text:
    BENIHANA OF TOKYO, INC., et al., Petitioners, v. BENIHANA, INC., et al., Respondents.
    No. 3D11-2724.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.
    Shutts & Bowen, and Frank Zacherl, Stephen T. Maher, Miami, and Brad Red-lien, for petitioners.

      Stearns Weaver Miller Weissler, Alan H. Fein, Miami, for respondents.
    Before LAGOA, SALTER and LOGUE, JJ.
   SALTER, J.

Petitioners, Benihana of Tokyo, Inc. (“BOT”), Keiko Aoki, and Takanori Yoshi-moto, seek a writ of certiorari quashing a circuit court order denying their motion to stay a lawsuit brought against them in Miami, pending the resolution of two federal lawsuits in the United States District Court for the District of Delaware. One of those federal lawsuits was the first-filed case as among the three actions. BOT’s complaint in the first-filed federal case in Delaware asserted claims against two of the three respondents here (Benihana, Inc. and Noodle Time, Inc.). The third respondent, Benihana National Corp., is a wholly-owned subsidiary of Benihana, Inc. (as is Noodle Time, Inc.); we refer to the three respondents collectively as “BI.”

In December 2011, we granted the petitioners’ motion to stay further proceedings in the Miami-Dade circuit case against them pending further order of this Court. Following our review of BI’s response to the petition, the petitioners’ reply, and the status reports we required regarding the progress of the federal cases in Delaware, we now grant the petition and quash the circuit court’s order of September 22, 2011, that denied the petitioners’ motion to stay BI’s Florida lawsuit.

“This Court has certiorari jurisdiction to review a trial court’s non-final order denying a motion for stay.” Sorena v. Gerald J. Tobin, P.A., 47 So.3d 875, 877 (Fla. 3d DCA 2010) (citations omitted). In the present case, the parties in the three lawsuits are substantially similar and related, and the various claims and counterclaims are overlapping.

“Comity principles dictate that an action should be stayed, and a trial court departs from the essential requirements of law by failing to grant such a stay, when the first-filed lawsuit involves substantially similar parties and substantially similar claims.” Pilevsky [v. Morgans Hotel Group Mgmt., LLC], 961 So.2d [1032] at 1035 [(Fla. 3d DCA 2007)]. Complete identity of the parties and claims is not required. In re Guardianship of Morrison, 972 So.2d 905, 910 (Fla. 2d DCA 2007); Fedorov [v. Citizens State Bank], 24 So.3d [1227] at 1229 [(Fla. 3d DCA 2009) ]. “It is sufficient that the two actions involve a single set of facts and that resolution of the one case will resolve many of the issues involved in the subsequently-filed case.” Pilevsky, 961 So.2d at 1035 (quoting Fla. Crushed Stone Co. v. Travelers Indem. Co., 632 So.2d 217, 220 (Fla. 5th DCA 1994)).

Sorena, 47 So.3d at 877-78 (footnote omitted).

In the present case, the first-filed Delaware federal action and the circuit court action in Miami (filed five months later) include common issues, such as the validity and effect of an assignment of trademarks and a contract and amendment purportedly entered into by BOT and BI in 1994 and 1995.

Both of the federal lawsuits in the Delaware action are the subject of pretrial deadlines for pleadings, discovery, motions, and pretrial compliance. A United States Magistrate Judge was designated to explore alternative dispute resolution. A jury trial is set for August 2014.

BI’s amended complaint in Florida, which has not been set for trial, essentially describes the first-filed federal action in Delaware as a device for the public disparagement of the respondents. The verdict and judgment in the Delaware lawsuits appear likely to materially affect the viability of some of the respondents’ claims in the Florida lawsuit, and the prospect for inconsistent verdicts or other outcomes, if the Florida lawsuit is permitted to proceed before disposition of the Delaware lawsuits, is apparent from the record before us.

We are satisfied that the petitioners have demonstrated material injury and the absence of an adequate remedy on appeal if the Florida action is permitted to move forward with pretrial discovery, motions, and trial before the first-filed Delaware lawsuit. See Fortune Int’l Hospitality, LLC v. M Resort Residences Condo. Ass’n, Inc., 77 So.3d 741, 743 (Fla. 3d DCA 2011).

For these reasons, we grant the petition, quash the order denying the petitioners’ motion for a stay, and vacate our own interlocutory stay order (in anticipation that the trial court will grant the petitioners’ motion for a stay of the circuit court action).

Petition granted.

      . Initially, the Florida lawsuit brought by the respondents alleged that the first-filed federal lawsuit in Delaware was intended by BOT to disparage, and to diminish the value of, BI. The respondents later amended their Florida lawsuit to eliminate several specific references to the Delaware lawsuits.

      . After the dismissal, trial, or other disposition of the first-filed Delaware lawsuit, of course the respondents may seek to lift the stay of the Florida circuit court action as to any remaining, independent claims.


source: Caselaw Access Project

author: FERNANDEZ, J.

license: Public Domain

text:
    Ulyses WEST, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1304.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.

      Ulyses West, in proper person.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   FERNANDEZ, J.

Ulyses West appeals an order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. Because the trial court erred in its application of section 958.14, Florida Statutes (2013), we reverse and remand for further proceedings.

On August 17, 2004, Ulyses West pled guilty to the charges of armed robbery and armed burglary and was sentenced to four years in state prison followed by two years of probation. On October 15, 2008, West’s probation officer filed an affidavit of violation of probation. The affidavit set forth two violations: (1) that West failed to report to his probation officer after being released from confinement on February 11, 2008, and failed to report as of August 28, 2008; and (2) that West left his county of residence without the consent of his probation officer as evidenced by his arrest in Broward County on August 28, 2008, for riding a bike with no/improper light and possession of cannabis. The trial judge sentenced West to serve ten years in state prison for violating his probation.

West filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), claiming the trial court erred by imposing a ten-year sentence because, as a youthful offender, he could not have been sentenced to more than six years imprisonment based only on a technical violation. The order denying West’s motion stated that West had committed substantive violations while on probation, and noted that West “failed to report to probation for six months and picked up two new law violations.”

We review the trial court’s application of the Youthful Offender Act de novo. Luscomb v. Liberty Mut. Ins. Co., 967 So.2d 379, 380 (Fla. 3d DCA 2007). The Youthful Offender Act provides:

A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06. However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense which he or she was found guilty, with credit for time served while incarcerated, or 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, Florida Statutes (2013) (emphasis added). “[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.” State v. Meeks, 789 So.2d 982, 989 (Fla.2001). In contrast, “a technical violation is a violation of a rule of probation.” Swilley v. State, 781 So.2d 458, 460 (Fla. 2d DCA 2001).

As the State properly concedes, failure to report and leaving the county of residence without permission are technical offenses because they are merely violations of the rules or probation. See Meeks, 789 So.2d at 989; Swilley, 781 So.2d at 460. Under section 958.14, West could not be sentenced for a period of longer than six years for a technical violation. Therefore, we reverse the trial court’s order denying West’s motion to correct illegal sentence.

However, the record before us is unclear as to West’s charges in Broward County on August 28, 2008. While the probation officer’s affidavit indicates that West was arrested for two new offenses, the record includes neither evidence of the offenses nor the disposition of the charges. On remand, the trial court shall determine whether West committed a substantive violation of his probation per his August 28, 2008 charges in Broward County for riding a bike with no/improper light and possession of cannabis. If the record shows that West committed no substantive violation, then the trial court shall correct West’s sentence to comply with section 958.14, Florida Statutes (2018).

Additionally, the record does not indicate whether West’s 2009 plea agreement was a global plea, which resulted in the ten-year sentence. On remand, the trial court shall determine the scope of West’s 2009 plea agreement.

Reversed and remanded for further proceedings consistent with this opinion.


author: ROTHENBERG, J.

text:
    R.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1245.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   ROTHENBERG, J.

R.M. appeals an order adjudicating him delinquent and sentencing him to probation after his motion to suppress evidence was denied. We affirm.

A young student at the sixth-through-tenth-grade Mays Conservatory of the Arts School (“the school”) told his teacher that a group of three juveniles were in the school bathroom examining a handgun. The student informant described the person holding the gun as a tall, thin, African American male with a dark complexion and a low “afro” haircut, who appeared to be an upper-classman (ninth or tenth grade), wore a red school uniform shirt and dark-colored “skinny jeans,” and carried a book bag with a cartoon character or some type of “bling” on it. According to the record, there are approximately sixty black male students in the high school, and the type of the pants, hairstyle, and book bag identified are uncommon amongst the student body.

The teacher informed the school police officer and principal of the report, and the principal immediately sent an email to the school’s teachers to be on the lookout for someone matching the given description. The principal and officer then began walking through the school hallways in an attempt to locate the student with the gun. By happenstance, R.M.’s classroom was the first room they checked, and the school police officer quickly realized that R.M. matched the description exactly. The officer asked R.M. to accompany her into the hallway, and the principal took R.M.’s book bag and asked him if there was anything illegal inside. R.M. admitted that he had a gun in his book bag, and the principal opened the book bag and found a handgun. The principal later found an email response from a different teacher stating that she had a student other than R.M. who matched the description.

R.M. was arrested and charged with three related gun-possession offenses. Before his adjudicatory hearing, R.M. filed a motion to suppress the gun and his statements, arguing that there was no reasonable suspicion for the warrantless search and seizure because the student informant gave a broad, generalized description that could have matched almost any African American high school student in the building. The trial court denied the motion to suppress, and subsequently found R.M. to be delinquent on all three counts based largely on the testimony provided by the principal and school police officer. This appeal followed.

