text:
    Golden VASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3126.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Golden Vasquez, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s “Motion for Sentencing Relief Convert to Term Probation.” The motion does not establish an “illegal” sentence that can be corrected at any time. See Carter v. State, 786 So.2d 1173, 1178 (Fla.2001). Instead, as the trial court recognized, the motion presented untimely and meritless claims directed toward trial counsel and the conviction in general. The trial court properly denied the motion and cautioned Appellant that subsequent mer-itless claims could result in sanctions.

We warn Appellant as well. Appellant has previously filed at least five proceedings collaterally challenging her 2006 conviction and sentence. Because these filings raised or attempted to re-litigate meritless claims, we caution her that the filing of any additional successive and frivolous pro se motions, petitions, or appeals attacking her conviction and sentence in this case may result in the imposition of sanctions, such as a bar on further pro se filing in this court and/or referral to prison officials for disciplinary procedures. See State v. Spencer, 751 So.2d 47 (Fla.1999). See also § 944.279(1), Fla. Stat. (2012); Fla. R.Crim. P. 3.850(n).

Affirmed.

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

      . Vasquez v. State, 2 So.3d 1126 (Fla. 4th DCA 2009) (08-4186); Vasquez v. State, 30 So.3d 509 (Fla. 4th DCA 2010) (09-2400) (PCA/3.800); Vasquez v. State, 78 So.3d 550 (Fla. 4th DCA 2012) (09-5226) (PCA/3.850); Vasquez v. State, 107 So.3d 493 (Fla. 4th DCA 2013) (12-4120); Vasquez v. State, 117 So.3d 1106 (Fla. 4th DCA 2013) (13-162) (PCA).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ruben Israel RENTAS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-4667.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2014.
    Ruben Israel Rentas, West Palm Beach, pro se.
    No appearance for respondent.
   PER CURIAM.

Ruben Israel Rentas has filed a petition for writ of mandamus alleging that he has been erroneously denied the right to represent himself in the criminal proceedings pending below. We dismiss the petition as unauthorized.

Generally, a criminal defendant is not entitled to hybrid representation; that is, he may not represent himself, while at the same time being represented by counsel. Sheppard v. State, 17 So.3d 275, 279 (Fla.2009); Logan v. State, 846 So.2d 472, 474 (Fla.2003). Pro se pleadings filed in this Court while a defendant is represented by counsel in the trial court are unauthorized. Sheppard, 17 So.3d at 280-82; Logan, 846 So.2d at 475-76.The Florida Supreme Court explained in Logan:

If a petition clearly indicates that the petitioner is represented by counsel in the pending criminal proceeding, and the petitioner does not unequivocally seek to discharge counsel in that proceeding by way of the petition, the petition will be dismissed as unauthorized.

846 So.2d at 479. Thus, an exception exists where the defendant is seeking to discharge counsel by way of the petition.

We write to clarify that the exception set forth in Logan applies where the defendant seeks mandamus in this Court to compel a trial court to rule on an unequivocal request for self-representation. Logan does not create a right to nonfinal review of a trial court’s ruling on a request for self-representation.

Here, petitioner alleges that, although the court initially granted his request for self-representation, the trial court erroneously construed a letter he sent as seeking to withdraw from representing himself. Petitioner does not allege that he has been precluded from again requesting self-representation. The Logan exception does not apply in these circumstances. He is not entitled to nonfinal review of the trial court’s ruling on the self-representation issue. A trial court’s handling of a request for self-representation is reviewable on direct appeal. E.g., McCray v. State, 71 So.3d 848, 864 (Fla.2011).

Petition dismissed.

WARNER, GROSS and LEVINE, JJ„ concur.


text:
    John FRAISER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0220.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2014.
    Rehearing Denied March 21, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    Darrell BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0333.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2014.
    Rehearing Denied March 21, 2014.
    Darrell Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., WOLF and ROBERTS, JJ., concur.


text:
    FLORIDA QUARTER HORSE TRACK ASSOCIATION, INC., Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARIMUTUEL WAGERING, Florida Quarter Horse Racing Association, Inc., Florida Quarter Horse Breeders and Owners Association, Inc., and Gerald Keesling, Appellees.
    No. 1D13-2660.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Rehearing Denied March 17, 2014.
    Marc W. Dunbar of Jones Walker LLP, Tallahassee; and David S. Romanik of David S. Romanik, P.A., Oxford, for Appellant.

      Garnett W. Chisenhall, Chief Appellate Counsel, Department of Business and Professional Regulation, Tallahassee; J. Stephen Menton and Michael J. Barry of Rutledge Ecenia, P.A., Tallahassee, for Appellees Florida Quarter Horse Racing Association, Inc., Florida Quarter Horse Breeders and Owners Association, Inc., and Gerald Keesling.
   PER CURIAM.

Appellant seeks review of a final order determining that the Division of Pari-mu-tuel Wagering’s policy of treating “ ‘Gret-na-style’ barrel match racing” as an authorized form of quarter horse racing for purposes of issuing permits and licenses under chapter 550, Florida Statutes, is a “rule” that has not been adopted pursuant to the rulemaking process in violation of section 120.54(l)(a), Florida Statutes. For the reasons that follow, we affirm.

The issue in this case is not whether barrel match racing can be or should be considered “horseracing” for purposes of the state’s pari-mutuel wagering laws. Instead, the narrow issue in this case is whether the Division’s policy of treating barrel match racing as an authorized form of quarter horse racing is an unadopted rule. On this issue, the Administrative Law Judge succinctly explained:

A policy which allows pari-mutuel wagering to be conducted on a previously unrecognized activity by deeming that activity to be “quarter horse racing” is without question a statement of general applicability having the force and effect of law. Florida administrative law does not allow an agency to establish such a policy stealthily by the issuance of expedient licenses; this is equally true whether the policy is highly controversial or widely praised. To be legal and enforceable, a policy which operates as law must be formally adopted in public, through the transparent process of the rulemaking procedure set forth in section 120.54. In sum, the Division’s policy of licensing the conduct of pari-mutu-el wagering on [barrel match racing], on the ground that [barrel match racing] is legally equivalent to quarter horse racing, constitutes an unadopted rule. As such, it violates section 120.54(l)(a).

We agree with this analysis, and because the findings upon which the analysis is based are supported by competent substantial evidence, we affirm the final order.

AFFIRMED.

