author: WALLACE, Judge.

text:
    Jerry Wayne BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2793.
    District Court of Appeal of Florida, Second District.
    May 22, 2009.
    Rehearing Denied July 6, 2009.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Jerry Wayne Brown, Jr., appeals his two judgments and life sentences for sexual batteries committed upon two persons under the age of twelve years, violations of section 794.011(2)(a), Florida Statutes. The sole issue Mr. Brown asks us to determine is whether the trial court erred in instructing the jury in accordance with section 794.022(1) that the testimony of the victim need not be corroborated in a prosecution for sexual battery. Because we conclude that such an instruction is misleading and constitutes an improper comment on the evidence by the trial court, we reverse Mr. Brown’s judgments and sentences and remand for a new trial.

I. THE FACTUAL BACKGROUND

The State charged Mr. Brown with committing sexual battery against two sisters in Collier County at some time between January 1, 1983, and August 1, 1987. The evidence at trial established that the sisters had moved with their family to the Naples area in January 1983. From 1983 until the summer of 1987, Mr. Brown, to whom the sisters were related, had lived sporadically at the sisters’ family home in Naples. In January 1983, Mr. Brown would have been eighteen years old. When the two sisters moved to Naples, the older sister was seven years old and the younger sister was six.

In 2006, the two sisters contacted law enforcement officials and reported that Mr. Brown had committed multiple acts of sexual abuse — including sexual battery— against them from January 1983 until the summer of 1987 when they moved from the Naples area. At the time of the report, the older sister was thirty and the younger sister was twenty-nine. Neither of the sisters had made any contemporaneous complaints about the alleged sexual abuse by Mr. Brown. Based on the sisters’ reports, Mr. Brown was arrested and charged with committing two sexual batteries — one against each sister.

At trial, the State presented the testimony of three witnesses. The two sisters testified about the four and one-half years of sexual abuse they claimed to have experienced at the hands of Mr. Brown. A detective employed by the Collier County Sheriffs Office testified that she had taken statements from the sisters on November 5, 2006. The detective also testified that Mr. Brown had been born in August 1964. The State did not present any physical evidence or any evidence concerning collateral crimes. In addition, the State did not present evidence of any admissions or incriminating statements by Mr. Brown. Mr. Brown elected not to testify in his own defense. He did not call any witnesses.

The jury found Mr. Brown guilty as charged of both counts of sexual battery. The trial court adjudged him to be guilty in accordance with the jury’s verdicts and sentenced him to life in prison on each count. The sentences were designated to run consecutively.

II. THE SPECIAL JURY INSTRUCTION

Except to the extent that the testimony of each sister reinforced the testimony of the other, their accounts of the alleged sexual abuse were not supported by evidence of contemporaneous complaints, physical evidence, admissions by Mr. Brown, or evidence of collateral crimes. In his opening statement and in his cross-examination of the two sisters, defense counsel noted the absence of any evidence corroborating the sisters’ testimony. At the charge conference, the prosecutor requested a special jury instruction based on section 794.022(1), which provides: “The testimony of the victim need not be corroborated in a prosecution under s. 794.011.” Section 794.011 is the sexual battery statute. The State’s requested instruction tracked the language of section 794.022(1) almost verbatim. The instruction read: “The testimony of the victim need not be corroborated in a prosecution for sexual battery.”

Defense counsel objected to the special instruction. In pertinent part, he argued:

I think that’s probably an instruction that goes more to [a] motion for judgment of acquittal than it does to something for the jury, because when it comes before the Court, the Court can look at it and say there was no corroboration. The statute says, Judge, you don’t need it. You can then deny the motion for judgment of acquittal.
To get out here and tell them that there doesn’t have to be any corroboration is pretty much deciding the verdict.
In any case, we never come down and say somebody’s testified and there has to be corroboration. That’s an argument. But to suggest, by special instruction, that what these girls say doesn’t need to be corroborated is pretty much giving them an invitation to say, okay, fine, then that’s good enough. I don’t think that we should say one way or the other.

Thus defense counsel opposed the requested instruction on the ground that section 794.022(1) was pertinent only to the State’s burden of proof to survive a motion for judgment of acquittal and was not a proper subject of comment by the trial court.

In addition, defense counsel’s objection to the special instruction included the following argument: ‘Your instruction says corroboration or lack of corroboration, the veracity or lack of veracity of a witness.” This portion of defense counsel’s objection is ambiguous. However, this comment may be reasonably interpreted as an observation that the subject matter of the special instruction was adequately covered in Standard Jury Instruction 8.9 on “Weighing the Evidence.”

The trial court overruled defense counsel’s objection and agreed to give the special instruction. After observing that the defense had put the uncorroborated nature of the sisters’ testimony “at issue,” the trial court ruled: “All right. Well, it is the law. It’s in the section under sexual battery. It refers specifically to the sexual battery section. I’m going to add this on both counts.” Having decided to give the special instruction, the trial court might have incorporated the instruction into the text of Standard Jury Instruction 8.9 on “Weighing the Evidence.” Instead, the trial court added the special instruction to the end of Standard Jury Instruction 11.1 on “Sexual Battery — Victim Less than 12 Years of Age.” Because there were two victims, the instruction was read to the jury twice, once in connection with each separate instruction for each sister.

III. THE PARTIES’ ARGUMENTS

On appeal, Mr. Brown argues that the special “instruction amounted to an improper comment on the evidence and it constituted judicial approval of a crucial State argument.” In response, the State emphasizes that the jury instructions must be considered in their entirety. According to the State, the jury instructions — taken as a whole — correctly informed the jury concerning the State’s burden to prove its case beyond a reasonable doubt by presenting testimony from the sisters establishing Mr. Brown’s commission of the charged offenses. Thus the special instruction “did not suggest to the jury that the State’s mere presentation of witnesses inexorably leads to a conviction without critical examination of the evidence.”

IV. THE STANDARD OF REVIEW

We review the giving or withholding by a trial court of a requested jury instruction under an abuse of discretion standard. Worley v. State, 848 So.2d 491, 491 (Fla. 5th DCA 2003) (citing Palmore v. State, 838 So.2d 1222 (Fla. 1st DCA 2003)). However, “[w]here an instruction is confusing or misleading, prejudicial error occurs where the jury might reasonably have been misled and the instruction caused them to arrive at a conclusion that it otherwise would not have reached.” Tinker v. State, 784 So.2d 1198, 1200 (Fla. 2d DCA 2001) (citing Wadman v. State, 750 So.2d 655, 658 (Fla. 4th DCA 1999)).

V. DISCUSSION

A. Introduction

No reported Florida case has considered the special instruction given in this case or one similar to it. Thus it appears that the propriety of giving the special instruction is a question of first impression in Florida. To examine this question, we will begin by considering the adequacy of the standard jury instructions on this subject and the practice of reading statutes to the jury. Next, we will make a brief review of Florida’s prohibition against judicial comment on the evidence. With this background, we will examine the history and purpose of section 794.022(1), the statute on which the special instruction was based. Our examination of section 794.022(1) leads us to a detailed analysis of the two Florida decisions on which Mr. Brown relies most heavily in his argument for reversal — the Marr cases. After an analysis of these decisions, we will review three cases from other jurisdictions that have considered jury instructions very similar to the special instruction used in this case. Because we decide that giving the special instruction was error, we will conclude by considering whether the error was harmless under the circumstances of Mr. Brown’s case.

II. The Adequacy of the Standard Jury Instructions

Of course, the special instruction at issue in this case does not appear in the Standard Jury Instructions. However, the subject of the special instruction is addressed — at least by inference — in Standard Jury Instruction 3.9 on “Weighing the Evidence.” For example, the standard jury instruction suggests that the jury consider whether “the witness’s testimony agree[s] with the other testimony and other evidence in the case.” The standard jury instruction concludes by advising the jurors: “You may rely upon your own conclusion about the witness. A juror may believe or disbelieve all or any part of the evidence or the testimony of any witness.”

“The standard jury instructions are presumed correct and are preferred over special instructions.” Stephens v. State, 787 So.2d 747, 755 (Fla.2001) (citing State v. Bryan, 290 So.2d 482 (Fla.1974)). However, the use of the standard jury instructions does not relieve the trial court of its obligation to determine whether the standard instructions accurately and adequately state the law. Moody v. State, 359 So.2d 557, 560 (Fla. 4th DCA 1978). If the trial judge determines that the standard jury instructions are erroneous or inadequate and departs from them in instructing the jury, it is mandatory that the trial judge “state on the record or in a separate order the respect in which the judge finds the standard form erroneous or inadequate and the legal basis of the judge’s finding.” Fla. R.Crim. P. 3.985; see also State v. Hamilton, 660 So.2d 1038, 1045-46 (Fla.1995) (citing Moody, 359 So.2d at 560); Holt v. State, 987 So.2d 237, 240 (Fla. 1st DCA 2008).

Here, the trial judge did not specifically address the adequacy of the standard jury instructions on the question of whether the victim’s testimony was required to be corroborated in a prosecution for sexual battery. The trial judge appears to have assumed either that Standard Jury Instruction 3.9 on “Weighing the Evidence” did not address the subject of the corroboration of witness testimony or that it was inadequate on that subject. The trial judge’s stated reasons for giving the instruction were that the defense had put the question of corroboration at issue and that the instruction, which was taken directly from the statute, was an accurate statement of the law.