We presume the trial court’s determination of historical facts to be correct, but review the application of law to those facts de novo. Connor v. State, 803 So.2d 598, 608 (Fla.2001). The constitutional protections afforded students at school are not the same as those provided to adults in the general public because the school is a unique setting that requires a balancing of the “privacy interests of schoolchildren with the substantial need of teachers and administrators for freedom to maintain order in the schools .... ” New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). Accordingly, the search of a student conducted in a school context is permissible so long as the search is reasonable considering the totality of the circumstances. Id.; State v. D.S., 685 So.2d 41, 43 (Fla. 3d DCA 1996). A search may be unreasonable under the circumstances if it is based on a generalized description of the suspect that could apply to a large number of presumably innocent people in the area. L.O. v. State, 44 So.3d 1290, 1293-94 (Fla. 4th DCA 2010); Ross v. State, 419 So.2d 1170, 1170 (Fla. 2d DCA 1982).

Here, however, the description given was very specific. The student informant described the person holding the gun by giving pointed details about his height, weight, race, skin tone, approximate age, haircut, clothing, and book bag. Furthermore, the universe of potential suspects was quite narrow because there were only sixty African American male students in the high school and the described clothing and haircut were uncommon. Finally, the informant in this case was not an anonymous tipster, but a known and identified student, which bolsters the reasonableness of the school’s reliance on the description. Baptiste v. State, 995 So.2d 285, 291-92 (Fla.2008). We therefore find that the school officials’ actions in this case were entirely reasonable under the circumstances, particularly given the relaxed constitutional protections in a school setting and the grave danger posed by a potentially armed student on campus.

Affirmed.


author: EMAS, J.

text:
    Levi Jessie MEDINA a/k/a Juan Perez, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1355.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.

      Levi Jessie Medina a/k/a Juan Perez, in proper person.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA and EMAS, JJ.
   EMAS, J.

Defendant Levi Medina (“Medina”) appeals from the trial court’s summary denial of his motion for postconviction relief. For the reasons that follow, we reverse.

Following a jury trial, Medina was found guilty of, and sentenced upon, four felonies. Medina appealed the judgments and sentences, and this court affirmed. Medina v. State, 8 So.3d 1275 (Fla. 3d DCA 2009). The mandate was issued on June 3, 2009.

While serving his prison sentence, Medina prepared a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Medina asserts that the motion was mailed on May 20, 2011 (“the May Motion”), and the certificate of service on the final page contains Medina’s signature, together with the following two paragraphs:

CERTIFICATE OF SERVICE
I HEREBY DO CERTIFY that a true and correct copy of this petition was mailed to: State Attorney’s Office, 1350 NW 12th Avenue Miami, FL 33136 via the Jefferson Cl, Correctional Facility Legal Mail System.
I hereby do certify that pursuant to Penalty of Perjury Title 28 U.S.C. § 1746 that on this 20 day of May 2011 I signed and mailed this document via the Jefferson Correctional Facility Legal Mail System.

Medina’s May motion was not notarized.

After being transferred from Jefferson Correctional Institution to Charlotte Correctional Institution, Medina sent a letter to the circuit court clerk’s office to provide his new mailing address and to inquire as to the status of his May Motion. Medina alleges he received no response and later learned (on or about August 4, 2011) that his motion had not been received by or filed with the clerk. Accordingly, on August 8, 2011, Medina prepared a notice of re-filing his motion (“the August Motion”), together with an affidavit in which he attested that he originally mailed the motion on May 20, 2011, prior to the date he was transferred from Jefferson Correctional to Charlotte Correctional. The August Motion was received by the clerk below and was docketed on August 22, 2011.

In an order dated April 30, 2013, the trial court summarily denied Medina’s motion for postconviction relief. The trial court determined that the certificate of service on the May Motion was legally insufficient to establish the date of mailing because it was not notarized or signed under penalty of perjury. The court reasoned that this infirmity, combined with the fact that the May Motion was never docketed by the clerk, rendered it a nullity. The trial court concluded that because the August Motion was filed more than two years after Medina’s conviction and sentence became final, it was time-barred. See Fla. R. Crim. P. 3.850(b) (providing that a rule 3.850 motion generally must be filed within two years after the judgment and sentence become final).

Although it is true that the certificate of service on the May Motion was not formally notarized, this is not required of, or fatal to, a pro se motion filed under rule 3.850. The use of an unnotarized oath is specifically approved by Florida Rule of Criminal Procedure 3.987 (the form adopted by the Florida Supreme Court for use in motions filed under rule 3.850). See also Fla. R. App. P. 9.420(a)(2); State v. Shearer, 628 So.2d 1102 (Fla.1993); Theoc v. State, 832 So.2d 261 (Fla. 3d DCA 2002). Further, the trial court incorrectly found that the certificate of service was not signed under penalty of perjury. As described earlier, the final paragraph of the May Motion stated that, under penalty of perjury, Medina signed the motion and mailed it on May 20, 2011 by use of the legal mail system at Jefferson Correctional.

Because the May Motion contained an unnotarized oath certifying, under penalty of perjury, that Medina signed the motion and placed it into the hands of prison officials on May 20, 2011, it is presumed that this is the date of filing under the “mailbox rule.” Fla. R. App. P. 9.420(a)(2); Thompson v. State, 761 So.2d 324 (Fla.2000); Saavedra v. State, 59 So.3d 191 (Fla. 3d DCA 2011).

We therefore reverse and remand for further proceedings in the trial court. The trial court shall hold a further hearing at which the State may seek to rebut the presumption of timely filing. Should the State be unable to rebut this presumption, the trial court shall treat the motion as having been timely filed and shall proceed accordingly.

Reversed and remanded for proceedings consistent with this opinion.

      . The record reflects that the May Motion does not contain a date stamp indicating when (or whether) it was provided to prison officials at Jefferson Correctional for mailing. The August Motion does contain a date stamp indicating it was provided by Medina to prison officials at Charlotte Correctional for mailing on August 10, 2011.

      . That rule provides in pertinent part:
      A document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing. Such a document shall be presumed to be timely filed if it contains a certificate of service certifying that the inmate placed the document in the hands of an institution official for mailing on a particular date, and if the document would have been timely filed had it been received and file-stamped by the court on that date.

      .In its order, the trial court cited to Alterisio v. State, 704 So.2d 164 (Fla. 5th DCA 1997). In that case, however, the defendant’s motion contained no date or certificate of service, rendering it impossible for the court to determine the date on which the defendant placed the motion into the hands of prison officials.

      . As explained in Griffin v. Sistuenck, 816 So.2d 600, 601 (Fla.2002):
      Under the mailbox rule, a notice is deemed filed when it is delivered to prison authorities for mailing. It is called the "mailbox rule” because when an inmate places his or her documents in prison officials' hands, the inmate has, in essence placed the documents "in the mailbox.”

      . Although the Defendant did not use the precise phrase "placed the motion into the hands of the prison officials,” his statement under penalty of perjury that he "signed and mailed this document via the Jefferson Correctional Facility Legal Mail System” on May 20, 2011 is sufficient to satisfy the requirements of the mailbox rule. See Griffin, 816 So.2d at 602.


author: PER CURIAM.

text:
    Sophia JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-108.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. J.P. v. State, 35 So.3d 180, 181-82 (Fla. 3d DCA 2010); Thompson v. State, 249 So.2d 51, 51 (Fla. 3d DCA 1971).


author: WELLS, Judge.

text:
    Adelson Jean MARC, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1833.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.

      Adelson Jean Marc, in proper person. Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   WELLS, Judge.

Affirmed. See Chaidez v. United States, — U.S. -, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (holding that Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively); Hernandez v. State, 124 So.3d 757 (Fla.2012) (same).


text:
    Ryan WITTEN a/k/a Ryan Whitten, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D13-3170.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.
    Ryan Witten a/k/a Ryan Whitten, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

We dismiss the petition for writ of habe-as corpus. See Floyd v. Clark, 801 So.2d 325, 325 (Fla. 1st DCA 2001) (holding “this court has no jurisdiction to grant habeas corpus relief to one in federal custody pursuant to orders or process of the federal government”).


author: SUAREZ, J.

text:
    Jessica SARAVIA, Petitioner, v. FOR MIAMI-DADE COUNTY, J.D. Patterson, Jr. Sheriff/Director of Miami-Dade County, Respondent.
    No. 3D13-3222.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.

      Samuel J. Montesino, West Palm Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Nicolas A. Merlin, Assistant Attorney General, for Respondent, State of Florida.
    Before, WELLS, SUAREZ and SCALES, JJ.
   SUAREZ, J.

Jessica Saravia petitions this Court for a writ of habeas corpus to review the trial court’s October 25, 2013, ruling revoking the Petitioner’s bonds and ordering pretrial detention. We grant the petition and quash the bond revocation and pre-trial detention order.

The Petitioner was charged with DUI manslaughter, driving with a suspended license involving death, and DUI with property damage stemming from an incident occurring in March 2013. Saravia self-surrendered on August 28, 2013, and went before Judge Verde for first appearance the next day. After reviewing the factual circumstances surrounding Sara-via’s case and hearing from both the State and defense counsel, Judge Verde determined: 1) there was sufficient probable cause to sustain the charges, 2) Saravia was not a flight risk, and 3) Saravia posed a danger to the community because this, her second DUI, resulted in a fatality. The record of the first appearance indicates the trial court’s expressed concern was with the last consideration: what pretrial conditions could be imposed to protect the community from any danger Saravia’s actions might pose? The record of the August 29, 2013, first appearance hearing indicates Judge Verde was fully informed of Saravia’s first DUI conditions, as well as that the State had Saravia’s toxicology report for about a month prior to the first appearance hearing. The trial court carefully considered both the State’s and defense counsel’s proposed pre-trial conditions, the facts of Saravia’s behavior since the offense, and the standard legal bond amounts for each of the charges. Judge Verde ordered Saravia be given bonds in the standard amounts of $15,000 (DUI manslaughter), $5,000 (DWLS with death), and $1,000 (DUI with property damage), which she concluded were sufficient to ensure Saravia’s appearance in court. To ensure the safety of the community while on pre-trial release, the trial court ordered Saravia to house arrest, with specific instructions not to drive, and that she be fitted with GPS and SCRAM monitoring bracelet. The State later filed a motion to revoke the bonds and for pretrial detention. At the subsequent, October 25, 2013, hearing before a different judge, the trial court addressed the State’s motion and orally ordered the first appearance bonds be revoked.

