author: GROSS, J.

text:
    Narcisse ANTOINE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2105.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   GROSS, J.

This is a case where intoxicated nightclub troublemakers picked one fight too many, leading to an unfortunate result. Following their third ejection from a nightclub, the victims engaged in a hostile verbal confrontation with a group of men leaving the club. When the defendant, Nareisse Antoine, intervened as peacemaker, the victims quickly turned their sights to him, hurling racial epithets while threatening violence. Initially, Antoine laughed it off and told them to go home. However, things escalated when Antoine was punched in the jaw and, according to Antoine, both victims appeared to reach for weapons; at that point, Antoine pulled out a gun and opened fire, killing one of the victims while hitting the other numerous times.

Antoine’s trial centered upon his claim of self-defense. One issue compels reversal for a new trial — the impropriety of a jury instruction which improperly tethered evidence of a victim’s reputation for violence to the defendant’s knowledge of that reputation. We will discuss three of the other issues raised insofar as they might impact a new trial.

The Charges and the Conviction

On July 30, 2009, Antoine was charged by indictment with two counts: (I) first degree murder with a firearm for the death of Brandon Hammond and (II) attempted first degree murder by actually possessing and discharging a firearm, thereby causing great bodily harm to Jeffrey Thompson. Following trial, the jury deadlocked on Count I but found Antoine guilty on Count II of the lesser included offense of attempted second degree murder with a firearm.

The State’s Case

Central to the State’s ease was Tyrone Slade, a bouncer at Club Mystique in West Palm Beach, who was standing next to Antoine when he shot the victims. On the night of May 31-June 1, 2009, Club Mystique hosted a “private” event for a “small group of friends.” Among the attendees were Brandon Hammond and Jeffrey Thompson, two regulars known by Slade and the club’s staff. In fact, Slade was “very good friends” with Hammond’s mother and sister, but he knew Hammond to have a reputation for being violent and a drunk.

On the night in question, Hammond and Thompson were three times ejected from the club due to their confrontations with patrons. In the first instance, Slade had to take Thompson outside after he persisted in “mocking” a group of men “while they were dancing on the dance floor.” When Slade told Thompson to knock it off and relax, Thompson responded that he “d[id]n’t care” and that he would “fuck anybody up.” Hammond, however, reined in the situation, telling Slade they would “chill out” and “behave.” When Thompson agreed, the two were allowed to re-enter the club.

Later that night, the club’s owner told Slade that Hammond and Thompson needed to leave, since “they were being fresh with some ladies in the bar.” As before, Slade talked to the two outside the bar and apparently calmed them down. However, not long thereafter, Slade was forced to eject them after they invaded a group’s (“the Monarchy group”) private table area and nearly started a fight.

Despite being told to go home, Hammond and Thompson returned to the club an hour later. After parking their black BMW in a “reckless manner,” the two men approached the Monarchy group while they were leaving the club. Recognizing the prior rift, Slade asked Hammond and Thompson why they had returned. But by that point it was too late; a verbal spat had begun, with both sides threatening each other from across the street.

Antoine exited the club to this affray and told everyone to calm down. Like the victims, Slade knew Antoine from prior dealings since the two men lived in the same apartment complex. Hammond and Thompson told Antoine to “mind his business” while “[sjpewing profanity and racial slurs.” Antoine laughed it off, telling them “nobody’s here to fight” or “have a problem.”

No one heeded Antoine’s advice. Shortly after turning his attention to Antoine, Thompson began pacing back and forth, giving Slade the impression that he was about to sneak up and attack. Hammond then confronted Antoine, punched him in the jaw, and split his lip. Taking a step back, Antoine handed Slade his drink and checked his lip to see if it was bleeding. Antoine then pulled out a pistol from a holster and told Thompson and Hammond to leave, prompting the two men to take a step back.

Displaying bravado, Hammond began “reaching in his pants as if he had a gun” and asked Antoine, “Or else what, nigger?” Not sure if Hammond was armed, Slade heard Antoine ask, “Do you have a gun[?][A]re you going to shoot me?” Likewise, Slade asked several times what Hammond was reaching for and cautioned, “Don’t do this Brandon.”

The encounter reached a tipping point. Antoine opened fire, shooting Hammond six or seven times. Fearing Hammond or Thompson would retaliate with gunfire, Slade ran for cover behind a car. Although Slade could not actually see it transpire, he could tell that Antoine fired more shots at Thompson as Thompson ran away and rounded a corner.

When the smoke cleared, Slade asked Antoine “[w]hat the fuck [he was] doing.” After re-holstering his gun, Antoine responded that he “had to go.” He then went in the club, got his girlfriend, and drove off.

Slade’s Interview with the Police

Despite being an eyewitness, Slade did not initially speak to the police because he knew everyone involved and did not want to be thrown into the middle of a murder investigation. Rather, he met with an attorney who prepared a formal statement for him, which he provided to an officer friend three days later.

In addition to the statement, Slade and his attorney spoke with officers in a recorded interview. At trial, Slade averred that, at the time of the interview, he was not overly concerned about his “liability or exposure to being [criminally] charged.'® Defense counsel then attempted to impeach Slade by questioning him regarding comments his attorney made to him during breaks in the interview. The State objected on hearsay grounds.

Although not presented before the jury, the gist of the conversation between Slade and his attorney involved concerns that Slade had “no choice” but to do the interview “because the police were eventually going to get him.” Slade and his attorney then went on to discuss “the fact that there are cameras throughout the area where the shooting occurred, and it was clear that eventually the police would pull those videos and would know who [Slade] was.”

At a sidebar conference, defense counsel argued that the attorney’s statements were not hearsay since they were being offered to show Slade’s “state of mind and specifically his motive and bias in the testimony that he presented.” Specifically, defense counsel sought to establish that Slade’s “testimony [wa]s motivated by his own fear about either criminal or civil liability,” stemming from the incident. The trial court, however, sustained the hearsay objection.

Corroborating Evidence

Slade’s testimony was corroborated by Raymond Harley, a nighttime security guard at a nearby parking lot. Harley testified that he was dozing off in a chair outside the parking lot when he was suddenly awakened by the sound of a BMW convertible losing control and spinning out onto the sidewalk. Wondering what was going on, Harley stepped away from his post and watched from afar as the car drove erratically before parking alongside Club Mystique.

From the outside, Harley could tell that the driver of the vehicle and his passenger were “looking for trouble,” as they were “harassing a couple of people who worked there and some of the customers” who had come from the inside. Harley heard the two say, “We’ll mess you all up, F you all.”

When Antoine exited the club and tried to assist the bouncers, things “got out of hand” quickly. First, the passenger from the car punched Antoine, who then said, ‘You done messed up. God bless you.” When the passenger took another swing, Antoine turned around, took a sip of his drink, pulled out a gun, and blew a kiss. The passenger backed up, reached for his waistband, and pointed at Antoine while taunting, “[Y]ou ain’t doing nothing, I still kick your, you know.”

Antoine shot the passenger six or seven times, causing him to fall to the ground. Shocked, the driver looked like “he wanted to come help his friend, but he froze.” Antoine then told the driver, ‘You want some, too?” before walking towards him and firing six or seven more shots, causing the driver to scramble to his car. Antoine later got into his Jaguar and drove away.

Antoine’s Story

From Slade’s interview, the police learned Antoine’s address and arrested him, recovering a gun, a partially loaded magazine, and a black holster from a closet in his apartment.

Antoine provided two post-arrest statements, both of which were admitted at trial: a recorded interview just after his arrest and his grand jury testimony. Consolidating both statements for the purpose of this opinion, Antoine stated that he took his girlfriend to Club Mystique to celebrate her having finished school. In furtherance of the celebration, he purchased a $75 bottle of Ketel One vodka.

After he and his girlfriend began drinking, Antoine saw Hammond and Thompson nearly get into a fight with three Canadian gentlemen after dancing too closely to them on the dance floor. When it appeared that a fight was imminent, Antoine intervened and told Hammond and Thompson to stop and relax. Later in the night, Antoine saw one of the men initiate a second verbal fight, culminating in his ejection.

As the night wound down, Antoine closed his bottle and took it back to his car. On his way out, he saw Hammond and Thompson attempt to pick a fight with the Monarchy group. After putting his bottle in the trunk of his Jaguar, Antoine was heading back to the club when one of the victims began hurling profanities and racial slurs in his direction. Antoine shrugged it off and told him to “take [his] drunk ass home.”

Upon hearing the response, Hammond punched Antoine in the jaw while exclaiming, “[Y]ou think I’m joking, I’m going to fuck you up.” Hammond then threw a second punch, reached into his shirt for what Antoine thought was a gun, and stated, “[H]ow you like that shit now, you ain’t talking shit no more, now I’m going to fucking kill you.” Having “no doubt in [his] mind that [Hammond] was going to kill [him] first,” Antoine withdrew his gun and opened fire; when he then saw Thompson come towards him and appear to reach for a gun, Antoine shot him as well. In all, the event happened very quickly and left Antoine in a state of shock.

Following the shooting, Antoine left the scene with his girlfriend and went to a friend’s home, where he took pictures of his injured lip. Antoine did not immediately call the police because he was afraid Hammond and Thompson would still be coming after him. Antoine met with an attorney at 8:00 a.m., at which point he was told to “sit tight” so they could “figure out what ... to do” next.

The Aftermath Investigation

At the time of the incident, Officer Casey Goetz was working security for a nearby bar, E.R. Bradley’s, when he heard about 8 gunshots. Officer Goetz immediately radioed dispatch before reaching Narcissus and seeing Hammond’s dead body, which was riddled with gunshot wounds, including one to the face. The officer then turned his attention to the two men’s black BMW, which was parked in a way that was “consistent with how an impaired drive[r] would park the car.” There he found Thompson gasping for air while bleeding profusely due to his gunshot wounds. Officer Goetz remained by Thompson and, with the aid of another officer, applied pressure to the wound before medical professionals arrived.

