author: STEVENSON, J.

text:
    Luis RIOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-968.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.

      Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Luis Rios (“Defendant”) appeals from a final judgment of conviction and sentence. Defendant was found guilty of first degree murder with a firearm and three counts of attempted first degree murder with a firearm. Because the jury instructions given at trial rose to the level of fundamental error, we reverse and remand for a new trial.

Facts

On a night in August 2010, Defendant was inside a local bar with some friends. Without any apparent provocation, Defendant and Jose Feliciano started “mean-muggin each other.” Witnessing the interaction between the two, Feliciano’s nephew, Jesus Cruz, offered to hit Defendant on behalf of Feliciano. After receiving encouragement from Feliciano, Cruz walked up to Defendant and punched him.

After being punched, Defendant exited the bar through the back door, took out a gun and chambered a round. Some of Defendant’s friends walked out of the bar, and attempted to get him into a car. Defendant refused, instead choosing to stand outside the bar. A few minutes later, Feli-ciano, Cruz, and others exited the bar, whereupon the group encountered Defendant. A verbal altercation ensued, during which members of Feliciano’s group allegedly ordered someone to go get a gun. Feliciano and another member of the group yelled at Defendant to put his gun down and to fight one-on-one. Almost simultaneously, Defendant told the group to back away. Shortly thereafter, Defendant shot three men and shot at a fourth man, wounding two and killing Feliciano. Defendant fled the scene and was later arrested.

Analysis

At trial, counsel and the trial judge discussed the possibility of giving an instruction on Defendant’s right to stand his ground. Focusing on section 776.013(3), a part of Florida’s Stand Your Ground law, counsel for the State argued Defendant was not entitled to a Stand Your Ground instruction because Defendant was engaged in “unlawful activity.” Defense counsel made a brief argument about whether carrying a concealed firearm should be considered “unlawful activity.” However, after the court ruled that Defendant was engaged in “unlawful activity,” defense counsel then remarked:

Okay. And given that ruling, I agree, then, that the instruction would not include the stand-your-ground part, it would be the retreat — the old justifiable use of deadly force.

Defense counsel made no other objection regarding this issue and did not object when the instruction was read. The pre-2005 duty to retreat instruction was read to the jury:

The fact that the Defendant was wrongly attacked cannot justify his use of force likely to cause death or great bodily harm if, by retreating, he could have avoided the need to use that force.
However, if the Defendant was placed in a position of imminent danger of death or great bodily harm, and it would have increased his own danger to retreat, then his use of force likely to cause death or great bodily harm was justifiable.

On appeal, Defendant now argues that the trial court erred in giving this jury instruction and that section 776.012(1), a part of the Stand Your Ground law, was applicable to his situation. However, because these specific arguments were not made below, this error must rise to the level of fundamental error in order for this court to reverse. See Johnson v. State, 833 So.2d 252, 254 (Fla. 4th DCA 2002). To constitute fundamental error, the Florida Supreme Court has noted:

To justify not imposing the contemporaneous objection rule, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown [v. State ], 124 So.2d [481,] 484 [ (Fla.1960) ]. In other words, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Stewart v. State, 420 So.2d 862, 863 (Fla.1982), cert, denied, 460 U.S. 1103, 103 S.Ct. 1802, 76 L.Ed.2d 366 (1983).

State v. Delva, 575 So.2d 643, 644-45 (Fla.1991). “ ‘Courts must analyze the totality of the record to determine if an errant instruction is fundamental error.’” Barnett v. State, 121 So.3d 643, 647 (Fla. 4th DCA 2013) (quoting Dempsey v. State, 72 So.3d 258, 261 (Fla. 4th DCA 2011), review denied, 95 So.3d 212 (Fla.2012)). After reviewing the record, we find that the jury instruction given rose to the level of fundamental error because it contained the pre-2005 language about a duty to retreat, which is not necessarily applicable when Florida’s Stand Your Ground law applies.

See Little v. State, 111 So.3d 214, 220 (Fla. 2d DCA 2013) (noting the Stand Your Ground law “eliminated the common law duty to retreat for persons justifiably using deadly force under either section 776.012(1) or 776.013”).

Pursuant to section 776.012(1), Defendant was entitled to the protection of the Stand Your Ground law. This is true because section 776.012(1), which does not include language on “unlawful activity,” is separate from section 776.013(3). See State v. Wonder, 128 So.3d 867, 869 (Fla. 4th DCA 2013) (“The defendant has maintained all along that such a determination was unnecessary because the defense motion relied upon section 776.012 and not 776.013. The exception for a defendant’s engagement in ‘unlawful activity’ does not exist under section 776.012. We agree with the defendant.”). Thus, even though Defendant was engaged in unlawful activity at the time of the shootings, the Stand Your Ground law still applies.

With this conclusion in mind, we now address why giving the instruction on a duty to retreat was fundamental error. An instructive case on this issue is Richards v. State, 39 So.3d 431 (Fla. 2d DCA 2010). In Richards, the defendant was charged with attempted murder in the second degree after he stabbed a friend. The defendant claimed the stabbing was done in self-defense. Without objection from defense counsel, the trial court instructed the jury using the pre-2005 duty to retreat instructions, even though the incident occurred after 2005. Id. at 433. Observing that the duty to retreat was eliminated in 2005, the Second District held the trial court committed fundamental error by giving this instruction. Id.; see also Williams v. State, 982 So.2d 1190, 1193-94 (Fla. 4th DCA 2008) (holding it was fundamental error to instruct the jury using the pre-2005 duty to retreat instruction when the incident occurred after the enactment of the current Stand Your Ground law). In particular, the court in Richards focused on the fact that self-defense was the defendant’s “sole defense at trial.” 39 So.3d at 434. By giving the pre-2005 instruction, the trial court “effectively negated his defense.” Id.

Similar to Richards, the trial court here instructed the jury using the pre-2005 duty to retreat instructions. This jury instruction, which was not necessary because Defendant did not have a duty to retreat under Florida’s Stand Your Ground law, effectively eliminated Defendant’s sole affirmative defense. Here, the jury heard testimony, and saw video, of an opportunity Defendant had to retreat minutes before being confronted by Feliciano and his group. The jury was then instructed that Defendant’s sole affirmative defense would not be viable if he could have retreated without danger to himself. Finally, during closing arguments, the State mentioned Defendant’s opportunity to leave the scene with his friends. Taken together, it is difficult to see how the jury, during its deliberations, would not have considered Defendant’s opportunity to leave with his friends. Based on these reasons, giving the pre-2005 duty to retreat instruction was fundamental error. See Williams, 982 So.2d at 1194 (“ ‘[W]here ... a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant’s only defense, it is fundamental error and highly prejudicial to the defendant.’”) (quoting Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985)).

Accordingly, we reverse and remand for a new trial. Further, at Defendant’s new trial, the portion of the interrogation video pertaining to Feliciano’s family life should not be admitted into evidence.

Reversed and remanded.

CIKLIN and FORST, JJ., concur.

      . Section 776.013(3), Florida Statutes (2010), provides:
      (3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right
      to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

      . Section 776.012(1), Florida Statutes (2010), provides:
      A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
      (1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; ....

      . Under the amendment to section 776.012, which went into effect on June 20, 2014, it does not appear Defendant would get the benefit of the Stand Your Ground law. However, because this affirmative defense is substantive in nature, the change in law would not affect Defendant’s case. See Smiley v. State, 966 So.2d 330, 335-36 (Fla.2007).


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Benito Lopez GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1620.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2014.

      Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
   ROTHENBERG, J.

Benito Lopez Gonzalez (“the Defendant”) appeals his conviction for lewd and lascivious molestation based on the trial court’s refusal to strike a juror for cause. Because we find that there was no manifest error in the trial court’s denial of the cause challenge, we affirm.

FACTUAL BACKGROUND

The Defendant was charged by information with two counts of molesting his twelve-year-old step-daughter. During jury selection, the trial court asked all of the potential jurors if anyone felt, based on the nature of the case, they might be prejudiced or biased. The following exchange took place:

THE COURT: Now, is there anything because of the nature of the charge itself that would cause any of you to be prejudiced or biased in this particular kind of case. I would like to do it section by section if I may. Is there anybody on your right, my left who feels that they might be prejudiced or biased in this particular kind of case.
[Ms. Johnson raises her hand.]
All right. That is Ms. Johnson. Is that right?
PROSPECTIVE JUROR JOHNSON: Yes.
[The court then informed all the jurors to speak up or nod so their responses could be noted.]
THE COURT: All right. Ms. Johnson, would you tell us?
PROSPECTIVE JUROR JOHNSON: I’m sorry. What?
THE COURT: You said you might have a problem with prejudice or bias?
PROSPECTIVE JUROR JOHNSON; Yes, I do.
THE COURT: All right. Can you give us an idea?
PROSPECTIVE JUROR JOHNSON: I was molested as a child.
THE COURT: All right. I am very sorry to hear that. Ms. Johnson, we all get affected by what happens to us in our life and it creates all the biases and prejudices that we all live with and if we’re honest with each other and honest with ourselves we recognize that we have those. Even though you might have some feelings or some thoughts about this issue, is it possible for you to set those aside and base your decision in this case only on what you hear in the courtroom?
PROSPECTIVE JUROR JOHNSON: Yes.
THE COURT: All right. Thank you.

