,” and thus Ross mandated that the State was required to test each of the individually-wrapped pellets in order to meet its burden of proof as to the identity and weight of the alleged heroin. It is undisputed that the State failed to do so. Nonetheless [the defendant] was convicted for possessing 28.1 grams of heroin and sentenced to a mandatory minimum term of imprisonment twenty-two years greater than the mandatory minimum sentence of three years that he would have received based upon the weight of the one and only pellet that was actually weighed.
Ross had been the controlling law for many years on the precise issue that [the defendant’s] counsel faced. The district court did not err in concluding that “[n]o competent counsel — that is, no counsel that was aware of the law— would have failed to argue that the weight of the heroin allegedly possessed by [the defendant] was illegally calculated.” Based on this record, we cannot say that this determination was wrong.

Id. (footnote omitted); see also Purvis v. State, 48 So.3d 784, 736-37 (Fla. 2d DCA 2010) (reversing the trial court’s summary denial of an ineffective assistance claim where the defendant’s counsel failed to challenge the State’s failure to chemically test each individually wrapped bag of white powder before commingling and weighing the aggregate).

Cases That Have Not. Applied or Have Distinguished Ross

Less than a year after Ross, a defendant was convicted of trafficking in cocaine after police discovered the defendant with 139 small plastic baggies of rock cocaine. Bond v. State, 538 So.2d 499, 500 (Fla. 3d DCA 1989). Only one of the 139 baggies was tested by the State’s expert, yet the defendant’s conviction was upheld by the Third District. Id. at 500. Relying upon Ross, the district court distinguished rock cocaine from powder cocaine as follows:

The gravamen of Róss was its recognition that a variety of powdery white substances resemble cocaine in powder form. Rock cocaine, however, more closely resembles pills than powder. Asmer v. State, 416 So.2d 485 (Fla. 4th DCA 1982). Asmer and Ross approve the random testing of commingled pills. Thus, we hold that Ross does not mandate the testing of each rock of cocaine.

Id.; see also Collins v. State, 717 So.2d 186, 187 (Fla. 5th DCA 1998) (upholding a conviction for trafficking in cocaine where a lab analyst randomly tested a single bag of crack cocaine that was filled with the commingled contents of thirty to forty individual packets).

In Pama v. State, customs agents stopped and boarded a fishing boat near Everglades City. 552 So.2d 309, 310 (Fla. 2d DCA 1989). On the boat, law enforcement officers discovered 234 bales of a substance believed to be marijuana. Id. Thirteen bales out of the 234 were randomly tested by a deputy who was qualified as an expert in the identification of marijuana. Id. During trial; the deputy testified that all thirteen bales tested positive for marijuana. Id. Of the thirteen bales tested, only three were weighed, with each bale weighing an average of less than forty-two pounds. Id. at 311. Despite the measured weight of the three tested bales, the State attempted to establish through the testimony of the law enforcement officer that the average weight of the 246 bales was fifty pounds, and that the combined weight of the bales exceeded 11,000 pounds. Id. At the close of the State’s case, the defendants’ motion for judgment of acquittal was denied and the three defendants were convicted of trafficking in marijuana in an amount greater than 10,000 pounds. Id. at 810-11.

On appeal, the district court concluded that the State presented sufficient evidence to establish that all 234 bales contained marijuana, stating that:

It is not necessary for the [Sjtate to prove the identification of marijuana by chemical or scientific means.... [Rather,] [t]he [S]tate may prove the identity of a controlled substance by circumstantial evidence such as the substance’s appearance, odor, and packaging, by the circumstances under which the substance was seized, the manner by which the substance was being transported, a person’s on-the-scene remarks identifying the substance and circumstances surrounding the sale or use of the substance.

Id. at 311 (citations omitted). Having determined that the State provided sufficient proof that the 234 bales contained marijuana, the district court addressed whether the State presented sufficient evidence to satisfy the statutory threshold of weight. Id. The court concluded that, based on the average weight of the three measured bales, the State could not establish that the defendants possessed more than 10,000 pounds of marijuana. Id. at 311-12. As a result, the court reversed the defendants conviction for trafficking in more than 10,-000 pounds, but held that the State had established the defendants were guilty of the lesser included offense of trafficking between 2,000 and 10,000 pounds. Id. at 312. The defendants asserted that the district court should apply Ross and hold that when marijuana is separately packaged, an examination of only some of those packages is insufficient to prove that all of those packages contain marijuana. Id. The district court refused to apply Ross, stating:

We decline to interpret this dicta [from Ross ] to mean that in all cases all packages must be examined. Instead, the lack of visual examination should be just one factor considered when determining the sufficiency of the evidence regarding the identification of marijuana. There may be cases, as here, where the circumstantial evidence is sufficient so that it would be unnecessary to require law enforcement to examine all packages.

Id. (emphasis supplied).

Finally, in Lyons v. State, the defendant was convicted of trafficking in cocaine in an amount greater than 400 grams after two bricks of powdered cocaine were discovered in the defendant’s car during a traffic stop. 807 So.2d 709, 710 (Fla. 5th DCA 2002). The two bricks were found hidden in the backseat of the car inside a cereal box that was packed inside a grocery bag. Id. Testimony during trial revealed that the two bricks were “approximately the same size and were otherwise similar in appearance to one another.” Id. at 711. Further testimony indicated that the two bricks were not tested for the presence of cocaine until after they were commingled, but once they were commingled,'the aggregate substance tested positive for cocaine and weighed 813.4 grams. Id. at 710.

The Lyons court recognized that the rule delineated in Ross was relevant, but concluded that it was distinguishable primarily because the size of the nearly identical bricks, which weighed over double the statutory threshold, was enough for a jury to reasonably find that one of the two nearly identical bricks contained at least 400 grams of a substance containing cocaine.- Id. at 711. As a result, the district court upheld the defendant’s conviction for trafficking in cocaine in an amount greater than 400 grams. Id.

In sum, the two different lines of case law described above provide a comprehensive history of how the, rule originally delineated in Ross has either been applied or materially distinguished. In virtually all cases in which law enforcement have encountered a defendant in possession of multiple individually wrapped packets of white powder suspected to be a controlled substance, but failed to independently chemically test each individual packet, both state and federal courts have held that the defendant’s motion for judgment of acquittal should have been, or was properly/granted on the basis that the State failed to meet its burden to prove the essential element of weight. The application of Ross has not been limited to only substances suspected to be cocaine, but has also been extended to other drugs that share a similar white powdery appearance, such as heroin and methamphetamine.

