text:
    Anthony HOLLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-2292.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2013.
    Rehearing Denied Dec. 11, 2013.

      Anthony Holley, Fort Lauderdale, pro se.
    No appearance for respondent.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

Anthony Holley filed a petition alleging ineffective assistance of appellate counsel (IAAC). He previously filed a repetitive, successive, and untimely IAAC petition in Case No. 4D10-2325. In that case, this court cautioned Holley that another such proceeding would result in sanctions pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). Holley has again raised the same and/or similar claims. We denied the petition and issued an order to show cause why this court should not impose the Spencer sanction of no longer accepting his pro se filings. Holley has responded. We conclude that he has not shown any reason to prevent sanctions, other than his belief in the merit of his frivolous arguments, which we have already rejected.

In his petition, Holley alleges “manifest injustice” as a reason for us to consider his time-barred and successive claims. As background, he was placed on probation following a plea he entered in 2005. His probation officer filed an affidavit charging that he violated probation by committing new offenses. He alleges that the amended violation of probation (VOP) affidavit and the warrant that was used to violate his probation in 2008 failed to show probable cause “on its face” and that the court therefore lacked jurisdiction. He contends that, based upon his reading of sections 948.06(1) and 901.02, Florida Statutes (2008), a VOP warrant requires the issuance of two affidavits, one alleging probable cause for the new offenses charged and one alleging a violation of probation or community control. In addition, according to petitioner, the committing judge must take live testimony prior to issuing the warrant.

He notes in his pleading that no one has ever raised this issue in the reported cases. While this is true, this is because Holley completely misconstrues the statutes. His argument is lacking in any arguable merit and is frivolous. The argument is similar to postconviction claims seeking to vacate convictions on the ground that the charging document was not properly signed or verified. See Roker v. State, 25 So.3d 647, 647 (Fla. 4th DCA 2010); Logan v. State, 1 So.3d 1253, 1254 (Fla. 4th DCA 2009). This court has referred prisoners raising such frivolous challenges for disciplinary proceedings. E.g., Smith v. State, 120 So.3d 155 (Fla. 4th DCA 2013); Collins v. State, 97 So.3d 305, 306 (Fla. 4th DCA 2012). There is no requirement for two affidavits in order to issue a warrant for an arrest for a VOP, nor is there any requirement that the issuing judge take live testimony. Holley’s continued attempts to exploit alleged technical deficiencies in how the VOP warrant issued are a clear abuse of process.

Technical defects in a VOP affidavit — such as an improper oath — would not deprive the trial court of jurisdiction or constitute fundamental error that could be raised for the first time on direct appeal. See Smartmays v. State, 901 So.2d 278, 280 (Fla. 5th DCA 2005); Chadwick v. State, 118 So.3d 827, 830 (Fla. 2d DCA 2012). Likewise, a technical defect in a VOP affidavit provides no basis for post-conviction relief.

Holley’s claim that the VOP affidavit required more specific allegations sufficient to establish probable cause for the new offenses is contrary to well-settled law. The affidavit specified the grounds for the violation — Holley’s commission of the new offenses — and sufficiently gave him notice of the basis for seeking revocation. Hines v. State, 358 So.2d 183, 185 (Fla.1978). The claim that a VOP affidavit must allege more specific facts, those forming the essential elements of a new offense that is the basis for the VOP, was rejected by the Florida Supreme Court more than three decades ago in Hines. Id. at 184.

[A]n affidavit upon which a permanent revocation of probation is to be based must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence. However, an allegation concerning the commission of a crime need not be set forth with the specificity required in criminal indictments and informations. The primary goal is notice comporting with minimal due process rights.

Id. at 185. Even if the issue could be considered in these postconviction proceedings, there is no question that the affidavit in Holley’s case gave him sufficient notice. He was not prejudiced in his defense.

The posture in which Holley persists in attempting to raise these claims magnifies the abusiveness of his filing. He claims that his appellate counsel was ineffective in failing to argue that his trial counsel was ineffective in failing to raise these meritless issues. “[Ajppellate counsel is not ineffective for failing to raise a claim of ineffective assistance of trial counsel on direct appeal.” Fe'rrell v. State, 29 So.3d 959, 988 (Fla.2010). Further, counsel is not deficient in failing to raise a novel legal issue. Steinhorst v. Wain-might, 477 So.2d 537, 540 (Fla.1985). This is especially so where the novel issue is as devoid of arguable merit as are Holley’s claims in this proceeding.

Holley contends that, because we did not state that his prior successive, untimely, and repetitive petition was frivolous when we cautioned him about sanctions in Case No. 4D10-2325, a Spencer sanction is therefore inappropriate. It is not necessary for a court to explain in great detail why a prisoner’s frivolous legal arguments are wrong. This court, and every court, must devote its energies to deciding the meritorious issues before it. Holley was warned that he faced Spencer sanctions should he file another successive petition. He did, and we now impose that sanction.

The Clerk of this Court is directed to no longer accept any paper filed by Anthony Holley unless the document has been reviewed and signed by a member in good standing of the Florida Bar. The Clerk is directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat. (2012).

Sanctions imposed. Petitioner referred to prison officials.

WARNER, MAY and CONNER, JJ., concur.

      . According to this court’s Case Management System, this case is Holley's twenty-fifth proceeding in this court. His first IAAC proceeding in Case No. 4D09-4016 was denied on the merits in 2010.

      . In one of Holley's many postconviction challenges, he claimed that his underlying convictions were unlawful because the complaint affidavit that was filed in 2003, when he was initially arrested, was not properly sworn. This court affirmed the denial of that motion with a citation to Logan. Holley v. State, 93 So.3d 1096, 1096 (Fla. 4th DCA 2012). It is well settled that claims such as these are frivolous. Prisoners who file post-conviction challenges seeking to escape the consequences of their crimes and to vacate their convictions based on an alleged technicality in arrest paperwork are clearly abusing the postconviction process. To preserve limited court resources and preserve access to courts for those with legitimate claims, abusive filings such as these should be sanctioned.

      . Holley explains that he sent the Florida Supreme Court a letter claiming that this court had disregarded these errors in his two prior proceedings in this court. The Florida Supreme Court treated the letter as a petition for writ of habeas corpus and dismissed it as an authorized collateral attack on the convictions and sentences, citing Baker v. State, 878 So.2d 1236 (Fla.2004). The order explained:
      “To the extent petitioner raises a claim of ineffective assistance of appellate counsel, the petition is hereby dismissed without prejudice to petitioner to seek relief in the appropriate court.” We do not perceive the Florida Supreme Court’s order as a directive requiring this court to accept petitioner's untimely and successive petition in this case.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Eric Ivan GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4238.
    District Court of Appeal of Florida, Fifth District.
    Oct. 4, 2013.
    Rehearing Denied Nov. 12, 2013.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Eric Ivan Garcia, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

In this Anders appeal, Eric I. Garcia seeks review of an order denying his motion to withdraw his plea after sentencing.

Garcia’s motion to withdraw his plea was untimely, as it was filed more than thirty days after rendition of the sentence. See Fla. R.Crim. P. 3.170(0- As explained in Gafford v. State, 783 So.2d 1191 (Fla. 1st DCA 2001), the failure to file a timely motion to withdraw a plea waives appellate review of issues related to the plea, and the defendant must seek relief by filing a timely rule 3.850 motion. See Griffin v. State, 114 So.3d 890, 899 (Fla.2013) (“A number of district courts have correctly held that failure to file a motion to withdraw the plea within thirty days waives the issue for appellate review, and the defendant is limited to filing a motion pursuant to applicable Florida Rule of Criminal Procedure 3.850 or 3.851.” (citing McKnight v. State, 964 So.2d 803, 804 (Fla. 3d DCA 2007); Dayton v. State, 867 So.2d 647 (Fla. 5th DCA 2004); Weidner v. State, 767 So.2d 604 (Fla. 4th DCA 2000))). Accordingly, we affirm the order denying Garcia’s motion to withdraw his plea without prejudice to raise the voluntariness of his plea in a timely rule 3.850 motion.

