source: Caselaw Access Project

author: LYONS, Justice.

license: Public Domain

text:
    Ex parte Michael BROWN (In re Michael Brown v. State of Alabama).
    1061663.
    Supreme Court of Alabama.
    Oct. 3, 2008.
    Rehearing Denied Dec. 19, 2008.

      Bryan A. Stevenson and Angela L. Set-zer of Equal Justice Initiative of Alabama, Montgomery, for petitioner.
    Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for respondent.

      . Although Justice Bolin did not sit for oral argument of this case, he has viewed the video recording of that oral argument.

   LYONS, Justice.

Michael Brown was convicted of two counts of capital murder for the killing of Betty Kirkpatrick. The murder was made capital because it was committed during the course of a robbery and a burglary. The jury recommended by a vote of 11-1 that Brown be sentenced to death, and the trial court followed the jury’s recommendation. Brown appealed. The Court of Criminal Appeals unanimously affirmed Brown’s conviction and sentence. Brown v. State, 11 So.3d 866 (Ala.Crim.App.2007). Brown petitioned this Court for certiorari review; we granted his petition to review one issue: whether the Court of Criminal Appeals correctly concluded that certain out-of-court statements were admissible under the doctrine of curative admissibility. For the reasons discussed below, we need not decide that issue to affirm the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

The following facts are from the Court of Criminal Appeals’ opinion:

“The State’s evidence tended to show the following. On October 12, 2001, Ricky Kirkpatrick and his wife discovered the body of his 65-year-old mother, Betty Kirkpatrick, in her mobile home in Hueytown. Her head was covered with a plastic bag and her throat had been cut. A knife and a paper towel were lying on her chest. Betty Kirkpatrick’s purse and her gold 1986 Ford Thunderbird automobile were missing. The forensic pathologist testified that Betty Kirkpatrick died of ‘asphyxia by strangulation and smothering.’ (R. 481.) She also had bruises on her face and hands that, he said, were caused by blunt-force trauma.
“Several witnesses testified that they saw Brown driving a gold Thunderbird around the time of the murder. Alisha Spindlow testified that she saw Brown driving a gold Thunderbird and that he told her that he had killed Betty Kirkpatrick. Another individual, Kevin Clayton, testified that he saw Brown two days after the murder, that he was driving a gold Thunderbird, and that he told him that he got the car from a lady and the car would not be ‘hot’ until the lady’s body was discovered. Kelly Watkins said that Brown was driving a gold Thunderbird around the time of the murder and that he told her that he had killed the lady who owned it. Watkins said that Brown told her that he had tried to choke the victim but she would not die so he cut her throat with a knife he got from the kitchen of her house.
“Forensic tests were also conducted on the bloodstains found on the paper towel discovered on Betty Kirkpatrick’s chest. Carl Mauterer, a forensic scientist with the Alabama Department of Forensic Sciences, testified that one stain was tested and found to be consistent with Brown’s blood — Brown could not be excluded as the donor.
“Detective Charles Hagler also testified that Brown told him that he went to Betty Kirkpatrick’s mobile home with three other individuals, Robert Smith, Kevin Clayton (who testified at Brown’s trial), and Moses Smiley, to rob Betty Kirkpatrick but that Robert Smith killed Kirkpatrick.”

Brown, 11 So.3d at 875.

II. Standard of Review

“ ‘This Court reviews pure questions of law in criminal cases de novo.’ ” Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)). However, because Brown was sentenced to death, the Court of Criminal Appeals reviewed the proceedings for plain error.

“Plain error is defined as error that has ‘adversely affected the substantial right of the appellant.’ The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is ‘particularly egregious’ and if it ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.’ See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809, 143 L.Ed2d 1012 (1999).”

Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999) (additional citations omitted). See also Ex parte Walker, 972 So.2d 737, 742-43 (Ala.2007).

III. Analysis

In his petition for a writ of certiorari, Brown argues that the admission of out-of-court statements at his trial violated his right to cross-examination and that the statements were not admissible under the doctrine of curative admissibility. Brown states that the State’s theory of the case is that he acted alone in robbing and killing the victim, while the defense theory is that, although Brown was present at the scene, he did not kill Kirkpatrick. Instead, Brown said, three people in addition to him were at the scene, and one of them, Robert Smith, killed her. Brown states that the defense theory of the case was supported by the State’s evidence in that his prints did not match any of the readable prints from the victim’s car; DNA from a cigarette found in the ear excluded both the victim and Brown; and, of two DNA samples collected from the blood on a paper towel found at the murder scene, one excluded Brown and the other included the DNA of at least two individuals, although it did not exclude Brown.

During the testimony of the lead investigative officer, Detective Charles Ha-gler, the prosecutor, without objection from Brown, elicited evidence that Smith had made out-of-court statements denying his involvement in the crime and implicating Brown. Brown argues that, because he had had no opportunity to cross-examine Smith, his constitutional right to confront witnesses was violated. Brown relies upon Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which holds that “[tjestimonial statements of witnesses absent from trial have been admitted only where the declar-ant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”

The Court of Criminal Appeals concluded that the content of Smith’s statements was admissible under the doctrine of curative admissibility, reasoning that defense counsel’s cross-examination of Ha-gler opened the door for the prosecutor, on redirect, to elicit the content of Smith’s out-of-court statements implicating Brown in the murder. Brown argues that Ha-gler’s testimony regarding Smith’s statements violated Crawford, in which the United States Supreme Court held that “[wjhere testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” 541 U.S. at 68-69, 124 S.Ct. 1354. Therefore, Brown argues, the Court of Criminal Appeals erred in admitting Smith’s statements under the doctrine of curative admissibility.

Brown states that in response to the prosecutor’s questions Hagler testified that Smith adamantly stated that he was not involved in Kirkpatrick’s murder, gave him names of people he was with on the night she was murdered, and specifically implicated Brown in the murder. The admission of these statements, Brown insists, violated his right to cross-examine Smith because, he says, Smith’s statements were clearly testimonial, the State failed to establish that Smith was an unavailable witness, and the defense had had no prior opportunity to cross-examine Smith. The Court of Criminal Appeals concluded:

“Here, the defense counsel implied on cross-examination that Det. Hagler acted irresponsibly in not investigating Robert Smith. To rebut the matters that were presented on cross-examination the State had a right to question Det. Hagler so that Det. Hagler could explain his actions during the course of the investigation. Under the caselaw cited above, we hold that there was no error, much less plain error.”

Brown, 11 So.3d at 905. Brown argues that the above holding by the Court of Criminal Appeals conflicts with Alabama cases establishing that the doctrine of curative admissibility is applicable only where the opposing party has introduced illegal or otherwise inadmissible evidence. See, e.g., Ex parte D.L.H., 806 So.2d 1190, 1193 (Ala.2001); and Varner v. State, 497 So.2d 1135, 1138 (Ala.Crim.App.1986).

In this case, Brown says, the subject of Hagler’s investigation was never a forbidden area of inquiry for either party, being the primary topic of his testimony during the State’s direct examination; therefore, Brown says, it was not necessary for defense counsel to “open the door” on cross-examination in order for the investigation to be an appropriate subject on redirect. Brown alleges that defense counsel’s questioning of Hagler was a direct response to the State’s examination and thus was classic impeachment. Specifically, Brown says he never elicited testimony from Hagler as to what Smith told him during questioning and thus never opened the door to such testimony on redirect by the prosecutor. Brown argues that it would have been proper for the State to elicit testimony from Hagler that he had investigated and questioned Smith and later determined that he was not a suspect without introducing Smith’s statements implicating Brown in the offense, but that the State was not entitled to rebut defense counsel’s effort to impugn the sufficiency of Hagler’s investigation by introducing the statements of other suspects. According to Brown, the statements at issue in this case, like those in Crawford, directly undermined the defense theory and thus were severely prejudicial to Brown. Given that Brown’s defense centered around the possibility that Smith was the party responsible for the murder, Brown maintains that Hagler’s testimony as to what Smith said allowed the State to argue in its closing that Brown was solely responsible for Kirkpatrick’s death and that there was no evidence to support the defense theory that Smith was involved in the murder.

