author: RAY, J.

text:
    Abraham Frederick BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6951.
    District Court of Appeal of Florida, First District.
    May 22, 2013.

      Nancy A. Daniels, Public Defender; and Diana L. Johnson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   RAY, J.

Abraham Brown appeals his convictions for burglary of an occupied dwelling, violation of an injunction for protection against domestic violence, interference with custody, and criminal mischief. He contends that the trial court failed to conduct adequate inquiries pursuant to Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), when Brown expressed his dissatisfaction with court-appointed counsel, and pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), when he asserted his wish to represent himself after the court found no reasonable cause to discharge his attorney. Brown also challenges the sufficiency of the evidence justifying his enhanced sentences as a habitual felony offender (HFO). Concluding that the trial court fully complied with the requirements of Nelson and Faretta, we affirm the convictions and the two non-HFO sentences. Because the State failed to prove Brown’s eligibility for HFO status, we vacate the HFO sentences for Counts One and Three and remand for resentenc-ing, where the State may present additional evidence to support habitualization.

Previous Trials

After the first trial, Brown appealed his convictions. This Court reversed and remanded for a new trial because the trial court failed to conduct an adequate Faret-ta inquiry before accepting Brown’s waiver of his constitutional right to assistance of counsel. Brown v. State, 971 So.2d 270, 271 (Fla. 1st DCA 2008). In the appeal of Brown’s convictions after the second trial, we reversed and remanded because the trial court denied Brown’s unequivocal request to cease self-representation and obtain court-appointed counsel. Brown v. State, 45 So.3d 110, 112 (Fla. 1st DCA 2010). The issues raised in this appeal relate to the third trial.

Adequacy of the Nelson Inquiry

Facts

At a hearing immediately before jury selection on September 12, 2011, Brown informed the court that he did not trust his court-appointed counsel, an assistant public defender. Brown complained that his attorney had not kept promises concerning the filing of certain motions, was not doing what Brown asked him to do, would not come to talk to Brown, had not provided him with a copy of a certain transcript, had filed an untimely motion to disqualify the judge, and had requested a continuance rather than seek dismissal on “speedy trial” grounds. Brown asked the court to discharge counsel. Defense counsel specifically addressed each of Brown’s complaints and explained counsel’s acts and omissions. After a full inquiry involving Brown and his attorney concerning the allegations of ineffective assistance, the trial court determined that no legal basis existed to remove court-appointed counsel and provide a substitute lawyer.

Law

An indigent’s right to court-appointed counsel necessarily includes the right to effective representation by counsel. Nelson, 274 So.2d at 258 (citing Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)). If an indigent asks the trial court to discharge court-appointed counsel before the trial commences, then, to protect the right to effective counsel, the court must inquire about the reason for the request. Nelson, 274 So.2d at 258. If incompetency of counsel is given as a reason, the court should sufficiently inquire of the defendant and the attorney to determine whether reasonable cause exists to conclude that counsel is not providing effective legal assistance. Id. at 258-59. Upon reasonable cause for such belief, the court should make a finding on the record, appoint substitute counsel, and allow sufficient time to prepare a defense. Id. at 259.

If no reasonable basis supports a finding of ineffective representation, then the court should say so in the record and inform the defendant that if he or she discharges original court-appointed counsel, then the State will not be required to appoint another lawyer. Id. Where a defendant continues to demand the dismissal of court-appointed counsel, the trial court has the discretion to discharge the attorney and require the defendant to proceed to trial without representation by a court-appointed lawyer. Id. Whether the trial court conducted an adequate Nelson hearing is reviewed for an abuse of discretion. Kearse v. State, 605 So.2d 534, 536 (Fla. 1st DCA 1992).

Analysis

Our review of the Nelson inquiry supports the trial court’s conclusion that Brown alleged no reasonable basis for finding ineffective assistance to warrant discharging court-appointed counsel. Defense counsel specifically addressed all of Brown’s complaints and adequately explained counsel’s reasons for proceeding as he had done thus far. Because the record amply supports the trial court’s findings and its decision not to discharge counsel, we find no abuse of discretion on the Nelson claim.

Adequacy of the Faretta Inquiry

Facts

On September 12, 2011, after the trial court refused to discharge counsel and appoint a substitute attorney, Brown stated: “Well, I can’t afford to hire an attorney, so the cqurt is forcing me to go pro se again.” Brown clarified: “I’m going pro se.” The judge informed Brown that he had the right to counsel, that an attorney had been appointed to represent him due to Brown’s indigency, and that the State would pay for the legal representation.

Reminding Brown that the proceedings were “at the trial stage now,” the court set forth in meticulous detail the specific ways in which having legal representation would be to Brown’s advantage during the trial. The judge advised Brown that a lawyer has the knowledge and experience of the entire legal process, and would argue on Brown’s behalf and present the best legal arguments for the defense, during the whole trial. The court commented that jury selection is governed by numerous legal procedures that an attorney would understand. Addressing the various aspects of the trial, the judge informed Brown that a lawyer could call and question witnesses, understand the rules of admissibility, present evidence, and ensure that jury instructions are proper. An attorney could advise Brown concerning whether to testify, and the consequences of Brown’s ultimate decision. A lawyer could present opening statements and closing argument, attempt to prevent improper prosecutorial argument, and properly preserve any errors for appellate review. The court told Brown that if he were to be convicted, an attorney may be useful in the sentencing and appellate processes.

Brown expressly stated that he understood these rights. The court warned Brown that he would not be entitled to a continuance merely because of self-representation. Having discussed Brown’s rights, and the pros and cons of representation by an attorney, the court reiterated: “We’re at the trial stage.” When Brown asked whether he would have standby counsel, the judge advised that Brown could have standby counsel, if he requested it. After reiterating Brown’s right to counsel, the court informed Brown that even if he chose to represent himself during the trial, he could still request counsel for sentencing and an appeal.

The court reminded Brown that it is generally unwise for a criminal defendant to represent himself. The judge noted that a pro se criminal defendant is not qntitled to special treatment in court. An attorney can fully research a theory of defense, whereas an inmate’s library access privileges are more limited. Brown stated that he understood his rights. Noting that Brown had elected to proceed pro se in the two previous trials on these charges, the court explained that Brown was not required to possess a lawyer’s skills to represent himself, but he would have to comply with the applicable rules of law and procedure during the trial. When he asked about making objections during the trial, the court replied that Brown could appeal preserved rulings sustaining a State objection or overruling a defense objection.

After Brown stated that he understood what the charges were but did not understand how he was being charged, the prosecutor explained the charges, any lesser-included offenses, and the maximum possible HFO or non-HFO sentences for the felonies. The court advised Brown of the direct and collateral consequences of a conviction and an HFO classification. The judge elicited information that Brown, age 39, can read and write English, is a high-school graduate, and was not presently under the influence of alcohol or drugs. Brown expressed his understanding that appointed counsel would be free, except for an appointment fee.

Having advised Brown of his right to counsel, the advantages of proceeding -with counsel, and the disadvantages and risks of representing himself, the court asked whether Brown was certain that he did not want court-appointed counsel to continue representing him. Brown answered affirmatively that he was sure. The judge advised Brown that if he represented himself, the court could honor any request for standby counsel, who would be available to answer any questions during the course of the trial. The court made oral findings that Brown was fully competent to waive his right to counsel and had done so knowingly and intelligently. The judge reminded Brown that if he wanted to proceed pro se without standby counsel, then Brown was responsible for the organization and content of his ease. To allow Brown additional time to consider his options, the court asked former counsel to remain in the courtroom.

When Brown informed the court that he had not asked for standby counsel, and he asked why previously appointed counsel was present, the judge advised Brown that the court had requested that counsel be present for the jury selection and other trial proceedings. The court reminded Brown that the last time he was tried, he changed his mind. As a precaution, the court wanted the attorney to be ready to step in, if needed and requested by Brown to do so. When the court clarified that previously appointed counsel was not there as Brown’s standby counsel, Brown expressed his understanding of the situation.