Conversely, when the chemical composition and structure of the substance at issue differs from a white powder — e.g., marijuana or crack cocaine — courts have almost universally not applied Ross and have allowed the State to prove the weight and identity of a substance with circumstantial evidence. Before the decision under review was issued, Lyons was the only case that allowed the State to use circumstantial evidence to prove the identity and weight of a white powdery substance suspected to be cocaine.

The decision of the First District below falls outside of this consistent line of case law and holds that the Legislature’s policy reason for penalizing possession of mixtures or compounds containing cocaine articulated in Yu “legitimizes” the practice of commingling and weighing the contents of multiple packets of white powder before chemical testing. See Greenwade, 80 So.3d at 374. However, we conclude that the First District’s reliance on the “legislative policy” articulated by this Court in Yu was misguided. As previously noted, in Yu we upheld the constitutionality of section 893.135 against the claim that penalizing possession of a certain amount of “any mixture containing cocaine” without regard to the percentage of cocaine in the mixture was a violation of due process and equal protection. Yu, 400 So.2d at 764-65. In upholding the statute’s constitutionality, we stated that:

The legislature reasonably could have concluded that a mixture containing cocaine could be distributed to a greater number of people than the same amount of undiluted cocaine and thus could pose a greater potential for harm to the public.

Id. at 765 (emphasis supplied). The decision below makes no mention of Yu’s constitutional posture, despite relying almost entirely upon Yu and this purported “policy decision by the [Legislature” to justify its adoption of the totality of the circumstances approach. See Greenwade, 80 So.3d at 372, 374. The applicability of Yu to the legal issue presented, however, is limited because the issue before the Court today is neither constitutional in nature, nor does it involve a determination of whether it is permissible for the State to seek a conviction for trafficking without determining the percentage of illegal drugs in the tested substance. See Yu, 400 So.2d at 764. Accordingly, we conclude that it was inappropriate for the First District to rely on limited select portions of Yu as a basis for adopting the circumstantial evidence test.

This Case

We believe the decision in Ross was well reasoned, and we adopt its analysis here. Courts across Florida have almost universally followed the rule delineated in Ross for decades because it provides a concise and simple rule for prosecutors, law enforcement officers, and courts to follow. Ross supports and enhances the clarity, transparency, and credibility of the evidence collection process and the criminal justice system as a whole. Further, we find the approach articulated by the Third District in Ross to be more consistent with our statutory scheme and the proper administration of justice.

It is a basic rule of statutory construction that statutes that are penal in nature must be strictly construed, and the conduct of the accused must fall plainly and unmistakably within the criminal statute to justify a conviction. Nell v. State, 277 So.2d 1, 4 (Fla.1973). It is apparent from the plain language of the relevant statutory sections that the Legislature intended to define and punish trafficking in different types of substances differently based upon the chemical composition of the substance involved. Section 898.135, the statute under which Greenwade was charged and convicted, indicates that the Legislature intended to harshly punish the distribution of controlled substances or mixtures of controlled substances. See § 893.135, Fla. Stat. (2009). Specifically, the statute punishes offenders for trafficking in cocaine, heroin, and methamphetamine — the three controlled substances referenced by the cases above as resembling a white powdery substance — by making the crime a first-degree felony that carries a mandatory-minimum, sentence ranging from a minimum of three years to life imprisonment, and fines that range from $50,000 to $500,000. See § 893.135(l)(b), (c), (f), Fla. Stat. (2009).

It is equally apparent that the Legislature specifically intended to punish the distribution of counterfeit and look-alike substances less harshly. See § 831.31, Fla. Stat. (2009); § 817.563, Fla. Stat. (2009). Under section 817.563:

It is unlawful for any person to agree, consent, or in any manner offer to unlawfully sell to any person a controlled substance named or described in s. 893.03 and then sell to such person any other substance in lieu of such controlled substance.

§ 817.563, Fla. Stat. (2009). While section 831.31(1) provides:

It is unlawful for any person to sell, manufacture, or deliver, or to possess with intent to sell, manufacture, or deliver, a counterfeit controlled substance.[]

§ 831.31(1), Fla. Stat. (2009). Violators of these sections may face a range of criminal charges from a second-degree misdemean- or to a third-degree felony. See § 831.31, Fla. Stat.; § 817.563, Fla. Stat. A second-degree misdemeanor is punishable by a maximum of sixty days’ imprisonment and a $500 fine, while a third-degree felony is punishable by a maximum of five years’ imprisonment and a $5,000 fine. See §§ 775.082-83, Fla. Stat. (2009).

Thus, even if the Legislature’s intent was to stunt illegal drug distribution by punishing mixtures of controlled substances, the language of the statutes also demonstrates that the Legislature consciously decided to define and punish the distribution of counterfeit or look-alike substances differently and less severely than controlled substances and mixtures of controlled substances. In other words, these statutes reflect a legislative intent to not punish individuals who possess counterfeit or look-alike drugs under the trafficking statute, section 893.185. However, the process of commingling creates an unjustifiably high risk that noncontrolled substances will be inappropriately mixed with controlled substances. Once multiple packets of individually wrapped powder are commingled before they are chemically tested, the simple process of commingling irreversibly destroys both the independent chemical composition of each individually wrapped packet and the ability to discern whether the pre-commingled substance was controlled or counterfeit. In fact, when multiple packets of white powder are commingled before chemical testing, the entire commingled substance will be, according to section 893.185, cocaine or a mixture thereof as long as one of the individual packets discovered in the defendant’s possession contains cocaine. See § 893.135, Fla. Stat. (2009). In effect, by commingling before testing each individually wrapped packet, the State can eliminate any possibility of discovering whether one or more of the individual packets contained a noncontrolled substance, while simultaneously increasing the probability that a defendant will be charged with trafficking in a higher amount than would have been possible if the State had individually tested each packet.

The plain language and structure of these statutes demonstrate that the Legislature clearly intended to provide for distinct crimes and substantially different punishments for different types of substances. To effectuate the legislative intent, we hold that to establish beyond a reasonable doubt that individually wrapped packets of white powder meet the statutory threshold for weight in trafficking prosecutions, the State must chemically prove that each individually wrapped'packet contains at least a mixture of a controlled substance before it may combine the contents and determine whether those contents meet the statutory threshold for weight. This rule is consistent with both the legislative intent of these statutes and good policy which demonstrates that the benefits of independent testing substantially outweigh the burden of requiring the State to chemically test each individual packet.