AFFIRMED.

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

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


author: VILLANTI, Judge.

text:
    James WHITTEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1051.
    District Court of Appeal of Florida, Second District.
    Oct. 9, 2013.
    Rehearing Denied Dec. 3, 2013.
    James Whittey, pro se.
   VILLANTI, Judge.

James Whittey appeals the summary denial of his latest motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In this motion, he repeated the argument raised in his prior motions that his sentence is illegal because the crime for which he was convicted is not a qualifying offense for prison releasee reoffender sentencing. The postconviction court has addressed these allegations on their merits on more than one occasion, and this court has repeatedly affirmed the denial of Whittey’s motions. See Whittey v. State, No. 2D12-1620, 2012 WL 5974191 (Fla. 2d DCA Nov.30, 2012) (table); Whittey v. State, 61 So.3d 1128 (Fla. 2d DCA 2011) (table); Whittey v. State, 25 So.3d 1241 (Fla. 2d DCA 2009) (table). Further, this latest motion was filed before the mandate issued in Whittey’s most recent appeal. Such successive and consecutive filings not only burden the court system but potentially harm other defendants as well. See Henderson v. State, 903 So.2d 999, 1000 (Fla. 5th DCA 2005) (noting that frivolous criminal appeals clog the courts and hurt meritorious criminal appeals).

In denying Whittey’s latest motion, the postconviction court warned that further successive filings could result in sanctions. We again reiterate this warning and stress that future frivolous appeals will be viewed unfavorably by this court and may result in Whittey’s referral to the Department of Corrections for discipline. See § 944.279, Fla. Stat. (2013).

Affirmed.

NORTHCUTT and SLEET, JJ., Concur.


author: SUAREZ, J.

text:
    William T. WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 3D13-2499.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2013.
    Kenneth M. Swartz, Miami, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for Respondent.
    Before SUAREZ, EMAS and FERNANDEZ, JJ.
   SUAREZ, J.

We grant the petition for habeas corpus in part and deny in part because the trial court failed to make the required statutory findings regarding reasonable alternate conditions of release. See § 907.041(4)(c)(7), Fla. Stat. (2012); Fla. R.Crim. P. 3.132(c)(1). We order the trial court to conduct an expedited bond hearing to determine whether there are any reasonable conditions of release that would protect the community and assure the Petitioner’s presence at trial. The petitioner shall remain in custody pending resolution of the hearing.


author: PER CURIAM.

text:
    CONSOLIDATED CONTAINER COMPANY, LP, etc., Appellant, v. NATIONAL FREIGHT, INC., etc., et al., Appellees.
    No. 5D12-772.
    District Court of Appeal of Florida, Fifth District.
    Oct. 11, 2013.
    Rehearing Denied Dec. 12, 2013.
    Irene Porter and Jedidiah Vander Klok of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellant.
    Wm. Jere Tolton, 111, of Ogden & Sullivan, P.A., Tampa, for Appellees.
    Prior report: 2012 WL 4026307.
   PER CURIAM.

Consolidated Container Company, LP, appeals from the final judgment entered in favor of its co-defendant in a personal injury action, National Freight, Inc., following the trial court’s entry of a directed verdict in favor of National Freight. We conclude that the evidence presented during the plaintiffs case-in-chief was sufficient to present a jury question regarding National Freight’s negligence. Accordingly, we reverse the final judgment entered in favor of National Freight.

REVERSED and REMANDED.

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


text:
    Sandrew BAUTISTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-307.
    District Court of Appeal of Florida, Fourth District.
    Oct. 16, 2013.
    Rehearing Denied Nov. 23, 2013.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. He was convicted of six counts of lewd battery, two counts of lewd molestation, and various other offenses. The trial court imposed sixty (60) year concurrent terms. The defendant timely filed a rule 3.850 motion. The trial court summarily denied one of the defendant’s claims, and held an evidentiary hearing to address others. We affirm on all but one point.

We accept the state’s concession that the case must be remanded for resentencing since the defendant’s sixty (60) year terms exceed both the statutory maximum for the second and third felonies for which he was convicted and the lowest Criminal Punishment Code sentence. § 921.0024(2), Fla. Stat. (2004). The defendant’s first degree misdemeanor conviction was not subject to the Code. § 921.002, Fla. Stat. (2004).

We affirm the remainder of the trial court’s order, which considered the defendant’s claims of ineffective assistance of trial counsel. We note one claim was that counsel failed to correctly advise him of the maximum penalty he faced before he rejected two plea offers. Though the judge’s order predated Alcorn v. State, 121 So.3d 419 (Fla.2013), his reasoning and findings addressed the prejudice analysis as articulated by the supreme court. See generally Tyrell v. State, 107 So.3d 536 (Fla. 4th DCA 2013).

Affirmed in part, and reversed and remanded for further proceedings consistent with this opinion.

WARNER, MAY and KLINGENSMITH, JJ., concur.


author: ROTHENBERG, J.

text:
    Scott SCHOENLANK, Appellant, v. Sylma SCHOENLANK, Appellee.
    No. 3D12-2771.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 2013.
    Rehearing Denied Dec. 24, 2013.

      Barry S. Franklin & Associates, P.A., and Barry S. Franklin, Aventura, for appellant.
    Padrón & Estevez-Pazos, PL, and Luis M. Padrón, Coral Gables, for appellee.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   ROTHENBERG, J.

Appellant Scott Schoenlank appeals the portion of the final judgment which denies his motion for attorney’s fees under the prevailing party provision of his marital settlement agreement. Because both parties prevailed on significant issues, and neither party was the prevailing party, the trial court did not abuse its discretion in refusing to award attorney’s fees to either party. We therefore affirm.

BACKGROUND

Scott Schoenlank (“Scott”) and Sylma Schoenlank (“Sylma”) entered into a Mediated Marital Settlement Agreement (“Settlement Agreement”) on September 17, 2007, which was incorporated into the trial court’s final judgment of dissolution of marriage. The Settlement Agreement provided that Scott would pay Sylma dura-tional alimony in the amount of $4000 per month and would provide child support for the couple’s children in the amount of $1200 per month, for a total monthly support obligation of $5200. Scott was also required to pay Sylma a total of $60,000 as part of the equitable distribution of assets, which would be payable at $10,000 per year starting in 2008, and due on December 31 of each year. The Settlement Agreement further provided that, in the event of any legal dispute or enforcement action by either party, the prevailing or non-defaulting party would be entitled to payment of attorney’s fees by the losing or defaulting party. Specifically, the Settlement Agreement provided:

XXIII. ATTORNEYS’FEES:

Should there be any enforcement action or any legal proceedings regarding any of the terms or conditions of this Agreement, the prevailing party shall recover all reasonable fees and costs from the non-prevailing party at both the trial and appellate court levels.

XXVII. DEFAULT CLAUSE:

In the event that either party in this Agreement defaults in his or her obligations hereunder, the party in default shall be liable to the non-defaulting party for all reasonable expenses incurred, including attorney’s fees, for enforcement or interpretation of the obligations created by this Agreement.

On August 21, 2009, while he was still current on his support payments, Scott filed a petition for downward modification of his alimony and child support payments due to a substantial and material change in circumstances. Specifically, Scott claimed that he had suffered a substantial reduction in income (approximately 50%) due to a downturn in the market, and he was unable to maintain the $5200 per month support payment amount.

Scott made all support payments required under the Settlement Agreement through December 2009. However, in 2010, during the pendency of the underlying support modification petition, Scott unilaterally reduced his support payments to $3000 per month, and further reduced his payments to $2500 per month in August of 2011. Scott also failed to pay any of the amounts he owed pursuant to the equitable distribution award.