CLARK, WETHERELL, and RAY, JJ., concur.

      . We reject, without further comment, Appellant’s argument that Appellees lacked standing below, Appellees' argument that Appellant lacked standing to appeal, and Appellees' argument that this appeal is moot because the Division did not appeal the final order and recently initiated rulemaking on matters related to the policy at issue in this case.

      . An unadopted rule is "an agency statement that meets the definition of the term ‘rule,’ but that has not been adopted pursuant to the requirements of s. 120.54.” § 120.52(20), Fla. Stat.; see also § 120.54(l)(a), Fla. Stat. (requiring agency statements that meet the definition of a rule to be adopted through the rulemaking process as soon as feasible and practicable). A "rule” is "each agency statement of general applicability that implements, interprets, or prescribes law or policy.” § 120.52(16), Fla. Stat.; see also Dep’t of Highway Safety & Motor Vehicles v. Schluter, 705 So.2d 81 (Fla. 1st DCA 1997) (holding that policies governing employee misconduct that applied without exception were unadopt-ed rules); McCarthy v. Dep’t of Ins. and Treasurer, 479 So.2d 135 (Fla. 2d DCA 1985) (holding that a letter from the fire marshal setting out requirements for obtaining fire inspector certification constituted an una-dopted rule); Dep’t of Admin. v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1977) (holding that minimum training and experience requirements for state employment were unadopted rules); Dep’t of Admin. v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977) (holding that the procedures for "bumping” or laying off an employee upon termination by the legislature of another employee’s position, were unadopt-ed rules); but see St. Francis Hosp., Inc. v. Dep't of Health & Rehabilitative Servs., 553 So.2d 1351, 1354 (Fla. 1st DCA 1989) (explaining that "an agency interpretation of a statute which simply reiterates the legislature’s statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purport to create certain rights ... or have the direct and consistent effect of the law, is not an [unadopted] rule”); Envtl. Trust v. Dep’t of Envtl. Prot., 714 So.2d 493, 498 (Fla. 1st DCA 1998) ("An agency statement explaining how an existing rule of general applicability will be applied in a particular set of facts is not itself a rule.”).


text:
    Victor ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4470.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Rehearing Denied March 21, 2014.
    Victor Robinson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the denial of the appellant’s postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.800(a). However, we remand for the correction of the judgment to reflect the proper classification of the appellant’s convictions of armed robbery as first-degree felonies punishable by life. See Muyico v. State, 50 So.3d 1227 (Fla. 4th DCA 2011) (denying a rule 3.800(a) motion raising a claim of the improper reclassification of robbery with a firearm to a life felony, but remanding for correction of the judgment to reflect that the offense was a first-degree felony punishable by life). Appellant need not be present for the correction of this error.

AFFIRMED but REMANDED to correct the written sentence in case number 1981-CF-5100 to reflect the classification of both offenses as first-degree felonies punishable by life.

THOMAS, MARSTILLER, and MAKAR, JJ., concur.


author: THOMAS, J.

text:
    Ulrick Ajaree WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5799.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2014.
    Rehearing Denied March 21, 2014.
    Nancy A. Daniels, Public Defender, Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals his conviction of two counts of aggravated assault involving victims Ibri Bryant and Jerome Lee Jones, respectively. Appellant contends that because the evidence was legally insufficient to support a conviction on those charges, the trial court erred in denying his motion for judgment of acquittal. Appellant also contends the trial court erred by giving the State’s requested jury instruction on aggravated assault. We affirm without further comment the conviction of aggravated assault as to victim Bryant, and the trial court’s ruling on the State’s requested jury instruction. We conclude, however, that the evidence was legally insufficient to establish an aggravated assault conviction as to victim Jones and, therefore, reverse on that count. See Wesson v. State, 899 So.2d 382, 383 (Fla. 1st DCA 2005) (holding State has burden of proving each element of an offense “and that it must, in order to avoid the entry of a judgment of acquittal, produce legally sufficient evidence of each element.”). Pursuant to section 924.34, Florida Statutes, we remand with instructions to the trial court to enter a judgment against Appellant for the lesser-included offense of improper exhibition of a firearm on that count, in violation of section 790.10, Florida Statutes, and resen-tence Appellant accordingly.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

MARSTILLER and MAKAR, JJ., concur.


author: SALTER, J.

text:
    Michele CAVALLARO, Appellant, v. OMNI PROPERTIES and Nancy Cavallaro, Appellees.
    No. 3D12-3182.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2014.

      Michele A. Cavallaro, Pompano Beach, in proper person.
    Patricia Silver and Michael J. Healy, Islamorada, for appellees.
    Before SHEPHERD, C.J., and SALTER and EMAS, JJ.
   SALTER, J.

Michele Cavallaro, an active member of The Florida Bar but not a party to the dissolution of her parents’ marriage in the circuit court, appeals an order holding her in contempt and imposing attorney’s fees and costs (on her mother’s motion) against her. We reverse.

In 2012, Nancy Cavallaro, the appellant’s mother, obtained a final judgment dissolving her marriage to the appellant’s father, Michael Cavallaro. Two provisions of the final judgment related to Michele Cavallaro. First, Ms. Cavallaro was directed to pay $47,000.00 from her trust account to her mother within ten days from the date of the final judgment (and any balance in excess of that remaining in the account as well). These funds were proceeds from the sale of a property to a non-party.

Second, the trial court found that Michele Cavallaro was a managing member of “Omni Properties, LLC,” which held title to a Connecticut condominium conveyed by the former husband “so it could not be reached by creditors.” The final judgment determined that the condominium was a marital property. The court directed the former husband and Michele Cavallaro to cause Omni Properties to execute and deliver a quitclaim deed to the condominium to the former wife and former husband, as tenants in common, within thirty days of the date of the judgment. The property was to be sold and the proceeds were to be divided equally.

Following the entry of the final judgment, the former wife’s attorney forwarded a copy to Michele Cavallaro by email. The email requested Michele Cavallaro to take the actions specified in the final judgment, with the trust account proceeds to be disbursed to the former wife’s attorney’s trust account rather than directly to the former wife. Michele Cavallaro responded by email that (1) the order instructed her to disburse to her mother, not to her mother’s attorney, and (2) “I cannot disburse until the appeals period has run or I would be subject to sanctions by the bar since the funds are being held in trust for both of my clients [her parents] and one or both may appeal from the final order and move for a stay.”