Rule 3.131(d)(2) of the Florida Rules of Criminal Procedure provides that the state may seek modification of bail or the conditions of release set by an order entered at the first appearance hearing only by showing that there is good cause for the modification. To satisfy the “good cause” requirement in this rule, the State must present evidence of a change in circumstances or new information not made known to the first appearance judge that warrants the increase or revocation of bond. Soto v. State, 89 So.3d 263 (Fla. 3d DCA 2012); Bush v. State, 74 So.3d 130 (Fla. 1st DCA 2011); Goelz v. Bradshaw, 906 So.2d 1234 (Fla. 4th DCA 2005). We have carefully reviewed the record before us, and conclude the State failed to present evidence of any change in Saravia’s compliance or circumstances since the August 29, 2013, first appearance hearing, or of any information not known or made known to Judge Verde at first appearance that would warrant revoking bond and imposing pretrial detention. The State presented no new evidence or argument at the October 25, 2013 hearing, but in essence re-asserted its first appearance issues. Evidence that was available to the State at the time of first appearance does not qualify as “new” information and therefore does not justify the subsequent revocation of bond and imposition of pretrial detention. Soto, 89 So.3d at 263, 264; Bush, 74 So.3d at 133, 134. See also, Creech v. Ryan, 972 So.2d 1021, 1022 (Fla. 3d DCA 2008); Burton v. Felton, 625 So.2d 1334, 1335 (Fla. 3d DCA 1993).

We therefore grant the petition for writ of habeas corpus, quash the October 25, 2012 orders revoking Saravia’s bonds and imposing pretrial detention, and order reinstatement of the original, August 29, 2013, bonds and conditions of pretrial release, including the potential penalties associated with violating pretrial release conditions.

This opinion shall take effect immediately notwithstanding the filing of any motion for rehearing.

Petition granted.

      . The first appearance judge was aware that Saravia had been previously charged with a misdemeanor DUI and was sent to a pre-trial diversionary program, still in effect at the time Saravia picked up the current DUI offenses.

      . At the first appearance, and possessing all of this information, the State requested a $50,000 bond.and a monitoring bracelet.


author: LOGUE, J.

text:
    Leonard J. HARVEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1274.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2014.

      Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and LOGUE, JJ.
   LOGUE, J.

Leonard J. Harvey appeals the trial court’s order revoking his probation. We affirm the revocation; we remand to have the written order of revocation amended to reflect the trial court’s oral rulings.

In 2005, after a guilty plea, Harvey was adjudicated guilty in three separate criminal cases and sentenced to a prison term followed by five years of probation. During Harvey’s fourth year of probation, the State filed an amended affidavit of probation violation, alleging that he had committed four probation violations: (1) third-degree grand theft; (2) resisting an officer without violence; (3) failure to pay drug test fees; and (4) failure to pay supervision costs.

Following an evidentiary hearing, the trial court announced from the bench that Harvey had committed two probation violations: (1) third-degree grand theft; and (2) resisting an officer without violence. No findings concerning the failure to pay drug test fees or supervision costs appear in the transcript of the trial court’s oral pronouncements. The written order of probation revocation, however, reflected that Harvey committed all of the alleged probation violations. As the State properly concedes, the written order should correctly reflect the oral pronouncement. Laffitte v. State, 16 So.3d 315, 316 (Fla. 3d DCA 2009) (“A written order of probation revocation must conform to the court’s oral pronouncement at a defendant’s probation revocation hearing.”) (quoting Salvatierra v. State, 691 So.2d 32 (Fla. 3d DCA 1997)).

Affirmed in part, reversed in part, and remanded to correct the written order of revocation.


text:
    The STATE of Florida, Appellant, v. Virgil Lee HARRIS, Appellee.
    No. 3D12-1996.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2014.

      Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and James Moody, Assistant Public Defender, for appellee.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   FERNANDEZ, J.

The State of Florida appeals the trial court’s order granting in part and denying in part Virgil Lee Harris’ motion to correct illegal sentence. We reverse because the court committed no error when it failed to orally pronounce sentence and specifically pronounce sentence as a violent career criminal (“VCC”) at the sentencing hearing.

The State filed a six-count information against Harris on September 25, 1997: count 1 — robbery using a deadly weapon or firearm; count 2 — robbery using a deadly weapon or firearm; count 3 — attempted first degree murder; count 4— battery on a person 65 years of age or older; count 5 — battery on a person 65 years of age or older; count 6-burglary with assault or battery therein while armed. A jury convicted Harris on all grounds except one. On count 3, the jury convicted Harris of aggravated assault with a firearm as a lesser included offense.

The court adjudicated Harris and sentenced him on counts 1, 2, and 6 to a term of natural life as a VCC, with no minimum mandatory term. The court also sentenced Harris on counts 3, 4, and 5 to a term of fifteen years also as a VCC, with a minimum mandatory term of ten years. Count 2 was to run consecutive to count 1, and counts 3, 4, 5, and 6 to run concurrent with counts 1 and 2. This Court affirmed the sentence in Harris v. State, 747 So.2d 1070 (Fla. 3d DCA 2000).

In 2012, Harris filed a Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. The trial court entered an order granting in part and denying in part Harris’ motion. The trial court granted the motion on two grounds: (1) where Harris claimed that the sentence for count 5 was illegal because the trial court did not orally pronounce the sentence; and (2) where Harris asserted that the trial court failed to specifically pronounce the VCC sentence for counts 1, 2, and 6 at the sentencing hearing. The State now appeals, claiming this Court should reverse on these two grounds. We agree.

Harris first argued in his 3.800(a) motion that the sentence for count 5 was illegal because the trial court did not orally pronounce the sentence. He was sentenced in 1999 to three concurrent fifteen-year sentences on counts 3, 4 and 5, each with ten-year minimum mandatory terms, and as a VCC. However, the record reflects that Harris completed these sentences. This issue is thus moot. See Miller v. State, 996 So.2d 954 (Fla. 1st DCA 2008).

Next, we agree with the State that the trial court erred when it granted Harris’ 3.800(a) for its failure to specifically pronounce sentence at the hearing as a VCC on counts 1, 2 and 6. The sentencing court’s intention was sufficiently discernible from the record to determine that the court ordered a VCC sentence for counts 1, 2 and 6. A review of the totality of the circumstances at the sentencing hearing indicates the court’s intention on counts 1, 2, and 6 was clear. The partial sentencing transcript attached to Harris’ rule 3.800(a) motion reflects that Harris qualified as both a HVO and a VCC. Harris was then immediately sentenced at the hearing on all counts as a VCC. In the trial court’s written order, Harris was also sentenced as a VCC on all counts.

Furthermore, at the sentencing hearing, the State declared that Harris qualified as a VCC on all counts. The State also declared that the jury returned verdicts with the highest degree of guilt for each count, and that the trial court was required to review section 775.084, Florida Statutes (1999) to decide if Harris qualified as a career criminal on all counts. The court then explained to Harris that his sentencing was based on the six counts that he was found guilty of, as well as all of his priors. The trial court further notified Harris that he had a twenty-year history of committing violent crimes in this community and in Georgia, and that his last two victims were in their seventies.

The trial court then declared that, based on section 775.084, Harris met the criteria for life in prison on count 1 and consecutive life prison on count 2. It then sentenced Harris on count 4 to fifteen years as a career criminal to run concurrently with counts 1, 2, 3 and 4. On count 6, the trial court sentenced Harris to life in prison, to run concurrently with counts 1 and 2. The trial court further declared that the sentences were necessary for the protection of the public and that they met the criteria for section 775.084.

Florida law is clear that when the trial judge’s oral pronouncement of a sentence is ambiguous, but the judge’s intention is discernible from the record, the proper sentence is what the judge intended the sentence to be. Jackson v. State, 615 So.2d 850, 851 (Fla. 2d DCA 1993). Under the totality of circumstances, the trial court’s intention is clearly discernible from the record. The sentence is thus what the trial court intended it to be— Harris was sentenced as a VCC on counts 1, 2 and 6.

Additionally, section 775.084(l)(c) requires the court to impose the VCC sentence if the defendant qualifies. Also, the VCC sentence is a mandatory life sentence under section 775.084(l)(b) and (4)(b), and the court did not sentence the defendant to a minimum mandatory sentence, which is required if a defendant is sentenced as a HVO offender under section 775.084(l)(b) and (4)(b). As such, under the totality of circumstances, it can be inferred that the sentence is a VCC sentence for counts 1, 2 and 6.

Accordingly, we reverse and remand the case to the trial court for denial of Harris’ Florida Rule of Criminal Procedure 8.800(a) motion.

Reversed and remanded with instructions.


text:
    Christopher S. MACK, Charles T. Mack, and Kathleen Mack, Appellants, v. M. Maureen POLSBY, M.D., individually and as Trustee of the Charles C. Mack Revocable Trust u/a/d February 17, 2010, Appellee.
    No. 3D13-1227.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2014.
    Christopher S. Mack, Charles T. Mack, and Kathleen Mack, in proper persons.
    The Powell Law Firm, P.A., and Brett C. Powell, Palmetto Bay; Vasallo Sloane, P.L., and Christopher D. Vasallo, Pine-crest, for appellee.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   ROTHENBERG, J.