Although the parties initially attempted to resolve their dispute through mediation, they were unsuccessful. Sylma answered Scott’s petition, opposing the downward modification, and then moved to compel Scott’s delinquent equitable distribution payments. Scott responded by acknowledging that he owed the equitable distribution payments, but requested set-offs against the equitable distribution award based on various payments he had already made on behalf of Sylma and the children, as well as for any overpayment of his support obligations should the trial court grant his petition for a downward modification of his support obligations.

The trial court granted Scott’s downward modification and retroactively reduced Scott’s payments from $5200 per month, as set forth in the Settlement Agreement, to $2829 per month in 2010, and $2187 per month starting in 2011, and continuing prospectively. However, the trial court denied Scott’s modification for the balance of 2009. These amounts were calculated using an expert accountant, who submitted two potential alternative monthly support obligations, based on the parties’ respective needs and their ability to pay. The trial court adopted the expert’s proposal that favored Sylma, and awarded Scott a set-off of $7,261.70 on the amount owed for equitable distribution, such that Sylma could recover $22,496 on that claim.

Scott argues that because he received a substantial downward modification and was awarded a setoff against his equitable distribution delinquency, he was the prevailing party, and was thus entitled to attorney’s fees under the Settlement Agreement. Conversely, Sylma argues that an award of attorney’s fees would be improper because Scott was not the prevailing party below. She believes that neither party should recover attorney’s fees under the Settlement Agreement. After conducting a hearing on the issue, the trial court concluded that because each party had prevailed on significant issues in the litigation, neither party was entitled to attorney’s fees as the prevailing party. This appeal followed.

DISCUSSION

“The determination of an award of attorney’s fees is within the sound discretion of the trial court and will not be disturbed on appeal, absent a showing of a clear abuse of that discretion.” River Bridge Corp. v. Am. Somax Ventures, 76 So.3d 986, 989 (Fla. 4th DCA 2011) (citing Centex-Rooney Constr. Co. v. Martin Cnty., 725 So.2d 1255, 1258 (Fla. 4th DCA 1999)). The party prevailing on the “significant issues” in the litigation is the party that should be considered the prevailing party for attorney’s fees. Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). A party receiving a net positive judgment is not necessarily the prevailing party, although that is a factor in determining which party prevailed on the significant issues. Shands Teaching Hosp. & Clinics, Inc. v. Mercury Ins. Co. of Fla., 97 So.3d 204, 213 (Fla.2012). Importantly, “an attorney’s fee award is not required each time there is litigation involving a contract providing for prevailing attorney’s fees.” Loy v. Loy, 904 So.2d 482, 483 (Fla. 3d DCA 2005) (quoting KCIN, Inc. v. Canpro Inv., Ltd., 675 So.2d 222, 223 (Fla. 2d DCA 1996)). Indeed, when the litigation “end[s] in a tie,” with each party “prevailing] in part and los[ing] in part on the significant issues,” the trial court is well within its discretion to deny attorney’s fees to both parties. Loy, 904 So.2d at 484.

The trial court’s well-reasoned rulings below present us with just such a “tie” between the parties. There were two major issues in this litigation: (1) the downward modification of Scott’s support obligations; and (2) the calculation and collection of the equitable distribution award minus any setoffs. Neither party completely prevailed on either issue. Although Scott ostensibly “won” by receiving a substantial retroactive downward modification of his support obligation, the trial court declined to apply that modification for the 2009 calendar year. Instead, the trial court actually set Scott’s monthly support obligation amount to a value that was more favorable to Sylma according to the expert accountant’s recommendations, so Scott did not obtain a complete victory as to his petition to modify his support obligation. And, although Sylma ostensibly “won” by receiving a $22,000 judgment as to the equitable distribution delinquency, Scott was able to offset this amount by applying the credit from his now-overpaid support payments and other expenditures. Accordingly, Sylma’s victory was similarly limited.

“[W]here each claim is separate and distinct and would support an independent action, ... the prevailing party on each distinct claim is entitled to an award of attorney’s fees for those fees generated in connection with that claim.” River Bridge Corp., 76 So.3d at 989 (citing Folta v. Bolton, 493 So.2d 440, 442 (Fla.1986)). However, where the claims litigated are “inextricably intertwined” or involve a “common core of facts,” an award of attorney’s fees may be appropriate as to the entire litigation. See Chodorow v. Moore, 947 So.2d 577, 579-80 (Fla. 4th DCA 2007) (finding that an attorney’s fees award for the whole litigation may be appropriate when a statute mandates payment of attorney's fees to the prevailing party on one claim when other claims in the suit are closely factually related). “[T]he determination of whether multiple claims within a lawsuit are separate and distinct is a matter of law to be reviewed de novo.” Anglia Jacs & Co. v. Dubin, 830 So.2d 169,171 (Fla. 4th DCA 2002).

We need not determine whether these were two distinct and separable issues, or whether the issues are so inextricably intertwined as to be seen as one, because neither party clearly prevailed on either issue regardless of whether we view the litigation piecemeal or in total. Each party prevailed, and lost, on significant issues as to the support modification and the equitable distribution payments respectively, and each party prevailed and lost on significant issues as to the litigation in its entirety. Accordingly, the trial court did not abuse its discretion by finding that both parties prevailed and that neither was entitled to an award of attorney’s fees.

Affirmed.

      . The trial court initially found that Scott owed $29,758.42 in delinquent equitable distribution payments for the first four years following the Settlement Agreement after providing Scott certain credits for expenditures.


text:
    Anthony K. COLLIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2384.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.
    Rehearing Denied Dec. 19, 2013.
    Anthony K. Collier, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a rule 3.850 postcon-viction motion asserting that he was improperly sentenced as a prison releasee reoffender (PRR) for robbery by sudden snatching. Robbery by sudden snatching is not one of the enumerated offenses qualifying a defendant for PRR enhancement. See Smith v. State, 891 So.2d 1133 (Fla. 4th DCA 2005); Cohen v. State, 920 So.2d 682 (Fla. 2d DCA 2006).

In response to this Court’s order issued pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the state has conceded that the trial court has failed to attach any portion of the record refuting the appellant’s claim.

We therefore reverse and remand this claim for further proceedings by the trial court. As to all other claims in the motion, we hereby affirm the trial court’s order.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

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


author: FORST, J.

text:
    Fede DATILUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1243.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   FORST, J.

Fede Datilus appeals his convictions and sentences for sexual battery on a person less than twelve, lewd or lascivious molestation, and impregnation of a child. On appeal, he contends that the trial court abused its discretion by (1) sustaining the State’s Haliburton objection when defense counsel attempted to comment on the State not calling a witness, and (2) denying the defendant’s motion for mistrial after the prosecutor commented during closing arguments that she was not trying to “obscure the truth.” We conclude that the trial court did not abuse its discretion with respect to these two rulings.

The victim in this case was ten years old at the time she became pregnant. After the baby was delivered, police obtained a DNA sample from the baby and the victim. Ultimately, a DNA sample was also collected from the defendant, as well as several other males who were living in the home around the time that the victim became pregnant.

The State’s forensic scientist testified that she analyzed the DNA samples collected from the victim, the baby, the defendant, and from two other males. In her initial analysis, the expert excluded the defendant as the biological father. Her findings were approved by a supervisor, and she issued a verbal report of these findings to the investigative officials. As she was preparing her written report, however, the expert realized that she had made a mistake in her analysis due to a misreading of the data. The expert witness reported her mistake(s) to her supervisor, and then re-analyzed the DNA samples. After this second analysis, the expert was not able to exclude the defendant as the father of the victim’s child. The expert documented these findings within a written report, which the same supervisor then approved. At trial, the expert testified that she had no doubt in the accuracy of the second test’s results.