The court instructed Brown that he could question the prospective jurors to determine whether they could serve fairly and impartially. The judge explained the rules for peremptory strikes and challenges for cause. Voir dire commenced, and the jury was chosen later on the same morning as this inquiry. Although previously appointed counsel was present for voir dire, Brown did not consult him. At the end of jury selection, the court advised Brown that his former lawyer would be there again the next day for the start of the evidentiary part of the trial, in case Brown changed his mind about counsel. The day’s proceedings ended.

The next morning, September 13, 2011, the trial court immediately asked Brown whether he still wanted to proceed pro se, and he answered affirmatively. Brown adopted previously appointed counsel’s pending motion seeking to prevent Brown from being classified and sentenced as an HFO. Confirming that Brown still wished to represent himself, the court asked whether he wanted to proceed without standby counsel. The court advised that standby counsel would be available during the course of the trial proceedings if Brown had any questions. Brown indicated that he wanted to continue pro se without standby counsel. The court determined that Brown was competent to waive counsel and wanted to proceed without a standby attorney.

After the court explained the purpose of opening statements, the State gave its opening. During his opening remarks, Brown told the jury that he had freely chosen to represent himself. After opening statements, but before the State’s first witness testified, Brown reviewed the evidence and asked the court to wait until previously appointed counsel returned to the courtroom. Between the testimony of witnesses for the prosecution, Brown requested and received permission from the court for him to ask former counsel “something.” At the end of the first day of the evidentiary portion of the trial, when the court asked whether Brown wished to consult with previously appointed counsel before leaving the courtroom, Brown answered affirmatively.

At the commencement of the second day of the evidentiary proceedings, on September 14, 2011, the court asked Brown again whether he still wished to represent himself, and he responded affirmatively. Brown expressed his understanding that a lawyer could be appointed to represent him for free, except for the $150 appointment and representation fee. Brown reiterated his desire to proceed without standby counsel. Brown’s former counsel was present in the courtroom. The judge orally announced that although Brown was representing himself, the court had asked previously appointed counsel to remain in the courtroom during the trial.

The transcript of the evidentiary phase of the trial reflects that Brown represented himself, but he repeatedly availed himself of the opportunity to consult with his former counsel. Brown questioned witnesses. After a colloquy, Brown elected not to testify. At the charge conference, previously appointed counsel furnished Brown with a copy of the Florida Statutes. At the close of all evidence, Brown conferred with his former attorney and renewed his motion for a judgment of acquittal, which was denied. The court also denied Brown’s motions for a mistrial. Brown presented his own closing argument. With Brown’s permission, his former counsel drafted a motion for new trial, which was denied.

Law

“Under the Sixth Amendment to the United States Constitution, a criminal defendant is - entitled to the aid of counsel, not only at trial, but prior to trial at critical periods of the proceedings.” Taylor v. State, 726 So.2d 841, 843 (Fla. 1st DCA 1999) (citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)). An accused also has the right to represent himself or herself. Kearse, 605 So.2d at 537 (citing Faretta, 422 U.S. at 819, 95 S.Ct. 2525). Florida Rule of Criminal Procedure 3.111(d) addresses “Waiver of Counsel.” Subsections (d)(2) and (d)(3) of this rule state:

A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused’s comprehension of that offer and the accused’s capacity to make a knowing and intelligent waiver. Before determining whether the waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of self-representation.
Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself.

Therefore, “[w]hen a defendant indicates that he wishes to waive his right to counsel and represent himself, the trial court is obligated to conduct a Faretta inquiry to determine if he is knowingly and intelligently waiving his right to counsel and is ‘aware of the dangers and disadvantages of self-representation.’ ” Flowers v. State, 976 So.2d 665, 666 (Fla. 1st DCA 2008) (citing Faretta, 422 U.S. at 885, 95 S.Ct. 2525).

Rule 8.111(d)(5) states:

If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.

See Traylor v. State, 596 So.2d 957, 968 & n. 29 (Fla.1992); Wilson v. State, 76 So.3d 1085, 1088 (Fla. 2d DCA 2011). For a criminal defendant’s right to choose the manner of representation to be meaningful, this right “must apply at least at each crucial stage of the prosecution,” which is “any stage that may significantly affect the outcome of the proceedings.” Traylor, 596 So.2d at 968 & nn. 23-24. The commencement of trial is deemed a crucial or critical stage of the proceedings under rule 3.111(d)(5). Wilson, 76 So.3d at 1088; see Lamb v. State, 535 So.2d 698, 699 (Fla. 1st DCA 1988) (“Trial in every case is a critical stage.”).

We review the adequacy of a Faretta inquiry for an abuse of discretion. Kearse, 605 So.2d at 537; Lamb, 535 So.2d at 698 n. 1. However, “[t]he failure to conduct an adequate Faretta inquiry is per se reversible error.” Flowers, 976 So.2d at 666; see Wilson, 76 So.3d at 1089 (“A trial court’s failure to conduct a Faretta hearing at a critical stage of the criminal proceedings constitutes per se reversible error.”); Case v. State, 865 So.2d 557, 559 (Fla. 1st DCA 2003).

Analysis

On appeal, Brown does not question the adequacy of the full Faretta inquiry conducted immediately before jury selection on September 12, 2011. Rather, he contends that on September 13, 2011, at the beginning of the trial proceedings that day, Faretta required the trial court to remind Brown that he could have court-appointed counsel if he wished, that self-representation entailed certain risks, and that representation by a lawyer would afford Brown certain advantages. Additionally, Brown argues that the court was required to renew its inquiry concerning Brown’s physical and mental health. Brown asserts that on September 14, 2011, the second day of the evidentiary part of the trial, the court erred in failing to renew its inquiry as to all these factors, except to remind Brown that he could have a court-appointed attorney if he wanted one.

The State correctly notes that Brown’s argument rests entirely on the assumption that jury selection is a critical stage of the proceedings, separate and distinct from the other parts of the trial, for purposes of Faretta. Brown cites legal authority for the proposition that, where a defendant has waived the right to counsel, as Brown clearly did after the full inquiry on September 12, the trial court must renew its inquiry at each subsequent crucial or critical stage of the proceedings where the defendant appears without counsel. See Traylor, 596 So.2d at 968 & n. 29. While this general principle is true, it affords Brown no relief under the instant facts.

We find no basis in Brown’s cited cases, in rule 3.111(d), or in any other binding authority, indicating as a matter of law that jury selection is to be considered a separate, crucial stage from the rest of the trial for purposes of determining whether a renewed, full Faretta inquiry is necessary. A trial can be separated into many “stages,” including jury selection, opening statements, the presentation of evidence, closing argument, jury instructions, the verdict, and certain post-trial motions. Taken to its ultimate conclusion, Brown’s reasoning would require a renewed Faret-ta inquiry at the start of each and every component part of the trial. No such constitutional requirement exists. See Knight v. State, 770 So.2d 663, 669-70 n. 6 (Fla. 2000) (“A defendant’s right to have court-appointed counsel discharged and right to represent himself becomes meaningless and a source of gamesmanship if the trial court has to offer counsel to the defendant each time he appears in court.”). Nor will we construe rule 3.111(d)(5) so strictly as to “produce an absurd result.” State v. Roberts, 677 So.2d 264, 265 (Fla.1996).

The record demonstrates that the trial court fully informed Brown, immediately before jury selection, that they were now at “the trial stage.” The judge advised that Brown was entitled to court-appointed counsel or could represent himself for the entire trial proceedings. The court apprised Brown of the advantages of legal representation “during the whole trial” and explained what would happen during the various segments of the trial. The court fully set out the pros and cons of Brown’s representation options, including the numerous risks of proceeding pro se. The court explained that even if Brown chose self-representation during the trial, he could request appointment of counsel for the sentencing and appellate proceedings. The judge ascertained that Brown, fully understanding his rights and options, knowingly and intelligently chose to discharge court-appointed counsel and elected to represent himself during the entire crucial trial stage “with eyes open.” Potts v. State, 718 So.2d 757, 759-60 (Fla.1998); see Langon v. State, 791 So.2d 1105, 1111-12 (Fla. 4th DCA 1999).