The Court of Criminal Appeals stated in its opinion that the record shows that during direct examination Hagler testified that Brown told him that he and three other individuals were involved in the robbery but that Smith had committed the murder. He did not mention any statements that Smith had made to police or even mention that Smith had been questioned by police. During cross-examination, the Court of Criminal Appeals said, defense counsel elicited testimony that Smith had been questioned by police; that his statement had been audiotaped; that Smith had been read his Miranda rights and had signed a waiver-of-rights form; that Hagler had not submitted Smith’s fingerprints for comparison with the fingerprints discovered in the victim’s car and that when Hagler obtained a warrant for a sample of Brown’s blood, he stated in his affidavit supporting the warrant that Brown had stated that he and three others had entered the victim’s residence to rob her; that one of the other suspects had choked the victim and cut her throat; and that they then had taken her purse, jewelry, and car. On redirect, the prosecutor asked Hagler whether Smith said anything to him about being involved in the victim’s death, and Hagler answered:

“ ‘He was adamant that he was not involved. He gave the names of people that he was with ... who verified where he was during the night of the evening in question. And he also said that Mr. Brown had made statements about the murder.’ ”

Brown, 11 So.3d at 903. The Court of Criminal Appeals then went on to discuss the doctrine of curative admissibility.

Because Brown failed to object to the testimony he now challenges, our review is limited to an examination for plain error. See Rule 45A, Ala. R.App. P. Brown argues in his initial brief to this Court that the Court of Criminal Appeals’ conclusion that the admission of testimonial out-of-court statements was not error under the doctrine of curative admissibility conflicts with established law. In its responsive brief, the State argues that this Court need not reach the merits of Brown’s argument because, it argues, even if the admission of Hagler’s testimony regarding Smith’s statements was erroneous, any error was harmless and certainly does not rise to the level of plain error.

“ ‘To rise to the level of plain error, the claimed error must not only seriously affect a defendant’s “substantial rights,” but it must also have an unfair prejudicial impact on the jury’s deliberations.’ ” Ex parte Bryant, 951 So.2d 724, 727 (Ala.2002) (quoting Hyde v. State, 778 So.2d 199, 209 (Ala.Crim.App.1998)). In United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court, construing the federal plain-error rule, stated:

“The Rule authorizes the Courts of Appeals to correct only ‘particularly egregious errors,’ United States v. Frady, 456 U.S. 152, 163 (1982), those errors that ‘seriously affect the fairness, integrity or public reputation of judicial proceedings,’ United States v. Atkinson, 297 U.S. [157], at 160 [ (1936) ]. In other words, the plain-error exception to the contemporaneous-objection rule is to be ‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ United States v. Frady, 456 U.S., at 163, n. 14.”

See also Ex parte Hodges, 856 So.2d 936, 947-48 (Ala.2003) (recognizing that plain error exists only if failure to recognize the error would “seriously affect the fairness or integrity of the judicial proceedings,” and that the plain-error doctrine is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result” (internal quotation marks omitted)).

The State argues that in order to establish that the admission of the testimony was plain error, Brown must show that the admission of Hagler’s testimony concerning Smith’s statements was “particularly egregious” and “seriously affeet[ed] the fairness, integrity or public reputation of [his trial].” In addition, Brown must establish that the admission of this testimony “had an unfair prejudicial impact on the jury’s deliberation.” Ex parte Price, 725 So.2d 1063, 1072 (Ala.1998). The State maintains that because it presented overwhelming evidence proving that Brown murdered Kirkpatrick, Brown cannot establish that the admission of Hagler’s testimony had any impact on the jury’s deliberation.

Assuming, without deciding, that the testimony would have been inadmissible on proper objection, the State’s evidence showed that Brown admitted to being in Kirkpatrick’s mobile home when the murder occurred and that he drove her car and boasted to his friends how he had killed her. He told a friend that when he was unable to choke the victim, he got a knife from her kitchen and slit her throat but that there would be no fingerprints on the knife because he had wrapped the handle with a paper towel, which was discovered at the murder scene. The Alabama Department of Forensic Sciences determined that Brown was a possible donor of DNA recovered from the paper towel. The State argues that even without Ha-gler’s testimony about Smith’s statements, there is no possibility that the jury would have believed that Smith, and not Brown, was the actual killer. Because there was sufficient evidence, apart from Hagler’s testimony, to show that Brown, not Smith, murdered the victim, the State argues that any error in the admission of Hagler’s testimony was harmless beyond a reasonable doubt. See Ex parte T.D.T., 745 So.2d 899, 906 (Ala.1999) (the erroneous admission of an out-of-court statement “was harmless error because, even without it, the record contains overwhelming evidence of [the defendant’s] guilt”).

Kevin Clayton, a friend of Brown’s, testified as follows:

“Q. [By the prosecutor:] Did you have an opportunity to discuss with Michael Brown where he got that gold Thunderbird?
“A. Yes, sir.
“Q. What did he tell you about it?
“A. He had told me he had got it from a lady. At first he told me it was his.
“Q. First he told you it was his Thunderbird; is that right?
“A. Yes, sir.
“Q. Did he later tell you something different?
“A. Yes, sir.
“Q. What did he tell you?
“A. He told me he had killed somebody for it.
“Q. Did Michael Brown ever say anything to you about how he killed the person?
“A. Yes, sir.
“Q. Tell us what he told you.
“A. He had cut her.
“Q. He had cut her. Okay. Did he ever go into any more detail about that?
“A. All I remember him saying is that she screamed, and he had cut her.
“Q. Okay. Now did he ever — strike that. Did you at first believe him when he told you that?
“A. No, sir.
“Q. Did he say anything to you to make you think that he was serious?
“A. Yes, sir.
“Q. What did he say?
“A. On the boss.
“Q. When we broke, you had said Michael said ‘on the boss.’ Is that like an oath or like saying T swear’ or something like that?
“A. Yes, sir.”

Kelly Watkins, who had once dated Brown,' testified as follows:

“Q. [By the prosecutor:] And when Michael pulled up in this gold Thunderbird, did you ask him about where he got the car or anything like that?
“A. I never thought about it because he knew the lady.
“Q. What did you think about the car?
“A. That she had let him borrow it.
“Q. Did you ever have a conversation with him where something else was discussed?
“A. Yes, sir.
“Q. Okay. How did that first start, if you remember?
“A. Well, we was riding in a car, and a song came on the radio.
“Q. When you say, We were in the car,’ who was in the car?
“A. Michael Brown, me, and Kevin [Clayton].
“Q. Okay. Did he say anything about that song?
“A. He said that the song was referring to what he had done to Betty, or Grandma, as I knew her.
“Q. What did you think when he told you that?
“A. I didn’t think nothing, ‘cause—
“Q. Did you believe it when he said it?
“A. No.
“Q. And so you, Michael Brown, and Kevin Clayton are in the car. Where are y’all going?
“A. We was headed to my friend, Catherine’s house.
“Q. Was anything said when y’all pulled up there?
“A. Mike said that he had killed — Mike said that he had got him one and made a lick [killed someone],
“Q. Who did he say that to?
“A. He told that to Alisha [Spindlow] and Catherine.
“Q. Did y’all believe him at that time?
“A. No.
“Q. Did you have — during the course of that weekend, did you have more conversations with Michael about what happened?
“A. Yes, sir.
“Q. And did — what was your purpose in—
“A. I was trying to catch him in a lie.
“Q. When you say, ‘catch him in a lie,’ what do you mean by that?
“A. I thought he was lying about what he had done is all. I was just asking him numerous questions.
“Q. Okay. What kind of questions were you asking him?
“A. I asked him where the murder weapon was, and he said he left it at the house. And I said, ‘You were not that stupid. You would have brought the murder weapon with you.’ And he said that he placed a napkin around the handle so y’all couldn’t get his fingerprints.
“Q. And he said he left the napkin—
“A. He left the napkin at the crime scene, too.
“Q. Did he say anything specifically about how he lulled' Ms. Kirkpatrick?
“A. He knocked on the door, and she was letting him in. Whenever she turned around, he tried to choke her, but she wouldn’t die. So, he cut her throat.
“Q. Did he say where he got the knife?
“A. He got the knife in her kitchen.”

After reviewing the evidence presented at trial, we conclude that, even assuming that the challenged evidence was inadmissible on proper objection, there has been no miscarriage of justice that would cause a loss of confidence in the validity of judicial proceedings in this case. See Ex parte Hodges and Young, supra. Therefore, under all the circumstances, any error in the admission of Hagler’s testimony regarding Smith’s statements would be harmless and would not constitute plain error.

IV. Conclusion

We conclude that any error in the admission of Hagler’s testimony concerning Smith’s statements, assuming the validity of Brown’s claim in that respect, could not rise to the level of plain error; therefore, we affirm the judgment of the Court of Criminal Appeals.