During closing argument, defense counsel began to argue that the jury should infer that the initial test was correct, and that the State failed to produce the supervisor who signed off on the initial, verbal report:

[S]he had the results [that the defendant was not the father] verified. And she testified that some person who verified it, who didn’t come in here and testify how they made that mistake also.

The State objected to this statement, citing HaMburton v. State, 561 So.2d 248 (Fla.1990). This objection was sustained. Even after this objection was sustained, however, defense counsel continued to argue to the jury that “for the first time [the expert witness]' talked about who this person who verified it was. And this person wasn’t brought here either.”

The State then began its closing by stating, “Members of the jury, let’s talk about the truth. Isn’t that what we’re here for? Not to obscure, not to look at issues....” At this point, the defense counsel objected and moved for a mistrial. This motion was denied.

After closing argument, the jury returned a verdict convicting the defendant on all three counts. The defendant now appeals his conviction and argues that (1) the trial court erred in sustaining the State’s HaMburton objection; and (2) the court erred by denying the defendant’s motion for mistrial made after the State’s allegedly improper comments.

The trial court did not abuse its discretion by sustaining the State’s Haliburton objection

Trial courts have discretion in regulating closing arguments; “thus, a trial court’s rulings on comments made within closing arguments are reviewed for an abuse of discretion.” Jackson v. State, 89 So.3d 1011, 1018 (Fla. 4th DCA 2012). “[I]t is permissible in argument to comment on a party’s failure to call a witness where it is shown ‘that the witness is peculiarly within the party’s power to produce and the testimony of the witness would elucidate the transaction.’ ” Jean-Mane v. State, 993 So.2d 1160, 1161 (Fla. 4th DCA 2008) (quoting Haliburton, 561 So.2d at 250).

The opinion in Martinez v. State, 478 So.2d 871 (Fla. 3d DCA 1985) compiled the following examples of relationships that would place a witness “peculiarly within the party’s power to produce”:

(1) the witness was the defendant’s daughter;
(2) there was a friendship between the party and witness;
(3) the witness was the employer of the defendant;
(4) the witness was a police officer closely associated with the government in developing its case and had an interest in seeing his or her police work vindicated by defendant’s conviction;
(5) the witnesses were state employees who were present at an allegedly suggestive pretrial line-up and were still in the state’s employ at the time of trial, and;
(6) the witness was an informer associated with the government in developing the case against the defendant and there was no indication at trial of any break in the association.

Martinez, 478 So.2d at 872 (internal citations omitted). The court in Martinez held that no special relationship existed between a co-defendant and the State because the co-defendant was no less available to the defendant than to the State. Id.

Similarly, in Hernandez v. State, 960 So.2d 816, 817 (Fla. 3d DCA 2007), the Third District held that no special relationship existed between the State and an officer-technician who was an uncalled witness. Id. There, the defendant was not permitted to argue the inference that this witness’s testimony would be negative to the State. Id. The court in that case held: “The fact that a potential witness, even a police officer who worked on the case, is not called by the State does not give the defendant [an] absolute right to insinuate on closing argument that the witness’s testimony would be negative to the State.” Id. (further noting that “[w]hen such witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either party to call the witness”).

In the instant case, the uncalled witness was the supervisor who reviewed the testifying expert’s initial conclusion that the defendant was not the father of the victim’s child, a conclusion which the testifying expert later determined to be incorrect as a result of her own mistake(s). The subsequent, revised conclusion was also reviewed and approved by the same supervisor. As in Hernandez, the defendant in the instant case did not have the absolute right to insinuate on closing argument that the testimony of the supervisor would be negative to the State. See Hernandez, 960 So.2d at 817. The supervisor simply verified the work of another who was working on the instant case. Not only was the supervisor equally available to both parties, but this relationship between the uncalled witness and the State is even more attenuated than those discussed in Martinez and Hernandez, where appellate courts held that no special relationship existed.

Furthermore, although the supervisor signed off on the initial, verbal report concluding that the defendant was not the father, the same supervisor also signed off on the subsequent, written report that did not exclude the defendant as the father. After the testifying expert explained to the supervisor what happened in her initial analysis, the supervisor called a meeting at which the testifying expert was ordered to explain her mistake(s) to her colleagues. Accordingly, and as in Hernandez, calling the supervisor as a witness likely would have served only to more effectively prosecute the defendant by bolstering the testifying expert’s “error free” conclusion that the defendant could not be excluded as the father. See Hernandez, 960 So.2d at 817 (noting that it was admitted at oral argument that calling the technician would have “only further ‘prosecut[ed] our own client’ ”).

Based on the foregoing, we find no error in the trial court’s sustaining the State’s Haliburton objection.

The trial court properly denied the defendant’s Motion for Mistrial because the alleged inappropriate comments made by the State were not improper.

“[Á] trial court’s rulings on comments made within closing arguments are reviewed for an abuse of discretion.” Jackson, 89 So.3d at 1018. “Likewise, a trial court’s ruling on a motion for mistrial is reviewed for an abuse of discretion, and the court should grant a mistrial only where the error is so prejudicial that it vitiates the entire trial.” Id.

It is true that “[rjesorting to personal attacks on defense counsel is an improper trial tactic which can poison the mind of the jury.” Wicklow v. State, 43 So.3d 85, 87-88 (Fla. 4th DCA 2010). However, there is no evidence in the record that the State in this case resorted to such personal attacks.

The defendant claims that the trial court abused its discretion by denying his motion for mistrial after the State made the following comment during closing: “Members of the jury, let’s talk about the truth. Isn’t that what we’re here for? Not to obscure, not to look at issues....” At this point, the defense counsel objected and approached the bench, where the following side-bar was had:

[Defense counsel]: I’m asking for a mistrial. The State is suggesting that the Defense theory of defense is to obscure and to hide from the truth. And that’s not all my argument. And so I’m asking for a mistrial and to move to strike that argument, that the Defense’s argument is trying to suggest we’re obstructing — trying to hide the truth. [State]: The State’s responding to the attack on the State during the Defense’s closing statement ... regarding obscuring the truth.[] So I’m just going on to explain why we’re not obscuring the truth.
[Court]: Anything else? ... Motion for mistrial is denied.

Thereafter, the State continued its closing:

[Defense counsel] stated that the State’s trying to pull a fast one, that we’re trying to obscure the answer. Members of the jury, let’s break it down and look for the answer, what the evidence actually shows, the evidence that was actually presented to you during the course of the trial....

Contrary to the defendant’s arguments at trial and on appeal, we find no eiror in the trial court’s permitting these comments. Moreover, these statements clearly were not so prejudicial that they “vitiate[d] the entire trial.” See Jackson, 89 So.3d at 1018. Thus, the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial.

Accordingly, we affirm the defendant’s conviction for sexual battery on a person less than twelve, lewd or lascivious molestation, and impregnation of a child.

Affirmed.

GROSS and MAY, JJ., concur.

      . Haliburton v. State, 561 So.2d 248 (Fla. 1990).

      . During closing, defense counsel argued:
      [Tjhere are three types of lies; lies, damn lies and statistics.... I submit what the State’s trying to do is pull a fast one on you. They have a — a smart man up there who’s accomplished, has done other great things. He’s trying to obscure the real answer from you that he's not — he can’t be 99.99 percent sure.


text:
    Robert HUMMEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4895.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Robert Hummel appeals a final order denying his rule 3.850 motion after an evidentiary hearing, on remand from a prior summary denial. We reverse and direct the trial court on remand to resen-tenee him for violating his community control in L.T. case no. 03-2284 in accordance with the negotiated plea agreement that the trial court vacated prior to giving him a significantly longer sentence.

Hummel entered a no contest plea to delivery of cocaine in his 2003 case and was on community control when an affidavit of violation of community control (VOCC) was filed against him, alleging only technical violations. In March 2005, he executed a written agreement providing for him to plead no contest in return for a sentence of 61.05 months concurrent with the same sentence for L.T. case no. OS-424, in which he was charged with a new offense, robbery with a weapon. During the plea colloquy, the trial court found the knowing voluntary waiver of rights and a factual basis to accept the plea, but deferred sentencing until the afternoon. Nothing in the written plea agreement conditioned the plea on Hummel’s testifying against his co-defendant in the robbery case, and nothing was said during the colloquy about such a condition.