While we hold that the State must chemically test every individually wrapped packet of white powder seized in order to establish the statutory threshold weight for trafficking, we emphasize that this rule only applies when the substance discovered is one that poses an identifiable danger of misidentification, such as the white powder discovered in this case. If the chemical composition of the substance seized does not pose a danger of misidentification,the State is not required to chemically test individually wrapped packets in order to establish the requisite statutory weight for trafficking. See Bond, 538 So.2d at 500 (holding that the rule in Ross did not apply to rock cocaine); see also Pama, 552 So.2d at 312 (similar holding with respect to marijuana).

• Finally, to rebut the application of Ross, the State contends that Pama and Lyons support the totality of the circumstances approach adopted by the First District below. Specifically, the State contends that under Pama, the State may commingle the contents of individually wrapped packets of white powder and, then rely upon circumstantial evidence to prove that the commingled substances meet the statutory weight threshold for trafficking. We disagree for two reasons.

First, Pama is distinguishable from this case because Pama specifically addressed the State’s ability to prove the identity and weight of marijuana. See Pama, 552 So.2d at 311. In contrast, the holdings of all three conflict cases are based on the idea that, unlike other substances, white powder could be “one of a vast variety of other white powdery chemical compounds” not containing a controlled substance. See Ross, 528 So.2d at 1239; see generally Sheridan, 850 So.2d at 640; Safford, 708 So.2d at 677. This distinction is material because whether the State can commingle the contents of individually wrapped packets before chemically testing and weighing the contents in the aggregate is dependent on the nature of the substance itself.

Second, even if we were to assume that Pama stands for the proposition that the State may commingle the contents of individually wrapped packets of white powder and rely upon circumstantial evidence to prove that the commingled substances satisfy the statutory weight threshold for trafficking, the holding in Pama was effectively overruled by Safford, Sheridan, and Mosley. All four cases were issued by the Second District; however, the latter three were decided after Pama and have taken the exact opposite position on commingling individually wrapped packets of powder. In other words, if Pama stands for the principle of law the State alleges, the case is no longer good law because Safford, Sheridan, and Mosley supersede it. The current position of the Second District on this issue is that the State cannot commingle the contents of individually wrapped packets of white powder without first chemically testing each packet independently. Accordingly, we decline to adopt the position of the State based on Pama.

Furthermore, we find the factual circumstances of Lyons to be distinguishable from the facts here. In Lyons, the State could have satisfied its burden to prove beyond a reasonable doubt that the defendant possessed a controlled substance in an amount greater than the statutory weight threshold for trafficking without commingling the contents of the two bricks discovered. See Lyons, 807 So.2d at 711 (holding that even if only one brick contained cocaine, that “was enough for a jury to reasonably find that one of the two rather identical bricks contained at least 400 grams of a substance containing cocaine.”). No case in this area, including the decision below, presents similar factual circumstances on this dispositive - issue. Rather, in the case before us today — as well as in Ross, Safford, and Sheridan— commingling the contents of the individual packets was necessary to reach the statutory threshold for weight. Consequently, this fact materially distinguishes Lyons from this case and every other case in this area.

CONCLUSION

Based on the foregoing,, we hold that to satisfy the burden of proving that the evidence seized meets the statutory threshold for weight in trafficking prosecutions beyond a reasonable doubt, the State must prove through chemical testing that each individually wrapped packet of white powder seized contains at least a mixture of a controlled substance before the State may combine and weigh the commingled substance. However, we note that our holding applies only to the circumstance in which law enforcement officers discover individually wrapped packets of a substance that poses an identifiable danger of misidentification. Consequently, we quash the decision below and approve the decisions in Ross, Safford, and Sheridan. We further conclude that the trial court should have granted the motion for judgment of acquittal with regard to Greenwade’s trafficking conviction because the State commingled the contents of the nine individual baggies before chemically testing the aggregate. Accordingly, we remand this case to the district court with instructions to direct the trial court to reduce Green-wade’s conviction to simple possession and to resentence him accordingly.

It is so ordered.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion in which POLSTON, C.J., concurs.

CANADY, J.,

dissenting.

Because I conclude that a rational jury could decide that the evidence presented established beyond a reasonable doubt that Greenwade was guilty of the cocaine trafficking offense for which he was convicted, I dissent. I would approve the decision of the First District Court on review and disapprove Ross v. State, 528 So.2d 1237 (Fla. 3d DCA 1988), and its progeny.

The majority decides that there was no basis for a rational jury to conclude beyond a reasonable doubt that the green bag — which Greenwade conceded contained cocaine — did not contain some baggies with counterfeit cocaine. In doing so, the majority fails to adhere to the rule that a motion for a judgment of acquittal should not be granted “unless the evidence is such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law” and that the determination of the jury must prevail if “there is room for a difference of opinion between reasonable [people] ... as to the inferences which might be drawn from conceded facts.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

I would follow this rule and adopt the reasoning of Chief Judge Schwartz’s dissent in Ross. Ross, 528 So.2d at 1241 (Schwartz, C.J., dissenting) (“It seems to me, as it must have to the jury, eminently reasonable to conclude that the material in the packet randomly selected from each of the two bundles was representative and characteristic of the other ones, which were otherwise identical in every way.”). It is reasonable for a jury to conclude that a person packaging drugs for distribution would not intermingle visibly indistinguishable baggies containing counterfeit cocaine with baggies containing genuine cocaine. Such a person has an obvious incentive to store his goods in such a way that he will not easily confuse his counterfeit cocaine with his genuine cocaine. See State v. Gosa, 263 N.J.Super. 527, 623 A.2d 301, 306 (Ct.App.Div.1993) (“Since defendant had 180 vials of a white powdery substance in a locked toolbox in his bedroom, fifteen of which were randomly selected, tested and found to contain cocaine, the clear inference is that the other 165 vials, if tested, would also be found to contain cocaine .... This is sufficient circumstantial evidence to undergird the conviction for the higher degree offense. We thus conclude, based on logic and common experience, that the circumstantial evidence that these other 165 vials also contained cocaine, supports the trial judge’s determination that a reasonable jury could find guilt as to the offense beyond a reasonable doubt.”)

Here, the jury’s determination is further supported by Greenwade’s unqualified admission that the green bag contained cocaine. It was reasonable for the jury to infer that the green bag did not contain baggies of counterfeit cocaine intermingled with baggies of genuine cocaine when the defendant stated to law enforcement simply that the bag contained cocaine. The majority’s curt dismissal of the significance of this admission defies “the common sense understanding that an unqualified statement lacks qualifications.” United States v. Frankson, 88 F.3d 79, 82 (4th Cir.1996). That common sense understanding is particularly compelling when — as in this case — the omitted qualification would likely mitigate the criminal responsibility of the defendant.