Later, during voir dire, the prosecutor, Ms. Dunn, questioned Ms. Johnson about her experiences.

MS. DUNN: All right. Ms. Johnson, you have already indicated to Judge Miller that you would be able to rely upon the evidence in this case even though you yourself were molested. Knowing that a child between the ages of 12 and 16 is going to testify in this case, would you be able to make a decision relying on that child’s testimony?
PROSPECTIVE JUROR JOHNSON: I believe I would.
MS. DUNN: Should we be concerned that if you are picked as a juror that you would relate back to your own experience and that it would interplay in your decision?
PROSPECTIVE JUROR JOHNSON: I don’t think it would. I have had a lot of therapy.
MS. DUNN: Okay. And I apologize for asking these questions, but we — just like there are individuals that have opinions about a child testifying, you yourself have a life experience which we need to ensure does not come into that deliberation process. Can you assure us that you will make your decision and interact in deliberations and comment solely on the evidence presented?
[No response was noted, but Ms. Johnson presumably nodded yes.]
I have nothing further. Thank you for your time and attention.

The assistant public defender, Mr. Kaufman, also asked Ms. Johnson about her experiences:

MR. KAUFMAN: Ms. Johnson. What about you? Do you think you might make a good juror in this case?
PROSPECTIVE JUROR JOHNSON: I do.
MR. KAUFMAN: Why is that?
PROSPECTIVE JUROR JOHNSON: I think that I can be fair and honestly evaluate the situation.
MR. KAUFMAN: So we shouldn’t be concerned about your past molestation?
PROSPECTIVE JUROR JOHNSON: I spent the last ten years putting my past away.
MR. KAUFMAN: Okay. Well thank you for your time and answers.

After voir dire, the assistant public defender moved to strike Ms. Johnson for cause, arguing solely that Ms. Johnson could not sit on the jury because she had been the victim of the same type of crime the Defendant had been accused of committing.

MR. KAUFMAN: Cause, Judge. She was molested as a child. She suffered as a victim in the same way as the victim in this case.
THE COURT: I didn’t hear anything from her answers that would indicate that she has any challenge for cause.
MR. KAUFMAN: There is case law that a victim with the same type of offense cannot serve as a juror.
THE COURT: I am not familiar with that. Deny the motion for challenge for cause.
MR. KAUFMAN: So you’re denying the cause challenge.

(emphasis added). Mr. Kaufman then used a peremptory challenge to strike Ms. Johnson.

Mr. Kaufman exhausted his peremptory challenges and then later requested an additional peremptory challenge to excuse juror Phillips, whose wife worked at the State Attorney’s Office. The trial court denied the request for an additional peremptory challenge, thereby allowing Mr. Phillips to sit as a juror on the case, and defense counsel again objected to the panel. The panel, including Mr. Phillips, ultimately convicted the Defendant of one count of lewd and lascivious molestation. This appeal followed.

ANALYSIS

The Defendant contends the trial court erred by failing to excuse Ms. Johnson for cause, relying primarily on the Florida Supreme Court’s recent decision in Matarranz v. State, 133 So.3d 473 (Fla.2013). However, the Defendant did not specifically and contemporaneously object to Ms. Johnson’s alleged prejudice or bias based on her responses, and therefore, the Defendant has not preserved that argument for appeal. Additionally, even if the Defendant’s arguments had been preserved, Matarranz does not dictate reversal on these facts. The Matarranz holding was based on the prospective juror’s repeated insistence that she could not be fair coupled with the trial court’s repeated attempts to rehabilitate the juror. Matar-ranz is, therefore, clearly distinguishable from the present case where Ms. Johnson merely raised her hand in response to a general question from the trial court and thereafter consistently maintained her ability to be fair and impartial. We accordingly affirm the Defendant’s conviction and sentence.

I. The Defendant’s Argument Raised on Appeal was not Preserved Below

It is well established Florida law that an objection must be specific and contemporaneous in order to preserve that argument for appeal. Harrell v. State, 894 So.2d 935, 939-40 (Fla.2005). Section 924.051(3) of the Florida Statutes (2013) provides:

An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.

Section 924.051(l)(b) further clarifies the issue by defining the term “preserved” to mean that “an issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and that the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.” (emphasis added).

The purpose for the specific objection rule is obvious: A party must put the trial court on notice of the specific objection or error so that the trial court has an opportunity to rule correctly or to correct an error early in the proceedings rather than allowing the error to go unnoticed and then appealing the error after an unfavorable ruling. F.B. v. State, 852 So.2d 226, 229 (Fla.2003) (“The requirement of contemporaneous objection thus not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client’s tactical advantage.”); see also Harrell, 894 So.2d at 940; Castor v. State, 365 So.2d 701, 703 (Fla.1978). The specific and contemporaneous objection rule is especially important for objections during the jury selection process because errors in this regard can often negate an otherwise perfectly presided trial. See Carratelli v. State, 832 So.2d 850, 857 (Fla. 4th DCA 2002) (“Requiring the record to demonstrate preservation of an objection to an erroneous denial of a cause challenge is justified by the severity of the sanction for such a mistake. In such cases, reversal is automatic, even where the trial is otherwise perfect, even if the questioned juror actually served with the wisdom of Solomon.”).

The Defendant’s argument on appeal is that the trial court abused its discretion by denying the Defendant’s motion to strike Ms. Johnson for cause based on her responses, which he claims suggest that Ms. Johnson would have been prejudiced against the Defendant. That particular argument was not, however, the basis of the Defendant’s objection to the trial court below. During jury selection, the Defendant’s counsel moved to strike Ms. Johnson for cause on the basis that: “She [Ms. Johnson] was molested as a child. She suffered as a victim in the same way as the victim in this case.” In challenging Ms. Johnson for cause, the Defendant specifically claimed that “[t]here is case law that a victim with the same type of offense cannot serve as a juror.” Thus, the Defendant’s objection was based on his argument that the mere fact that Ms. Johnson had been a victim of a similar offense meant she must be stricken for cause, not that Ms. Johnson could not be a fair and impartial juror based on her specific responses. Based on the Defendant’s objection, the trial court correctly noted that there is no case law holding that a juror is automatically disqualified from serving if he or she had been the victim of a similar offense as the one being tried and therefore denied the challenge.

Because the trial court did not err by denying the Defendant’s motion to strike Ms. Johnson for cause based on the specific objection raised — that because Ms. Johnson was a victim of a similar offense, she could not serve as a juror — and this was the sole ground raised by the Defendant, the Defendant did not preserve the argument he now makes on appeal. See Carratelli, 832 So.2d at 855-57 (finding that the trial court erred by denying the defendant’s for-cause challenge of three jurors, but affirming the conviction because the objections had not been properly preserved).

II. The Trial Court did not Err by Denying the Cause Challenge

Although the Defendant did not object to Ms. Johnson serving as a juror based on her responses, there was nothing that Ms. Johnson said that would have required that she be stricken for cause even if there had been a proper objection. Ms. Johnson never actually expressed bias or prejudice against the defendant. Rather, she candidly informed the trial court that she had been a victim of molestation herself as a child and maintained throughout the questioning that she could be fair and impartial. Under these circumstances, the trial court did not abuse its discretion by denying the Defendant’s motion to strike Ms. Johnson for cause.

The Defendant claims that the Florida Supreme Court’s decision in Matarranz requires a reversal in this case. The Defendant’s reliance on Matarranz, however, is misplaced. First, Matarranz does not establish a bright line rule that a juror who has had a personal experience relating to the case must necessarily be stricken for cause; and second, the juror’s responses in Matarranz are clearly distinguishable from Ms. Johnson’s responses in the instant case.

A. The Florida Supreme Court did not create a bright line rule in Matar-ranz.

The Defendant contends that Ms. Johnson should have been removed for cause based on the Florida Supreme Court’s decision in Matarranz and that the trial court’s failure to do so requires a new trial. We disagree.

Matarranz was not written on a blank slate, nor did it expressly or indirectly overrule years of decisional or statutory law. Section 913.03 of the Florida Statutes, which specifies the grounds for challenging a juror for cause, provides: “A challenge for cause to an individual juror may be made only on the following grounds,” and then lists twelve separate grounds. § 913.03, Fla. Stat. (2013) (emphasis added). Section 913.03(10), the only relevant subsection in the instant appeal, provides that a cause challenge may be made when:

(10) The juror has a state of mind regarding the defendant, the case, the person alleged to have been injured by the offense charged, or the person on whose complaint the prosecution was instituted that will prevent the juror from acting with impartiality, but the formation of an opinion or impression regarding the guilt or innocence of the defendant shall not be a sufficient ground for challenge to a juror if he or she declares and the court determines that he or she can render an impartial verdict according to the evidence!)]

(emphasis added).