AFFIRMED.

SEE, WOODALL, STUART, SMITH, BOLIN, PARKER, and MURDOCK, JJ., concur.

COBB, C.J., recuses herself.


author: PER CURIAM.

text:
    Johnnie F. HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-5322.
    District Court of Appeal of Florida, Second District.
    May 2, 2008.
    Rehearing Denied July 14, 2008.
   PER CURIAM.

Johnnie F. Howard appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Howard claims that his aggravated battery conviction was improperly reclassified from a second-degree felony to a first-degree felony on account of the use of a deadly weapon. Howard also claims that his prison releasee reof-fender (PRR) sentence of thirty years in prison is illegal as exceeding the statutory maximum sentence for a second-degree felony.

The jury in its verdict made a finding that Howard’s aggravated battery involved both great bodily harm and the use of a deadly weapon. The information contained these necessary allegations. There was no requirement, as Howard asserts, for the information to contain a citation to the weapons enhancement statute. See Pitts v. State, 832 So.2d 260 (Fla. 2d DCA 2002). The verdict form also shows that the jury could have chosen the lesser included offenses of aggravated battery due to great bodily harm, aggravated battery due to the use of a deadly weapon, or simple battery.

In light of these circumstances, reclassification of Howard’s aggravated battery from a second-degree felony to a first-degree felony by the sentencing judge was both appropriate and mandatory. See Lareau v. State, 573 So.2d 813 (Fla.1991); Collins v. State, 800 So.2d 660 (Fla. 2d DCA 2001).- Consequently, the imposed PRR sentence of thirty years in prison is not illegal as Howard claims. Accordingly, the denial order of the postconviction court is affirmed.

WHATLEY, SALCINES, and KELLY, JJ., Concur.


text:
    Nevia ABRAHAM, a/k/a Robby Eugene Hogan, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2901.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2008.
    Nevia Abraham, a/k/a Robby Eugene Hogan, in proper person.
    Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

On October 30, 1989, Nevia Abraham, a/k/a Robby Eugene Hogan, entered a plea of nolo contendere to escape and was sentenced to thirty-seven years in prison. Hogan did not appeal the judgment and sentence. On April 4, 2005, the trial court denied Hogan’s first Florida Rule of Criminal Procedure 3.850 motion, which claimed ineffective assistance of counsel. On May 3, 2005, Hogan’s motion for reconsideration was denied by the trial court and Hogan filed a notice of appeal. On June 7, 2006, this Court affirmed the trial court and held that “failure to advise a defendant regarding the possible consequences of a plea in the event that the defendant commits a new crime in the future does not constitute ineffective assistance of counsel.”

On August 16, 2007, Hogan filed his second Rule 3.850 motion alleging that trial counsel was ineffective in failing to explain to him the consequence of his nolo contendere plea. Hogan contends that trial counsel failed to advise him that the plea he entered in 1985 could be used against him for habitualization if he committed another offense. The trial court denied Hogan’s motion as time-barred and further denied Hogan’s motion for reconsideration. We affirm the trial court’s order denying Hogan’s motion.

While we recognize that defendants must be provided with a full panoply of procedural vehicles with which to challenge the lawfulness of their incarcerations, see State v. Spencer, 751 So.2d 47, 49 (Fla.1999), we find that it is an abuse of process to file successive motions reargu-ing the same issues which have been heard, considered, and rejected. Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995).

Accordingly, Hogan is hereby ordered to show good cause why he should not be prohibited from filing further pro se pleadings with this Court pertaining to case number F89-356.

Affirmed, and an order to show cause issued.


author: SHEPHERD, J.

text:
    FEDERATED NATIONAL INSURANCE COMPANY, Appellant, v. Mariano PALENZUELA, Appellee.
    No. 3D08-1472.
    District Court of Appeal of Florida, Third District.
    April 29, 2009.
    Bazinsky, Korman & Baker, and Arielle K. Molinet and Anne D. Ogden, for appellant.
    Kenneth R. Duboff, for appellee.
    Before SHEPHERD, CORTIÑAS, and SALTER, JJ.
   ORDER DISMISSING APPEAL

SHEPHERD, J.

This appeal arises out of what Federated National Insurance Company asserts is a runaway appraisal award of more than $200,000 realized by its insured, Mariano Palenzuela, under his Federated homeowner’s insurance policy. After the award was entered, Federated filed a petition to set aside the award on the ground that the appraisers exceeded the scope of the submission. Palenzuela counterclaimed to have the award confirmed, which resulted in the order sought to be appealed. No final judgment has been entered on the order, and the trial court has made no formal resolution of Federated’s petition. For the reasons set forth below, we dismiss the appeal for lack of jurisdiction.

The substance of order reads:
ORDERED AND ADJUDGED as follows:
1. The motion to confirm the appraisal award be and the same is hereby granted.
2. Petitioner, FEDERATED NATIONAL INSURANCE COMPANY shall have 20 days [from] the date of this order to satisfy the appraisal award.
8. The Court shall continue to reserve jurisdiction to enforce the terms of this order, to determine the issues related to Respondent’s claims to entitlement to an award of reasonable attorneys fees pursuant to Fla. Stat. § 627.428, interest and court costs.
DONE AND ORDERED in chambers, at Miami-Dade County, Florida, on this 16th day of May, 2008.

Curiously, Federated argues this is a final order because at the hearing on the motion, it sought — and was denied — an ev-identiary hearing. That is not so. Not only does the order sought to be appealed lack any of the usual words that signal finality, McGurn v. Scott, 596 So.2d 1042, 1045 (Fla.1992), but the degree of finality necessary to support an appeal — an adjudication on the merits which effectuates a termination of the cause as between the parties directly affected — has not occurred. Id. at 1043; S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974) (affirming dismissal of third-party defendant’s counterclaim when the third-party complaint remained pending).

In so concluding, we are mindful that Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv) recently was amended to “clarify” that a nonfinal order determining a party’s entitlement to an appraisal pursuant to an insurance policy is immediately appealable. See In re Amendments to The Fla. Rules of Appellate Procedure, 2 So.3d 89 (Fla.2009). However, the application of Rule 9.130(a)(3)(C)(iv), in either its pre-amendment or post-amendment form, is unavailing to Federated in this case because it is clear the order over which review is sought did not determine entitlement. Cf. Weber v. Bonilla-Mathe, 807 So.2d 170, 170 (Fla. 3d DCA 2002) (holding order denying motion to dismiss based on plaintiffs failure to invoke contractual arbitration clause “[was] not one which determine[d] the entitlement to arbitration under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv)”); accord Se. Title & Ins. Co. v. Curtis, 155 So.2d 855 (Fla. 3d DCA 1963).

Appeal dismissed.


author: PER CURIAM. BENTON, J.,

text:
    Brynn SERMON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1167.
    District Court of Appeal of Florida, First District.
    April 30, 2009.
    Rehearing Denied June 15, 2009.

      Todd P. Resavage of Brooks, LeBoeuf, Bennett, Foster & Gwartney, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Special Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WOLF and BROWNING, JJ., concur; BENTON, J., concurs with opinion.

BENTON, J.,

concurring.

All the judges involved in this case have done their duty as they (and I) understand it. Yet Brynn Sermon has been sentenced to life in prison “day for day” by legislative fiat, § 775.082(9), Fla. Stat. (2007), without a single judge’s deciding that a punishment so onerous was fitting for any of the crimes the appellant committed on July 20, 2007. See State v. Cotton, 769 So.2d 345, 358 (Fla.2000) (Quince, J., dissenting) (explaining that, under the prison releasee reoffender provisions, the “courts have been totally excluded from exercising their traditional role as senteneers”).

On July 20, 2007, he argued with Donta-via Kenon, first over the telephone, then in person at and in her apartment, where things got physical. His contact that day with Ms. Kenon, the 20-year-old mother of one of his children, violated the injunction against domestic violence she had obtained five weeks earlier, in the company of Traehell Cotton, a counselor with the Children’s Home Society to whom the Department of Children and Family Services had referred her.

For violating the injunction, he was sentenced to 206 days in county jail, the same sentence he received for simple battery. He received a third, concurrent sentence for simple assault. (He was originally charged with assault with a deadly weapon: There was testimony that Ms. Kenon grabbed a kitchen knife that he wrested from her, then handed off to one of her girl friends.) Fortunately, as far as the record reveals, neither she nor he suffered cuts, bruises or any other lasting, physical injury.