At the afternoon hearing, after initially sentencing Hummel to 61.05 months, the trial court stated that part of the condition for the resolution was that, if subpoenaed, Hummel would give truthful testimony in the robbery matter. When Hummel insisted he would not be testifying, the prosecuting attorney indicated that if the state was not to have his testimony, then there was no inducement for the plea offer. The trial court declared the plea to be vacated. Following a VOCC hearing, the trial court found Hummel guilty, revoked his community control, and sentenced him to the statutory maximum of fifteen years. Thereafter, a jury acquitted him of the robbery; the co-defendant was found guilty and was sentenced to life.

In the instant rule 3.850 motion, Hum-mel raised three claims of ineffective assistance of counsel for failing to object to: (1) the trial court’s withdrawing the plea; (2) the prosecutor and the court’s adding a condition to the plea that was not part of the written or oral plea agreement; and (3) his resentencing. The trial court summarily denied the motion, Hummel appealed, and this court reversed. Hummel v. State, 34 So.3d 788 (Fla. 4th DCA 2010).

This court’s opinion in the prior appeal reads in pertinent part as follows:

The record does not conclusively refute Hummel’s position that he never agreed to testify against his co-defendant as a condition of the plea agreement. The record contains no written plea agreement containing the condition that he testify against a co-defendant. No such condition was imposed before his plea was accepted and he was sentenced. If the plea agreement contained that condition, the judge should have been advised it was part of the agreement before the plea was accepted. Fla. R. Crim. P. 3.170(g)(1) (“Whenever a plea agreement requires the defendant to comply with some specific terms, those terms shall be expressly made a part of the plea entered into in open court.”). Then, if Hummel failed to comply with his agreement, the state could have moved to withdraw from the plea pursuant to Florida Rule of Criminal Procedure 3.170(g)(2). See, e.g., Spencer v. State, 623 So.2d 1211 (Fla. 4th DCA 1993) (reversing sentence in excess of initial sentence imposed pursuant to plea agreement, where plea agreement required defendant to testify truthfully if required, but, after original sentencing, defendant gave a statement that was less favorable to the state than the one he had given before entering the plea agreement, and state requested a higher sentence based on defendant’s breach of plea agreement; finding defendant did not breach agreement and reversing for resentencing).
This case is most like McCoy v. State, 599 So.2d 645 (Fla.1992), in which the supreme court held that where the terms of the plea agreement allegedly violated were not part of the court record, a trial court could not vacate a plea and sentence already entered and impose a harsher sentence. The court ordered the original sentence to be reinstated.
The state’s position, that the condition of testifying had been clearly conveyed to Hummel prior to the plea proceedings, is not a matter of record. Cf. McFord v. State, 877 So.2d 874, 877 (Fla. 3d DCA 2004) (affirming conviction and sentence, where the trial judge made the terms of the substantial assistance agreement “crystal clear” during the plea colloquy and the evidence supported the conclusion that defendant violated the agreement). In this case, the factual question of whether Hummel was aware of the condition before entering the plea should be resolved in the course of an evidentiary hearing.
Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Id. at 790-91 (footnote omitted; emphasis added).

On remand, the trial court held an evi-dentiary hearing to resolve the factual question of whether Hummel was aware of the condition of testifying at the co-defendant’s trial before entering the plea. The court heard testimony from Hummel and from the attorney who had been appointed to represent him at the time of the plea.

According to Hummel, the first time he heard he would have to testify was not until the afternoon hearing when the trial court said it. He maintained he knew nothing about testifying against a co-defendant before his plea agreement was signed. He testified that while counsel might have agreed to such a condition, it was not conveyed to him.

Hummel’s prior attorney testified to remembering the prosecutor saying he wanted to know what Hummel knew about the robbery, but he did not specify any particular information. Though Hummel’s prior attorney expressed reluctance in using the term “condition,” he testified he would have presented the prosecutor’s request to Hummel — however, at the hearing, he had no independent recollection of doing so. He did testify that he spoke to Hummel after the morning session, to tell Hummel that the prosecutor would like some information about the co-defendant, and that Hummel would have to give information if the prosecutor asked for it. But when he was asked specifically whether he told Hummel that “prior to the plea,” he replied as follows:

Well, I would like to believe I always tell the truth in the courtroom, that’s why I said I would like to believe that. I specifically recall ... I told him if you know something you got to tell [the prosecutor], that’s something [the prosecutor] is requiring. I don’t know if Robert heard me, maybe there was an issue where he didn’t understand what I was talking about, that I can’t speculate to but I do know for a fact I told him.

When asked why he was saying he did not know if Hummel heard him, Hummel’s prior attorney continued to describe the event as follows:

The way you and I are speaking, no. I was seated right next to him in the box because he was in custody, I know there’s always a lot of action going on in [the] courtroom especially in the morning session, and I know I sat next to him and I said Robert, the guy, meaning [the prosecutor], wants some information and he said, okay, or something to that affect [sic]. I said, if you know something tell me so I can tell [the prosecutor], hey, he knows something. If you don’t there’s no need for us to come back in the afternoon, say to me, Robert, I don’t know anything and I won’t waste either of our times.

Hummel’s prior attorney did not say whether Hummel told him he had information for the prosecutor.

Regarding the trial court’s statement at the beginning of the afternoon session that he had been informed by counsel of the plea condition, Hummel’s prior attorney acknowledged that either he or the prosecutor told the trial court they had come to that agreement — but he acknowledged that this conversation may have taken place during a sidebar.

Hummel’s prior attorney was asked if he believed it would have been appropriate to object when the trial court determined to go forward with the VOCC hearing the next day because Hummel refused to comply with the condition. The attorney responded that he continued to be uncomfortable with the term “condition.” He acknowledged it was “attached to the offer,” but explained, “Mr. Hummel was always very reluctant to give information because he felt he didn’t have any to give.... It was part and parcel of what [the prosecutor] had wanted, not what Mr. Hummel wanted, but what [the prosecutor] wanted.” He insisted that Hummel understood, when he came back for the afternoon session, that he “was going to give some information at that point.” Either he or [the prosecutor] had explained that to the trial court. When asked to recap that he could not object because it was a condition he had explained to the trial court, Hummel’s prior attorney repeated, “I clearly, definitely told [Hummel], I said, if, if you know something, that’s definitely something I would say, if you know something tell me, if you don’t let me know so that I’m not misleading [the prosecutor] and/or the Judge by extension.”

On cross-examination by the defense, Hummel’s prior attorney acknowledged he had no independent recollection of having a conversation about the plea with Hum-mel in jail, or telling him about the condition in jail. When asked whether he specifically told Hummel he would have to testify against his robbery co-defendant, he said he did not think he would have used that language: “I think what I said was at some point down the road if [the co-defendant] goes to trial they may subpoena you and you have got to testify truthfully, but whether I said to him you will be an actual witness the day of trial, that ... I don’t recall.” Hummel’s prior attorney maintained that Hummel would have known what the prosecutor wanted for two reasons: “[0]ne, I think we spoke about it toward the end of the morning calendar when it was relatively quiet.... And number two, I certainly conveyed it.”

At the conclusion of the hearing, the trial court took the matter under advisement. Thereafter, it denied the motion. It set forth the factual question to be resolved that this court had identified: whether Hummel was aware of the condition to testify truthfully against his robbery co-defendant before entering the plea. The trial court reiterated the substance of the testimony and, based on the evidence, it concluded that Hummel’s prior attorney’s performance was not deficient. It found that, before he entered his plea, Hummel was aware of the condition to provide information and truthful testimony regarding the crime and the co-defendant, crediting his prior attorney’s testimony that he told Hummel about the condition in the morning, and it was not mentioned in open court to protect Hummel from speaking in front of other defendants in the courtroom. The court found the condition was part of the plea deal before Hummel entered the plea, and Hummel was properly sentenced to fifteen years after he refused to accept this condition and the plea offer was withdrawn.

