text:
    Fritz G. PAMPHILE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4137.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.

      David Casals of Law Office of David Casals, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

The defendant, Fritz Pamphile, appeals his conviction for unauthorized possession of a driver’s license or identification card. He argues that the trial court erred in denying his motion to suppress the unauthorized identification card because the arresting officers/agents lacked a sufficient reasonable suspicion for the investigatory stop that occurred after he left a gun show in West Palm Beach. Most notably, he contends that: (1) the agents watched him for nearly two hours, during which time he did not commit a crime or provide any indication that he was about to commit a crime; (2) the agent’s suspicion that he had violated a county ordinance requiring a waiting period for the firearm he purchased was unreasonable; and (3) the trial court erroneously pointed to him violating Florida’s open carrying of weapons statute as a basis for the stop. We agree with these arguments, and each will be addressed in turn. The court erred in denying the motion to suppress. As such, we reverse the conviction.

Background

At the suppression hearing, testimony from an agent from the Bureau of Alcohol Tobacco and Firearms (ATF) and a sergeant from the Palm Beach County Sheriffs Office (PBSO) revealed the following. On the day in question, the agent was working with a task force made up of ATF agents, PBSO deputies, and West Palm Beach Police officers to monitor sales and purchases of firearms at the gun show.

The agent and his partner, who were working undercover, noticed the defendant walking around the gun show with two other males. The agents observed the men coming together and separating, which the agent testified was common at gun shows when people are attempting to engage in a “straw purchase.” The agent suspected something was not right because he observed the defendant and his companions go to various booths, “talk, pick up guns, and leave.” The agent then saw the defendant speaking to a gun dealer whom the agent knew was not licensed. The defendant ultimately purchased an AK-47 from the dealer. The agents were not watching the defendant the entire time, and never saw him show the dealer his concealed weapons permit for the firearm purchase. However, the agents did overhear the defendant tell the dealer that he was going to take the firearm to New York.

The agents continued to follow the defendant based on his statement that he was going to take the gun to New York and the agent’s knowledge that it can be illegal to purchase a firearm in one state and transport it to another state. During this time, they observed him carrying the firearm in his hand around the gun show.

The defendant eventually met up with his two friends and left the gun show carrying the firearm in his hand. Based on the defendant’s earlier statement that he was going to take the gun to New York and the agent’s suspicion that he may have also violated the five-day waiting period ordinance, the agent called PBSO officers located outside the show to stop the defendant for suspected firearms violations. The defendant and his friends had left in a vehicle, and the officers pulled them over approximately a half mile away in a shopping center parking lot. A PBSO sergeant approached the car and asked the defendant to produce identification. The defendant provided his proper identification; however, in an attempt to locate that ID, he dropped a California identification card, which turned out to be fraudulent.

The trial court denied the motion to suppress, finding that the totality of the circumstances gave the officers reasonable suspicion that a crime had been committed or was about to be committed. In so ruling, the predecessor judge who is subject to this appeal, Judge Smith, concluded, “[the agent] surveilled him for two hours, watched all of his behavior, and ultimately did see him commit a violation of the law by carrying a gun openly out in the parking lot.” A written order denying the motion followed.

The defendant pled no contest to the unauthorized possession of a driver’s license or identification card charge. He was sentenced to ten days in jail followed by two years of probation. He appealed, and the trial court granted his motion to stay his sentence pending the appeal of the denial of his motion to suppress.

We affirmed, but the merits of the defendant’s claim regarding the motion to suppress were never reached. Pamphile v. State, 65 So.3d 107, 108 (Fla. 4th DCA 2011). Our decision was based on finding that the defendant’s attorney: (1) had not expressly reserved his right to appeal the denial of the motion suppress; and (2) failed to obtain a proper finding that the ruling on the motion to suppress was dis-positive. Id. at 108-09.

Because the trial court had issued the order staying his sentence, the defendant was permitted to file a motion to withdraw his plea on the ground that it was neither voluntary nor intelligently made. He also filed a written motion requesting that the trial court declare its ruling on his motion to suppress dispositive. A successor judge who is not subject to this appeal, Judge Oftedal, held a hearing on the motion where he found that the defendant intended to plead to the court, but also that the defendant had intended to reserve his right to appeal. Thus, the judge entered a written order finding that the prior ruling on the motion to suppress was dispositive. The court then sentenced the defendant to the same sentence originally imposed. The court also ordered his sentence stayed pending the outcome of any appeal. This appeal followed, and we now have jurisdiction to review the trial court’s denial of the motion to suppress on the merits.

Analysis

“A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Bethel v. State, 93 So.3d 410, 413 (Fla. 4th DCA 2012) (citation and quotations omitted). In doing so, “[t]he appellate court defers to the trial court’s findings regarding the facts and uses the de novo standard of review for legal conclusions.” Nshaka v. State, 82 So.3d 174, 178-79 (Fla. 4th DCA 2012). However, we are bound only by those findings of fact which are supported by competent, substantial evidence. Peraza v. State, 69 So.3d 338, 340 (Fla. 4th DCA 2011).

In order to stop and detain a person for investigation, a law enforcement officer “must have a reasonable suspicion that the person has committed, is committing, or is about to commit a crime.” Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001). See also Popple v. State, 626 So.2d 185, 186 (Fla.1993); § 901.151(2), Fla. Stat. (2008). “Whether an officer has reasonable suspicion for a stop depends on the totality of the circumstances, interpreted in consideration of the officer’s knowledge and experience.” Thornton v. State, 80 So.3d 1141, 1142-43 (Fla. 4th DCA 2012) (citation omitted).

Based on the totality of the circumstances — interpreted in consideration of the agents/officers’ knowledge and experience — which were presented by the State at the suppression hearing, we conclude that the trial court erred in finding that the agents had sufficient reasonable suspicion for the stop for the following reasons.

First, the ATF agent’s initial reason for suspicion was based on his observation that the defendant and his companions were coming together and separating, which the agent testified was common at gun shows when people are attempting to engage in a “straw purchase.” The agent specifically pointed to the men approaching various booths, talking to the respective dealers, picking up guns and then walking away. This behavior is not indicative of criminal activity because, if it were, then anytime a group of individuals attended a gun show and separated for any period of time, law enforcement would have the legal right to stop and detain those individuals if a purchase was made. At the suppression hearing, the agent admitted that such behavior could be consistent with “innocent behavior” as well. Moreover, there was no testimony that the agents ever saw the defendant exchange money with any of his companions, which could reasonably indicate that a straw purchase was occurring. Thus, there was no competent, substantial evidence to support a finding that the agent’s observations revealed any reasonable suspicion of past, present, or future criminal activity.

Likewise, the finding that the ATF agent had reasonable suspicion to believe a crime was about to be committed based on overhearing the defendant’s statement that he was going to take the gun to New York was also not supported by competent, substantial evidence. There was no evidence presented at the hearing that the defendant was going to sell the gun in New York or transport it in an illegal manner, thereby engaging in illegal activity. To the contrary, the ATF agent testified that although it can be illegal to transport firearms across state lines, the gun could be legally transported if the proper procedures were followed.