Greenwade’s cocaine trafficking conviction should not be disturbed.

POLSTON, C.J., concurs.

      . Although Greenwade admitted that the green bag contained cocaine, he did not admit that each of the baggies in the, larger bag contained cocaine.

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

      . There is no evidence in the record indicating whether each of the nine baggies field tested positive for cocaine. Detective Bishop testified that he field tested every baggie, but neither the prosecutor nor defense counsel asked Detective Bishop for the results of the field testing. Despite this lack of evidence, the district court’s analysis appears to assume that the results of the field testing were positive. See Greenwade, 80 So.3d at 372, 374.

      . Neither the record nor the decision below indicates when the contents of the nine énvel-opes were combined and transferred into the Ziploc bag. Detective Bishop testified during trial that once the nine baggies of cocaine were taken to the property room they were separated into nine separate envelopes. He also testified that it was standard procedure to put all of the powder seized from a single arrest together for testing purposes. However, Detective Bishop did not indicate when the nine envelopes of off-white powder were combined into the one Ziploc bag. Dr. War-niment testified that she did not know whether the nine envelopes individually contained cocaine because she received one bulk container of off-white powder. She testified that "if a number of different bags of powder were dumped together, I would not be able to determine whether all of them were of exactly the same composition.”

      . A "counterfeit controlled substance” is defined by section 831.31(2)(a), Florida Statutes (2009), as:
      A controlled substance named or described in [section] 893.03 which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, or number, or any likeness thereof, of a manufacturer other than the person who in fact manufactured the controlled substance: or
      (b) Any substance which is falsely identified as a controlled substance named or described in [section] 893.03.

      . This point was directly illustrated at Green-wade’s trial. Dr. Warniment, the forensic chemist who examined the commingled packets of white powder in this case, testified that because she received one commingled packet of powder she could not "speak to the individual bags, if they existed[,]” and that "if a number of different bags of powder were dumped together, I would not be able to determine whether all of them were of exactly the same composition.”


source: Caselaw Access Project

author: PER CURIAM. MAKAR, J.,

license: Public Domain

text:
    Jonathan Scott THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2497.
    District Court of Appeal of Florida, First District.
    June 27, 2013.
    Jonathan Scott Thompson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the trial court’s order denying his postconviction motion, which argued, among other claims, that his trial counsel was ineffective because he failed to advise the appellant that double jeopardy precluded multiple convictions for possession of a firearm and ammunition by a convicted felon, thus rendering his plea involuntary. The trial court denied the motion basically because the appellant entered a plea.

Notwithstanding the negotiated plea, the appellant’s claims are cognizable. See Cox v. State, 908 So.2d 1146 (Fla. 1st DCA 2005); Pearson v. State, 867 So.2d 517 (Fla. 1st DCA 2004). Furthermore, we conclude these claims are facially sufficient. See Hill v. State, 711 So.2d 1221 (Fla. 1st DCA 1998); Francis v. State, 41 So.3d 975 (Fla. 5th DCA 2010); Boyd v. State, 17 So.3d 812 (Fla. 4th DCA 2009).

Whether the appellant would have forgone his favorable plea in light of the life sentences he otherwise faced is a question that should be resolved at an evidentiary hearing.

We therefore reverse and remand for further proceeding on the double jeopardy issues. The order is otherwise affirmed.

WOLF and OSTERHAUS, JJ„ concur; MAKAR, J., concurs in part and dissents in part with Opinion.

MAKAR, J.,

concurring in part, dissenting in part.

I agree with the trial court’s conclusion that, on this record, prejudice to Appellant is lacking because no reasonable probability exists that he would have decided to forego the very favorable plea agreement he received, which capped his sentence at 20 years of imprisonment, and go to trial when he faced multiple life sentences. I otherwise concur.


author: PER CURIAM. WOLF and OSTERHAUS, JJ.,

text:
    MOLLY LEWIS SASSO, P.A., Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Holly H. Adamson, Appellees.
    No. 1D12-4685.
    District Court of Appeal of Florida, First District.
    July 26, 2013.

      Molly Lewis Sasso, pro se, Appellant.
    Louis A. Gutierrez, Senior Attorney, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

To successfully challenge an appeals referee’s findings of fact, an appellant must demonstrate a lack of competent, substantial record evidence supporting the findings. See Borakove v. Fla. Unemployment Appeals Comm’n, 14 So.3d 249, 252 (Fla. 1st DCA 2009). Here, competent substantial evidence in the record supports the appeals referee’s findings. And so we must affirm.

Specifically, claimant testified that she was not intoxicated at work on the day at issue in this case. The appeals referee found this testimony “more credible” than other evidence presented and ultimately resolved material eviden-tiary conflicts in the claimant’s favor. Other evidence, such as highlighted by the dissent, tends to support the employer’s case. But even this other evidence does not uniformly support Appellant’s case. For instance, the claimant’s boss interacted with her before any other witness at 8 a.m. on the day at issue. And the boss’s testimony indicated that that she was not sure if claimant was under the influence of alcohol: “I thought [that] maybe she had drank the night before and not brushed her teeth in the morning, I wasn’t 100 percent sure, but she did seem a little more talkative and outgoing than normal.... But, you know, I wasn’t exactly sure what was going on.” That the appeals referee ultimately made a credibility determination and resolved conflicting evidence in claimant’s favor, was well within her purview. See Heifetz v. Dep’t of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985).

Finally, while we would probably not have made the same factual findings as the referee, the claimant’s testimony is competent substantial evidence to support the referee’s decision. And an appeals referee’s decision must be accepted if supported by competent substantial evidence. See Sauerland v. Fla. Unemployment Appeals Comm’n, 923 So.2d 1240, 1241 (Fla. 1st DCA 2006); see also Hubbard v. Unemployment Appeals Comm’n, 53 So.3d 1261 (Fla. 4th DCA 2011). The law thus requires us to affirm the decision.

WOLF and OSTERHAUS, JJ.,

concur;

MAKAR, J., dissents with opinion.