This appeal followed. A trial court’s factual findings are given deference so long as they are supported by competent substantial evidence. Courts employ a mixed standard of review, deferring to the trial court’s factual findings that are supported by competent, substantial evidence in the record. E.g., Derrick v. State, 983 So.2d 443, 450 (Fla.2008).

Upon review, we agree with Hummel that, in this case, the trial court’s findings are not supported by competent, substantial evidence. At no point did Hummel’s prior attorney testify that he specifically told Hummel about the condition to testify against his co-defendant before entering his plea. He testified only that he told Hummel that the prosecutor wanted some information about the co-defendant after the morning session in which the plea was accepted. Though Hummel’s prior attorney apparently was aware of the condition, the issue was whether Hummel was aware of the condition before he entered his plea. All the testimony showed was that at some point during the morning, prior counsel told Hummel that the prosecutor would want to know what Hummel knew about the robbery, if anything.

Accordingly, we vacate the order denying Hummel’s rule 3.850 motion and remand the case with directions to resen-tence Hummel to 61.05 months in L.T. case no. 03-2284, with credit for time served. Because it seems likely that Hummel will be entitled to release immediately upon his resentencing, we direct the trial court to act expeditiously in this matter upon issuance of our mandate.

Reversed and Remanded.

STEVENSON, GERBER and FORST, JJ., concur.

      . On re-direct, Hummel did admit to his own postconviction counsel that it was “possible” he was told he would be required to testify truthfully and just forgot, but promptly qualified that by saying it was "unlikely” and "[i]t is something I would remember.”


text:
    Phillip J. SHEA, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-171.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Rehearing Denied Jan. 3, 2014.
    Phillip J. Shea, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
    Prior report: 30 So.3d 508.
   PER CURIAM.

Phillip J. Shea appeals the denial of a rule 3.800(a) motion to correct an illegal sentence. We reverse in part.

Shea was convicted as charged of first degree premeditated murder with a firearm, count I, and two counts of attempted first degree murder with a firearm, counts II and III. He received life in prison with a 25-year mandatory minimum on count I, and life sentences for counts II and III, with all counts running consecutively. The offenses were committed on July 22, 1991, and Shea was sentenced on counts II and III under the applicable sentencing guidelines.

In his rule 3.800(a) motion, Shea challenged the reclassification of counts II and III, arguing that his life sentences on the attempted murder counts exceeded the permissible range under the guidelines, and that the court did not intend to impose an upward departure sentence.

Contrary to Shea’s arguments, we find that counts II and III could be reclassified for use of a firearm notwithstanding that the reclassification statute, section 775.087(1), Florida Statutes (1991), was not cited in the charging document. See Ibar-ra v. State, 45 So.3d 911, 913 (Fla. 4th DCA 2010); Altieri v. State, 835 So.2d 1181, 1185 (Fla. 4th DCA 2002); Lenoir v. State, 804 So.2d 507, 509 (Fla. 3d DCA 2001); Staton v. State, 636 So.2d 844, 845 (Fla. 5th DCA 1994). Here, the indictment clearly charged the use of a firearm.

However, we agree with Shea that he is entitled to resentencing on counts II and III based on a scoresheet error. There is no dispute that victim injury points should not have been included on the guidelines scoresheet for the capital offense in count I. See Seccia v. State, 786 So.2d 12, 14 (Fla. 1st DCA 2001). Removal of 21 victim injury points for count I leaves 283 points on the guidelines scoresheet, changing the permitted sentencing range to 17 to 40 years. The sentencing transcript reflects that the court did not intend to impose an upward departure sentence. The prosecutor assured the court that with a corrected scoresheet Shea still scored life. In fact, if the scoresheet is corrected, Shea does not score life on these counts. Thus, the error can be corrected in a rule 3.800(a) motion. See Brooks v. State, 969 So.2d 238, 242-43 (Fla.2007).

Accordingly, we reverse the denial of appellant’s rule 3.800(a) motion and remand for resentencing on counts II and III.

DAMOORGIAN, C.J., GROSS and CIKLIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Clifford Stewart BROWN, Appellee.
    No. 4D11-2630.
    District Court of Appeal of Florida, Fourth District.
    Oct. 23, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State’s appeal is dismissed for lack of jurisdiction. We affirm as to the issues raised in the defendant’s cross-appeal.

WARNER, STEVENSON and GERBER, JJ., concur.


author: BENTON, J.

text:
    Antonio L. BUCKMAN, Appellant, v. Sergeant James A. BEIGHLEY and Officer T. Coleman, Appellees.
    No. 1D12-3180.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.
    Rehearing Denied Dec. 19, 2013.
    Antonio L. Buckman, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney General; Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Appellees.
   BENTON, J.

Antonio Buckman appeals the trial court’s order denying his motion, filed pursuant to Florida Rule of Civil Procedure 1.540(b), alleging that he was entitled to relief from judgment in a civil case because the judgment did not contain advice that any appeal had to be taken within 30 days. We affirm.

Pursuant to section 768.28, Florida Statutes (2008), Mr. Buckman sued two correctional officers, alleging that items of personal property he left behind when he was removed from his cell on May 4, 2009 (after he activated the water sprinkler system in his cell) were either missing or had been maliciously destroyed by the time he was allowed to return to his cell several days later. On October 21, 2010, the trial court entered a final order of dismissal, without leave to amend, pursuant to section 768.28(9)(a), Florida Statutes (2010).

The last day to appeal the order was November 22, 2010. But Mr. Buckman delivered his notice of appeal to institutional officials for mailing only on the following day, November 23, 2010. See Thompson v. State, 761 So.2d 324, 326 (Fla.2000) (holding that “a legal document submitted by an inmate is timely filed if it contains a certificate of service showing that the pleading was placed in the hands of prison or jail officials for mailing on a particular date, if ... the pleading would be timely filed if it had been received and file-stamped by the Court on that particular date”).

In response to an order to show cause why the appeal should not be dismissed as untimely, Mr. Buckman argued the appeal should proceed because the untimely filing was the result of the trial court’s failure to advise him that he had no more than 30 days in which to appeal the order. This response to the order to show cause proved unavailing: On May 26, 2011, the appeal was dismissed for having been taken out of time. Buckman v. Beighley, 65 So.3d 49, 50 (Fla. 1st DCA 2011). See Fla. R. App. P. 9.110(b).

On July 21, 2011, Mr. Buckman filed the motion pursuant to Rule 1.540(b) that gave rise to the present appeal, requesting that the trial court set aside the order dismissing his action, based on the order’s failure to advise that he had only 30 days to appeal. Under Rule 1.540(b), a party may obtain relief from a final judgment or order for

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud ..., misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application.

Fla. R. Civ. P. 1.540(b). A “trial court is restricted in providing relief from judgments, decrees, or orders to the limited number of grounds set forth in Florida Rule of Civil Procedure 1.540.” Bank of Am., N.A. v. Lane, 76 So.3d 1007, 1008 (Fla. 1st DCA 2011). See Bortz v. Bortz, 675 So.2d 622, 624 (Fla. 1st DCA 1996); Pruitt v. Brock, 437 So.2d 768, 773 (Fla. 1st DCA 1983).