Second, neither competent, substantial evidence nor law supported the court’s finding that the ATF agent had a reasonable suspicion to believe that a county ordinance had been violated. The agent based this suspicion upon the fact that he never saw the defendant show the unlicensed dealer his concealed weapons permit. However, the agent admitted that he and the other agents were not watching the defendant the entire time. Thus, the agents’ failure to observe the defendant show his concealed weapons permit to the dealer, when such permit allowed him to legally obtain the weapon without waiting under both the county ordinance and Florida law, was not a reasonable basis to believe he had committed a crime. There was no evidence presented showing that the defendant knew that the dealer from whom he purchased the gun was either unlicensed or engaging in any other illegal activity. If anything, the evidence at the hearing suggested suspicious activity on the part of the seller, but it was not improper for the defendant to purchase the firearm and then fail to announce that he did, in fact, have the proper permit.

Finally, the trial court erroneously pointed to the defendant violating section 790.58(1), Florida Statutes (2008) — which prohibits openly carrying a weapon — as a valid basis for the stop. The agent did not even mention this as being a basis for his or the other agents’ suspicions that a crime either had been or was about to be committed. Instead, the agent’s testimony that the defendant left the gun show while carrying a firearm into the parking lot on the way to his car was elicited in response to suggestive questions by the prosecutor after the agent had already articulated his suspicions. Moreover, section 790.25(8), Florida Statutes (2008), provides for lawful uses of a firearm which are exceptions to section 790.053, Florida Statutes’ prohibition on openly carrying one. Specifically, section 790.25(3)(m) provides for the following lawful purpose: “[a] person while carrying a pistol unloaded and in a secure wrapper, concealed or otherwise, from the place of purchase to his or her home or place of business....” At the hearing, there was no evidence presented suggesting that the gun the defendant had just purchased was either loaded or that it was improperly wrapped. Rather, the evidence on this issue was limited to the agent’s vague answer to the prosecutor’s suggestive question.

For the foregoing reasons, we hold that the trial court erred when it determined that the agents/officers had sufficient reasonable suspicion to stop the defendant. Accordingly, we reverse. Because the issue was dispositive, we remand for the trial court to vacate the defendant’s conviction and sentence.

Reversed and remanded for proceedings consistent with this opinion.

GROSS, J., and SHAHOOD, GEORGE A., Senior Judge, concur.

      . A straw purchase, as it relates here, occurs when an individual purchases a firearm for another individual who either cannot purchase one legally or chooses not to do so.

      . Palm Beach County requires a five-day waiting period for delivery of a firearm after a purchase unless a concealed weapons permit is produced. Palm Beach County Code of Ordinances, Art. II, Div. 1, Sec. 28-23.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FIDELITY NATIONAL TITLE INSURANCE COMPANY, Appellant, v. Carmen J. GROSSO, James M. Chereskin, and Barbara A. Chereskin, individually and on behalf of themselves and all others similarly situated, Appellees.
    No. 4D12-2560.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.

      Jerry R. Linscott, Robert W. Thielhelm and Julie E. Singer, of Baker & Hostetler LLP, Orlando, for appellant.
    Robert J. Axelrod, of Pomerantz Gross-man Hufford Dahlstrom & Gross LLP, New York; John S. Mills and Courtney Brewer, of The Mills Law Firm, P.A., Tallahassee; P. Scott Russell IV of P. Scott Russell, P.A., Jacksonville; and Jeffrey M. Liggio of Liggio Benrubi, West Palm Beach, for appellees.
   PER CURIAM.

When certifying a class, a trial court is required to indicate the findings of fact and conclusions of law that it has made. When the trial court fails to meet both requirements, reversal is required. Because the trial court below certified a class without making findings of fact and conclusions of law, we reverse and remand so that it may comply with the requirements of Florida Rule of Civil Procedure 1.220(d)(1).

Carmen J. Grosso, on behalf of himself and all others similarly situated, filed a class action complaint alleging that it complied with Florida Rules of Civil Procedure 1.220(a) and 1.220(b)(3). Fidelity National Title Insurance Company opposed the certification, arguing that the entitlement to relief of each individual within the class would have to be examined separately and therefore a class action was not the most appropriate vehicle available. After a hearing to determine whether class certification was appropriate, the trial court granted class certification; however, it failed to make factual findings or conclusions of law. Further, it did not specify which section of rule 1.220(b) the certification was based.

Certifying a class by an order that does not contain findings of fact and conclusions of law is reversible error. Integon Corp. v. Gordon, 953 So.2d 725 (Fla. 1st DCA 2007) (“Because the order fail[ed] to ‘separately state the findings of fact ... upon which the determination [wa]s based’ as required by Florida Rule of Civil Procedure 1.220(d)(1), [the First District] reverse[d] and remand[ed] with directions that the trial court comply with that provision”). If evidence is not presented to the trial court, which could demonstrate a proper factual basis for class certification, it is an abuse of discretion to certify the class. Seminole Cnty. v. Tivoli Orlando Assocs. Ltd., 920 So.2d 818, 824 (Fla. 5th DCA 2006). Without an order containing findings of facts and conclusions of law based on the facts, we are unable to review whether the requirements for class certification have been met. We remand this case for entry of an order that complies with Rule 1.220.

Reversed and remanded for further proceedings.

GROSS, CIKLIN and CONNER, JJ., concur.


text:
    Itzhak BAK, Appellant, v. Joyce BAK, Appellee.
    No. 4D12-2133.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Itzhak Bak, Hallandale Beach, pro se.
    Joyce Bak, Hollywood, pro se.
   PER CURIAM.

Itzhak Bak appeals the trial court’s order denying his motion for reconsideration of a status report order regarding reunification. We dismiss Itzhak’s appeal as untimely.

A notice of appeal must be filed within thirty days of the date an order is rendered, i.e., signed and filed with the clerk. Fla. R. App. P. 9.110(b), 9.020(h). The status report order Itzhak seeks to appeal was rendered on April 19, 2012, and the notice of appeal was filed on June 8, 2012, or fifty-one days after the status report order was rendered.

Before appealing, Itzhak moved for reconsideration of the status report order, and the trial court entered an order denying the motion. The order denying the motion for reconsideration was rendered on May 14, 2012, which was less than thirty days before the notice of appeal was filed. But while a timely motion for rehearing will suspend rendition of a final order until entry of the order disposing of the motion for rehearing, Fla. R. App. P. 9.020(h), a motion for rehearing does not suspend rendition of a non-final order because rehearing is not authorized for non-final orders. See Wegner v. Schillinger, 921 So.2d 854, 855 (Fla. 4th DCA 2006). The status report order entered by the trial court was not a final order ending the reunification proceedings; the order provided in part that there would be no further efforts to have Itzhak spend time with the children “until further written agreement of both parents and the GAL or until further Order of the court” and predicated future contact between Itzhak and the children upon the agreement of the therapists working with the children and Itzhak.