Thus, the statutory test for a cause challenge based on bias or prejudice is whether the juror’s state of mind will prevent him or her from serving as a fair and impartial juror, and the case law has applied section 913.03 uniformly for decades. In applying this standard, the Florida Supreme Court has consistently recognized that juror prejudice is a discretionary determination and that the trial court abuses its discretion only where there exists a reasonable doubt as to a juror’s ability to render a verdict free from bias or prejudice based on the totality of the juror’s responses. See Banks v. State, 46 So.3d 989, 995 (Fla.2010) (noting that a juror must be excused for cause if there exists any reasonable doubt as to whether the juror possesses an impartial state of mind); Kopsho v. State, 959 So.2d 168, 170 (Fla.2007).

The Florida Supreme Court has also consistently recognized that although a juror may express certain biases or prejudices, the issue is whether the juror can and will set aside his or her personal views and render a verdict based solely on the law in light of the evidence introduced at trial. Gore v. State, 706 So.2d 1328, 1332 (Fla.1997) (“Although [the jurors] expressed certain biases and prejudices, each of them also stated that they could set aside their personal views and follow the law in light of the evidence presented.”); Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984) (“The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render his verdict solely upon the evidence presented and the instructions on the law given to him by the court.”); Singer v. State, 109 So.2d 7, 24 (Fla.1959) (concluding that the true test is not whether the juror will yield his or her opinion, bias, or prejudice, but rather, whether the juror will be able to put that opinion, bias, or prejudice completely out of his or her mind and base his or her verdict solely on the evidence presented at trial); see also Carratelli v. State, 961 So.2d 312, 318 (Fla.2007); Busby v. State, 894 So.2d 88, 95 (Fla.2004); Bryant v. State, 656 So.2d 426, 428 (Fla.1995).

When determining whether a juror can set aside any preconceived opinions, bias, or prejudice and whether the juror possesses an impartial state of mind and can render a fair and impartial verdict, the trial court must carefully examine all of the questions and answers posed to or received from the juror. Matarmnz, 133 So.3d at 485 (“A trial court’s determination of whether a juror can render a verdict based on the evidence presented involves an evaluation of ‘all of the questions and answers posed to or received from the jurors.’ ” (quoting Banks, 46 So.3d at 995)).

The law is also clear that “[i]t is within a trial court’s province to determine whether a challenge for cause is proper, and the trial court’s determination of juror competency will not be overturned absent manifest error.” Fernandez v. State, 730 So.2d 277, 281 (Fla.1999), quoted by, Busby, 894 So.2d at 95. Indeed, the trial court’s determination whether a juror challenged for cause is fit to sit on the panel is to be given great weight by a reviewing court because the trial court is uniquely able to assess the juror’s demeanor, responses, and reactions to questions on voir dire. Carratelli, 961 So.2d at 319 (“[T]he trial court ‘has a unique vantage point in the determination of juror bias’ that is unavailable to us in the record.” (quoting Smith v. State, 699 So.2d 629, 635-36 (Fla.1997))); Smith, 699 So.2d at 635-36 (“In reviewing a [cause challenge] such as this, we have recognized that the trial court has a unique vantage point in the determination of juror bias. The trial court is able to see the jurors’ voir dire responses and make observations which simply cannot be discerned from an appellate record.”); see also Mendoza v. State, 700 So.2d 670, 675 (Fla.1997) (“A trial court has latitude in ruling upon a challenge for cause because the court has a better vantage point from which to evaluate prospective jurors’ answers than does this [appellate] Court in our review of the cold record.”). Accordingly, “[t]he decision to deny a challenge for cause will be upheld on appeal if there is support in the record for the decision.” Busby, 894 So.2d at 95 (citing Gore, 706 So.2d at 1332).

Although the reviewing court must recognize the trial court’s unique vantage point in determining juror bias and prejudice, the reviewing court is not necessarily required to defer to the trial court’s superior vantage point if the challenged juror’s answers are equivocal or the juror’s responses change due to the skillful questioning by the lawyers or the trial court. See Busby, 894 So.2d at 95-96 (finding that although equivocal responses do not necessarily disqualify a juror from serving, because the challenged juror equivocated on the most crucial issue — his ability to deliberate in an unbiased manner — he should have been excused for cause); Johnson v. Reynolds, 97 Fla. 591, 121 So. 793, 796 (1929) (finding that the juror should have been excused for cause where he initially admitted his unfitness and lack of qualifications to serve as a fair and impartial juror but stated he would render a fair and impartial verdict after skillful questioning).

In Matarranz, the Florida Supreme Court applied these age-old principles, including much of the case law cited herein, in reviewing the denial of a cause challenge of a juror who indicated that she had been the victim of one of the offenses with which the defendant had been charged (burglary) and repeatedly and expressly stated during voir dire that she did not believe she could be fair. 133 So.3d at 477-481. The Matarranz Court, contrary to the Defendant’s assertions, did not establish new law or abandon prior precedent. Rather, the Florida Supreme Court applied existing law and simply reminded trial courts and reviewing courts of their obligation to remain vigilant when assessing potential juror bias and prejudice, which requires more than just a review of the last answers provided by a juror.

The Matarranz Court merely reiterated prior decisional law recognizing the need to carefully examine the genuineness of a juror’s assurances that he or she can be fair after expressing strongly held opinions, bias, or prejudice and to apply strong skepticism for a sudden change of heart after skillful questioning. In Matarranz, the Florida Supreme Court relied on Hill v. State, 477 So.2d 553, 555-56 (Fla.1985), and Singer, 109 So.2d at 23-24, to reiterate that “if there is a reasonable basis to doubt a juror’s impartiality, then that juror should be excused.” Matarranz, 133 So.3d at 488. The Court similarly relied on Overton v. State, 801 So.2d 877, 893 (Fla.2001), when stating that “[njotwithstanding ‘tortured attempt[s] at rehabilitation,’ the totality of the [jjuror’s responses” must be examined. Matarranz, 133 So.3d at 488 (second alteration in original) (quoting Overton, 801 So.2d at 893). We accordingly look to the totality of Ms. Johnson’s responses to determine whether the trial court abused its discretion by denying the cause challenge. A comparison of the facts from Matarranz with the facts of this case is particularly illustrative.

B. Why the trial court in Matarranz erred in denying the cause challenge

By our count, the juror in Matarranz reiterated no less than eight times that she did not believe she could be fair or otherwise indicated that she would “lean” one way or the other if required to sit on the jury panel. The juror in Matarranz made very strong statements indicative of bias, including the following:

• “I don’t think I could be fair against [the defendant] because I hold that grudge.”

• “[I]t is something that just stays there. I know how [the past crime] affected us and how everything happened. It was during the holiday season and it was just crazy and it just makes me sad about it and it brings back bad memories.”

• Judge: “When you look over at these two tables which way does your judgment go, if you feel like you have one?” Juror: “Towards [the defendant].”

• “I could have an open mind about it, but it is still — knowing myself I think I would lean more towards the State of Florida just because I don’t think that it is right for someone to come in and take something that someone worked so hard for and take their life away from that person.”

• After being asked whether she could have an open mind, the juror stated: “Yes, I think I could. Just like you say maybe I would lean a little more to one side, but I would have to hear everything before I can actually make a decision.”

• “I can put it aside but, it is just that with my past experiences — I have an old mind in all things and I know that I can do it. It is just that I rather not, just because — I mean, put it aside, but I can have an open mind and put all my feelings aside.... ”

After extensive questioning by the State, the defense, and the trial court, the juror ultimately stated that she believed she could be fair and set aside her past experiences.

When defense counsel moved to strike the juror for cause based on her expressed bias and prejudice — notably, with a specific and contemporaneous objection — the trial court denied the cause challenge by stating:

I’m going to deny the cause challenge. Having only had heard [sic] testimony from yesterday, I would have been inclined to grant it, but her testimony yesterday includes the fact that there had been this burglary when she was eight years old, that was emotional for her because it included the theft of her Christmas toys and today based on her demeanor, I believe from her reflection, I think she was embarrassed and she said that she thought about it last night and she said that she felt that she had more of an opened [sic] mind today and that she could be fair and she realized that that burglary that happened to her had nothing to do with this case. So, for those reasons I’m going to deny the cause challenge; do you wish to exercise a peremptory?

Id. at 481.

The Florida Supreme Court in Matar-ranz found that the juror “demonstrated that she could not fulfill her role as a fair and impartial arbiter and thus she should have been excused for cause” based on the totality of the juror’s responses. Matarranz, 133 So.3d at 477. In reaching this conclusion, the Florida Supreme Court noted the juror’s own concerns that she would be biased against the defendant, id. at 489, and the trial court’s finding that the juror had essentially been embarrassed and urged into the posture where she eventually conceded that she would separate her past experiences from the trial of the defendant. Id. at 490. The Florida Supreme Court thus concluded that “[a] court should assess a juror’s ability to be fair and impartial based on the genuineness of his or her statements, not on whether the juror has reached a sufficient level of discomfort to reject or conceal genuinely-held feelings.” Id. at 489.

C. Why the trial court in the instant case did not err in denying the cause challenge

The facts of this case differ radically from those addressed in Matarranz. Where, as here, the juror in question merely raised her hand to candidly respond to a generalized question from the trial court, never affirmatively expressed any bias, and consistently and unequivocally maintained that she could set aside her past experiences and be a fair and impartial juror, Matarranz does not require that she be excused for cause.