C. Reading the Statute

Except for the substitution of the name of the crime for the statute number, reading the special instruction amounted to reading section 794.022(1) to the jury. We note that “[rjeading a statute to the jury as an instruction is not necessarily erroneous.” Ruskin v. Travelers Ins. Co., 125 So.2d 766, 769 (Fla. 2d DCA 1960). However, “a charge taken from a statute must be justified by the evidence; it must be pertinent to the case; it must be confined to the issues in the case; and it must not mislead the jurors.” Id. The giving of an instruction — even one taken directly from a statute — that violates these basic safeguards may result in reversible error. See id. at 770. In this case, our task is to determine whether the special instruction based directly on section 794.011(2) had the potential to mislead the jurors or was otherwise improper.

D. Commenting on the Evidence

At trial, defense counsel’s primary objection to the instruction was that the absence of any evidence to corroborate the sisters’ testimony was a matter for argument by counsel rather than a subject for comment by the trial court. Florida has traditionally discouraged judicial comment on the evidence by the judge to the jury. Walker v. State, 896 So.2d 712, 721 (Fla.2005) (Anstead, J., dissenting); Raulerson v. State, 102 So.2d 281, 285 (Fla.1958). More than one hundred years ago, the Supreme Court of Florida outlined the basis of the prohibition of such judicial commentary:

[G]reat care should always be observed by the judge to avoid the use of any remark in the hearing of the jury that is capable, directly or indirectly, expressly, inferentially, or by innuendo, of conveying any intimation as to what view he takes of the case, or that intimates his opinion as to the weight, character, or credibility of any evidence adduced. All matters of fact, and all testimony adduced, should be left to the deliberate, independent, voluntary, and unbiased judgment of the jury, wholly uninfluenced by any instruction, remarks, or intimation, either in express terms or by innuendo, from the judge, from which his view of such matters may be discerned. Any other course deprives the accused of his right to trial by jury, and is erroneous.

Lester v. State, 37 Fla. 382, 20 So. 232, 234 (1896). A breach of the prohibition against judicial commentary on the evidence tends to destroy the impartiality of the trial to which a litigant or an accused is entitled. Hamilton v. State, 109 So.2d 422, 424-25 (Fla. 3d DCA 1959).

Florida’s prohibition of judicial comment on the evidence has been codified in section 90.106, Florida Statutes (2007). Vaughn v. Progressive Cas. Ins. Co., 907 So.2d 1248, 1254 (Fla. 5th DCA 2005). Section 90.106 provides: “A judge may not sum up the evidence or comment to the jury upon the weight of the evidence, the credibility of the witnesses, or the guilt of the accused.” The Florida courts have determined that various jury instructions that amounted to judicial comment on the evidence violate the statute and thus are impermissible. See, e.g., Fenelon v. State, 594 So.2d 292 (Fla.1992) (finding that instructing the jury that flight by the accused may be one of a series of circumstances from which guilt may be inferred was an improper comment on the evidence and directing that the instruction should not be given); Whitfield v. State, 452 So.2d 548 (Fla.1984) (finding that instructing the jury that the accused’s refusal to submit to fingerprinting was a circumstance from which consciousness of guilt could be inferred was an impermissible comment on the evidence).

E. The History and Purpose of Section 794.022(1)

The content of section 794.022(1) originated in 1974 as part of the legislation eliminating the crime of rape and replacing it with the new offense of sexual battery. Ch. 74-121, Laws of Fla. See generally E. Sue Bernie, Note, Florida’s Sexual Battery Statute: Significant Reform but Bias against the Victim Still Prevails, 30 U. Fla. L.Rev. 419 (1978) (discussing the legislation and its background in detail). The new statute also provided that “[t]he testimony of the victim need not be corroborated in prosecutions under [the Sexual Battery statute]; however, the court may instruct the jury with respect to the weight and quality of the evidence.” This provision originally appeared in the 1974 Laws as section 794.011(5), but was renumbered in the bound volume of the Florida Statutes as section 794.022(1), its current designation. Ch. 74-121, § 2, at 372, Laws of Fla.; § 794.022(1), Fla. Stat. (Supp.1974). The purpose of the enactment of section 794.022(1) was to eliminate a judicially created corroboration requirement for a rape or sexual battery conviction based on the lack of evidentiary weight. See Tibbs v. State, 397 So.2d 1120, 1129 n. 3 (Fla.1981) (Sundberg, C.J., concurring in part and dissenting in part); Anderson v. State, 549 So.2d 807, 814 (Fla. 5th DCA 1989) (Cowart, J., dissenting).

When section 794.022(1) was enacted, the Standard Jury Instructions on Rape (section 794.01, Florida Statutes, now repealed) included the following instruction:

If the testimony of the female is not supported by other evidence!,] her testimony should be rigidly examined, especially as it related to the nature and extent of the force used and as it related to the question of whether or not consent was ever finally given....

See Marr I, 470 So.2d at 711 n. 11. This instruction was omitted from the standard jury instructions in 1976. Id. Despite the omission of this instruction from the standard instruction, some defense attorneys continued to include it or some version of it in their requested jury instructions in prosecutions for the new offense of sexual battery. See, e.g., id. at 706-07.

In 1983, section 794.022(1) was amended to delete the clause authorizing the trial court to “instruct the jury with respect to the weight and quality of the evidence.” Ch. 83-258, § 1, at 1315, Laws of Fla. It has been suggested that the deletion of the portion of section 794.022(1) authorizing trial courts to “instruct the jury with respect to the weight and quality of the evidence” was an attempt to bar trial judges from using the portion of the former standard jury instruction requiring a rigid examination of the uncorroborated testimony of the victim in a prosecution for sexual battery. Marr I, 470 So.2d at 713 n. 1 (Ervin, C.J., dissenting) (referring to “[t]he staff report of the Judiciary Committee, House of Representatives on HB 348, which led to the passage of Chapter 83-258”). Thus it is reasonable to conclude that the 1983 amendment resulting in the current version of section 794.022(1) was intended to prohibit — not to promote — judicial comment on the weight and quality of the victim’s testimony in prosecutions for sexual battery.

F. Marr I and Mair II: The Cases Relied on by Mr. Brown

In Marr I and Marr II, the First District and the Supreme Court of Florida, respectively, considered a jury instruction analogous to the instruction under review here. Marr I and Marr II were decided after the adoption of section 90.106 and the 1983 amendment to section 794.022(1). For these reasons, Marr I and Marr II merit close examination.

Mr. Marr was prosecuted for sexual battery. Marr I, 470 So.2d at 704. He requested the following jury instruction: “In a case of this kind where no other person was an immediate witness to the alleged act, the testimony of the prosecutrix should be rigidly scrutinized.” Id. at 708. The trial court denied the requested instruction on the ground that the subject of the instruction was covered by the standard jury instructions on judging the credibility of witnesses. Id.

The jury convicted Mr. Marr of sexual battery. On appeal to the First District, he argued that the trial court had erred in refusing to give the requested instruction. Id. A panel of the First District agreed and decided to reverse the judgment and sentence on account of the trial court’s denial of the requested instruction. Id. at 706-07.

On rehearing en banc, a majority of the full court disapproved the panel decision on the jury instruction issue and affirmed Mr. Marr’s judgment and sentence. Id. at 708. The en banc majority specifically noted that the trial court had given the standard instruction that is now designated as Standard Jury Instruction 3.9 on “Weighing the Evidence.” Id. Concerning this instruction, the en banc majority said:

The foregoing instruction is applicable to testimony of victims, male or female, of a sex crime or any other crime whether or not their testimony is corroborated. It is sufficient in this case. The instruction requested by defendant below, singling out the prosecutrix in a rape case for judicial comment on the credibility of her testimony, is plainly erroneous and not the law of this state.

Id. at 708-09. In reaching this conclusion, the en banc majority relied on section 90.106. Id. at 711. In addition, the en banc majority specifically noted that the 1983 amendment to section 794.022(1) had deleted the authorization to the trial court to instruct the jury on the weight and quality of the evidence in a prosecution for sexual battery. Id. at 711 n. 11. Finally, the en banc majority certified a question to the Supreme Court of Florida concerning whether the trial court erred in refusing to give the requested instruction. Id. at 712.

The Supreme Court of Florida answered the certified question in the negative and held that the instruction should not be used in sexual battery cases. Mart II, 494 So.2d at 1140. The court declared that the requested jury instruction, “which singles out the testimony of a sexual battery victim as somehow deserving more rigid scrutiny by a jury than other witnesses’ or victims’ testimony, should no longer play a role in Florida jurisprudence.” Id. at 1142. The court explained:

[W]e can discern no unique reason why those accused of sexual battery should occupy a status different from those accused of any other crime where the ultimate factual issue at trial pivots on the word of the victim against the word of the accused.
The standard instruction given by the trial court in this case was adequate, giving guidance to the jury without im-permissibly commenting on the weight to be given the evidence or the credibility of any witness. Counsel for both the state and the defense in their opening statements and closing arguments made it explicitly clear to the jury that this case turned totally on whether the jury believed the victim’s testimony. In essence, both parties asked the jury to “rigidly scrutinize” the testimony of the prosecutrix. This is a proper argument from counsel; it would not be proper had the same statements come from the bench clothed as principles of law.