Christopher S. Mack (“Christopher”), Charles T. Mack (“Chuck”), and Kathleen Mack (“Kathleen”) (collectively, “Plaintiffs”) appeal from a final order dismissing their three count complaint filed against their sister, M. Maureen Polsby, M.D. (“Dr.Polsby”). We reverse.

This appeal involves a dispute between four adult siblings as to the Charles C. Mack Revocable Trust (“Trust”), which was created and funded in early 2010 while the siblings’ father, Charles C. Mack (“Mr. Mack”), was in a coma after suffering a massive stroke. This dispute pits Dr. Polsby, the trustee of the Trust and a beneficiary under the Trust, against Dr. Polsby’s three siblings, Christopher, Chuck, and Kathleen, who are also beneficiaries under the Trust.

The basic facts leading up to this dispute are as follows. Shortly after Mr. Mack suffered a massive stroke and went into a coma, Dr. Polsby filed a petition seeking to be appointed as Mr. Mack’s emergency temporary guardian, which was granted. On February 10, 2010, Dr. Pols-by, as temporary guardian, filed an Amended Petition to Create and Fund Revocable Trust and thereafter, on February 16, 2010, filed an Emergency Amended Petition to Create and Fund Revocable Trust (“Emergency Amended Petition to Create a Trust”), which notified the probate court that Mr. Mack was in critical condition and asserted that it was in the best interest of Mr. Mack and his heirs— the four siblings — to establish an estate plan for Mr. Mack through a revocable trust. The Trust contains unusual language granting Dr. Polsby, as trustee, certain discretion to withhold distributions of income and principal to any of the beneficiaries for their “protection,” despite the fact that all four siblings are currently in their sixties and none of them seem to be incompetent or unable to care for themselves. For example, Dr. Polsby, as Trustee, has the discretion to suspend payments to her siblings/beneficiaries if she “reasonably believes” that a “beneficiary is incapable of caring for himself or herself or is likely to dissipate his or her financial resources.”

On February 16, 2010, Judge Norman Gerstein granted the Emergency Amended Petition to Create a Trust, authorizing Dr. Polsby to transfer Mr. Mack’s real property located in Michigan into the Trust. The following day, the Trust was created, naming Dr. Polsby as the trustee and the four siblings as equal beneficiaries, and within days, Mr. Mack’s Michigan property was transferred into the Trust. Dr. Polsby was subsequently appointed as Mr. Mack’s plenary guardian in March 2010. Mr. Mack eventually passed away in April 2010, and in July 2010, Christopher was appointed personal representative of Mr. Mack’s estate by a Michigan court.

Christopher, individually, as a beneficiary of the Trust, and as the personal representative of Mr. Mack’s estate, filed an action against Dr. Polsby, individually and as the trustee of the Trust, which complaint was later amended. Count I of the operative complaint sought a declaration that the Trust is invalid; Count II alleged a breach of fiduciary duty by Dr. Polsby, as trustee; and Gount III sought removal of Dr. Polsby as trustee of the Trust. A successor judge, Judge Lawrence A. Schwartz, presided over the complaint.

After filing an answer and affirmative defenses, Dr. Polsby moved for summary judgment, arguing, in part, that the request to invalidate the Trust “is a veiled attempt to have this Court review or reverse Judge Norman Gerstein’s prior order,” and that the trial court lacked jurisdiction to review a predecessor judge’s order or to invalidate the Trust created by Judge Gerstein. The Plaintiffs filed an opposition to Dr. Polsby’s motion for summary judgment.

Following a hearing, Judge Schwartz granted Dr. Polsby’s motion for summary judgment, ruling: “This Court has no jurisdiction to review a predecessor judge’s order or to invalidate the Trust created pursuant to orders of Judge Norman Ger-stein.” The Plaintiffs appealed that order, but this Court dismissed the appeal without prejudice to the rights of the parties to file a notice of appeal from a final order (Case No. 3D12-2327).

Thereafter, the Plaintiffs filed a motion for reconsideration of the order granting summary judgment in favor of Dr. Polsby and also sought entry of a final judgment. At this point, Judge Michael A. Genden was assigned to the Plaintiffs’ action. Judge Genden denied the Plaintiffs’ motion for reconsideration, and also entered an order dismissing the Plaintiffs’ complaint with prejudice, ruling: “[T]his Court has determined that it has no jurisdiction to review a predecessor Judge’s prior orders or to invalidate the Trust created pursuant to such orders.” The Plaintiffs’ timely appeal of the dismissal order followed.

The Plaintiffs contend that the trial court erred by dismissing their amended complaint with prejudice based on its finding that it has no jurisdiction. As the trial court has jurisdiction over all three counts, we agree with the Plaintiffs.

As to Count I (invalidation of the Trust), the allegations demonstrate that the trial court has jurisdiction. The complaint alleges that Dr. Polsby failed to serve the Amended Petition to Create a Trust or the Emergency Amended Petition to Create a Trust on the Plaintiffs, and that Dr. Polsby committed a fraud upon the court when she petitioned the probate court to create and fund a revocable trust. See Fla. R. Civ. P. 1.540(b) (allowing relief from a judgment procured by the opposing party’s fraud or if the judgment itself is void).

As to the remaining counts, Count II (breach of fiduciary duty) and Count III (removal of trustee), Dr. Polsby’s counsel properly conceded at oral argument that these counts are independent of, and occurred subsequent to, the creation of the Trust and, therefore, the trial court clearly has jurisdiction to address Counts II and III.

Accordingly, we reverse the final order dismissing the complaint and remand for further proceedings.

Reversed and remanded.

      . Apparently, throughout his lifetime, Mr. Mack chose to never execute a will.


author: SALTER, J.

text:
    1ST PRIORITY RESTORATION, INC., Appellant/cross-appellee, v. Diya SALAME, Appellee/cross-appellant.
    No. 3D13-492.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2014.

      Perry & Neblett, P.A. and Jerrod M. Paul, for appellant/cross-appellee.
    Andrew M. Greenidge, Ft.Lauderdale, for appellee/cross-appellant.
    Before SHEPHERD, C.J., and SALTER and FERNANDEZ, JJ.
   SALTER, J.

1st Priority Restoration, Inc. (1st Priority), appeals non-final orders entered by the circuit court in a case involving a $4,898.87 invoice rendered for cleaning up water damage in the appellee’s, Mr. Sa-lame’s, home in 2007. Initially, this routine consumer dispute seemed to have been settled with two simple terms — Mr. Salame would pay the invoice, and 1st Priority or its attorney would return a rug or rugs to Mr. Salame.

In the attempted consummation of this settlement, however, the routine consumer dispute escalated into a stop payment order issued by Mr. Salame on his settlement check based on his allegations that three of his four rugs had not been returned by 1st Priority (and that the fourth had been damaged). This second dispute spawned years of pleadings, hearings, and judicial labor to consider claims for civil theft, check fraud, and attorney’s fees and costs.

1st Priority’s initial notice of appeal sought review of an order granting summary judgment to Mr. Salame on Counts II and III of 1st Priority’s amended complaint—these were the statutory claims for civil theft and check fraud—and transferring the case to the county court on Count I, the remaining breach of contract claim. That order was rendered in the circuit court on November 2, 2012. Although 1st Priority moved for reconsideration and rehearing of the order within ten days, that motion was not one which would delay “rendition” of the non-final order of November 2, 2018. Fla. R. App. P. 9.020(h). The circuit court denied the motion for reconsideration or rehearing on November 13, 2012. The notice of appeal was filed December 6, 2012, which made it untimely as to the order of November 2, 2012, and timely only as to the order denying reconsideration and rehearing.

More significantly, the notice of appeal was not taken from a final order or from one of the limited categories of non-final order that may be appealed on an interlocutory basis. Fla. R. App. P. 9.110, 9.130(a)(3). That portion of the order granting a motion for summary judgment on Counts II and III was not a final, appealable order. Castillo v. Deutsche Bank Nat’l Trust Co., 57 So.3d 965 (Fla. 3d DCA 2011). That portion of the order transferring the case to the county court also was not final or appealable, as the underlying net damages amount (invoice amount, already awarded, less any setoff for the alleged failure to return rugs) has not yet been adjudicated and reduced to a final judgment.

Nor has our jurisdiction been properly invoked by Mr. Salame’s cross-notice of appeal. The cross-notice was filed July 16, 2013, purportedly seeking review of another non-final order (a May 2012 order granting 1st Priority’s motion for summary judgment on Count I). Under Florida Rule of Appellate Procedure 9.110(g), a cross-appeal would have been untimely after December 16, 2012, even if taken from an appealable order.

Appeal and cross-appeal dismissed.

      . 1st Priority had already obtained a summary judgment on that count, but not a final judgment awarding the $4,898.87 invoice amount and interest. The circuit court correctly determined that the remaining amount in controversy warranted a transfer of the case to the county court. DNA Ctr. for Neurology & Rehabilitation v. Progressive Am. Ins. Co., 13 So.3d 74 (Fla. 5th DCA 2009).

      . The notice of appeal was filed December 6, 2012.