To reinforce the court’s instructions that Brown was entitled to counsel during the entire trial if he wished, former counsel was present during the trial as a “constant reminder” to Brown of his right to appointed counsel. See Knight, 770 So.2d at 670. Although Brown orally rejected the offer of standby counsel at the commencement of trial, the trial record is replete with examples of Brown’s consulting with former counsel, availing himself of legal advice, and allowing the attorney to speak on Brown’s behalf, when it served Brown’s advantage. At the beginning of his opening statement, Brown informed the jury that he had freely chosen to represent himself. The record clearly demonstrates that, at the commencement of the critical trial stage, Brown was fully informed of his right to counsel and the advantages of legal representation, but decided to represent himself while knowing the risks of doing so.

The court conducted a proper Faretta inquiry at the beginning of jury selection, advising Brown of his rights for the entire crucial trial stage. No other substantive proceedings intervened, and nothing in the record suggests that Brown’s mental or physical state changed between September 12 and September 13-14, so as to trigger the need for additional questioning regarding his understanding of the trial process. Therefore, it was sufficient under Faretta for the court to proceed on the second and third days of the trial without renewing the full Faretta inquiry at the beginning of each day. See Knight, 770 So.2d at 669-70 & n.6 (concluding that where a defendant has properly waived the right to counsel at a pretrial hearing concerning his rights at the upcoming trial, the trial court can proceed with the stage where counsel was waived without a full renewal of the offer of counsel at the commencement of the trial itself); Langon, 791 So.2d at 1112; McCarthy v. State, 731 So.2d 778 (Fla. 4th DCA 1999); Lamb, 535 So.2d at 699.

Brown misplaces his reliance on Wilson v. State, 947 So.2d 1225 (Fla. 1st DCA 2007), where the trial court failed to conduct an adequate Faretta inquiry before allowing Wilson to represent himself at resentencing, which was a new .critical stage. Id. at 1226-27 & n. 3. Likewise, the instant facts are distinguishable from the trial court’s too-limited inquiry and the absence of factual findings in Davis v. State, 10 So.3d 176, 177-78 (Fla. 5th DCA 2009).

Sufficiency of the Evidence to Prove Eligibility for HFO Sentencing

Facts

The State filed an amended notice of intent to seek HFO classification and enhanced sentences for Brown pursuant to section 775.084, Florida Statutes, based on two prior felony convictions. Before Brown chose to represent himself at the trial, court-appointed counsel moved to preclude HFO classification, citing language in section 775.084(l)(a)2.b., which requires in pertinent part that the felony (for which the defendant is to be sentenced) be committed “within 5 years of defendant’s release from a prison sentence ... or other sentence that is imposed as a result of a prior conviction for a felony or other qualified offense.” At Brown’s request, the trial court reappointed the same public defender to represent Brown in the sentencing phase.

At the sentencing hearing, the prosecution elicited expert testimony from a Jacksonville Sheriffs Office fingerprint technician to establish that Brown had two prior felony convictions. This witness testified that Brown’s fingerprint card matched the Duval County judgment and sentence in Circuit Court Case No. 2000-9190-CF-A for uttering a forged instrument, a third-degree felony, which was entered on August 7, 2000. The “sentence” page stated that the trial court imposed a six-month sentence for felony uttering, with 25 days’ credit. The witness also found a match with the St. Johns County judgment and sentence in Circuit Court Case No. CF94-106 for aggravated assault, a third-degree felony. Brown does not challenge the existence of these prior convictions.

The next witness, Officer Procter, a classification officer with the Jacksonville Sheriffs Office, testified that his duties included attempting to calculate the release dates of persons who are sentenced to the Duval County Jail. To determine whether Brown qualified as an HFO, the State had asked Procter to determine Brown’s sentence and release date for his 2000 conviction for felony uttering. Procter testified that, according to his calculations, November 30, 2000, was the earliest possible date that Brown could have been released from the jail for the felony. Brown had a misdemeanor conviction in Case No. 2000-MM-36585, for which he received a 30-day sentence to run consecutively to the felony uttering sentence. Thus, according to Procter, Brown’s overall sentence could have expired later than November 30. The witness testified that Brown was actually released from jail for both the misdemeanor and the felony on January 4, 2001. Procter acknowledged that entitlement to gain time, or loss of gain time for a disciplinary infraction, constituted variables that can affect the amount of time actually served on a sentence. The witness agreed that, “presumably,” Brown would have earned some gain time on the misdemeanor as well as the felony.

On cross-examination, Officer Procter stated that in preparing to testify, he relied on “our operational guidelines that were in effect at the time for gain time,” as well as a review of “old files,” including a Jacksonville Sheriffs Office printout. Procter believed that the overall “expiration of sentence” date was January 4, 2001. These were not file documents that Procter had originally prepared, and this type of printout is no longer used by the sheriffs office. Apparently, one page of the printout showed a stamp indicating that “a JB,” not Procter, filed something into the computer. On December 7, 2011, approximately one week before the sentencing hearing, Procter made his own retroactive calculations using an Excel spreadsheet relying on the classification guidelines that were in effect at the time of the 2000 sentence for felony uttering. His calculations commenced with the August 7, 2000, start of the sentence for felony uttering and factored in various entitlements to gain time. He also considered the 30-day consecutive sentence for the misdemeanor. Procter acknowledged that none of the old documents on which he relied to make his calculations mentioned felony uttering; the documents addressed only the “overall end of sentence release date” for the felony and the misdemeanor combined.

Relying solely on Officer Procter’s recent personal calculations based on the old documents, the prosecutor argued that, given the August 7, 2000, sentencing date for felony uttering, November 30, 2000, was the earliest date that Brown could have been released. The State noted that the November 23, 2005, commission of the felonies for which Brown was to be sentenced fell within five years of November 30, 2000, for purposes of the HFO statute.

Defense counsel defended his motion to preclude HFO' classification on the grounds that the State did not present “definitive proof’ of the expiration date for the felony uttering sentence. Counsel noted that the classification officer had no prior knowledge of the old documents on which he relied. Rather, Officer Procter attempted to retroactively calculate what factors may have been relevant in determining when the sentence expired. While acknowledging that Brown had a conviction for felony uttering, counsel challenged the lack of any record evidence as to the specific date when the felony uttering sentence ended. The defense argued that, without proof of the date of Brown’s release from supervision for felony uttering, the prosecutor was relying on speculative “number crunching”: the State could not meet its burden to satisfy the statutory requirement that the date of the current offenses be within five years after Brown’s release from the qualified offense. Counsel noted that the State had not presented either a live custodial witness or documentary evidence attesting to the accuracy of its purported records on the critical issue concerning the release date.

The trial court denied the motion to preclude HFO classification. Relying on Brown’s judgments and sentences in Case Nos. 2000-9190-CF-A and CF-94-106 as qualified offenses, the court determined that one of them occurred within five years of the offenses for which Brown was to be sentenced, that he had not been pardoned for. either offense, and that neither offense had been set aside. The court found by a preponderance of the evidence that Brown met the criteria for HFO classification, that he was a danger to the community, and that it was necessary for the protection of the public to sentence him as an HFO. The judge adjudicated Brown guilty and imposed HFO sentences of 30 years’ incarceration (Count One) and 10 years’ incarceration (Count Three).

Law

Section 775.084, Florida Statutes, sets out the criteria for HFO classification. The language qualifying a defendant as an HFO — if the felony for which he or she is to be sentenced occurred within five years of release from “lawfully imposed supervision or other sentence that is imposed as a result of a prior conviction of a felony or other qualified offense” — appears in section 775.084(l)(a)2.b. The State had the burden to provide record evidence of Brown’s eligibility for HFO classification and sentencing. Edison v. State, 848 So.2d 498, 499 (Fla. 2d DCA 2003); Boyd v. State, 776 So.2d 317, 318 (Fla. 4th DCA 2001) (reversing and remanding for resen-tencing, where the evidence was insufficient to prove defendant’s release date from prison).