In all, Hammond sustained gunshot wounds to the left side of his face, the left side of his neck, his chest, and his abdomen. Toxicology reports revealed Hammond had a .219 blood alcohol content, along with amphetamine, metabolite of cocaine, Xanax, and marijuana in his system. Thompson, on the other hand, survived, but remained in a coma for about ten days. At the time of trial, he had no memory of any of the events surrounding the shootings.

Dr. Ahmed El Haddad

After being taken from the scene, Thompson was transported to St. Mary’s Hospital, where he was treated by Dr. Ahmed El Haddad. The doctor and his staff immediately determined that Thompson had sustained bullet wounds to (1) his right-upper chest, (2) his abdomen, and (3) his left shoulder. Since the shoulder injury was not life threatening, however, it was given far less priority.

At trial, Dr. El Haddad asked to have Thompson take his shirt off and come up to the witness stand to assist the doctor in his testimony. Upon the defense’s objection, the State assured that Thompson would serve as a mere “demonstrative aid” and would not speak.

Pointing to Thompson’s back, Dr. El Haddad explained that the gunshot wounds to Thompson’s abdomen and right-upper chest were indicative of being shot from behind. On cross examination, Dr. El Haddad testified for the first time that, “based on the other two gunshot wounds,” he could now tell that Thompson’s shoulder wound also came from the same trajectory. As justification for this conclusion, the doctor explained that “the nature of what [the wound] looks like now[ ] shows ... that the entrance [came] from the back [while] the exit was from the front.” Significantly, this was contrary to the doctor’s testimony at a previous deposition, where he stated that “he could not make a determination about whether [the shoulder wound] was front to back or back to front.”

Charge Conference

Antoine contended throughout the trial that his actions were taken in self-defense — that he reasonably believed Hammond and Thompson were about to shoot him. In furtherance of this defense, Antoine presented the testimony of a second bouncer, Mark O’Neil, who stated, as did Slade, that Hammond had a reputation for violence.

Given the existence of reputation evidence, the trial court utilized Florida Standard Jury Instruction (Criminal) 3.6(f), entitled “Justifiable Use of Deadly Force,” to craft the following jury instruction:

If you find that Brandon C. Hammond had a reputation of being a violent and dangerous person, and that their [sic] reputation was known to the defendant, you may consider the fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

At the charge conference, defense counsel objected and asked the court to remove the portions of the instruction relating to the defendant’s knowledge, explaining that “[t]he law on reputation evidence is [that] the defendant does not have to be aware of the reputation.” In addition, defense counsel requested that the trial court add an instruction which would state that if the jury found “Brandon Hammond had a reputation for being [a] violent, dangerous person” it could consider that “as to who the aggressor was.” The trial court, however, denied the request and kept the instruction as originally crafted.

Deliberations, Verdict, and Sentence

Following the first day of deliberations, the jury submitted a question asking why the verdict form did not include attempted manslaughter as a lesser included offense to Count II. After the trial court told the jury it had all the applicable instructions, the jury returned a verdict indicating it was deadlocked on the first degree murder count while finding Antoine guilty on Count II of the lesser included offense of attempted second degree murder with a firearm. Upon receipt of the verdict, defense counsel moved for a judgment of acquittal on the ground that the State failed to present evidence that he acted with a depraved mind. The motion was denied.

On June 1, 2011, the trial court adjudged Antoine guilty on the one count and sentenced him under Florida’s 10/20/Life Statute to 40 years imprisonment with a 25-year mandatory minimum. Antoine later filed a Rule 3.800 motion, alleging that, once the mandatory minimum was set at 25 years, the trial court could not enter a sentence beyond the underlying offense’s statutory maximum term of thirty years imprisonment. The trial court denied the motion.

The Evidence was Sufficient to Support the Attempted Second Degree Murder Conviction

We reject Antoine’s contention that the trial court reversibly erred in denying his post-verdict motion for judgment of acquittal for attempted second degree murder, because in the light most favorable to the State, the evidence supports the conclusion that Antoine’s shooting of Thompson “evinced a depraved mind regardless of human life.”

“ ‘The standard of review for the denial of a motion for judgment of acquittal is de novo.’ ” Segal v. State, 98 So.3d 739, 742 (Fla. 4th DCA 2012) (quoting Ortiz v. State, 36 So.3d 901, 902 (Fla. 4th DCA 2010)). Since “[t]he purpose of a motion for judgment of acquittal is to test the legal sufficiency of the evidence presented by the state,” Harris v. State, 954 So.2d 1260, 1261 (Fla. 5th DCA 2007) (citing State v. Lalor, 842 So.2d 217 (Fla. 5th DCA 2003)), the defendant making such a motion “admits the facts in evidence and every conclusion favorable to the adverse party that may be fairly and reasonably inferred from the evidence.” Richards v. State, 37 So.3d 925, 926 (Fla. 4th DCA 2010) (citing Lynch v. State, 293 So.2d 44, 45 (Fla.1974)).

Second-degree murder is “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” § 782.04(2), Fla. Stat. (2009). Within this context,

an act is imminently dangerous to another and evinces a “depraved mind” if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; and (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life.

Wiley v. State, 60 So.3d 588, 591 (Fla. 4th DCA 2011) (citing Bellamy v. State, 977 So.2d 682 (Fla. 2d DCA 2008); Michelson v. State, 805 So.2d 983, 985 (Fla. 4th DCA 2001)); see also State v. Montgomery, 39 So.3d 252, 255-56 (Fla.2010). This is not to say “ ‘malice is ... limited in its meaning to hatred, ill will and malevolence’ ”; rather, it “denotes a wicked and corrupt disregard of the lives and safety of others ... a failure to appreciate social duty.” Larsen v. State, 485 So.2d 1372, 1374 (Fla. 1st DCA 1986) (quoting Hines v. State, 227 So.2d 334, 335 (Fla. 1st DCA 1969)) (internal quotation omitted).

Consistent with these principles, “second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim.” Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003). For example, “[a] defendant who has brooded on a prior wrong and has nursed his resentment and anger into a full-blown rage is not one who lacked a depraved mind.” Haygood v. State, 109 So.3d 735, 747 (Fla.2013); cf. Gibbs v. State, 904 So.2d 432, 435 (Fla. 4th DCA 2005) (“Pointing a loaded gun at the head of the victim and then firing has frequently been held to be an act ‘imminently dangerous to another and evincing a depraved mind regardless of human life.’”). By contrast, “extreme recklessness” or “an impulsive overreaction to an attack or injury is itself insufficient” to support a second degree murder conviction. Dorsey v. State, 74 So.3d 521, 524 (Fla. 4th DCA 2011); Light, 841 So.2d at 626.

In this regard, Antoine relies upon two decisions—Poole v. State, 30 So.3d 696 (Fla. 2d DCA 2010), and McDaniel v. State, 620 So.2d 1308 (Fla. 4th DCA 1993) — to place this case within the “impulsive overreaction” confines of second degree murder jurisprudence. However, neither case controls this one, since neither involves a defendant who had the time to consider the nature of his violent act.

In Poole, the defendant stabbed the unarmed victim once with a steak knife after the intoxicated victim lunged at him while the two were confined in the closed quarters of a recreational vehicle. 30 So.3d at 697-98. Recognizing that the victim was unarmed and unaware that the defendant had grabbed a knife, the court found the defendant’s “act of stabbing [the victim] through the heart ... excessive,” permitting the jury to “reasonably reject [the defendant’s] theory of self-defense.” Id. at 699. Nevertheless, since “the evidence showed an impulsive overreaction,” the court also found the evidence insufficient to demonstrate second-degree murder since the “State failed to prove that [the defendant] acted out of ill will, hatred, spite, or an evil intent.” Id.

Similarly, in McDaniel, the defendant used a knife to ward off further attack from his son after the son punched him in the mouth and knocked him to the ground. 620 So.2d at 1308. Under these facts, we held that although the defendant’s use of the knife “may have been excessive, thereby negating a finding of self-defense, his acts did not evince a depraved mind.” Id.; see also Bellamy, 977 So.2d at 683-84 (finding that the State faded to demonstrate a depraved mind where the defendant stabbed two people during an “affray” at a nightclub after he had just been pushed to the ground and stepped on); Rayl v. State, 765 So.2d 917, 919-20 (Fla. 2d DCA 2000) (reversing a conviction for second-degree murder where the defendant shot the victim twice after the victim stormed into the defendant’s place of business and threatened to kill him).

The material distinction between the two “impulsive overreaction” cases and the instant situation lies in Antoine’s conduct prior to using deadly force. Accepting the State’s evidence as true, Harley testified that before shooting Thompson, Antoine stated, ‘You want some, too?” This statement, along with the fact that Thompson was shot in the back while running away, inferred not that Antoine was impulsively acting out of fear to save himself, but that he was administering street justice after he had been punched and insulted and after he had disposed of the first assailant. Given that intent is “a state of mind [that] must in most cases be inferred from the circumstances,” Williams v. State, 239 So.2d 127, 130 (Fla. 4th DCA 1970) (citation omitted), it cannot be said Antoine did not act with a “depraved mind,” where he taunted and shot an unarmed, fleeing assailant. Accordingly, Antoine’s motion for judgment of acquittal was properly denied.

The Jury Instruction Pertaining to a Victim’s Reputation for Violence Nulliñed the Effect of Such Testimony and was Reversible Error

The trial court erred by instructing the jury that Antoine’s knowledge of Hammond’s reputation for violence was central to the jury’s consideration of such evidence. A victim’s reputation for violence is admissible in self-defense cases, regardless of the defendant’s knowledge, to demonstrate that the victim was the aggressor. There was no evidence that Antoine knew of Hammond’s violent reputation, so the jury instruction improperly confused the issue while inviting the jury to disregard the reputation evidence entirely.

In a criminal case, a “defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under Florida law.” Vila v. State, 74 So.3d 1110, 1112 (Fla. 5th DCA 2011) (citing Cruz v. State, 971 So.2d 178, 181-82 (Fla. 5th DCA 2007)).