        . Scheel v. Advance Mktg. Consultants, Inc., 277 So.2d 773 (Fla.1973) (order of transfer by circuit court to court of record held non-final and non-appealable, with review to abide the eventual outcome of the action). Scheel predates the current rules, and we doubt that it would apply had the circuit court simply dismissed the 1st Priority-Salame lawsuit for lack of jurisdiction.


text:
    SUNSHINE STATE INSURANCE COMPANY, Appellant, v. Dorothy HASNALI and Khanai Mangry, Appellees.
    No. 3D13-967.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2014.
    Steven G. Schwarz and David J. Pascuz-zi, Boca Raton, for appellant.
    Alvarez, Carbonell, Feltman & DaSilva and Paul B. Feltman, for appellees.
    Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
   CONFESSION OF ERROR

On appellees’ proper confession of error, see Sunshine State Ins. Co. v. Munoz-Upton, 127 So.3d 822 (Fla. 3d DCA 2013), we reverse the order on appeal and remand for an appropriate order transferring venue by the court below.

Reversed.


author: BERGER, J.

text:
    Alfonso PAOLERCIO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-4320.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2014.
    Robert Wesley, Public Defender and Justin Corey Patrou, Assistant Public Defender, Kissimmee, for Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   BERGER, J.

Petitioner, Alfonso Paolercio, seeks a writ of habeas corpus, ordering his immediate release from the county jail where he is being held without bond despite a finding of incompetency. The State properly concedes Petitioner is entitled to release. Accordingly, we grant the petition.

On February 26, 2012, Petitioner was arrested for possession of cocaine and two misdemeanor charges. Thereafter, he was found incompetent to proceed and released on his own recognizance. The trial court later determined that Petitioner was unlikely to regain competency because of a past traumatic brain injury and therefore, would not benefit from competency restorative efforts.

While on pretrial release, Petitioner was arrested on new charges. As a result, on August 28, 2018, the trial court revoked its prior order releasing him on his own recognizance. Petitioner’s counsel then filed a motion to set release conditions and later orally amended the motion to request Petitioner’s immediate release on his own recognizance. The court denied Petitioner’s request, finding that section 916.17, Florida Statutes (2012), did not apply and that Petitioner could be detained pursuant to section 903.0471, Florida Statutes (2012), as there was probable cause that he committed a new offense while on pretrial release. The court further indicated that Petitioner would remain in custody and be unable to file additional motions for release unless there was a change in circumstances. This petition followed.

Petitioner claims he is entitled to immediate release in Osceola County Case No. 12-793 because section 903.0471 does not apply to defendants who have been released because of a finding of incompetence. We agree.

Section 903.0471 provides:

Violation of condition of pretrial release — Notwithstanding section 907.041 [the pretrial detention and release statute], a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that defendant committed a new crime while on pretrial release.

Although section 903.0471 authorizes revocation of a competent defendant’s release and the imposition of pretrial detention upon the commission of a new offense, section 916.17(2) appears to leave the judge only two options when an incompetent defendant violates the conditions of pretrial release: modify the conditions of release or involuntarily commit the defendant to the Department of Children and Families (DCF). See Douse v. State, 930 So.2d 838, 839 (Fla. 4th DCA 2006).

Here, however, the trial court determined that section 916.17 did not apply because there was no indication that Petitioner’s competency might be restored pursuant to either involuntary commitment or outpatient treatment, and because it did not find that Petitioner was incapable of surviving alone or with the help of friends, or that he was likely to inflict serious bodily harm to himself or others. § 916.17(1), Fla. Stat. (2012); § 916.13(l)(a), Fla. Stat. (2012). Therefore, the trial court detained Petitioner pursuant to section 903.0471, finding that there was probable cause that Petitioner committed a new offense while on pretrial release.

While it appears the trial court may be correct in its determination that section 916.17 does not apply to incompetent defendants who cannot be restored to competency, the problem with its rationale is that such non-restorable defendants could theoretically be detained (solely for the purpose of protecting the public from further criminal activity) for up to two years if mentally retarded or five years if mentally ill upon the commission of a new offense while on pretrial release. See § 916.145, Fla. Stat. (2012); § 916.303(1), Fla. Stat. (2012). In such cases, the defendant, by virtue of his incompetence, would not be afforded the protections of the speedy trial rule, nor would he be able to enter a plea to resolve the charges. Indeed, he would have fewer protections than a competent defendant and would remain suspended in custodial limbo until the State dismissed the charges. As the Fourth District noted in Douse:

[It] is a violation of essential fairness to detain an accused in a jail indefinitely when he is incompetent to proceed. While so detained he cannot be tried precisely because he is incompetent to proceed, yet jailhouse treatment for his incompetency is unlikely. It is illogical to hold that an incompetent defendant who commits a new offense thereby loses the protection afforded to those who are incapable of defending themselves. If that were the case, such persons could be detained indefinitely without any finding of guilt.

Id. at 840.

This case presents a troubling set of circumstances. Since Petitioner is unlikely to regain competency, the trial court cannot place Petitioner in an outpatient program for treatment to restore competency. See Oren v. Judd, 940 So.2d 1271 (Fla. 2d DCA 2006) (granting petition for writ of habeas corpus and quashing trial court’s civil commitment of incompetent defendant for treatment to restore competency, where evidence established that defendant would never regain competency). Nor can it hold Petitioner in jail indefinitely. See Douse, 930 So.2d at 839. Accordingly, the court is left with no other option but to release Petitioner back into the community, where he will likely commit more crimes, for which he will again be released due to his incompetency. Given scenarios such as this, trial courts are understandably reluctant to release incompetent, reoffending defendants back into the community. Nevertheless, until the legislature provides a fix, the only recourse is for the State to institute civil commitment proceedings pursuant to section 394.467, Florida Statutes (2012). See Bronson v. State, 89 So.3d 1089 (Fla. 5th DCA 2012).

In Bronson, the defendant was charged with murder and thereafter found incompetent to proceed. He was civilly committed, but DCF successfully obtained certio-rari relief on the basis that the trial court did not follow the statutory civil commitment procedures. After being released from DCF custody, Bronson was transferred back to the county jail. When the State did not re-initiate civil commitment proceedings, a habeas petition was filed on his behalf. In granting Bronson’s petition, we noted that according to the medical evidence it was unlikely Bronson would ever regain competency. As such, we held that Bronson must be released, without prejudice to the State to institute civil commitment proceedings if it had grounds to do so. Id. at 1090. Petitioner is entitled to the same.

For the foregoing reasons, we grant the petition for writ of habeas corpus, and direct the trial court to release Petitioner in accordance with the law. This decision is without prejudice to the State instituting civil commitment proceedings, should it conclude it has grounds to do so.

PETITION GRANTED.

PALMER and LAWSON, JJ„ concur.

      . Osceola County Case No. 12-793.

      . Petitioner originally posted bond on the charges. However, on June 22, 2012, the court revoked pretrial release due to a positive test for cocaine.

      . In Osceola County Case No. 13-3195, Petitioner was charged with burglary and other offenses.

      . At the bond hearing, the court found that when Petitioner had his first appearance in Osceola County Case No. 13-3195, the court revoked his bond only as to Case No. 12-793, so his no bond status applied only to the earlier case.

      .The court cautioned that if the passage of time was the only change in circumstance, another motion for release would not be entertained until six months had elapsed from the date of Petitioner’s arrest on the new offenses.

      . See also Roddenberry v. State, 898 So.2d 1070, 1073 (Fla. 5th DCA 2005) (“The inability to restore the defendant [to competency] requires dismissal of the charges against him or civil commitment.’'); Judd, 940 So.2d at 1274 (where evidence established that defendant would never regain competency; the State must either initiate civil commitment proceedings or defendant must be released); Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004) (where it was determined that there was no substantial probability that Mosher would regain competency, the State must either institute civil commitment proceedings under Baker Act or Mosher must be released from involuntary commitment to restore competency).


text:
    Carlos E. MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6112.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2014.
    Carlos E. Mitchell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Jerry W. WEEKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5327.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2014.

      Jerry W. Weeks, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Terrell SCRUGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-6036.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2014.
    Terrell Scruggs, 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, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Immanuel BOONE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5816.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2014.
    Immanuel Boone, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Michael Palmer DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3760.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2014.

      Michael Palmer Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Marie T. LOHR, Appellant, v. HSBC MORTGAGE SERVICES, INC., Appellee.
    No. 5D13-2827.
    District Court of Appeal of Florida, Fifth District.
    Jan. 14, 2014.
    Marie T. Lohr, Orlando, pro se.
    Kari Martin and Kimberly N. Hopkins, of Shapiro, Fishman & Gaché, LLP, Tampa, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.815(a).

PALMER, LAWSON and COHEN, JJ., concur.


author: PALMER, J. ORFINGER, J., BERGER, J.,

text:
    Crystal L. MADDOX, Appellant, v. FLORIDA FARM BUREAU GENERAL, etc., et al., Appellee.
    No. 5D12-3577.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2014.

      Robert J. Telfer, Jr., of Cianfrogna, Tel-fer, Reda, Faherty & Anderson, P.A., Ti-tusville, for Appellant.
    John D. Russell, Alexandra N. Haddad, and Robin P. Keener, of Burr & Forman LLP, Tampa, for Appellee.
   ON MOTION FOR REHEARING

PALMER, J.

Appellee, Florida Farm Bureau General Insurance Company, has filed a motion for rehearing. We deny the motion for rehearing, but withdraw our previous opinion and substitute this corrected opinion in its place.

In this dog bite case, Crystal Maddox appeals the final judgment entered by the trial court granting declaratory relief to Florida Farm Bureau General Insurance Company. Determining that the trial court erred in concluding that only one “occurrence” under a homeowner’s insurance policy took place, we reverse that portion of the final judgment.

At the time of the dog attack, Maddox, together with her two sons, Logan and Ivan, lived with her boyfriend, Robert Bul-lard, and his two dogs, Dixie and Sugar, in Bullard’s home. As Maddox was dressing Logan, she heard Ivan screaming. Maddox and Bullard ran to the spare bedroom where they saw Dixie biting Ivan. They tried to get Dixie to release her grip on Ivan’s face. After Dixie finally released Ivan’s face from her mouth, she bit Maddox in the face. Both Ivan and Maddox sustained injuries from the dog bites.