Failing to file a notice of appeal within the time limits “constitutes an irremediable jurisdictional defect.” Hunt v. Forbes, 65 So.3d 133, 134 (Fla. 4th DCA 2011). Because Itzhak failed to file the notice of appeal within thirty days of the rendition of the status report, we are required to dismiss his appeal for lack of jurisdiction.

Dismissed.

MAY, C.J., TAYLOR and CONNER, JJ., concur.


text:
    Camilo VECIANA, Appellant, v. STATE of Florida, Reemployment Assistance Appeals Commission, and Iron Mountain Information Management, Appellees.
    No. 4D12-1434.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Camilo Veciana, Hollywood, pro se.
    Amanda L. Neff, Senior Attorney, Tallahassee, for appellee Reemployment Assistance Appeals Commission.
   PER CURIAM.

Affirmed. See § 443.036(30)(3), Fla. Stat. (2011).

WARNER, GROSS and CIKLIN, JJ., concur.


author: POLEN, J.

text:
    Brandon FOREST, Appellant, v. Ashley Michelle SUTHERLAND, Appellee.
    No. 4D12-1048.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Tiffany Eisenberg of Bernheim & Dolin-sky, LLC, Fort Lauderdale, for appellant.
    Michael J. Neimand, Office of General Counsel, United Automobile Insurance Company, Miami, for appellee.
   POLEN, J.

We reverse the final judgment in favor of the defendant because we find error in the trial court’s failure to offset any collateral source reduction by the amount of premiums paid by the plaintiff in obtaining PIP coverage. Although we reverse on this issue, we are not persuaded by the other arguments on appeal.

The plaintiff was injured in a car accident and sued the defendant in a negligence action. The defendant was determined to be liable, and the jury awarded $9,737.00 for past medical expenses. There were no other damages awarded.

The defendant filed a motion for collateral source setoff for PIP benefits paid or payable. This motion argued that any award for past medical expenses should be reduced by $10,000 for PIP benefits paid or payable. The trial court agreed and entered a final judgment in favor of the defendant, which stated: “the Court having reduced the verdict by collateral source PIP payments paid or payable, be it ordered and adjudged that Plaintiff shall take nothing by this action and that Defendant ... shall go hence without day.” Thereafter, the plaintiff filed a motion to vacate the final judgment. At the hearing on the motion to vacate, the plaintiff admitted that “PIP paid out $10,000.” The plaintiff also argued that the set-off should be reduced by the amount of premiums paid by the plaintiff to obtain PIP coverage. The trial court denied the plaintiffs motion to vacate, and this appeal followed.

Section 768.76(1) provides that any collateral source reduction of damages

shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant’s immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.

§ 768.76(1), Fla. Stat. (1999). When an award of damages is reduced according to the amount of PIP benefits paid to the plaintiff, section 768.76(1) “allow[s] a reduction from the setoffs for the plaintiffs cost of obtaining PIP coverage....” McKenna v. Carlson, 771 So.2d 555, 558 (Fla. 5th DCA 2000).

We remand this case to the lower court because the court failed to consider reducing the collateral source set-off by the amount paid by the plaintiff in obtaining those collateral source benefits. On remand, and in accordance with McKenna and section 768.76, Florida Statutes, the lower court shall determine the amount paid by the plaintiff in obtaining PIP coverage. That amount shall then be used to offset against any reduction in damages awarded to the plaintiff based on PIP benefits paid as a result of his injury. Accordingly, we reverse and remand this case for further proceedings.

Reversed and Remanded.

DAMOORGIAN and LEVINE, JJ., concur.


text:
    Jeffrey FOERSTER and Taunya Foerster, Appellants, v. REGENT BANK, Appellee.
    No. 4D12-1037.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Mark Perlman of Mark Perlman, P.A., Hallandale Beach, for appellants.
    Suzanne M. McLean of Webber, Hinden, McLean & Arbeiter, P.A., Pembroke Pines, for appellee.
   PER CURIAM.

Appellants Jeffrey and Taunya Foerster, defendants below, appeal a final summary judgment of foreclosure in favor of Appel-lee Regent Bank. We reverse the summary judgment because there remains a genuine issue of material fact regarding whether appellee complied with the condition precedent contained in the mortgage to provide pre-suit notice of acceleration. See Finnegan v. Deutsche Bank Nat’l Trust Co., 96 So.3d 1093, 1094 (Fla. 4th DCA 2012) (reversing summary judgment as letters sent to appellant were not properly considered on motion for summary judgment and bank’s affidavit did not address compliance with pre-suit notice of default).

Reversed.

STEVENSON, CIKLIN and GERBER, JJ., concur.


text:
    William L. FALES, Jr., Petitioner, v. FLORIDA PAROLE COMMISSION, et al. Florida Department of Corrections, et al., Respondents.
    No. 1D13-0365.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    William L. Fales, Jr., pro se, Petitioner.
    Sarah J. Rumph, General Counsel, and Mark J. Hiers, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondents.
   PER CURIAM.

William L. Fales petitions for certiorari review of an order of the circuit court which denied his petition for writ of habeas corpus. We treat the respondent’s motion to remand filed February 19, 2013, as a confession of error, and we grant the writ.

The circuit court departed from the essential requirements of law when it denied Fales’ petition without affording him the opportunity to reply to the Florida Parole Commission’s response. See Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996). Accordingly, the petition for writ of certio-rari is GRANTED, the order denying Fa-les’ petition is QUASHED, and this matter is REMANDED to the lower tribunal to afford Fales the opportunity to reply to the response, and for reconsideration of this petition on the basis of the reply.

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


text:
    Jerold JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4779.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    Jerold Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the July 25, 2012, judgment and sentence, in Walton County Circuit Court case' number 2012-CF-52. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


text:
    David H. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5585.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    David H. Wilson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany Rhodaback, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The order denying the appellant’s motion for jail credit is vacated, and the case is remanded. On remand, the chief judge of the circuit shall appoint a different judge to consider and rule upon the appellant’s motion. See Meaweather v. State, 732 So.2d 499 (Fla. 1st DCA 1999).

REVERSED AND REMANDED.

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


text:
    Larry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2716.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    Larry Williams, pro se, Appellant.
    Pamela Jo Bondi, Attorney General; Virginia Harris and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Larry Williams, challenges the trial court’s denial of his motions for post-conviction relief after an evidentiary hearing. We affirm the trial court’s denial of Appellant’s motions with the exception of Appellant’s claim that his convictions for burglary of a structure and for burglary of a structure with an assault violate double jeopardy. This Court has held that double jeopardy was violated when the defendant was convicted of two counts of burglary of the same structure. See Henry v. State, 707 So.2d 370, 371 (Fla. 1st DCA 1998) (holding that the prohibition against double jeopardy was violated when the defendant was convicted of two counts of burglary of a structure for entering a trailer and for entering the curtilage of surrounding trailers). However, under some circumstances multiple convictions of burglary of a structure may be permitted. See Smith v. State, 632 So.2d 136, 137 (Fla. 4th DCA 1994) (affirming the defendant’s convictions for eighteen counts of burglary of a structure for entering a mall and entering seventeen separate business entities under the mail’s single roof). Because the trial court did not fully explain its reasoning for denying Appellant’s double jeopardy claim, and because there is insufficient evidence in the record to determine the facts underlying the charges, we cannot determine whether a double jeopardy violation has occurred. We, therefore, reverse the denial of this claim and remand for an evidentiary hearing to determine whether Appellant is entitled to relief on this claim.