But there was still another charge. When Ms. Kenon and two of her girl friends arrived at her apartment after work on July 20, 2007, Mr. Sermon emerged from the apartment; and, in the course of the subsequent scuffle, both ended up back inside. On account of this, the information charged him with burglary of a dwelling and committing assault and battery in the course of the burglary, which “is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082.” § 810.02(2)(a), Fla. Stat. (2007).

Section 775.082 provides that “a prison releasee reoffender ... is not eligible for sentencing under the sentencing guidelines and must be sentenced” for a burglary like appellant’s “by a term of imprisonment for life.” § 775.082(9)(a)3.a., Fla. Stat. (2007). See Knight v. State, 808 So.2d 210, 212-13 (Fla.2002). Mr. Sermon qualifies as a “[p]rison releasee reoffender” because the burglary on July 20, 2007, occurred “within 3 years after being released from a state correctional facility.” § 775.082(9)(a)1.q., Fla. Stat. (2007). (His initial, recently ended incarceration had been for sale and possession of cocaine.)

He defended the burglary charge on the theory that Ms. Kenon had consented to his entry into the apartment. She did, indeed, so testify at trial. The state did not call her as a witness, but she testified for the defense that Mr. Sermon had slept in the apartment the night before he was arrested and for several nights before that; that he had a key to the apartment, and kept his clothes in the apartment; that he had her permission to be inside that day, that she never told him otherwise and that she had no problem with his going back inside.

The state’s only rebuttal witness was Joe Alexander, one of the policemen who arrived in response to Ms. Kenon’s telephoned plea for help on July 20, 2007. He testified that Ms. Kenon told him then that Mr. Sermon had never lived with her at that address and that he was not supposed to have the key. In the main case, her girl friends had testified to his chasing her around the yard and striking her. In response to the defense motion for judgment of acquittal on the burglary charge, the state argued and the trial judge ruled that it was a question for the jury whether to believe Ms. Kenoris trial testimony or to find from other evidence that on the day in question she did not consent to Mr. Sermon’s (re)entry after he had slapped her and she had fled from him. Today we affirm the burglary conviction and thus the trial judge’s rulings denying the motion for judgment of acquittal at the close of the state’s case, and when renewed at the close of all the evidence.

Brynn Sermon’s life sentence stands undisturbed. But, although not for us to answer, the question of how carefully the Legislature thought through all the ramifications of the minimum mandatory sentences it prescribed for prison releasee reoffenders lingers.


text:
    John George FORSTER, III, Appellant, v. Barbara Ann FORSTER, Appellee.
    No. 5D07-3515.
    District Court of Appeal of Florida, Fifth District.
    May 1, 2009.

      Steven J. Guardiano, Daytona Beach, for Appellant.
    Lisa A. March and Sarah J. Webber of Law Office of Lisa A. March and Associates, P.A., Jacksonville Beach, for Appel-lee.
   PER CURIAM.

In this dissolution proceeding, the parties divorced, remarried and divorced again three months later. Appellee claimed that she was induced by fraud to remarry because Appellant wanted to avoid an alimony award entered after a default during the first divorce. The trial judge found fraud and elected to treat both marriages as one continuous marriage, which was within his discretion given the facts of this case. See Cox v. Cox, 659 So.2d 1051, 1055 n. 5 (Fla.1995). However, instead of determining alimony based on the circumstances at the time of trial, it appears that the trial judge simply reinstated the alimony award entered in the prior divorce decree without regard to the present financial positions of the parties. No finding was made as to the net income of the parties, the need of the wife and ability of the husband to pay, the standard of living of the parties during the marriage and other factors required by section 61.08(1), Florida Statutes (2007). We, therefore, reverse the alimony award and remand this cause to the trial court to make such findings as required by the statute, based on the conditions as they existed at the time of trial.

In all other respects, the judgment is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.


author: DAMOORGIAN, J.

text:
    John SITARIK, M.D., Appellant, v. JFK MEDICAL CENTER LIMITED PARTNERSHIPS (“JFK”), Hospital Corporation of America, Inc. (“HCA, Inc.”), Sheridan Healthcorp Inc. (“Sheridan”), Gilbert Drozdow, M.D., Individually and as employee/agent of Sheridan, Malcolm Dorman, M.D., individually and as employee/agent of JFK/HCA, Gina Melby, individually and as employee/agent of JFK/HCA, Appellees.
    No. 4D08-413.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.
    See also, 7 So.3d 576.

      Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, Kara Skorupa and Edward F. O’Hara of Derata-ny, Skorupa & O’Hara, North Palm Beach, for appellant.
    Matthew J. Conigliaro of Carlton Fields, P.A., St. Petersburg, and Walter J. Tache of Carlton Fields, P.A., Miami, for appel-lees JFK, HCA, and Melby.
    Glenn J. Waldman and Douglas T. Marx of Waldman Feluren Hildebrandt & Trigo-boff, P.A., Weston, for appellees, Sheridan Healthcorp, Inc. and Gilbert Drozdow, M.D.
   DAMOORGIAN, J.

John Sitarik appeals the trial court’s order compelling Sitarik to arbitrate his claim against Sheridan. We reverse because Sheridan waived its right to arbitrate when it actively participated in the litigation and failed to make any demand for arbitration.

In this case, Sheridan filed an answer, filed affirmative defenses, filed a notice of taking deposition, filed two motions to dismiss, issued a subpoena, and propounded discovery. Sheridan never made any demand to arbitrate. Only at the request of JFK, another party to the litigation, did the trial court compel Sitarik to arbitrate its claim against Sheridan.

In order to determine whether Sheridan waived its right to compel arbitration, we must first determine whether it actively participated in the litigation. A party who actively participates in the litigation waives its right to compel arbitration. See Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). A party’s responses to the litigation constitute active participation when they are an attack on the merits. Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., Inc., 824 So.2d 288, 291 (Fla. 4th DCA 2002). Here, Sheridan attacked the merits of the litigation and thus, actively participated in the litigation by filing an answer, affirmative defenses, two motions to dismiss, as well as issuing a subpoena and propounding discovery. See, e.g., King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235, 1235 (Fla. 4th DCA 1977) (holding that filing an answer, which does not make a demand for arbitration, constitutes a waiver of the right to arbitrate); Maryland Cas. Co. v. Dep’t of Gen. Servs., 489 So.2d 54, 57 (Fla. 1st DCA 1986) (holding that a party waives the right to arbitrate when discovery requests are made). By failing to make a demand to arbitrate and actively participating in the litigation, Sheridan waived its right to compel arbitration. Accordingly, the trial court erred when it later compelled arbitration at JFK’s request.

Because we find the trial court erred on the grounds that the right to arbitrate was waived, we find it unnecessary to address whether the trial court erred in compelling Sitarik to arbitrate his claim against Sheridan because Sitarik was not a party to the arbitration clause. Even if we were to address the merits of that issue, we would find that the trial court improperly compelled Sitarik to arbitration because we found in a related case that the arbitration clause did not bind Sitarik. See Sitarik v. JFK Med. Ctr., 7 So.3d 576 (Fla. 4th DCA 2009).

We therefore reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

GROSS, C.J., and FARMER, J., concur.


author: COPE, J.

text:
    Rene MARQUEZ, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D09-516.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Rene Marquez, in proper person.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for respondent.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   COPE, J.

This is a petition for writ of prohibition seeking disqualification of the trial judge. We deny the petition because there is no certificate of service reflecting service on the trial judge.

Rene Marquez was convicted of lewd and lascivious molestation and lewd and lascivious conduct and his convictions were affirmed without opinion in 2008. Marquez v. State, 990 So.2d 1077 (Fla. 3d DCA 2008) (table). In November 2008, defendant-petitioner Marquez filed a motion to disqualify the trial judge. The judge did not rule on the motion within thirty days.

The defendant filed a motion seeking reassignment of the case to a new judge. The trial court denied the motion and the defendant has filed a petition for writ of prohibition.

Under the Florida Rules of Judicial Administration, if a motion to disqualify a trial judge is not ruled on within thirty days, “the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.” Fla. R. Jud. Admin. 2.330(j); see Berube v. State, 978 So.2d 893 (Fla. 2d DCA 2008); Johnson v. State, 968 So.2d 61 (Fla. 4th DCA 2007); Schisler v. State, 958 So.2d 503 (Fla. 3d DCA 2007); see also Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla.2003).