Id. (footnote omitted.) Thus under Mart-1 and Mart II, comments on the weight of the evidence and the credibility of witnesses in sexual battery cases are the proper subject of argument by counsel, but such comments may not be delivered from the bench.

G. Authority fi'om Other Jurisdictions

As we noted previously, no reported Florida case has considered a similar instruction. However, courts in other jurisdictions have considered instructions similar to the special instruction at issue in Mr. Brown’s case. Thus we turn now to a review of some of these cases.

In Ludy v. State, 784 N.E.2d 459 (Ind.2003), the Supreme Court of Indiana considered the propriety of a jury instruction similar to the instruction at issue in this case. The conduct for which the defendant in Ludy was tried concerned an assault by several jail inmates on another inmate. Id. at 462. At trial, the victim testified that during the assault, his pants were removed, he was held head down in a toilet, and the defendant inserted a bottle up the victim’s rectum. Id. The defendant was convicted of criminal deviate conduct, criminal confinement, and two counts of battery.

Over a defense objection, the trial court gave the following jury instruction:

A conviction may be based solely on the uncorroborated testimony of the alleged victim if such testimony establishes each element of any crime charged beyond a reasonable doubt.

Id. at 460. At trial, defense counsel objected to the instruction on the ground “that it is ‘an appellate standard ... rather than something that the jury needs to be instructed about.’ ” Id. On appeal, the Indiana Court of Appeals affirmed the convictions.

On further review, the Indiana Supreme Court held that giving the instruction was error and overruled a number of prior inconsistent decisions. Id. at 462. The Ludy court explained its decision as follows:

The challenged instruction is problematic for at least three reasons. First, it unfairly focuses the jury’s attention on and highlights a single witness’s testimony. Second, it presents a concept used in appellate review that is irrelevant to a jury’s function as fact-finder. Third, by using the technical term “uncorroborated,” the instruction may mislead or confuse the jury.
Instructions that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved....
When reviewing appellate claims that the evidence is insufficient to support the judgment, reviewing courts frequently confront cases in which most or all of the facts favorable to the judgment derive from the testimony of a single person, often the victim of the crime. In discussing this issue, our appellate opinions observe that a conviction may rest upon the uncorroborated testimony of the victim.
But a trial court jury is not reviewing whether a conviction is supported. It is determining in the first instance whether the State proved beyond a reasonable doubt that a defendant committed a charged crime. In performing this fact-finding function, the jury must consider all the evidence presented at trial. To expressly direct a jury that it may find guilt based on the uncorroborated testimony of a single person is to invite it to violate its obligation to consider all the evidence.
In addition, the meaning of the legal term “uncorroborated” in this instruction is likely not self-evident to the lay juror. Jurors may interpret this instruction to mean that baseless testimony should be given credit and that they should ignore inconsistencies, accept without question the witness’s testimony, and ignore evidence that conflicts with the witness’s version of events. Use of the word “uncorroborated” without a definition renders this instruction confusing, misleading, and of dubious efficacy.

Id. at 461-62 (citations omitted). Although the Ludy court determined the giving of the instruction to be error, it affirmed the defendant’s convictions because the error did not affect his substantial rights. Id. at 463. The court reasoned that the testimony of the victim was not uncorroborated because “aside from the victim’s testimony there was substantial probative evidence establishing the elements of the charged offenses.” Id.

In Veteto v. State, 8 S.W.3d 805 (Tex.Ct.App.2000), abrogated on other grounds by State v. Crook, 248 S.W.3d 172 (Tex.Crim.App.2008), a Texas appellate court considered a similar instruction. In Veteto, the defendant was charged with three counts of aggravated assault on A.L., an eight-year-old child. Id. at 808-09. There were no witnesses to the incidents. On appeal, the defendant argued that the following portion of the trial court’s charge to the jury improperly commented on the weight of the evidence:

The law provides the testimony of the victim alone, if believed by you beyond a reasonable doubt, need not be supported by other evidence before a finding of guilt can be returned. That is to say, the testimony of [A.L.], standing alone, if believed by you beyond a reasonable doubt, is sufficient proof to support a finding of guilt.

Id. at 816. The Texas Court of Appeals agreed with the defendant that the jury charge was an improper comment on the weight of the evidence. The Texas court observed:

Although an accurate statement of the law, we agree with Veteto that the charge still had the force and effect of an instruction that a conviction could be had only on A.L.’s testimony; it singled out her testimony.... [T]he jury charge here is a comment on the weight of the evidence which is improper.

Id. (citation omitted). Notably, Texas, like Florida, has a statutory provision authorizing the conviction of the perpetrator of a sexual assault on the uncorroborated testimony of the victim under certain circumstances. Id.

In State v. Zimmerman, 130 Wash.App. 170, 121 P.3d 1216 (2005), petition for review granted and remanded for reconsideration on other grounds, 157 Wash.2d 1012, 138 P.3d 113 (2006), the defendant was charged and convicted of one count of first-degree child molestation. Id. at 1217. The trial court instructed the jury as follows: “In order to convict a person of the crime of child molestation, as defined in these instructions, it is not necessary that the testimony of the alleged victim be corroborated.” Id. at 1218. In Zimmerman, as in this case, the trial court’s instruction mirrored a state statute. Id. at 1222.

On appeal, the defendant argued that the instruction amounted to an improper comment on the evidence. Id. at 1217. Based on controlling precedent from the Supreme Court of Washington, the Zimmerman court held that the instruction correctly stated the law and was not an improper comment on the evidence. Id,, at 1222. However, the court observed that the Washington Pattern Criminal Jury Instructions do not contain the challenged corroboration instruction. The Zimmerman court also noted that the Washington Supreme Court Committee on Jury Instructions “recommends against such an instruction.” Id. The court quoted the Committee’s recommendation:

The matter of corroboration is really a matter of sufficiency of the evidence. An instruction on this subject would be a negative instruction. The proving or disproving of such a charge is a factual problem, not a legal problem. Whether a jury can or should accept the uncorroborated testimony of the prosecuting witness or the uncorroborated testimony of the defendant is best left to argument of counsel.

Id. at 1222-23. Declaring that it shared the Committee’s misgivings about a corroboration instruction, the Zimmerman court said that it was bound by controlling precedent to hold that it was not reversible error to give such an instruction. Id. at 1223.

H. Analysis

The instruction at issue in Marr I and Marr II was requested by the defense. In Mr. Brown’s case — as in Ludy, Veteto, and Zimmerman — the prosecution requested and was the beneficiary of the instruction under review. For this reason, these cases may be viewed as the “flip side” of the Marr cases. However, the analysis of the Ludy court, the Veteto court, and the Washington Supreme Court Committee on Jury Instructions as quoted in Zimmerman is consistent with the analysis in Mart / and Marr II on the issue of whether the challenged instructions constitute an improper judicial comment on the evidence. As both Marr I and Marr II teach, a jury instruction such as the one under review that singles out the testimony of one witness for particular comment constitutes an impermissible comment on the evidence. Marr I, 470 So.2d at 708-09; Marr II, 494 So.2d at 1142. Moreover, Standard Jury Instruction 3.9 on “Weighing the Evidence” is adequate to guide the jury on the issue of the corroboration of witness testimony. Marr I, 470 So.2d at 708-09; Marr II, 494 So.2d at 1142. For these reasons, we agree with Mr. Brown that the special instruction constitutes an improper comment on the evidence.

We also conclude that the special instruction is likely to confuse and to mislead the jury. Granted, the requested instruction is a correct statement of the law. However, the history of section 794.022(1) reveals that the statute was directed at the appellate review of the sufficiency of the evidence in sexual battery cases. This consideration is entirely separate from the question of whether a jury should accept the uncorroborated testimony of the victim in the trial of a sexual battery prosecution. It follows that reading the statute to the jury is unwarranted and unnecessary. Finally, we agree with the Ludy court that telling the jury that a particular witness’s testimony does not need to be corroborated without further explanation is likely to mislead the jury.

For these reasons, we hold that the trial court erred in giving the special instruction over Mr. Brown’s timely objection. This conclusion requires us to consider the question of whether or not the error was harmful.

I. Harmless Error Analysis

Unlike the Ludy case, the testimony of the victims in this case was uncorroborated. There were no other witnesses to the acts of which Mr. Brown was accused. Neither of the two sisters had made any contemporaneous complaints about the alleged abuse. There was no physical evidence. The State did not present any evidence of any admissions by Mr. Brown or any collateral crimes evidence.

Under these circumstances, the defense’s strongest arguments for verdicts of not guilty arose from the uncorroborated nature of the sisters’ testimony, the absence of any contemporaneous complaints, and the questions raised by the lapse of almost twenty years between the end of the alleged sexual abuse and the sisters’ reports about it to law enforcement officials. The special instruction — which the trial court read to the jury twice — undermined these arguments. Defense counsel did not exaggerate when he said — as part of his objection — that the jury could interpret the special instruction as a judicial direction to convict Mr. Brown.