AFFIRMED in part, REVERSED in part, and REMANDED.

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


text:
    Donald WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5390.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    Donald Ward, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the April 10, 2012, judgment and sentence, in Escambia County Circuit Court case number 2011-CF-002985-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


text:
    Steve W. MATHIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5024.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    Steve W. Mathis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the October 26, 2011, judgment and sentence, in Columbia County Circuit Court case number 2011-203-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


author: DAMOORGIAN, J.

text:
    Calvin Lewis OVERHOLT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D12-125.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Calvin Overholt, Jr., appeals his convictions for battery and lewd and lascivious molestation of a child under the age of twelve. Citing to our decision in McLaughlin v. State, 79 So.3d 226 (Fla. 4th DCA 2012), Overholt argues that the trial court committed reversible error when it allowed a screen to be placed between the victim and Overholt while the victim testified in open court during his jury trial. We agree and reverse his convictions and sentence. Overholt also argues that the trial court should have granted his motion for judgment of acquittal on the charge of lewd and lascivious molestation, because the State failed to prove that Overholt touched the victim’s genital area. We conclude, without further comment, that the trial court did not err when it denied Overholt’s motion for judgment of acquittal.

During the trial, the victim testified in court from behind a large white screen. The court explained that the defense counsel was present and could ask the victim any questions during cross examination. Overholt was also present and could hear the victim’s testimony as the child victim testified. However, Overholt was blocked from seeing the victim directly as he testified. The court explained that there was a camera and it broadcasted the victim’s testimony on a large television screen for Overholt to see in real time as the victim testified. The victim recounted Overholt’s acts which resulted in the charges being brought.

On appeal Overholt argues that the conditions under which the victim testified violated his Sixth Amendment right to confront witnesses against him and otherwise denied him a fair trial. Overholt argues that the court should have followed the procedure of section 92.54, Florida Statutes (2012), and used a closed circuit television. McLaughlin is on point. The method of shielding employed by the trial court to shield the victim from the defendant is not authorized by the statute and was inherently prejudicial. McLaughlin, 79 So.3d at 228-29 (citing State v. Parker, 276 Neb. 661, 757 N.W.2d 7, 18-19 (2008)).

Reversed and Remanded for a new trial.

GROSS, J., and HANZMAN, MICHAEL, Associate Judge, concur.

      . Section 92.54 provides:
      (1) Upon motion and hearing in camera and upon a finding that there is a substantial likelihood that the child ... will suffer at least moderate emotional or mental harm due to the presence of the defendant if the child ... is required to testify in open court, ... the trial court may order that the testimony of a child under the age of 16 ... who is a victim or witness be taken outside of the courtroom and shown by means of closed circuit television.
      (Emphasis added).


text:
    Destin TURNER, Appellant, v. STATE Of Florida, Appellee.
    No. 1D12-4713.
    District Court of Appeal of Florida, First District.
    April 4, 2013.

      Destín Turner, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Meredith Hinshelwood and Donna A. Ge-race, Assistant Attorneys General, Tallahassee.
   PER CURIAM.

Destin Turner appeals from an order denying his motion for postconviction relief. We reverse and remand for further proceedings.

On January 15, 1997, the appellant was convicted after a jury trial of attempted carjacking and second-degree murder. He was sentenced to 60 months on probation for attempted carjacking and to 453 months in prison followed by 60 months on probation for second-degree murder. Subsequently, following a successful motion pursuant to Florida Rule of Criminal Procedure 3.800, the appellant was resen-tenced to 274.4 months in prison followed by 5 years on probation for attempted carjacking and to 5 years on probation for second-degree murder.

On June 15, 2011, the appellant filed the instant motion pursuant to rule Florida Rule of Criminal Procedure 3.850, claiming that his combined incarcerative sentence and probationary sentence exceed the statutory maximum for the offense of attempted carjacking. The trial court denied the motion, erroneously stating that the appellant’s sentence of 274.4 months in prison followed by 5 years on probation had been imposed as to the second-degree murder charge and therefore was within the applicable statutory maximum.

However, the appellant’s claim has merit. Attempted carjacking is a second-degree felony subject to a sentence of up to 15 years in prison. See §§ 812.133(2)(b); 777.04(4)(a); 775.082(3)(c), Fla. Stat. (1996). The written judgment reflects that the sentence of 274.4 months in prison followed by 5 years on probation was imposed for this offense, for a total sentence of over 27 years.

On appeal, the state agrees that the total sentence exceeds the statutory maximum for attempted carjacking and suggests that it was caused by a scrivener’s error which inadvertently transposed the two sentences. However, nothing in the record before this Court reflects the intent of the sentencing court in this regard.

Accordingly, we reverse and remand for the trial court to attach record portions conclusively demonstrating that the appellant’s sentence is the result of a scrivener’s error or to resentence the appellant to a legal sentence.

REVERSED and REMANDED.

CLARK, MARSTILLER, and SWANSON, JJ„ concur.

      . The appellant’s motion would be untimely if considered pursuant to rule 3.850, which requires claims to be brought within two years of the movant’s judgment and conviction becoming final. However, a court may treat the claim as if raised pursuant to rule 3.800 when it is in the interest of justice to do so. Richardson v. State, 719 So.2d 39, 40 (Fla. 2d DCA 1998). The appellant’s claim that his aggregate sentence exceeds the statutory maximum is cognizable under rule 3.800. See Hughes v. State, 667 So.2d 910, 911 (Fla. 4th DCA 1996). Therefore, the appellant’s claim is properly treated as if brought pursuant to this rule.

      . The court also asserted that the instant motion was barred, as the appellant had previously raised a similar claim which was denied on the merits and not contested on appeal. However, here the application of a procedural bar would work a manifest injustice, as the appellant’s claim is meritorious. See State v. Akins, 69 So.3d 261, 268 (Fla.2011) (finding that a claim that had previously been denied on the merits and affirmed on appeal was not barred by collateral estoppel or the law of the case doctrine where it was meritorious). Further, neither the motion nor the order concerning the previous claim is included in the record on appeal.


text:
    William Tony McCROAN, Appellant, v. STATE of Florida (N.F.E.T.C.), Appellee.
    No. 1D11-3709.
    District Court of Appeal of Florida, First District.
    April 4, 2013.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In light of the State’s concession of error, we reverse the denial of appellant’s petition for writ of habeas corpus, quash the judgment of not guilty by reason of insanity, and remand for further proceedings. See Thompson v. Crawford, 479 So.2d 169 (Fla. 3d DCA 1985).