The former wife moved for contempt against her daughter, alleging that Michele Cavallaro was “attempting to supplant her judgment for that of [the trial court].” On behalf of non-party Omni Properties, Michele Cavallaro then moved the trial court to vacate the final judgment of dissolution insofar as it pertained to Omni Properties, to strike the motion for contempt, and to stay the final judgment pending appeal.

At a hearing on October 3, 2012, Michele Cavallaro appeared and explained why she had not yet taken the actions set forth in the final judgment. When the trial court directed her to disburse the trust account funds to her mother’s attorney’s trust account, she agreed to do so. The court’s written order was entered October 11, 2012, and the funds were wired six days later. Regarding the Connecticut condominium, the court declined to further order a transfer of the condominium pending the appeal, but enjoined Michele Cavallaro and Omni Properties from transferring or encumbering the property. The court denied Omni Properties’ motion to vacate the final judgment of dissolution and motion to strike the former wife’s motion for contempt. The court awarded the former wife attorney’s fees and costs against Michele Cavallaro for failure to comply with the final judgment. This appeal followed.

Analysis

To insure the orderly administration of justice, Florida courts have the inherent power to hold parties in contempt for intentionally failing to obey a court order. See § 38.22, Fla. Stat. (2010); Parisi v. Broward Cnty., 769 So.2d 359 (Fla.2000). This contempt power, however, should be exercised cautiously. Smith v. State, 954 So.2d 1191 (Fla. 3d DCA 2007). Generally, when the primary purpose is to obtain compliance with a court order, the proceeding is remedial in nature and is a civil contempt. Dep’t of Children & Families v. R.H., 819 So.2d 858, 861 (Fla. 5th DCA 2002).

Rojo v. Rojo, 84 So.3d 1259, 1261-62 (Fla. 3d DCA 2012) [emphasis provided].

In this case, Michele Cavallaro had not appeared as a party or as counsel for a party prior to the entry of the final judgment of dissolution of marriage. The first opportunity and due process afforded to her for the expression of her concerns regarding the disbursement of her trust account funds (to Nancy Cavallaro’s attorney rather than Nancy Cavallaro herself as specified in the final judgment) and regarding the possibility of an appeal, was the hearing of October 3, 2012. Following the hearing, Michele Cavallaro promptly wired the funds as directed. Her position regarding Omni Properties apparently was persuasive, because the trial judge altered that provision of the final judgment to abate the execution of a deed pending the former husband’s appeal.

“When a finding of contempt is based upon a violation of a court order, that order must be one which clearly and definitely makes the person aware of its command. Moreover, there must be evidence of the individual’s intent to disobey the court’s order, or ‘that he or she was guilty of such gross dereliction that the intent will be presumed.’ ” Smith v. State, 954 So.2d 1191, 1194 (Fla. 3d DCA 2007) (citing Barnes v. State, 588 So.2d 1076, 1077 (Fla. 4th DCA 1991)) (other internal citations omitted).

Because she acknowledged that she was an attorney and thus an officer of the court, Michele Cavallaro appeared voluntarily at the hearing to enforce the final judgment. She expressed her concerns at the hearing, and she promptly complied with the court’s instructions once those were clarified. There is no indication whatsoever from this record that she raised her concerns in bad faith or to interfere with the orderly administration of justice. The order of contempt and the imposition of attorney’s fees against the appellant are thus vacated.

Reversed.

      . Mr. Cavallaro appealed that final judgment. Cavallaro v. Cavallaro, Case No. 3D12-2279, 2014 WL 406838 (Fla. 3d DCA Jan. 29, 2014). We affirmed, per curiam, on January 29, 2013.


author: LAGOA, J.

text:
    ADORNO & YOSS, LLP, l/k/a Yoss, LLP, n/k/a Liquidating Law Firm, LLP, Steven D. Ginsburg a/k/a Steven David Ginsburg and Neil Preston Linden, Petitioners, v. Manuel SOLTERO, Respondent.
    No. 3D13-2900.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2014.
    Kaplan Zeena, LLP, and James M. Kap-lan, Laura C. Douglas and Kimberly S. Heifferman, for petitioners.
    Miller & Webner, P.A., and Dale F. Webner, Weston, for respondent.
    Before LAGOA, SALTER and LOGUE, JJ.
   LAGOA, J.

Petitioners, Adorno & Yoss, LLP, 1/k/a Yoss, LLP, n/k/a Liquidating Law Firm, LLP, Steven D. Ginsburg a/k/a Steven David Ginsburg and Neil Preston Linden, petition this Court for a writ of certiorari, seeking to quash the trial court’s order denying their motion for determination of plaintiffs burden of proof in a legal malpractice case. Because the petitioners have failed to meet the threshold requirement of showing that the trial court’s order creates irreparable harm, we dismiss the petition for writ of certiorari for lack of jurisdiction. See Bd. of Trs. of the Internal Improvement Trust Fund v. Am. Educ. Enters., LLC, 99 So.3d 450, 454-55 (Fla.2012) (stating that irreparable harm is a condition precedent to invoking a district court’s certiorari jurisdiction); Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998) (“[I]t is settled law that, as a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal.”); Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 896 So.2d 779 (Fla. 1st DCA 2004).

Accordingly, the petition for writ of cer-tiorari is dismissed for lack of jurisdiction.


author: BERGER, J. EVANDER, J.,

text:
    Rafael Alexander GUTIERREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3461.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2014.
    Rehearing Denied March 21, 2014.

      Terrence E. Kehoe, of Law Office of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   BERGER, J.

Rafael Alexander Gutierrez appeals the judgment and sentence entered after a jury found him guilty of sexual battery, pursuant to section 794.011(5), Florida Statutes (2010). He raises three issues on appeal, only one of which merits discussion. Gutierrez argues the trial court erred when it granted the State’s request for a special jury instruction informing the jury that a sexual battery victim’s testimony need not be corroborated. While we agree it was error to give the instruction, based on the specific facts of this case, we find the error was harmless and affirm.

Gutierrez was charged with one count of sexual battery not likely to cause injury after the victim complained to detectives that she had been vaginally raped by him in the front seat of her car.