I would reverse because the legal assistant’s conduct was shown to be sufficiently egregious to justify her termination. Here, the lawyer in charge, and her witnesses, provided direct evidence of the legal assistant’s unacceptable behavior: the lawyer in charge detailed instances of unusual and substandard conduct accompanied by alcohol on the employee’s breath; a firm employee testified that the legal assistant was “obviously drunk”; the lawyer who hired the legal assistant after she was terminated said he discharged her after three days because of alcohol on her breath. Yes, the legal assistant generally denied the allegations, but she admitted to drinking the night before and to having some “serious coffee” before coming to work (claiming it was the caffeine that caused her unusual behavior). That the law firm had no written policy about intoxication at the office during work hours does nothing to detract from the legal assistant’s behavior; everyone knows that professionalism in the law firm context dictates that attorneys and those under their direction have a basic obligation not to come to work intoxicated, notwithstanding large doses of early morning coffee to alleviate the excesses of the night before. She was also observed at social functions inebriated, and the lawyer in charge detailed her declining work product in the months prior to termination. Under these circumstances, it was error to award benefits to the claimant.


author: PER CURIAM.

text:
    E.M.J., Mother of I.C.H. and J.C.H., Minor Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-2056.
    District Court of Appeal of Florida, First District.
    Aug. 20, 2013.
    Crystal McBee Frusciante, Jupiter, for Appellant.
    Ward L. Metzger, Appellate Counsel, Jacksonville, for Appellee.
   PER CURIAM.

Appellant claims that the trial court committed reversible error in granting the Department’s motion for an injunction to prevent child abuse pursuant to section 39.504, Florida Statutes (2012), because (1) the court lost jurisdiction after the adoption of the children; (2) the adoptive parent was not served with the motion in violation of her due process rights; and (3) the court failed to hold an evidentiary hearing once appellant objected to the injunction. Contrary to appellant’s assertion, the trial court had jurisdiction under section 39.013(2), Florida Statutes (2012), to hear the Department’s motion for an injunction, which was filed before entry of the final judgment of adoption. See In re S.N.W., 912 So.2d 368, 873-74 (Fla. 2d DCA 2005). In addition, appellant did not have standing to assert a due process claim on behalf of the non-appealing adoptive parent. See C.K. v. Dep’t of Children & Families, 65 So.3d 1179, 1180 (Fla. 5th DCA 2011). However, the Department correctly concedes the trial court violated appellant’s due process rights by not requiring the Department to prove its entitlement to an injunction under section 39.504 at a full evidentiary hearing. See Dep’t of Children & Families v. D.B.D, 42 So.3d 916, 920-21 (Fla. 4th DCA 2010). See also Achurra v. Achurra, 80 So.3d 1080, 1083 (Fla. 1st DCA 2012). Accordingly, we reverse and remand with directions that the trial court hold an eviden-tiary hearing.

REVERSED and REMANDED with directions.

CLARK, ROWE, and SWANSON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Patrick RIVERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3801.
    District Court of Appeal of Florida, Second District.
    Aug. 23, 2013.
    Rehearing Denied Oct. 31, 2013.

      Howard L. Dimmig, II, Public Defender, and Katharine B. Heyward, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gina M. Girardot, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Patrick Rivers was convicted and sentenced for multiple crimes arising from a string of car burglaries and a subsequent attempt to flee from police. He does not challenge his conviction or time-served sentence for obstructing or opposing an officer without violence, and we affirm this conviction without further comment. In his appeal of the remaining convictions we affirm in part, reverse in part, and remand for a new trial on one charge.

In addition to obstructing an officer without violence, Rivers was charged with and convicted of three counts of burglary of an unoccupied conveyance, one count of attempted burglary of an unoccupied conveyance, two counts of grand theft, one count of grand theft of a motor vehicle, and fleeing to elude at high speed. Rivers argues that the trial court erred in denying his motion for judgments of acquittal (JOA) on the seven burglary and theft charges. He also challenges jury instructions in regard to those charges and to the fleeing-to-elude charge.

Testimony by the State’s witnesses provided a timeline of the incidents giving rise to Rivers’ charges. At 7:00 or 7:15 a.m. on May 4, 2009, a Ford Thunderbird pulled up to a home. A man exited the car and tried to break into a truck with a crowbar, setting off the truck’s alarm. A neighbor observed these events through her window. She yelled for her husband, who ran outside, and she called 911. She saw the man climb back into the Thunderbird, which then sped away. The truck’s owner also heard the alarm and corroborated the time of the attempted break-in. He did not see anyone try to enter the truck, but later inspection showed that the truck’s door had been popped and that the lock had been pushed in.

The neighbor who saw the man with the crowbar could not identify him or anyone else in the Thunderbird, which had tinted windows. She did not say whether the man she saw was the driver or a passenger. Her husband also did not say who was driving or how many people were riding in the car. But he noted its license plate number before it left. When the police arrived ten or fifteen minutes later, he gave them the tag number.

A deputy sheriff was dispatched to the scene at 7:28 a.m. She testified that law enforcement traced the tag number to the Thunderbird’s owner, who was unaware that her car had been stolen. She had last seen the car in a parking lot at 3:00 p.m. on the day before, and she had not given anyone permission to take it. Shortly after the deputy’s arrival at the scene, she issued a be-on-the-lookout report for the stolen Thunderbird.

Between 8:00 and 8:10 a.m., two women had their purses stolen from their cars, which were parked at a school. Both women had escorted their children to the school and returned to find their car windows broken and their purses missing.

At approximately 8:30 a.m., a Florida Highway Patrol trooper received a “Lo-Jack hit,” which alerted him that a stolen vehicle was within three miles of his location. Within the next minute, the trooper spied the stolen Thunderbird when it pulled out in front of him. The trooper activated his lights and siren, and he pursued the car when it failed to stop. For the next fifteen to thirty minutes, the trooper followed the stolen car. The Thunderbird went onto and off of the interstate, moving at high speed; it jumped concrete medians on the city streets; and at times, it went the wrong way against the direction of traffic. The stolen Thunderbird rear-ended one car as it exited the interstate, but it drove away from this accident. It eventually hit a second vehicle, and this crash ended the chase. The trooper saw four men jump out of the Thunderbird and run off. He noted the clothes worn by the driver, and he gave chase on foot. With the assistance of a K-9 dog, Rivers was found hiding under a tarp in a backyard shed. Another occupant of the car, Rufus McGhee, was found hiding under a mobile home. Two more young men were later identified and charged in these crimes.

After Rivers was in custody, the trooper identified him as the driver of the stolen car based on his clothing. He later identified Rivers in court as the driver. The two stolen purses were found on the rear floorboard of the Thunderbird. Of the fingerprints lifted from the stolen car, only one was identified — McGhee’s fingerprint was on the rearview mirror.