We deny the petition because the defendant’s motion does not contain a certificate of service showing that the motion for disqualification was served on the trial judge. Rule 2.330(c)(4) provides in part, “In addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.” The intent of the rule is to be sure that the motion comes to the personal attention of the trial judge as soon as possible.' The Fourth District has said, and we agree, that prohibition will be denied where the petitioner did not serve a copy of the motion for disqualification on the trial judge as required by the rule. Johnson, 968 So.2d at 63 n. 2. The certificate of service on the motion for disqualification reflects only that the defendant placed the motion in the hands of the prison officials for mailing, but does not reflect that a copy was served on the trial judge. We therefore deny the petition.

Petition denied.

       Apparently the motion for disqualification has never been ruled on. We assume the trial court’s logic was that by denying reassignment, the court was necessarily denying disqualification.


text:
    Richard A. BLAKE, Sr., as Power of Attorney, etc., Petitioner, v. Deborah R. WAKS, as Personal Representative of the Estate of Marion Drabish, Respondent.
    No. 3D09-980.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.

      Selzer & Weiss and Scott A. Weiss, for petitioner.
    Deborah R. Waks, for respondent.
    Honorable Maria M. Korvick, in proper person.
    Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

According to duly executed affidavits, in denying agreed motions to disburse the net proceeds of an intestate estate to the petitioner Blake, a genealogical researcher who had found and who held unchallenged powers of attorney from the previously unknown heirs of the decedent, see Morse v. Clark, 890 So.2d 496 (Fla. 5th DCA 2004) (recognizing party status of genealogical service holding assignments from heirs), the presiding probate division circuit judge volunteered the statement, among others, that she did not trust him to make the required distribution to his principals. This comment, based on nothing in the record or otherwise, well justified the petitioner’s expressed belief that she was not impartial, and therefore required the granting of his application for her disqualification. See Grandview Palace Condo. Ass’n v. City of N. Bay Vill., 974 So.2d 1170 (Fla. 3d DCA 2008); Miami Dade Coll. v. Turnberry Invs., 979 So.2d 1211 (Fla. 3d DCA 2008).

Accordingly, the present petition for writ of prohibition, precluding the judge from presiding further in the case, is granted. We are certain that formal issuance of the writ will not be necessary.

Petition granted.


author: THOMAS, J.

text:
    William David DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5092.
    District Court of Appeal of Florida, First District.
    May 7, 2009.

      William David Davis, pro se, Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We affirm in part, and reverse in part.

Appellant, who was convicted of first-degree murder, seeks DNA testing of two items. He first requests testing of a folding knife belonging to the deceased victim, asserting that the victim attacked and cut him with the knife. He claims that his DNA will be found on the knife, thereby supporting his claim of self-defense. Second, Appellant requests DNA testing of the butt of a shotgun he owned. He asserts that when the victim attacked him with the knife, he attempted to fight the victim off by hitting him on the head with the shotgun. Appellant alleges that both the victim’s and Appellant’s DNA will be found on the butt of the shotgun, also supporting his claim of self-defense.

The trial court denied Appellant’s motion as facially insufficient, noting that Appellant’s own admissions demonstrate that identity was not at issue. This court has noted, however, that “testing [pursuant to rule 3.853] may be available even if the defendant does not deny commission of the act alleged to be a crime.” Crow v. State, 866 So.2d 1257, 1260 (Fla. 1st DCA 2004). Because Appellant’s motion is facially sufficient as it relates to the knife, we reverse the denial of Appellant’s request for DNA testing of the knife for the trial court to “take any action authorized by 3.853(c) to determine whether the allegations of the defendant’s motion are true and, if so, whether he is entitled to DNA testing.” Crow, 866 So.2d at 1262. On remand, the trial court may attach record portions from the trial transcript relevant to the issue of self-defense and determine whether DNA testing shows “a reasonable probability that [Appellant] would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.” Fla. R. Crim. P. 3.853(c)(5)(C).

We affirm, however, the summary denial of appellant’s request for DNA testing of the shotgun. Appellant has not demonstrated in any way how a finding of the victim’s blood, or even Appellant’s blood, on the shotgun would support his theory of self-defense. Appellant used the butt of the gun to bludgeon the victim, and the presence of his DNA on the gun would not tend to exonerate him; therefore, Appellant fails to establish how the requested DNA testing of the shotgun would “either exonerate the defendant or mitigate the sentence that [he] received.” Fla. R. Crim. 3.853(b)(4); see Hitchcock v. State, 866 So.2d 23 (Fla.2004) (holding that a rule 3.853 movant must plead with specificity “how the DNA testing ... would give rise to a reasonable probability of acquittal or a lesser sentence”); Galloway v. State, 802 So.2d 1173, (Fla. 1st DCA 2001) (holding that a rule 3.853 motion was facially insufficient where the defendant did not allege facts demonstrating that DNA testing would rule out his guilt).

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.

KAHN and ROBERTS, JJ., concur.


text:
    Delmar VELASQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5117.
    District Court of Appeal of Florida, First District.
    May 7, 2009.
    Delmar Velasquez, pro se, for Appellant.
    Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse.

The appellant’s motion was facially sufficient as he alleged the dates for which he is seeking credit, the date of his sentence, and where in the record entitlement to relief may be shown. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994). The trial court did not attach sufficient record evidence refuting appellant’s entitlement to relief. Although the trial court attached the plea agreement, which specifically called for appellant to receive 100 days of credit (which the appellant was awarded), a written notation in the plea agreement as to the amount of credit a defendant will receive is not sufficient to demonstrate that a defendant “knowingly and voluntarily waived jail credit to which he would otherwise be legally entitled.” Davis v. State, 968 So.2d 1051, 1052 (Fla. 5th DCA 2007). A stipulation to a specific amount of credit in a written plea agreement is not sufficient in the absence of eviderice “that the defendant knew of his entitlement to additional credit and voluntarily relinquished that right.” Id. at 1058. The record attachments do not indicate that appellant was aware of an entitlement to additional credit and voluntarily relinquished that right as part of his plea. Thus, the denial of appellant’s motion is REVERSED and REMANDED for the trial court to determine if the record demonstrates appellant’s right to the requested credit.

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


author: TORPY, J.

text:
    Diablo WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-840.
    District Court of Appeal of Florida, Fifth District.
    May 8, 2009.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   TORPY, J.

Appellant challenges his conviction for burglary of a dwelling. He argues that he was entitled to a judgment of acquittal because he was a co-lessee of the residence he allegedly burglarized. Because the evidence, when viewed in the light most favorable to the State, presented a question of fact as to whether the victim’s possesso-ry interest in the residence was superior to Appellant’s at the time of the burglary, we affirm.

In January 2007, Appellant and the victim, Jantia Lofton, leased a home and began cohabitating. In mid-March 2007, Lofton asked Appellant to move out of the house after they had a fight and he “destroyed some things.” Appellant agreed to leave but refused Lofton’s request that he return the key and garage door opener. As a consequence, Lofton had the locks changed. When Appellant vacated the home, he took all of his belongings with him, except possibly a stray shirt or pair of socks. Soon after Appellant moved out, Lofton contacted her landlord and asked that Appellant be removed from the lease. She testified that she paid the rent on the property.

On April 9, 2007, while Lofton was in her car in the driveway of the home, Appellant drove his truck in behind her. As she sat in the driver’s seat with the window up, Appellant approached and began yelling at her and asking for money. When she refused to roll down the window, he began hitting her car window and the truck. Lofton pulled out of the driveway, but before she could drive away, she saw Appellant get something out of his truck and open her garage door. She then pulled back in the driveway and followed him inside her home. A struggle ensued when Appellant went into Lofton’s bedroom and retrieved her computer. Appellant left the house and tried to put the computer in his truck. When Lofton tried to stop him, he threw it on the ground. At the time of the incident, Appellant’s name was still on the lease and utility bill for the home. Although Lofton had attempted to have Appellant’s name removed from the lease in mid-March, she waited until August to have his name removed from the utility account.

After the State rested, Appellant moved for judgment of acquittal arguing that there was no evidence that the right to possession of the property was exclusive to Lofton. Rather, he argued, the undisputed evidence was that he was still named on the lease at the time of the incident. The court denied the motion in light of Lofton’s testimony that she had asked the landlord to remove Appellant from the lease after he moved out in mid-March. Thus, there was some evidence that the relationship had ended and Appellant did not have permission to enter the home. The court also concluded that there was evidence that Lofton had a superior possessory interest in the home.