On the night of January 27, 2010, the victim arrived for work at the Caliente Lounge around 10:00 p.m. Gutierrez, a regular patron at the bar, was already there. On that particular evening, the victim consumed approximately five or six beers over the course of her shift. She left around 2:15 a.m. while Gutierrez was still at the bar. When the victim attempted to drive herself home, she hit the sidewalk with her car. Gutierrez then offered to drive her home. She accepted Gutierrez’s offer and the two departed for the victim’s home in her car. Gutierrez drove while the victim rode in the front passenger seat. However, instead of driving her home, Gutierrez drove to an unknown apartment complex and informed her they were stopping to see a friend. When Gutierrez parked the car, he told the victim he wanted to talk with her “for a while.” After listening to Gutierrez complain about his relationship with her boss, the victim called him a “stupid idiot.” Gutierrez responded by grabbing the victim’s hands. The two began to struggle inside the victim’s vehicle, at which time Gutierrez moved from the driver’s seat to the front passenger seat where the victim was sitting. According to the victim, Gutierrez grabbed her wrists with one hand, and tried to grab at her breast and pull down her pants with the other. In defense, the victim tried to scream, but Gutierrez covered her mouth to stop her. During the struggle, Gutierrez was able to pull both his and the victim’s pants down to just above the knee. Thereafter, Gutierrez had vaginal intercourse with the victim, without wearing a condom, and ejaculated. During the struggle, the victim continually told Gutierrez to stop, but he did not. Afterward, Gutierrez told her not to tell anyone about the incident, which the victim agreed to do because Gutierrez still had possession of her car keys.

Gutierrez then exited the victim’s car and went to sleep in his own vehicle, which his friend had parked in an adjacent spot. He took the victim’s car keys with him. The victim slept in her own car because Gutierrez would not give her car keys back, telling her that she still could not drive. After waking the next morning, the victim went to Gutierrez’s vehicle to retrieve her keys. Gutierrez agreed to show her the way out of the complex, but the two were separated when Gutierrez drove away quickly. After managing to find her way home, the victim reported back to the Caliente Lounge later that night for her regularly scheduled shift. She expected to see Gutierrez at the bar in hopes that she could call the police to report the incident while he was there, but he never came in. The victim went to work the following night hoping to catch him, but again, Gutierrez never showed. On the third day after the incident took place, the victim told her manager what had occurred. She went to the hospital and the police were contacted. As part of the investigation, the police transported the victim to a clinic where a sexual assault nurse examiner conducted a head-to-toe physical and vaginal examination.

At trial, the sexual assault nurse examiner testified that during her examination, the victim presented the following: red surface area markings on her right breast; left breast tenderness; bruising on her right thigh; scratches above her navel and on her back; tenderness of her hip joints and left thigh; and a swollen and bruised left hand. Moreover, Alvarez’s vaginal examination revealed tenderness throughout the entire area, as well as an abrasion below the entrance to the vagina. While describing the injuries, the nurse examiner explained that when an individual engages in consensual sex, the body reacts in a manner where injuries are less likely to occur. However, she also explained that injuries can occur even when sexual intercourse is consensual. Vaginal swabs were taken during the examination by the nurse examiner for DNA comparison purposes. At trial, the parties stipulated that the DNA collected matched Gutierrez’s DNA profile. The defense did not present any witness testimony.

During the charge conference, the State, arguing Gutierrez opened the door, requested and received the following special jury instruction: “The testimony of the victim need not be corroborated in a prosecution for sexual battery.” Gutierrez was convicted of one count of sexual battery. He was adjudicated guilty of the crime and sentenced to 7.9 years in prison. This appeal followed.

We review the grant or denial of a jury instruction by the trial court for an abuse of discretion. Worley v. State, 848 So.2d 491, 491 (Fla. 5th DCA 2003) (citing Palmore v. State, 838 So.2d 1222, 1223 (Fla. 1st DCA 2003)). While a trial court generally has wide discretion in instructing a jury, the Florida Supreme Court has also acknowledged that the use of a standard jury instruction is preferred if it adequately explains the law. See Carpenter v. State, 785 So.2d 1182, 1199-1200 (Fla.2001) (internal citations omitted). Thus, reversible error can occur when a trial court gives a non-standard jury instruction that could potentially mislead a jury. Id. at 1200.

Defense counsel objected to the proposed instruction, arguing that such an instruction did not appear in the standard jury instructions approved by the Florida Supreme Court and, further, that the proposed instruction would mislead the jury into believing it did not have to weigh the credibility of the victim’s testimony. It was Gutierrez’s belief that the standard jury instruction on weighing any witness’ credibility was sufficient to guide the jury.

The trial judge initially indicated that he was not inclined to give the instruction. However, when the State argued that the requested special instruction used the exact statutory language from section 794.022(1), Florida Statutes (2010), and that Gutierrez opened the door by asserting in opening statement that there would be no corroborating evidence presented in the case, the trial judge opted, instead, to give the instruction. The judge determined that Gutierrez had argued lack of corroboration in his opening statement and that the statute appeared to apply to Gutierrez’s case. Furthermore, in addressing defense counsel’s continued concern that the proposed instruction could prevent the jury from properly assessing whether or not the victim’s testimony matched the other witness’ testimony, the trial judge stated:

And I think you’ll argue that, but — you did argue that — in your opening that there wouldn’t be any corroboration and that there would be issues of credibility between defendant’s version of consent, perhaps if he testifies, and her version of lack of consent. So if there’s a statute that specifically says the testimony of the victim need not be corroborated in a prosecution for sexual battery, why shouldn’t they be entitled to that instruction?

Defense counsel then stated she was also concerned that a stand-alone instruction reciting the statute would unnecessarily emphasize the victim’s testimony. The trial judge agreed and decided not to give a stand-alone instruction. Instead, the court included the language in the list of factors found in Florida Standard Jury Instruction (Criminal) 3.9 Weighing the Evidence. Defense counsel then renewed her objection to the insertion of the statutory language into the standard jury instruction.

On appeal, Gutierrez renews his earlier contention that it was improper for the trial judge to include the “no corroboration” instruction as it unnecessarily emphasized the victim’s testimony as deserving of special treatment. Gutierrez further argues that in light of existing Florida case law, the inclusion of such an instruction was reversible error. The State argues that it was within the trial court’s discretion to include the instruction and that existing case law on this issue is distinguishable from the instant appeal.