REVERSED AND REMANDED.

WOLF, VAN NORTWICK, and LEWIS, JJ., concur.


text:
    Sean Patrick REILLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1183.
    District Court of Appeal of Florida, First District.
    April 5, 2013.
    Sean P. Reilly, 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.

ROWE, RAY, and SWANSON, JJ, concur.


author: THOMAS, J.

text:
    Ernest Laron BLAKE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1385.
    District Court of Appeal of Florida, First District.
    April 8, 2013.
    Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Virginia Harris and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

THOMAS, J.

The State seeks rehearing after this court’s opinion reversing Appellant’s conviction due to the trial court’s error granting, over Appellant’s objection, the State’s challenge for cause as to a prospective juror. In its Answer Brief, the State conceded the error, but argued that it was harmless because the State still had available to it a peremptory challenge that it could have used to strike the juror — a position directly rejected by the Florida Supreme Court in Ault v. State, 866 So.2d 674 (Fla.2003). For the reasons explained below, we withdraw our former opinion of Blake v. State, — So.3d — (Fla. 1st DCA 2013), and substitute this opinion in its place.

Appellant appeals his conviction for aggravated assault with a deadly weapon and burglary of a dwelling while committing a battery or assault. He raises two issues, arguing: 1) the trial court reversibly erred by granting the State’s challenge for cause as to a particular juror; and 2) there was insufficient competent, substantial evidence to support the charge of burglary with assault. Because we agree with Appellant as to the first issue, we need not address the second.

During voir dire, the subject prospective juror indicated that he was engaged to a public defender in a different circuit. He acknowledged that his fiancee talked to him about the types of cases she worked on, but indicated he would have no problem finding a person guilty if the evidence supported such a result. The State moved to strike for cause this prospective juror solely on the basis of his engagement to a public defender employed in a different circuit. Over Appellant’s objection, the court granted the strike. Appellant objected to the jury panel before it was sworn.

Appellant argues that the State’s reason for its strike request was insufficient to warrant striking the prospective juror. The State correctly concedes error, but argues the error was harmless because it still had an unused peremptory challenge that could have been used to strike the juror. Appellant correctly argues that this argument was rejected by our supreme court in Ault, which, in turn, was based on United States Supreme Court precedent:

The State argues that even if Reynolds was erroneously removed for cause, the error was harmless as the State had two peremptory challenges left at the end of voir dire questioning and could have used one of these to strike Reynolds. We conclude that such error is not subject to harmless error analysis. See Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987); Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976); Farina v. State, 680 So.2d 392, 396 (Fla.1996). As the United States Supreme Court explained in Gray,
The unexercised peremptory argument assumes that the crucial question in the harmless-error analysis is whether a particular prospective juror is excluded from the jury due to the trial court’s erroneous ruling. Rather, the relevant inquiry is “whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.”

866 So.2d at 686 (emphasis in original).

In its rehearing motion, the State argues that the precedent of the U.S. Supreme Court case of Gray v. Mississippi, 481 U.S. 648, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987), upon which our supreme court relied in Ault, was limited to capital cases in the later decision of Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). But the Florida Supreme Court’s decision in Ault was decided in 2003 — 15 years after Ross — and yet our supreme court did not limit the concept pronounced in Gray to capital cases only. Thus, Ault is controlling, and we are constrained to apply its rationale to non-capital cases such as this one. Consequently, although the State’s concession of the trial court’s error is correct, its harmless error argument is not. Thus, we reverse and remand for a new trial.

REVERSED and REMANDED.

WOLF and MARSTILLER, JJ., concur.


author: PER CURIAM. WARNER, J.,

text:
    VOLKSWAGEN GROUP OF AMERICA, INC., Petitioner, v. Daisy HARMON, Individually and as Personal Representative of the Estate of Bernard Harmon; American Honda Motor Company, Inc.; Borg Warner Corporation; Ford Motor Company; The Goodyear Tire & Rubber Company; Hennessy Industries, Inc.; Honeywell International, Inc., f/k/a Allied Signal, as successor in interest to Allied Corporation, as successor in interest to The Bendix Corporation; Nissan North America, Inc., Individually and as a wholly owned subsidiary of Nissan Motor Co., Ltd.; Pneumo Abex LLC, as successor in interest to Pneumo Abex Corporation; Toyota Motor Sales, U.S.A., Inc., Individually and as subsidiary of Toyota Motor Corporation, Respondents.
    No. 4D12-4419.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Ari C. Shapiro and Michelle C. Levy of Gordon & Rees, LLP, Miami, for petitioner.
    Amanda A. Kessler and Juan Bauta of The Ferraro Law Firm, P.A., Coral Gables, for respondent Daisy Harmon.
   PER CURIAM.

The petition for writ of certiorari is hereby denied on the merits.

POLEN and CIKLIN, JJ., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I would dismiss the petition for certiora-ri for failing to show irreparable injury not remediable on appeal. Petitioner sought certiorari to quash the denial of a motion to dismiss for failure to substitute a party following a suggestion of death on the record. See Fla. R. Civ. P. 1.260(a)(1). Although we accepted certiorari jurisdiction over such an order in Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614 (Fla. 4th DCA 2000), I am convinced pursuant to Williams v. Oken, 62 So.3d 1129 (Fla.2011), and Citizens Property Insurance Corp. v. San Perdido Association, Inc., 104 So.3d 344 (Fla.2012), that our supreme court has limited certiorari jurisdiction respecting orders denying motions to dismiss, and where the harm imposed is merely defending a lawsuit, no irreparable harm not remediable on appeal can be shown. I conclude that Steinhardt is no longer good law.


author: HANZMAN, MICHAEL, Associate Judge.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee of MSAC 2007-HE6, Appellant, v. Metal SELA, Appellee.
    No. 4D11-3093.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Michael K. Winston and Dean A. Mo-rande of Carlton Fields, P.A., West Palm Beach, for appellant.
    Charles L. Neustein of Neustein Law Group, P.A., Miami Beach, for appellee.
   HANZMAN, MICHAEL, Associate Judge.

Appellant, Deutsche Bank National Trust Co., as Trustee of MSAC 2007-HE6, (Bank), seeks reversal of the trial court’s order striking its pleadings and dismissing the case as a sanction for discovery violations. The Bank asserts that the trial court abused its discretion by failing to make express factual findings demonstrating that such a severe sanction was warranted, as required by Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993). We agree and reverse. See SPS Dev. Co., LLC v. DS Enters. of Palm Beaches, Inc., 970 So.2d 495, 497 (Fla. 4th DCA 2007) (“Where a trial court exercises the drastic sanction of dismissal, it must make express written findings of fact supporting the conclusion that the failure to obey the court’s order amounts to a willful or deliberate disregard of the court’s order.”).

Reversed.

GROSS and DAMOORGIAN, JJ., concur.


author: STEVENSON, J.

text:
    Patrick NEPTUNE, Appellant, v. Veronica BONCROFT and Scott Rubinchik, Appellees.
    No. 4D12-2277.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.
    Patrick Neptune, Pembroke Pines, pro se.
    No brief filed for appellees.
   STEVENSON, J.