Generally, “standard jury instructions are presumed correct and are preferred over special instructions.” Stephens v. State, 787 So.2d 747, 755 (Fla.2001). “However, the use of the standard jury instructions does not relieve the trial court of its obligation to determine whether the standard instructions accurately and adequately state the law.” Brown v. State, 11 So.3d 428, 432 (Fla. 2d DCA 2009) (citing Moody v. State, 359 So.2d 557, 560 (Fla. 4th DCA 1978)). In fact, the giving of a standard criminal jury instruction may sometimes even be fundamental error. See Williams v. State, 123 So.3d 23, 30 (Fla.2013). “If the trial court determines that the instruction is ‘erroneous or inadequate,’ the court may then modify the standard jury instruction as the ‘trial judge shall determine to be necessary to instruct the jury accurately and sufficiently.’” Peters v. State, 33 So.3d 812, 814 (Fla. 4th DCA 2010) (quoting Fla. R. Crim. P. 3.985).

Here, the instruction on the reputation of the victim, drawn from Florida Standard Jury Instruction (Crim.) 3.6(f) on the Justifiable Use of Deadly Force, failed to accurately and sufficiently instruct the jury. The problem with the standard instruction, and the trial court’s reliance upon it, is that the instruction fails to distinguish between the two purposes for which evidence of the victim’s character trait of violence might be offered in a self-defense ease. For one purpose, it is not necessary that a defendant be aware of the victim’s reputation for violence; for the second purpose, a defendant’s awareness of the victim’s reputation must be demonstrated.

First, in a self-defense case, “evidence of the victim’s character trait of violence ... may be offered on the issue of who was the aggressor.” Charles W. Ehrhardt, Florida Evidence § 404.6 (2012 ed.). Under section 90.404(l)(b), Florida Statutes (2012), “evidence of a pertinent character trait of the victim is admissible when it is offered by the accused to prove that the victim acted in conformity with” his character. Ehrhardt, supra, § 404.6. Thus, “evidence of the dangerous character of the victim is admissible to show, or as tending to show, that the defendant acted in self-defense.” Smith v. State, 606 So.2d 641, 642 (Fla. 1st DCA 1992) (citing Garner v. State, 28 Fla. 113, 9 So. 835, 841 (1891)).

In most self-defense cases, “[ejvidence of the victim’s reputation is admissible to disclose his or her propensity for violence and the likelihood that the victim was the aggressor,” Berrios v. State, 781 So.2d 455, 458 (Fla. 4th DCA 2001), the notion being that reputation evidence demonstrates “the ‘product of what is generally discussed in the community.’ ” Johnson v. State, 108 So.3d 707, 709 (Fla. 5th DCA 2013) (quoting Ehrhardt, supra, § 405.1); see also Larzelere v. State, 676 So.2d 394, 400 (Fla.1996). Such reputation testimony is admissible in a self-defense case “as circumstantial evidence to prove th[e victim’s] conduct,” that at the crucial time the victim acted consistently with his reputation for violence. Ehrhardt, supra, §§ 405.3, 404.6. A defendant’s prior knowledge of the victim’s reputation for violence is irrelevant when the evidence is offered on the issue of who was the aggressor, “because the evidence is offered to show the conduct of the victim, rather than the defendant’s state of mind.” Dwyer v. State, 743 So.2d 46, 48 (Fla. 5th DCA 1999); see also Melvin v. State, 592 So.2d 356, 357 (Fla. 4th DCA 1992) (holding that deceased’s reputation as a bully was admissible even though the defendant did not know of that reputation).

A second purpose to offer evidence of the victim’s character trait of violence in a self-defense ease is “to prove that the accused was reasonably apprehensive of the victim and that the defensive measures of the accused were reasonable.” Ehrhardt, supra, § 404.6; see also Arias v. State, 20 So.3d 980, 983 (Fla. 3d DCA 2009); Diaz v. State, 747 So.2d 1021, 1024-25 (Fla. 3d DCA 1999). When the evidence is offered for this purpose, “there must be evidence that the accused knew of the victim’s acts of violence or aggression.” Ehrhardt, supra, § 404.6.

Reputation testimony about a victim of a crime is often confused with evidence of prior specific acts of violence by a victim, which must be known by a defendant to be relevant to a self-defense claim. “Evidence of prior specific acts of violence by the victim is admissible,” if known by the defendant, “because it is relevant ‘to reveal the reasonableness of the defendant’s apprehension at the time of the incident.’” Hedges v. State, 667 So.2d 420, 422 (Fla. 1st DCA 1996) (quoting Smith, 606 So.2d at 642-48). “[Sjpecific acts of aggression and violence by the victim are inadmissible to prove that the victim was the aggressor and that the defendant acted in self-defense.” Ehrhardt, supra, § 405.3. For this category of evidence, a defendant’s knowledge of a victim’s specific acts of violence is a precondition to admissibility. See Singh v. State, 36 So.3d 848, 851 (Fla. 4th DCA 2010); Shreiteh v. State, 987 So.2d 761, 763 (Fla. 4th DCA 2008).

In the case at hand, the trial court relied upon Standard Jury Instruction 3.6(f) to craft the following jury instruction:

If you find that Brandon C. Hammond had a reputation of being a violent and dangerous person, and that their [sic] reputation was known to the defendant, you may consider the fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

This instruction undermined the reputation evidence offered in this case. There was no evidence that Antoine knew of Hammond’s reputation, let alone that he and Hammond had even met prior to the night of the shooting. The valid purpose for which the reputation was offered was to show that Hammond was the aggressor, proof not dependent on Antoine’s knowledge of his reputation for violence. The instruction could only have misled the jury into disregarding the presented reputation evidence.

Although the reputation evidence pertained to Hammond and not to Thompson, the two men acted in concert and the reasonableness of Antoine’s conduct must be evaluated by his response to both men. If Antoine was justified in meeting Hammond’s aggression with deadly force, it would go to explain why he felt apprehensive regarding Thompson’s conduct. Given the nature of the evidence and the jury’s difficulty in reaching a verdict, we cannot say that “ ‘there is no reasonable possibility that the error contributed to the conviction.’ ” Symonette v. State, 100 So.3d 180, 184 (Fla. 4th DCA 2012) (quoting State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986)). This is particularly true in this case, where the State relied on the erroneous jury instruction to invite the jurors to disregard the reputation testimony.

Statements Made to Slade were not Hearsay and were Admissible in Evidence to Show Potential Bias

The trial court erred in barring the defense from cross-examining Slade regarding conversations he had with his attorney during breaks of his police interview. Contrary to the court’s ruling, what the attorney said to Slade was not hearsay since the statements were not offered for their truth, but to show their impact on Slade’s state of mind and to expose potential bias.

As we wrote in Henry v. State, 123 So.3d 1167, 1169-70 (Fla. 4th DCA 2013):

“[T]he Sixth Amendment guarantees the right of an accused to attack a witness’ credibility by means of cross-examination directed toward revealing possible biases or ulterior motives of the witness as they may relate to the case at hand.” Smith v. State, 38 So.3d 871, 872 (Fla. 4th DCA 2010) (citing Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). “For purposes of discrediting a witness, a wide range of cross-examination is permitted as this is the traditional and constitutionally guaranteed method of exposing possible biases, prejudices and ulterior motives of a witness as they may relate to the issue or personalities .... ” Strickland v. State, 498 So.2d 1350, 1352 (Fla. 1st DCA 1986) (citations omitted). “The vital importance of full and searching cross-examination is even clearer when, as here, the prosecution’s case stands or falls on the jury’s assessment of the credibility of the key witness[].” Id. (citing Wooten v. State, 464 So.2d 640 (Fla. 3d DCA 1985)). Under such circumstances, “[ojbviously, a defendant has a strong interest in discrediting a crucial state witness by showing bias, an interest in the outcome, or a possible ulterior motive for his in-court testimony.” Livingston v. State, 678 So.2d 895, 897 (Fla. 4th DCA 1996) (citing Phillips v. State, 572 So.2d 16 (Fla. 4th DCA 1990)).

In this case, the trial court cited hearsay grounds to prevent the defense from cross-examining Slade regarding the conversations he had with his attorney during his police interview. Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. ■ Stat. (2009). “If an out-of-court statement ‘is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case.’ ” Massey v. State, 109 So.3d 324, 327 (Fla. 4th DCA 2013) (quoting Jackson v. State, 25 So.3d 518, 530 (Fla.2009)).

The attorney’s statements to Slade were not offered to prove the truth of the matters contained in the statements—that Slade had no choice but to submit to the police interview—but to demonstrate that the issue of criminal or civil liability weighed on Slade’s mind, potentially distorting his testimony. This was of particular significance since Slade was the State’s star witness, and a person near Antoine at the time of the shootings. The case largely rested on the jury’s evaluation of Slade’s credibility. The statements were admissible to explore Slade’s potential bias.

Under Wiley v. State, the 40-year Sentence was Improper

We address a sentencing issue because it may arise again after retrial. Antoine challenges the legality of his sentence under Florida’s 10/20/Life Statute to 40 years imprisonment with a 25-year mandatory minimum. He argues that once the mandatory minimum was set at 25 years, the trial court was not authorized to sentence him beyond the underlying offense’s maximum term of 30 years imprisonment. As a challenge to the legality of a sentence, our review is de novo. See Stoute v. State, 915 So.2d 1245, 1247 (Fla. 4th DCA 2005).

As part of Florida’s 10/20/Life Statute, section 775.087(2)(a)3., Florida Statutes (2009), provides for a mandatory minimum imprisonment term when a person discharges a firearm during an offense and causes great bodily harm. The statute provides in pertinent part:

Any person who is convicted of a felony ... regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

§ 775.087(2)(a)3., Fla. Stat (2009).

In Mendenhall v. State, 48 So.3d 740, 742 (Fla.2010), the Florida Supreme Court construed this provision to provide trial courts with discretion “to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082.” However, the decision failed to address whether a trial court may impose a sentence in excess of both the mandatory minimum and maximum sentence otherwise provided by law once a mandatory minimum has been set.