Bullard’s home was insured under a homeowner’s policy issued by Florida Farm Bureau General Insurance Company. The policy declarations provided Bul-lard with personal liability coverage limited to $100,000 for each “occurrence.” The policy provided, in pertinent part, the following conditions for personal liability:

All “bodily injury” and “property damage” resulting from any one accident or from continuous or repeated exposure to substantially the same general harmful conditions shall be considered to be the result of one “occurrence”.

The policy contained the following relevant definition:

“Occurrence” means an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in:
a. “Bodily injury”; or
b. “Property damage.”

Maddox filed a complaint against Bul-lard seeking damages for the injuries she sustained in the dog attack. Florida Farm Bureau thereafter filed a complaint for declaratory relief naming both Bullard and Maddox as defendants. The complaint alleged that Florida Farm Bureau was not liable to pay any damages to Maddox because, under Bullard’s policy, the damages claimed by Maddox for her bodily injuries were subject to the same occurrence limit applicable to the damages for injuries suffered by Ivan, and that the per occurrence limit had been exhausted because $100,000 had already been paid to Ivan. The complaint also requested the court to enter an order declaring that the entire dog attack constituted one occurrence under Bullard’s policy. Bullard and Maddox filed separate answers asserting that the injuries to Ivan and Maddox were sustained in separate occurrences.

Florida Farm Bureau and Maddox filed competing motions for summary judgment. The trial court granted Florida Farm Bureau’s motion, finding the dog bite injuries were subject to the one occurrence limit in Bullard’s policy.

Maddox appeals, arguing that the trial court erred in granting summary judgment in favor of Florida Farm Bureau because the dog bites that she and Ivan sustained were separate occurrences. We agree.

In the absence of explicit policy language to the contrary, the Florida Supreme Court has adopted the “cause theory,” which looks to the cause of a party’s injuries for determining the number of “occurrences” under an insurance policy. See Koikos v. Travelers Ins. Co., 849 So.2d 263, 269 (Fla.2003). Here, the cause theory must be applied because Bullard’s policy contains no explicit contrary language.

Whether the injuries that Maddox and Ivan sustained constitute one occurrence is controlled by American Indem. Co. v. McQuaig, 435 So.2d 414 (Fla. 5th DCA 1983), and Koikos v. Travelers Ins. Co., 849 So.2d 263 (Fla.2003).

In McQuaig, two deputy sheriffs responded to a residence where three shots were fired. The first shot struck one officer. The third shot struck another officer. The second shot struck both officers. In issuing declaratory relief, as sought by the property owner and his insurer, American Indemnity, the trial court held that each shotgun blast was a separate occurrence. American Indemnity appealed arguing that there was only one occurrence for the following three reasons: (1) one instrumentality of danger — the shotgun — caused the injuries, (2) the injuries were caused in one specific location, and (3) the injuries occurred in a short time period of less than two minutes. In rejecting this argument, our court recognized that, under the cause theory, “the inquiry is whether ‘there was but one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damages.’” McQuaig, 435 So.2d at 415 (quoting Bartholomew v. Ins. Co. of N. America, 502 F.Supp. 246 (D.R.I.1980)).

In Koikos, George Koikos rented his restaurant to a fraternity for a graduation party. During the party, an intruder fired two separate, but nearly concurrent, rounds. Two guests of the fraternity party were struck by a single bullet. In addition, three other guests were injured. Koikos filed an action against its insurer, Travelers Insurance Company (Travelers) seeking declaratory relief. The case was removed to federal court. The federal district court granted summary judgment for Travelers, holding that the shooting incident amounted to one occurrence under the policy. Koikos appealed. The Eleventh Circuit certified the question to the Florida Supreme Court, and the Court concluded that each shooting of a separate victim constituted a separate occurrence. The Court held that “it is the act that causes the damage, which is neither expected nor intended, from the standpoint of the insured, that constitutes the ‘occurrence.’ ” The Court also rejected Travelers’ argument that all of the shots should be considered one occurrence because of the close proximity in time and space of the individual shots fired, concluding:

[Ujsing the number of shots fired as the basis for the number of occurrences is appropriate because each individual shooting is distinguishable in time and space.

Id. at 272.

Because ambiguous provisions must be construed against the insurer, the occurrence language in the policy must be construed as meaning each uninterrupted dog attack on a separate victim constitutes an occurrence under this policy.

While Florida Farm Bureau argues that the “dog attack” constituted one occurrence, the Koikos Court rejected a similar argument, concluding that there was no unambiguous language in the policy to put “Koikos on notice that ‘a series of similar causes’ would be considered one occurrence.” 849 So.2d at 273. The Court further stated that the policy’s definition of occurrence was susceptible to two reasonable interpretations (specifically, that the “‘ [occurrence’ can reasonably be stated to refer to the entire shooting spree or to each separate shot that resulted in a separate injury to a separate victim.”). Therefore, the policy must be construed in favor of the insured. See State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998) (explaining that where policy language is subject to differing interpretations the language “should be construed liberally in favor of the insured and strictly against the insurer.”).

Likewise, in this case, it is reasonable to construe the occurrence as the entire dog attack or as each separate dog bite. Because ambiguous provisions must be construed against the insurer, the occurrence language in the instant policy must be construed as meaning each separate dog bite that resulted in a separate injury to a separate victim was a separate occurrence. For these reasons, the trial court erred in holding that the injuries which Maddox and Ivan sustained were not separate occurrences under Bullard’s policy.

In closing, we hold that, with respect to paragraph two of the final judgment which relates to intentional infliction of emotional distress, the trial court properly granted declaratory relief for Florida Farm Bureau.

•AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, J., concurs specially, with opinion.

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

ORFINGER, J.,

concurring specially with opinion.

I concur with the majority opinion. I write separately to address the argument made in Judge Berger’s thoughtful dissent.

The facts of this case are not in dispute. Bullard’s dog, Dixie, attacked Ivan, a young child. As Bullard and Maddox, Ivan’s mother, tried to get Dixie to release her grip on Ivan’s face, Dixie attacked Maddox. Both Ivan and Maddox sustained injuries from the dog bites. The dispute here centers on whether this constitutes one or two “occurrence(s)” under Florida Farm Bureau’s policy. I agree that this case is controlled by the supreme court’s decision in Koikos v. Travelers Insurance Co., 849 So.2d 263 (Fla.2003).

In Koikos, two people were shot by an assailant who fired multiple times in a restaurant. They filed separate lawsuits against Koikos, the restaurant’s owner, claiming that he negligently failed to provide adequate security at his restaurant. Koikos, in turn, sued his insurer, Travelers, in a declaratory judgment action. Koikos argued in favor of finding multiple occurrences under the policy, contending that the determination of the number of occurrences should be based on the immediate cause of the injuries — the gunshots. In contrast, Travelers argued that the focus should be on Koikos’s underlying negligence — his alleged failure to provide appropriate security. Koikos, 849 So.2d at 265, 267. The supreme court held that the proper focus should be on “the act that causes the damage,” the gunshots, not Koi-kos’s failure to protect his patrons. “Focusing on the immediate eause-that is the act that causes the damage-rather than the underlying tort-that is the insured’s negligence-is also consistent with the interpretation of other forms of insurance policies.” Id. at 271. In its opinion, the supreme court agreed with this Court’s decision in American Indemnity Co. v. McQuaig, 435 So.2d 414 (Fla. 5th DCA 1983), which held that consistent with the “cause theory,” an “occurrence” is the immediate injury-producing act and not the underlying tortious omission. Id. Consequently, “[t]he act which causes the damage constitutes the occurrence.” Phillips v. Ostrer, 481 So.2d 1241, 1247 (Fla. 3d DCA 1985); see New Hampshire Ins. Co. v. RLI Ins. Co., 807 So.2d 171 (Fla. 3d DCA 2002).

In Koikos, the gunshots, not the negligent security, directly caused the injury to the plaintiffs. Likewise, in McQuaig, the immediate cause of the plaintiffs’ injuries were the gunshots, not the shooter’s insanity. Similarly here, the “immediate cause” of the injuries to Ivan and Maddox was Dixie’s attacks, not Bullard’s underlying negligence of failing to control his dog, although that was, no doubt, a factor.

The dissent points to two authorities from other jurisdictions that might, if controlling, lead us to conclude that only one occurrence occurred here. Indeed, the state and federal courts have struggled with this issue and reached varying conclusions on the seemingly straightforward question of what constitutes a single “occurrence” within the meaning of an insurance policy. See generally Michael P. Sullivan, Annotation, What Constitutes Single Accident or Occurrence Within Liability Policy Limiting Insurer’s Liability to a Specified Amount Per Accident or Occurrence, 64 A.L.R.4th 668 (1988). Nonetheless, unless our supreme court recedes from Koikos, I believe the majority opinion is correct.

BERGER, J.,

concurring in part and dissenting in part.

I agree with the majority that the trial court properly granted declaratory relief for Florida Farm Bureau on Crystal Maddox’s claim for emotional distress. However, I do not agree that the injuries sustained by Maddox and her son, during a single dog attack, constituted two occurrences under Bullard’s homeowners insurance policy. In my view, the dog attack was the sole “proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damages” to both Maddox and her son and, thus, constituted only one occurrence under the policy. See Am. Indem. Co. v. McQuaig, 435 So.2d 414, 415 (Fla. 5th DCA 1983).

The Florida Supreme Court has adopted the cause theory when analyzing whether more than one occurrence has taken place under an insurance policy. See Koikos v. Travelers Ins. Co., 849 So.2d 263, 271 (Fla.2003). Under this theory, “[i]t is the act that causes the damage, which is neither expected nor intended from the standpoint of the insured, that constitutes the ‘occurrence.’ ” Id.