In addition, the prosecutor used the special instruction to counter defense counsel’s arguments. After defense counsel had completed his closing argument, the prosecutor told the jury in rebuttal:

The reason we have this instruction, that the testimony of the victim need not be corroborated in a prosecution for sexual battery [,] is for situations where these crimes were committed in secret and the disclosure is not made for a great period of time.

As we have seen, the prosecutor’s statement about the reason for the statute-based instruction was inaccurate as legislative history. More important, the prosecutor’s comments implied to the jury that the law discounted the need for corroboration of the victim’s testimony “where ... the disclosure is not made for a great period of time.” But the absence of any corroboration of charges of extremely serious crimes that went unreported by two victims for more than twenty years was certainly a proper subject for the jury to consider in reaching its verdicts.- The prosecutor’s misleading comments based on the special instruction were prejudicial to the defense. Under these circumstances, the State cannot demonstrate beyond a reasonable doubt that the error in giving the special instruction did not contribute to the verdicts. State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986).

VI. CONCLUSION

For the foregoing reasons, we reverse Mr. Brown’s judgments and sentences and remand for a new trial.

Reversed and remanded for a new trial.

LaROSE and KHOUZAM, JJ., Concur.

      . The offenses were alleged to have occurred on unspecified dates between January 1, 1983, and August 1, 1987. The 1982 version of the statute provided: "A person 18 years of age or older who commits sexual battery upon, or injures the sexual organs of, a person 11 years of age or younger....” The words "11 years of age or younger” were replaced by "less than 12 years of age” effective October 1, 1984. See ch. 84-86, § 1, at 262, Laws of Fla. In all other respects, the statute remained unchanged during all pertinent periods in this case.

      . In accordance with section 775.082(1), Florida Statutes, as it provided between 1982 and 1987, Mr. Brown is required to serve no less than twenty-five years on each sentence before he will be eligible for parole.

      . Marr v. State (Marr I), 470 So.2d 703 (Fla. 1st DCA 1985) (en banc), approved, Marr v. State (Marr II), 494 So.2d 1139 (Fla.1986).

      . Mr. Brown has not argued that the trial judge failed to comply with rule 3.985. Therefore, we need not decide whether the trial judge’s remarks on the record were sufficient to comply with the rule.

      . Section 794.022 in the 1974 supplement contains an erroneous reference to section 794.021 (ignorance of victim’s age no defense). This was corrected in the 1975 version of the statute.

      . For an example of a decision imposing such a requirement, see Smith v. State, 239 So.2d 284 (Fla. 2d DCA 1970), quashed, 249 So.2d 16 (Fla.1971).

      . These instructions now form the first part of Standard Jury Instruction 3.9 on "Weighing the Evidence.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Franchot BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1592.
    District Court of Appeal of Florida, Third District.
    May 27, 2009.
    Rehearing Denied June 24, 2009.
    Michael Garcia Petit, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before COPE and WELLS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Defendant-appellant Franchot Brown appeals an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, following an evi-dentiary hearing. In his postconviction motion, the defendant argued that his counsel was ineffective in that his attorney ignored an obvious defense, failed to prepare defendant to testify at trial, and “opened the door” to defendant being impeached with evidence of other crimes. The trial court denied relief following an evidentiary hearing.

Because the trial court’s ruling is supported by competent substantial evidence, we affirm the order denying relief. See Montenegro v. State, 876 So.2d 709 (Fla. 3d DCA 2004); Machin v. State, 867 So.2d 514 (Fla. 3d DCA 2004); Williams v. State, 808 So.2d 267 (Fla. 3d DCA 2002).

Affirmed.


text:
    Persidio JIMENEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-287.
    District Court of Appeal of Florida, Third District.
    May 27, 2009.

      Persidio Jimenez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the trial court’s order finding that Jimenez violated conditions of his probation. See Isaac v. State, 971 So.2d 908, 909 (Fla. 3d DCA 2007). On remand, the clerk of the circuit court shall take the necessary measures to reflect entry of the trial court’s order of December 12, 2008, which in part corrected Jimenez’s sentence from ten to five years in circuit court case number 06-42951.

Affirmed and remanded to the clerk of the circuit court with instructions.

      . For example, the circuit court clerk's docket for 06-42951 reveals that only a motion to correct a clerical error at sentencing was recorded on December 16, 2008. Recordation of the December 12th order should also assist the Department of Corrections in updating Jimenez’s records.


author: COPE, J.

text:
    Heracio JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2592.
    District Court of Appeal of Florida, Third District.
    May 27, 2009.
    Heracio Johnson, in proper person.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

This is an appeal of an order summarily denying the motion of Heracio Johnson for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

In the underlying case, the defendant was placed on community control, which was revoked on September 3, 2006. In 2008, defendant-appellant Johnson timely filed this rule 3.850 motion.

In Ground 1, the defendant states that he is entitled to an additional 268 days of credit for jail time served in this case prior to the September 3, 2006 sentencing hearing. The defendant argues that his counsel was ineffective for failing to obtain a proper award of credit for time served.

The trial court denied the motion, reasoning that the claim had been made previously in a motion based on Florida Rule of Criminal Procedure 3.800(a), which had been denied on April 1, 2008. As the State concedes, that ruling is not a bar to the current motion. While it is true that the rule 3.800(a) motion alleged the same claim for credit for jail time previously served, the State response to the rule 3.800(a) motion misinterpreted the claim as being a claim for time served after sentencing. Based on the State response, the trial court’s April 2008 order was a denial without prejudice to the defendant to seek postconviction credit from the Department of Corrections. The request for credit for jail time served prior to the revocation of community control was never ruled on. Because the postconviction record now before us does not conclusively refute the defendant’s claim, we remand for further consideration. See Fla. R.App. P. 9.141(b)(2)(D).

We also reverse for further proceedings on defendant’s Ground 3, ■ in which the defendant claims ineffective assistance of counsel in connection with his plea to the affidavit of violation of community control. The defendant maintains that counsel advised him if he pled, he would receive a forty-two-month sentence and instead, he received a greater sentence. The postcon-vietion record now before us does not contain the colloquy from the September 3, 2006 plea. We therefore remand for further proceedings on Ground 3. We affirm the trial court’s denial of relief on Ground 2.

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

       On remand it may be more efficient simply to treat Ground 1 as being a claim for additional credit for time served, instead of a claim alleging ineffective assistance of trial counsel.


text:
    S.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1482.
    District Court of Appeal of Florida, Third District.
    May 27, 2009.
    Rehearing Denied June 17, 2009.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.

      Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before RAMIREZ and SALTER, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

S.R., a juvenile, appeals her adjudication of delinquency based on the trial court’s denial of her motion for judgment of acquittal. Finding that the State failed to rebut her prima facie case of self-defense, we reverse the adjudication and remand with instructions to discharge S.R.

The State filed a petition for delinquency against S.R. charging her with battery. The charge stemmed from an incident with her step-father, Nelson Jerez. Jerez testified at trial that he returned home and could hear through the apartment door S.R., a thirteen-year old, and her mother screaming at each other. Jerez entered and told S.R. to stop disrespecting the house and screaming at her mother. S.R. told him to mind his own business. S.R. was in the hall, the only way to get to the apartment’s front door. Jerez stood between S.R. and the door. One or both of them cursed at the other. S.R. got up, got in Jerez’s face and asked him what he was going to do. The two continued arguing and S.R. pushed Jerez out of the way. Jerez told S.R. that she had done it this time and told her he was going to call the police. S.R. ran out the front door.

The evidence further disclosed that Jer-ez is 6'2" tall and weighs 238 pounds. He admitted on cross that S.R. had seen his violent confrontations with her mother, that he has “head-butted” her mother, and that he yells and screams at the mother. He admitted once shoving and pulling S.R. He also testified that S.R. causes a lot of strife in the household.

The State presented the testimony of the mother. She testified that she saw S.R. push Jerez out of her way. The two were arguing.

S.R. asserted self-defense. She testified that Jerez walked closer to her, was screaming in her face, cursing and spitting at her. She tried to get away from him and told him to move. She was in the only hallway leading to the door. She testified that she finally pushed him out of the way so she could leave. S.R. has seen Jerez yell at her mother; Jerez has shoved S.R. and pulled S.R.’s hair in the past.

The defense moved for a judgment of acquittal, arguing self-defense. The court denied the motion and adjudicated S.R. This appeal follows.

The standard for reviewing the denial of a motion for judgment of acquittal is de novo. E.A.B. v. State, 933 So.2d 676 (Fla. 2d DCA 2006). Once evidence of self-defense is presented, the State must prove beyond a reasonable doubt that the actions were not taken in self-defense to uphold the conviction. S.D.G. v. State, 919 So.2d 704 (Fla. 5th DCA 2006); S.J.C. v. State, 906 So.2d 1115 (Fla. 2d DCA 2005); Guffey v. State, 837 So.2d 1068 (Fla. 2d DCA 2003). Here, the State emphasizes that S.R. purposefully pushed Jerez; it was not an accident. This, however, is insufficient to rebut the self-defense claim.