This void was filled in Wiley v. State, 125 So.3d 235, 241 (Fla. 4th DCA 2013), where we answered the question in the negative, explaining:

[S]ection 775.087(2)(b) provides that the mandatory minimum sentence in subsection (2)(a)3. does “not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence.” (Emphasis added). From a literal reading of the statute, it appears that while a trial judge may sentence a defendant pursuant to section (2)(a)3. to a mandatory minimum sentence between twenty-five years to life, the trial judge may give a sentence over the mandatory minimum selected only if “authorized by law.”

Id. Thus, in a nearly identical situation to the case at hand, we found a 40-year sentence for attempted second degree murder with a firearm illegal since the sentence “exceed[ed] the thirty-year statutory maximum for th[e] first-degree felony offense.” Walden v. State, 121 So.3d 660 (Fla. 4th DCA 2013); see also Sheppard v. State, 113 So.3d 148, 149 (Fla. 2d DCA 2013); McLeod v. State, 52 So.3d 784, 786 (Fla. 5th DCA 2010); Wooden v. State, 42 So.3d 837 (Fla. 5th DCA), rev. denied, 51 So.3d 466 (Fla.2010).

In this case, Antoine was convicted of attempted second degree murder, a second degree felony. See §§ 782.04(2), 777.04(4)(c), Fla. Stat. (2009). Because Antoine committed the offense with a firearm, his crime was reclassified to a first degree felony, punishable by 30 years imprisonment. See §§ 775.082(3)(b), 775.087(l)(b), Fla. Stat. (2009). Furthermore, since Antoine caused great bodily injury by using the firearm, the trial court was empowered to sentence him to a mandatory minimum anywhere between 25 years to life. See § 775.087(2)(a)3., Fla. Stat. (2009).' However, once the mandatory minimum was set at 25 years, Antoine’s highest potential sentence became capped at 30 years. Accordingly, Antoine’s sentence of 40 years imprisonment with a 25 year minimum mandatory was illegal.

Affirmed in part, and reversed and remanded for a new trial.

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

      . Because we are remanding for a new trial, it is not necessary to discuss the problem that arose when, without notice to the defense, a State expert witness significantly changed an important opinion after the prosecutor permitted the expert to physically examine the victim the same morning the expert testified.

      . Slade did not raise the attorney-client privilege.

      . In his grand jury testimony, Antoine testified that Hammond stated, “I'm going to fucking kill you now, you think I’m joking.”

      . The defense objected to this opinion as a discovery violation and it was the subject of a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971). In light of the retrial ordered on other grounds, we do not evaluate the trial court’s ruling on this issue.

      . Again, Slade did not interpose the attorney-client privilege, probably because he agreed to have his conversations with his attorney recorded by the police.

        . It should be noted that the First District has recently certified conflict with our decision in Wiley. See Kelly v. State, 137 So.3d 2, 39 Fla. L. Weekly D570 (Fla. 1st DCA Mar. 14, 2014).


source: Caselaw Access Project

license: Public Domain

text:
    Jamie Gerard GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2801.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

After a jury trial, Jamie Grant was convicted of (1) attempted armed robbery while wearing a mask and carrying a firearm and (2) possession of a firearm with an altered serial number. We affirm in part and reverse in part, holding that the evidence was sufficient to support Grant’s convictions, but insufficient to subject him to mandatory minimum sentencing pursuant to Section 775.087(2), Florida Statutes (2010).

The State’s Case

On November 17, 2010, at approximately 3:20 p.m., Grant parked his car in the partially concealed driveway of a newly constructed home. He walked about 100 yards to a jewelry store, making his approach from the store’s windowless side. Once at the store, Grant “forcefully” yanked twice on the store’s entrance door with his left hand, while keeping his right hand in the front pocket of his hooded sweatshirt. The force of Grant’s tug was so “aggressive” and strong that it “shook the frame of the store” and alerted every employee to his presence.

Unknown to Grant, due to a recent “snatch and grab” incident, the store’s owner installed a security system which required customers to be “buzzed” into the store by an employee. When the owner reached for the buzzer, one employee warned of Grant’s potential dangerousness while others yelled, “[Djon’t let him in.” This reaction derived not only from Grant’s aggressive entry attempt, but primarily from the way he was dressed; despite being a hot day, Grant was wearing a hooded sweatshirt over his head, gloves, and a “do-rag” covering his face from his nose down. Further, when Grant tried to open the door, he kept his right hand in the “sagging” front pocket of his hoodie, as if he was cradling a heavy object.

Apparently recognizing the futility of trying to enter the store, Grant took off running. While Grant was running, observers noticed that he atypically kept his right hand in his hoodie pocket, protecting a “bulging” object; however, none of the witnesses could testify as to what the object actually was. Grant drove away in his car “at a high rate of speed.” Later, the store’s owner obtained a surveillance video, which was shown to the jury at trial.

The store owner called the police shortly after Grant left the scene. Upon receiving a BOLO report, Detective Jason Jones began tailing Grant’s car in an unmarked vehicle and called for backup. Once backup arrived, Detective Jones turned on his strobe lights and honked his horn to effectuate a stop. However, Grant continued driving for another mile before eventually stopping at a red light.

Once Grant’s car came to rest, Detective Rick Lombardo approached on foot from the driver’s side, prompting the visibly sweating Grant to state that he was returning the car to his grandmother. As Detective Lombardo came closer, he suddenly yelled “gun!” after observing the butt of a handgun on the passenger seat, “partially wrapped in a pair of gloves which was underneath a black hooded sweatshirt.” Upon this announcement, Grant “twist[ed] towards th[e] direction” of the gun; however, before anything could happen, the detective forcibly removed Grant from the car, placed him on his stomach on the ground, and applied handcuffs.

A search of Grant’s person revealed that he had hinged handcuffs in his right rear pocket and a purple velvet Crown Royal bag in his right front pocket. Following the search, Grant lamented to the detectives, “[Tjimes are tough, I usually don’t do this sort of thing.”

Additionally, from Grant’s car, officers recovered an unloaded .357-caliber revolver, a black hooded sweatshirt, sunglasses, a pair of gloves, and a “do-rag type face cover.” At trial, a firearms examiner testified that the revolver was functional, although its “serial number was obliterated.”

Trial Motions and Verdict

After the State rested, Grant made a two-fold motion for judgment of acquittal. First, Grant argued that the State failed to prove the elements of attempted armed robbery, since there was no evidence demonstrating his specific intent to commit a robbery. Second, Grant contended that the evidence was insufficient to show that he “carried” a firearm at the time he tried to enter the jewelry store, since none of the witnesses could identify the object he cradled in his hoodie pocket. The motion was denied.

Following the case’s submission, the jury found the defendant guilty as charged of both counts. After a separate hearing, the trial court sentenced Grant to fifteen years imprisonment with a ten-year mandatory minimum, pursuant to section 775.087(2), Florida Statutes (2010), on the attempted robbery charge and to time served on the other charge.

Grant’s Intent to Commit Robbery

In his first issue on appeal, Grant contends that the trial court erred in denying his motion for judgment of acquittal as to attempted armed robbery, since the State failed to demonstrate his intention to commit a robbery at the time he tried to enter the jewelry store. However, the surrounding circumstances, including Grant’s unusually forceful entry attempt, his attire, his flight, and his admission of an economic motive, were sufficient to send the issue of his intent to the jury.

“The standard of review for the denial of a motion for judgment of acquittal is de novo.” Ortiz v. State, 36 So.3d 901, 902 (Fla. 4th DCA 2010) (citing Pagan v. State, 830 So.2d 792, 803 (Fla.2002)). “ ‘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, sufficient evidence exists to sustain a conviction.’ ” Garrido v. State, 97 So.3d 291, 298 (Fla. 4th DCA 2012) (quoting Williams v. State, 59 So.3d 373, 375 (Fla. 4th DCA 2011)).

A person’s intent to commit a crime is rarely gleaned from direct evidence. “When the evidence against a criminally accused person is circumstantial, a motion for judgment of acquittal should be granted if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Brothers v. State, 853 So.2d 1124, 1125 (Fla. 5th DCA 2003). In such circumstances, “the proper task of the trial judge is to review the evidence, taking it in the light most favorable to the state, in order to determine whether there is competent evidence from which the jury could infer guilt to the exclusion of all other inferences.” Martin v. State, 728 So.2d 775, 776 (Fla. 4th DCA 1999) (citing State v. Law, 559 So.2d 187, 189 (Fla.1989)). “The State is not ... required to rebut every possible scenario which could be inferred from the evidence. Rather it must introduce competent evidence which is inconsistent with the defendant’s theories.” Schwarz v. State, 695 So.2d 452, 454 (Fla. 4th DCA 1997) (citing Law, 559 So.2d at 189).

Robbery is “the taking of money or other property ... with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.” § 812.13(1), Fla. Stat. (2010). “[T]o prove attempted armed robbery, the State must show: (1) the formation of an intent to commit the crime of robbery; (2) the commission of some physical act in furtherance of the robbery; and (3) the use of a firearm.” Franqui v. State, 699 So.2d 1312, 1317 (Fla.1997). “The overt act necessary to fulfill the requirements of attempted robbery ... must be adapted to effect the intent to commit the crime; it must be carried beyond mere preparation, but it must fall short of executing the ultimate design.” Mercer v. State, 347 So.2d 733, 734 (Fla. 4th DCA 1977) (citing Gustine v. State, 86 Fla. 24, 97 So. 207 (1923); Groneau v. State, 201 So.2d 599 (Fla. 4th DCA 1967)).

“The intent with which an act is accomplished is an operation of the mind.” C.E. v. State, 342 So.2d 979, 980 (Fla. 2d DCA 1976). “Because direct evidence of intent is rare, and intent is usually proven through inference, ‘a trial court should rarely, if ever, grant a motion for judgment of acquittal on the issue of intent.’ ” Manuel v. State, 16 So.3d 833, 835 (Fla. 1st DCA 2005) (quoting Washington v. State, 737 So.2d 1208, 1215 (Fla. 1st DCA 1999)).