While the majority is correct that the cause theory must be applied in this case, I am not convinced that Koikos, or McQuaig upon which it relies, requires reversal.

Both Koikos and McQuaig involved individual tortfeasors firing multiple gunshots resulting in injury. In McQuaig, the insured, who claimed insanity, fired several shotgun blasts within a two-minute period that injured two people. 435 So.2d at 415. Utilizing the cause theory, this court held that each shotgun blast was a separate occurrence. Id. at 416. However, we noted that the result would have been different if “there was a single force, [such as one shot striking multiple people] that once set in motion caused multiple injuries.” Id. at 415.

In Koikos, the shooter was not the insured, but rather a third-party tortfeasor. 849 So.2d at 265. Relying on the McQuaig approach, the Florida Supreme Court concluded:

[C]onsistent with the “cause theory” that in the absence of clear language to the contrary, when the insured is being sued for negligent failure to provide security, “occurrence” is defined by the immediate injury-producing act and not by the underlying tortious omission. Thus, in this case, the immediate causes of the injuries were the intervening intentional acts of the third party — the intruder’s gunshots.

Id. at 271-72.

Had the injuries to Maddox and her son been caused by the intentional acts of Bul-lard or some other individual, I would agree with the majority that, based on Koikos, each act resulting in injury would constitute a separate occurrence. However, those are not the facts in this case. Maddox and her son were not injured by another person, they were injured by a dog, the insured’s property, during a single, uncontrollable attack. See Helmy v. Swigert, 662 So.2d 395 (Fla. 5th DCA 1995) (“Under Florida law, a dog is considered to be personal property.”). Indeed, the record reflects the dog in this case was out of control from the time it first bit Maddox’s son, through the time it bit Maddox in her effort to stop the attack, until the time Maddox and her son were able to flee to safety. Accordingly, much like the cases involving out of control motor vehicles, the dog attack in this case was the single force, that once set in motion caused the injury to Maddox and her son. See McQuaig, 435 So.2d at 415; see also Truck Ins. Exch. v. Rohde, 49 Wash.2d 465, 303 P.2d 659 (1956) (injuries to three motorcyclists from motorist who veered into echelon constituted one occurrence); St. Paul-Mercury Indem. Co. v. Rutland, 225 F.2d 689 (5th Cir.1955) (truck colliding with train, damaging sixteen cars belonging to fourteen owners, is one occurrence).

This view is consistent with the cause theory outlined in Koikos and McQuaig. Here, the cause of the injury was the dog attack, the effect of the attack was the injury to Maddox and her son. Since Florida does not follow the “effect theory,” I believe the trial court was correct in determining the injuries to Maddox and her son were the result of one occurrence.

In the corrected opinion, using Koikos and McQuaig as its guide, the majority concludes that “the occurrence language in the policy must be construed as meaning each uninterrupted dog attack on a separate victim constitutes an occurrence under this policy.” To the extent this language was used in an attempt to limit the number of occurrences in this case to two, it fails. Under the majority view, the dog attack in this case would result in three separate occurrences: the bite to Maddox’s son, followed by the bite to Maddox, followed by a second bite to Maddox’s son. Said another way, if this was not an uninterrupted dog attack, as I believe the trial judge was correct in concluding, then the three separate bites to the two victims in this case constitutes three separate occurrences under the policy. Certainly, this was not the result intended by the majority. In order for there to be only two occurrences in this case, one would have to conclude that the attack on Maddox’s son was uninterrupted. If that is so, then anything that occurred between the first bite and the second — namely the bite to Maddox — would have to be part of the uninterrupted attack, yielding only one occurrence. Analogizing Koikos and McQuaig to the facts in this case, the dog is either the shooter or the bullet. It cannot be both, which is why I believe the majority view, while well intended, leads to an illogical result.

The Appellees have requested we certify the following question to the Florida Supreme Court:

Under the cause theory, are the claims of negligence against a dog owner subject to separate per occurrence limits where two individuals suffered bites during the course of an uninterrupted dog attack where control over the animal was never achieved until conclusion of the attack?

I would grant the request and certify the question.

      . "Under the minority view, or ‘effect’ theory, the courts have held that the 'per accident' clause in insurance policies is to be construed as referring to the result or effect of the accident on the persons injured or damaged and not as referring to the cause of the accident." McQuaig, 435 So.2d at 415 n. 1.

      . Based on the specific facts of this case, I find no ambiguity in the insurance contract.


author: SILBERMAN, Judge.

text:
    Tomasz WALEK, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1662.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.

      Howard L. Dimmig, II, Public Defender, and Keith W. Upson, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Tomasz Walek seeks review of his judgment and sentence for assault with a deadly weapon and criminal mischief. We affirm Walek’s convictions without discussion. But we reverse and remand for resentencing because the trial court improperly considered Walek’s decision to exercise his right to a trial by jury in imposing sentence.

The charges in this case arose from an incident in which Walek threatened an SUV full of high school baseball players with an ax based on his asserted belief that they had thrown a brick at his front door. Walek smashed the driver’s side window then pursued the fleeing SUV in his vehicle until the police appeared on the scene.

Walek’s sentencing scoresheet provided for a sentence range of 16.6 months to five years in prison. At sentencing, the State argued that Walek’s convictions did not warrant a bottom-of-the-guidelines sentence because Walek took the law into his own hands and put the lives of the teenage boys in danger. Defense counsel asserted that Walek realized he made a bad decision but explained that Walek was under the belief his family was being attacked. Defense counsel asserted that Walek was remorseful and indicated a desire to apologize to the victim’s families.

The court replied as follows:

I guess if that’s all true, why am I here having this conversation after the second day of trial at 9:02 in the evening? Why are we not having this conversation with him in front of me long before it ever got to this point, accepting responsibility for what he did and asking a judge to have some leniency under the circumstances?

Defense counsel responded that the State would not agree to a bottom-of-the-guidelines sentence, and the court replied, “You could have come to me and asked me to do something in the case.” Defense counsel responded that he did not have a legal basis to request a downward departure, and the court replied as follows:

You could have asked me for bottom of the guidelines. You could have asked me to come up with — you know, we could have had a discussion about it. The idea is we are trying the case, and I don’t know if that’s the point where you really want to say, “Now we want to talk about all the mitigation and the remorse he has.”
It seems it [sic] me he thought he could sell it to a jury and he didn’t sell it to a jury. That’s what it seems like to me after all these circumstances.

The court asked Walek to approach and offered to give him the last word. Walek, who is not a native English speaker, said, ‘Tour Honor, if I know that I can talk to you and tell him that I’m sorry for what happened, I will do that a long time ago. I didn’t know there’s such a thing even was possible.” Walek expressed remorse and explained that he had a wife and child at home who depended on him. He claimed he never intended to hurt anyone but said he grabbed the ax in the spur of the moment because he was scared.

The court told Walek that it was too late to say he was sorry and think of his wife and child. The court chastised Walek for taking the law into his own hands instead of calling the police. The court said that Walek was fortunate that no one was seriously injured by the ax or as a result of the subsequent car chase. The court also noted that Walek had been given lenient sentences eight years before for a burglary conviction and subsequent violation of probation. But Walek had returned with “something monumentally more ridiculous” which warranted a significant punishment. The court sentenced Walek to three years in prison followed by two years of probation for assault with a deadly weapon and to time served for criminal mischief.

We take no issue with the trial court’s characterization of Walek’s offenses in this case and recognize that the sentences are legal. However, we must reverse and remand for a new sentencing hearing because the court’s comments suggest that the sentence was also based, at least in part, on Walek’s decision to exercise his right to a trial by jury.

A defendant may not be subjected to a greater sentence because he exercised his right to go to trial. Wilson v. State, 845 So.2d 142, 150 (Fla.2003); Moorer v. State, 926 So.2d 475, 477 (Fla. 1st DCA 2006). “A defendant should not be punished for exercising his constitutional right to stand trial before a jury of his peers, and this is so even when asking for a trial is not ‘the sole reason for the severity of [the] sentence.’ ” Moorer, 926 So.2d at 477 (quoting Gillman v. State, 373 So.2d 935, 939 (Fla. 2d DCA 1979), quashed on other grounds, 390 So.2d 62 (Fla.1980)).

The trial court responded to defense counsel’s request for leniency by telling counsel he might have considered a lenient sentence if Walek had entered a plea but would not do so after Walek refused to accept responsibility for his actions and went to trial. The court specifically told defense counsel that it was too late for the court to consider the minimum sentence and refused to consider any argument for mitigation. The court told counsel, “The idea is we are trying the case, and I don’t know if that’s the point where you really want to say, ‘Now we want to talk about all the mitigation and the remorse he has.’ ”

These comments are analogous to the kind of comments which were deemed improper by the First District in Moorer. The court summarized the trial judge’s comments as follows:

“This case, quite honestly, should have never been tried, but it was tried because [the defendant] wanted it tried. I don’t get it. We’ve got hundreds of cases that are set for trial,” and that [the defendant] “didn’t have enough integrity to step up and accept responsibility, ... we tried a case that should have been resolved on docket day”“without a trial.” Before pronouncing sentence, the trial judge told [the defendant’s wife] that her husband had “put you and your family and friends [through] having to come up here and ... you’re going to suffer because of what he did and because he wasn’t man enough to step up.”