After the State rested, defense counsel argued his JOA motion, raising the issues we discuss below. The trial court denied the motion. The defense then presented testimony by McGhee and the officer who found him. Although we recount this testimony, we note that it has no bearing on the question whether the trial court properly denied Rivers’ JOA motion. “The State may not rely upon evidence presented during [appellant’s] subsequent defense to supply essential missing links in the State’s prima, facie case to support the denial of the motion for judgment of acquittal.” Wagner v. State, 421 So.2d 826, 827 (Fla. 1st DCA 1982).

When McGhee testified on behalf of Rivers, he had already been convicted of offenses arising from this episode. McGhee’s testimony contradicted the time-line established by the State’s witnesses. According to McGhee, he stole the Thunderbird by himself at around 7:00 or 7:20 a.m. He said that he alone broke into the cars at the school and stole the women’s purses, at around 7:50 or 8:00 that morning. He then picked up his younger brother, his friend Rivers, and another friend at about 8:15 a.m. McGhee testified that he told the others that he wanted to stop by a friend’s house to pick up something. When they stopped, McGhee said he got out of the car with a screwdriver and tried to break into the truck. He fled when the alarm went off. McGhee claimed that he was driving the whole time and that law enforcement began pursuit within three to five minutes after the unsuccessful burglary of the truck. McGhee admitted in cross-examination that he had not previously said that he was the driver.

Defense counsel renewed the JOA motion, which the trial court again denied. The court then instructed the jury on the charged offenses and, ■ over objection, on the law of principals and on the inferences arising from possession of recently stolen property and from proof of stealthy entry. The jury convicted Rivers of all counts as charged: attempted burglary of the truck; two burglaries and two grand thefts related to the purses stolen from the women’s cars; a burglary and grand theft related to the stolen Thunderbird; fleeing to elude at high speed; and obstruction without violence.

I.Standard of Review on Denial of JOA Motion

We review the denial of the JOA motion de novo, taking the evidence and reasonable inferences therefrom in the light most favorable to the State. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). We note that the trooper’s eyewitness testimony identifying Rivers as the driver of the car was direct evidence only of Rivers’ guilt of fleeing to elude and obstruction; on the burglary and grand theft charges, the evidence of Rivers’ guilt was entirely circumstantial. See Singleton v. State, 105 So.3d 542, 544 (Fla. 2d DCA 2012) (explaining difference between direct and circumstantial evidence of guilt: “Direct evidence is evidence which requires only the inference that what the witness said is true to prove a material fact.... Circumstantial evidence is evidence which involves an additional inference to prove the material fact .... ” (quoting Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 401.1 (2011 ed.))). For this reason, on those charges our standard of review requires that we determine whether the evidence was sufficient to exclude Rivers’ reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187, 188-89 (Fla.1989). As to this issue, the State’s burden was not “to rebut conclusively every , possible variation of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events.” Id. at 189 (footnote and internal quotation marks omitted).

II.Attempted Burglary

On appeal, the State concedes that the evidence was insufficient to support Rivers’ conviction for attempted burglary, even as a principal. As the State notes, quoting Staten v. State, 519 So.2d 622, 624 (Fla.1988), “[i]n order to be guilty as a principal for a crime physically committed by another, one must intend that the crime be committed and do some act to assist the other person in actually committing the crime.” We agree that the State failed to introduce sufficient evidence of guilt on this charge, and we reverse the conviction for attempted burglary of the truck (count 5)...

III.Burglaries and Thefts of the Purses

The State also concedes that it failed to introduce evidence of the stolen purses’ value sufficient to support convictions for grand theft; it suggests that the convictions should be reduced to petit theft. But we conclude that the evidence was insufficient to prove Rivers’ guilt for any theft or burglary involving the purses. There was no direct evidence of Rivers’ participation in these crimes, and because the circumstantial evidence failed to show that Rivers was in possession of the stolen property, the State was not entitled to inferences of guilt arising from possession of recently stolen property.

When the four men fled the Thunderbird after the chase, they left two stolen purses on the rear floorboard. The State’s evidence established that the purses were stolen about a half hour before the trooper began pursuing the Thunderbird and that Rivers was in the driver’s seat when the chase ended. But no evidence placed the Thunderbird in the vicinity of the school where the purses where stolen, and no evidence showed that Rivers even knew the purses were in the car, much less that he had dominion and control of them.

In Bronson v. State, 926 So.2d 480 (Fla. 2d DCA 2006), this court reversed a conviction under similar facts, where the evidence showed nothing more than the defendant’s mere proximity to stolen property. In that case, the investigation of a home burglary and theft led to the stop of a pickup truck that had been seen by a neighbor at the burgled residence. The truck was driven by Bronson’s father, and Bronson was a passenger. Stolen property was located in the bed of the truck, under the passenger seat, and in the driver’s door panel. A stolen television was found at the home of Bronson’s girlfriend. But the defense presented testimony from Bronson’s sister, who said that Bronson was with her all morning when the burglary occurred. She also said that the father arrived that morning in the truck, she saw some of the stolen property in the back of the truck, she saw the father leave the television, and she saw Bronson then leave in the truck with his father.

Bronson argued that the State’s evidence showed only his proximity to stolen property and that no evidence placed him at or near the scene of the crime. He further argued that the lack of evidence was not cured by the inference arising from possession of recently stolen property. This court agreed that the inference did not apply because the evidence failed to show Bronson had exclusive, even if joint, possession of the stolen items.

Mere possession of stolen property, without other evidence of guilt, is not to be regarded as prima facie evidence of larceny, robbery, receiving stolen property, or burglary. It must be shown that the possession of the defendant was exclusive, recent, and involved a distinct and conscious assertion of property.

926 So.2d at 483-84 (quoting Scobee v. State, 488 So.2d 595, 598 (Fla. 1st DCA 1986)) (emphasis omitted). We concluded that “[t]he circumstantial evidence not only fail[ed] to refute Mr. Bronson Jr.’s reasonable hypothesis of innocence but also fail[ed] to establish a prima facie case of guilt.” Id. at 484-85.

The same is true in this case. Rivers was driving a car, but there were three passengers, two of whom were sitting in the back seat where the stolen purses were found. Rivers was not in exclusive possession of the purses, and he was not placed at the scene of the burglaries when the purses were stolen. The State presented no other evidence to show that Rivers had “conscious,” “substantial,” “personal and exclusive” possession of the purses. See id. at 484 (citing Garcia v. State, 899 So.2d 447, 451 (Fla. 4th DCA 2005)); see also K.V. v. State, 516 So.2d 1087 (Fla. 2d DCA 1987) (holding that juvenile was not in exclusive possession of stolen moped, and inference of guilt was therefore inapplicable, when he was merely pushing it down the street with several other boys).

