author: GERBER, J'.

text:
    Taurus L. BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4353.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J'.

The defendant appeals his convictions for aggravated battery with a firearm and shooting into a structure. The defendant argues that the trial court erred in: (1) overruling the defendant’s foundation and hearsay objections to a detective’s testimony that a recorded jailhouse phone call, implicating the defendant in the charged crimes, originated from the defendant’s housing area; and (2) overruling the defendant’s “beyond the scope of cross” objection to the detective’s redirect testimony that the police found a gun holster on the passenger floorboard of the car which the defendant was driving at the time of his arrest.

The first ruling was harmful error. The second ruling was not error. Based on the first ruling, we reverse and remand for a new trial. We will address each ruling in turn.

The Foundation and Hearsay Objections

The state’s theory of the case was that, following a failed drug deal between the defendant, his girlfriend, and two men, the defendant shot at the two men, striking one of them. The victims, who would testify at trial, identified the defendant to the police. The police eventually arrested the defendant.

The case detective testified that, after the arrest, one of the victims notified him about receiving a “three-way phone call” from the defendant — that is, the defendant allegedly called from the jail to a third party, who then connected the victim into the call. The detective testified that he contacted the jail to determine the phone call’s origin, and the jail provided him with records identifying the phone call’s origin. When the state asked the detective • to identify the phone call’s origin, defense counsel objected on the grounds of foundation and hearsay.

The trial court allowed defense counsel, outside of the jury’s presence, to voir dire the detective regarding his knowledge of the phone call’s origin. During the voir dire, the detective admitted that he did not know how the jail’s phone system operated and that he relied on the information contained in the jail’s records to identify the phone call’s origin.

After the voir dire, the defense renewed its objections to the detective identifying the phone call’s origin. Defense counsel argued, in pertinent part:

[Tjhere’s a proper foundation that needs to be established in these jailhouse phone call situations, which is someone from telecommunication comes in [and] explains how the process works; that we record every phone call; that you dial this number; whatever the process is, how it works, how it operates, how they’re able to identify a cell, how they’re able to identify phone numbers, what records they keep, what records they don’t keep. And give us a chance to cross-examine that person, give us a chance to confront that person as to the intricacies of the system, whether it works all the time, whether it’s a two percent flaw or not, whether it’s 98 percent successful .... Those are all issues that we need ... to address and confront. Now we’re just being told that [the detective] submits a form and gets something back. And now he’s able to testify about where it came from, what it tells him, all this other stuff that he doesn’t have a foundation to testify to.

The trial court overruled the defendant’s objections. The jury returned to the courtroom, and the detective’s testimony continued. The detective testified that the phone call’s origin was the defendant’s housing unit, and that the third-party phone number belonged to the defendant’s girlfriend. The detective further testified that he listened to the jail’s recording of the phone call, and he was familiar with the defendant’s voice because he had spoken with the defendant. According to the detective, the defendant identified himself by his first name on the phone call. The detective also testified that, at the time of the phone call, the only other inmate at the jail with the same first name as the defendant was in lockdown, which was in a different location from the defendant’s housing unit.

Over the defendant’s renewed objections, the state introduced the recording of the phone call into evidence, and played it for the jury. Much of the phone call was unintelligible for the court reporter to transcribe. However, after the state played the phone call, the detective testified that he interpreted the call as the defendant implicating himself in the charged crimes.

During cross examination, defense counsel asked the detective if it was possible that someone else made the phone call. The detective responded, “No, it’s not possible.” The detective also acknowledged that the only time he spoke with the defendant face-to-face was after the defendant’s arrest. According to the detective, “[i]t was a very brief conversation.”

During closing argument, the state contended that it was not possible for someone other than the defendant to have made the phone call. The state then contended as follows regarding the phone call:

[Y]ou got the phone records.... And there is a call from the jail records that matches up. Everything is consistent.
The phone call came from ... the area where the defendant was being housed.... There was one other person in the prison [with the defendant’s first name], who was in lockdown, was not even in that area.
This telephone call that you hear between the victim and the defendant is more powerful than any fingerprint evidence or any DNA evidence. Because in this call you can hear the defendant out of his own mouth admit his responsibility for this, apologize for it. He is confessing. He is admitting to what he did. And there’s no doubt about that when you hear it out of his own mouth.

On appeal, the defendant argues that the trial court erred in overruling his foundation and hearsay objections to the detective’s testimony identifying the phone call’s origin. We review the trial court’s ruling for an abuse of discretion, as limited by the rules of evidence. See Constant v. State, 120 So.3d 122, 124 (Fla. 4th DCA 2013) (“As an issue involving the admissibility of evidence, we review this matter for an abuse of discretion, limited by the rules of evidence.”) (citation and quotations omitted).

We conclude that the trial court erred in overruling the defendant’s foundation and hearsay objections to the detective’s testimony identifying the phone call’s origin. Section 90.604, Florida Statutes (2009), in pertinent part, states: “[A] witness may not testify to a matter unless evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.” § 90.604, Fla. Stat. (2009). Where a witness has no personal knowledge of a matter, and the witness’s knowledge is derived entirely from information given by another, the witness’s testimony is incompetent and inadmissible as hearsay. See Holborough v. State, 103 So.3d 221, 223 (Fla. 4th DCA 2012) (arresting officer’s testimony identifying the non-testifying victim was inadmissible hearsay where no evidence existed that the officer personally knew the victim apart from the victim’s display of an identification card, which itself was hearsay for which the state did not attempt to meet the public records exception to the hearsay rule).

Here, during defense counsel’s voir dire of the detective, the detective admitted that he did not know how the jail’s phone system operated and that he relied on the information contained in the jail’s records to identify the phone call’s origin. Because the detective’s knowledge regarding the phone call’s origin derived entirely from the jail’s records, which itself was hearsay for which the state did not attempt to meet the public records exception to the hearsay rule, the detective’s testimony regarding the phone call’s origin was inadmissible.

The state argues that any error in permitting the detective to identify the phone call’s origin was harmless. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”). According to the state, permitting the detective to identify the phone call’s origin was harmless because the detective identified the defendant’s voice on the phone call’s recording, which made the recording admissible.

The defendant contends that the error in permitting the detective to identify the phone call’s origin was harmful. According to the defendant, the detective’s identification of the phone call’s origin bolstered the detective’s identification of the defendant’s voice on the phone call’s recording. Thus, the defendant contends, the state was able to claim in closing argument that the phone call evidence was “more powerful than any fingerprint evidence or DNA evidence.”

We conclude that the error was harmful as the defendant contends. In reaching this conclusion, we recognize that the evidence against the defendant was overwhelming. However, in applying the harmless error test, our supreme court reminds us that the test “is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test.” Id. at 1139. Thus, the state cannot prove there is no reasonable possibility that the error did not contribute to the defendant’s conviction, especially when the state emphasized the detective’s testimony in closing argument. See Bartholomew v. State, 101 So.3d 888, 894 (Fla. 4th DCA 2012) (‘When determining prejudice, appellate courts may look whether the State compounded the error by relying on the evidence in final argument. This applies regardless of whether there is a separate objection to the use of the evidence in final argument.”) (internal citation omitted).

The “Beyond-the-Scope-of-Cross” Objection

During the detective’s direct examination, he testified about the police having recovered a gun, which testing showed was used in the shooting. According to the detective, the police recovered the gun from a man in a different county who was not involved with the shooting and who did not own the gun.

During cross examination, defense counsel asked the detective if the police found the gun on the defendant, his girlfriend, or “any of the characters or players that [the detective had] become familiar with in the course of [the] investigation.” The detective responded “no.”

During re-direct examination, the state asked the detective if he found a gun holster on the passenger floorboard of the car which the defendant was driving at the time of the arrest. Defense counsel objected that the question was beyond the scope of the cross examination. The court overruled the objection. The detective testified that he found a gun holster on the car’s passenger floorboard.

During re-cross examination, the detective acknowledged that the car which the defendant was driving at the time of the arrest belonged to the defendant’s girlfriend. The detective also acknowledged that he did not submit the gun holster for any type of lab testing, and that the police recovered the gun six months after the shooting.

The defendant argues that the trial court erred in overruling his objection that the detective’s re-direct testimony, describing the police finding a gun holster in the car which the defendant was driving at the time of his arrest, was beyond the scope of cross-examination.

We conclude that the detective’s re-direct testimony about the gun holster was not beyond the scope of cross examination. During cross examination, defense counsel attempted to deflect suspicion away from the defendant based on the fact that the gun used in the shooting was not found on the defendant, his girlfriend, or the vie-tims, but was found elsewhere with another person. During re-direct, the state merely attempted to explain its suspicion of the defendant based partly on the fact that the police found an empty gun holster in the car which the defendant was driving at the time of his arrest. This justification was minimally sufficient to admit the detective’s re-direct testimony about the empty gun holster. See Cartwright v. State, 885 So.2d 1010, 1013 (Fla. 4th DCA 2004) (“[A]s a general rule, testimony is admissible on redirect which tends to qualify, explain, or limit testimony given on cross-examination.”) (citation and quotations omitted).