Unlike the prospective juror in Matar-ranz, who volunteered that she held deep-seated bias against the defendant, Ms. Johnson merely raised her hand when the trial judge asked the panel the generalized question whether anything about the case might potentially cause them to be biased or prejudiced. Unlike the prospective juror in Matarranz, who affirmatively announced her inability to be fair no less than eight times, Ms. Johnson never stated that she could not be fair or impartial. To the contrary, when asked if she could set aside any past experiences and render a verdict based solely on the evidence presented, Ms. Johnson unequivocally stated that she could. Unlike the prospective juror in Matarranz, who was expertly rehabilitated after questioning by counsel and the trial court, Ms. Johnson maintained her impartiality without the need to “rehabilitate” her even after pointed questioning from the Defendant’s trial counsel. And, unlike the prospective juror in Ma-tarranz, who even the trial court found was embarrassed into submission by repeated questioning from the trial court, Ms. Johnson proactively stated that she could be “fair and honestly evaluate the situation” without any prompting or rehabilitation from the lawyers or the trial court.

Simply put, this case is not Matarranz. To find manifest error for failing to remove Ms. Johnson for cause in the instant case would essentially strip the trial court of all the discretion expressly given it over the past century in decisional law. We do not believe Matarranz stands for such a radical proposition, nor do its words purport to do so. The trial court must examine the totality of the juror’s responses to determine whether there are any concerns that the juror can render an unbiased and impartial verdict and then scrutinize expressions of bias stemming from a juror’s unchangeable life experiences.

Here, there was no indication that Ms. Johnson would be unfair or biased, and the trial court did not commit error in finding no cause to strike Ms. Johnson from the panel. Accordingly, we affirm.

Affirmed.

      . To preserve for appellate review the denial of a for-cause challenge of a juror, the defendant must “object to the jurors, show that he or she has exhausted all peremptory challenges and requested more that were denied, and identify a specific juror that he or she would have excused if possible.” Kearse v. State, 770 So.2d 1119, 1128 (Fla.2000). In this case, the for-cause challenge was clearly preserved for these purposes, although we take issue with the specificity of the Defendant's objection to Ms. Johnson’s presence on the jury panel.


author: PER CURIAM.

text:
    Steven HATTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-2703, 4D11-2210.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s August 20, 2010 order dismissing Appellant’s first postconviction motion as facially insufficient. Just before expiration of the two-year time limit of rule 3.850(b), Appellant filed a pro se amended motion that was facially insufficient. The court dismissed this amended motion and gave Appellant until May 5, 2011, to file a second amended motion. Appellant retained new counsel on or about April 25, 2011, and on April 29, 2011, counsel requested a thirty-day extension of time to file a second amended motion alleging that he was in the process of obtaining the record. The court denied the extension of time and, following our relinquishment, entered a final order bringing an end to the postconviction proceedings.

We conclude that the motion originally filed through counsel on January 28, 2010, should not have been dismissed, as the motion was facially sufficient. We remand for consideration of this motion on the merits. We find no abuse of discretion in the trial court’s denial of Appellant’s request for an extension of the time to file a second amended motion.

Reversed and Remanded.

DAMOORGIAN, C.J., WARNER and FORST, JJ., concur.

      . Appellant filed a premature appeal of the order dismissing his original motion and then appealed the denial of his request for an extension of time to file the second amended motion. We relinquished jurisdiction and directed the trial court to enter a final appeal-able order. The court entered a final order bringing an end to the postconviction proceedings and we consolidated the two appeals.


text:
    POMERANZ & LANDSMAN CORPORATION, a Florida corporation, Petitioner, v. MIAMI MARLINS BASEBALL CLUB, L.P., a foreign corporation, f/k/a Florida Marlins, L.P., Respondent.
    No. 4D14-1237.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Peter J. Sandberg of Sandberg & Associates, P.A., Miami, for petitioner.
    Daniel M. Samson of Samson Appellate Law, Miami, and Abbey L. Kaplan and Justin B. Kaplan of Kluger Kaplan Silver-man Katzen & Levine, P.L., Miami, for respondent.
   PER CURIAM.

The petition for writ of prohibition is granted. The trial court lacks jurisdiction to hear the pending motion for sanctions under section 57.105, Florida Statutes (2013). The motion for sanctions in this case was filed after petitioner voluntarily dismissed the action. Generally, a voluntary dismissal under Florida Rule of Civil Procedure 1.420(a)(1) terminates a trial court’s jurisdiction over a matter. See Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68 (Fla.1978). Pursuant to Pino v. Bank of New York, 121 So.Bd 23, 41-43 (Fla.2013), a trial court has continuing jurisdiction to consider a 57.105 motion for sanctions only where the motion for sanctions was filed with the court before a voluntary dismissal.

This case concerns the 21-day safe harbor provision of section 57.105(4), Florida Statutes (2013), which provides:

A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Respondent served its motion for sanctions in this case on July 29, 2012, but did not file the motion with the court upon expiration of the 21-day safe harbor provision. On March 5, 2013, petitioner voluntarily dismissed the action, ending the trial court’s jurisdiction. On March 11, 2013, respondent filed the motion for sanctions with the court.

In Pino, the Florida Supreme Court addressed the safe harbor provision and a trial court’s jurisdiction to award sanctions following a voluntary dismissal. The court interpreted the safe harbor provision similarly to its nearly identical counterpart in Federal Rule of Civil Procedure 11 and observed: “In light of the safe harbor provision, a motion for sanctions under Rule 11 must be submitted prior to the dismissal of a case for a court to have jurisdiction because the rule allows the party to withdraw the offending pleading.” Pino, 121 So.3d at 42 (emphasis supplied). The court went on to explain the circumstances under which a trial court would have continuing jurisdiction to award sanctions after dismissal:

If the plaintiff does not file a notice of voluntary dismissal or withdraw the offending pleading within twenty-one days of a defendant’s request for sanctions under section 57.105, the defendant may file the sanctions motion with the trial court, whereupon the trial court will have continuing jurisdiction to resolve the pending motion and to award attorney’s fees under that provision if appropriate, regardless of the plaintiff’s subsequent dismissal.

Id. at 42-43 (emphasis added).

Here, the sanctions motion was not filed until after the action was dismissed. The voluntary dismissal ended the trial court’s jurisdiction. We therefore grant the petition as the trial court is without subject matter jurisdiction over the motion.

Petition for writ of prohibition is granted.

WARNER, GROSS and KLINGENSMITH, JJ., concur.


author: LAGOA, J.

text:
    Perry CAMPBELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1522.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2014.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant Attorney General, for appellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   LAGOA, J.

Perry Campbell (“Campbell”) was charged with one count of burglary of an unoccupied dwelling and one count of first-degree misdemeanor criminal mischief. At the close of the evidence, defense counsel moved for judgment of acquittal on both counts. The trial court denied the motion, and Campbell was convicted of trespass, as a lesser-included offense of burglary, and criminal mischief, as charged. Because the evidence was legally insufficient to support a charge of criminal mischief, we reverse that conviction but affirm the conviction for trespass.

On appeal, Campbell argues that the trial court erred in denying his motion for acquittal. We review an order denying a motion for judgment of acquittal de novo. Jean-Marie v. State, 947 So.2d 484, 487 (Fla. 3d DCA 2006). ‘Where the State fails to present sufficient evidence to establish a prima facie case of the charged crime, a judgment of dismissal is required.” R.R.W. v. State, 915 So.2d 633, 635 (Fla. 2d DCA 2005).

A person commits the offense of criminal mischief if he willfully and maliciously damages the real or personal property of another. § 806.13(l)(a), Fla. Stat. (2011). To sustain a conviction for criminal mischief, the State must prove the defendant caused the damage. Valdes v. State, 510 So.2d 631, 632 (Fla. 3d DCA 1987); see also R.R.W., 915 So.2d at 635 (“An essential element of ... criminal mischief is the defendant’s willful and malicious causation of damage to the property of another.”). “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” State v. Law, 559 So.2d 187, 188 (Fla.1989); see also Mayo v. State, 71 So.2d 899, 904 (Fla.1954) (“[E]vidence leaving uncertain which of several hypothesis may be true, or establishing only a probability favoring one hypothesis rather than another, cannot be equal to proof of guilt, no matter how strong the probability may be”).

Here, the State’s evidence was entirely circumstantial. Officer Rodriguez and Detective Ryan were the State’s only two witnesses. Office Rodriguez testified he was dispatched to a burglary in progress, and once on the scene, he noticed damage to both the apartment’s front door and the apartment’s door frame. Detective Ryan testified that Campbell told her he entered the apartment through the front door, but Campbell did not say how he gained entry. The photographs admitted into evidence depicted damage to the front door. There was no testimony, however, as to the condition of the door before Campbell entered the apartment nor was there direct evidence that Campbell caused the damage. While the circumstantial evidence against Campbell certainly suggests guilt, the State failed to present substantial, competent evidence from which the jury could exclude any reasonable hypothesis of innocence. See Law, 559 So.2d at 189 (Fla.1989) (stating that the State is not required to rebut every possible hypothesis, but must “introduce competent evidence which is inconsistent with the defendant’s theory of events”).