Analysis

The parties agree it is reversible error to classify and sentence a defendant as an HFO without substantiated proof of eligibility. See Sanders v. State, 765 So.2d 161, 162 (Fla. 2d DCA 2000). It is well-established that a trial court errs in classifying a defendant as an HFO if the State fails to furnish substantiated proof of the date of the current felony on which the defendant is to be sentenced, and the date the defendant was released from prison or other supervision imposed for the last felony conviction. See Lowenthal v. State, 699 So.2d 319, 320 (Fla. 2d DCA 1997).

In challenging the sufficiency of the State’s proof, Brown cites Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005), in which the State asked the trial court to impose a prison releasee reoffender (PRR) sentence. To prove PRR eligibility, the State had to present competent evidence that Gray had been released from prison no more than three years before committing the offense for which the PRR sentence was imposed. Id. at 868. The State’s sole basis for proving Gray’s prison release date was a document that appeared to be on Florida Department of Corrections (DOC) stationery, on which was printed or typed a DOC records management analyst’s signed declaration or affirmation certifying that the seal in the letterhead was official and that Gray was released on September 30, 2000. Id. at 868-69. Gray’s counsel objected to the document because it was not self-authenticating and did not fall within any hearsay exception. Id. at 869. The trial court admitted this document into evidence and found that Gray qualified for enhanced sentencing as a PRR based on the release date listed in this document. Id.

We noted in Gray that “[cjomputer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product.” Id. & n. 1 (quoting Pickrell v. State, 301 So.2d 473, 474 (Fla. 2d DCA 1974)); Campbell v. State, 949 So.2d 1093, 1094 (Fla. 3d DCA 2007); Cofield v. State, 474 So.2d 849, 851 (Fla. 1st DCA 1985). We concluded in Gray that the State failed to establish a proper predicate to admit this statement into evidence under any hearsay exception. The purported DOC document did not identify the official record, if any, on which it relied, did not state that it was a true and correct representation of any record, and did not say where or in whose custody any original official or business record was kept. 910 So.2d at 869. Given the State’s reliance wholly on inadmissible hearsay regarding Gray’s release date from prison, which was an essential requirement for PRR sentencing, we vacated the sentence and remanded for resentencing. Id. at 870; accord Yisrael v. State, 993 So.2d 952, 961 (Fla.2008) (approving Gray “to the extent that it holds that DOC release-date letters, standing alone, constitute inadmissible hearsay”).

To support our holding in Gray, we cited King v. State, 590 So.2d 1032 (Fla. 1st DCA 1991), in which we held that the testimony of King’s parole and probation officer at the HFO sentencing hearing, that King had been released from prison on a date less than five years before the date on which King committed the offense for which he was to be sentenced, was inadmissible hearsay. Id. at 1033. The evidence of King’s release date from his last prior felony conviction consisted of the testimony of the officer. We noted, however, that cross-examination disclosed that this officer’s testimony was based entirely upon a DOC computer printout, of which the officer was not the custodian and as to which the officer had no knowledge of the method of preparation or the reliability of the printout. Id. To overcome a hearsay objection to the' officer’s testimony in King, the State had to comply with section 90.803(6), Florida Statutes. The State failed to do so, given the officer’s noncustodial status and inability to testify regarding the manner of preparation and reliability. Without this improperly admitted testimony, the evidence was legally insufficient to establish King’s eligibility for HFO sentencing. We vacated King’s HFO sentence and remanded for resen-tencing. 590 So.2d at 1033.

Brown’s attorney argued the lack of reliability and authenticity of the out-of-court statements on which Officer Procter relied to establish an essential requirement for classifying and sentencing Brown as an HFO. The officer was not the custodian of the old files or the operational guidelines, none of which mentioned felony uttering. Significantly, the State introduced no documentation showing an actual release date on the felony uttering charge. Someone other than Officer Procter had prepared and filed the old printout. Procter’s recent personal calculations consisted of what he believed Brown must have earned for gain time after being sentenced for felony uttering, and when Brown must have been released for that charge, based on the guidelines in place a decade earlier. Given this scant record, we find no meaningful distinction between the insufficient documentation in Gray and King and the purported information that was the State’s sole basis for establishing Brown’s prison release date for felony uttering. The State failed to meet its burden to provide substantiated proof of Brown’s eligibility for HFO classification and sentencing.

For the aforementioned reasons, we affirm Brown’s convictions and his non-HFO sentences, vacate his HFO sentences, and remand for resentencing. Our holding does not preclude the State from presenting sufficient evidence at resentencing to support HFO sentencing. State v. Collins, 985 So.2d 985, 988-89 (Fla.2008); Joppy v. State, — So.3d —, 2013 WL 1749509, 38 Fla. L. Weekly D892 (Fla. 1st DCA 2013); Armstrong v. State, 98 So.3d 779 (Fla. 4th DCA 2012).

AFFIRMED in part; REVERSED and REMANDED in part.

LEWIS and CLARK, JJ., concur.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Mary Cathryn MARTINI, Appellant, v. ESTATE OF Louise B. CONNER, deceased; and William H. Hutchings, as Personal Representative, Appellees.
    No. 2D12-921.
    District Court of Appeal of Florida, Second District.
    May 22, 2013.
    D. Christopher Alfonso of D. Christopher Alfonso, P.L., Tampa, for Appellant.
    Patricia A. Carroll of Law Offices of Patricia Carroll, P.A., Dade City, for Ap-pellees.
   LaROSE, Judge.

Mary Cathryn Martini appeals the probate court’s order denying her petition to determine property exempt from the Estate of Louise B. Conner, Ms. Martini’s mother. See § 732.402, Fla. Stat. (2011); Fla. Prob. R. 5.406. We have jurisdiction. Fla. R.App. P. 9.170(b)(13). Ms. Martini argues that the denial of her petition without notice and an opportunity to be heard violated her due process rights. See art. I, § 9, Fla. Const.; Ryan’s Furniture Exch, Inc. v. McNair, 120 Fla. 109, 162 So. 483, 487 (Fla.1935); Fleming v. Demps, 918 So.2d 982, 984-85 (Fla. 2d DCA 2005); Shappell v. Guardianship of Naybar, 876 So.2d 690, 691 (Fla. 2d DCA 2004). William H. Hutchings, as personal representative of the Estate of Louise B. Conner, concurs. Therefore, we reverse and remand for reconsideration of the petition after notice and a hearing.

Reversed and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    Robert PRATER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3743.
    District Court of Appeal of Florida, Second District.
    May 22, 2013.
    Robert Prater, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

For the reasons expressed in Sheppard v. State, 113 So.3d 148 (Fla. 2d DCA 2013), also issued on this date, we reverse the order of the postconviction court and remand for resentencing. Prater’s forty-year sentence, on which only a twenty-five-year minimum mandatory term was imposed, impermissibly exceeds the thirty-year statutory maximum permitted under section 775.082(3)(b), Florida Statutes (2002), and is therefore illegal. See McLeod v. State, 52 So.3d 784, 786 (Fla. 5th DCA 2010); see also Mendenhall v. State, 48 So.3d 740, 742 (Fla.2010); Wooden v. State, 42 So.3d 837, 837 (Fla. 5th DCA 2010).

Reversed and remanded.

DAVIS, KELLY, and BLACK, JJ., Concur.


text:
    Jerry SHEPPARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2651.
    District Court of Appeal of Florida, Second District.
    May 22, 2013.
    Jerry Sheppard, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ralph F. Guerra, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Jerry Sheppard appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Sheppard was found guilty of attempted second-degree murder with a firearm. By special verdict, the jury also found that Sheppard actually possessed and discharged a firearm, inflicting great bodily harm upon the victim. Sheppard was sentenced to an overall term of thirty-five years in prison with a twenty-five-year mandatory minimum.

Sheppard claims that his conviction for attempted second-degree murder with a firearm, which was reclassified as a first-degree felony under section 775.087(l)(b), Florida Statutes (2006), based upon the jury’s finding regarding the firearm, is subject to a sentence not to exceed thirty years under section 775.082(3)(b). Sheppard argues that his current overall sentence of thirty-five years’ imprisonment exceeds the statutory maximum and is illegal. We agree and reverse for resentenc-ing.