In his brief, the defendant also argues that the gun holster evidence was irrelevant because there was nothing which linked the holster to the crimes charged. See, e.g., Jones v. State, 32 So.3d 706, 712-13 (Fla. 4th DCA 2010) (during a trial for attempted first degree murder and armed robbery, the trial court erred in denying the defendant’s motion in limine to exclude a gun cleaning kit seized from the defendant’s home, as “there was nothing unlawful about the defendant’s ownership of a gun cleaning kit and nothing was shown to connect it to the crimes charged”).

However, at trial, the defendant did not object to the relevancy of the gun holster. Therefore, the defendant did not preserve his relevancy objection for appeal. See Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (“[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”) (citations and quotations omitted).

Nevertheless, because we are remanding this case for a new trial, we note our recognition that the gun holster evidence was irrelevant because there was nothing which linked the holster to the crimes charged. See Zama v. State, 54 So.3d 1075, 1079 (Fla. 4th DCA 2011) (“Although [the defendant] never raised an objection to any of the evidence concerning the bullet-proof vest at trial, we agree it was error to admit such evidence, which was unconnected to the crime.”).

Reversed and remanded for a new trial.

WARNER and CIKLIN, JJ., concur.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Juan CARRIZOSA, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D12-5336.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2013.

      Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, and Richard M. Coin, Assistant General Counsel, Orlando, for Respondent.
   LaROSE, Judge.

Juan Carrizosa seeks second-tier cer-tiorari review of the circuit court’s order denying certiorari review of the Department of Highway Safety and Motor Vehicles’ (DHSMV) administrative order upholding the suspension of his driver’s license. See Fla. R. App. P. 9.030(b)(2)(B). Because the circuit court departed from the essential requirements of law in upholding the suspension without affording Mr. Carrizosa an opportunity to challenge the legality of the traffic stop, we are compelled to grant his petition.

In April 2011, a sheriffs deputy saw Mr. Carrizosa driving erratically. The deputy stopped Mr. Carrizosa, concluded he was impaired, and arrested him for driving under the influence. See § 316.193(l)(a), Fla. Stat. (2010). Mr. Carrizosa consented to submit to a breath test under section 316.1932(l)(a). That section provides, in pertinent part, as follows:

316.1932. Tests for alcohol, chemical substances, or controlled substances; implied consent; refusal
(l)(a)l.a. Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages. The chemical or physical breath test must be incidental to a lawful arrest and administered at the request of a law enforcement officer who has reasonable cause to believe such person was driving or was in actual physical control of the motor vehicle within this state while under the influence of alcoholic beverages. The administration of a breath test does not preclude the administration of another type of test. The person shall be told that his or her failure to submit to any lawful test of his or her breath will result in the suspension of the person’s privilege to operate a motor vehicle....

(Emphasis added.)

Mr. Carrizosa’s alcohol level proved to be over the legal limit. As a result, DHSMV suspended his driver’s license for six months pursuant to section 322.2615(1), Florida Statutes (2010):

322.2615. Suspension of license; right to review
(l)(a) A law enforcement officer or correctional officer shall, on behalf of the department, suspend the driving privilege of a person who is driving or in actual physical control of a motor vehicle and who has an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher, or of a person who has refused to submit to a urine test or a test of his or her breath-alcohol or blood-alcohol level. ...
(b) The suspension under paragraph (a) shall be pursuant to, and the notice of suspension shall inform the driver of, the following:
l.a. The driver refused to submit to a lawful breath, blood, or urine test and his or her driving privilege is suspended for a period of 1 year for a first refusal or for a period of 18 months if his or her driving privilege has been previously suspended as a result of a refusal to submit to such a test; or
b. The driver was driving or in actual physical control of a motor vehicle and had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher and his or her driving privilege is suspended for a period of 6 months for a first offense or for a period of 1 year if his or her driving privilege has been previously suspended under this section.

Mr. Carrizosa requested an administrative hearing to challenge the license suspension pursuant to section 322.2615(6) and (7):

(6)(a) If the person whose license was suspended requests a formal review, the department must schedule a hearing to be held within 30 days after such request is received by the department and must notify the person of the date, time, and place of the hearing.
(b) Such formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas for the officers and witnesses identified in documents in subsection (2), regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension....
(7) In a formal review hearing under subsection (6) or an informal review hearing under subsection (4), the hearing officer shall determine by a preponderance of the evidence whether sufficient cause exists to sustain, amend, or invalidate the suspension. The scope of the review shall be limited to the following issues:
(a) If the license was suspended for driving with an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher:
1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended had an unlawful blood-alcohol level or breath-alcohol level of 0.08 or higher as provided in s. 316.193. (b) If the license was suspended for refusal to submit to a breath, blood, or urine test:
1. Whether the law enforcement officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or chemical or controlled substances.
2. Whether the person whose license was suspended refused to submit to any such test after being requested to do so by a law enforcement officer or correctional officer.
3. Whether the person whose license was suspended was told that if he or she refused to submit to such test his or her privilege to operate a motor vehicle would be suspended for a period of 1 year or, in the case of a second or subsequent refusal, for a period of 18 months.

(Emphasis added.)

At a July 2011 DHSMV administrative review hearing, Mr. Carrizosa moved to invalidate .his license suspension, arguing that the breath test was invalid because it was incident to an unlawful stop. The hearing officer concluded that his scope of review was limited to whether the officer had probable, cause to believe that Mr. Carrizosa was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages or chemical or controlled substances and whether Mr. Carrizosa had an unlawful blood-alcohol level. See § 322.2615(6), (7). The hearing officer denied the motion and upheld the suspension based on these factual findings:

On April 28, 2011, the petitioner was observed drifting to its [sic] right and crossing the fog line. The vehicle then left its lane of travel while making a turn, going into the bicycle lane. After making another turn the vehicle drifted to its right and drove over traffic barriers. Believing the petitioner may be impaired Deputy Carson conducted a traffic stop. Upon making contact with the petitioner, the deputy detected the distinct odor of an alcoholic beverage on his breath as he spoke. He also noticed that his eyes were red and bloodshot. He was unsteady on his feet as he exited his vehicle. Deputy Carson administered field sobriety exercises on which further clues of impairment were exhibited. The petitioner was arrested for DUI and transported to Central Breath Testing, where he submitted to a breath test with the following results: .174 g/210L and .187 g/210L.
I find that all elements necessary to sustain the suspension for driving with an unlawful breath or blood alcohol level 3 under section 322.2615 of the Florida Statutes are supported by a preponderance of the evidence.

The hearing officer did not rule on whether the stop was legal; he limited his review to assessing whether the deputy had probable cause to believe that Mr. Carrizo-sa was driving while under the influence.

Mr. Carrizosa sought certiorari review of the hearing officer’s order in the circuit court. He argued that the hearing officer departed from the essential requirements of law by failing to invalidate the suspension because the vehicle stop was unlawful. See § 322.2615(13); Fla. R. App. P. 9.100(c)(1). The circuit court denied relief, holding that section 322.2615(7)(a) did not allow the hearing officer to review the lawfulness of the stop. We pause to note that in early 2012 the State dropped the DUI charge against Mr. Carrizosa. He now petitions for second-tier certiorari review in this court.

Standard of Review

On second-tier certiorari, we limit our review to “whether the circuit court (a) afforded procedural due process and (b) applied the correct law.” Arenas v. Dep’t of Highway Safety & Motor Vehicles, 90 So.3d 828, 831 (Fla. 2d DCA 2012) (citing Dep’t of Highway Safety & Motor Vehicles v. DeGroot, 971 So.2d 237, 239 (Fla. 2d DCA 2008)). To grant relief, we must conclude that the challenged ruling constitutes a departure from the essential requirements of law by violating a clearly established principle of law resulting in a miscarriage of justice. Id.‘[Cjlearly established law" can derive from a variety of legal sources.... [I]n addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certio-rari review.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003).

Analysis

In denying Mr. Carrizosa’s petition, the circuit court relied on Department of Highway Safety & Motor Vehicles v. Escobio, 6 So.3d 638 (Fla. 2d DCA 2009). Es-cobio, like this case, involved a license suspension after a breath test showed an unlawful alcohol level. We held that section 322.2615(7)(a) limited the scope of administrative review to two issues only: “(1) whether the arresting officer had probable cause to believe the person was driving or in actual physical control of -the vehicle while under the influence of alcoholic beverages and (2) whether the person had an unlawful breath- or blood-alcohol level.” Escobio, 6 So.3d at 640. We noted that this limitation of review “obviously does not affect a driver’s ability to challenge the lawfulness of his arrest in a criminal proceeding arising from the same circumstances or the legality of law enforcement’s actions in a civil proceeding.” Id.

Subsequent to Escobio and a month before Mr. Carrizosa’s administrative hearing, the. supreme court decided Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070 (Fla.2011). Hernandez addressed two certified questions:

Can the DHSMV suspend a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test if the refusal is not incident to a lawful arrest?
Is the' issue of whether the refusal was incident to a lawful arrest within the allowable scope of review of a DHSMV hearing officer in a proceeding to determine if sufficient cause exists to sustain the suspension of a driver’s license under section 322.2615, Florida Statutes, for refusal to submit to a breath test?