Self-defense does not focus on whether the act was purposeful. It focuses on whether the act was done to defend against the imminent use of force against oneself. E.A.B., 933 So.2d at 678. Here, S.R. knew of Jerez’s prior violent acts. Jerez testified that he had never hit his wife but had “head-butted” her. There was testimony that he had shoved S.R. in the past, and had pulled her hair. By physically blocking her in the hallway, he made it reasonable for S.R. to feel threatened, and not unreasonable for her to want to escape the situation by exiting the apartment. S.R. did not use unreasonable force, in view of the situation. Jerez is considerably larger than S.R. S.R.’s testimony was unimpeached that she reasonably believed this conduct was necessary to defend against Jerez’s capability to strike her. E.A.B., 933 So.2d at 678; D.M.L. v. State, 773 So.2d 1216 (Fla. 3d DCA 2000). The State did not rebut this claim by any evidence. D.M.L.; Guffey.

“Once Appellant produced evidence supporting her claim of self-defense, the State was required to prove beyond a reasonable doubt that Appellant’s actions were not taken in self-defense to sustain a finding of guilt.” S.D.G., 919 So.2d at 705. Other than making room for herself to escape the situation, by pushing the victim, S.R. had no means to withdraw from the situation. The State did not prove beyond a reasonable doubt that S.R. did not act in self-defense. The motion for judgment of acquittal should have been granted.

The adjudication is therefore vacated, and this case is remanded with instructions to discharge S.R.

Adjudication vacated; remanded with instructions.

      . Although S.R. did not witness this incident, she had been told about it and there is no dispute that the incident occurred.

      . For the benefit of the family when they read this, no one needs to claim a victory because of this ruling. Jerez did the right thing when he called the police. S.R. did the right thing when she sought to cool off by leaving the apartment. S.R. did the wrong thing by disrespecting the adults in her home. From the distance of the appeals court, we will hope that some counseling is available and is productive. If each of the three family members were voluntarily to “attend and observe” two hours of injunction testimony in the domestic violence court (on separate days), each would be persuaded that the time to work out these issues is now, and not at a later and more serious juncture.


author: LAGOA, Judge.

text:
    Randi HOLMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-620.
    District Court of Appeal of Florida, Third District.
    May 27, 2009.
    Randi Holmes, in proper person.

      Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   LAGOA, Judge.

Appellant, Randi Holmes (“Holmes”), appeals the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In the motion, Holmes asserts that he was entitled to additional credit for time served when his probation was revoked and he was resentenced. For the foregoing reasons, we affirm the trial court’s denial.

On March 27, 2006, Holmes was taken into custody on probation violation affidavits, and on September 28, 2007, Holmes entered an admission to the probation revocation charges. Prior to the admission by Holmes, extensive discussions occurred between the trial court, the State, and defense counsel, as to the amount of credit for time served that Holmes would be awarded.

After the trial court questioned Holmes as to the voluntariness of the plea, the trial court made the following finding: •

I accept your admission to this violation of probation. Pursuant thereto [sic] revoke your probation, adjudicate you guilty of those crimes, I sentence to you [sic] 8.1 years in State prison with credit for all time served since the affidavit was filed in these cases which is I am told dated March 27, 2000—
State: Actually March 28.
Probation Office: 2006.
Court: Okay.
⅜: ⅜ ⅜ ⅜
The Court: Prepare a court order that says he shall receive credit for all time since the affidavit was filed against himself while he was in custody March 28, '06. That will be provided to Corrections.

On January 24, 2008, Holmes filed a motion to correct illegal sentence arguing that he was entitled to credit for 1,744 days of time previously served and that the trial court had awarded him credit only for time starting with the filing of the affidavit of violation of probation on March 28, 2006.

On February 19, 2008, the trial court in a written order denied the motion and stated as follows:

On March 27, 2006, the defendant was taken into custody on probation violation affidavits filed in the above-styled cases. On September 28, 2007, the defendant accepted a court offer of 8.1625 years in state prison with jail credit for the time that he had spent incarcerated on the probation violation affidavits in the instant cases. See Transcript of September 28, 2007, attached. As such, he is only entitled to jail credit which he knowingly accepted at the time of the plea. See Hines v. State, 906 So.2d 1137 (Fla. 3d DCA 2005).

This appeal ensued.

This Court has repeatedly held, and we do so again hold, that while a defendant is entitled to receive credit for the time served in jail before sentencing, a defendant may waive credit for the time served as part of a plea agreement. The waiver, however, must be clearly shown on the record. See Johnson v. State, 974 So.2d 1152, 1152 (Fla. 3d DCA 2008) (“a provision in a plea agreement that the defendant is to be awarded credit for time served from a specific date effectively waives any claim for time served before that date”); Hines v. State, 906 So.2d 1137, 1138 (Fla. 3d DCA 2005).

On appeal, Holmes, however, argues that no waiver of credit for time served is apparent from the plea colloquy. We disagree. In this case, a review of the plea colloquy reflects that Holmes waived any credit for time served prior to the March 28, 2006, probation violation affidavit. As such, we conclude that the trial court did not err in finding that the plea colloquy conclusively demonstrates that Holmes waived his right to be awarded credit for any additional time served, other than that which he expressly agreed to at his plea colloquy. Accordingly, we affirm the trial court’s denial of the motion for postconviction relief.

Affirmed.

      . Specifically, the following exchange occurred:
      Defense Counsel: State’s offer was eight years minus one year credit for time served. That’s the bottom line of what this offer is. It's a seven-year offer to resolve all the matters.
      State: I just want to be clear Your Honor, it’s not the State's offer. Second of all, what the scoring comes out to is 8.1625 years at the bottom of his guidelines. And my understanding is that credit will be given for the time that the affidavit was filed March 27, 2006.
      * * * *
      Court: ... Does he wish to accept that or will be concluding this hearing now?
      Defendant: Take the seven years.
      Court: Excuse me?
      Defendant: Take the seven years.
      Court: That's 8.1 actually with time that he received for credit; correct?
      Defense Counsel: No. It’s before credit.
      State: Before credit 8.162 years.
      Court: Right. But he is saying seven years. It's 8.1.
      Defense Counsel: He is getting credit for how much time?
      State: Since March 27, 2006.
      Court: Okay.
      Defense Counsel: So he is getting credit for more than a year. He is getting credit for a year and five months. He just wants to be clear what he is getting credit for.
      Court: Are we ready?
      Defense Counsel: Are we ready?
      Defendant: Yes, sir. No probation following behind none of this?
      Court: No, sir.
      Defendant: All right.


author: WARNER, J.

text:
    Steven LAMOUR and Kathleen Lamour, husband and wife, Appellants, v. DEER RUN PROPERTY OWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, and White Fences Property Owners Association, Inc., Appellees.
    No. 4D08-3960.
    District Court of Appeal of Florida, Fourth District.
    May 27, 2009.

      Bennett S. Cohn of the Law Offices of Bennett S. Cohn, West Palm Beach, for appellants.
    David A. Core of St. John, Core & Lemme, P.A., West Palm Beach, for appellee Deer Run Property Owners Association, Inc.
   On Motion Requesting Issuance of Written Opinion

WARNER, J.

Appellants filed a motion requesting issuance of a written opinion pursuant to Florida Rule of Appellate Procedure 9.330(a). We withdraw our previously issued opinion and substitute the following in its place.

The appellants challenge a temporary injunction, claiming they did not have notice of the hearing, thereby denying them due process. Because notice was sent to their attorney with an adequate amount of time to prepare and attend the hearing, we affirm.

In December 2004, the Lamours, who own a lot in the Deer Run community in Loxahatchee, Florida, sued the Deer Run Property Owners Association regarding use of an easement. The Lamours’ lot has a recorded easement for a road called Buck Ridge Trail across it. The easement is set forth in the declaration of covenants and restrictions for the Deer Run community.

On March 15, 2007, while the declaratory judgment action was pending, the Lam-ours placed two large piles of dirt across the road easement to block it. The next day, a Friday, Deer Run filed an emergency motion for temporary injunction against the Lamours to prevent this blockade of the easement which interfered with access by emergency vehicles to other properties in the development.

On that Friday morning, Deer Run obtained a hearing date and faxed a notice of hearing to the Lamours’ attorney at 9:23 a.m. The notice stated that the hearing would be held on Monday, March 19, 2007 at 10:00 a.m. The attorney for the Lamours did not appear at the hearing the following Monday. The trial court conducted the evidentiary hearing and entered an order granting temporary injunc-tive relief against the Lamours. The order recited that the plaintiffs had been given notice but did not appear.

The Lamours filed a motion to dissolve the temporary injunction in November 2007, some six months after its entry. At the hearing on this motion to dissolve, held in September 2008 (seventeen months after its entry), they asserted their attorney had been out of town on a ski trip and that his office was closed between March 16 and March 19. However, he had not filed a notice of unavailability. Because their attorney did not receive actual notice, they claimed that the court erred in continuing with the temporary hearing. The trial court denied the motion to dissolve, prompting this non-final appeal. See Fla. R.App. P. 9.130(a)(3)(B).

The trial court did not abuse its discretion in denying the motion to set aside or vacate the temporary injunction which had been entered more than seventeen months earlier on March 19, 2007. The Lamours’ attorney was faxed the notice on March 16, 2007, some three days prior to the hearing. The fact that the attorney did not receive the fax because he was out of town, and apparently left no one in charge of his office, does not change the fact that proper notice was given to the attorney.