Because the evidence was legally insufficient to support the charge of criminal mischief, we are compelled to find that the trial court erred in denying Campbell’s motion for judgment of acquittal as to that charge. Accordingly, we reverse and remand for the trial court to vacate Campbell’s conviction for criminal mischief. We affirm, however, as to Campbell’s conviction for trespass.

Affirmed in part; reversed in part with instructions.


author: LOGUE, J.

text:
    Gustavo B. BORGES, D.D.S., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 3D13-1529.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2014.

      Schochet Law Group, and Randall M. Shochet, Greenacres, for appellant.
    Therese A. Savona, Chief Appellate Counsel, Tallahassee, for appellee.
    Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
   LOGUE, J.

Gustavo Borges appeals a final order of the Florida Board of Dentistry (“the Board”) revoking his license to practice dentistry based on his conviction of knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2)(A). The record includes the testimony of eight lay witnesses and four expert witnesses. The order of the administrative law judge which is the basis for the Board’s decision, however, discusses the testimony of only one witness, the respondent. The testimony of the other witnesses is not acknowledged, much less discussed, much less are factual findings made regarding their testimony.

This case raises the important issue of whether the conviction of knowingly receiving child pornography relates to the practice of dentistry. This issue seems to have been the subject of most of the testimony of the expert witnesses, which agreed on some points and disagreed on others. This issue was also addressed by the lay witnesses. But, as we stated earlier, the order makes no fact findings regarding the testimony on this point.

Rather than review the evidence in the record and make appropriate findings of fact, the administrative law judge, and ultimately the Board, relied solely on a purported concession contained within Borges’s proposed recommended order to establish that the federal conviction related to his ability to practice dentistry. Borges asserts that the statement from the proposed order is being misinterpreted. He notes that during the hearing his counsel consistently argued that the crime was not related to the practice of dentistry (“How [is receiving electronic images on a computer] related to his ability to practice? It doesn’t. It’s not related at all.”). Placed in context, it seems clear that Borges’s counsel did not make this statement in the proposed order for the purpose of dispensing with the need for proof on that particular issue which, after all, was one of the main issue contested during the hearing. In light of this circumstance, and in light of the fact that the proposed order was not adopted, we find that such a statement does not constitute a sufficient factual foundation to resolve the crucial factual and legal issue upon which the Board can revoke Borges’s professional license.

A recommended order by an administrative law judge must contain “findings of fact, conclusions of law, and recommended disposition.” § 120.57, Fla. Stat. (2008); see also Fla. Admin. Code R. 28-106.216(1) (2008) (stating that a recommended order “shall include a caption, time and place of hearing, appearances entered at the hearing, statement of the issues, findings of fact and conclusions of law, separately stated, and recommendation for final agency action”). The statutory and regulatory provisions’ requirement of factual findings is ultimately based on principles of due process. Gentry v. Dep’t of Profl & Occupational Regulations, State Bd. of Med. Examiners, 283 So.2d 386, 387 (Fla. 1st DCA 1973) (“It has been repeatedly held by the courts of this state that in order to assure due process and equal protection of the law, every final order entered by an administrative agency in the exercise of its quasi-judicial functions must contain specific findings of fact upon which its ultimate action is taken.”).

We find this order does not sufficiently comply with the requirement to make express findings of fact. As a reviewing court, we are left to guess whether the administrative law judge disbelieved all or some of the testimony or simply found the testimony irrelevant to his recommended disposition. Accordingly, we remand to the Board so that it can refer this matter to the administrative law judge to make sufficient findings. See Cohn v. Dep’t of Prof'l Regulation, 477 So.2d 1039, 1047 (Fla. 3d DCA 1985) (“When the entity charged with finding facts upon the evidence presented, the hearing officer, has, for whatever reason, failed to perform this function, the appropriate remedy is not for the agency (or the court of appeal) to reach its own conclusion, but rather to remand for the officer to do so.”); Lamphier v. Fla. Bd. of Med. Examiners, 492 So.2d 481, 483 (Fla. 4th DCA 1986) (holding under Administrative Procedures Act, where fact findings were insufficient, case should be remanded with directions that an amended order be entered adequately setting out the grounds for denial).

In so holding, we are not indicating that findings of fact must address the testimony of each and every witness or address the weight given to each exhibit admitted into evidence. However, the recommended order should address the factual controversies that were the subject of the hearing to the extent they are relevant to the recommended disposition or, however briefly, indicate why the testimony was not pertinent.

Reversed and remanded.


text:
    Howard K. HEIMS, Esq. and Littman, Sherlock & Heims, P.A., Petitioners, v. G.M.S. MARINE SERVICE CORP., JBM Enterprise, and James Mills, Respondents.
    No. 4D14-673.
    District Court of Appeal of Florida, Fourth District.
    Aug. 13, 2014.
    Howard K Heims and Virginia P. Sherlock of Littman, Sherlock & Heims, P.A., Stuart, pro se.
    Robert L. Jennings of Jennings & Va-lancy, P.A., Stuart, for respondent James Mills.
   PER CURIAM.

Former counsel, Howard Heims and Lit-man, Sherlock & Heims, P.A., petition for certiorari review of a sua sponte order requiring them to allow successor counsel to inspect and copy documents in Heims’ client file. We grant the petition and quash the trial court’s order.

Petitioners have asserted a retaining lien over^ the file and refused to provide records until the client pays its bill. In ruling on a discovery matter between the parties, the court sua sponte ordered former counsel to make its file available for inspection and copying, but provided its retaining lien would be preserved. Former counsel did not receive the discovery motions or notice of the hearing before the court issued its order.

Contrary to respondents’ argument, a motion for rehearing would not have cured the due process violation. See Epps v. State, 941 So.2d 1206, 1207 (Fla. 4th DCA 2006).

We agree with petitioners that requiring disclosure of their file would render the retaining hen meaningless. Moreover, this is not one of the rare cases that warrant disclosure of counsel’s file without payment of counsel’s fee or security. See Foreman v. Behr, 866 So.2d 705, 707 (Fla. 2d DCA 2003).

The order in this case departs from the essential requirements of law and causes material harm that cannot be remedied on appeal because the value of the retaining lien will be lost and because petitioners are not parties to the underlying action. Shelowitz, Shelowitz, Terrell & Coffey, P.A. v. Peters, 931 So.2d 1059 (Fla. 4th DCA 2006); Andrew Hall & Assocs. v. Ghanem, 679 So.2d 60 (Fla. 4th DCA 1996); Wintter v. Fabber, 618 So.2d 375 (Fla. 4th DCA 1993); see also Fox v. Widjaya, — So.3d —(Fla. 3d DCA 2013).

Accordingly, we grant the petition and quash the trial court’s order.

DAMOORGIAN, C.J., STEVENSON and FORST, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    HO YEAON SEO, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 1D12-3179.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2014.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General; Donna A. Gerace and Justin D. Chapman, Assistant Attorneys General, Tallahassee, for Appellee/Cross-Appellant.
   PER CURIAM.

Ho Yeaon Seo appeals his judgment and sentence. The state crossappeals the sentence as an impermissible downward departure. We affirm.

After responding to an advertisement posted on the Craigslist website stating “fresh yung fun — w4m (franklin/wakulla) / lookin 2 find someone 2 show me the ropes,” Mr. Seo communicated online for several hours with an undercover officer posing as a 14-year old girl. During the conversation, Mr. Seo described in graphic detail the sexual acts that he intended to engage in with the minor and he arranged to meet her in person. Mr. Seo then drove across town to what he thought was the minor’s house in order to have sex with her, whereupon he was arrested with a condom in his pocket.

Mr. Seo was charged with unlawful use of a computer service in violation of section 847.0135(3)(a), Florida Statutes (2011), and traveling to meet a minor in violation of section 847.0135(4)(a). Prior to trial, Mr. Seo filed a motion to dismiss the charges based upon subjective entrapment. The motion was denied after a hearing. At trial, Mr. Seo requested a jury instruction on entrapment. The request was denied. The jury found Mr. Seo guilty as charged, and over the State’s objection, the trial court sentenced Mr. Seo to a downward departure sentence of 11 months and 29 days in jail followed by a period of probation. This timely appeal and cross-appeal followed.

Mr. Seo raises four issues on appeal: 1) whether the trial court abused its discretion in denying his request for a jury instruction on entrapment; 2) whether the trial court erred in denying his motion to dismiss based upon subjective entrapment; 3) whether the trial court erred in denying his motion in limine to exclude his post-arrest statements; and 4) whether his dual convictions violate the prohibition against of double jeopardy. We affirm the first and third issues without discussion; we affirm the second issue based upon Cantrell v. State, 132 So.3d 931 (Fla. 1st DCA 2014); and we affirm the fourth issue based upon State v. Murphy, 124 So.3d 323 (Fla. 1st DCA 2013), and its progeny. Additionally, as we have done in several post -Murphy cases, we certify conflict with Shelley v. State, 134 So.3d 1138 (Fla. 2d DCA 2014), Hartley v. State, 129 So.3d 486 (Fla. 4th DCA 2014), and Pinder v. State, 128 So.3d 141 (Fla. 5th DCA 2013).