74 So.3d at 1073. A four-justice majority agreed that suspension may be predicated on the refusal to take a breath test only if the refusal is incident to a lawful arrest. Id. at 1073, 1076, 1077-78, 1080. The same majority also agreed that “the driver cannot be precluded from challenging whether the refusal was incident to a lawful arrest.” Id. at 1073, 1077-78, 1080. A plurality of three justices agreed that “the driver whose license is suspended is able to challenge whether the refusal was incident to a lawful arrest in the proceedings before the hearing officer who is reviewing the legality of the suspension.” Id. at 1073, 1079. Justice Quince disagreed that the statute authorizes the hearing .officer to determine the lawfulness of the arrest, but she agreed that “there must be a mechanism by which a driver can challenge the lawfulness of the arrest” for the statutory scheme to be constitutional. Id. at 1073,1080.

In Arenas, 90 So.3d at 829, the driver refused to submit to a breath test, but the State dropped criminal charges before he had an opportunity to challenge the legality of the traffic stop. We granted second-tier certiorari review of Mr. Arenas’ license suspension. Id. at 831. We held that the lawfulness of the stop and arrest must be reviewed “to avoid subjecting Mr. Arenas to a miscarriage of justice or unconstitutional treatment.” Id. at 834. We construed Hernandez to mean that “someone other than a judge in a criminal or civil proceeding can determine as a matter of law the validity of a Fourth Amendment arrest requiring probable cause or an investigatory stop requiring reasonable suspicion.” Id. at 833.

Therefore, we remanded the case for the circuit court to determine the proper mechanism to decide the lawfulness of Mr. Arenas’ arrest/ Id. at 834.

The circuit court shall either grant Mr. Arenas’ common law petition for certio-rari and remand the case to the DHSMV so the hearing officer can determine the lawfulness of the arrest and the consequences thereof or allow Mr. Arenas leave to file a declaratory action under chapter 86, Florida Statutes, for the same purpose.™6 Thus, in either manner, Mr. Arenas will be provided a mechanism he needed to review the lawfulness of his arrest, as Justice Quince and the plurality envisioned in Hernandez.
FN6. We suggest these alternative methods because, as a result of Justice Quince’s concurring-in-result-only opinion, there is not a clear majority for the view that the statutory framework gives a hearing officer in the DHSMV’s Bureau of Administrative Reviews the necessary jurisdiction to review the lawfulness of Mr. Arenas’ arrest.

Id.

We considered a factual variation in Lawrence v. Department of Highway Safety & Motor Vehicles, 93 So.3d 350 (Fla. 2d DCA 2012), where the driver challenged the suspension of her driver’s license for refusing to submit to a breath test after a traffic stop and arrest for driving under the influence. Ms. Lawrence pleaded guilty to a reduced charge of reckless driving; she did not contest the lawfulness of the stop in the criminal proceeding. Id. at 351. We granted certiorari and remanded to the circuit court to “determine the mechanism by which the lawfulness of the arrest may be decided,” including those suggested in Arenas and whether her criminal proceeding may have provided such an opportunity. Id. at 351.

Mr. Carrizosa urged the circuit court to grant his certiorari petition under Hernandez. His case is significantly different from Hernandez, Arenas, and Lawrence in one key respect: Mr. Carrizosa, in fact, submitted to and failed the breath test. The circuit court refused to extend Hernandez as suggested by Mr. Carrizosa. He now asserts that the circuit court unduly limited Hernandez’reach.

If the underlying facts recited by the hearing officer are accurate, we must wonder whether Mr. Carrizosa can establish an illegal stop. What remains critical, as a legal issue, however, is that Mr. Carrizosa had no available avenue to challenge his detention, irrespective of the merits of the stop. We have granted certiorari in several cases where the drivers contested license suspensions for breath-test results over the legal limit. In Roark v. Department of Highway Safety & Motor Vehicles, 107 So.3d 1131 (Fla. 2d DCA 2012), and Pankau v. Department of Highway Safety & Motor Vehicles, 91 So.3d 923 (Fla. 2d DCA 2012), we remanded for the circuit court to decide whether a criminal proceeding in which the petitioner pleaded guilty to reckless driving, after a breath test over the legal limit, was sufficient opportunity to challenge legality of stop. In the first of these, Roark, we noted the distinction from Arenas and Lawrence that Mr. Roark submitted to a breath test.

Rudolph v. Department of Highway Safety & Motor Vehicles, 107 So.3d 1129 (Fla. 2d DCA 2012), is factually similar to Mr. Carrizosa’s case. Ms. Rudolph challenged the suspension of her license for failing a breath test after an allegedly illegal stop. Id. at 1130. The administrative hearing officer, pursuant to section 322.2615(7)(a), refused to consider the lawfulness of the stop, and the State nolle prossed her driving-under-the-influence charge before she could challenge the stop in criminal court. Id. at 1130-31. We pointed to the supreme court’s warning in Hernandez that denial of the opportunity to challenge the lawfulness of the stop could subject the driver to a miscarriage of justice or unconstitutional treatment. Id. at 1130. We granted Ms. Rudolph’s cer-tiorari petition and remanded for the circuit court “to determine the mechanism by which the lawfulness of her stop may be decided.” Id. at 1130-31 (citing Arenas, 90 So.3d 828). Rudolph applies here. As noted earlier, the State dropped DUI charges against Mr. Carrizosa. Consequently, the circuit court denied Mr. Carri-zosa procedural due process by failing to afford him an opportunity to challenge the lawfulness of the stop.

Petition for writ of certiorari to the circuit court granted; remanded for proceedings in accordance with this opinion.

ALTENBERND and SILBERMAN, JJ., Concur.

      . Three justices agreed that a hearing officer’s scope of review includes whether the suspension was incident to a lawful arrest because (1) probable cause reviewed under section 316.1932(7)(b)(l) is "often inextricably intertwined with the lawfulness of the detention,” (2) whether the driver "refused to submit to any such test” reviewed under section 316.1932(7)(b)(2) refers to the "lawful" test required by section 322.2615(l)(b)(l)(a)," and (3) " 'sufficient cause' to sustain the suspension under section 322.2615(7) "require[s] that the hearing officer make the determination ■ of whether the test was administered incident to a lawful arrest.” Hernandez, 74 So.3d at 1078, 1079 (citation omitted). The language of sections 316.1932 and 322.2615, Florida Statutes (2007), applied in Hernandez is the same as the 2010 version applied here for purposes of this decision.


author: CRENSHAW, Judge.

text:
    Jerome L. PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-3813.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2013.

      Ita M. Neymotin, Regional Counsel, Second District, and Joseph Thye Sexton, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

Jerome Parker appeals his judgment and sentence to sixty months in prison, followed by fifteen years of probation, after a jury found him guilty of robbery with a firearm. Because the trial court abused its discretion by denying Mr. Parker’s motions for a mistrial following inappropriate comments made by the State on Mr. Parker’s postarrest silence, we reverse.

Factual Background

On October 1, 2011, Juan Galvan was robbed at gunpoint by two men. Mr. Gal-van reported this robbery to the police, and he provided a description of the vehicle the robbers fled in, along with a partial license plate. Later that night, Mr. Parker and another individual, Brandon Smith, were stopped after being seen near a vehicle that matched the description provided by Mr. Galvan. A third gentleman, Terrance Keesee, was also identified as a possible suspect.

Subsequently, law enforcement brought Mr. Galvan to the location where they encountered Mr. Parker, Mr. Smith, and Mr. Keesee. At that time, a show-up identification was conducted. When asked if any of these individuals had been involved in the robbery, Mr. Galvan was confident in his identification of Mr. Keesee as one of the perpetrators — the one who had carried the gun — but he was not positive about his identification of Mr. Parker. Mr. Galvan noted that Mr. Parker had a different shirt on, than the man who robbed him.

Deputy Lawrence Rials was the deputy who conducted Mr. Galvan’s show-up identification. Deputy Rials explained at trial, “during a show up you take the victim and you put them in the back of your patrol car, you turn on all your lights, ... you drive up to the suspect, approximately 40, 50 feet away, you light them up with your spotlight, and then you ask ... is that the person.” Deputy Rials reinforced that Mr. Galvan was uncertain regarding his identification of Mr. Parker, acknowledging “[o]n the second one [sic] Jerome Parker he thought that’s who it was but he couldn’t be 100 percent.”

Detective Robert Spradley also testified at Mr. Parker’s trial. Detective Spradley stated that after being placed under arrest, Mr. Parker provided some information to law enforcement about his activities on the night in question. For example, according to Detective Spradley, Mr. Parker admitted that he and Mr. Smith picked up Mr. Keesee from the side of the road, but Mr. Parker refused to answer questions about his activities during the time of the robbery. Additionally, Detective Spradley testified that he found a gun matching the description provided by Mr. Galvan in the general vicinity where Mr. Parker and the described vehicle were initially located. Law enforcement, however, was unable to find usable DNA or fingerprint evidence on the gun.