Id. at 476. Similarly, in Johnson v. State, 679 So.2d 831, 832 (Fla. 1st DCA 1996), the First District held that the sentencing court improperly considered the defendant’s decision to exercise his right to trial when it stated that the defendant had “an indefensible case and put us through going through a whole trial, I guess so he could talk about it. When there was an offer on the table he decided to turn down. Now it’s time to pay the piper.” See also Cavallaro v. State, 647 So.2d 1006, 1006-07 (Fla. 3d DCA 1994) (holding that the sentencing court improperly considered the defendant’s decision to exercise his right to trial by remarking on “his decision to engage in ‘a continued series of legal manipulations, if you will, to avoid fessing up for lack of a better word’ ” (footnote omitted)).

When the comments of a sentencing court may reasonably be viewed as suggesting that the sentence was, at least in part, based on the defendant’s decision to go to trial, resentencing before a different judge is appropriate. Moorer, 926 So.2d at 477. Here, the trial court’s comments indicate that the court based Walek’s sentence, at least in part, on his failure to enter a plea. Thus, Walek is entitled to resentencing before a different judge. See Moorer, 926 So.2d at 477; Johnson, 679 So.2d at 833; Cavallaro, 647 So.2d at 1007.

Convictions affirmed; sentence reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.


text:
    STATE of Florida, Appellant, v. Candi L. LOREDO, Appellee.
    No. 2D12-3650.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Ronald N. Toward, Bartow, for Appel-lee.
   SILBERMAN, Judge.

In this prosecution against Candi L. Loredo (Loredo) for (1) possession of methamphetamine with intent to sell within 1000 feet of a church, (2) possession of drug paraphernalia, and (3) actual or constructive possession of a structure used for trafficking, sale, or manufacture of controlled substances, the State appeals an order suppressing evidence and statements. Because the affidavit in support of the application for search warrant provided probable cause to issue the search warrant based on the correct test of the totality of the circumstances, we reverse the order suppressing evidence and statements and remand for further proceedings.

On April 4, 2011, Detective Hoiler applied for a search warrant, and law enforcement executed the search warrant on the residence of Silvestre and Candi Loredo on April 7, 2011. Loredo filed a motion to suppress, challenging the sufficiency of Hoiler’s affidavit submitted in support of the warrant application. She sought to suppress evidence seized from her residence, evidence seized from the vehicle in which she was riding when law enforcement initially detained her, and any statements she made following her detention. The trial court conducted a joint suppression hearing with the Lore-dos. Because the parties agreed that the sufficiency of the affidavit was a question of law, no testimony was taken at the hearing.

The affidavit provided information from two confidential informants, CS-1 and CS-2. With respect to the first informant, the affiant received information from CS-1 in February 2011 that Silvestre was selling and using methamphetamine at the residence. The affiant stated that CS-1 had conducted multiple hand-to-hand methamphetamine buys, that he knew CS-1 for approximately two months, that CS-1 “provided information on multiple narcotics investigations,” and that CS-1 identified Silvestre.

CS-1 also told the affiant the following information. Silvestre was selling three to four pounds of methamphetamine from the residence every two weeks. CS-1 observed a pound of methamphetamine sixty days prior at the residence. CS-1 purchased one to two ounces from Silvestre within the last thirty days. Two cameras monitored the outside of the residence.

Although the affiant stated that CS-1 had conducted multiple methamphetamine buys, the affidavit did not indicate where the buys had occurred. The affiant had asserted, however, that CS-1 personally observed large quantities of methamphetamine at the residence and personally made a purchase from Silvestre within the last thirty days. Although the affiant stated that CS-1 had provided information on multiple narcotics investigations, there was no statement indicating that the information proved to be accurate. The affiant did not otherwise address the reliability of the information from CS-1.

With respect to the second informant, on March 29, 2011, CS-2 told the affiant that CS-2 had been selling methamphetamine for Silvestre for approximately the past three months. CS-2 received one-half to one ounce of methamphetamine from Sil-vestre for a price of $900 per ounce. CS-2 had picked up methamphetamine from the residence on multiple occasions. Within the two days before speaking with' the affiant, CS-2 observed three to four pounds of methamphetamine in the residence. And the day before CS-2 spoke with the affiant, Silvestre contacted CS-2 regarding a new shipment of methamphetamine.

CS-2 made two recorded calls to Silves-tre for the purpose of arranging a methamphetamine transaction. The affidavit stated the phone number used and that this was the number where Silvestre was reached, but it did not state how the affi-ant learned that the phone number was associated with Silvestre. Although Sil-vestre purportedly agreed to the transaction, he never showed up for the deal. The explanation given was that surveillance showed that he was at the residence to be searched spending time with his family and that “family activities hindered [Silvestre] from conducting narcotics deals.” Nothing in the affidavit indicated the veracity of CS-2 or that the affiant had any personal knowledge regarding CS-2. But, like CS-1, CS-2 gave specific details and asserted that he or she observed large quantities of methamphetamine in the residence.

The affidavit also stated that law enforcement conducted surveillance of the residence for two weeks and observed a high volume of traffic. The vehicles would stay on average five to ten minutes before leaving. Based on the affiant’s training and experience, he found the high volume of traffic consistent with the sale of narcotics. Finally, the affidavit detailed Silves-tre’s criminal history regarding multiple instances of drug possession.

The trial court found the affidavit did not provide probable cause that the residence contained any narcotics or narcotics-related evidence because the affidavit lacked information on the credibility or reliability of the informants. The State is correct that the trial court improperly applied the rigid two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), which has been replaced with the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under the totality of the circumstances test, the proper analysis is whether, given all the circumstances set forth in the affidavit, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. “The affidavit must state that the affiant has personal knowledge of the confidential informant’s veracity or the affidavit must contain sufficient independent corroborating evidence.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002). To assess the reliability of information from an informant, veracity and basis of knowledge are factors to be considered. Id. at 807; Green v. State, 946 So.2d 558, 561 (Fla. 1st DCA 2006).

In considering a motion to suppress evidence derived from the execution of a search warrant, “ ‘a trial court exam-' ines whether the issuing magistrate had a substantial basis for concluding that probable cause existed, and this determination is made by examining the affidavit in its entirety.’ ” Pilieci v. State, 991 So.2d 883, 892 (Fla. 2d DCA 2008) (quoting State v. Vanderhors, 927 So.2d 1011, 1013 (Fla. 2d DCA 2006)). Our review “is once again primarily a legal examination of the evidence in the affidavit to determine whether it establishes probable cause — with a presumption of correctness given to the trial court, which in turn gave great deference to the magistrate.” Id. at 894.

We have reviewed the affidavit based on the correct legal standard of the totality of the circumstances. To justify issuance of a search warrant, the information in the affidavit had to establish a reasonable probability that contraband would be found at the Loredo residence when the warrant was signed on April 4, 2011. See Pagan, 830 So.2d at 806. Here, although the affidavit lacked information about the veracity of either informant, we conclude that the police surveillance of the residence, together with the detailed information regarding drug transactions at the residence and the other information in the affidavit, provided sufficient corroborating evidence to establish probable cause.

Even when there is no evidence of an informant’s reliability, the informant’s first-hand observation and “explicit and detailed description of alleged wrongdoing” entitle the tip to greater weight. See Green, 946 So.2d at 562 (quoting Gates, 462 U.S. at 234, 103 S.Ct. 2317). And, as the State contends, the credibility of one informant can be bolstered by information given by another informant. See id. at 561-62. In addition, the State contends that the two-week surveillance corroborates the information from CS-1 and CS-2. The affiant stated that “[t]he vehicles coming and going from the place to be searched would stay on average (5) five to (10) minutes before leaving.” The affiant, based on his training and experience, found the high volume of traffic consistent with the sale of narcotics.

We recognize that the affidavit failed to explicitly state the dates when the surveillance occurred. “To establish a fair probability that evidence of a crime will be found at the place to be searched, the affidavit must reflect the specific time of the illegal activity that forms the basis for the alleged probable cause.” Barrentine v. State, 107 So.3d 483, 485 (Fla. 2d DCA 2013). However, “[t]he affidavit need not expressly state the exact time of the illegal activity”; rather, the magistrate must be “able to discern the relevant time period from the entirety of the affidavit.” Id. This is crucial information “because there is less of a chance that the evidence to be seized will be found as the time period between the date of the illegal activity and the date of issuance of the warrant increases.” Id.

Affidavits should be considered in their entirety and read in a common-sense manner. Gates, 462 U.S. at 238, 103 S.Ct. 2317; Barrentine, 107 So.3d at 485; State v. Chen, 1 So.3d 1257, 1266 (Fla. 2d DCA 2009). Based on a reading of the affidavit as a whole, the surveillance would have begun sometime after the detective spoke with CS-1 in February 2011. And the affidavit indicates that on the date of the failed drug transaction, March 29, 2011, surveillance was being conducted on the premises. Thus, surveillance was conducted less than a week before the warrant was signed. This would be part of the two-week period of surveillance referred to previously in the affidavit. Therefore, the surveillance showing activity consistent with drug traffic corroborates the information provided by CS-1 and CS-2. The surveillance, along with Silvestre’s criminal history, corroborates the detailed information from two different informants to support a reasonable probability that contraband would be present when the search warrant was executed.

We conclude, based on the totality of the circumstances, that the affidavit established a reasonable probability that contraband would be found at the Loredo residence on April 4, 2011. Therefore, we reverse the order suppressing evidence and remand for further proceedings.

Reversed and remanded.

ALTENBERND and LaROSE, JJ., Concur.

      . Silvestre’s name is misspelled as Silbestre in the affidavit for search warrant. Silvestre was the codefendant in the trial court, and his convictions and sentences are the subject of appeal number 2D12-3649.

      . On remand Loredo may argue the other issue raised at the suppression hearing regarding the stop of her vehicle in light of Bailey v. United States, - U.S. -, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013), which the Supreme Court issued after the suppression hearing occurred in this case.