On cross-appeal, the State contends that the trial court erred in imposing a downward departure under section 921.0026(2)©, Florida Statutes (2011). We affirm based upon Murphy and State v. Davis, 141 So.3d 1230 (Fla. 1st DCA 2014), wherein this court affirmed downward departure sentences based upon this statute under materially similar circumstances as this case. Contra State v. Fureman, — So.3d —, 2014 WL 656756, 39 Fla. L. Weekly D408 (Fla. 5th DCA Feb. 21, 2014) (disagreeing with Murphy and reversing downward departure sentence under materially similar circumstances as this case because the defendant undertook “several distinctive and deliberate steps” to complete the crime and because “using a computer to commit a crime evinces a level of sophistication that would not support a downward departure”).

AFFIRMED; CONFLICT CERTIFIED.

WETHERELL and MARSTILLER, JJ., concur.

BENTON, J., concurs in part and dissents in part with opinion.

BENTON, J.,

concurring in part and dissenting in part.

I respectfully dissent from that portion of the decision affirming Mr. Seo’s conviction, because I believe he was entitled to the jury instruction on entrapment that he requested. But, since a majority has voted to uphold the conviction, I concur in affirming on the state’s cross-appeal challenging the downward departure sentence. See State v. Davis, 141 So.3d 1230 (Fla. 1st DCA 2014).

There was, to be sure, evidence from which the jury could find that Mr. Seo was guilty of the charged offenses. But the rule regarding instructions on affirmative defenses is that in “determining the appropriateness of [an] instruction, the trial court should ‘examine the evidence in the light most favorable to the defendant to decide whether the necessary elements of the defense have been placed before the jury.’ ” Butler v. State, 14 So.3d 269, 271 (Fla. 1st DCA 2009) (citation omitted). If so, the defendant is entitled to a jury instruction on the defense.

“In criminal proceedings, ... [t]he threshold for the giving of an instruction on a legally permissible theory of defense is low. To warrant the giving of such an instruction in a case where entrapment is being argued, the defense must show some evidence which suggests the possibility of entrapment. Once this threshold is met, regardless of how weak or improbable the evidence may be, the defense is entitled to the instruction.” Morgan v. State, 112 So.3d 122, 124 (Fla. 5th DCA 2013). See also Terwilliger v. State, 535 So.2d 346, 347 (Fla. 1st DCA 1988) (“It is axiomatic that a defendant has the right to have the jury instructed on the law of entrapment when evidence is presented which tends to prove such defense. Once the defendant has shown some evidence which suggests the possibility of entrapment, the issue of entrapment must be submitted to the jury with the appropriate instruction. It is not necessary that the defendant convince the trial judge of the merits of the entrapment defense because the trial judge may not weigh the evidence before him in determining whether the instruction is appropriate; it is enough if the defense is suggested by the evidence presented.” (citations omitted)).

Law enforcement officers posted their ad (“Casual Encounters,” under the category “Women for Men”) in the personals section of the Craigslist website. This section of the website asked that no one under the age of 18 make use of it. Assuming the ad to which Mr. Seo responded was the one identified at trial by the officer posing as “Maddy,” neither the initial posting (“fresh yung fun — w4m (franklin/wa-kulla)”) nor the full ad (“lookin 2 find someone 2 show me the ropes”) stated that a reader responding to the ad would be corresponding with a child under the age of eighteen, in violation of the site restrictions.

On October 15, 2011, at 6:41 a.m., Mr. Seo responded to the task force ad with the following e-mail: “Male FSU Student here, willing to provide you what you want. Without further ado, Wanna chat online sometime?” At 9:51 p.m. that night, the officer posing as “Maddy” responded: “would luv 2 how old r u?” At 11:00 p.m., Mr. Seo replied: “I am 24, You can get me at yahoo messenger, SN is aminocarboxylic.” At 11:30 p.m., the officer and Mr. Seo began a Yahoo Messenger exchange that lasted more than two hours.

During their “chat,” Mr. Seo asked several times for a picture of “Maddy.” At 12:52 a.m., “Maddy” asked if he had received the picture she had sent (in fact a picture of a 25-year-old female communications officer for the sheriffs office). After the picture reached him, Mr. Seo wrote “Maddy” that she was “quite beautiful,” and that he “bet a lot of boys wanna ask you out.” “Maddy” responded with “not really not much experience ... .lookin to learn.” Mr. Seo asked, “Well, is there anything I can help you with? Possibly? I don’t think I can’t even touch you but I can tell you what I know since I can be within 10 miles radius of you.” “Maddy” responded “well tell me wat u would do?” At that point, for the first time, Mr. Seo began discussing sexual acts. When he later said ‘Well, we can def hang out for sure[.] Just chill together, it will be an experience for me as well. Two bored people can hang together,” “Maddy” responded “i dont just want to chill boo.”

At 1:54 a.m., “Maddy” gave Mr. Seo the address of what purported to be a private home in a Tallahassee neighborhood, rented by the Tallahassee Police Department, where the undercover operation was taking place. At 2:08 a.m., he sent “Maddy” a message to let her know he was outside in the driveway. At 2:15 a.m., he was arrested inside the garage at the house.

Mr. Seo testified that when he first responded to the ad, he thought he was corresponding with someone at least eighteen years of age because the ad was on Craigslist. He testified he had previously responded to ads on Craigslist and had never encountered anybody underage. He also stated that people on such websites “role play” because “you can be anyone you want on the Internet.” Specifically, he testified he was not concerned that he was communicating with a minor when “Maddy” mentioned being in the ninth grade because he “thought she was just role-playing.” He was concerned, however, when she said she did not even have a learner’s driving permit, he testified, so he again asked for a picture. He also testified that, until he received the picture (approximately one hour and fifteen minutes after he and “Maddy” began exchanging messages on Yahoo Messenger), he was not interested in meeting “Maddy” in person.

With the foregoing evidence in the record, trial counsel asked for the standard instruction on entrapment. Mr. Seo met his burden of presenting sufficient evidence in support of an entrapment defense to warrant a jury instruction on entrapment. He testified that law enforcement officers induced him to commit the offenses with which he was charged and that he lacked any predisposition to seduce a minor. Subjective entrapment is defined by statute:

A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

§ 777.201(1), Fla. Stat. (2011).

The first question to be addressed under the subjective test [for entrapment] is whether an agent of the government induced the accused to commit the offense charged. On this issue, the accused has the burden of proof and, pursuant to section 777.201, must establish this factor by a preponderance of the evidence. If the first question is answered affirmatively, then a second question arises as to whether the accused was predisposed to commit the offense charged.... On this second question, ... the defendant initially has the burden to establish lack of predisposition. However, as soon as the defendant produces evidence of no predisposition, the burden then shifts to the prosecution to rebut this evidence beyond a reasonable doubt.

Munoz v. State, 629 So.2d 90, 99 (Fla.1993). “The state may prove predisposition with evidence of ‘the defendant’s prior criminal activities, his reputation for such activities, reasonable suspicion of his involvement in such activity, or his ready acquiescence in the commission of the crime.’ ” Jones v. State, 114 So.3d 1123, 1126 (Fla. 1st DCA 2013) (citation omitted)).

There was no evidence that Mr. Seo had previously met a minor for the purpose of engaging in sexual activity, or that he had ever before sought out persons under the age of legal consent for the purpose of engaging in sexual activity with them. There is no evidence that he would have tried to get up with a person under the age of legal consent in the present case, but for governmental inducement. See Munoz, 629 So.2d at 99 (“[C]are must be taken in establishing the predisposition of a defendant based on conduct that results from the inducement.”); Farley v. State, 848 So.2d 393, 396 (Fla. 4th DCA 2003) (noting that the state’s assertion that the fact that Farley ordered the videos indicated he had a predisposition to possess child pornography “overlooks even the common connotation of the word ‘pre disposition,’ ” and that the “prefix preindicates that the disposition must exist before first contact with the government”).

“ ‘[T]he failure to give a requested jury instruction constitutes reversible error where the complaining party establishes that: (1) The requested instruction accurately states the applicable law, (2) the facts in the case support giving the instruction, and (3) the instruction was necessary to allow the jury to properly resolve all issues in the case.’ ” Truett v. State, 105 So.3d 656, 658 (Fla. 1st DCA 2013) (quoting Langston v. State, 789 So.2d 1024, 1026 (Fla. 1st DCA 2001)). The present case meets this three-part test. The majority opinion’s claim that Morgan is distinguishable is perplexing:

At trial, Morgan testified that he had only one sexual encounter before, which took place when he was eighteen with an older woman, and that he had never had sex with anyone from Craigslist. On the night in question, he responded to multiple advertisements in an effort to have a casual sexual encounter, and the detective was the only person who replied. Morgan noted that the advertisement’s title did not mention a child and asserted that the detective first proposed the idea that he be intimate — what he understood to mean having a sexual encounter — with the imaginary daughter. He disavowed any intention of having a sexual encounter with the child.

Morgan, 112 So.3d at 124 (footnotes omitted). It could not be clearer that Morgan, like the appellant here, defended in part on the basis that he had no intention to engage sexually with a minor.