Based on this evidence, Mr. Parker was found guilty of robbery with a firearm. This timely appeal followed;

Analysis

The trial court abused its discretion by denying Mr. Parker’s motions for a mistrial. See Johnson v. State, 951 So.2d 11, 12 (Fla. 1st DCA 2007). As this court previously stated:

The due process clause of the Florida Constitution ... guards against prosecu-torial comments' on a defendant’s post-arrest silence. The standard for determining what constitutes a comment on post-arrest silence is fairly liberal. If the comment is fairly susceptible of being construed by the jury as a comment on the defendant’s exercise of his or her right to remain silent, it violates the defendant’s right to silence. Thus, evidence or argument that is fairly susceptible of being deemed a comment on the right of silence should be excluded.

Green v. State, 27 So.3d 731, 735 (Fla. 2d DCA 2010) (internal citations and quotation marks omitted). If a comment is fairly susceptible of being construed as a comment on the defendant’s exercise of his right to remain silent, the court must determine if admission of the comment was harmless error. State v. DiGuilio, 491 So.2d 1129, 1134-35 (Fla.1986).

In this case, during closing the State argued:

And what Detective Spradley says is, okay great, so you and Smith are in the car the whole time and you pick up Keesee, now you have three of you. here with the vehicle, a robbery occurred in the meantime, right after you picked up Keesee what did you do, and he can’t answer the detective. Okay. After you picked up Keesee where did you go, and he won’t answer. ...
[H]e tells the officer it was me, Smith[,] and Keesee in the car, but when asked what they did or where they went he couldn’t answer the detective that question.

(Emphasis added). The defense moved for a mistrial after each of these comments, but the trial court denied both motions.

Each statement emphasized in the two excerpts above constitutes either a direct comment or a comment fairly susceptible of being construed as a comment on Mr. Parker’s postarrest silence. As such the only question that remains to be answered is whether admission of these improper comments was harmless.

“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” DiGuilio, 491 So.2d at 1138; Evans v. State, 26 So.3d 85, 92 (Fla. 2d DCA 2010). Evaluating whether error was harmless in Green, this court stated:

We ... reject the State’s argument that any error arising from these comments was harmless.... Here, the State had no physical evidence placing Green at the scene of the crime, and none of the surviving robbery victims identified Green as a participant in the events.... Because the evidence of Green’s guilt was far from conclusive, the error in permitting these comments was not harmless.

27 So.3d at 737.

Similarly, in this case, the State had no physical evidence placing Mr. Parker at the scene of the crime, and the State’s only witness could not conclusively identify Mr. Parker as one of the perpetrators. The State provided testimony suggesting that Mr. Parker was with Mr. Kee-see during the time of the robbery, but only circumstantial evidence implicates Mr. Parker’s direct involvement. Therefore, we cannot say there is no reasonable possibility the State’s comments on Mr. Parker’s postarrest silence contributed to his conviction because the evidence against Mr. Parker is far from conclusive. Accordingly, we reverse.

Reversed and remanded.

MORRIS, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . During deliberation the jurors requested the court read back the portion of Mr. Galvan’s testimony “where he attempts to identify the suspect.” The court granted this request.

      . A review of Detective Spradley’s testimony confirms that the State's comments in closing are comments on Mr. Parker’s silence, not a characterization of statements actually made by Mr. Parker. For example, when the State asked whether Mr. Parker explained what he did after picking up Mr. Keesee, Detective Spradley answered, "He just didn't answer the question.... [H]e said after they picked up Mr. Keeseef — ]he didn’t give an answer as to where they went or what they did."

      . An isolated comment on a defendant’s failure to answer a single question during a voluntary, post-Miranda conversation with law enforcement does not violate the constitutional right to remain silent. See Thomas v. State, 726 So.2d 357 (Fla. 1st DCA 1999). These are not the facts of our case. Mr. Parker clearly refused to answer a series of questions directly related to his activities during the time of the robbery, and comments on Mr. Parker's silence were not isolated.


author: NORTHCUTT, Judge.

text:
    Michael CRAUN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2203.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2013.
    Michael Craun, pro se. ■
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Michael Craun entered an open plea to one count of aggravated white collar crime, a first-degree felony, see § 775.0844(4), (5)(c), Fla. Stat. (2003), and was sentenced to thirty years’ imprisonment. He subsequently filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He complained that there were numerous instances of ineffective assistance of counsel in connection with his plea and his sentencing hearing. We find merit in one of Craun’s arguments concerning his sentencing. We reverse the. postconviction court’s ruling on that point, and we remand for resentencing. We affirm the resolution of Craun’s other claims without discussion.

Craun and another man, Peterson, were charged in connection with an alleged conspiracy to defraud owners of time-share properties by .selling them worthless lists of supposed,, potential renters. In October 2004 both defendants pleaded guilty to one count of aggravated white collar crime. In November 2004 the State filed a sentencing memorandum that recounted postar-rest activities of both defendants. The prosecutor expected the two men to be sentenced together — the memorandum discussed them collectively, e.g., “both Defendants have had extensive discussions with a third party....” But the State had miscalculated Peterson’s guidelines sentence, and he had withdrawn his plea. Thus, only Craun was sentenced at a hearing held in March 20Ó5.

The witnesses at the hearing voiced favorable opinions of Craun. His father testified that Craun took care of his siblings when they were placed in foster care for a time after the children’s mother died. Craun’s former wife and the mother of his child testified that he went out of his way to help others who fell on hard times. He was a loving father, she said, and although he sometimes fell behind on his' child support, he always made arrangements to catch up. She related that their daughter had been the victim of a horrific crime and needed her father’s support. A local business owner recounted that one day when the computers in her restaurant failed, Craun voluntarily pitched in to help her. Over time he became what she characterized as a member of her family, helping out in two of her businesses without pay. Several of the witnesses thought Craun was a trusting man who placed too much faith in others. Craun himself related that he had been in the Marine Corps and served in a medical capacity in Desert Storm. He had received a commendation from the commanding officer at Camp Le-jeune for his role in quelling disturbances at the base. Craun had attended college and medical assistant school, and he wanted to pursue a four-year degree.

The State then argued its position based on its previously filed sentencing memorandum. It first contended that Peterson and Craun had conspired to mislead the court concerning their respective responsibility for the charged crimes. The prosecutor discussed telephone calls Craun made from the jail to a Ms. Kmiec in Kansas. In one of these monitored calls Craun said his attorney suggested that he shift the blame to Peterson in order to seek a' downward departure sentence. But Craun told Kmiec that he did not want to do that. He told her that if Peterson did not approve of the plan, he would not seek a departure sentence. Then the prosecutor discussed Peterson’s telephone calls to Kmiec. Peterson said that although he and Craun were partners, he made most of the decisions and he would take the blame. At one point the prosecutor attributed one of Peterson’s statements to Craun, but he then caught his mistake. The State contended that these telephone calls showed that Craun and Peterson were conspiring to mislead the court.

The prosecutor then posited that Peterson and Craun conspired to .deceive the court about their willingness to pay restitution. He laid out numerous facts about Peterson gleaned from telephone calls to Kmiec in which those two discussed keeping business revenues down until after restitution was imposed, filing bankruptcy, and retitling Peterson’s vehicle in his girlfriend’s name. The sentencing memorandum asserted that Peterson had transferred thousands of dollars to his girlfriend and to one of his companies. The memorandum also described a call in which Peterson told Kmiec to use some of his funds to pay his attorney’s fees and to reimburse his father. He said that he would pay back customers of one of the businesses but not another. In the only statement attributed to Craun, he told Kmiec that there were no assets with which to pay restitution and that he wasn’t worried — he would send “the bitches five dollars a month for the rest of my life.”

Finally, the State discussed another phone call between Craun and Kmiec in which Craun spoke of helping another inmate establish a Verizon telephone account for the inmate’s sister, who could not obtain one in her name. Craun asked Kmiec to help set up the account, and she did. He also asked her to set up a free AT & T account and explained how it could be done. Craun’s counsel informed the court that whatever may have transpired in setting up the telephone accounts, the accounts had been paid in full.

Although not specifically argued at the sentencing, the State’s memorandum contained an entire section devoted to the fact that Peterson was continuing to operate the time-share rental scheme from his jail cell. Peterson provided an affiliate in Kansas with a new script to use when approaching the time-share property owners. He offered to make Kmiec a partner in the business, and he stated that he was running the business from his jail cell. Also, a time-share owner had filed a new complaint concerning an attempted sale of the rental lists after Peterson had been jailed.

Craun’s criminal punishment code score-sheet prescribed a minimum sentence of 48.9 months’ imprisonment. Although his plea agreement noted that the maximum penalty for the charged crime was thirty years’ imprisonment, it also stated that “a downward departure from 48.9 months will be considered, but is not assured.” But at the sentencing hearing, Craun’s counsel advised that he was not pursuing a downward departure sentence.

When announcing its sentencing decision, the court stated:

I don’t think he deserves any leniency. It’s clear that these people — these victims aré not going to get any money back. Whatever moneys they’ve paid, they’ve lost. It’s clear that he’s not going to stop his ways of crime. And how brazen is it of a person to continue their criminality in victimizing people from jail cells? We keep people incarcerated, hopefully, to protect them— hopefully to protect the community from them, but yet he commits the same crimes.

The court sentenced Craun to the maximum sentence for a first-degree felony, thirty years’ imprisonment.