Patrick Neptune has filed a notice of appeal challenging (1) an order granting defendant Rubinchik’s motion for protective order as to interrogatories propounded by plaintiff; (2) an order granting defendant Rubinchik’s motion to dismiss for failure to state a cause of action and affording plaintiff leave to amend; and (3) an order ruling on defendant Rubinchik’s motion to declare plaintiff a “vexatious litigant.” For the reasons which follow, we dismiss this appeal.

The notice of appeal was improper as to orders (1) [granting motion for protective order as to interrogatories] and (3) [declaring plaintiff a “vexatious litigant”], and we see no basis for certiorari review. See Baldwin v. Shands Teaching Hosp. & Clinics, Inc., 45 So.3d 118, 122 (Fla. 1st DCA 2010) (holding orders granting protective order are reviewable by certiorari only where there is a demonstration of irreparable harm), review denied, 55 So.3d 1288 (Fla.2011); Favreau v. Favreau, 940 So.2d 1188, 1189 (Fla. 5th DCA 2006) (holding order prohibiting wife from further pro se filings was not final appealable order, was not one of non-final orders listed in rule 9.130, and certiorari review available only where departure from essential requirements of law resulting in irreparable injury is demonstrated); Bared & Co. v. McGuire, 670 So.2d 153, 156 (Fla. 4th DCA 1996) (holding appellate court lacks jurisdiction to exercise certio-rari review in the absence of irreparable harm). To the extent review of order (2) [granting motion to dismiss for failure to state a cause of action and affording plaintiff leave to amend] is sought, the appeal is dismissed as this court lacks jurisdiction to review this non-final, non-appealable order. See, e.g., Liebman v. Miami-Dade Cnty.Code Compliance Office, 54 So.3d 1043, 1045 (Fla. 3d DCA 2011) (holding orders granting motion to dismiss and affording leave to amend are non-final, non-appealable).

Dismissed.

CIKLIN and GERBER, JJ., concur.


text:
    Christopher KEATING, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-30.
    District Court of Appeal of Florida, Fourth District.
    April 10, 2013.

      Joseph A. Bosco, Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mozier, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner seeks a writ of prohibition to review the denial of his motion to disqualify the trial judge. We conclude that the motion to disqualify was legally sufficient and that petitioner has demonstrated that he has an objectively reasonable basis to fear that he will not receive a fair trial or hearing. We therefore grant the petition.

Petitioner is charged with third-degree felony possession of cannabis with intent to sell and third-degree felony possession of MDMA. At his arraignment hearing, petitioner, a twenty-year old who has no prior adult criminal record and who qualifies for felony drug court, moved to have the case transferred. Petitioner’s counsel asked the court to hear testimony from petitioner. The court refused to hear from petitioner and immediately denied the request. The court explained that it had read the probable cause affidavit and that it accepted the allegations therein as true for purposes of the motion. The court appears to have believed allegations that petitioner had been selling MDMA — conduct with which petitioner has not been charged. Petitioner’s counsel urged the court to allow him to present testimony. The court refused to allow counsel to present testimony and cut short any argument or proffer that defense counsel could have made as to why transfer to drug court was appropriate.

Petitioner timely filed a motion to disqualify, and the State does not dispute that the motion satisfies the technical requirements of the rule. Fla. R. Jud. Admin. 2.330(c). The State contends only that the allegations in the motion are not sufficient to establish that petitioner “fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330(d)(1).

“The standard of review of a trial judge’s determination on a motion to disqualify is de novo.” Parker v. State, 3 So.3d 974, 982 (Fla.2009).

The term “legal sufficiency” encompasses more than mere technical compliance ■with the rule and the statute. The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge.

Id. The fear of bias must be objectively reasonable. Id.

Petitioner acknowledges that the court had discretion in deciding whether to permit him to enter into the drug court program. The statute provides that a court “may order an individual to enter into a pretrial treatment-based drug court program.” § 397.334(2), Fla. Stat. (2012) (emphasis supplied). The State does not dispute that petitioner qualifies for participation in the drug court program. See § 948.08(6), Fla. Stat. (2012). Section 948.08(6)(a)2 provides:

2. If the state attorney believes that the facts and circumstances of the case suggest the defendant’s involvement in the dealing and selling of controlled substances, the court shall hold a pread-mission hearing. If the state attorney establishes, by a preponderance of the evidence at such hearing, that the defendant was involved in the dealing or selling of controlled substances, the court shall deny the defendant’s admission into a pretrial intervention program.

The State did not request a preadmission hearing in this case, nor did it formally object to the transfer. Instead, the court immediately refused to transfer petitioner’s case to drug court and refused to hear from petitioner or petitioner’s counsel.

A trial court’s adverse ruling is not alone sufficient to require disqualification, but where a court enters an adverse ruling without allowing a party a fair opportunity to present evidence or argument regarding a significant issue, disqualification may be required. In Zuchel v. State, 824 So.2d 1044, 1046 (Fla. 4th DCA 2002), the trial court’s refusal to allow cross-examination at a bond hearing was held sufficient to merit disqualification. In Wargo v. Wargo, 669 So.2d 1123, 1125 (Fla. 4th DCA 1996), this court found the motion to disqualify sufficient where the court made disparaging remarks about the party’s position, and began to rule, before having heard any evidence.

Here, the petitioner clearly qualifies for entry into the program, desires to enter the program, and the State has not objected. Nevertheless, the court refused to provide petitioner any opportunity to fairly present his case for transfer to drug court. Petitioner has an objectively reasonable basis to fear that he may not receive a fair trial or hearing before the judge.

The petition is granted. This case shall be assigned to another judge. Pursuant to Florida Rule of Judicial Administration 2.330(h), petitioner may move the successor judge to reconsider the court’s ruling on the motion to transfer.

Petition granted.

GROSS, TAYLOR and DAMOORGIAN, JJ., concur.


text:
    David TICE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-6094.
    District Court of Appeal of Florida, First District.
    April 11, 2013.
    Crystal McBee Frusciante of the Crystal McBee Law Firm, P.A., Jupiter, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and David Tice is hereby afforded belated appeal from the order of the Circuit Court in and for Leon County denying postconviction relief in case numbers 2008 CF 01531A, 2008 CF 03838A, and 2008 CF 04044A. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Marvin KNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1109.
    District Court of Appeal of Florida, First District.
    April 11, 2013.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm as to all issues except one. We remand for correction of the judgment to reflect that count 1, attempted first-degree murder, and count 6, armed kidnapping, are first-degree felonies. See Knight v. State, 70 So.3d 674, 676 (Fla. 1st DCA 2011).

AFFIRMED IN PART; REMANDED FOR CORRECTION.