“The standard of review for an order denying a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b) is whether there has been an abuse of discretion.” Carmona v. Wal-Mart Stores, E., LP, 81 So.3d 461, 464 (Fla. 2d DCA 2011). The trial court did not abuse its discretion in determining Mr. Buckman failed to allege grounds for relief under Rule 1.540(b). The present case is not one where relief is warranted because a party received no notice of entry of a judgment or final order before the time to file a notice of appeal had expired. Cf, e.g., Rogers v. Cyrus, 941 So.2d 1196 (Fla. 1st DCA 2006); Broimi v. State, 708 So.2d 1041, 1041-42 (Fla. 1st DCA 1998); Wol-darsky v. Woldarsky, 243 So.2d 629, 630 (Fla. 1st DCA 1971).

While clearly articulating his argument that the final judgment had to include advice that the parties have only 30 days to appeal, Mr. Buckman cites no rule of court nor any court decision imposing such a requirement in a civil action.

Affirmed.

LEWIS, C.J. and WETHERELL, J., concur.


text:
    Warren Lee EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2924.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.

      Warren Lee Edwards, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Warren Lee Edwards (“Appellant”) appeals a lower court order dismissing his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion filed January 2013, Appellant claimed the trial court that convicted and sentenced him in 2000 for sending a written threat lacked subject matter jurisdiction because it failed to ensure that probable cause supported the information filed by the State. He further asserted the information charging him with sending a written threat lacked probable cause because the State Attorney’s Office failed to provide sworn supporting testimony from material witnesses. Appellant also alleged ineffective assistance of counsel for failing to challenge the charging document’s validity, and claimed this ground for postcon-viction relief was newly discovered because “Defendant did not know the law in order to present it.”

The postconviction court ruled that: (1) to the extent Appellant claimed trial court error, the claim could not be raised in a rule 3.850 motion; (2) to the extent Appellant attacked the validity of the information, the asserted lack of material witness testimony did not deprive the trial court of subject matter jurisdiction; and (3) Appellant’s claim of ineffective assistance of counsel was untimely. The court also noted that Appellant has filed “other postcon-viction motions over the years, all of which the Court has denied,” and cautioned Appellant that filing further frivolous pro se pleadings in this criminal case could subject him to sanctions.

We affirm the order dismissing Appellant’s motion for postconviction relief. Appellant’s three claims are simply the same claim stated differently. Essentially, Appellant challenges the information filed against him, asserting that it lacked probable cause, which, in turn, deprived the trial court of subject matter jurisdiction. Normally, a claim that the trial court lacked subject matter jurisdiction can be raised at any time. See Waggy v. State, 935 So.2d 571, 573 (Fla. 1st DCA 2006). Further, a fundamental defect in the information can support a claim of lack of subject matter jurisdiction. See Carbajal v. State, 75 So.3d 258, 262 (Fla.2011). Not every defect in the charging instrument will render a subsequent conviction void, however. See id. “An information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy.” State v. Burnette, 881 So.2d 693, 694-95 (Fla. 1st DCA 2004). An objection to any non-fundamental defect in a charging document must be timely made, or the objection is waived. Id. at 694. Because Appellant’s postconviction claim alleged no fundamental defect in the information filed against him, it was untimely made 13 years after conviction. See Fla. R. Crim. P. 3.850(b). Therefore, the court correctly dismissed Appellant’s motion.

This is the third time Appellant has appealed, to this court, an order denying or dismissing his postconviction filing in which he raised the same lack-of-subject-matter-jurisdiction claim. We caution Appellant that further frivolous appeals advancing this claim long ago deemed to lack merit may result in the imposition of sanctions, including a prohibition on further pro se filings in this court. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (“[A]ny citizen, including a citizen attacking his or her conviction, abuses the right to pro se access by filing repetitious and frivolous pleadings, thereby diminishing the ability of the courts to devote their finite resources to the consideration of legitimate claims.”); Fla. R. App. P. 9.410(a).

AFFIRMED.

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


author: COHEN, J.

text:
    William FERGUSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4662.
    District Court of Appeal of Florida, Fifth District.
    Oct. 25, 2013.
    Rehearing Denied Dec. 4, 2013.
    William Ferguson, Bristol, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

William Ferguson appeals from the order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Ferguson was convicted of numerous sex offenses against his stepchildren. His rule 3.850 motion raised seven claims of ineffective assistance of counsel. The trial court summarily denied six of those claims and denied the remaining claim following an evidentia-ry hearing. We affirm the trial court’s denial of claims one, two, three, five, six, and seven. However, we reverse the trial court’s summary denial of Ferguson’s fourth claim regarding trial counsel’s failure to request a jury instruction on the lesser-included offense of unnatural and lascivious act. We remand for an eviden-tiary hearing on that claim.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER and WALLIS, JJ., concur.


text:
    Henry Gonzalez VELEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4754.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2013.
    Rehearing Denied Dec. 6, 2013.
    Henry Velez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    Kevin E. CANDLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4983.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2013.
    Rehearing Denied Dee. 6, 2013.
    Kevin E. Candler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Margaret CONKLIN-PETERS, et al., Appellant, v. COUNTRYWIDE HOME LOANS, INC./BANK OF AMERICA, Successor, Appellee.
    No. 1D13-3409.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2013.
    Rehearing Denied Dec. 11, 2013.
    Margaret Conklin-Peters, et al., pro se, Appellant.
    William S. Isenberg, Ali I. Gilson, and Allyson L. Sartoian, of Phelan Hallinan, PLC, Ft. Lauderdale, for Appellee.
   PER CURIAM.

DISMISSED. See Dominguez v. Bara-kat, 609 So.2d 664 (Fla. 3d DCA 1992); Ashley v. Moore, 742 So.2d 533 (Fla. 1st DCA 1999). All pending motions are denied as moot.

THOMAS, ROBERTS, and CLARK, JJ., concur.


text:
    BENTLEY BAY CONDOMINIUM ASSOCIATION, INC., Appellant, Ana Maria MESAS, Appellee.
    No. 3D13-818.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2013.
    Rehearing Denied Jan. 6, 2014.
    Blaxberg, Grayson, Kukoff & Twombly, P.A., and Robert Twombly, for appellant.
    Pathman Lewis, LLP, and Peter L. Meltzer and John A. Moore, for appellee.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Aventura Mgmt, LLC v. Spiaggia Ocean Condo. Ass’n, 105 So.3d 637 (Fla. 3d DCA 2013).


text:
    Levert STEWART, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5103.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    Rehearing Denied Jan. 3, 2014.

      Levert Stewart, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

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

BENTON, PADOVANO, and RAY, JJ., concur.


author: ALTENBERND, Judge.

text:
    Debra WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1098.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.
   ALTENBERND, Judge.

Debra Wallace appeals the postconviction court’s order summarily denying her motion for postconviction relief that was filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm a portion of the order but reverse and remand as to two issues.

Ms. Wallace was convicted of an aggravated battery for her contribution to a bar fight on January 15, 2007, in which another woman was cut on the face with a broken beer bottle. She was sentenced as both a habitual offender and a prison releasee reoffender to a total of twenty years’ imprisonment. Her judgment and sentence were affirmed by this court in 2011. Wallace v. State, 53 So.3d 1038 (Fla. 2d DCA 2011) (table decision). In her timely motion, she raises seven grounds. There are two legal issues that affect several of these grounds. Thus, on remand, we encourage the postconviction court to address these issues rather than only the grounds enumerated by Ms. Wallace.

First, Ms. Wallace maintains that her sentence is incorrect and that this is either an illegal sentence or a matter where her counsel was ineffective. We are inclined to believe that her sentence is legal and that the written sentence is oddly prepared, but we cannot resolve this issue from our record.

There is no question that Ms. Wallace was given notice and was eligible to be sentenced as a habitual offender under section 775.084, Florida Statutes (2006). She was also eligible to be sentenced as a prison releasee reoffender under section 775.082(9), Florida Statutes (2006). For this second-degree felony, she could be sentenced to a term of imprisonment up to thirty years as a habitual offender. As a prison releasee reoffender, she was required to receive a minimum mandatory term of fifteen years’ imprisonment. The case law explains that she can receive concurrent sentencing under both of these statutes so long as the habitual offender sentence is longer. See Grant v. State, 770 So.2d 655, 658 (Fla.2000); see also Martin v. State, 888 So.2d 661 (Fla. 2d DCA 2004); State v. Manning, 839 So.2d 849, 850-51 (Fla. 5th DCA 2003); Smith v. State, 754 So.2d 100,101 (Fla. 1st DCA 2000).