In his rule 3.850 motion, Craun contended that his counsel’s performance at the sentencing hearing was deficient for various reasons. Although somewhat unart-fully pleaded, Craun asserted that counsel was ineffective for failing to object to the State’s sentencing memorandum and to its arguments at the hearing insofar as they concerned Peterson’s activities. The post-conviction court summarily denied these claims.

When the postconviction court rejected Craun’s motion, this court’s opinion in Johnson v. State, 120 So.3d 629 (Fla. 2d DCA 2013), had not been issued. Johnson holds that an ineffective assistance claim based on counsel’s failure to object to a sentencing court’s consideration of improper factors is cognizable in a motion for postconviction relief. Id. at 631 (relying on the analogous proposition that failing to object to improper reasons given in support of an upward departure sentence may support postconviction relief).

As was the case in Johnson, the transcript of Craun’s sentencing hearing clearly establishes that the court relied on improper considerations when it imposed the maximum allowable sentence. The court’s subsequent order denying Craun’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) demonstrates this with even more clarity. When imposing sentence the court remarked that the “victims are not going to get any money back.” The order denying the rule 3.800(b)(2) motion stated that Craun “misrepresent[ed] his ability to pay restitution.”

But the damning telephone conversations detailed in the State’s sentencing memorandum and argued at the hearing were between Peterson and Kmiec, not Craun and Kmiec. Peterson, not Craun, hatched and implemented the scheme to avoid restitution. Peterson was actively trying to hide or transfer assets and to artificially minimize his business income. On the other hand, the State’s recitation concerning Craun’s telephone conversation reflected that he believed there were no assets with which to pay the restitution.

Likewise, it was Peterson, not Craun, who was committing what the court referred to as the “same crimes” while in jail. The court’s order denying Craun’s 3.800(b)(2) motion clarified what it meant by that term — it stated that the information it considered in imposing the sentence “related to a continuation of [Craun’s] criminal conduct charged in case 04-17727.” In case 04-17727 Craun was charged with fraud against the time-share owners. The section of the State’s sentencing memorandum discussing the ongoing time-share scam addressed only Peterson’s conduct described in his telephone calls from the jail. While the prosecutor discussed Craun’s role in obtaining allegedly fraudulent telephone accounts, he did not say that the State was prosecuting any crimes involving this conduct. And, apparently, those accounts had been satisfied. In contrast, the sentencing memorandum pointed out that a time-share owner came forward while Peterson was in jail and reported that she had been scammed by Kmiec, who, as the State noted in its memorandum, “has been in constant consultation with Defendant Peterson concerning the operation of the criminal enterprise.” Nothing presented either in the sentencing memorandum or at the hearing connected Craun to any alleged continuing fraud on time-share owners.

A sentencing court may not rely on “unsubstantiated allegations of misconduct or speculation that the defendant probably committed other crimes” when it imposes sentence. Nusspickel v. State, 966 So.2d 441, 445 (Fla. 2d DCA 2007); see also Doty v. State, 884 So.2d 547, 550 (Fla. 4th DCA 2004). In this case the court either incorrectly believed that Craun was the one actively concealing assets and continuing the time-share fraud, or it simply speculated that Craun was probably involved in the ongoing scheme of his code-fendant. Either way, its reliance on those considerations was improper, and it undermines our confidence in the outcome of the sentencing process. See Johnson, 120 So.3d at 632. Defense counsel should have objected when the court stated that Craun was not entitled to leniency based not on Craun’s own conduct, but on that of his codefendant, Peterson. Counsel’s failure to object was deficient performance, and because there was no possible tactical reason for such a failure, we need not remand this case for an evidentiary hearing. See id.

We therefore reverse the summary denial of this claim in Craun’s rule 3.850 motion, and we remand for a new sentencing hearing before a different judge. See Evans v. State, 979 So.2d 383, 386 (Fla. 5th DCA 2008) (reversing the summary denial of a rule 3.850 motion asserting ineffective assistance for failing to object to a vindictive sentence; remanding for resentencing by a new judge).

Affirmed in part, reversed in part, and remanded for resentencing.

VILLANTI and MORRIS, JJ., Concur.

      . Our record does not contain the scoresheet itself, but no one disputes this number. We note that a first-degree felony charged under section 775.0844 is a level nine felony under the Criminal Punishment Code. It would re-suit in a minimum scoresheet sentence of 48 months’ imprisonment if it accounted for the only points scored. See §§ 921.0022, .0024, Fla. Stat. (2003).


author: LOGUE, J.

text:
    In re GUARDIANSHIP OF O.A.M.
    No. 3D13-2250.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2013.
    Gold & Gold, P.A., and David H. Gold, Coral Gables, for petitioners.
    Before, SHEPHERD, C.J., and WELLS and LOGUE, JJ.
   LOGUE, J.

Richard and Lillie McFadden petition this Court for a writ of prohibition directing the trial judge to disqualify himself from these guardianship proceedings. The McFaddens assert that the trial judge improperly conducted an independent, ex-parte investigation of the April 29, 2010 disbursement of funds for the ward’s educational needs. We agree.

“The test for determining the legal sufficiency of a motion for disqualification is whether the factual allegations would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” Baez v. Koelemij, 960 So.2d 918, 919 (Fla. 4th DCA 2007) (citations and internal quotation omitted). In reviewing the allegations in a motion for disqualification, “facts must be taken as true and must be viewed from the mov-ant’s perspective.” Id.

The McFaddens’ motion contains specific statements indicating that the trial judge interviewed, outside the presence of the parties, the principal of the school where the ward was registered to attend. The motion also alleges the trial judge directly obtained financial records from Chase Bank to investigate the guardianship account, without involving the parties. The McFaddens’ motion thus contains specific statements which, if true, indicate the trial judge engaged in an independent investigation of the facts in the case.

“A judge must not independently investigate facts in a case and must consider only the evidence presented.” Fla. Code Jud. Conduct, Canon 3B(7) cmt. A judge’s “neutrality is destroyed when the judge himself becomes part of the fact-gathering process.” Albert v. Rogers, 57 So.3d 233, 236 (Fla. 4th DCA 2011); see also Vining v. State, 827 So.2d 201, 210 (Fla.2002) (“The judge overstepped his boundaries by conducting an independent investigation....”); Wilson v. Armstrong, 686 So.2d 647, 648-49 (Fla. 1st DCA 1996) (holding that trial judge’s ex parte meeting with estate’s accountant constituted a departure from the essential requirements of law).

The trial judge responded to the petition noting that “[i]n guardianship matters, there is no one protecting the ward against possible abuses [by the guardian], except the court.” A trial judge, however, has methods to address such concerns without engaging in a prohibited personal investigation of facts outside the record. The Florida Probate Rules, for example, authorize appointment of a guardian ad litem when the interests of the guardian are or may be adverse to those of the ward. While the trial court’s actions were undoubtedly motivated by a desire to protect the ward and might well be commendable in another context, those actions are inconsistent with the cold neutrality required of an impartial judge.

Thus, the McFaddens’ allegations, taken as true for purposes of this motion, support a reasonable fear that the judge could no longer serve impartially. The judge should have entered an order of disqualification.

Believing as we do that the trial court will comply with this opinion without the necessity of the issuance of a formal writ, the issuance of the writ of prohibition is withheld.

      . Rule 5.120 of the Florida Probate Rules states
      When it is necessary that the estate of a decedent or a ward be represented in any probate or guardianship proceeding and there is no personal representative of the estate or guardian of the ward, or the personal representative or guardian is or may be interested adversely to the estate or ward, or is enforcing the personal representative’s or guardian’s own debt or claim against the estate or ward, or the necessity arises otherwise, the court may appoint an administrator ad litem or a guardian ad litem, as the case may be, without bond or notice for that particular proceeding. At any point in a proceeding, a court may appoint a guardian ad litem to represent the interests of an incapacitated person, an unborn or unas-certained person, a minor or any other person otherwise under a legal disability, a person with a developmental disability, or a person whose identity or address is unknown, if the court determines that representation of the interest otherwise would be inadequate.
      Fla. Prob. R. 5.120 (2013) (emphasis added); see also Burden v. Dickman, 547 So.2d 170, 172 (Fla. 3d DCA 1989) ("Appointment of a guardian ad litem is mandated where the interest of the guardian is adverse to that of the ward, ... no less so when a natural guardian is involved.”).


author: WELLS, Judge.

text:
    Joel R. KRUGER, Appellant, v. Harriet KRUGER, Appellee.
    No. 3D12-2540.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2013.
    Richard L. Katz, South Miami, for appellant.
    Kaplan Zeena, and Stephan Louviere; Falk & Falk, and Steven M. Falk, Miami, for appellee.
    Before SHEPHERD, C.J., and WELLS and SALTER, JJ.
   WELLS, Judge.

Joel R. Kruger, the plaintiff below, appeals from an order dismissing with prejudice his claims against the defendant below, Harriet Kruger, for failure to timely file an amended complaint. Finding no record basis to support this sanction, we reverse. See Hunter v. Montalvo, 661 So.2d 123, 124 (Fla. 3d DCA 1995) (finding that the trial court abused its discretion in dismissing the complaint with prejudice for failure of plaintiff to amend the complaint despite being given leave to do so).