BENTON, C.J., WOLF and SWANSON, JJ., concur.


text:
    Markeil Deshon THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4392.
    District Court of Appeal of Florida, First District.
    April 11, 2013.
    Nancy A. Daniels, Public Defender; Gail E. Anderson and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the appellant’s conviction, but reverse and remand for resentencing. See Washington v. State, 103 So.3d 917 (Fla. 1st DCA 2012).

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


text:
    Todd M. GLOR, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 1D12-5322.
    District Court of Appeal of Florida, First District.
    April 16, 2013.
    Petition for Writ of Certiorari.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Petitioner.
    Stephen D. Hurm, General Counsel, and Douglas D. Sunshine, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is granted, and the decision of the trial court is hereby quashed. See Dodson v. Dep’t of Highway Safety & Motor Vehicles, 111 So.3d 266 (Fla. 1st DCA 2013).

PADOVANO, CLARK, and SWANSON, JJ., concur.


text:
    Seth Ryan STARLING, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3398.
    District Court of Appeal of Florida, First District.
    April 16, 2013.
    Nancy A. Daniels, Public Defender, Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Monique Rolla, Assistant Attorney General, Trisha Meggs Pate, Bureau Chief, Tallahassee Criminal Appeals, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges the trial court’s order revoking his probation. Appellant argues that the court erroneously found that he violated his probation by committing a new law offense when he tested positive for cocaine and for failing to comply with a special condition of his probation requiring him to perform a minimum of ten community service hours per month until he completed a total of 100 hours. We affirm the trial court’s finding that Appellant violated the community service condition and the trial court’s ruling denying Appellant’s additional jail-time credit, but we reverse as to the drug possession violation and remand to the trial court to determine whether the community service violation, standing alone, would have prompted the court to revoke Appellant’s probation.

At the revocation hearing, the State presented the testimony of Appellant’s probation officer. Regarding the drug possession violation, the totality of the officer’s testimony was that he obtained a urine sample from Appellant and that this sample “field tested positive for cocaine and came back confirmed on December 24th, from Kroll Laboratories that it was positive for cocaine.” The officer also testified that he personally performed the field test. The lab report, however, was not admitted into evidence.

Thus, the only evidence the State presented to establish that Appellant violated his probation by possessing cocaine was the officer’s testimony, which we hold was insufficient to sustain the revocation based on this alleged violation. Carter v. State, 82 So.3d 993, 996 (Fla. 1st DCA 2011) (holding, although lab reports are admissible for limited purposes, probation officer’s testimony was insufficient to establish drug possession when the testimony failed to establish that he was certified to administer the field test, or had in fact administered it with any independent ability to identify cocaine or its metabolites in urine); Weaver v. State, 543 So.2d 443, 444 (Fla. 3d DCA 1989) (holding “[p]roof of the identification of contraband does not require scientific tests; nevertheless, it must be reliable and based on the observations of a witness with experience and training” and reversing because “it was not established that the officers could independently, by training or experience, identify the substance with sufficient reliability to support a finding that the defendant was guilty of a probation violation.”). Cf. Terry v. State, 777 So.2d 1093, 1094 (Fla. 5th DCA 2001) (holding probation officer’s testimony sufficient to show presence of cocaine metabolites where officer testified to the nature of the field test and how it was performed, and that he was certified by the state to administer the test, which he administered fifty times a month).

Because it is unclear from the record, however, whether the community service violátion, standing alone, would have prompted the court to revoke Appellant’s probation, we remand for the court to make that determination. See Marzendorfer v. State, 16 So.3d 957, 958 (Fla. 1st DCA 2009) (“Because it is unclear from the record whether the trial court would have revoked probation and imposed the same sentence based solely on Appellant’s violation of the condition prohibiting him from possessing or consuming alcohol, we reverse the revocation order and remand for further proceedings.”).

AFFIRMED in part, REVERSED in part, and REMANDED -with instructions consistent with this opinion.

LEWIS and MAKAR, JJ., concur.


text:
    William Bryan PRIVETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0192.
    District Court of Appeal of Florida, First District.
    April 16, 2013.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm William Bryan Privett’s conviction for lewd or lascivious battery on a person under 16 years of age and the ten-year sentence (followed by five years’ probation) he received as a result. We also affirm his convictions on counts three and four and the sentences he received on those counts. But we reverse his conviction on count two for soliciting unlawful sexual activity with minors, in violation of sections 794.05 and 777.04(2), Florida Statutes (2008). See Stumpf v. State, 677 So.2d 1298, 1298 (Fla. 5th DCA 1996) (“Threatening to make another person the victim of a crime obviously does not constitute the conduct proscribed by section 777.04(2), Florida Statutes[J”). See also Randall v. State, 919 So.2d 695, 697 (Fla. 4th DCA 2006); Patel v. State, 679 So.2d 850, 852 (Fla. 1st DCA 1996) (reversing because the charged offense would require proof that the defendant had been “soliciting [the minor] to commit sexual battery on another child younger than age 16”).

Affirmed in part, reversed in part, and remanded.

BENTON, C.J., ROWE, and MARSTILLER, JJ„ concur.


text:
    In re John W. ALDERMAN, III.
    No. 2012-B-2695.
    Supreme Court of Louisiana.
    Feb. 22, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 Pursuant to Supreme Court Rule XIX, § 21, the Office of Disciplinary Counsel (“ODC”) has filed a petition seeking the imposition of reciprocal discipline against respondent, John W. Alderman, III, an attorney licensed to practice law in the States of Louisiana and West Virginia, based upon discipline imposed by the Supreme Court of Appeals of West Virginia.

UNDERLYING FACTS AND PROCEDURAL HISTORY

In 1994, shortly after his admission to the West Virginia State Bar, respondent began experiencing severe neck and chest pain due to complications from nerve damage to his throat and chest suffered during a biopsy of his lymph nodes. Due to this pain, respondent underwent a surgical procedure and began taking pain medications. He ultimately became addicted to Oxycontin.

In June 2009, respondent was charged with possession with intent to deliver 2.6 grams of cocaine. He pleaded guilty to a misdemeanor possession charge and received a ninety-day suspended sentence and unsupervised probation for a year. He also participated in a drug treatment program; however, he relapsed and continued to struggle with drug addiction.

From June 3, 2009 through October 1, 2010, respondent voluntarily ceased the practice of law in West Virginia and underwent substance abuse treatment. On September 1, 2009, respondent was charged with possession of a controlled 12substance and various traffic-related offenses. A search of respondent’s vehicle at that time revealed smoking pipes and the prescription drug Xanax. He was incarcerated for five days and received a thirty-day suspended sentence and unsupervised probation for a year.

On September 6, 2009, respondent voluntarily admitted himself to a ninety-day drug treatment program in Nashville, Tennessee. He thereafter participated in an outpatient treatment program and remained in Nashville for approximately six months.