In the context of attempted armed robbery, “intent may be proved by considering the conduct of the accused and his colleagues before, during, and after the alleged attempt along with any other relevant circumstances.” Franqui, 699 So.2d at 1317 (citing Cooper v. Wainwright, 308 So.2d 182, 185 (Fla. 4th DCA), cert. dismissed, 312 So.2d 761 (Fla.1975)). However, the State “must present some competent, substantial evidence from which the jury could infer the defendant’s intent to deprive the victim of property.” Fournier v. State, 827 So.2d 399, 401 (Fla. 2d DCA 2002). Mere suspicion, by itself, is insufficient. Ballard v. State, 923 So.2d 475, 482 (Fla.2006).

Grant relies primarily upon Rose v. State, 68 So.3d 377 (Fla. 5th DCA 2011), as an example of unsubstantiated intent. However, that case is distinguishable because there were fewer markers in Rose of an economic motive for the crime than existed in this case.

In Rose, the victim stepped outside her home after a woman rang her doorbell and asked for directions. Id. at 378. While the victim was talking to the woman, the defendant “came out from behind a bush,” pointed a gun at the victim’s face, and told the victim to keep quiet. Id. Terrified, the victim took off running and called the police. Id. After the women were apprehended, police found numerous suspicious items in their car, including cell phones, pairs of gloves, a black duffel bag containing duct tape, a crowbar, a shotgun, and ammunition. Id. at 379.

Upon these facts, the Fifth District held that the trial court erred in denying the defendant’s motion for judgment of acquittal since there was insufficient evidence demonstrating the defendant’s intent to commit robbery. Id. Significant in Rose was that the evidence was as suggestive of an intent to commit a number of crimes against the person — false imprisonment, kidnapping, sexual battery — as it was of the crime of robbery. Id.

No similar confusion exists over Grant’s aborted entry into the jewelry store. After parking his car in a secluded area and taking a route minimizing potential observation, Grant “forcefully” yanked twice on the jewelry store’s door, demonstrating his desire to make a .startling, powerful entrance. By covering his face with a do-rag, wearing a hoodie and gloves on a hot day, and taking flight immediately upon his failed entry, the circumstances indicated that Grant’s purpose was nefarious. This “purpose” was, in turn, narrowed by the handcuffs and purple velvet bag found on Grant’s person, suggesting that his “plan” involved taking jewelry from the store. Finally, Grant admitted that his actions had an economic motive when he explained his conduct by saying, “Times are tough.”

Viewing the evidence in the light most favorable to the State, a rational trier of fact could find the evidence sufficient to negate the theories of innocence that Grant was either an innocent passerby or, borrowing from Rose, that he might have intended to commit any number of crimes inside the store. The trial court properly allowed the issue to go to the jury. From the State’s evidence, the jury could properly infer that Grant’s intent at the door of the jewelry store was to steal property inside.

Whether Grant “Carried” a Firearm During the Attempted Robbery

Grant argues that the trial court erred in denying his motion for judgment of acquittal on the firearm aspect of the attempted robbery charge because the evidence was insufficient that he “carried” a firearm within the meaning of section 812.13(2)(a), Florida Statutes (2010). Applying section 812.13(3)(a), we hold that the evidence at trial supported the jury’s finding that Grant “carried a firearm” “in the course of committing” the attempted robbery.

Section 812.13(2)(a) enhances a robbery to a first degree felony if a robber “car-nets] a firearm” “in the course of committing the robbery.” We agree with Grant that the evidence was insufficient to support the conclusion that he carried a firearm when he was at the door of the jewelry store and when he ran to his car. See, e.g., Prosser v. State, 742 So.2d 400 (Fla. 1st DCA 1999); Butler v. State, 602 So.2d 1303 (Fla. 1st DCA 1992).

However, section 812.13(3)(a) expressly defines the phrase “in the course of committing the robbery” to include a robber’s flight after an attempted robbery, providing:

An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.

§ 812.13(3)(a), Fla. Stat. (2010).

The police began chasing Grant’s car soon after he left the scene of the attempted robbery. When Grant’s car was stopped, the handgun was within his immediate physical reach on the passenger seat, underneath his hooded sweatshirt. A common meaning of the verb “carry” is to “convey” or “transport.” Random House Dictionary of the English Language 227 (unabridged ed. 1967). By driving away with the gun right next to him, Grant conveyed or transported it, so he “carried” the gun during his flight from the jewelry store. Therefore, Grant “carried a firearm” “in the course of committing” the attempted robbery under section 812.13(2)(a).

This holding is close to one of the holdings in Parker v. State, 570 So.2d 1048, 1053 (Fla. 1st DCA 1990). There, the police chased a defendant down 1-10 shortly after he committed a robbery at a rest area. Id. at 1050. After the car crashed to a stop, the defendant attempted to flee, with “a revolver in his right hand as he ran away.” Id. at 1051. The First District held that such “possession of a firearm during flight from the robbery” was sufficient evidence that the defendant violated section 812.13(3)(a). Id. at 1053.

The Validity of Grant’s Ten-Year Mandatory Minimum Sentence

As his final issue on appeal, Grant challenges the legality of the ten-year mandatory minimum portion of his sentence, entered pursuant to Section 775.087(2)(a), Florida Statutes (2010). We reverse because Grant was not charged under section 775.087(2)(a) with actually possessing a firearm “during the commission of the offense,” nor did the jury make such a finding. Rather, both the amended information and the special interrogatory submitted to the jury focused on whether Grant “carried” a firearm; the issue framed by the pleadings and the jury instructions was whether -a section 812.13(2)(a) violation occurred. The jury’s finding under section 812.13(2)(a) was insufficient to satisfy the requirements of section 775.087(2)(a).

There is a significant difference in the way sections 812.13(2)(a) and 775.087(2)(a)l.c. treat the use of a firearm. A finding that the defendant “carried” a firearm under section 812.13(2)(a) reclassifies robbery into a higher degree of felony, increasing the potential maximum of punishment.

Section 775.087(2)(a)l.c., on the other hand, subjects defendants convicted of actually possessing firearms during the commission of a robbery to a ten-year mandatory minimum sentence. The statute’s applicability is predicated on the defendant being “found to have been in actual possession of the firearm.” Arnett v. State, 128 So.3d 87, 87 (Fla. 1st DCA 2013); Hough v. State, 448 So.2d 628, 629 (Fla. 5th DCA 1984) (interpreting section 775.087(2) to mean that mandatory minimum sentencing may be imposed only if the defendant has actual, as against vicarious, possession of the firearm); Wallace v. State, 929 So.2d 695, 697 (Fla. 4th DCA 2006) (holding that a finding of “possession,” as against “actual possession,” is insufficient).

To “enhance a defendant’s sentence under section 775.087(2), the grounds for enhancement must be clearly charged in the information.” Arnett, 128 So.3d at 88. “ ‘It is a basic tenet of constitutional law that due process is violated when an individual is convicted of a crime not charged in the charging instrument.’ ” Terry v. State, 14 So.3d 264, 266 (Fla. 4th DCA 2009) (quoting Castillo v. State, 929 So.2d 1180, 1181 (Fla. 4th DCA 2006)).

This is a case that demonstrates why a finding that Grant “carried” a firearm within the meaning of section 812.13(2)(a) is not equivalent to a finding that he “actually possessed” the gun under section 775.087(2)(a)l. The key to the analysis is that section 775.087(4) explicitly defines “possession” in a way that narrows the type of constructive possession that qualifies for the mandatory minimum sentence.

Under section 775.087(2)(a)l., the ten-year mandatory minimum applies when a defendant committed, or attempted to commit, an enumerated felony and, “during the commission of the offense,” the defendant “actually possessed a ‘firearm’ or ‘destructive device’ as those terms are defined in s. 790.001.” Section 775.087(4) provides that,

[f]or purposes of imposition of minimum mandatory sentencing provisions of this section, with respect to a firearm, the term “possession” is defined as carrying it on the person. Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense, if proven beyond a reasonable doubt.

(Emphasis added). Thus, if a defendant is not “carrying” a firearm “on his person,” the State must prove beyond a reasonable doubt not only that the firearm was “within immediate physical reach with ready access” but that the defendant also had “the intent to use the firearm during the commission of the offense.” Section 812.13(2)(a) does not require the jury to make any finding about a defendant’s intent to use the firearm in deciding the issue of whether a defendant “carried” a firearm.

In this case, the amended information alleged that, during the commission of the attempted robbery, Grant “carried a firearm or other deadly weapon” and cited only to sections 812.13(1) and 812.13(2)(a), pertaining to robbery. As to the firearm portion of the charge, the jury was instructed:

If you find the defendant guilty of the crime of attempted robbery, then you must further determine beyond a reasonable doubt if “in the course of committing the armed robbery” the defendant carried a firearm. An act is “in the course of committing the attempted robbery” if it occurs during the commission of the crime or in flight after the attempt.
If you find that the defendant carried a firearm in the course of committing the attempted robbery, you should indicate so on the verdict form.

On the verdict form, the jury found that “the State has shown beyond a reasonable doubt that the defendant carried a firearm.” The jury did not find that the firearm was “within immediate physical reach with ready access,” nor did it find that Grant had “the intent to use the firearm during the commission of the offense.” The jury must make both findings to support the imposition of a ten-year mandatory minimum sentence under section 775.087(2)(a)l. A defendant could have a firearm within immediate physical reach with ready access, but lack the intent to use the firearm during the commission of the offense sufficient to satisfy section 775.087(2)(a)l.

We distinguish this case from Parker, 570 So.2d 1048. That case held in part that a finding that a defendant carried a firearm under section 812.13(8)(a), Florida Statutes (1989), was sufficient to “support imposition of the three-year mandatory minimum sentence” under section 775.087(2)(a), Florida Statutes (1989). Id. at 1053. That version of the statute differs from the current version of section 775.087; the 1989 version of the statute involved “possession” of a firearm rather than “actual possession,” and there was no complement to section 775.087(4) to shape the contours of such “possession.” Chapter 95-184, § 19, Laws of Florida, rewrote section 775.087(2)(a) to provide for a ten-year mandatory minimum where a person “actually possessed” a firearm during the commission of enumerated offenses; Chapter 99-12, § 1, Laws of Florida, added section 775.087(4).