On April 15, 2011, Joel Kruger filed suit against his step-sister, Harriet Kruger, Wells Fargo Advisors, LLC and two Wells Fargo Advisors employees claiming that they manipulated a change in an insurance policy beneficiary designation form so as to deprive him of receiving benefits upon the death of the insured. He also joined the insurer, Lincoln National Corporation, for negligently paying the policy’s death benefits.

Wells Fargo and its two employees, arguing that this matter was governed by an account agreement that mandates dispute arbitration, moved to dismiss and compel arbitration. Harriet also moved to dismiss because Kruger had failed to attach a copy of the subject insurance policy to the complaint.

On September 13, 2011, the motions to compel arbitration and to dismiss were heard. There is no dispute that at that hearing the trial court orally granted Harriet’s motion to dismiss and granted Joel Kruger thirty days to file an amended complaint either attaching a copy of the insurance policy or attesting that he was not in possession of the policy. There also is no dispute that the trial court took the motion to compel arbitration under advisement, directing the parties to file additional legal memoranda. The parties do, however, dispute what happened next.

Specifically, Joel Kruger claims that having taken the arbitration issue under advisement, the trial court stated that Kruger could wait to file the amended complaint until after the court had ruled on the arbitration issue. Harriet claims that no such statement was made. No written order on either motion was ever entered.

Ten months later, in July 2013, a status hearing on the pending motion to compel arbitration was held. At that time, the trial court was advised that Joel Kruger had yet to file an amended complaint. Upon learning this, the court below sua sponte dismissed with prejudice all claims against Harriet:

By this Court’s previous ore tenus Order on September 13, 2011, Defendant HARRIET KRUGER’S Motion to Dismiss was granted. Plaintiff, Joel R. Kruger, ... was given thirty (30) days to amend the Complaint. Having failed to do so by July 17, 2012, the Court hereby dismisses, sua sponte, Plaintiffs claims against HARRIET KRUGER with prejudice.

We reverse this order for as this court explained in Sekot Labs., Inc. v. Gleason, 585 So.2d 286, 287 (Fla. 3d DCA 1990), where a complaint is dismissed with leave to amend, a trial court should not thereafter dismiss the complaint with prejudice for failure to timely do so unless the original order of dismissal provides that failure to comply will result in a dismissal with prejudice or the plaintiff receives separate notice that the action will be dismissed with prejudice for failure to amend and a hearing thereon:

An order granting leave to amend permits the party to amend; it does not require it. See Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51, 54 (Fla. 3d DCA 1982), review denied, 424 So.2d 763 (Fla.1982). From a procedural standpoint, “[ojnce a court has dismissed a complaint with leave to amend, it cannot subsequently dismiss with prejudice for failure to timely amend unless (1) separate notice is given to plaintiff of the hearing on the motion to dismiss with prejudice, or (2) the order dismissing the complaint with leave to amend specifically provides that on failure to amend within the stated time, the cause will be dismissed without further notice.” Neu v. Turgel, 480 So.2d 216, 217 (Fla. 3d DCA 1985), cause dismissed, 486 So.2d 598 (Fla.1986); accord Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d at 54-55.

Neither circumstance occurred here. No order of dismissal was entered in this case providing that failure to amend within thirty days would result in dismissal with prejudice. And, the subject of the hearing at which the action was dismissed was whether the action should be arbitrated, not whether the action should be dismissed with prejudice as a sanction for Kruger’s failure to timely amend. The action should not, therefore, have been dismissed simply because Joel Kruger failed to file an amended complaint attaching the insurance policy or attesting that he did not have a copy.

More to the point, “[ajmong the other factors which should be taken into account in the exercise of discretion [in dismissing an action for failure to file an amended complaint] is Florida’s longstanding policy in favor of adjudication on the merits, and against procedural default.” Id. at 289 (citations omitted). As the Florida Supreme Court in Kozel v. Ostendorf, 629 So.2d 817 (Fla.1993), confirmed, dismissal with prejudice for failure to file an amended complaint is an extreme sanction which generally cannot be justified absent a showing that the failure to amend was willful, deliberate, or contumacious, rather than an act of neglect or ■inexperience; that previous sanctions had already been imposed; that the client as opposed to counsel was involved in the failure to amend; that the delay prejudiced the opposing party through undue expense, loss of evidence, or otherwise; that no reasonable justification was offered for noncompliance; and that the delay created significant problems of judicial administration. Neither the order of dismissal nor the record before us indicates that any of these criteria were met. See McMillan v. Horan, 632 So.2d 1091, 1091 (Fla. 5th DCA 1994) (“Any final dismissal of a defaulting plaintiff, or the record upon which it is based, should demonstrate that the decision to dismiss conforms with the Ko-zel factors.”).

The order dismissing this action with prejudice is therefore reversed and this action remanded with instructions to determine what, if any, sanction is appropriate short of dismissal with prejudice. See McMillan, 632 So.2d at 1091 (“As emphasized in [Kozel], our supreme court is concerned with efficiency in the judicial system at all levels. When attorneys fail to adhere to filing deadlines ..., the trial courts, where appropriate, should utilize fines, public reprimands and contempt orders to expedite the progress of cases.”).

Reversed and remanded with instructions.

      . Additional grounds for dismissal not at issue here were raised by all parties.

      . "Where a court has permitted an amendment, the failure to amend timely is most nearly analogous to a failure to prosecute the action, which is the classic case for a dismissal without prejudice.” Sekot Labs., Inc., 585 So.2d at 288; see Fla. R. Civ. P. 1.420(e). "It would be anomalous if other forms of failure to prosecute would be subject to the one-year rule of Rule 1.420(e), Florida Rules of Civil Procedure (which results in a dismissal without prejudice) while a shorter delay after leave to amend would result (under defendant’s view) in a dismissal with prejudice." Id. at 289, n. 2 (on rehearing); see Fla. R. Civ. P. 1.420(e) (providing for dismissal of action for failure to prosecute where no record activity has occurred for a period of ten months and where, after receiving notice, "no record activity occurs within the 60 days immediately following the service of such notice”).


author: PER CURIAM.

text:
    Joseph ALLWINE, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-1059.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.
    Joseph Allwine, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

This petition alleged ineffective assistance of appellate counsel in failing to raise, as fundamental error, the trial court’s error in failing to instruct petitioner’s jury, pursuant to section 812.025, Florida Statutes (2004).

We held this case in abeyance until our supreme court resolved Blackmon v. State, 121 So.3d 535, (Fla. 2013) (holding such error was not fundamental error such that a new trial would be required). The supreme court having resolved the issue in a manner adverse to the petitioner’s position, we hereby deny the petition on the merits.

Petition Denied on the Merits.

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

      . Section 812.025, Florida Statutes (2004), provides as follows:
      Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.
      § 812.025, Fla. Stat. (2004) (emphasis added). The statute was enacted in 1977 and has not been amended. The petitioner already had received the remedy of having one of the two convictions vacated, and being resentenced accordingly. See Allwine v. State, 42 So.3d 291 (Fla. 4th DCA 2010); Allwine v. State, 978 So.2d 272 (Fla. 4th DCA 2008). He now sought a new trial.


text:
    Roger ALLY, Petitioner, v. JUSTICE ADMINISTRATION COMMISSION, Respondent.
    No. 4D13-687.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.

      Roger Ally, Fort Lauderdale, pro se.
    Ana Cristina Martinez and Christian D. Lake, Tallahassee, for respondent.
   PER CURIAM.

Petitioner, appointed counsel in a dependency case, seeks a writ of certiorari to quash a circuit court order denying his motion for excess attorney’s fees for his services in the case. Petitioner argues that the court arbitrarily failed to fully compensate him for his services and that the fee awarded him is confiscatory. Because the circuit court did not depart from the essential requirements of law by denying compensation in excess of the applicable statutory limit, we deny the petition.

Petitioner was appointed to represent a father in a dependency case. The Department of Children and Families had alleged that the father sexually abused his minor stepdaughters. Petitioner represented the father for approximately eight months before obtaining a dismissal of the case after trial. According to Petitioner, he spent a total of 32.9 hours in court and 75.1 hours out of court. He submitted a bill to the Justice Administrative Commission (“JAC”) for $8,100 — at a rate of $75 an hour. Because this amount exceeded statutory and contractual limitations on his fees, Petitioner filed a motion for excess attorney fees pursuant to section 27.5304(12)(d), Florida Statutes (2013).

The circuit court conducted a hearing on Petitioner’s motion. Petitioner argued that he was entitled to fees above the flat rate because the case was unusual or extraordinary. He explained that the case was unusual or extraordinary because he had to (1) attend a shelter hearing, arraignment, motion hearing, and a nine-day trial; (2) research evidentiary issues regarding child hearsay, and (3) cross-examine an expert at trial. Petitioner did not offer any expert testimony regarding the extraordinary or unusual nature of representation in this case or the amount of hours that should be reasonably expended on such a case.

The JAC objected to the bill submitted by Petitioner because it exceeded the statutory cap. It did not, however, contest the reasonableness of the hours expended by Petitioner or the timesheet he provided. The trial court disagreed with Petitioner that this dependency case required any unusual or extraordinary efforts and determined that double the fiat fee, or $1600, was sufficient compensation for the work done in this case.