Florida Rule of Civil Procedure 1.080(b) provides:

When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney.... Service on the attorney or party shall be made by delivering a copy.... Delivering a copy within this rule shall be complete upon: ... (5) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy shall be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete. Service by delivery after 5:00 p.m. shall be deemed to have been made on the next day that is not a Saturday, Sunday, or legal holiday.

The fax by Deer Run’s lawyer to the Lamours’ lawyer arrived at 9:23, and thus delivery was complete at that time. The notice was sent within a reasonable time prior to the hearing and provided sufficient time for preparation to defend against the motion. For an emergency hearing on a temporary injunction, the notice given was reasonable. See Fla. R. Civ. P. 1.610(a)(2).

The cases cited by the Lamours are all distinguishable. In Pecora v. Pecora, 697 So.2d 1267 (Fla. 5th DCA 1997), the court concluded that an injunction was entered without notice, when the judge merely telephoned the parties to discuss the merits on the day the order was entered. Nevertheless, the court affirmed the temporary injunction because it satisfied the requirements of an injunction without notice. In Florida High School Activities Ass’n v. Benitez, 748 So.2d 358 (Fla. 5th DCA 1999), a complaint for an injunction was faxed to FHSAA at its offices in Gainesville at 10:19 a.m. That same day at 11:08 a.m., a notice of hearing on the request for injunction was sent giving notice of a hearing at 1:30 that afternoon. The court held this was not adequate notice. In contrast, Deer Run provided an entire business day plus two weekend days of notice. Cortina v. Staffing Source, Inc., 843 So.2d 373 (Fla. 2d DCA 2003), involved a notice of hearing for a temporary injunction provided to an unrepresented defendant at 10:55 a.m. for a hearing at 11:25 a.m. the following day. At the hearing the defendant requested a continuance so she could find an attorney to represent her but the trial court entered the injunction. The Second District determined that the amount of time was unreasonable where the defendant had to both obtain the services of an attorney and collect evidence to defend the complaint. As the Lamours were represented and did not need to find counsel, we conclude that reasonable notice was given of the hearing on the tempo-' rary injunction.

The Lamours also complain that no transcript is available of the hearing on the temporary injunction. No rule requires a transcript. What the rule requires is that an injunction order specify the reasons for its entry, describing in detail the acts sought to be restrained. The trial court entered a lengthy order including all of the facts upon which the injunction was entered.

Affirmed.

STEVENSON and DAMOORGIAN, JJ., concur.

      . We do not rule, however, that such a notice would have been adequate to prevent the scheduling of the temporary injunction hearing. See Delio v. Landman, 987 So.2d 733, 734 n. 1 (Fla. 4th DCA 2008).


text:
    Stephon HEARN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-222.
    District Court of Appeal of Florida, Third District.
    May 27, 2009.
    Stephon Hearn, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and SUAREZ, JJ.
   COPE, J.

This is an appeal of an order barring further pro se postconviction motions by defendant-appellant Stephon Hearn. To make a long story short, the trial court entered an order barring the defendant from further pro se postconviction filings without ever having actually issued an order to show cause to the defendant. See Jordan v. State, 760 So.2d 973, 974 (Fla. 2d DCA 2000). We therefore reverse the order now before us, but without prejudice to the trial court to issue a show cause order if the court chooses to do so.

Reversed.


author: PER CURIAM. RAMIREZ, J.,

text:
    Abel HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-725.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.

      Before RAMIREZ and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

ROTHENBERG, J., and SCHWARTZ, Senior Judge, concur.

RAMIREZ, J.,

(dissenting).

I dissent because the State’s admitted discovery violation in this case materially affected defense counsel’s trial strategy and this warrants a new trial.

Abel Hernandez was convicted after a jury trial of petit theft and burglary for stealing plastic' tubing inside an unoccupied dwelling. In opening statement, defense counsel told the jury that Hernandez had nothing to do with the theft of the plastic tubing, and that he had been charged with burglary and theft simply because he was a homeless person who was sleeping in the vicinity of the house and his fingerprint was found on the outside of the house but not inside the house.

The owner of this unoccupied house testified at trial that he arrived at the property on September 29, 2007, and found that various items had been removed. The house had been rented out to two tenants who had moved out some time prior to the owner’s arrival on September 29th. The owner had not been to the property for at least three weeks. Upon his arrival he saw that three air conditioning units had been removed from the outside wall, all of the copper wiring had been stripped from inside the house, and plastic tubing had been ripped out. He testified that he had not given Abel Hernandez permission to enter the house.

The lead investigator in the case, Detective Desiree Serrano, testified at trial that Abel Hernandez was arrested after she received “a latent hit” on a fingerprint that was processed from the burglarized house. Hernandez was found crossing the street in the area where he slept outside on the street. When he was taken into custody, Hernandez did not have any property from the house in his possession. When he was questioned by the detective, Hernandez denied going into the house. According to the detective, Hernandez said he entered the fenced-in yard of the house and took a plastic covering off a water heater that was outside the house. When the detective asked Hernandez why his prints would be on the window of the house, Hernandez said he didn’t know. Hernandez said he had entered the house at some point in time, but by then other people had taken everything from the house.

On cross-examination, defense counsel asked the detective if the information she received indicated if the latent fingerprint was taken from the inside of the window or the outside of the window. The detective responded, “On the property receipt it says inside the residence.” Defense counsel asked if the detective was referring to a document entitled, “Burglary Scene Report.” The detective said she was not referring to that document; she was referring to a property receipt which was submitted to the lab. The detective said she had received a copy of that property receipt. Defense counsel then showed the detective a document which indicated only that the print had been taken from the east end of the window.

Officer Ramon Martinez testified that he responded to the house to collect evidence. He dusted for fingerprints on any surface where he felt he could obtain a print. He lifted a latent print from a bedroom window and from a piece of wood in the dining room. When the prosecutor asked him if the print on the window was lifted from the inside of the window or the outside of the window, Officer Martinez said he needed to refer to a document in his possession to answer that question. The officer referred to the document and then testified that the print had been lifted from the inside of the window.

On cross-examination, Officer Martinez acknowledged that neither his report nor the latent fingerprint card indicated that the print had been found on the inside of the bedroom window. The only document which indicated that the print was found on the inside of the window was a property receipt. Officer Martinez did not bring the receipt to court for the trial.

Defense counsel asked the court for a sidebar conference at the conclusion of the testimony of Officer Martinez. The judge denied defense counsel’s request.

The State’s final witness at trial was a latent fingerprint examiner who testified that the latent print taken from the window of the house matched the fingerprint of Abel Hernandez. On cross-examination, the witness testified that the latent fingerprint card did not indicate whether the print was found on the inside of the window or the outside of the window. He stated that information was contained in a property receipt which he had brought to court.

The State rested its case. Defense counsel was finally given the opportunity to argue that the State had committed a discovery violation by failing to disclose the property receipt which indicated that the print had been found on the inside of the window. Counsel told the court that none of the documents in his possession indicated that the print had been found on the inside of the window, and the State had never given him a copy of the property receipt. Counsel also told the court that when he deposed the officer who lifted the print from the window, that officer had not produced any property receipt and the officer said he did not recall whether the print had been lifted from the inside or the outside of the window. Defense counsel argued that he had been prejudiced by this discovery violation because the defense he had presented to the jury in his opening statement had been based on the State’s inability to establish that Hernandez’s print had been found inside the house.

The court asked defense counsel why he had not filed a motion to compel production of the property receipt. Defense counsel told the judge he could not have filed a motion to compel production of that document because he had no idea that such a document existed. The judge then asked defense counsel how he was prejudiced. The judge acknowledged that the opening statement would have been different, and asked what defense counsel would have done differently in terms of trial preparation. Defense counsel admitted that his trial preparation would not have changed, but that his trial strategy in terms of his opening statement and the testimony he elicited on cross-examination would have been different if he knew about the property receipt.

The prosecutor conceded that she had committed a discovery violation by not providing a copy of the property receipt to the defense. The prosecutor claimed that the violation was inadvertent.

The court found that the defense had not been prejudiced by the State’s failure to disclose the property receipt, and denied defense counsel’s motion for a mistrial. In closing argument, the State repeatedly focused the jury’s attention on the evidence presented at trial which established that Hernandez’s print had been found on the inside of the window.

After initially sending a note to the judge indicating that they could not reach a unanimous verdict, the jury found Hernandez guilty as charged of burglary and petit theft. The court entered adjudications of guilt and sentenced Hernandez to a thirty four month term of imprisonment for the burglary conviction, and time served for the petit theft conviction.

When a trial court receives notice of a discovery violation, it must conduct an inquiry into the circumstances surrounding the violation. See Richardson v. State, 246 So.2d 771 (Fla.1971). In conducting a Richardson hearing, the trial court must inquire as to whether the violation “(1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation.” State v. Evans, 770 So.2d 1174, 1183 (Fla.2000). As to the third factor:

[T]he defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred. Trial preparation or strategy should be considered materially different if it reasonably could have benefited the defendant.

State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995) (emphasis added).