The permissibility of a special “no corroboration” jury instruction rooted in the language of section 794.022(1) was recently addressed in Brown v. State, 11 So.3d 428, 431 (Fla. 2d DCA 2009). Similar to this case, the special instruction reviewed in Brown involved the verbatim use of the statutory language in section 794.022(1). And, the reasons provided by the trial judge for including the special instruction were identical to the two reasons articulated by the trial judge in the instant case— that the defense had put the question of corroboration at issue and that the instruction was an accurate statement of law. Id. at 433. In Brown, the second district determined that the special instruction, which informed the jury that a victim’s testimony need not be corroborated in a prosecution for sexual battery, constituted an improper comment on the evidence and was likely to confuse and mislead the jury. Id. at 439. The court recognized that the special instruction provided a correct statement of the law. However, it concluded the history of section 794.022(1) revealed that the statute was directed at the appellate review of the sufficiency of evidence, not the question of whether a jury should accept the uncorroborated testimony of a victim in a sexual battery prosecution. Id.

In Brown, the defendant was charged with committing sexual battery against two sisters. The crimes were alleged to have occurred sometime between 1983 and 1987, but were not reported until 2006. Id. at 430. At trial, the State presented the testimony of the two sisters, who detailed the four and a half years of sexual abuse they claimed to have experienced at the hands of Brown, as well as the testimony of the detective who took their statements. Id. Although the testimony of each sister reinforced the testimony of the other, their accounts were not supported by any other evidence, a fact defense counsel noted during opening statement and cross examination. Based on defense counsel’s comments, the State requested the following special jury instruction based on section 794.022(1), Florida Statutes: “The testimony of the victim need not be corroborated in a prosecution for sexual battery.” Id. at 430-31.

Over objection, the trial court determined that Brown’s counsel had put the uncorroborated nature of the sisters’ testimony at issue and, because it was a correct statement of the law, agreed to give the instruction. The language in the special instruction was then added to the end of the standard sexual battery jury instruction and, because there were two victims, it was read to the jury twice. On appeal, Brown argued that the special instruction was an improper comment on the evidence and “constituted judicial approval of a crucial State argument.” Id. at 431. The second district agreed and, using the Florida Supreme Court’s holding in Marr v. State, 494 So.2d 1139 (Fla.1986), as its primary basis for determining it was error to give the instruction, reversed Brown’s conviction and ordered a new trial after concluding the error was not harmless. Id. at 440.

The instruction in Marr, however, was quite different than the instruction requested in this case and in Brown. In Marr, the defendant was charged and convicted of sexual battery by oral penetration, pursuant to section 794.011(3), Florida Statutes (1983). 494 So.2d at 1139. The only evidence produced by the State at trial was the testimony of the victim. At trial, the defendant denied the sexual battery and requested the jury be given the following instruction: “In a case where no other person was an immediate witness to the alleged act, the testimony of the prosecutrix should be rigidly scrutinized.” Id. at 1140-41. The trial court denied the request and, instead, gave the standard instruction on weighing the evidence. Id. at 1141.

On appeal, the Florida Supreme Court determined that the standard instruction given by the trial court was adequate to guide the jury without impermissibly commenting on the evidence or the credibility of any witness. Id. at 1142. Recognizing the well settled law that no corroborative evidence is required in a rape case when the victim is available to testify and can identify her accuser, the Court specifically held that:

[A] jury instruction such as the one requested, which singles out the testimony of a sexual battery victim as somehow deserving more rigid scrutiny by a jury than other witnesses’ or victims’ testimony, should no longer play a role in Florida jurisprudence. The full panoply of due process rights exists to protect each criminal defendant from an unwarranted conviction. Appellate courts, as always, are available to ensure that a conviction of any crime is supported by sufficient evidence. But we can discern no unique reason why those accused of sexual battery should occupy a status different from those accused of any other crime where the ultimate factual issue at trial pivots on the word of the victim against the word of the accused.

Id.

Although the Brown court held that a special “no corroboration” instruction was reversible error based on Marr and decisions from other jurisdictions that have considered the issue, several states have long adhered to precedent stating that a “no corroboration” instruction is permissible in sexual battery cases. See People v. Gammage, 2 Cal.4th 693, 7 Cal.Rptr.2d 541, 828 P.2d 682, 687 (1992) (holding that a “no corroboration” instruction is a correct statement of California law in sexual offense cases and that the instruction, when examined as a whole with all of the others, strikes a balance between the rights of both the defendant and the complaining witness); Stallworth v. State, 150 Ga.App. 766, 258 S.E.2d 611, 612 (1979) (stating that the trial court properly instructed the jury on the issue of corroboration in light of the fact that Georgia law does not require corroboration of victim’s testimony in rape cases); People v. Smith, 149 Mich.App. 189, 385 N.W.2d 654, 657 (1986) (stating that the trial court properly instructed jury it could convict defendant of criminal sexual conduct on basis of complainant’s uncorroborated testimony, where defense counsel argued that, due to strength of defendant’s alibi defense, jury should insist upon some corroborating evidence); Gaxiola v. State, 121 Nev. 638, 119 P.3d 1225, 1233 (2005) (finding that a “no corroboration” jury instruction did not unduly focus the jury’s attention on the victim’s testimony and was therefore an appropriate basis for a jury’s decision if the victim’s uncorroborated testimony establishes all of the material elements of the crime).

While we disfavor the instruction because the standard instructions are generally sufficient to guide the jury, we decline to adopt a hard and fast rule that it is always error to give a special “no corroboration” instruction in sexual battery cases. We caution, however, that such an instruction should rarely be given, and only in very limited circumstances where the defendant’s argument suggests the jury must require corroboration. See Smith, 385 N.W.2d at 657. Such was not the case here.

The State requested the special instruction based on the following comment by defense counsel during opening statements: “You’re not going to hear from any eyewitnesses. You’re not going to hear from anybody to say that her story was corroborated from seeing it ....” The purpose of an opening statement is to outline what an attorney expects to be established by the evidence. Gonzalez v. State, 990 So.2d 1017, 1024-25 (Fla.2008). Defense counsel’s statement was correct, as there were no eyewitnesses to the crime. Furthermore, it did not constitute an improper argument or in any way suggest to the jury that they require an eyewitness. Indeed, a closer look at the entirety of defense counsel’s brief opening statement confirms that nothing improper was argued. Accordingly, it was error to give the special “no corroboration” instruction in this case. We now must consider whether the error was harmless.