If the trial court had imposed a twenty-year sentence as a habitual offender with a concurrent fifteen-year minimum mandatory term as a prison releasee reoffender, there appears to be no question that the sentence would have been proper. But the trial court imposed a twenty-year sentence with the first fifteen years served as a prison releasee reoffender followed by a consecutive five-year term as a habitual offender. This confuses Ms. Wallace, who understandably thinks her sentence as a habitual offender is shorter than her sentence as a prison release reoffender. We are uncertain whether this sentencing structure might affect her sentencing calculations by the Department of Corrections. See, e.g., Lunardi v. State, 39 So.3d 364, 365 (Fla. 5th DCA 2010). On remand, the trial court shall examine the current sentence and determine what amendment may be permissible to correct the problem.

Second, Ms. Wallace claims her lawyer was ineffective because he was ill-prepared. She maintains that he was unprepared to cross-examine witnesses and that he failed to adequately prepare her and other defense witnesses to testify. She argues that his lack of preparation was prejudicial in her case.

This case is exceptional because Ms. Wallace’s attorney was actually disbarred, in part, because of his inadequate representation of her in this trial. See The Florida Bar v. Montekio, 68 So.3d 235 (Fla.2011) (table decision). The postcon-viction court prudently assumed that Ms. Wallace had established the first prong of a Strickland analysis. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, to refute her claim of prejudice, it attached portions of the trial transcript. We conclude that these portions of the transcript do not conclusively refute her claim. The transcript cannot demonstrate the steps taken or not taken by the disbarred attorney to prepare witnesses for trial. Likewise, although they can demonstrate cross-examination by the attorney, they cannot demonstrate how the cross-examination would have been altered by adequate preparation.

Accordingly, we reverse the order on appeal as to these matters and remand the case for further proceedings. This may be a case in which the postconviction court should consider appointing counsel to assist Ms. Wallace with her motion.

Affirmed in part, reversed in part, and remanded.

VILLANTI and BLACK, JJ., Concur.


author: EVANDER, J.

text:
    Marc William PINDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-597.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 2013.
    Rehearing Denied Dec. 11, 2013.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Marc Pinder was convicted, after a jury trial, of: (1) traveling to meet a minor for unlawful sexual activity in violation of section 847.0135(4)(b), Florida Statutes (2011); (2)use of computer services to solicit unlawful sexual activity with a minor in violation of section 847.0135(3)(b), Florida Statutes (2011); and (3) attempted lewd or lascivious battery. We find only one issue raised on appeal by Pinder merits discussion. He argues that his convictions under both section 847.0135(3)(b) and section 847.0135(4)(b) violate double jeopardy. We agree with Pinder’s argument that a single violation of subsection (3)(b) would be a lesser-included offense of an offense found under subsection (4)(b). However, in the instant case, the information alleged, and the evidence established, more than one violation of subsection (3)(b). Accordingly, we affirm Pinder’s convictions.

A violation of section 847.0135(4)(b) is a second-degree felony, while a violation of section 847.0135(3)(b) is (but for certain exceptions not applicable in this case) a third-degree felony. A comparison of the language of these two subsections reflects that subsection (4)(b) has a “travel” element that is not contained in subsection (3)(b), but otherwise the two subsections are virtually identical.

Section 847.0135(4)(b), Florida Statutes (2011), provides:

(4)TRAVELING TO MEET A MINOR. — Any person who travels any distance either within this state, to this state, or from this state by any means, who attempts to do so, or who causes another to do so or to attempt to do so for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(b) Solicit, lure, or entice or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 79⅛, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct, commits a felony of the second degree ....

Section 847.0135(3)(b), Florida Statutes (2011), provides:

(3) CERTAIN USES OF COMPUTER SERVICES OR DEVICES PROHIBITED. — Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(b) Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child, or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 79Jp, chapter 800, or chapter 827, or to othenuise engage in any sexual conduct, commits a felony of the third degree ....

The underlined portions above reflect the portions of the two statutes that are identical in their wording.

There is no doubt that subsection (4)(b) contains a “travel” element that is not found in subsection (3)(b). However, we agree with Pinder that subsection (3)(b) does not contain an element that is not found in subsection (4)(b). Thus, if a defendant solicited unlawful sexual activity with a minor through a single use of a computer device prior to traveling to meet the minor for unlawful sexual activity, double jeopardy principles would preclude convictions under both subsections. See § 775.021(4)(b)3., Fla. Stat. (2011) (intent of Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction except for ... “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense”); see also Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006) (defendant is placed in double jeopardy where, based on the same conduct, the defendant is convicted of two offenses, each of which does not require proof of a different element).

However, in the instant case, Pin-der was alleged to have violated subsection (3)(b) over an eight-day period, and the evidence established multiple offenses. On April 4, 2011, Pinder responded to an online advertisement in the “Personals” section of “Craigslist” which read: “Still looking for assistance with my young niece. Any takers?” During the next eight days, Pinder corresponded via e-mail, instant messaging, phone, text messaging, and in person with an individual Pinder believed to be the aunt/custodian of a twelve-year-old girl. In reality, Pinder was communicating with an undercover deputy employed with the Orange County Sheriffs Office. On more than one occasion during those communications, Pinder expressed his desire to engage in sexual activity with the “twelve-year-old niece,” and a meeting was arranged for that purpose. On April 12, 2011, Pinder drove to the address given to him by the detective and was promptly arrested.

Section 847.0135(3) expressly provides that “[e]aeh separate use of a computer online service, internet service, local bulletin board service, or any other device capable of electronic data storage or transmission wherein an offense described in this section is committed may be charged as a separate offense.” Therefore, under the facts of this case, Pinder’s convictions under subsections (3)(b) and (4)(b) were for separate offenses and no double jeopardy violation occurred. See also State v. Murphy, 124 So.3d 323 (Fla. 1st DCA Oct. 9, 2013).

AFFIRMED.

PALMER and BERGER, JJ., concur.

      . Pinder was sentenced to ten years in prison for the "traveling to meet a minor” offense and five years in prison on each of the other two counts. The sentences were to be served concurrently.

      . We disagree with the State’s assertion that subsection (3)(b) contains an element that is not found in subsection (4)(b). As observed by the State, subsection (3)(b) contains the word "knowingly” at the beginning of the subsection:
      Any person who knowingly uses a computer online service ... to [s]olicit ... commits a felony of the third degree....
      (Emphasis added). By contrast, the word "knowingly” is not found immediately before the reference to the use of computer services in subsection (4)(b):
      Any person who travels ... after using a computer online service ... to [sjolicit ... commits a felony of the second degree....
      The absence of the word "knowingly” in subsection (4)(b) does not, however, mean that the subsection does not have a knowledge requirement. Florida courts will ordinarily presume that the Legislature intends statutes defining a criminal violation to contain a knowledge requirement absent an express indication of a contrary intent. Wegner v. State, 928 So.2d 436, 439 (Fla. 2d DCA 2006) (statute imposing criminal liability on person who receives computer transmissions of descriptive or identifying information about minor for purpose of facilitating sexual conduct with minor would be construed as requiring knowledge by accused that person from whom or about whom he received computer transmission was minor); see also Cash-att v. State, 873 So.2d 430 (Fla. 1st DCA 2004) (criminal statutes, such as computer pornography statutes, are presumed to include broadly applicable scienter requirements in absence of express contrary intent). In the instant case, we discern no legislative intent to dispense with a knowledge or mens rea element in section 847.0135(4)(b).