That the requested entrapment instruction (the Florida-Supreme-Court-approved standard entrapment instruction) accurately reflects the law is not in dispute. Because Mr. Seo introduced evidence from which the jury could find he was entrapped, the instruction he sought was appropriate, and necessary to allow the jury to evaluate one of the main issues in the case properly. His version of the facts supported giving the instruction. Mr. Seo presented evidence that, if accepted by the jury, would establish that officers induced or encouraged him to engage in conduct constituting crimes which he was not predisposed to commit.

This was not a case in which the defendant set up an alibi or “denied under oath the acts constituting the crime that [was] charged.” Wilson v. State, 577 So.2d 1300, 1302 (Fla.1991) (affirming refusal to give instruction on entrapment where defendant maintained somebody else had committed the crime). On the contrary, the appellant never denied driving to meet “Maddy,” apocryphal though she proved to be. See Mathews v. United States, 485 U.S. 58, 62-63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988) (noting that “a valid entrapment defense has two related elements: government[al] inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct” and holding that “even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment”); Wilson, 577 So.2d at 1302 (“ ‘Asserting the entrapment defense is not necessarily inconsistent with denial of the crime even when it is admitted that the requisite acts occurred, for the defendant might nonetheless claim that he lacked the requisite bad state of mind.’ ” (quoting W. LaFave and J. Israel, Criminal Procedure § 5.3, at 154-55 (1985))); Medina v. State, 634 So.2d 1149, 1151 (Fla. 4th DCA 1994) (concluding Medina had the right to an instruction on entrapment when “he admitted that he committed the acts that resulted in the drug deal, even though he denied knowing that the deal was going down when it did”); Terwilliger, 535 So.2d at 347 (“Even a defendant who denies one of the elements of the offense for which he is charged is entitled to an entrapment instruction.”).

There was no question that Mr. Seo drove to a residential neighborhood hoping for a sexual encounter with the woman whose picture had been sent to him. The question was whether he was disposed to prey on girls under eighteen before law enforcement agents suggested it. This was a jury question as to which the defense was entitled to the jury instruction it asked for.

      . On the first issue, we find the case relied on by Mr. Seo — Morgan v. State, 112 So.3d 122 (Fla. 5th DCA 2013) — distinguishable because, unlike the defendant in that case, Mr. Seo’s theory of defense was that he did not commit the charged crimes because he thought that he was communicating with and traveling to meet an adult who was "role-playing,” and not a minor. A material element of the crimes for which Mr. Seo was charged is that the person the defendant is communicating with or traveling to meet is "believed by the [defendant] to be a child.” § 847.0135(3)(a), (4)(a), Fla. Stat. (2011); see also Fla. Std. Jury Instr. (Crim.) 11.17(a), 11.17(c). Thus, contrary to the argument in the concurring in part and dissenting in part opinion, because Mr. Seo testified under oath that he did not believe that the person being portrayed by the undercover officers was actually a child, the trial court properly denied Mr. Seo’s request for a jury instruction on entrapment. See Wilson v. State, 577 So.2d 1300, 1302 (Fla.1991) (holding that a request for an instruction on entrapment should be refused even if there is evidence to support the defense "if the defendant has denied under oath the acts constituting the crime that is charged”).

      . State v. Davis, 141 So.3d 1230 (Fla. 1st DCA 2014); Griffis v. State, 133 So.3d 653 (Fla. 1st DCA 2014); Cantrell v. State, 132 So.3d 931 (Fla. 1st DCA 2014); Elsberry v. State, 130 So.3d 798 (Fla. 1st DCA 2014).

      . The officer portraying Maddy testified she was "almost positive” that she had placed the ad to which Mr. Seo responded, including an initial posting that included "fresh yung fun— w4m,” but acknowledged that she posted "quite a few ads,” and could not remember the exact terminology in all of them. She testified that she posted some ads that just said things like "needs experience in Craw-fordville” without any reference to "young." Mr. Seo, a 24-year-old, full-time college student at the time of his arrest, testified that the Craigslist ad he responded to did not state either "yung fun,” or "show me the ropes.”


text:
    Willie SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5037.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2014.

      Nancy A. Daniels, Public Defender, and L. Allen Beard, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kristen Lynn Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The Appellant, Willie Smith, Jr., was charged with two counts of failure of a sex offender to report or register a change in permanent or temporary address. The jury found the Appellant guilty as charged. The Appellant appeals his convictions and argues that the State improperly exercised a peremptory strike to exclude an African-American venireperson. Because it appears from the record that the trial court failed to determine the genuineness of the State’s challenge, we are required to reverse.

The State argues that the peremptory strike issue was not preserved, but we do not agree. Generally, a party must renew an objection to a peremptory strike before affirmatively accepting the jury. Joiner v. State, 618 So.2d 174, 176 (Fla.1993) (counsel’s acceptance of the jury led to a reasonable assumption that he had abandoned his objection). However, if the jury is sworn only minutes after the initial objection, an explicit renewal of the objection is not necessary. Romero v. State, 105 So.3d 550, 552 (Fla. 1st DCA 2012) (citing to Gootee v. Clevinger, 778 So.2d 1005, 1009 (Fla. 5th DCA 2000)). Here, the jury was sworn only a matter of minutes after the objection. As such, the objection did not need to be renewed, and it is not reasonable to believe defense counsel abandoned the objection. This issue was preserved.

We now turn to the issue at bar. During jury selection, the State exercised a peremptory strike for an African-American venireperson. Defense counsel asked for a “reason,” and the following exchange occurred:

STATE: She’s 18 years old. She’s unemployed. She’s only been in Escambia County for two years. The witness[ ] in this case is a young black female who had a baby with the defendant, and that’s why he was over at her house because he was having a baby with her. I just think — I would rather not run the risk — she would have emotional relationship or response to the girlfriend in this case.
DEFENSE COUNSEL: She doesn’t have any children, though.
STATE: It doesn’t matter.
THE COURT: The State’s alleging that — neutral reason. So any response?
DEFENSE COUNSEL: No, sir.
THE COURT: Objection overruled.

In Melbourne v. State, the Florida Supreme Court set forth the following clear guidelines for challenging a peremptory strike on racial grounds.

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike....
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

679 So.2d 759, 764 (Fla.1996) (footnotes omitted).

The issue in this case involves the third step. The genuineness inquiry requires that the trial court weigh the reasons and the counsel offering those reasons in light of the circumstances of the case and the voir dire. Hayes v. State, 94 So.3d 452, 462 (Fla.2012). Trial courts may consider the following relevant circumstances when determining genuineness of a peremptory strike: (1) the racial make-up of the venire, (2) prior strikes exercised against the same group, (3) if the reason is equally applicable to an unchallenged juror, or (4) if the juror is being singled out for special treatment. Melbourne, 679 So.2d at 764 n. 8 (citing State v. Slappy, 522 So.2d 18 (Fla.1988)). However, this list of circumstances is not exhaustive, and the trial court is not required “to recite a perfect script or incant specific words in order to properly comply” with a genuineness analysis. Hayes, 94 So.3d at 463.

A trial court’s genuineness analysis may be implicit. See Fleming v. State, 825 So.2d 1027, 1029 (Fla. 1st DCA 2002) (finding that “by overruling the defense’s objections, the lower court made an implicit finding that the [S]tate’s strikes were genuine”); Bowden v. State, 787 So.2d 185, 188 (Fla. 1st DCA 2001). However, this Court has clarified that if the trial court merely focuses on the fact that a race-neutral reason was offered without making a finding, implicit or otherwise, that the reasons were genuine, the third step cannot be fulfilled. Tetreault v. State, 24 So.3d 1242, 1244 (Fla. 1st DCA 2009) (finding that the trial court’s acceptance of the reasons as gender-neutral was not sufficient to imply a finding of genuineness) (citing Simmons v. State, 940 So.2d 580, 582-83 (Fla. 1st DCA 2006) (finding that because the trial court focused on the fact the State offered a seemingly race-neutral reason and accepted that the State’s reason for the strike as helpful for the defense, the trial court bypassed the genuineness inquiry)).

Here, the record provides no indication that the trial court engaged in a genuineness inquiry. The trial court stated that the reason was neutral, asked for defense counsel’s response, and then overruled the objection. There is no language in the record that reflects the trial court’s consideration of genuineness or pretext. As such, it appears the trial court failed to implicitly or explicitly make a finding regarding the genuineness of the State’s reason.

Because we are unable to determine that the trial court satisfied step three, we are required to REVERSE and REMAND for a new trial. See Simmons, 940 So.2d at 583.

WOLF and ROWE, JJ., and PARKER, GREGORY S., Associate Judge, concur.


author: SUAREZ, J.

text:
    Ronald Jerome LEE, Petitioner, v. Marydell GUEVARA, Director of Miami-Dade County Department of Corrections, Respondent.
    No. 3D14-1879.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2014.
    Rehearing Denied Aug. 18, 2014.

      Herbert Erving Walker III, Esq., for petitioner.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for respondent.
    Before SUAREZ, SALTER, and EMAS, JJ.
   ON PETITION FOR WRIT OF HABEAS CORPUS

SUAREZ, J.