In the petition for writ of certiorari, Petitioner claims that the circuit court departed from the essential requirements of the law by limiting his attorney’s fee award to an amount which compensated him for services at the rate of $14.81 per hour. This amount, he argues, is confiscatory. The JAC frames the issue before us as whether the trial court departed from the essential requirements of law in limiting Petitioner to double the flat fee without making any findings as to the reasonable number of hours worked. However, as explained below, such findings were not necessary in this case.

The statutory flat fee in this case is $800. Section 27.5304(12)(d), Florida Statutes (2013), provides:

If the chief judge or a single designee finds that counsel has proved by competent and substantial evidence that the case required extraordinary and unusual efforts, the chief judge or single desig-nee shall order the compensation to be paid to the attorney at a percentage above the flat fee rate, depending on the extent of the unusual and extraordinary effort required. The percentage must be only the rate necessary to ensure that the fees paid are not confiscatory under common law. The percentage may not exceed 200 percent of the established flat fee, absent a specific finding that 200 percent of the flat fee in the case would be confiscatory. If the chief judge or single designee determines that 200 percent of the flat fee would be confiscatory, he or she shall order the amount of compensation using an hourly rate not to exceed $75 per hour for a noncapital case and $100 per hour for a capital case. However, the compensation calculated by using the hourly rate shall be only that amount necessary to ensure that the total fees paid are not confiscatory.

In determining the extent the statutory cap should be exceeded, the trial court is required to make findings which consider the time spent on a case and the impact of the case on counsel’s availability to other clients. Watts v. Justice Admin. Com’n, 115 So.3d 431, 433 (Fla. 2d DCA 2013) (citing White v. Bd. of Cnty. Comm’rs of Pinellas Cnty., 537 So.2d 1376, 1380 (Fla.1989)). The trial court must also make findings as to the number of hours reasonably expended by the attorney to determine whether the fee award was confiscatory. Zelman v. Justice Admin. Comm’n, 78 So.3d 105, 107 (Fla. 1st DCA 2012).

However, in the first step of the analysis under section 27.5304(12)(d), Florida Statutes, the trial court must determine whether counsel has proved by competent and substantial evidence that the case required “extraordinary and unusual efforts.” Justice Admin. Comm’n v. Lenamon, 19 So.3d 1158, 1162 (Fla. 2d DCA 2009). If the trial court makes such a finding, the court is then authorized to award compensation in an amount up to 200 percent of the applicable flat fee. In this case, the trial court found that Petitioner did not prove by competent and substantial evidence that the case required extraordinary and unusual efforts. Although the trial court awarded Petitioner 200 percent of the flat fee, the analysis could have stopped at the first step. For, unlike in Watts and Zelman, where the cases handled by appointed counsel were determined to be extraordinary and unusual, here the court found no extraordinary and unusual aspects of the representation and thus was not required to order compensation in excess of the flat fee or to make findings as to the number of hours reasonably expended by Petitioner in determining whether the fee award was confiscatory.

Because the record supports the trial court’s finding that Petitioner failed to adequately establish unusual or extraordinary circumstances warranting compensation in excess of the statutory cap, the trial court did not depart from the essential requirements of the law. See Fla. Dep’t of Fin. Servs. v. Freeman, 921 So.2d 598, 601 (Fla.2006) (stating that the record provided no evidence upon which a judge could rely to determine if extraordinary or unusual circumstances existed to support an award of excess fees).

Petition denied.

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

      . A petition for writ of certiorari is the proper vehicle for reviewing an order regarding attorney fees for private court-appointed counsel. See Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925, 928 n. 3 (Fla.2002); Anderson v. E.T., 862 So.2d 839, 840 (Fla. 4th DCA 2003).


author: KHOUZAM, Judge.

text:
    REGIONS BANK, a foreign corporation authorized to do business in the State of Florida, Appellant, v. Steven J. SCHMIDT, Appellee.
    No. 2D13-718.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2013.
    J. Richard Caldwell, Jr., Jared E. Smith, and Kevin R. Gowen of Rumberger, Kirk & Caldwell, P.A., Tampa, for Appellant.
    Jonathan B. Cohen and Christopher Casper of James, Hoyer, Newcomer & Smiljanich, P.A., Tampa, and Ian R. Leav-engood and Christopher C. Nash of Leav-engood, Nash, Dauval & Boyle, P.A., St. Petersburg, for Appellee.
   KHOUZAM, Judge.

Regions Bank appeals an order granting Steven J. Schmidt’s motion for class certification. We affirm without comment the certification of the class.

However, the trial court also found that Regions Bank waived the right to arbitrate with all of the other class members. That issue was not before the trial court. Consequently, without addressing the merits, we vacate that portion of the order so that Regions Bank may, if it chooses, litigate the potential impact of the arbitration clauses alleged to be in its agreements with class members.

Affirmed in part; vacated in part.

NORTHCUTT and BLACK, JJ., Concur.


author: SALTER, J.

text:
    Kevin Charles SIMPSON, Appellant, v. TARMAC AMERICA, LLC, G & R Medical Services, Inc. and FL Smidth, Inc., Appellees.
    No. 3D12-3206.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2013.
    Joel S. Perwin; Alan C. Goldfarb and Liah C. Catanese, for appellant.
    Restani, Dittmar & Hauser, P.A., and Helen Ann Hauser, Esq., for appellees.

      Before SHEPHERD, C.J., and WELLS and SALTER, JJ.
   SALTER, J.

We affirm the Final Summary Judgment entered against appellant, Kevin Charles Simpson. See Morales v. Weil, 44 So.3d 173, 178 (Fla. 4th DCA 2010) (“[t]he duty to provide a reasonably safe working place for employees of an independent contractor does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform.”) (quoting Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So.2d 593, 596 (Fla. 4th DCA 2008)).

On cross-appeal, we find that the General Settlement and Waiver between G & R Medical Services, Inc., its insurance carrier, Liberty Mutual Insurance Company, and Mr. Simpson, was limited in scope to Mr. Simpson’s benefits under Chapter 440, Florida Statutes, and his claims against G & R and Liberty Mutual, but did not extend to, or include, Mr. Simpson’s claims against Tarmac America, LLC.

Affirmed.


author: LAGOA, J.

text:
    Leinnette M. THOMAS, Appellant, v. PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY d/b/a Jackson Health System, et al., Appellees.
    No. 3D13-1899.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2013.
    Leinnette M. Thomas, m proper person. R.A. Cuevas, Jr., Miami-Dade County Attorney, and Eric A. Rodriguez, Assistant County Attorney, for appellee Public Heath Trust of Miami-Dade County d/b/a Jackson Health System.
    Before SUAREZ, LAGOA and EMAS, JJ.
   ON MOTION TO DISMISS

LAGOA, J.

Appellee, Public Health Trust of Miami-Dade County (“Public Health Trust”), moves to dismiss the appeal filed by Appellant, Leinnette M. Thomas (“Thomas”). The Public Health Trust asserts that the notice of appeal filed by Thomas on July 22, 2013, is untimely and must be dismissed for lack of jurisdiction. We agree.

Thomas appeals from the trial court’s order denying her motion to vacate arbitration, which was rendered on January 24, 2012. “Under Rule 9.110 [Fla. R.App. P.], the ‘[failure to file any notice within the 30-day period constitutes an irremediable jurisdictional defect.’” Rice v. Freeman, 939 So.2d 1144, 1145 (Fla. 3d DCA 2006) (citations omitted). Because Thomas failed to file her notice of appeal within the thirty days prescribed by Rule 9.110(b), this Court lacks jurisdiction to hear the appeal. Richardson v. Miami-Dade Cnty., 983 So.2d 744 (Fla. 3d DCA 2008). Accordingly, we dismiss the appeal for lack of jurisdiction.

APPEAL DISMISSED.


author: PER CURIAM. EMAS, J.,

text:
    Barry McINTOSH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2552.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2013.
    Barry McIntosh, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Geter v. State, 115 So.3d 375, 385 (Fla. 3d DCA 2012).

■WELLS and FERNANDEZ, concur.

EMAS, J.,

dissenting.

For the reasons expressed in my dissent to the denial of motion for rehearing en banc in Geter v. State, 115 So.3d 385 (Fla. 3d DCA 2013), I respectfully dissent.


text:
    Ashahleh SANDERS-BASHUI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3221.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2013.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and LOGUE, JJ.
   LOGUE, J.

On direct appeal, Ashahleh Sanders-Ba-shui raises challenges to the legality of her sentence. We affirm without prejudice to Sanders-Bashui filing an appropriate post-conviction motion in the trial court that addresses these challenges.

In 2007, Sanders-Bashui was convicted of armed robbery and sentenced as a youthful offender to 364 days in jail, followed by five years of probation. One of the conditions of her probation was the successful completion of a residential treatment program. She violated this condition in 2011. Following an evidentiary hearing, the trial court revoked her probation and sentenced her to sixty-six months in prison, followed by one year of probation and two years of community control.

In one challenge to her sentence, Sanders-Bashui argues that the trial court erred in sentencing her to a term exceeding six years because her failure to complete the treatment program was a technical violation of probation. The governing statute provides that

no youthful offender shall be committed to the custody of the department for ... a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.