On appeal, Appellant argues that, because his name was still on the lease and utility bill at the time of the burglary, he is entitled to judgment as a matter of law. He places primary reliance upon Whetstone v. State, 778 So.2d 338 (Fla. 1st DCA 2000), receded from on other grounds, Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001), a case that we find distinguishable. In Whetstone, the wife obtained a domestic violence injunction against her husband. After having obtained the injunction, however, she and her husband entered into a lease agreement for rental of a house, and they lived together there for two weeks. At the end of the two-week period, the wife told the husband not to enter the house. Later, the wife moved out of the leased premises and began living with her male friend in his residence, although she went to the leased premises daily. During one of these visits to the leased premises, the husband arrived and attacked her. He was charged with multiple crimes, including burglary of a dwelling with intent to commit an assault and/or battery. The trial court denied the husband’s motion for judgment of acquittal, concluding that, because the wife paid rent, she had established an exclusive pos-sessory right of the premises. The husband was convicted of burglary.

On appeal, the first district reversed. It concluded that the wife’s superior interest in the residence had been “neutralized” when she vacated the residence, placing both spouses on equal footing regarding their possessory interests in the residence. It stated:

Based on the evidence, we believe appellant’s possessory interest in the jointly-leased premises was equal to that of his wife at the time of the incident. Appellant’s wife was not living in the house at that time, and her change in residence effectively neutralized any superior pos-sessory interest she might have had predicated on her payment of the rent. We, therefore, conclude the evidence is insufficient to sustain appellant’s conviction of the offense of burglary of a dwelling.

Whetstone, 778 So.2d at 343.

Here, Lofton remained in possession of the premises after Appellant vacated, thereby distinguishing Whetstone. Under the facts of this case, we think a jury question was presented as to whether Lof-ton had a superior interest in the premises. She testified that she asked Appellant to move out and he acquiesced. She took steps to have him removed from the lease, changed the locks and told him not to return to the premises. On these facts, the trial court was correct in denying the motion for judgment of acquittal.

AFFIRMED.

GRIFFIN, J., and PLEUS, JR., R., Senior Judge, concur.

      . Although Appellant testified and contradicted Lofton on some issues, we assume that the jury accepted Lofton’s testimony on disputed issues of fact for purposes of this appeal.


author: WELLS, Judge.

text:
    Barbara ZOLDAN, Appellant/Cross-Appellee, v. Robert ZOHLMAN and Arthur Zohlman, as Co-Curators of the Estate of Charles Zohlman, deceased, Appellees/Cross-Appellants.
    No. 3D08-947.
    District Court of Appeal of Florida, Third District.
    May 13, 2009.
    Rehearing and Rehearing En Banc Denied July 2, 2009.

      Fox Rothschild and D. Culver Smith, III (West Palm Beach), for appellants/cross-appellee.
    Gutter Chaves Josepher Rubin Forman Fleisher and Norman A. Fleisher (Boca Raton), for appellees/cross-appellants.
    Before WELLS, SHEPHERD and LAGOA, JJ.
   WELLS, Judge.

Barbara Zoldan appeals from a final judgment determining the value of her interest in a limited partnership created pursuant to her now deceased step-father, Charles Zohlman’s estate plan. The sole issue raised in this appeal is whether the valuation method chosen by the court below to value this asset — -fair market value — was properly selected. Because this method of valuation is the appropriate method applicable in this ease, we affirm.

This is the second appearance of this case before this court. See Zoldan v. Zohlman, 915 So.2d 235 (Fla. 3d DCA 2005) (“Zoldan I ”). In Zoldan I, we addressed Charles Zohlman’s claim that a post-nuptial agreement that he and his former spouse, Ida, executed was void as the product of undue influence. There, we upheld the post-nuptial agreement in which Mr. Zohlman agreed “to name Barbara Zoldan [Ida’s daughter] an heir equal to his three sons [by a prior marriage] in his will.”

Following remand in Zoldan I, Ms. Zoldan brought suit to enforce the post-nuptial agreement against Mr. Zohlman’s pending estate. That Estate consisted primarily of a single asset: a trust, funded by Mr. Zohlman’s 99% interest in a limited partnership to which Mr. Zohlman had transferred some $40,000,000 in securities. This trust, contrary to the post-nuptial agreement, named only Mr. Zohlman’s three sons as beneficiaries. Shortly after our remand, the Estate tendered to Ms. Zoldan a 24.75% interest in the limited partnership that comprised the corpus of the trust, as well as an amount ($1,188,834) equal to that previously distributed to each of the other sons/beneficiaries. This resolution would have placed Ms. Zoldan in the same position as Mr. Zohlmaris three sons. However, Ms. Zoldan rejected these tenders in favor of seeking a damage award.

In March of 2007, a partial summary-judgment was entered in Ms. Zoldan’s favor entitling her to “money damages in an amount equal to the value of sharing in ... [the] estate equally” with the sons. Based on this determination, Ms. Zoldan sought not to be named as a beneficiary of the trust or a limited partner in the asset owned by the trust, but to be awarded her share (25%) of the “fair value” of the assets (the securities) owned by the limited partnership.

Originally, the Estate disputed Ms. Zol-dan’s right to obtain anything other than what each of the three sons had inherited, i.e. an interest in the limited partnership. Eventually, however, the Estate took the position that if monetary damages were ordered, it was a “fair market valuation” that should be utilized in determining that award. The parties attached a dollar amount to each valuation method, concluding that the “fair market valuation” of the interest was $2,247,573, while the “fair valuation” of the interest was $6,450,937. Thus, by mutual agreement, the only question before the trial court was which valuation method should be applied.

Following a trial on that sole issue, where only two expert witnesses testified, the court below determined that Ms. Zol-dan was entitled to the “fair market value” of the assets owned by the limited partnership and awarded her $2,247,573 in damages, plus pre-judgment interest. Ms. Zoldan appeals from that determination and award, which for the following reasons, we affirm.

As a starting point, we agree with the Estate that under the now validated post-nuptial agreement, Ms. Zoldan is entitled to no more than the treatment accorded to Mr. Zohlman’s sons under his will and trust. See Sharick v. Se. Univ. of Health Scis., Inc., 780 So.2d 136, 139 (Fla. 3d DCA 2000) (observing that “[t]he purpose of compensation for a breach of contract is to place the injured party in the position he or she would have been in had the breach not occurred”). Under the terms of the will and trust, Ms. Zoldan and each of Mr. Zohlman’s three sons are entitled to receive a one quarter interest in Mr. Zohl-man’s trust, the corpus of which is comprised of Mr. Zohlman’s 99% limited partnership interest in Zohlman, Ltd.

That limited partnership interest is governed by the terms of a written agreement, which sets out with specificity the nature of the interests created on the death of a limited partner:

Death of Limited Partner

11.03. Upon the death of a Limited Partner, his or her interest will pass to his or her heirs or legatees. The beneficiaries will then be entitled to the rights of an assignee as i[s] provided in Paragraph 11.02(3) above.

Paragraph 12.02 of the partnership agreement provides that the death of a limited partner “shall have no effect on the life of the Partnership, which shall continue,” and paragraph 11.02(3) confirms that the assignee of a partnership interest is entitled only to share in partnership profits:

Any assignment made to anyone not already a Partner shall be effective only to give the assignee the right to receive the share of profits to which the assign- or would otherwise be entitled.... The assignee shall not have the right to become a substituted Limited Partner.... The Partnership shall continue with the same basis and capital account for the assignee as was attributable to the former owner who assigned the Limited Partnership interest....

Despite the limited nature of the assigned interests at issue, Ms. Zoldan argues that she should be treated as “a withdrawing partner.” This, we believe, is exactly what the trial court did.

While the partnership agreement does not permit a limited partner to withdraw and demand distribution from the partnership, Mr. Zohlman’s sons, one of whom is the general partner with “sole and exclusive control of the Limited Partnership,” nevertheless agreed to distribute to Ms. Zoldan the “fair market value” of a one quarter interest of Mr. Zohlman’s 99% limited partner interest in the partnership, i.e., the amount a full limited partner would receive if that partner took the interest and attempted to sell it on the open market. See Rothschild v. Kisling, 417 So.2d 798, 801 (Fla. 5th DCA 1982) (recognizing that fair market value is generally “what a willing buyer would pay a willing seller” for an interest). Such a distribution would be consistent with paragraph 12.03 of the partnership agreement which provides that although “[n]o Partner shall be entitled to demand a distribution be made in partnership Property ... the General Partner may make or direct property distributions to be made, using the property’s fair market value as of the time of the distribution[ ] as a basis for making the distribution[ ].”