Although the trial court had the discretion to impose a mandatory minimum of up to life in prison, the court chose to impose a mandatory minimum term that was less than the thirty-year statutory maximum for Sheppard’s offense. Having done so, the court had no discretion to exceed the statutory maximum of thirty years. The postconviction court’s interpretation of Mendenhall v. State, 999 So.2d 665, 667 (Fla. 5th DCA 2008), approved, 48 So.3d 740 (Fla.2010), in denying the claim is incorrect.

In Mendenhall, the defendant was sentenced to thirty-five years in prison with a thirty-five-year mandatory minimum for second-degree murder with a firearm. Finding the sentence legal, the supreme court held that “the trial court has discretion under section 775.087(2)(a)(3) to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum [of thirty years] provided for in section 775.082.” Mendenhall, 48 So.3d at 742. The court reasoned that although the thirty-five-year sentence for a first-degree felony exceeded the thirty-year maximum under section 775.082, such a sentence was mandated by section 775.087(2)(c). Mendenhall, 48 So.3d at 748 (“Section 775.087(2)(e) makes reference to section 775.082 and states that the mandatory minimum, when it exceeds the statutory maximum, must be imposed.”). Mendenhall’s sentence beyond the statutory maximum was proper because the trial court imposed the mandatory sentence under section 775.087(2)(a)(3), not because the statutory maximum was changed to a range of twenty-five years to life upon the jury’s finding that he discharged a firearm causing great bodily harm. See McLeod v. State, 52 So.3d 784, 786 (Fla. 5th DCA 2010); Wooden v. State, 42 So.3d 837, 837 n. 1 (Fla. 5th DCA), review denied, 51 So.3d 466 (Fla.2010). Section 775.087(2)(a)(3) does not change the statutory maximum to life in prison for all qualifying offenses when a defendant is found to have discharged a firearm causing great bodily harm. See McLeod, 52 So.3d at 786; Wooden, 42 So.3d at 837.

Here, because the jury found that Sheppard’s discharge of a firearm inflicted great bodily harm, the mandatory minimum range under section 775.087(2)(a)(3) was twenty-five years to life. See Mendenhall, 48 So.3d at 742. However, “ ‘once the trial court imposed the minimum mandatory sentence of twenty-five years, it could not exceed the thirty[-]year maximum penalty for a first[-]degree felony under section 775.082(3)(b).’ ” McLeod, 52 So.3d at 786 (quoting Wooden, 42 So.3d at 837) (reversing the defendant’s life sentence with a twenty-five-year mandatory minimum for attempted second-degree murder with a firearm because the sentence improperly exceeded the statutory maximum under section 775.082(3)(b)). The postconviction court incorrectly concluded that the jury’s special verdict exposed Sheppard to an overall maximum sentence of life imprisonment under sections 775.087(2)(a)(3) and 775.082(3)(b). Sheppard’s thirty-five-year sentence im-permissibly exceeds the thirty-year statutory maximum under section 775.082(3)(b) and is therefore illegal.

Accordingly, we reverse the order of the postconviction court and remand for resen-tencing.

Reversed and remanded.

WALLACE, MORRIS, and BLACK, JJ., Concur.


author: VILLANTI, Judge.

text:
    John E. WINDH, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-776.
    District Court of Appeal of Florida, Second District.
    May 22, 2013.
    Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    John E. Windh, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

John E. Windh appeals his conviction and sentence for one count of manslaughter. We affirm Windh’s conviction and fifteen-year prison sentence without further comment; however, we reverse the restitution order and remand for further proceedings because nothing in the record shows that Windh waived his right to be present at the restitution hearing.

At the conclusion of Windh’s sentencing hearing, the State requested that the trial court award restitution in favor of the victim’s family to cover the victim’s burial expenses. The trial court stated that it was “not sure whether that would be an appropriate item of restitution,” so it scheduled a “restitution status check” for several weeks later. On the date of the scheduled status check, Windh’s counsel appeared in court, but the record shows that Windh was not present. No explanation was given for Windh’s absence, and the State offered no evidence to establish that Windh had waived his presence at the restitution “status check.”

Despite Windh’s unexplained absence, the trial court proceeded to address the State’s request for restitution. The prosecutor told the court that he had spoken with the victim’s father, who told the prosecutor that he had paid $3000 for funeral expenses. The State offered no testimony or documentary evidence to support its claim for this amount of restitution. Defense counsel responded only that he did not “have anything to dispute that figure.” The trial court then entered an order that required Windh to pay $8000 in restitution to the victim’s family.

Pursuant to the Sixth Amendment, a criminal defendant has a right to be present “ ‘at any stage of the criminal proceeding that is critical to its outcome if [the defendant’s] presence would contribute to the fairness of the procedure.’” Donaldson v. State, 985 So.2d 63, 64 (Fla. 2d DCA 2008) (quoting Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)); see also Coney v. State, 653 So.2d 1009, 1013 (Fla.1995); Baker v. State, 979 So.2d 453, 455 (Fla. 2d DCA 2008). A restitution hearing is considered such a critical stage of criminal proceedings. Donaldson, 985 So.2d at 64; Baker, 979 So.2d at 455; M.W.G. v. State, 945 So.2d 597, 600 (Fla. 2d DCA 2006). Hence, “ ‘unless the State can show that a defendant knowingly and voluntarily waived his right to be present at his restitution hearing, it is error to proceed in his absence.’ ” Thar v. State, 8 So.3d 1204, 1205 (Fla. 2d DCA 2009) (quoting Baker, 979 So.2d at 455); see also J.A. v. State, 46 So.3d 1191, 1191 (Fla. 5th DCA 2010) (noting that “[a] juvenile has a constitutional right to be present at hearings to determine the imposition and amount of restitution absent a voluntary and intelligent waiver of that right” (quoting I.M. v. State, 955 So.2d 1163,1164 (Fla. 1st DCA 2007))).

Here, Windh was in custody at the time of the restitution status check and thus was at the mercy of jail and/or prison officials to arrange for his appearance at the restitution hearing. Apparently no arrangements were made, and Windh was not present for this critical stage of the proceedings. The trial court made no inquiry as to the reason for Windh’s absence; hence, nothing in the record establishes that Windh knowingly and voluntarily waived his right to be present at that hearing. It was therefore reversible error for the trial court to proceed with the hearing and award restitution in Windh’s- absence. Accordingly, we reverse the order imposing restitution and remand for a new restitution hearing at which Windh must either be present or the State must present evidence that Windh’s presence has been knowingly and voluntarily waived.

Finally, we also note that should the State again choose to seek restitution on remand, it must present admissible evidence to support the amount of the award. See Glaubius v. State, 688 So.2d 913, 916 (Fla.1997) (holding that an award of restitution “must be based on competent evidence”); Justice v. State, 944 So.2d 538, 540 (Fla. 2d DCA 2006) (“ ‘Representations by an attorney for one of the parties regarding the facts ... do not constitute evidence.’ ” (quoting Eight Hundred, Inc. v. Fla. Dep’t of Revenue, 837 So.2d 574, 576 (Fla. 1st DCA 2003))); T.J.N. v. State, 977 So.2d 770, 773-74 (Fla. 2d DCA 2008) (holding that hearsay evidence may not be used to determine the amount of restitution over a defendant’s objection).

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT and WALLACE, JJ., Concur.

      . Windh’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); however, counsel identified Windh’s absence from the restitution hearing as a minor sentencing issue that could be raised in such a brief. See In re Anders Briefs, 581 So.2d 149, 152 (Fla.1991).


text:
    DEPARTMENT OF REVENUE, Appellant, v. Shaun O. WIGNAL, Appellee.
    No. 1D12-3897.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    Shaun Wignal, pro se, Appellee.
   PER CURIAM.

REVERSED and REMANDED. See Dep’t of Revenue ex rel. Mash v. Ingram, 112 So.3d 169 (Fla. 1st DCA 2013).