In its decision in Scipio v. State, 928 So.2d 1138, 1149 (Fla.2006), the Florida Supreme Court clarified the meaning of the term “procedural prejudice” in the context of a State discovery violation:

An analysis of procedural prejudice does not ask how the undisclosed piece of evidence affected the case as it was actually presented to the jury. Rather, it considers how the defense might have responded had it known about the undisclosed piece of evidence and contemplates the possibility that the defense could have acted to counter the harmful effects of the discovery violation. Evans, 721 So.2d at 1210. By contrast, an analysis of substantive prejudice would ask whether it was possible that the error affected the jury’s verdict. Schopp, 653 So.2d at 1021. While this standard itself is a high one for the State to overcome, it is of an entirely different quality than a procedural prejudice analysis. Id. at 1019.

In denying the defense motion for mistrial based on the State’s discovery violation in failing to disclose the prior written statement of Officer Martinez, the trial judge in this case determined that the defense had not been prejudiced by the violation. However, this finding cannot be squared with the Florida Supreme Court’s definition of procedural prejudice in Scipio. As defense counsel explained to the trial judge, the defense he was presenting at trial prior to the disclosure of the property receipt was based in large part on the fact that the State had no evidence which established that Abel Hernandez had ever been inside the house in question. In his opening statement, defense counsel told the jury that Hernandez had been charged because his fingerprint was found on the outside of the house but not inside the house. The new evidence made a liar out of defense counsel and totally destroyed his credibility with the jury. Certainly, defense counsel established procedural prejudice, and the trial court therefore erred in denying the motion for mistrial.

In Muniz v. State, 988 So.2d 1194 (Fla. 2d DCA 2008), the Second District Court of Appeal reversed a criminal conviction and remanded for a new trial based on circumstances similar to those in the instant case. The issue in Muniz concerned a trial judge ruling allowing the State to call rebuttal witness Slocum who had not been disclosed to the defense prior to trial. Id. at 1196. The trial judge ruled that any prejudice to the defense from the late disclosure of the witness could be cured by allowing the defense to depose the witness during a lunchtime recess in the trial. Id. The defense took the deposition of the witness, and the witness then gave testimony which contradicted testimony which had previously been given by a defense witness, Mrs. Muniz. Id. The appellate court found that the procedural prejudice to the defense had not been cured due to the mid-trial timing of the disclosure of the rebuttal witness’ testimony:

Although the court attempted to cure the violation by allowing defense counsel to take Slocum’s deposition during the lunch recess, this remedy provided little relief because the State had already presented its case-in-chief and the defense had already presented its evidence. At that point, the defense could not change its trial preparation or strategy, including its decision to call Mrs. Muniz as a witness. We agree with Muniz that the trial court erred in failing to conduct an adequate Richardson inquiry as to the discovery violation.

Id. at 1197; see also H.T. v. State, 967 So.2d 374, 376 (Fla. 3d DCA 2007) (procedural prejudice from State’s discovery violation was “obvious and substantial” where State did not disclose until the middle of adjudicatory hearing that juvenile’s statements were made not spontaneously but pursuant to custodial questioning by law enforcement).

Just as in Muniz and H.T., the fact that in this case the evidence which the State failed to disclose in discovery was not disclosed until the middle of the trial after defense counsel had given his opening statement and after defense counsel had cross-examined the lead detective established procedural prejudice because the defense trial strategy was materially hindered by the State’s discovery violation. Thus, the trial court erred in finding that the defense had not been procedurally prejudiced by the State’s discovery violation.

The error was not harmless. The Florida Supreme Court has made it clear that the harmless error standard for a State discovery violation does not focus on the discovery violation’s effect on the verdict, but on the effect of that violation on defense counsel’s trial preparation or strategy:

We now clarify that Schopp’s harmless error standard does not focus on whether the discovery violation would have made a difference in the verdict. Such an analysis would make the standard for procedural prejudice identical to substantive prejudice. Instead, we reaffirm our statements in Schopp that the inquiry is whether there is a reasonable possibility that the discovery violation “materially hindered the defendant’s trial preparation or strategy.” Schopp, 653 So.2d at 1020. Under Schopp, only if the appellate court can determine beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless. Id. at 1021.

Scipio, 928 So.2d at 1149-1150. In the present case, had the State disclosed the property receipt defense counsel certainly would not have told the jury in opening statement that the evidence at trial would not establish that the print was found on the inside of the house. Likewise, defense counsel certainly would not have cross-examined the lead detective concerning whether the print had been found on the outside or the inside of the window. Additionally, the State took full advantage of these tactical errors by the defense caused by its own discovery violation in repeatedly emphasizing in its closing argument the fact that the defendant’s print was found on the inside of the window.

In my view, the record in this case conclusively demonstrates a reasonable possibility that the discovery violation materially hindered Hernandez’s trial strategy, and therefore that violation was not harmless error. Accordingly, I would reverse Hernandez’s convictions and sentences and remand for a new trial.

      . The standard of review on this issue is abuse of discretion. Cox v. State, 819 So.2d 705 (Fla.2002).
      “However, where the State commits a discovery violation, the standard for deeming the violation harmless is extraordinarily high. A defendant is presumed to be procedurally prejudiced 'if there is a reasonable probability that the defendant's trial preparation or strategy would have been materially diffei'ent had the violation not occurred.’ Pomeranz v. State, 703 So.2d 465, 468 (Fla.1997) (quoting State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995)). Indeed, ‘only if the appellate court can say beyond a reasonable doubt that the defense was not procedurally prejudiced by the discovery violation can the error be considered harmless.’ Id." Cox, 819 So.2d at 712.


text:
    Manzy PINERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2654.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before COPE and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Following proceedings held in full compliance with Florida Rule of Criminal Procedure 3.830, the appellant was convicted of direct criminal contempt upon a showing that he was profane and disrespectful to the court. No error has been demonstrated.

Affirmed.


text:
    Sharah BRICE, Appellant, v. PAN AM HORIZONS FEDERAL CREDIT UNION, Appellee.
    No. 3D08-2746.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.
    Sharah Brice, in proper person.
    Carlton Fields and Natalie J. Carlos, Miami, for appellee.

      Before RAMIREZ, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Cheese & Grill Rest. Inc. v. Wachovia Bank, N.A., 970 So.2d 372 (Fla. 3d DCA 2007).


text:
    Thomas CASTELLANOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-826.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.
    Thomas Castellanos, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.140(g).


author: CORTINAS, J.

text:
    The STATE of Florida, Appellant, v. E.G., a juvenile, Appellee.
    No. 3D08-2053.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellee.
    Before COPE, RAMIREZ, and CORTINAS, JJ.
   CORTINAS, J.

The State of Florida (“State”) appeals an order of the trial court that discharged a petition of delinquency filed against ap-pellee, E.G., a juvenile, because appellee’s ninety-day speedy trial period expired. We reverse.

At the hearing on the motion to dismiss, the trial found that, pursuant to Florida Rule of Juvenile Procedure 8.090(d), the time period for holding the adjudicatory hearing had expired. The State asked the trial court to allow it the time period provided in Florida Rule of Juvenile Procedure 8.090(m). When the ninety-day speedy trial period expired, the trial court should have ordered appellee to be brought to trial within ten days. Fla. R. Juv. P. 8.090(m).

In the trial court’s order granting the motion to dismiss, the judge clearly set forth the ground for dismissal. In the order, the trial court wrote:

This Cause having come before the Court on the Respondent’s Motion to Dismiss the Petition, hereby grants the Motion for the reasons set forth in the Agreed Statement of Facts of the proceeding that occurred in court on July 11, 2008, in front of the Honorable Mercedes Bach, who found that the speedy trial period had run (emphasis added).

Thus, the trial court unequivocally stated that it based its dismissal of charges on the Agreed Statement of Facts. Moreover, although appellee complains that it did not sign the agreed statement of facts, appellee’s counsel never voiced a single objection concerning those facts. Here, the record is absolutely clear that trial court based its dismissal of charges on the statement of facts before us. Those facts, when reviewed under Fla. R. Juv. P. 8.090(m), require reversal as the trial court erred by dismissing the petition against appellee without first giving the State the ten-day recapture period to try the ease against appellee. Fla. R. Juv. P. 8.090(m); State v. M.M., 867 So.2d 439, 440 (Fla. 4th DCA 2004).

We reverse the order of dismissal and remand for further proceedings.

Reversed and remanded.

      . Florida Rule of Juvenile Procedure 8.090(m) addresses die remedy for failure to try a juvenile within the specified time. Subsection (3) states that if the motion for discharge is legally sufficient the court "shall order that the respondent be brought to trial within 10 days.” Fla. R. Juv. P. 8.090(m)(3).

      . The record of the proceeding had been lost by the court reporter and this Court had earlier relinquished jurisdiction so that the record could be reconstructed.


text:
    Tomas A. MANRIQUE, Appellant, v. UNIVERSAL FINANCE OF MIAMI, INC., Appellee.
    No. 3D08-1697.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.
    Tomas A. Manrique, in proper person.
    Robinson & Associates, Raymond L. Robinson and Douglas C. Hiller, Coral Gables, for appellee.
    Before COPE and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of a summary judgment in a civil action. The summary judgment now before us was entered after a final judgment of the United States Bankruptcy Court for the Southern District of Florida, which (inter alia) allowed the plaintiff-appellee to “proceed in State Court for further proceedings for enforcement hereof consistent with this order.” Relitigation of the matters determined in the United States Bankruptcy Court is not permitted. See E.I. Dupont de Nemours & Co., Inc. v. Melvin Piedmont Nursery, 971 So.2d 897 (Fla. 3d DCA 2007). The defendant-appellee has not carried the burden of demonstrating any reversible error.