While the jury’s finding adequately satisfied section 812.13(2)(a)’s reclassification requirements, it was insufficient to warrant imposition of a ten-year mandatory minimum sentence pursuant to section 775.087(2).

Accordingly, we reverse the mandatory minimum sentence and remand the case for resentencing.

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

      . We also affirm the denial of Grant’s motion to sever the two charges. We note that possession of a firearm with an altered serial number is some evidence that the possessor intends to use the gun for a criminal act, because of the difficulty of tracing the firearm. As the Fourth Circuit has observed:
      The Bureau of Alcohol, Tobacco, Firearms and Explosives has explained that requiring serial numbers on firearms serves the important governmental interests of enabling the tracking of inventory and record-keeping by licensees; tracing specific firearms used in crimes; identifying firearms that have been lost or stolen; and assisting in the prosecution of firearm offenses.

        United States v. Harris, 720 F.3d 499, 502-03 (4th Cir.2013).

      . Grant also relies upon Thomas v. State, 349 So.2d 743 (Fla. 1st DCA 1977), but that case is of little help. Thomas was reversed for a new trial because hearsay was admitted to prove the crime the defendant intended upon entering a residence. Thomas is not a case that evaluated whether the quantum of evidence of intent was enough to survive a motion for judgment of acquittal on an attempted robbery charge.

      . Interestingly, the jury was concerned about this issue. They sent out a question asking if "to carry" a firearm was to be on one’s person or to be in possession of a gun. The court advised the jury that they were required to rely on the instructions they had already received. The judge did not charge the jury with the definition of "possession” found in section 775.087(4).


author: FORST, J.

text:
    STATE of Florida, Appellant, v. Roland MARSH, Appellee.
    No. 4D12-4126.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.

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

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellee.
   FORST, J.

Defendant Roland Marsh (“Defendant”) was charged by information with one count of carrying a concealed firearm. Defendant responded with a motion to suppress, which led to the trial court dismissing the information against Defendant. Upon review of the State’s appeal of the order dismissing the information, we reverse and remand for further proceedings because we find, taking the facts in the light most favorable to the State, that the State presented a prima facie case of carrying a concealed firearm.

Background

The arresting officer came into contact with Defendant during a probation sweep. The officer was there for “security” purposes while the probation officers conducted the sweep. As the officer approached the home that was the subject of the probation sweep, he noticed Defendant and another man “hiding behind a vehicle and squatting behind the vehicle.” Defendant was not on probation, but the other man was the subject of the probation sweep. Both men were asked to step from behind the vehicle and were immediately patted down for weapons. After conducting this pat-down, the officer “did a quick glance of the area [where the men were seen hiding]” and, using his flashlight, “observed a weapon above the wheel well on the back tire of the vehicle.” Defendant then told the officer that the weapon was his.

Defendant was charged by way of information with carrying a concealed firearm. Defendant moved to suppress the firearm by arguing, among other things, that the undisputed facts were insufficient to prove concealment as a matter of law. The trial court treated the suppression motion as a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The trial court then dismissed the information based on Dorelus v. State, 747 So.2d 368 (Fla.1999), because “[the officer] saw in plain view a firearm on top of the rear tire of the driver’s side .... ” The trial court, therefore, found that “Defendant was not carrying the firearm in such a manner as to be hidden from ordinary sight.”

Standard of Review

A trial court’s ruling on a motion to dismiss is reviewed de novo. State v. Hinkle, 970 So.2d 433, 434 (Fla. 4th DCA 2007). “The state need only establish a prima facie case and ⅛ entitled to the most favorable construction of evidence, and all inferences should be resolved against the defendant.’ ” Id. (quoting State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002)).

Dorelus v. State

Section 790.01(2), Florida Statutes (2012), provides: “A person who carries a concealed firearm on or about his or her person commits a felony of the third degree ....” A “concealed firearm” is defined as “any firearm ... which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.” § 790.001(2), Fla. Stat. (2012). Under section 790.001, “ordinary sight of another person” means “the casual and ordinary observation of another in the normal associations of life.” Dorelus, 747 So.2d at 371 (quoting Ensor v. State, 403 So.2d 349, 354 (Fla.1981)). These statutes “explicitly define ‘concealed firearm’ ... by focusing on the ‘manner’ in which the weapon is carried on or about the person.” Id. “[T]he issue of concealment is ordinarily an issue for the trier of fact.” Id. (emphasis in original).

In Dorelus, the Florida supreme court listed variables that a trial court should consider when determining whether a firearm is concealed as a matter of law:

While the statute does not allow for hard-and-fast rules, variables that can be taken into consideration by the trial court in evaluating whether the weapon has been carried in such a manner as to be hidden from ordinary sight include the location of the weapon within the vehicle, such as the floorboard, the seat, a seat pocket, or an open console. The court should also consider whether, and to what extent, the weapon was covered by another object, such as a sheet or towel. In addition, although the specific intent of the defendant to conceal the weapon is not an element of the crime, the court may consider testimony that the defendant utilized his body in such a way as to conceal a weapon that would otherwise have been detectable by ordinary observation.

Id. (emphasis in original). The Dorelus opinion also noted that “a statement by the observing officer that he or she was able to ‘immediately recognize’ the questioned object as a weapon may conclusively demonstrate that the weapon was not concealed as a matter of law because it was not hidden from ordinary observation.” Id. at 372 (emphasis added). “However, ‘magic words’ from the arresting officer that he or she ‘immediately recognized’ the object as a firearm are not the only method to resolve the issue of concealment as a matter of law.” Id. at 373. In any event, “common sense should prevail [and] ... [t]he focus should remain on whether the weapon was carried in such a manner as to conceal it from ordinary sight.” Id. at 372 (emphasis in original).

In finding that the firearm was not concealed as a matter of law, the court in Dorelus noted:

[T]he gun was located in an open console underneath the radio and the officer observed the shiny silver butt of a gun sticking out of the console. There is no indication that the firearm was covered in any manner, no indication of any attempt on the defendant’s part to hide the presence of the firearm, and no indication that the police officer had any difficulty recognizing the object as a firearm.

Id. at 373 (emphasis added).

Analysis

The trial court in the instant case dismissed the information against Defendant based on Dorelus. Using only portions of that case, it is certainly conceivable to infer that one cannot be said to have “concealed” — as a matter of law — that which is immediately recognizable by officers as a firearm. The entirety of the Dorelus opinion, however, does not dictate such logic. Dorelus explicitly states that an officer’s immediate recognition of the object as a firearm, while relevant to the issue of concealment, is “not the only method to resolve the issue of concealment as a matter of law.” Id.

Unlike Dorelus, there was evidence in this case — especially when drawing all reasonable inferences in favor of the State — that Defendant attempted to position the firearm “in such a manner as to conceal the firearm from the ordinary sight of another person.” § 790.001(2), Fla. Stat. (2012); contra Dorelus, 747 So.2d at 373 (“There is ... no indication of any attempt on the defendant’s part to hide the presence of the firearm .... ”). By placing the firearm in the wheel well of the vehicle next to which Defendant was seen “crouching” and/or “hiding,” one may certainly surmise (by an exercise of “common sense”) that such placement of the firearm was an attempt to conceal the weapon from the ordinary sight of another person within the meaning of the statute — even if the attempt was insufficient to shield the firearm from the perceptive gaze of the officer who also happened to be standing at the perfect vantage point to see the gun. In fact, the arresting officer testified that he was able to see the gun only because he “got a good angle.”

Conclusion

“[T]he issue of concealment is ordinarily an issue for the trier of fact.” Dorelus, 747 So.2d at 371 (emphasis in original). Taking all of the facts of this case in the light most favorable to the State, we find that the issue of concealment was improperly determined by the trial court as a matter of law. Accordingly, we reverse the order dismissing the information against Defendant. Because Defendant raised other issues in his motion to suppress, we remand for the trial court to reconsider Defendant’s motion consistent with this opinion.

Reversed and Remanded for further proceedings.

GROSS and GERBER, JJ„ concur.


author: CRENSHAW, Judge.

text:
    Diane Bolvin HANCHEY, Petitioner, v. Edward LEAFFER, as Guardian of Owen Eugene Hanchey, Ward, Respondent.
    No. 2D13-5482.
    District Court of Appeal of Florida, Second District.
    May 7, 2014.

      Scott E. Siverson, Orlando, for Petitioner.
    Pamela D. Keller of Keller Law Office, P.A., Punta Gorda, for Respondent.
   CRENSHAW, Judge.

Diane Hanchey petitions for a writ of certiorari and requests review of two circuit court orders adopting the report and recommendations of a magistrate. One order authorizes Owen Hanchey’s guardian to initiate legal proceedings against Ms. Hanchey, Owen Hanchey’s wife. The other order denies Ms. Hanchey’s motion for contact with Mr. Hanchey. Ms. Han-chey argues that the trial court departed from the essential requirements of the law by adopting the magistrate’s report and recommendations on each of these matters without conducting an evidentiary hearing to address Ms. Hanchey’s objections. Ms. Hanchey’s petition is dismissed as to the authorization order because she has failed to establish any material injury that could serve as a basis for the exercise of this court’s extraordinary writ jurisdiction. And Ms. Hanchey’s petition is granted as to the contact order because she has been denied both contact with her ailing husband and due process.

“[A] writ of certiorari will issue where there is a departure from the essential requirements of law which will cause material injury to the petitioner throughout the proceeding and which cannot be adequately redressed on appeal.” In re Guardianship of Anderson, 568 So.2d 958, 958-59 (Fla. 4th DCA 1990) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)). “The second two parts of the test are jurisdictional.” Hagopian v. Justice Admin. Comm’n, 18 So.3d 625, 637 (Fla. 2d DCA 2009).