In October 2010, a disciplinary proceeding was instituted against respondent in West Virginia based upon his criminal convictions. A hearing was held in the matter in June 2011, during which multiple witnesses testified that respondent had been drug free since 2009, had caused no harm to clients, and had been extremely helpful to other individuals suffering from addictions. Following the proceedings, the Supreme Court of Appeals of West Virginia suspended respondent from the practice of law for two years, with one year served retroactively based upon his voluntary withdrawal from legal practice in 2009-2010 and one year held in abeyance pending two years of supervised probation with conditions. Office of Disciplinary Counsel v. Alderman, 229 W.Va. 656, 734 S.E.2d 737 on the docket of the Supreme Court of Appeals of West Virginia (October 19, 2012).

After receiving notice of the West Virginia order of discipline, the ODC filed a motion to initiate reciprocal discipline proceedings in Louisiana, pursuant to Supreme Court Rule XIX, § 21. Certified copies of the decision and order of the Supreme Court of Appeals of West Virginia were attached to the motion. On December 19, 2012, we rendered an order giving respondent thirty days to ^demonstrate why the imposition of identical discipline in this state would be unwarranted. Respondent failed to file any response in this court.

DISCUSSION

The standard for imposition of discipline on a reciprocal basis is set forth in Supreme Court Rule XIX, § 21(D). That rule provides:

Discipline to be Imposed. Upon the expiration of thirty days from service of the notice pursuant to the provisions of paragraph B, this court shall impose the identical discipline ... unless disciplinary counsel or the lawyer demonstrates, or this court finds that it clearly appears upon the face of the record from which the discipline is predicated, that:
(1) The procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
(2) Based on the record created by the jurisdiction that imposed the discipline, there was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the court could not, consistent with its duty, accept as final the conclusion on that subject; or
(3) The imposition of the same discipline by the court would result in grave injustice or be offensive to the public policy of the jurisdiction; or
(4) The misconduct established warrants substantially different discipline in this state; ...
If this court determines that any of those elements exists, this court shall enter such other order as it deems appropriate. The burden is on the party seeking different discipline in this jurisdiction to demonstrate that the imposition of the same discipline is not appropriate.

In the instant case, more than thirty days have passed since the date respondent was served with notice of the ODC’s motion to initiate reciprocal disciplinary proceedings. Respondent has not filed any objections in this court alleging any jurisdictional infirmities or lack of due process in the West Virginia proceedings, nor do we discern any such defects from our review of the record. RAccordingly, we find the requirements of Supreme Court Rule XIX, § 21(D)(1) and (2) are satisfied.

The sole remaining inquiry under Supreme Court Rule XIX, § 21(D)(3) and (4) is whether the imposition of the same discipline imposed by West Virginia would result in grave injustice or be offensive to the public policy of Louisiana, or whether the misconduct at issue would warrant substantially different discipline in Louisiana.

In addressing these factors, we note that there is an obvious causal connection between respondent’s misconduct and his drug addiction. In addition, the record reveals that respondent has made a meaningful effort to address his addiction. Under similar circumstances, we have often chosen to defer a substantial part of the suspension the lawyer would otherwise face. See, e.g., In re: Williams, 10-1972 (La.1/7/11), 52 So.3d 864 (lawyer suspended from the practice of law for three years, with eighteen months deferred, for misconduct including his conviction of possession of cocaine; the lawyer’s drug addiction contributed to his misconduct, but he sought treatment and signed a recovery agreement with the Lawyers Assistance Program (LAP)); In re: Steinhardt, 04-0011 (La.9/9/04), 883 So.2d 404 (lawyer suspended for three years, with two years deferred, following her conviction of possession of marijuana; the mitigating circumstances included her successful recovery from her marijuana addiction and her entry into a recovery agreement with LAP).

This jurisprudence supports the imposition of reciprocal discipline. Moreover, reciprocal disciplinary matters involve unique considerations, and “only under extraordinary circumstances should there be a significant variance from the sanction imposed by the other jurisdiction.” In re: Aulston, 05-1546, p. 6 (La.1/13/06), 918 So.2d 461, 464. [Emphasis added.] A common theme of our reciprocal disciplinary cases is deference to the decisions made by the sister state |5with which we share authority over the respondent. See In re: Kanwal, 09-2192, p. 3 (La.12/18/09), 24 So.3d 189, 191 (“we find it appropriate to defer to the determination made by Colorado, with which we share authority over respondent”); see also In re: Zdravkovich, 831 A.2d 964, 968-69 (D.C.2003) (“there is merit in according deference, for its own sake, to the actions of other jurisdictions with respect to the attorneys over whom we share supervisory authority”).

Under these circumstances, we believe it is appropriate to defer to the West Virginia judgment imposing discipline upon respondent. Accordingly, we will impose reciprocal discipline in the form of a two-year suspension, with one year served retroactively and one year deferred, subject to a period of probation with conditions.

DECREE

Considering the Petition to Initiate Reciprocal Discipline Proceedings filed by the Office of Disciplinary Counsel and the record filed herein, it is ordered that respondent, John W. Alderman, III, Louisiana Bar Roll number 19285, be suspended from the practice of law for a period of two years, one year served retroactively based on his voluntary withdrawal from legal practice and one year held in abeyance pending two years of supervised probation with the conditions set forth by the court in Office of Disciplinary Counsel v. Alderman, No. 35705 on the docket' of the Supreme Court of Appeals of West Virginia. Any violation of the terms of probation may result in the deferred portion of the suspension becoming executory, or the imposition of different discipline, as appropriate.

      . The conditions included the following: (1) required daily attendance at twelve-step program meetings; (2) required regular counseling sessions; (3) thirty hours of service to the Lawyers Assistance Committee; (4) random drug screenings; (5) reimbursement to the disciplinary counsel for costs; and (6) a potential one-year suspension if respondent commits a substantial violation of the terms and conditions of his probation.


author: HUGHES, J.

text:
    Arthur STERBCOW, et al. v. Lia SHERMAN, et al.
    No. 2013-CC-0618.
    Supreme Court of Louisiana.
    March 22, 2013.
   In re National Fire and Marine Insurance Company; Sherman, Lisa Fasola;— Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. L, No. 2004-8206; to the Court of Appeal, Fourth Circuit, No. 2013-C-0355.

Denied.

HUGHES, J., would grant and assigns written reasons.

HUGHES, J.

dissenting.

I respectfully dissent and would grant the writ. The district court made a finding Ms. Gervais was unavailable to testify at trial. Although plaintiff was not present at Ms. Gervais’ deposition, plaintiffs insurer, a party with a similar interest to that of plaintiff, was present at the deposition. Therefore, the hearsay exception set forth in La.Code Evid. Art. 804(B)(1) is applicable. Accordingly, I would reverse the judgment of the district court, which granted plaintiffs motion in limine to exclude Ms. Gervais’ testimony.


author: /s/ Marcus R. Clark

text:
    In re Justice of the Peace James E. NOLAN.
    No. 2012-O-0494.
    Supreme Court of Louisiana.
    March 27, 2013.
   ORDER

Considering the Motion to Dismiss filed by the Judiciary Commission of Louisiana,

IT IS ORDERED that the motion be and hereby is granted, and this matter is dismissed, as James E. Nolan is now deceased.

/s/ Marcus R. Clark

Justice, Supreme Court of Louisiana