We also hold that the convictions cannot be sustained under the law of principals. There was no evidence that Rivers intended for the crimes to be committed and assisted another in actually committing them. See Staten, 519 So.2d at 624. Accordingly, we reverse the convictions for two burglaries and two grand thefts relating to the purses stolen from vehicles (counts 1-4).

TV. Burglary and Grand Theft of Thunderbird

The State’s evidence showed that the Thunderbird was burgled and taken between 3:00 p.m. on May 3, when it was last seen by its owner, and 7:00 a.m. on May 4, when it was seen in connection with the attempted burglary of the truck. The State presented no evidence of a more exact time of the theft or the manner by which it was accomplished. The State did present evidence that Rivers was driving the car at 8:30 a.m. on May 4, and over objection it was given the benefit of jury instructions on inferences of guilt.

On the burglary charge involving the Thunderbird, the trial court instructed the jury that the State must prove that (1) Rivers “entered a motor vehicle owned by or in the possession of’ the named victim and (2) “at the time he did so, he had the intent to commit an offense in that motor vehicle.” See § 810.02(1)(b)(4)(b), Fla. Stat. (2008); Fla. Std. Jury Instr. (Crim.) 13.1. The jury was also instructed: “You may infer that the defendant had the intent to commit an offense inside the motor vehicle if he entered or attempted to enter stealthily and without the consent of the owner.” See § 810.07(1); Fla. Std. Jury Instr. (Crim.) 13.1. But, given that it was not known when or how the car was stolen, there was no proof of stealthy entry. Thus, we agree with Rivers’ argument that the trial court erred by giving this latter instruction. See J.A.S. v. State, 952 So.2d 638 (Fla. 2d DCA 2007) (discussing cases where stealthy entry was or was not shown). However, we conclude that the error was harmless. See Daughtry v. State, 804 So.2d 426 (Fla. 4th DCA 2001) (applying harmless error analysis to improper jury instruction on inference of intent arising from proof of stealthy entry). The facts show that the car was stolen, and the inescapable conclusion is that it was entered with the intent to steal it. We see no reasonable possibility that the error in giving this instruction contributed to the conviction, and we conclude that the erroneous instruction was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

The jury was also instructed as follows:

Proof that the defendant was in possession of property recently stolen in a burglary of a conveyance, unless such possession is satisfactorily explained, may justify a conviction for burglary of a conveyance if the circumstances of the burglary of the conveyance and the circumstances of possessing the stolen property convince you beyond a reasonable doubt that the defendant committed that burglary.

See State v. Young, 217 So.2d 567, 570 (Fla.1968) (explaining that jury may infer guilt of burglary by inference arising from unexplained possession of recently stolen property); see also Fla. Std. Jury Instr. (Crim.) 13.1.

And it was instructed: “Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the possession [sic] of the property knew or should have known that it had been stolen.” See § 812.022(2), Fla. Stat. (2008); Fla. Std. Jury Insto. (Crim.) 14.1.

The trooper’s identification of Rivers as the driver of the stolen Thunderbird established his possession of it. See A.D. v. State, 106 So.3d 67, 70 (Fla. 2d DCA 2013) (“In the context of an automobile theft, [intent] would be shown, if not by aid or participation in the taking of the vehicle, then by some exercise of dominion and control over it afterwards.”) (quoting G.C. v. State, 560 So.2d 1186, 1187 (Fla. 3d DCA 1990) (alteration in original)); cf. Adderly v. State, 462 So.2d 574 (Fla. 3d DCA 1985) (holding that evidence sufficed to show defendant’s possession of stolen auto when defendant was found sleeping in back seat and car keys were on floorboard next to defendant’s hat).

In addition, the evidence was sufficient to establish that the Thunderbird was recently stolen at the time Rivers was shown to possess it. See Burroughs v. State, 221 So.2d 159, 161 (Fla. 2d DCA 1969) (explaining that “ ‘recently ... is not necessarily measured by the mere passage of time” and “depends upon the nature or identity of the stolen property;” noting that autos “are cumbersome to transfer”); Kittles v. State, 897 So.2d 517, 519 (Fla. 4th DCA 2005) (noting instruction on inference given in case where possession of stolen property shown to be no more than eighteen hours after burglary); cf. M.D.S. v. State, 982 So.2d 1282, 1285 (Fla. 2d DCA 2008) (concluding that inference did not apply, in part because State failed to prove when car was taken and thus failed to prove it was “recently’ stolen).

We have considered whether proof of Rivers’ possession, standing alone, would support his convictions. In State v. Graham, 238 So.2d 618, 621 (Fla.1970), the Florida Supreme Court held that “[p]roof of mere naked possession of property recently stolen, not aided by other proof that the accused received it knowing it to have been stolen, is not sufficient to show guilty knowledge” as required for a conviction of buying, receiving, or concealing stolen property. In explaining what more was required, the court said: “Proof of possession should be coupled with evidence of unusual manner of acquisition, attempts at concealment, contradictory statements, the fact that the goods were being sold at less than their value, possession of other stolen property, or other incriminating evidence and circumstances.” Id.

Although the supreme court noted that “a different rule pertains in larceny cases,” id., the Fourth District later held that the same rule now applies in larceny cases due to statutory amendments to chapter 812 in 1977. See Jackson v. State, 736 So.2d 77, 83-84 (Fla. 4th DCA 1999) (tracing back to common law inference of guilt arising from unexplained possession of stolen property). In that case, the Fourth District reversed a conviction for grand theft of a motor vehicle based solely on possession of the recently stolen car and in the absence of any other incriminating evidence or circumstances. But this court, in a case involving burglary and grand theft charges, has stated that the statutory presumption, alone, has been held sufficient to support a theft conviction. State v. Grimmage, 522 So.2d 523, 524 (Fla. 2d DCA 1988). In support of'this proposition, we cited a case of dealing in stolen property, Coleman v. State, 466 So.2d 395 (Fla. 2d DCA 1985), and two cases that predated the 1977 statutory amendments, Morgan v. State, 303 So.2d 393 (Fla. 2d DCA 1974) (robbery); Burroughs, 221 So.2d 159 (auto theft).