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Robert ABERCROMBIE, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D12-4426.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Bernard F. Daley of The Law Office of Bernard F. Daley, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. Respondent’s motion for attorney’s fees is denied.

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


author: JACOBUS, J.

text:
    Clayton Alan CASTETTER, Appellant, v. Michelle HENDERSON, Appellee.
    No. 5D12-3950.
    District Court of Appeal of Florida, Fifth District.
    May 24, 2013.
    Mark S. Peters of Eisenmenger, Berry & Peters, P.A., Viera, for Appellant.
    James R. Dressier, Merritt Island, for Appellee.
   JACOBUS, J.

Clayton Castetter appeals the final judgment imposing a constructive trust in favor of the appellee, Michelle Henderson, on property titled solely in Castetter’s name. Based on a lack of competent evidence to support the trial court’s judgment, we reverse.

Castetter and Henderson entered into a romantic relationship in 1988 in Illinois, moved to Florida in 1990, and had a son in August of 1995. Since 1988, the parties resided together on-and-off but never married. During one period of separation, Castetter had a relationship with another woman; however, in 2001, Castetter returned to living with Henderson on a more permanent basis.

Throughout the couple’s relationship, Castetter accumulated real property— mostly rental properties — and titled each property solely in his name. The couple resided in Castetter’s houses for a majority of their relationship. For the most part, Castetter obtained the properties without down payments and only by his assumption of existing mortgages. It is undisputed that Henderson did not contribute any money toward the purchase of Castetter’s properties. Indeed, Henderson was unaware that Castetter purchased some of the properties. She, also, knew her name was not on the deed of the property where they most recently lived. Henderson asked to be placed on the deed, but Castetter refused. When the couple resided together in Castetter’s houses, the parties divided living expenses. Castetter paid the mortgage, insurance, taxes, auto maintenance, and electric bill, while Henderson paid for food, cleaning supplies, and expenses for their son. Henderson cleaned the house and performed other services.

Both parties worked during their relationship. Castetter was a deputy sheriff who worked eighteen-hour days and started his own trucking businesses. Ultimately, Castetter left the sheriffs office and devoted his time to his trucking businesses. Henderson worked at a minimum wage job and occasionally worked without pay at one of Castetter’s businesses as a bookkeeper and receptionist. Her most recent employment is with the tax collector’s office. The parties never commingled funds, their bank accounts were separate, and Castetter gave money to Henderson for the purchase of items when necessary.

At some point, the relationship broke down and Castetter brought an action against Henderson for ejectment. Henderson counterclaimed, asking the trial court to impose a constructive trust or equitable lien or to award damages for unjust enrichment for her contribution to the purchase of Castetter’s properties. Henderson contended that the parties agreed she would pay the expenses of the household and Castetter would put his funds toward the purchase of the properties. After a bench trial, the trial court denied Castetter’s action for ejectment and granted Henderson’s request for a constructive trust, giving her an undivided, one-half interest in each of the seventeen pai’cels owned by Castetter. Castetter contends there is no evidence in the record supporting the trial court’s finding. We agree.

The trial court made no findings of fact in its final judgment. Thus, the final judgment does not inform this Court from which evidence the trial court drew its conclusions. As such, this Court must accept the facts as indicated by the evidence most favorable to the prevailing party. New Nautical Coatings, Inc. v. Scoggin, 731 So.2d 145,146 (Fla. 4th DCA 1999). If this Court determines that the lower court failed to give legal effect to the evidence in its entirety, the decision is “clearly erroneous” and this Court must reverse. Holland v. Gross, 89 So.2d 255, 258 (Fla.1956); see also Garcia v. Carter Constr. Co., 794 So.2d 728, 724 n. 1 (Fla. 3d DCA 2001) (‘Where, as here, the trial court makes no findings of fact, ‘the appellate court must determine whether, based on the record, the proper analysis would have produced the result reached by the trial court.’ ” (quoting Town of Jupiter v. Alexander, 747 So.2d 395, 400 (Fla. 4th DCA 1998))).

In Florida, no legal rights or duties flow from mere cohabitation. Posik v. Layton, 695 So.2d 759, 761 (Fla. 5th DCA 1997); see also § 741.211, Fla. Stat. (2013) (providing that common-law marriages entered into after January 1, 1968, are void). A court may, however, impose a constructive trust to do equity between unmarried cohabitants. Evans v. Wall, 542 So.2d 1055, 1056 (Fla. 3d DCA 1989). The party seeking to establish a constructive trust “must establish it by proof- to the exclusion of all reasonable doubt.” Smith v. Smith, 108 So.2d 761, 764 (Fla.1959); see also Harris v. Harris, 260 So.2d 854, 855 (Fla. 1st DCA 1972) (“Before a constructive trust in real property will be created, the person claiming such interest must prove beyond a reasonable doubt by clear and convincing evidence those factors which give rise to the trust”). The four elements that must be established for a court to impose a constructive trust include: (1) a promise, express or implied; (2) a transfer of property and reliance thereon; (3) a confidential relationship; and (4) unjust enrichment. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1024 (Fla. 4th DCA 1996); Heina v. La-Chucua Paso Fino Horse Farm, Inc., 752 So.2d 630, 637 n. 4 (Fla. 5th DCA 1999).

Here, the record is void of evidence supporting the fulfillment of the elements to establish a constructive trust. It is undisputed that Henderson made no financial contribution to the properties purchased by Castetter and she did nothing to improve or manage properties. Henderson’s sole contention is that as a result of her financial contribution to the household expenses, she freed up funds for Castetter to purchase the properties; however, defraying mutual living expenses is not enough to create an interest in real estate. Smith, 108 So.2d at 763.

Henderson cites Evans in support of the lower court’s ruling. 542 So.2d 1055. In Evans, as here, a man sought to eject his former female companion from his property and she counterclaimed for a constructive trust. Id. at 1056. The property was titled solely in the man’s name. Id. The woman asserted that she contributed to the property by helping to cultivate and pick crops and by assisting in the construction of a building on the property. Id. The trial court found in favor of the woman and imposed an $8,000 equitable lien on the property. Id. On review, the court affirmed the judgment because the record contained competent, substantial evidence supporting the trial court’s finding that the woman contributed to the properties by her actions. Id. That is not the case here. Henderson’s contributions amount only to mutual living expenses and unquantified labor.

In sum, our review of the record reveals there are no facts to support the trial court’s imposition of a constructive trust in favor of Henderson. Therefore, the final judgment is reversed and the case remanded to enter a judgment in favor of Castetter on his action for ejectment and against Henderson on her counterclaims.

REVERSED and REMANDED with instructions.

TORPY and BERGER, JJ., concur.


author: SAWAYA, J.

text:
    Donald R. LILLY, Appellant/Cross Appellee, v. Lynne M. LILLY, Appellee/Cross Appellant.
    No. 5D11-4093.
    District Court of Appeal of Florida, Fifth District.
    May 24, 2013.

      Mark A. Skipper, of Law Office of Mark A. Skipper, P.A., Orlando, for Appellant/Cross Appellee.
    Diana M. Tennis, of The Law Office of Diana M. Tennis, P.A., Orlando, for Appel-lee/Cross Appellant.
   SAWAYA, J.

This appeal is a sequel to an appeal in the same dissolution of marriage case that we decided three years ago. Lilly v. Lilly, 35 So.3d 1022 (Fla. 5th DCA 2010). In the first appeal this court affirmed an award of rehabilitative alimony to the former wife (Wife). The question presented in the current appeal is whether the trial court properly converted the rehabilitative alimony award to permanent alimony.