Ronald Lee filed his petition for writ of habeas corpus after the trial court granted the State’s Motion to Revoke Defendant’s Bond. Mr. Lee requests this Court to instruct the lower court to either release him or to reduce his bond. The State has filed a limited concession noting that the trial court failed to comply with Florida Rule of Criminal Procedure 3.131 by failing to issue the required findings of fact and conclusions of law in support of the court’s order revoking bond. See State v. Blair, 39 So.3d 1190 (Fla.2010); Rigby v. State, 29 So.3d 390 (Fla. 5th DCA 2010); Dupree v. Cochran, 698 So.2d 945 (Fla. 4th DCA 1997).

We grant the petition only insofar as to remand the case to the trial court for the purpose of holding an immediate evidentia-ry hearing on the State’s motion to revoke bond and to make the required findings of fact and conclusions of law. § 704.041(4)(c), Fla. Stat. (2013); Fla. R. Crim. P. 3.132(c)(2). Mr. Lee shall not be released pending the outcome of the evidentiary hearing, or of any appeals by right. This opinion shall become effective immediately, notwithstanding the filing of any motion for rehearing.

Petition granted and remanded with instructions.


author: BENTON, J.

text:
    Dalvin Lorenzo DENSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5794.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Dalvin Lorenzo Denson appeals the imposition of consecutive mandatory minimum sentences aggregating seventy-five years, pursuant to section 775.087(2)(d), Florida Statutes (2011). We affirm on the basis of stare decisis. See Fleming v. State, 135 So.3d 531 (Fla. 1st DCA 2014); Smart v. State, 114 So.3d 1048 (Fla. 1st DCA 2013). See also Morgan v. State, 137 So.3d 1075 (Fla. 3d DCA 2014). But see Roberts v. State, 990 So.2d 671 (Fla. 4th DCA 2008); Perry v. State, 973 So.2d 1289 (Fla. 4th DCA 2008); Church v. State, 967 So.2d 1073 (Fla. 2d DCA 2007); Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006).

Mr. Denson stood trial on multiple charges alleged in connection with a marijuana transaction gone awry. Charged with two counts of attempted first-degree felony murder, two counts of attempted murder in the second degree, attempted robbery with a firearm, and carrying a concealed firearm, he was found guilty by the jury on all six counts. Evidence the state adduced permitted the jury to find that, on September 1, 2011, when Suad Rizvanovic and Meho Pasic decided he lacked sufficient funds to close the deal and began to walk away, Mr. Denson opened fire and hit them both.

For each count of attempted first-degree felony murder, he was sentenced to life in prison, with a twenty-five-year mandatory minimum term. For carrying a concealed weapon, he was sentenced to five years’ imprisonment, with no minimum mandatory. The trial court ordered that the life sentences for the two attempted first-degree felony murder convictions and the five-year sentence for carrying a concealed weapon be served concurrently. For attempted robbery with a firearm, he was sentenced to twenty-five years’ imprisonment, also with a twenty-five-year mandatory minimum term. The trial court ordered that he serve the twenty-five year sentence for attempted robbery with a firearm consecutively to the concurrent sentences. The trial court also ordered that the three twenty-five-year minimum mandatory terms, all imposed pursuant to section 775.087(2)(a), be served consecutively to one another.

On the basis of controlling precedent, we reject Mr. Denson’s argument that the trial court erred in imposing consecutive mandatory minimum terms pursuant to section 775.087(2)(d), Florida Statutes (2011). See Fleming, 135 So.3d at 531 (“[W]ith regard to the mandatory minimum sentence for Count II (possession of a firearm by a convicted felon) imposed consecutively to Count I (attempted first degree murder), such a consecutive sentence is mandated.”); Walton v. State, 106 So.3d 522, 528 (Fla. 1st DCA 2013), review granted, No. SC13-1652, 2014 WL 1654326 (Fla. Apr. 3, 2014) (“[T]he statute is clear: any mandatory minimum term required by section 775.087(2) — whether the defendant fires a gun, or only carries or displays it— shall be imposed consecutively to any other term imposed for any other felony.”). See also Morgan, 137 So.3d at 1075 (“[S]ection 775.087(2)(d) unambiguously requires that ‘any mandatory minimum term required ... shall be imposed consecutively to any other term imposed for any other felony.’” (citation omitted)); Williams v. State, 125 So.3d 879, 880 (Fla. 4th DCA 2013), review granted, No. SC13-1080 (Fla. July 16, 2013) (concluding “the trial court was required to impose consecutive sentences”). But see generally Roberts, 990 So.2d at 675; Perry, 973 So.2d at 1289-90; Church, 967 So.2d at 1075; Irizarry, 946 So.2d at 558.

As it was entitled to do, the state proceeded on alternative theories of first- and second-degree attempted murder at trial. See Fla. R. Crim. P. 3.140(k)(5) (“For an offense that may be committed by doing 1 or more of several acts, or by 1 or more of several means, or with 1 or more of several intents or results, it is permissible to allege in the disjunctive or alternative such acts, means, intents, or results.”). But neither the judgment of conviction entered below nor the Criminal Punishment Code Scoresheet relied on at sentencing makes any mention of the attempted second-degree murder charges. The trial court properly adjudicated Mr. Denson guilty of attempted first-degree felony murder as to each victim instead. See Williams v. State, 90 So.3d 931, 934-35 (Fla. 1st DCA 2012) (“The Florida Supreme Court has held that section 775.021, Florida Statutes, does not abrogate the merger principle, which prohibits multiple punishments for a single killing. This principle has been extended to convictions for attempted first-degree murder and attempted felony murder from the same attempted killing.... We do not think that the Legislature authorized the imposition of multiple punishments for attempted premeditated first-degree murder and attempted felony murder for the same attempted killing of one victim, when there is not a separate criminal episode or distinct acts on which to base each attempted murder conviction.” (citations omitted)). See generally Wilkes v. State, 123 So.3d 632, 634-35 (Fla. 4th DCA 2013) (“[Wjhere, as here, there is a single attempt to cause death to a victim, dual convictions for both attempted murder and attempted felony murder cannot stand.”).

Even in the absence of a sentence on the lesser offense, the fact of dual convictions runs afoul of the double jeopardy bars. See id. at 635 (“Therefore, allowing both convictions to stand, yet withholding the imposition of sentence for one of the offenses, does not cure the double jeopardy violation as it is ‘the record of appellant’s conviction [that] constitutes the violation of double jeopardy.’ ” (citations omitted)); Hill v. State, 114 So.3d 1071,1071 (Fla. 1st DCA 2013) (noting that a double jeopardy violation is not cured by the trial court’s holding sentencing “in abeyance”); Bolding v. State, 28 So.3d 956, 957 (Fla. 1st DCA 2010) (holding that, when the defendant was found guilty of both lewd or lascivious battery and lewd or lascivious molestation under facts that would render conviction of both offenses a double jeopardy violation, and the trial court ordered that adjudication of guilt for lewd or lascivious molestation be withheld, a double jeopardy violation is not rendered harmless simply because the defendant is not sentenced for both of the convictions or because they were not both scored on the guidelines scoresheet).

No further proceedings on the second-degree attempted murder charges are permissible, given double jeopardy constraints. See Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (“When an appellate court determines that dual convictions are impermissible [because they would violate double jeopardy prohibitions], the appellate court should reverse the lesser offense conviction and affirm the greater.”); State v. Barton, 523 So.2d 152, 153 (Fla.1988) (same). Nor as far as our reading of the record reveals were any contemplated. But appellant asks us to set aside the verdict insofar as it found him guilty of two counts of attempted second-degree murder, and we now do so to make the point unmistakably clear. With the verdict thus amended, the judgment and sentence are otherwise

Affirmed.

CLARK and OSTERHAUS, JJ., concur.

      . The verdict found him guilty both of attempted first-degree and of attempted second-degree murder of each victim. During deliberations, the jury had asked: "I need to know when making a decision on first degree does this mean that it will include second degree, manslaughter, aggravated battery.” The trial judge had answered: “Attempted first degree murder does not have any lesser included offenses as alleged in the Information. Attempted second degree murder is an independent crime from attempted first degree murder. Attempted second degree murder does have lesser included offenses, which have been explained in the jury instructions of which you have a copy. A separate crime is charged in each count of the Information and although they have been tried together each crime and the evidence applicable to it must be considered separately and a separate verdict returned as to each. A finding of guilty or not guilty as to one crime must not affect your verdict as to the other crimes charged.”

      . At sentencing, the trial judge stated:
      I would tell everybody in the court of appeals that pursuant to the cases that the State has cited on the record, it appears that the Supreme Court has taken the legislative language as to require consecutive sentences to be imposed on the minimum mandatories.
      I would say — and I told Mr. Gates that I would do this: I would — in the absence of those cases, interpreting the statute as I feel that they do, I would impose the minimum mandatoiy sentences on the attempted first-degree murders on Count I and II consecutively, but would impose the attempted armed robbery minimum mandatory sentence concurrently to those two because essentially the first two counts are so because of the attempted armed robbery. But as I read the cases as the State has cited to the Court, I believe the Supreme Court has interpreted the statute strictly with regards to the mandatoriness of “shall be imposed consecutively.”