In Rivers’ case, we need not decide whether the statutory presumption based on his bare possession of the vehicle would be sufficient to support his convictions for burgling and stealing it. This is because the State also introduced proof of his flight from the trooper. An attempt to elude detection can provide “the other incriminating evidence and circumstances” to support a conviction when combined with the statutory presumption. Kittles, 897 So.2d at 519 (internal quotation marks omitted). “Evidence of flight is relevant to infer consciousness of guilt where there is a sufficient nexus between flight and the crime with which a defendant is charged.” Powell v. State, 908 So.2d 1185, 1187 (Fla. 2d DCA 2005). Athough it is arguably a close question, we affirm Rivers’ convictions for burglary and grand theft of a motor vehicle arising from the theft of the Thunderbird (counts 7 and 8). In doing so, we reject without further comment Rivers’ argument that the State failed to prove venue for this offense.

V. Fleeing to Elude

Last, we address the conviction for fleeing at high speed to elude. Rivers argues that the trial court erred in giving the principals instruction on this charge. We commend the trial court for acknowledging after the trial that this instruction was given in error. But we disagree with the trial court’s conclusion, and the State’s argument on appeal, that the error was harmless.

A principals instruction is warranted when the evidence shows that the defendant aided and abetted in the commission of a crime. See Staten, 519 So.2d at 624. For example, in Michel v. State, 752 So.2d 6 (Fla. 5th DCA 2000), a passenger was properly convicted as a principal to vehicular homicide when the evidence showed that he owned the truck, had been told by a trooper not to drive at night and not to drive on the highway until the truck was properly equipped with tail lights, but procured his codefendant to drive the truck on the highway at night without tail lights, resulting in a fatality when another driver rear-ended the truck.

In the instant case, however, there was no evidence that Rivers aided and abetted another in the offense of fleeing to elude. He properly could be found guilty of this charge only upon a determination that he was driving at the time. In his defense, he presented testimony from McGhee, who claimed that he was the driver, not Rivers. Under the principals instruction, the jury arguably (albeit erroneously) could accept McGhee’s testimony and still convict Rivers. Thus we cannot say that the improper instruction was harmless error. See Masaka v. State, 4 So.3d 1274, 1285-86 (Fla. 2d DCA 2009) (noting that a harmful error occurs with a jury instruction that is “capable of misleading the jury in such a way as to prejudice the defendant’s right to a fair trial” (quoting Lewis v. State, 693 So.2d 1055, 1057 (Fla. 4th DCA 1997))). We reverse the conviction for fleeing to elude (count 6), and we remand for a new trial on this charge.

We reverse the convictions for burglary (counts 1 and 2), grand theft (counts 3 and 4), attempted burglary (count 5), and fleeing to elude (count 6); we affirm the convictions for burglary (count 7), grand theft (count 8), and obstruction (count 9); and we remand for a new trial on fleeing to elude (count 6).

Affirmed in part, reversed in part, and remanded.

GALLEN, THOMAS M„ Associate Senior Judge, Concurs.

MORRIS, J., Concurs in result only.

      . § 843.02, Fla. Stat. (2008).

      . § 810.02(1 )(b)(4)(b), Fla. Stat. (2008).

      . §§ 810.02(l)(b)(4)(b), 777.04, Fla. Stat. (2008).

      . § 812.014(2)(c)(l), Fla. Stat. (2008).

      . § 812.014(2)(c)(6).

      . § 316.1935(3)(a), Fla. Stat. (2008).

      . G.C. was approved, 572 So.2d 1380 (Fla.1991), and later receded from in part on other grounds, I.T. v. State, 694 So.2d 720 (Fla.1997).


text:
    George P. CIPORKIN, Appellant, v. IRWIN CONTRACTING, INC., a Florida corporation, Appellee.
    No. 2D12-589.
    District Court of Appeal of Florida, Second District.
    Aug. 28, 2013.
    Rehearing Denied November 7, 2013
    Joseph D. Magri of Merkle, Magri & Meythaler, P.A., Tampa, for Appellant.
    Thamir A.R. Kaddouri, Jr., and Penelope T. Rowlett of Law Office of Thamir A.R. Kaddouri, Jr., P.A., Tampa, for Ap-pellee Irwin Contracting, Inc.
   PER CURIAM.

George P. Ciporkin (the Plaintiff) appeals from a final judgment in which he was awarded zero dollars, after setoffs, against Irwin Contracting, Inc. (“Irwin”). The case involves negligence claims, including both personal injury and property damage claims, arising from water leakage in 2007 at his new condominium unit. We have carefully reviewed the entire record in this complex case. Although the jury’s verdict in favor of the Plaintiff was not generous and the inclusion of Irwin’s claims against third-party defendants made a complex case even more difficult to try, we cannot hold that the trial court abused its discretion in denying the Plaintiffs motion for new trial or in refusing to sever the claims against the third parties. We have found no preserved error that would permit us to give the Plaintiff any relief from this judgment.

Affirmed.

ALTENBERND, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Marcus Lawaun BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1359.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2013.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the appellant’s convictions and sentences. However, the written judgment in case 12-CF-1843 reflects a sentence of 10 years in prison for the offense of the attempted burglary of an unoccupied dwelling and the burglary of an unoccupied structure in counts I and II. The attempted burglary of an unoccupied structure is a third-degree felony punishable by a maximum of 5 years in prison. §§ 810.02(4)(a); 775.082(3)(c), Fla. Stat. (2012). Similarly, the burglary of an unoccupied structure is a third-degree felony, also subject to a maximum sentence of 5 years in prison. §§ 810.02(3)(b); 777.04(4)(d)(l); 775.082(3)(c), Fla. Stat. (2012).

At sentencing, the trial court orally pronounced sentences of 5 years in prison for the third-degree felonies that were not habitualized. None of the offenses in case 12-CF-1843 were habitualized. Therefore, as the sentences imposed in counts I and II of this case were clearly the product of a scrivener’s error, the written judgment must be corrected to conform to the oral pronouncement. See Turner v. State, 770 So.2d 1288, 1288 (Fla. 1st DCA 2000) (affirming and remanding in an Anders appeal with instructions to conform the judgment to the oral pronouncement awarding credit for time served). Appellant need not be present for the correction of this clerical error.

AFFIRMED but REMANDED to correct the written sentence in case number 12-CF-1843 to reflect 5-year prison sentences as to counts I and II.

LEWIS, C.J., MARSTILLER and OSTERHAUS, JJ„ concur.

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


text:
    Raymond Roosevelt WEBB, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1501.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2013.
    Rehearing Denied Nov. 5, 2013.
    Raymond Roosevelt Webb, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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