§ 958.14, Fla. Stat. (2011). It is clear that the trial court’s revocation in this case was based upon a technical violation. See State v. Meeks, 789 So.2d 982, 989 (Fla.2001) (“[W]e conclude that a ‘substantive violation,’ as the phrase is used in section 958.14, refers exclusively to a violation premised on the commission of a separate criminal act.”).

The State concedes that Sanders-Bashui raises a meritorious claim in this regard. The State contends, however, that this court should not address Sanders-Bashui’s claim on direct appeal because she did not challenge the legality of her sentence in the trial court. Under Supreme Court precedent, and as provided by the governing rules, the State notes that Sanders-Bashui should have preserved the issue by objection or by a motion to correct an illegal sentence prior to filing her initial brief. Because she failed to do so, the State argues that this court should affirm without prejudice to her filing a legally sufficient Florida Rule of Criminal Procedure 3.800(a) motion in the trial court. Brannon v. State, 850 So.2d 452, 458 (Fla.2003); Bannister v. State, 990 So.2d 595, 596 (Fla. 3d DCA 2008); Santiago v. State, 870 So.2d 198, 200 (Fla. 3d DCA 2004); but see Lightsey v. State, 112 So.3d 616, 618 (Fla. 3d DCA 2013). We agree with the State.

Affirmed.

      . In 2010, the State filed an affidavit of probation violation alleging that Sanders-Bashui had been arrested for various crimes. The trial court’s finding of a probation violation in this case, however, was based solely on Sanders-Bashui's failure to complete the residential treatment program.


text:
    Cathlyn PALMER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3331.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2013.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   SALTER, J.

Cathlyn Palmer appeals his convictions and sentences for burglary, armed robbery and possession of a firearm while engaged in a criminal offense. We affirm the convictions for armed robbery, and we reverse the convictions for burglary and for possession of a firearm.

The armed robbery convictions are affirmed because we find no error in the trial court’s direction to the defendant to demonstrate his gait for the jury, at the prosecutor’s request. The issue was not properly preserved for appellate review because defense counsel only objected once and on the solitary ground that the demonstration was duplicative. Putting aside the lack of preservation, we find no error in requiring the demonstration. As recognized in Macias v. State, 515 So.2d 206 (Fla.1987), demonstrations of this nature are not testimonial and do not violate the defendant’s Fifth Amendment rights.

The burglary conviction, however, is reversed. The defendant was charged with burglary under section 810.02(l)(b)l., Florida Statutes (2009). That section defines burglary as “[ejntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public .... ” Id. (emphasis added). Since the state’s evidence established that the premises were open to the public, this constitutes a complete defense to the charge of burglary. Miller v. State, 733 So.2d 955, 957 (Fla.1998).

Although this issue also was not preserved for review, a conviction based on insufficient evidence to demonstrate that a crime was committed at all constitutes fundamental error that can be addressed on appeal. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003).

The conviction for possession of a firearm while engaged in the commission of a felony also must be reversed. As the state properly concedes, and in light of the elements of the armed robbery charges, this conviction violates double jeopardy. See Williams v. State, 109 So.3d 831 (Fla. 3d DCA 2013).

We affirm the armed robbery convictions, and we reverse the convictions for burglary and for possession of a firearm during the commission of a felony.

Affirmed in part, reversed in part, and remanded.

      . The criminal incidents took place in a barber shop while it was open for business.


text:
    John Henry FORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1637.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    John Henry Ford, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Wes Paxson, III, and Jay Kubica, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The trial court erred in dismissing the appellant’s timely filed Florida Rule of Criminal Procedure 3.850 motion on the basis that it lacked jurisdiction to address the claims in which the appellant sought to withdraw his plea. The state concedes error.

We therefore reverse the order dismissing the appellant’s postconviction motion and remand for the trial court to address the claims contained therein. See Fla. R.Crim. P. 3.850.

THOMAS, RAY, and MAKAR, JJ., concur.


text:
    Freddie LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2422.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The order revoking appellant’s probation and the sentence subsequently imposed are affirmed. However, the cause is remanded to the trial court for entry of a corrected order of revocation which provides, consistent with the record, that appellant did not admit to the alleged violations of the conditions of probation and that appellant was found to have violated only one of the conditions of probation, changing his approved residence without first procuring the consent of his probation officer. Accordingly, the revocation of probation and sentence is AFFIRMED, but the cause is REMANDED for entry of a corrected order of revocation.

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


text:
    Jeremy FUENTES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4976.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    Jeremy Fuentes, 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.

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


text:
    Ray JAMES, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-3011.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2013.
    Ray James, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See James v. Crews, 120 So.3d 628 (Fla. 1st DCA 2013).

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


text:
    Carlos ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3754.
    District Court of Appeal of Florida, First District.
    Nov. 12, 2013.
    Carlos Robinson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the lower court’s September 25, 2012, judgment and sentence entered in Duval County case number 12-CF-001137-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 a 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.

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


text:
    STATE of Florida, Appellant, v. Roger Alan MITCHELL, Appellee.
    No. 2D12-6217.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellant.
    Michael A. Hanson, Tampa, for Appel-lee.
   LaROSE, Judge.

The State appeals an order granting Roger Alan Mitchell’s motion to suppress statements and physical evidence. The order resulted in the dismissal of drug conspiracy and trafficking charges. We have jurisdiction, see Fla. R. App. P. 9.140(c)(1)(A), (B), and reverse.

Mr. Mitchell was one of several persons investigated by the Temple Terrace Police Department (TTPD) for crimes related to fraudulent prescriptions. Apparently, TTPD impermissibly crossed jurisdictional lines into Tampa and Hillsborough County to investigate and effect arrests in connection with these alleged crimes. The trial court concluded that such actions contravened mutual aid agreements between TTPD and other law enforcement agencies.

Our record tells us little about Mr. Mitchell’s exact role in the charged offenses. We do know that TTPD officers arrested an alleged key culprit, Michael Maehin, outside of their jurisdiction in October 2009. Mr. Maehin cooperated with TTPD. Based on information he provided, TTPD officers arrested others, including Mr. Mitchell.

The trial court granted suppression motions in the cases of alleged coconspirators, ruling that TTPD lacked jurisdiction to conduct the investigation outside of city limits. Mr. Mitchell later adopted that motion and the trial court’s earlier findings in his motion.

In concluding that TTPD acted unlawfully outside its jurisdiction, the trial court relied on the terms of the mutual aid agreements. It also relied on our decision in State v. Allen, 790 So.2d 1122 (Fla. 2d DCA 2001) (granting suppression where warrant was obtained to search defendant’s property outside of city police officer’s jurisdiction when not authorized by cooperation agreement). The facts of that case, however, are inapposite. Allen involved an individual suspected of having drugs on his property. The Tampa Police Department obtained and executed a search warrant in Lutz. This search violated a mutual aid agreement between the Hillsborough County Sheriffs Office and the Tampa Police Department. Irrespective of the mutual aid agreement, we pause to note that Mr. Allen had an expectation of privacy relating to his property. Mr. Mitchell cannot say the same.

At the heart of this case is the question of whether Mr. Mitchell has standing to seek suppression. The State argued that Mr. Mitchell lacked standing to challenge Mr. Machin’s arrest for jurisdictional defects or any expectation of privacy. The trial court rejected the State’s challenge to Mr. Mitchell’s standing to seek suppression. This was error.

Standing is a question of law that we review de novo. Public Defender, Eleventh Judicial Circuit of Fla. v. State, 115 So.3d 261, 282 (Fla.2013). Standing requires a showing of a legally cognizable interest. Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So.3d 25, 28 (Fla. 5th DCA 2012). To have standing to challenge a search, a defendant must show a proprietary or possessory interest in the area of the search or that there are other factors that create an expectation of privacy. Hendley v. State, 58 So.3d 296, 299 (Fla. 2d DCA 2011). Mr. Mitchell made no such showing. Mr. Mitchell certainly had no reasonable expectation of privacy in a fraudulent prescription. See id.

Further, to the extent TTPD violated a mutual aid agreement by investigating and arresting Mr. Maehin, Mr. Mitchell cannot object to any violations of Mr. Machin’s rights. See San Martin v. State, 705 So.2d 1337, 1345 (Fla.1997) (holding that defendant did not have standing to question voluntariness of code-fendant’s statements implicating defendant in crime); McKenney v. State, 388 So.2d 1232, 1234 (Fla.1980) (finding that defendant did not have standing to object to violations of witness’s constitutional rights). As stated in State v. Pinoamador, 389 So.2d 317, 318 (Fla. 3d DCA 1980):

Assuming, arguendo, that, as the trial court found, the officers were without authority when, outside of the jurisdiction of Hialeah Gardens, and acting as officers, they met with a confidential informant who provided them information about the defendants, the only rights which could have been affected were those of -the confidential informant, which cannot be vicariously asserted by these defendants.

(Citing Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); McKenney, 388 So.2d 1232.) Mr. Mitchell essentially challenges Mr. Machin’s arrest outside the officers’ jurisdiction and the subsequent evidence developed therefrom. Mr. Mitchell cannot assert Mr. Machin’s rights vicariously-

Order denying motion to suppress and granting dismissal of charges quashed; cause remanded for further proceedings.

DAVIS, C.J., and WALLACE, J., Concur.