Affirmed.


author: SUAREZ, J.

text:
    Kenneth KNIGHT, Appellant, v. Maria H. KNIGHT, Appellee.
    No. 3D08-195.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.
    David H. Freedman, for appellant.
    Maria H. Knight, in proper person.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Kenneth Knight appeals from an Amended Final Judgment of Dissolution of Marriage. We affirm in part and reverse in part.

We reverse solely the trial court’s award of attorney’s fees and find the wife has the present ability to pay her own attorney’s fees. We affirm the trial court’s Amended Final Judgment of Dissolution of Marriage in all other respects.

Affirmed in part, reversed in part.


text:
    Kevin D. HARVEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1127.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.
    Rehearing Denied July 8, 2009.
    Kevin D. Harvey, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Kevin D. Harvey seeks an order granting a petition for mandamus directing the lower court to ‘reset’ the time for filing a Florida Rule of Criminal Procedure 3.850 petition. We treat his petition as a notice of appeal, and reverse and remand.

Harvey was convicted in Florida in 1989, but was immediately turned over to federal authorities to begin serving a twenty-year federal sentence. Harvey was incarcerated in federal prison in Alabama until he was released in 2007. In 2008, Harvey was returned to Florida to begin serving his 1989 state sentence. He filed a motion with the trial court to ‘reset’ the time for filing a rule 3.850 petition, asserting that he had been out of the jurisdiction and had no access to Florida materials in order to adequately prepare a post-conviction petition. The trial court summarily denied the motion.

We treat this petition as an appeal from the trial court’s summary denial of Harvey’s motion to reset the time for filing a rule 3.850 petition. See, e.g., Duque v. State, 983 So.2d 35 (Fla. 3d DCA 2008) (treating petition for mandamus as a notice of appeal); accord Reddick v. Lando, 673 So.2d 92 (Fla. 3d DCA 1996). The trial court should have considered that an un-counseled prisoner held in an out-of-state jurisdiction who is not represented by counsel and who does not have access to Florida legal materials has been deprived of meaningful access to Florida courts. See Ruiz v. State, 3 So.3d 385 (Fla. 2d DCA 2009); Ramsey v. State, 965 So.2d 854 (Fla. 2d DCA 2007); Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997). In those cases, it appeared that the time for filing a postconviction motion was, indeed, tolled.

We therefore remand the issue to the trial court, and direct it to determine whether in Harvey’s case the time for filing a rule 3.850 petition was tolled because of his continuous incarceration in federal prison since 1989. If the trial court so determines, it should allow as timely filed a post-conviction petition filed within two years from Harvey’s return to Florida’s prison system, and consider whether any petition so filed states grounds for relief.

Reversed and remanded.

      . Harvey directly appealed from his Florida convictions in 1990, but his counsel filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and this Court affirmed. Harvey filed an unsuccessful rule 3.850 petition in 1992.


text:
    Marlene CUETO, Appellant, v. Nelson MENDOZA, Appellee.
    No. 3D08-290.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.
    Marlene Cueto, in proper person.
    Kurt R. Klaus, Jr., Miami, for appellee.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   PER CURIAM.

Appellant Marlene Cueto appeals the trial court’s Final Judgment of Injunction for Protection Against Repeat Violence entered against her and on behalf of appellee Nelson Mendoza.

Ms. Cueto has not provided this Court with the record or a transcript from the hearing held on January 8, 2008. The burden lies with the appellant to supply the reviewing court with the record on appeal and to demonstrate reversible error. Fla. R.App. P. 9.200(e) (2007); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980). Accordingly, we affirm the trial court’s Final Judgment of Injunction for Protection Against Repeat Violence.

Affirmed.


author: SHEPHERD, J.

text:
    James Russell WARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-685.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Michael E. Hantman and Paulette R. Taylor, Assistant Attorneys General, for ap-pellee.
    Before COPE and SHEPHERD, JJ„ and SCHWARTZ, Senior Judge.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

SHEPHERD, J.

We consider on remand our opinion in Ward v. State, 965 So.2d 308 (Fla. 3d DCA 2007), which the Florida Supreme Court quashed following its decision in Ward v. State, 7 So.3d 520 (Fla.2009). As ordered by the supreme court, we apply its decision in Yisrael v. State, 993 So.2d 952 (Fla.2008) (Yisrael II), to the facts of this case.

In Yisrael II, the supreme court disapproved of the holding in Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), that a Department of Correction’s letter alone was sufficient evidence to sentence Yisrael as a prison releasee reoffender. See Yisrael II, 993 So.2d at 959. Given the supreme court’s reasoning in Yisrael II, we now reverse Ward’s sentence as a prison releasee reoffender because a Department of Correction’s letter alone is insufficient to support sentencing Ward as a prison releasee reoffender. See id. at 961. We therefore remand for resentencing consistent with the supreme court’s decision in Yisrael II.

Upon remand, the State may present additional evidence to prove that the defendant qualifies for prison releasee reof-fender sentencing. See State v. Collins, 985 So.2d 985, 990 (Fla.2008).

Reversed and remanded.


text:
    Nelson R. RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2414.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Nelson R. Rodriguez appeals his convictions for one count of sexual battery on a child under the age of twelve and one count of sexual activity with a child by a person in familial or custodial authority. The appellant requests that we find trial counsel to have been ineffective for failing to object to the introduction of certain collateral crimes evidence, and failing to move for a mistrial. We decline to entertain these claims on direct appeal. See Smith v. State, 998 So.2d 516, 522-23 (Fla.2008); Antunes-Salgado v. State, 987 So.2d 222, 224-25 (Fla. 2d DCA 2008).

Affirmed.


text:
    UNICCO SERVICE COMPANY, Appellant, v. MIAMI-DADE COUNTY, Appellee.
    No. 3D08-901.
    District Court of Appeal of Florida, Third District.
    June 17, 2009.
    Luks, Santaniello, Perez, Petrillo & Gold and Orestes Perez, Miami, for appellant.
    Griffin & Serrano and Eric D. Griffin, Jr., for appellee.
    Before COPE, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Metro. Dade County v. CBM Indus. of Minn., Inc., 776 So.2d 937 (Fla. 3d DCA 2000).


text:
    Robert Lee ROWLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2622.
    District Court of Appeal of Florida, Fifth District.
    June 19, 2009.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON REMAND

PER CURIAM.

We have this appeal after remand from the Florida Supreme Court for reconsideration in light of the high Court’s decision in Larimore v. State, 2 So.3d 101 (Fla.2008). We have previously withdrawn our prior decision and mandate. After remand, we instructed the parties to advise the court of their position concerning the proper disposition of the appeal in light of Larimore. The State properly has responded that, in light of Larimore, the trial court erred by refusing to dismiss the State’s Petition for Civil Commitment of Appellant. Accordingly, the “Order Finding Respondent Sexual Predator” and the “Order Committing Respondent to the Custody of the Department of Children and Families” [“DCF”] are reversed and the case is remanded with instructions that the lower court dismiss the civil commitment petition and that Robert Lee Rowles be promptly released from the custody of DCF.

REVERSED and REMANDED.

GRIFFIN, MONACO and COHEN, JJ., concur.


author: MONACO, J.

text:
    Michele PRICE, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D08-1817.
    District Court of Appeal of Florida, Fifth District.
    June 19, 2009.
    Michele Price, Palm Coast, pro se.
    Kristy J. Gavin, of Gobelman, Love, Gavin, Wasilenko & Broughan, L.L.C., Jacksonville, for Appellee, Flagler County School Board.
    No Appearance for Appellee, Unemployment Appeals Commission.
   MONACO, J.

The appellant, Michele L. Price, appeals an order of the Unemployment Appeals Commission that affirmed the finding of the Appeal Referee to the effect that Ms. Price voluntarily left her employment without good cause. As a result, she was denied unemployment benefits. We affirm.

The determination that an employee left employment voluntarily and whether she did so without good cause are questions of fact. Brown v. Unemployment Appeals Comm’n., 820 So.2d 457 (Fla. 5th DCA 2002). Moreover, the factual determinations of an appeal referee are ordinarily presumed to be correct. Smith v. Unemployment Appeals Comm’n., 823 So.2d 873 (Fla. 5th DCA 2002). Thus, if there is substantial competent evidence in the record to support the findings of the referee, and in particular the finding that Ms. Price voluntarily left her employment without good cause, this court must affirm. Brown, 820 So.2d at 458.

In the present case the record fully supports the finding of the referee that Ms. Price voluntarily left her employment without good cause. Accordingly, we affirm.

AFFIRMED.

PALMER, C.J., and LAWSON, J., concur.


text:
    Omar Sheri SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-1549.
    District Court of Appeal of Florida, Fifth District.
    June 19, 2009.
    Todd C. Deratany, Indialantic, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 05-2002-CF-063746-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, TORPY and LAWSON, JJ„ concur.