It would also be consistent with that portion of the partnership agreement governing permitted sales of limited partnership interests, which obligates limited partners to establish the market value of their interests by obtaining a bona fide offer from a willing buyer in the marketplace:

Permitted Sales
11.02 (1) In the event a Limited Partner receives a bona fide offer for the purchase of all or a part of his or her interest in the Partnership, the Limited Partner shall either refuse the offer or give the General Partner written notice setting out full details of the offer. The notice, among other things, shall specify the name of the offeror, the percentage of interest in the Partnership covered by the offer, the terms of payment, whether for cash or credit, and, if on credit, the time and interest rate, as well as any and all other consideration being received or paid in connection with the proposed transaction, and any and all other terms, conditions, and details of the offer.
(2) Upon receipt of the notice with respect to an offer, the General Partner shall have the exclusive right and option, exercisable at any time during a period of thirty (30) days from the date of the notice, to purchase the interest in the Partnership covered by the offer in question at the same price and on the same terms and conditions of the offer as set out in the notice. If the General Partner decides to exercise the option, it shall give written notice to that effect to the Limited Partner desiring to sell. The sale and purchase shall be consummated within thirty (30) days after the date of the written notice. If the General Partner does not elect to exercise its option or waive his rights in writing, the selling Limited Partner shall be so notified in writing. Subject to any prohibitions or restrictions on transfer imposed by the General Partner for purposes of compliance with applicable securities law, the Limited Partner shall then be free to sell the interest in the Partnership covered by the office. The sale must be consummated within ninety (90) days thereafter, or the interest shall once again become subject to the restrictions of this Article. The sale, if permitted, shall be made strictly on the terms and conditions and to the person described in the required notice.

Here, the stipulated fair market value of Ms. Zoldan’s interest was put at $2,247,573. Based on the foregoing analysis, we find no error in the methodology used to make this determination.

We also reject the notion that there was no competent, substantial evidence to support the trial court’s determination that Ms. Zoldan’s interests should be valued using the fair market value method. The Estate presented the expert testimony of David Pratt, a seasoned trust and estate lawyer, who testified that fair market value is the valuation standard used when distributing trust assets and the assets of an estate. More specifically, Pratt testified that fair market value is the exclusive valuation method used for the purpose of determining distributions from a limited family partnership that is part of a trust or an estate.

Thus, we find no error in the valuation method used by the trial court. The promise made and broken was that Mr. Zohlman name Ms. Zoldan an heir equal to his three sons. Ms. Zoldan was offered and rejected an interest in the limited partnership which would have put her in the exact same position as the Zohlman brothers. Having rejected that offer, the Estate maintained that the measure of Ms. Zoldan’s damages would be the “fair market value” of the interest she rejected. With no dispute as to the dollar amount attached to the use of a “fair market valuation,” with that method being identified in the partnership agreement itself, and with that valuation method being supported by expert testimony, we conclude that it was properly employed. Accordingly, we find the trial court’s order was correct in its entirety, and affirm the order awarding Ms. Zoldan $2,247,573, plus pre-judgment interest.

      . That appeal also resolved Mr. Zohlman’s right to enforce a number of promissory notes executed by Ms. Zoldan. Therein, we upheld the lower court's determination that the promissory notes were not enforceable. Zoldan I, 915 So.2d at 238.

      . Specifically, Ms. Zoldan sought to enforce the post-nuptial agreement against Mr. Zohlman's estate claiming that: (1) "Zohlman breached the Prenuptial Agreement by failing to name Zoldan as a residuary beneficiary under his estate-planning documents such that she [sh]ould share equally in his estate with his own children, per stiipes”; (2) "if Charles Zohlman had named her as a residual beneficiary of his estate equal to his three sons [as required by the Prenuptial Agreement], she would be, and would have been from the date of Charles Zohlman's death, a 25% residuary beneficiary under the Zohlman Trust”; and (3) had she been properly named as a residual beneficiary as required by the Prenuptial Agreement, she "would have been entitled to an outright distribution of an interest equal to 25% of the assets of the Zohlman Trust.”

      . See 8B Fla. Jur.2d Business Relationships § 698 (2008) (footnote omitted) (emphasis added) ("The Florida Revised Uniform Limited Partnership Act of 2005 expressly establishes the relationship between the legal framework for limited partnerships and the internal regulation of such partnerships, i.e., the partnership agreement. First, the Act states that a duly drafted partnership agreement generally governs relations among the partners and between the partners and the limited partnership.")-, §§ 620.1101 — .2205, Fla. Stat. (2008).

      . See § 620.144, Fla. Slat. (1997) (providing that “upon withdrawal, a withdrawing partner is entitled to receive any distribution to which he is entitled under the partnership agreement,” with “fair value” to be employed only in instances when "not otherwise provided in the agreement”).


author: MONACO, J. GRIFFIN, J.,

text:
    Randy MAINWARING, Petitioner, v. STATE of Florida, Respondent.
    No. 5D08-3080.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2009.

      Randy Mainwaring, Gainesville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent.
   MONACO, J.

The petitioner, Randy Mainwaring, seeks entry of a writ' of prohibition, the intention of which is to secure a discharge of certain criminal charges against him because of a failure of the State to accord him a speedy trial. Upon consideration of his petition and the response of the State, we remanded this case to the trial court for an evidentiary hearing on the issues surrounding Mr. Mainwaring’s motion for discharge. See Mainwaring v. State, 993 So.2d 1144 (Fla. 5th DCA 2008). At the conclusion of the hearing the trial court held that the motion for discharge was “not valid,” because “his demand for speedy was stricken ... because we’ve determined he was unavailable for trial and made himself unavailable for trial.” We conclude, however, that under rule 3.191, Florida Rules of Criminal Procedure, Mr. Mainwaring was not unavailable for trial in the sense that term is used in subdivision (k) of the rule, and is, therefore, entitled to discharge. Accordingly, we grant the petition.

Mr. Mainwaring was charged with the commission of various crimes in both Indian River County and Orange County, and was arrested on two warrants, one from each jurisdiction. He was lodged in the Indian River County jail awaiting disposition of the crimes he committed in that county at all times material to our determination of this issue. On June 14, '2008, Mr. Mainwaring filed a pro se demand for speedy trial in the circuit court for Orange County. A week later, however, that court struck the demand, holding that, as Mr. Mainwaring was in the Indian River jail, he was unavailable for trial. It appears from the testimony and documents admitted at the evidentiary hearing that the trial judge had issued a transport order directing that Mr. Mainwaring be transported to Orange County prior to July 10th, purportedly so that the appropriate rule 3.191 hearing could be held. Mr. Mainwaring did not attend that hearing, however, because he was never transported from Indian River County. According to a letter from the Orange County Sheriffs Office, Indian River County declined to release him to Orange County because he was scheduled for a court hearing in Indian River County about a week later. The Orange County Circuit Court thus deemed Mr. Mainwaring to be “unavailable,” and struck his demand.

After waiting the fifty days required by rule 3.191 the petitioner then filed his notice of expiration of speedy trial time. The Orange County circuit judge apparently issued another transport order, which Indian River once again declined to honor. The testimony, although confusing, suggests that Indian River would not comply with the transport order once again because Mr. Mainwaring had a court date. The Orange County circuit court once again struck the notice of expiration because it deemed Mr. Mainwaring to be unavailable. Fifteen days later, Mr. Mainwaring filed his motion for discharge. When he was not discharged, he sought prohibition in this court.

Rule 3.191(k) indicates that a person is unavailable for trial if the person or that person’s counsel fails to attend a proceeding at which the presence of either is required, or if the defendant or his or her counsel is not ready for trial. If a defendant has not been available for trial during the term provided in the rule, that person is not entitled to be discharged. The rule continues:

No presumption of nonavailability attaches, but if the state objects to discharge and presents any evidence tending to show nonavailability, the accused must establish, by competent proof, availability during the term.

As noted previously, we remanded this matter to the trial court for an evidentiary hearing on the motion for discharge. In particular we were interested in whether, in fact, Mr. Mainwaring was unavailable. In summary, the trial court determined that the petitioner was unavailable for trial through his own fault simply because he was incarcerated in another county, and the other county declined to transport him to Orange County for trial. The case law, however, does not support that conclusion.