The harmless error test places the burden on the State to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Application of the test requires an examination of the entire record including a close examination of the permissible evidence on which the jury could have legitimately relied and, in addition, an even closer examination of the impermissible evidence, here the improper jury instruction, which might have possibly influenced the jury verdict. See id. Utilizing this standard, we find the error was harmless.

Unlike Brown, the victim’s testimony in this case was not completely uncorroborated. Although there were no eyewitnesses, there was DNA evidence obtained from the vaginal swab that matched Gutierrez, as well as testimony from a sexual assault nurse and photographs of the victim’s injuries that were consistent with the described attack.

For the foregoing reasons, we affirm the judgment and sentence. We note, however, that the judgment contains several scrivener’s errors. Specifically, the judgment lists defense counsel as “Carols [sic] Vega,” when it was Ms. Heather Past-oor, and lists “Heather Pastoor” as representing the State when in fact Mr. Jonathan Mills was the prosecutor in the case. Moreover, the judgment does not reflect that Gutierrez was convicted after a jury trial as required by the rules of criminal procedure. Accordingly, we remand with instructions to correct the aforementioned scrivener’s errors found in Gutierrez’s judgment.

AFFIRMED. REMANDED FOR CORRECTION OF SCRIVENER’S ERRORS.

PALMER, J., concurs.

EVANDER, J., concurring in part, dissenting in part, with opinion.

EVANDER, J.,

concurring in part, dissenting in part.

Because I do not believe the giving of the improper jury instruction in question was harmless error, I believe reversal is required.

As observed by our sister court in Brown, the special “no corroboration” jury instruction is improper because it is likely to confuse and mislead the jury. 11 So.3d at 439. Florida Standard Jury Instruction 3.7 provides that: “[a] reasonable doubt as to the guilt of a defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.” (emphasis added). Thus, a juror can properly conclude that an alleged victim’s testimony in a particular case is not, in and of itself, sufficient to establish a defendant’s guilt beyond a reasonable doubt. As a result, that juror may conclude that without “corroborating evidence,” a reasonable doubt exists because of the lack of evidence. It is readily foreseeable that such a juror may be misled or confused by an ensuing, and arguably inconsistent, instruction that the alleged victim’s testimony need not be corroborated. See also Ludy v. State, 784 N.E.2d 459, 462 (Ind.2003) (“[T]he meaning of the legal term ‘uncorroborated’ in this instruction is likely not self-evident to the lay juror. Jurors may interpret this instruction to mean that baseless testimony should be given credit and that they should ignore inconsistencies, accept without question the witness’s testimony, and ignore evidence that conflicts with the witness’s version of events. Use of the word ‘uncorroborated’ without a definition renders this instruction confusing, misleading, and of dubious efficacy.”).

The Brown court also concluded that the special “no corroboration” instruction is improper because it highlights the testimony of one witness. 11 So.3d at 439. I agree. I would also suggest that to approve the special jury instruction given below would open the proverbial “can of worms.” For example, if the defendant had testified in the instant case that the sexual encounter he had with the alleged victim was consensual, would he have been entitled to an instruction stating, “the testimony of a defendant need not be corroborated”?

The instant case was hardly a “slam dunk” case. Gutierrez’ primary defense was that of consent. There was no evidence of any confession or incriminating statements by Gutierrez. Furthermore, the alleged victim’s own testimony regarding the events that occurred right after the alleged attack could be viewed as supportive of a consent defense. Gutierrez did not “flee” the scene after the alleged sexual battery, but rather chose to sleep in his vehicle located in an adjacent parking space. The alleged victim did not seek help from any resident in the surrounding apartment complex after Gutierrez left her car, but rather slept in her vehicle until morning. Upon waking up, the victim then chose to approach Gutierrez to obtain her car keys.

Based on the evidence presented below I cannot conclude that the State met its burden to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict. DiGuilio, 491 So.2d at 1135.

      . The standard jury instruction to which defense counsel was referring is Florida Standard Jury Instruction (Criminal) 3.9 Weighing the Evidence. This instruction lists a minimum of five considerations a jury member should consider when weighing the credibility of trial witnesses. Additional factors are suggested and can be added into the instruction depending on their relevance to the particular issues at trial.

      . The trial court inserted the requested language as item eight in the list of suggested factors a jury is to consider when weighing the credibility of a witness.

      . Brown opposed the requested instruction on the basis that section 794.022(1) was only pertinent to the State's burden of proof to survive a judgment of acquittal and thus, was not a proper subject for judicial comment. Additionally, defense counsel argued the subject matter of the special instruction was adequately covered in Florida Standard Jury Instruction (Criminal) 3.9 on Weighing the Evidence. Brown, 11 So.3d at 431.

      . Under the old rape statute, section 794.01, Florida Statutes (repealed, effective Oct. 1, 1974, Laws of Florida 74-121), the standard jury instruction provided:
      If the testimony of the female is not supported by other evidence her testimony should be rigidly examined, especially as it related to the nature and extent of the force used and as it related to the question of whether or not consent was ever finally given.
      This instruction, commonly referred to as the “Lord Hale instruction” was omitted from the standard instructions in 1976 and is not currently included in the standard jury instructions in criminal cases. See Marr, 494 So.2d at 1140-42.

      . See Ludy v. State, 784 N.E.2d 459, 461-62 (Ind.2003) (finding that a jury instruction directing a jury that it can find guilt on uncorroborated testimony alone "invitefs] it to violate its obligation to consider all of the evidence.”); Veteto v. State, 8 S.W.3d 805, 816 (Tex.Ct.App.2000) (holding that despite a statutory provision authorizing a sexual assault conviction on uncorroborated testimony of the victim, such language as a jury instruction was an improper comment on the weight of evidence); State v. Zimmerman, 130 Wash.App. 170, 121 P.3d 1216, 1221-23 (2005) (expressing misgivings about an instruction advising the jury that an alleged victim's testimony need not be corroborated, but finding no error in giving the instruction as it was an accurate statement of the law).

      . Limiting use of the instruction should avoid opening the proverbial "can of worms” suggested by the dissent.

      . In Brown, there were no other witnesses to the acts of which Brown was accused. Neither of the two sisters had made any contemporaneous complaints about the alleged abuse and the crime went unreported for over twenty years. Additionally, there was no physical evidence and the State did not present any evidence of admissions by Brown or any collateral crimes evidence. 11 So.3d at 439.