The genesis of the rehabilitative award was medical testimony and evidence presented in the original dissolution hearing that established that Wife is afflicted with a litany of physical and mental disorders, most notably a severe form of obsessive/compulsive disorder (OCD). There is no cure for OCD and the main focus of her treatment was to reduce and manage her symptoms. Despite these maladies, the former husband’s (Husband) vocational rehabilitation psychologist, who had previously evaluated Wife, concluded that Wife was immediately capable of obtaining entry-level employment on a part-time basis. He also concluded that she could successfully transition into full-time employment within twelve months of vocational rehabilitation training at an estimated cost of $3,000 to $5,000. The trial judge found the psychologist’s testimony and conclusions compelling, as the Amended Final Judgment indicates, and determined that Wife was capable of full-time employment, earning $12 to $17 per hour within twelve months, if she participated in vocational training within the cost range projected by the psychologist. So, in addition to permanent alimony in the amount of $1,500 per month, the trial court awarded Wife rehabilitative alimony in the amount of $1,000 per month for eighteen months — a rather generous award of time and money given the expectations of her future employment in twelve months, total payments of $18,000, and the estimated costs of no more than $5,000.

Shortly before the rehabilitative period was to expire in August 2010, Wife filed a petition to convert the rehabilitative alimony to permanent alimony. At the conversion hearing, evidence was presented by both parties and, at the conclusion, the trial court rendered the judgment we now review granting Wife’s petition. Husband appeals, contending that the evidence does not establish that Wife made reasonable and diligent efforts to comply with the provisions of the rehabilitative plan.

This rehabilitative plan, like others formulated in dissolution cases, is premised on assumptions and probabilities that if the dependent former spouse makes reasonable and diligent efforts to comply, rehabilitation will occur within the projected time range that will assist the former spouse in achieving the goal of becoming partially or fully self-supporting, thus eliminating or reducing the need for further support. Rickenbach v. Kosinski, 32 So.3d 732 (Fla. 5th DCA 2010); O’Neal v. O’Neal, 410 So.2d 1369 (Fla. 5th DCA 1982). But plans designed with assumptions and probabilities are not infallible and, despite reasonable and diligent efforts at compliance, the expected results sometimes do not occur. In these instances, courts have the discretion to convert rehabilitative alimony to permanent alimony provided the spouse seeking the conversion presents evidence to establish that reasonable and diligent efforts were made to comply. Rickenbach; Pettry v. Pettry, 768 So.2d 8, 10 (Fla. 5th DCA 2000); Saez-Ortiz v. Saez-Ortiz, 560 So.2d 1375, 1376 (Fla. 5th DCA 1990); Reaves v. Reaves, 514 So.2d 1147 (Fla. 2d DCA 1987). The events that occur after rehabilitative alimony is awarded will be of primary significance. Rickenbach.

It will not take a lengthy discussion to chronicle the efforts Wife made to comply with the plan. Despite more than sufficient funds allotted in the plan for vocational rehabilitation, Wife, instead, sought free services from the Department of Vocational Rehabilitation, but when the counselor there told her that her OCD was not sufficiently under control to qualify her for the Department’s services, she sought no other rehabilitative services. Wife did apply for nine paying jobs in a one-year period. However, the reasonableness of applying for a job less than once a month is highly questionable if one is diligently attempting to obtain employment — such as was required by the terms of the rehabilitation plan. Wife also sought treatment from Dr. Buhrmann, who had last treated Wife approximately eight years before, but Wife did not make that effort until a month or two before the rehabilitative period was to expire. What is quite telling about Wife’s return to treatment with this doctor after an eight-year hiatus is that Wife informed the doctor that she would need the doctor’s testimony at a later date. Both the timing of, and the reasons for, the return to treatment with this doctor are dubious and unsupportive of a conclusion that she was diligent in seeking assistance.

Wife had the burden of presenting evidence that she made reasonable and diligent efforts to comply with the rehabilitative plan. The requirements of reasonableness and diligence in this context require more than simply erecting a fagade to give the appearance of compliance. Rickenbach; Pettry. Because Wife failed to meet her burden, the judgment converting the rehabilitative alimony award to permanent alimony is reversed.

REVERSED.

ORFINGER, C.J., and COHEN, J., concur.

      . Our resolution of this issue moots the issues raised in the cross-appeal. We note parenthetically that in the conversion proceedings and the final judgment, the conversion award is given various labels including "periodic alimony.” The briefs often refer to it as “permanent alimony” and so shall we. In any event, the moniker placed on the award does not affect our conclusion.


author: DAVIS, Judge.

text:
    Brenda Patricia HORNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5067.
    District Court of Appeal of Florida, Second District.
    May 24, 2013.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Brenda Horne challenges her conviction and sentence for possession of carisopro-dol. Horne pleaded guilty to the charge but specifically reserved the right to appeal the denial of her motion to suppress. We reverse.

The charge against Horne arose after a deputy observed her walking on the grass between a house and the road one evening just after midnight. There were no adjacent sidewalks along the roadway, and according to the arresting officer, Horne was walking approximately ten to fifteen feet from the road. The deputy stopped his marked patrol car and initiated contact with Horne, pulling onto the grass at an angle in front of her path. Horne told the deputy that she was walking that far off the road to remain safe from “crazy drivers.” She gave him her driver’s license, and a computer search returned no active warrants. At some point during the encounter, the deputy asked to conduct a search of Horne that would include reaching into her pockets. Horne consented to the search. The deputy does not remember when during the course of the encounter he requested the search, but he did acknowledge that he did not tell Horne that she was free to leave before doing so. The deputy found two carisoprodol pills in the bottom of Horne’s jacket pocket, but Horne claimed that they belonged to a friend who had a prescription for the pills.

In her motion to suppress, Horne argued that the officer’s failure to return her driver’s license after completing the warrants check converted a consensual encounter into a detention and that therefore she could not have freely consented to the search of her person.

At the suppression hearing, Horne testified that she had been returning from a gas station and was fifteen houses away from her own residence at the time of her encounter with the deputy. According to Horne, she was walking only six feet off the road. She also testified that she could not leave at the time the deputy asked to search her because he still had her driver’s license even though he had concluded the identification check prior to asking to search her.

In ruling on the motion to suppress, the trial court found that the deputy had concluded his warrants check prior to the time of the search but was still holding Horne’s identification. However, the court concluded that because Horne initially responded to the officer’s stopping of the patrol car by approaching him, answering his questions, and giving him her license, the encounter was consensual. Accordingly, the trial court denied the motion to suppress, based on the totality of the circumstances test discussed in Golphin v. State, 945 So.2d 1174 (Fla.2006). On appeal, Horne argues that the trial court erred in denying her motion to suppress because her consent to search was not valid. We agree.

This court employs a mixed standard of review when considering a trial court’s order on a motion to suppress. State v. K.S., 28 So.3d 985, 987 (Fla. 2d DCA 2010).

The trial court’s “determination of historical facts enjoys a presumption of correctness and is subject to reversal only if not supported by competent, substantial evidence in the record. However, the [trial] court’s determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review.”

Id. (quoting State v. Clark, 986 So.2d 625, 628 (Fla. 2d DCA 2008)).

First we note that there indeed is competent, substantial evidence in the record to support the trial court’s determination that Horne voluntarily gave her license to the officer, and as such, we agree that her initial encounter with the police was consensual. See Popple v. State, 626 So.2d 185, 186 (Fla.1993) (“The first level [of police-citizen encounters] is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them.”).

But because the nature of an encounter may change at any time during its course, see generally Tedder v. State, 18 So.3d 1052, 1055-56 (Fla. 2d DCA 2008), our review must focus on the nature of the encounter at the time of the officer’s request to search. To determine whether Horne was seized at the time of the search, the trial court was required to consider whether, under the totality of the circumstances, a reasonable person in Horne’s position would have thought she was free to leave at the time she consented to the search. See Golphin, 945 So.2d at 1177-80.

In Golphin, the police conducted a warrants check during a voluntary encounter. The check ultimately revealed an outstanding warrant, for which Golphin was arrested. By the time the search was conducted incident to Gophin’s arrest, consent to search or the nature of the encounter was no longer an issue. Id. at 1188 (“It must also be considered that [the][o]fficer ... did not retain Golphin’s identification while seeking consent to search his person or effects.”). Thus the retention of the license during the encounter in Golphin was not a significant factor in determining the voluntary nature of that encounter. The same cannot be said in the instant case.