At the outset we note that the only injury Ms. Hanchey argues will occur as a result of the authorization order is “that she could be subjected to claims and discovery that may otherwise not be permitted.” However, “the fact that [Ms. Hanchey] may have to incur the expense and inconvenience of going through a [trial] is not grounds for the appellate court to exercise its extraordinary writ jurisdiction.” Anderson, 568 So.2d at 959 (citing Hartford Accident & Indem. Co. v. U.S.C.P. Co., 515 So.2d 998 (Fla. 4th DCA 1987)). Consequently, we are without jurisdiction to consider Ms. Hanchey’s petition as to the authorization order.

We do, however, have jurisdiction to consider Ms. Hanchey’s petition for review of the contact order, see Murison v. Coral Park Props., Inc., 64 So.3d 1288, 1289-90 (Fla. 4th DCA 2011), because Ms. Hanchey is being denied contact with Mr. Hanchey, whose health is declining. Moreover, the trial court departed from the essential requirements of the law by failing to conduct a hearing on Ms. Han-chey’s objections to the magistrate’s report and recommendation on her motion for contact. See Fla. Prob. R. 5.095(h) (“The parties may serve exceptions to the report within 10 days from the time it is served on them.... All timely filed exceptions shall be heard on reasonable notice by either party.”); see also Fla. R. Civ. P. 1.490(i). Ms. Hanchey’s objections were timely filed — the magistrate’s report was issued on October 4, 2013, and the objections were filed on October 8, 2013. See Murison, 64 So.3d at 1290 (“The trial court’s denial of the [petitioners’] timely exceptions without a hearing deprived them of due process and constituted a departure from the essential requirements of the law.”). Additionally, she requested a hearing thereon.

The guardian notes that Ms. Hanchey had not yet provided the transcript from the hearing before the magistrate when the contact order was issued, but this did not permit the trial court to ignore Ms. Hanchey’s objections. See id. Therefore, we grant the petition for writ of certiorari and, insofar as it seeks review of the contact order, quash the contact order.

Dismissed in part; granted in part; contact order quashed.

NORTHCUTT and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    Alfonso CASICA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2884.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant challenges his designation as a dangerous sexual felony offender, the result of which was to require a twenty-five year minimum mandatory term on his life sentence for armed sexual battery, which he asserts was in violation of section 794.011(3), Florida Statutes (2005). The trial court did not err because Casica was properly designated under section 794.0115(2)(b) in that he used or threatened to use a deadly weapon during the commission of the crime. Because the jury found appellant guilty as charged in the information, and the information charged him with sexual battery during which the defendant “used or threatened to use a deadly weapon, to wit: a firearm,” the jury made a finding sufficient to satisfy Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (facts that increase the mandatory minimum sentence are elements that must be submitted to the jury). See Gentile v. State, 87 So.3d 55, 57-58 (Fla. 4th DCA 2012). We reject appellant’s arguments to the contrary.

Affirmed.

WARNER, MAY and LEVINE, JJ., concur.

      . The issue of the legality of the designation of appellant as a dangerous sexual offender under the statute, which requires a twenty-five year mandatory minimum prison term, was properly preserved through a motion to correct the sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See, e.g., Jackson v. State, 983 So.2d 562, 572 (Fla.2008) (noting that a habitual offender designation, which increases the minimum punishment, could be addressed through a rule 3.800(b)(2) motion).


text:
    Berenice JUAREZ, Appellant, v. STATE Of Florida, Appellee.
    No. 4D11-3724.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nancy Jack, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Appellant appeals her conviction for first-degree murder, and finding no error, we affirm her conviction. Appellant argues that the trial court erred in denying her request to introduce evidence regarding domestic violence committed by her mother’s ex-boyfriend, and in allowing the investigating detective to testify why he charged appellant with first-degree murder. We find no abuse of discretion in all of the trial court’s rulings, and we affirm appellant’s conviction without further discussion.

Appellant also asserts that her resulting sentence of life imprisonment without parole is unconstitutional under Miller v. Alabama, — U.S. —, —, 132 S.Ct. 2455, 2464, 183 L.Ed.2d 407 (2012), in which the Supreme Court of the United States held that “mandatory life-without-parole sentences for juveniles violate the Eighth Amendment.” (emphasis added). Because appellant was a juvenile at the time of the offense, we agree and reverse her mandatory life sentence and remand for resentencing after consideration of the factors outlined in Miller. See Brighton v. State, — So.3d — (Fla. 4th DCA 2014).

Affirmed in part, reversed in part, and remanded.

MAY, CIKLIN and LEVINE, JJ., concur.


text:
    Patrick SWEENEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3427.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.
    Patrick Sweeney, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Patrick Sweeney appeals a trial court order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), which did not correct an apparent scrivener’s error. The record demonstrated a scrivener’s error in the citation to section 775.0823, Florida Statutes (1991), in appellant’s written sentence, when the correct statute was section 775.0825. The State’s response filed in the trial court conceded that the court should correct the statute number on appellant’s sentence. The trial court previously amended the judgment of conviction to reflect the correct statutory citation, but did not amend the sentence to correct the error.

Insofar as this is an instance of a scrivener’s error in appellant’s sentence, rather than a judicial determination or error, we affirm the trial court’s order denying the motion to correct illegal sentence. See Betts v. State, 128 So.3d 158 (Fla. 2d DCA 2013). However, we also remand with directions that the error be corrected in appellant’s sentence. Appellant’s presence is not required for this correction. Williams v. State, 697 So.2d 584 (Fla. 4th DCA 1997).

Affirm; remand to correct scrivener’s error in appellant’s sentencing.

TAYLOR, LEVINE and CONNER, JJ., concur.


text:
    Thomas MASCIARELLI, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-0656.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2014.
    Thomas Masciarelli, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Fernandez v. State, 683 So.2d 149, 150 (Fla. 3d DCA 1996), rev. denied, 691 So.2d 1080 (Fla.1997); Atwater v. State, 781 So.2d 1149, 1153 (Fla. 5th DCA 2001); Dennis v. State, 549 So.2d 228, 229 (Fla. 3d DCA 1989).

TAYLOR, CIKLIN and KLINGENSMITH, JJ., concur.


text:
    Jeremy Roger HOULE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1348.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2014.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Jeremy Houle timely appeals the judgment and sentence rendered following the return of the jury verdict finding him guilty of Count I, escape; Count II, the lesser included offense of assault; Count III, felony battery; Count IV, battery; and Count V, criminal mischief. He argues (1) the convictions for felony battery and battery violate double jeopardy; (2) the court erred by imposing restitution without a hearing and based on hearsay; and (3) the court erred by denying his motion for judgment of acquittal on the escape charge. The charges stem from a physical altercation between Houle and his live-in girlfriend.

As to the first issue, Houle asserts the convictions for both Count III, felony battery, and Count IV, battery, violate double jeopardy principles because both convictions stemmed from the same criminal episode involving the same victim with no temporal break between the acts. We agree. See Harris v. State, 111 So.3d 922 (Fla. 1st DCA 2013). Therefore, we reverse his conviction for battery and remand for entry of an amended judgment deleting that conviction. In all other respects, we affirm.

AFFIRMED in part; REVERSED in part; REMANDED.

GRIFFIN, SAWAYA, and WALLIS, JJ., concur.


text:
    Royce Lyndsay REED, Appellant, v. Dwight David HOWARD, II, Appellee.
    No. 5D13-2342.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2014.
    Jane E. Carey, of Jane E. Carey, P.A., Orlando, for Appellant.

      Mayarme Downs and Rachel M. Crews, of GrayRobinson, P.A., Orlando, for Appel-lee.
   PER CURIAM.

We affirm the temporary order on time-sharing.

SAWAYA, EVANDER, and WALLIS, JJ., concur.


text:
    John GREENSLADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2809.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2014.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the convictions and the sentences imposed without prejudice to the defendant to file an appropriate motion pursuant to Florida Rule of Criminal Procedure 3.850.

AFFIRMED.

SAWAYA, PALMER, and BERGER, JJ., concur.


text:
    Julio Cesar COLLAZO, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4100.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2014.
    Julio Cesar Collazo, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Muzzi v. State, 118 So.3d 933 (Fla. 5th DCA 2013); Kennedy v. State, 106 So.3d 512 (Fla. 5th DCA 2013); Ferrell v. State, 105 So.3d 539 (Fla. 5th DCA 2013); Anderson v. State, 105 So.3d 538 (Fla. 5th DCA 2013).

We certify that this decision conflicts with the decision of the Second District Court of Appeal in Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014).

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


text:
    Edward FRANCIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4103.
    District Court of Appeal of Florida, Fifth District.
    May 9, 2014.
    Robert Wesley, Public Defender, and Michelle Yard, Assistant Public Defender, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Muzzi v. State, 118 So.3d 933 (Fla. 5th DCA 2013) (citing Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012)); Kennedy v. State, 106 So.3d 512 (Fla. 5th DCA 2013); Ferrell v. State, 105 So.3d 539 (Fla. 5th DCA 2013); Anderson v. State, 105 So.3d 538 (Fla. 5th DCA 2013).

We certify that this decision conflicts with the decision of the Second District Court of Appeal in Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014).

GRIFFIN, SAWAYA, and ORFINGER, JJ., concur.


text:
    Janiel Molina PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1577.
    District Court of Appeal of Florida, First District.
    May 12, 2014.

      Valarie Linnen, Atlantic Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Janiel Molina Perez, appeals his convictions and sentences for burglary with a battery, aggravated battery, and resisting an officer without violence. We agree with Appellant that the trial court erred in denying his motion for judgment of acquittal on the resisting an officer without violence charge and, therefore, reverse that conviction. We reject Appellant’s double jeopardy argument and otherwise affirm.