      . I agree with the majority's resolution of the other two issues raised on appeal by Gutierrez.

      . This particular instruction was given in the instant case.


author: GRIFFIN, J. BERGER, J.,

text:
    STATE of Florida, Appellant, v. Brian Scott THOMAS, Appellee.
    No. 5D12-4007.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Rose M. Levering and Steven N. Gosney, Assistant Public Defenders, Daytona Beach, for Appellee.
   GRIFFIN, J.

The State of Florida appeals an order in which the trial court declared unconstitutional the portion of section 831.28(2)(a), Florida Statutes (2012), that makes it a crime to possess a counterfeit payment instrument. The State argues that the trial court erred by declaring that portion of the statute unconstitutional because the trial court was required to construe the statute in a manner that would preserve the statute’s constitutionality.

On August 24, 2011, Appellee, Brian Thomas, was arrested for trespassing after receiving a warning. According to the probable cause affidavit, at the time of the arrest, Thomas was carrying a suitcase containing “35 checks with other persons’ names on them, blank check stock, a printer and Florida identification that did not belong to Thomas.” Subsequently, Thomas was charged with eight counts of counterfeiting a payment instrument and possessing a counterfeit payment instrument in violation of section 831.28(2)(a). Thomas filed a motion to dismiss the information in accordance with Florida Rule of Criminal Procedure 3.190. In his motion, Thomas argued that the statute is facially unconstitutional because it creates strict liability for possessing a counterfeit payment instrument.

Section 831.28(2)(a) provides:

It is unlawful to counterfeit a payment instrument with the intent to defraud a financial institution, account holder, or any other person or organization or for a person to have any counterfeit payment instrument in such person’s possession. Any person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775, 084.

(Emphasis added). The trial court found that this subsection consisted of two parts: the first makes it unlawful for a person to counterfeit a payment instrument with intent to defraud, but the second makes it unlawful for a person simply to possess any counterfeit payment instrument. The trial court further found that the second part was a facially unconstitutional strict liability statute.

The crux of the State’s argument on appeal is that the Legislature meant to make it unlawful for a person to possess a counterfeit payment instrument with the intent to defraud — just as it had made it unlawful for a person to manufacture a counterfeit payment instrument with the intend to defraud — and, read as such, the statute would present no constitutional issue.

When considering the constitutionality of a statute, a court must first look at the language of the statute itself. See State v. Dugan, 685 So.2d 1210, 1212 (Fla.1996); Miele v. Prudential-Bache Sec., Inc., 656 So.2d 470, 472 (Fla.1995). Section 881.28, Florida Statutes (2012), titled “Counterfeiting a payment instrument; possessing a counterfeit payment instrument; penalties,” provides as follows:

(1) As used in this section, the term “counterfeit” means the manufacture of or arrangement to manufacture a payment instrument, as defined in s. 560.103, without the permission of the financial institution, account holder, or organization whose name, routing number, or account number appears on the payment instrument, or the manufacture of any payment instrument with a fictitious name, routing number, or account number.
(2)(a) It is unlawful to counterfeit a payment instrument with the intent to defraud a financial institution, account holder, or any other person or organization or for a person to have any counterfeit payment instrument in such person’s possession. Any person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.
(b) The printing of a payment instrument in the name of a person or entity or with the routing number or account number of a person or entity without the permission of the person or entity to manufacture or reproduce such payment instrument with such name, routing number, or account number is prima facie evidence of intend to defraud.
(3)This section does not apply to a law enforcement agency that produces or displays counterfeit payment instruments for investigative or educational purposes.

The State contends that “the logical legislative intent of the ... statute is that it is unlawful for a person to counterfeit a payment instrument or to have any counterfeit payment instrument in such person’s possession with intent to defraud .... ” Thomas responds that both a plain reading of the statute and principles of statutory construction require this Court to interpret the statute exactly as it is written. “The legislature is presumed to know the meaning of words and the rules of grammar, and the only way the court is advised of what the legislature intends is by giving the generally accepted construction, not only to the phraseology of an act, but to the manner in which it is punctuated.” State v. Bodden, 877 So.2d 680, 685 (Fla.2004) (quoting Florida State Racing Comm’n v. Bourquardez, 42 So.2d 87, 88 (Fla.1949)). Accordingly, “[courts] are not permitted to apply [their] own construction or re-arrange the words or add punctuation marks that will result in a departure from the natural meaning of the language used.” Wagner v. Botts, 88 So.2d 611, 613 (Fla.1956). “[W]hen the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Id. (quoting Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006).

The analysis to be applied in this case mirrors the analysis that the Florida Supreme Court applied in State v. Bradford, 787 So.2d 811 (Fla.2001). In Bradford, the Florida Supreme Court determined that section 817.284(8), Florida Statutes (1997), did not include an “intent to defraud” element. Section 817.284(8), Florida Statutes (1997), provided, in pertinent part:

It is unlawful for any person ... to solicit any business ... for the purpose of making motor vehicle tort claims or claims for personal injury protection benefits required by s. 627.736. Any person who violates the provisions of this subsection commits a felony of the third degree ....

The Bradford Court noted: “Obviously, there is no mention of fraud as an element of the offense.” Id. at 817. The Court continued: “Because we conclude that the language of this statute is facially clear and unambiguous, our analysis need not proceed any further.” Id. The court said that the “legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.” Id. at 819. In Bradford, intent to defraud was not mentioned in subsection (8), but was included in other subsections. The Court observed: “It is evident that the Legislature knew how to include intent to defraud as an element, and it could have easily done so with respect to subsection (8) if it so wished.” Id. at 819.

The State argues that the missing “intent to defraud” language does not necessarily mean that the Legislature purposefully excluded intent to defraud as an element of the possession offense. It may be true that the Legislature meant to include “intent to defraud” as an element of the possession offense but did not pay close enough attention to the manner in which the statute was drafted. Indeed, although the section as a whole is poorly written, it plainly says that the mere possession of a counterfeit payment instrument is a felony.

According to Thomas, because the statute expressly makes otherwise innocent and protected conduct unlawful, the second portion of subsection (2)(a) is unconstitutional. For example, interpreted as written, if an independent contractor took a payment instrument as payment for work he provided without knowing such payment instrument was counterfeit, he would violate section 831.28(2)(a). Also, the innocent — even beneficial — use of a “counterfeit” check for demonstrative, educational or ceremonial purposes would be criminalized.