Here, when the officer initially pulled into Horne’s path, he thought it was suspicious that she was walking so far from the road and suspected that she may have been taking items from cars in a driveway. Horne provided the officer with a reasonable explanation, and her warrants check was clear. At one point during the warrants check, three officers and two patrol cars were at the scene, and during the entire encounter, the officer’s car remained parked between Horne and the path she was taking home. Additionally, once the officer ran the computer check on Horne, he was aware of her home address and that she was standing only fifteen houses from her own residence. But where Golphin resulted in an arrest due to the warrants check, any basis for the encounter with Horne, consensual or otherwise, ended at the conclusion of Horne’s clear warrants check.

The trial court also relied on Tedder, 18 So.3d at 1055, in concluding that the fact that the officer retained Horne’s driver’s license should not weigh heavily on the question of whether Horne was seized at the time she gave consent to search. However, while the plurality opinion in Tedder did determine that “[t]he officer’s retention of Tedder’s driver’s license after the completion of a warrant’s check [wa]s not dispositive” in that case, it set no bright line rule on the weight that should be given to that fact in determining consent. Id. Rather, this court clearly considered that fact as part of its totality of the circumstances analysis. Id.

In Golphin, the Florida Supreme Court approved the Fifth District’s rejection of “what it perceived to be a bright line rule regarding the impact of retaining an individual’s identification,” as well as its reliance instead on a totality of the circumstances analysis. 945 So.2d at 1178. Furthermore, the case law cited by Golphin in discussing the weight that should be given to an officer’s retention of identification when asking for consent to search indicates that the trial court should have heavily factored the retention of the driver’s license into its consideration of Horne’s encounter. See Golphin, 945 So.2d at 1188-89; Barna v. State, 636 So.2d 571, 572 (Fla. 4th DCA 1994) (concluding that an unlawful investigatory stop occurred where police officers told the defendant that they were “investigating” because he was in a parking lot known for criminal activity and where they retained his identification to run a computer check during which time he consented to a search); see also United States v. Jordan, 958 F.2d 1085, 1088 (D.C.Cir.1992) (determining that the officers’ preventing Jordan from exiting the bus terminal parking lot by retaining his driver’s license, combined with the continued retention of his license while asking for permission to search his bag, “pushes his case over the line”); United States v. Glover, 957 F.2d 1004, 1009 (2d Cir.1992) (concluding that a seizure occurred where a government agent requested that defendant go to an office for further questioning without returning his identification or telling him that he was free to leave); see also Perko v. State, 874 So.2d 666, 666-67 (Fla. 4th DCA 2004) (“In the course of a consensual encounter, a sheriffs deputy obtained Perko’s consent to conduct a search of his person after obtaining, but before returning, his driver’s license while another deputy conducted a warrant check. Under these circumstances, consent was obtained after Perko had been effectively seized. Therefore, the search was unlawful and the fruits thereof must be suppressed.” (emphasis added)); cf. Smith v. State, 753 So.2d 713, 717 (Fla. 2d DCA 2000) (Altenbernd, A.C.J., concurring) (“I place considerable importance on the fact that the officer took Mr. Smith’s cigarettes and money away from him and did not ask to perform an oral cavity search until he had possession of this property. Most reasonable people would not feel free to walk away from an officer who had their money.”).

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

Reversed.

WALLACE and BLACK, JJ., Concur.

      . The Tedder court was addressing whether the retention of a driver's license is a detention such that certain statements made by the defendant during that time should be excluded. 18 So.3d at 1055. We recognize that consideration of the voluntary nature of consent to search given while an officer is holding one’s driver’s license may differ from the voluntariness of any statements made during that same period.

      . We note that an additional factor that must be heavily considered is that at the time the officer was seeking consent to search Horne, he did not tell her she was free to leave. Cf. Crist v. State, 98 So.3d 81, 84 (Fla. 2d DCA 2012) (concluding that the State was required to show by clear and convincing evidence that after the issuance of a citation completed the basis for a traffic stop, the defendant freely and voluntarily consented to the search ”[b]e-cause the record establish[ed] that the officer failed to inform [the defendant] that he was free to leave”).


author: CASANUEVA, Judge.

text:
    William Raymond NIEVES, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3334.
    District Court of Appeal of Florida, Second District.
    May 24, 2013.
    William Raymond Nieves, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

William Nieves filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging that he is due an additional 103 days of jail credit, and the postcon-viction court denied the motion. We reverse and remand for further proceedings.

Nieves was initially arrested on July 14, 2011, and charged in case number 11-CF-17601. He was released on bond on July 16, 2011. He was arrested on new charges on August 5, 2011; these generated three additional cases. Then, while in jail on these charges, he was arrested on August 10 on further charges, resulting in two more cases. He did not bond out in the five new cases. After pleading no contest to all the charges, he was sentenced on November 14, 2011, to five years in prison in all cases, concurrent. The trial court awarded him jail credit from either August 5 or August 10 to November 14 (97 days and 102 days, respectively) in the five new cases but only three days of credit in case ll-CF-17601, for July 14-16, 2011.

Nieves filed a rule 3.800(a) motion requesting 103 days of credit. The post-conviction court denied the motion. On rehearing, Nieves provided additional documentation to support his claim, but the court dismissed the rehearing motion.

A motion filed pursuant to rule 3.800(a) is an appropriate means of requesting correction of “a sentence that does not grant proper credit for time served.” Fla. R. Crim. P. 3.800(a). However, “a defendant who is arrested for different offenses on different dates is not entitled to have jail credit applied equally to all prison sentences even though the sentences are run concurrently.” Washington v. State, 873 So.2d 609, 610 (Fla. 2d DCA 2004); see also Keene v. State, 500 So.2d 592, 594 (Fla. 2d DCA 1986) (“The fact that a defendant receives concurrent sentences at the same time does not mandate that the longest of the jail time credits be applied against all of the sentences. Therefore, appellant is only entitled to credit against each sentence for the time spent in jail for the charge which led to that sentence.”). The issue, therefore, is whether Nieves was “in jail” in case number ll-CF-17601 when, after being released on bond, he was arrested on new charges.

According to Blake v. State, 807 So.2d 772, 773 (Fla. 2d DCA 2002), a defendant is not entitled to jail credit in a given case until his bond is revoked in that case. Here, Nieves attached to his motion for rehearing a copy of the first appearance order on the new charges filed with the clerk on August 6, 2011. The order includes this directive: “Revoke Bond 11-CF-017601.” Because the face of the record, see Fla. R. Crim. P. 3.800(a), reflects that Nieves’s bond was revoked, he is deemed to have been in jail for purposes of this case number and must be awarded appropriate credit. We therefore reverse and remand for the postconviction court to review the record and award the correct number of days of credit in case number ll-CF-17601.

Reversed and remanded.

ALTENBERND and MORRIS, JJ., Concur.

      . The postconviction court dismissed Nieves’s motion for rehearing as untimely. After reviewing the circumstances described by Nieves and receiving a response from the State, we deem the rehearing motion and, thus, this appeal timely.

      . Nieves’s motion was sorely lacking in detail, see Whitfield v. State, 864 So.2d 562, 562 (Fla. 1st DCA 2004) ("[A] facially sufficient rule 3.800 motion to correct an illegal sentence must allege where and how the court records demonstrate entitlement to relief.”), but the State and postconviction court reviewed the records in the six case numbers and determined that Nieves must have meant that he wanted full credit in case ll-CF-17601. Nieves confirmed this conclusion in his motion for rehearing.


text:
    Janie M. MASSEY, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and NF Brynwood LLC, Appellees.
    No. 1D13-1842.
    District Court of Appeal of Florida, First District.
    May 29, 2013.
    Janie M. Massey, pro se, Appellant.
    Norman A. Blessing, General Counsel, Reemployment Assistance Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

DISMISSED. See Durando v. Palm Beach County, 719 So.2d 1258 (Fla. 1st DCA 1998).

WOLF, PADOVANO, and LEWIS, JJ., concur.