Based upon the State’s evidence, Appellant and three other men burglarized an occupied dwelling. During the burglary, the victim was beaten with a baseball bat and a gun. In the days that followed, law enforcement went to a certain house not knowing if Appellant and another individual who was suspected of being involved in the crimes were there. Four law enforcement officers arrived at the house in a gray, full-size pick-up truck that was described by an investigator as “not a law enforcement-type vehicle.” There was no evidence presented as to whether the officers were in uniform or in plain clothes. When the officers arrived at the house, Appellant and another individual ran from the back door. Appellant stopped in the yard, and the other man climbed the fence but later “came walking back out [of the woods] on his own volition.” The State acknowledges on appeal that there was no testimony as to exactly what the officers said to the two men when they ran from the dwelling. Appellant and his co-defendant moved for a judgment of acquittal. The trial court denied the motion, agreeing with the prosecutor that orders to stop had been given. The jury found Appellant guilty, and this appeal followed.

A trial court’s ruling on a motion for judgment of acquittal is reviewed on appeal de novo. Ridgeway v. State, 128 So.3d 935, 936 (Fla. 1st DCA 2013). The question presented by such a motion is whether, in a light most favorable to the State, the evidence is legally adequate to support the charge. Id. If competent, substantial evidence is presented to support a conviction, an appellate court generally will not reverse the denial of a motion for judgment of acquittal. Id. In reviewing a trial court’s denial, an appellate court must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the State. Lukaszewski v. State, 111 So.3d 212, 213 (Fla. 1st DCA 2013).

Section 843.02, Florida Statutes (2011), provides in part that “[wjhoever shall resist, obstruct, or oppose any officer ... without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree .... ” To support a conviction of obstruction without violence, the State must prove: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the defendant’s action, by his words, conduct, or combination thereof, constituted obstruction or resistance of that lawful duty. C.E.L. v. State, 24 So.3d 1181, 1185-86 (Fla.2009). Flight, standing alone, is insufficient to form the basis of this offense. Id. at 1186. To be guilty of the offense, an individual who flees must know of the officer’s intent to detain him, and the officer must be justified in making the stop at the point when the command to stop is issued. Id.

Contrary to the trial court’s determination, the State did not present any evidence that law enforcement directed Appellant to stop either before or after he fled. While the State argues that it can be assumed, based upon the fact that Appellant stopped in the yard, that law enforcement directed Appellant to stop, it was the State’s burden to prove the elements of the offense by competent, substantial evidence, not through assumptions. We, therefore, conclude that the trial court erred in denying Appellant’s motion for judgment of acquittal on the offense of resisting an officer without violence. See O.B. v. State, 36 So.3d 784, 788 (Fla. 3d DCA 2010) (holding that the trial court erred in finding the appellant guilty of resisting an officer without violence because there was no evidence that the appellant heard any order to stop); S.B. v. State, 31 So.3d 968, 970 (Fla. 4th DCA 2010) (holding that the State failed to prove every element of the offense of resisting an officer where, although the appellant fled upon seeing the officers, there was no command to stop by the officers at the time the appellant fled); Clark v. State, 976 So.2d 1225, 1225-26 (Fla. 4th DCA 2008) (reversing the appellant’s conviction for resisting an officer without violence because although the appellant ran when unmarked police vehicles pulled into the parking lot of a pool hall, the deputy did not tell the appellant to stop). Cf. State v. Garcia, 126 So.3d 419, 419-20 (Fla. 2d DCA 2013) (holding that the police, who exited a van wearing “Sheriff’ vests and yelling “Sheriffs Office,” had probable cause to arrest the appellee for resisting or obstructing an officer without violence based on his failure to cease his headlong flight in response to the officers’ directions for him to do so, which were made while the officers were chasing him). Although there may be a case where the surrounding circumstances could establish knowledge of law enforcement’s intent to detain without a command to stop, this is not such a case.

Appellant also argues on appeal that his convictions for burglary with a battery and aggravated battery violate the prohibition against double jeopardy. As Appellant acknowledges, however, this argument has previously been rejected. See Billiot v. State, 711 So.2d 1277, 1278 (Fla. 1st DCA 1998) (rejecting the argument that the appellant’s convictions for burglary with a battery and aggravated battery violated the prohibition against double jeopardy); see also Irizarry v. State, 905 So.2d 160, 167 (Fla. 3d DCA 2005) (rejecting the argument that the appellant’s convictions for burglary with a battery and aggravated battery violated the prohibition against double jeopardy); State v. Reardon, 763 So.2d 418, 419 (Fla. 5th DCA 2000) (en banc) (holding that there is no statutory or constitutional bar to the entry of convictions of aggravated battery and burglary with a battery- arising out of the same criminal episode); Washington v. State, 752 So.2d 16, 17 (Fla. 2d DCA 2000) (rejecting the argument that the convictions for burglary with a battery and aggravated battery violated the prohibition against double jeopardy).

Accordingly, we AFFIRM the convictions for battery with a burglary and aggravated battery, REVERSE the conviction for resisting an officer without violence, and REMAND.

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


text:
    Toland Jerome BONNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0415.
    District Court of Appeal of Florida, First District.
    May 12, 2014.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant; Toland Jerome Bonner, pro se.
    Pamela Jo Bondi, Attorney General, and Lauren L. Brudnicki and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the judgment and sentence imposed after the trial court found that he violated probation. For the reasons discussed below, we reverse.

The affidavit of violation of probation alleged that appellant violated probation by committing the criminal offense of “LSOA without giving info more than $50 damage.” However, there was no evidence of any damage to the vehicle or property introduced at the violation hearing. Instead, all the evidence introduced by the state suggested the appellant committed the crime of leaving the scene of an accident with personal injury, a violation of section 316.027, Florida Statutes (2012). The appellant was not specifically charged with committing that crime in the violation of probation affidavit. Courts have held that it is fundamental error to revoke probation based on an allegation not alleged in the violation of probation affidavit. See Howard v. State, 883 So.2d 879, 880 (Fla. 4th DCA 2004) (“It is a due process violation and fundamental error to revoke probation for violations not alleged in the affidavit of violation of probation.”); Smith v. State, 738 So.2d 433 (Fla. 1st DCA 1999) (“Revocation of probation on grounds never alleged in writing violates due process and is fundamental error.”); Wyns v. State, 679 So.2d 882 (Fla. 5th DCA 1996) (“fundamental due process requires revocation to be based only on those violations alleged”). Accordingly, we reverse the trial court’s order and remand this matter to the trial court with orders to dismiss the violation of probation charges.

REVERSED and REMANDED with directions.

BENTON, WETHERELL, and MARSTILLER, JJ, concur.

      . There is no such crime, although section 316.061, Florida Statutes (2012), prohibits leaving the scene of an accident involving damage to "a vehicle or other property which is driven or attended by any person,” without regard to any specific amount of damage. The affidavit did not specify which statute the appellant was alleged to have violated.

      . The affidavit alleged a second count which was dismissed at the beginning of the VOP hearing.


text:
    Stanley Fiorantino WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-759.
    District Court of Appeal of Florida, First District.
    May 12, 2014.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Appellant’s judgment and sentence, but remand for the trial court to correct the order revoking his probation. Although the State alleged in its September 18, 2012, affidavit that Appellant violated his probation by committing one new law violation on June 19, 2012, and two new law violations on June 23, 2012, the lower court found that the evidence supported revocation based only on the June 23, 2012, violations. The revocation order provides, however, that Appellant violated the conditions of his probation as alleged in the September 18, 2012, affidavit. We, therefore, remand for the trial court to correct the revocation order. See Nickolas v. State, 66 So.3d 1077 (Fla. 1st DCA 2011) (affirming a judgment and sentence in an Anders appeal but remanding for the court to correct revocation order which erroneously based revocation on all five new law violations charged where court only found evidence supported 1 new law violation); Washington v. State, 37 So.3d 376 (Fla. 1st DCA 2010) (affirming a judgment and sentence in an Anders appeal but remanding for the court to correct a revocation order reflecting the appropriate condition violated); Leggs v. State, 27 So.3d 155 (Fla. 1st DCA 2010) (affirming, in an Anders appeal, the appellant’s judgment and sentence, but remanding with directions that the trial court enter an order specifying the conditions of probation violated). Appellant need not be present. Nickolas, 66 So.3d at 1077 (citing Baldwin v. State, 855 So.2d 1180 (Fla. 1st DCA 2003) (remanding for entry of a written revocation order conforming to the oral pronouncement in an Anders appeal)).

AFFIRMED and REMANDED.

ROBERTS, WETHERELL, and OSTERHAUS, JJ„ concur.

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


text:
    Dondre R. HALE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4478.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Dondre R. Hale, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on July 8, 2013, in Leon County Circuit Court case number 1996-CF-2690-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.


text:
    Daryl JOYCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5568.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order denying defendant’s motion to vacate or set aside judgment rendered on June 10, 2013, in Escambia County Circuit Court case number 2009-CF-004118A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.


text:
    Damian CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5850.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Damian Clark, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the summary denial of the appellant’s rule Motion for Post Conviction Relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, we remand for correction of scrivener’s errors in the judgment and sentence which are in variance with the sentencing court’s statements during the plea colloquy and its oral pronouncement during sentencing, as the postconviction court recognized in its order summarily denying the appellant’s motion. See Skiba v. State, 67 So.3d 337 (Fla. 4th DCA 2011); Pressley v. State, 726 So.2d 403 (Fla. 2d DCA 1999). Specifically, the written judgment should be corrected to reflect that the sentencing court sentenced the appellant to 20 years’ imprisonment, with 10 years’ minimum-mandatory pursuant to section 775.087(2)(a)l., Florida Statutes (2008), for armed robbery; to 20 years’ imprisonment for attempted first-degree felony murder; and to 15 years’ imprisonment for possession of a firearm by a juvenile delinquent found to have committed a felony act.

AFFIRMED; REMANDED for Correction of Scrivener’s Errors.

WOLF, PADOVANO, and RAY, JJ., concur.


text:
    Stephanie STARLING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6044.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about July 31, 2013, denying petitioner’s motion for post-conviction relief in Alaehua County Circuit Court case numbers 01-2011-CF-004319-A and 01-2011-CF-003819-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

VAN NORTWICK, ROBERTS, and CLARK, JJ., concur.