Thomas is correct that the portion of section 831.28(2)(a) criminalizing the mere possession of a counterfeit payment instrument is facially unconstitutional. The Legislature may not enact a criminal statute that violates substantive due process under the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution. Criminalizing the mere possession of counterfeit payment instruments criminalizes behavior that is otherwise inherently innocent and thus violates substantive due process. Although “[t]he due process clauses of our federal and state constitutions do not prevent the legitimate interference with individual rights under the police power, [they] do place limits on such interferences.” State v. Saiez, 489 So.2d 1125, 1127 (Fla.1986). Where the individual rights at issue are not fundamental rights, the test for the constitutionality of a legislative enactment is whether the means selected by the Legislature have a reasonable and substantial relation to the object sought to be attained and shall not be unreasonable, arbitrary, or capricious. See id. at 1128.

In Saiez, the Florida Supreme Court was asked to determine whether criminalizing the mere possession of embossing machines designed to reproduce instruments purporting to be credit cards was unconstitutional. The Saiez Court held that it was. First, the Saiez Court acknowledged that the Legislature had enacted a ban on embossing machines as an attempt to curtail credit card fraud and that “[t]here is no question that the curtailment of credit card fraud is a legitimate goal within the scope of the state’s police power.” Id. However, the Court held that “[i]t is unreasonable to criminalize the mere possession of embossing machines when such a prohibition clearly interferes with the legitimate personal and property rights of a number of individuals who use embossing machines in their businesses and for other non-criminal activities.” Id. at 1129.

Although, as the Saiez Court noted, “there are instances where the public interest may require the regulation or prohibition of innocent acts in order to reach or secure enforcement of law against evil acts,” this is not such a case. Simply by drafting the statute to include an intent to defraud, the Legislature can accomplish its purpose without infringing on innocent or protected conduct. The trial court correctly found the portion of section 831.28(2)(a) criminalizing the mere possession of a counterfeit payment instrument to be unconstitutional.

AFFIRMED.

TORPY, C.J., concurs.

BERGER, J., concurs specially, with opinion.

BERGER, J.,

concurring.

I concur with the majority that part two of section 831.28(2)(a), Florida Statutes (2012), which makes it a crime to possess a counterfeit payment instrument, is unconstitutional, inasmuch as it criminalizes what may otherwise be innocent conduct. I write separately to add that even if we were to infer a knowledge element, under the premise that “criminal statutes are generally read to include a mens rea element, even when not expressly included in the statute,” Siplin v. State, 972 So.2d 982, 989 (Fla. 5th DCA 2007) (citing State v. Giorgetti, 868 So.2d 512, 515 (Fla.2004)), the second portion of section 831.28(2)(a), would remain unconstitutional for the reasons outlined in the majority because it would continue to criminalize innocent conduct.

      . Under section 560.103(29), Florida Statutes (2012), "payment instrument” means "a check, draft, warrant, money order, travelers check, electronic instrument, or other instrument, payment of money, or monetary value whether or not negotiable. The term does not include an instrument that is redeemable by the issuer in merchandise or service, a credit card voucher, or a letter of credit.”

      . Saiez, 489 So.2d at 1129 n. 3.


text:
    Michael McGHEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4372.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2014.

      James S. Purdy, Public Defender, and Shannon Timmann and Frank W. Scott, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Michael McGhee was convicted of (1) burglary of a dwelling, with the finding that McGhee committed an assault or battery within the dwelling and the special findings that McGhee did actually carry, display, use, threatened to use, or attempt to use a firearm and did actually possess a firearm during the commission of the crime and discharged the firearm; (2) aggravated assault, with the special finding that McGhee possessed and discharged a firearm during that offense; and (3) battery (domestic violence). McGhee argues that the court erred in denying his motion for judgment of acquittal on the burglary of a dwelling with an assault or battery because his attorney rendered ineffective assistance by failing to request an instruction relative to his defense that he had the right to enter the dwelling. He also argues that his multiple convictions for burglary with an assault or battery, aggravated assault, and battery violate double jeopardy.

As to the burglary of a dwelling conviction and McGhee’s ineffective assistance of counsel argument, we affirm without prejudice to McGhee to file an appropriate motion pursuant to rule 3.850, Florida Rules of Criminal Procedure.

Regarding his double jeopardy argument, McGhee contends that because the burglary of a dwelling with assault and battery, aggravated assault with a firearm, and battery convictions involve the same victim and occurred in the same incident, the convictions for battery and aggravated assault with a firearm violate the constitutional prohibition against double jeopardy. McGhee is correct. We, therefore, reverse his conviction for aggravated assault with a firearm because it is subsumed into the greater offense of burglary of a dwelling with an assault or battery while armed with a firearm. See Green v. State, 120 So.3d 1276, 1278 (Fla. 1st DCA 2013) (“[B]ecause all of the elements of the crime of aggravated assault with a firearm are contained within the crime of burglary with an assault while armed with a firearm, convictions for both the burglary and the aggravated assault violate the prohibition against double jeopardy.” (citing Estremera v. State, 107 So.3d 511 (Fla. 5th DCA 2013); White v. State, 753 So.2d 668, 669 (Fla. 1st DCA 2000))); see also Babrow v. State, 62 So.3d 1205, 1206 (Fla. 4th DCA 2011).

The conviction for battery must also be reversed because a conviction for both burglary with an assault or battery and simple battery arising from the same criminal episode also violates double jeopardy. Torna v. State, 742 So.2d 366, 367 (Fla. 3d DCA 1999); see also West v. State, 21 So.3d 916 (Fla. 5th DCA 2009) (holding convictions for both burglary with a battery and battery (domestic violence) violate double jeopardy). Because we reverse the convictions for battery and aggravated assault with a firearm, we remand this case to the trial court to enter a corrected judgment deleting those convictions.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

SAWAYA, ORFINGER, and EVANDER, JJ., concur.

      . McGhee was also convicted of tampering with a witness.


text:
    Allen Winfred HUDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-4153.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2014.
    Allen Winfred Hudson, Graeeville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 05-2010-CF-022719-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and WALLIS, JJ., concur.


text:
    Victor B. PETERSON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-4421.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2014.
    Victor B. Peterson, Jr., Bonifay, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 42-2012-CF-003100-A, in the Circuit Court in and for Marion County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, PALMER and LAWSON, JJ., concur.