Rule 3.191(b) authorizes a person charged with a crime to demand a trial within sixty days by filing a demand for speedy trial with the trial court and serving a copy on the prosecuting attorney. The trial court is then required within five days of the demand to hold a calendar call for the “express purposes of announcing in open court receipt of the demand and of setting the case for trial.” Fla. R.Crim. P. 3.191(b)(1). At the calendar call the court is to set the case for trial to commence no less than 5 days, nor more than 45 days from the date of the call. Thereafter, if the defendant has not been brought to trial within fifty days of the filing of the demand, he or she shall have the right to seek the appropriate remedy outlined in subdivision (p) of rule 3.191. Subdivision (p)(2) and (3), which are relevant to our inquiry, read as follows:

(2) At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.
(3) No later than 5 days from the date of the filing of a notice of expiration of speedy trial time, the court shall hold a hearing on the notice and, unless the court finds that one of the reasons set forth in subdivision (j) exists, shall order that the defendant be brought to trial within 10 days. A defendant not brought to trial within the 10-day period through no fault of the defendant, on motion of the defendant or the court, shall be forever discharged from the crime. (Emphasis supplied).

Subdivision (j) of the rule defines the possible reasons not to grant the discharge as (1) an extension has been ordered by the court pursuant to subdivision (i); (2) the failure to hold the trial is attributable to the accused, a codefendant or their counsel; (3) the accused is unavailable for trial; or (4) the demand is invalid. In the present case the trial judge struck Mr. Mainwaring’s speedy trial documents because he deemed the accused to be unavailable for trial.

This is not the first time this scenario has been presented to the appellate courts of this state. In Pilgrim v. Swanson, 558 So.2d 176 (Fla. 2d DCA 1990), virtually the same facts led our sister court in the Second District to describe two lines of cases applying the speedy trial rule to multiple county scenarios. It summed up by saying that:

On the one hand, if a defendant is charged in one county but incarcerated in another without the knowledge of the first county, no knowledge is imputed to the first county. Therefore, the defendant is considered “unavailable” for trial in the first county within the meaning of rule 3.191(e), Florida Rules of Criminal Procedure. See State v. Rasul, 468 So.2d 1088 (Fla. 2d DCA 1985); Garnett v. State, 457 So.2d 1144 (Fla. 3d DCA 1984); Singleton v. Gross, 436 So.2d 132 (Fla. 3d DCA 1983).
On the other hand, if the charging county has knowledge that the defendant is incarcerated in another county, the defendant is not considered “unavailable” for trial in the charging county. See Walker v. State, 492 So.2d 772 (Fla. 1st DCA 1986); Tirado v. Reese, 478 So.2d 883 (Fla. 2d DCA 1985); Robbins v. State, 453 So.2d 877 (Fla. 2d DCA 1984). In all three of these cases no real effort to obtain the defendant from the place of incarceration in another county was made by the charging county. As stated in Tirado, 478 So.2d at 885, the county in that case “should have taken steps to produce him in timely fashion.”

Pilgrim, 558 So.2d at 176-177.

The Pilgrim court noted in a footnote that there might be some cases where the refusal of a county to transport a prisoner to the charging county might be justified and in which the defendant might be considered to be unavailable. Examples given by the appellate court included circumstances where the defendant might have multiple charges with trials set in one county, or was in the midst of a lengthy trial in the other county. It pointed out, however, that the facts in Pilgrim reflected nothing to indicate that the trial in the other county was “scheduled or even imminent” when the charging county issued transport orders. Pilgrim, 558 So.2d at n. 1.

Other Florida appellate courts that have considered the issue of unavailability by virtue of incarceration in another county have arrived at the same conclusions as the Pilgrim court. See, e.g., Trainer v. Broome, 666 So.2d 1019 (Fla. 4th DCA 1996); Jones v. State, 573 So.2d 185 (Fla. 1st DCA 1991). This court did so specifically in State v. Dukes, 443 So.2d 471 (Fla. 5th DCA 1984).

In the present case, there is no question but that Orange County was aware that Mr. Mainwaring was being held in jail in Indian River County. The trial court issued several transportation orders, but they were apparently not honored by Indian River authorities. Indeed, the trial judge at one point during the evidentiary hearing said, “Hey, I’ve been aware of him all year. I almost went to see him at the jail when I went to the Farmer’s Market in Ft. Pierce last month.” So the question of whether Mr. Mainwaring is entitled to be discharged boils down to whether the failure to transfer him was “justified,” using the characterization made by the Pilgrim court.

The documents filed as a result of the evidentiary hearing convince us that the failure was not justified. In fact, it appears that the refusal to transfer was based more on confusion, miscommunication or administrative convenience than anything else. An affidavit of the prosecutor assigned to Mr. Mainwaring’s case in Indian River County reflects that he “ha[d] no knowledge or documents concerning the Orange County case and was never aware of any transport orders, motions demanding speedy trial or motions to discharge.” In addition, the docket from the Indian River case makes no reference whatsoever to any transport order from Orange County, and contains no indication that Mr. Mainwaring’s case was ready for trial or about to be tried. The docket, which does make reference to numerous stipulated continuances in the Indian River case, confirms Mr. Mainwaring’s testimony that he “never stepped foot into a courtroom (in Indian River County) until the day I entered my plea.”

While the Orange County Circuit Court appears to have issued numerous transport orders in this case, none was ever honored. The disposition of one of these orders is typical. On June 11, 2008, the Orange County Circuit Court ordered Mr. Main-waring to be transported to Orange County prior to July 11th for a status hearing. We note that Mr. Mainwaring filed a demand for speedy trial on June 14th, but the trial court found him unavailable. Presumably, Mr. Mainwaring’s demand for speedy trial might have at least been considered at the scheduled July 11th hearing, but he was never transported. A letter from the Orange County Sheriffs Office indicates that Indian River County would not release him for transport because he “has court on 7/16/08 in their county.” That court event was, however, cancelled.

At no time was the trial court asked to order an extension of the time periods provided under rule 3.191 for exceptional circumstances, as authorized by subdivision (i). See Dukes, 443 So.2d at 473. At no time did the State seek judicial intervention in Indian River County. This inaction is of particular importance because there was no demand for speedy trial ever made by Mr. Mainwaring in Indian River County, and thus there was no danger that the speedy trial time would elapse in that jurisdiction. Surely the judge in Indian River County would have directed that Mr. Mainwaring be sent to Orange County if he or she had been made aware of the circumstances. In the final reckoning Mr. Mainwaring was not transported to Orange County until many months after his right to a speedy trial had expired.

We do not believe that the failed communications between the two counties involved in this case trump the properly invoked speedy trial rights of the petitioner guaranteed by the sixth amendment to the United States Constitution. We have specifically held in a similar case that “the time for trial is not interrupted merely because the defendant is incarcerated elsewhere in the state during the speedy trial period and such incarceration does not preclude him from asserting his speedy trial rights.” See Dukes, 443 So.2d at 473. The bare refusal of one county to transport an accused person to another county where the speedy trial time is running is ordinarily not sufficient to establish that the accused is “unavailable” for trial. Thus, while we conclude that the incarceration of an accused person in one county does not automatically make him or her “available” for trial in another county, we also note that the accused may, in fact, be “unavailable” if there are legitimate reasons associated with the incarceration and prosecution that render it impractical to transport him or her to the requesting county.

In the present case we can find no “justified” reason for the failure to transport the petitioner to Orange County. We do not point the finger of blame on either county for the lack of communication evident on the face of this record. We likewise do not suggest that some nefarious plan was afoot to deny Mr. Mainwaring a speedy trial. We do suggest, however, that the lines of communication between these jurisdictions need to be fully examined in the near future in order to minimize the possibility of future speedy trial violations.

Accordingly, we grant the petition for writ of prohibition and remand this case to the Ninth Judicial Circuit Court In and For Orange County for discharge of the criminal charges that are the subject of the present case.

PETITION GRANTED.

TORPY, J., concurs.

GRIFFIN, J., concurs specially, with opinion.

GRIFFIN, J.,

concurring.

I agree that more facts and/or more effort are necessary to show a prisoner’s “unavailability.” See Pilgrim v. Swanson, 558 So.2d 176 (Fla. 2d DCA 1990). Otherwise, the right to speedy trial could be too easily thwarted. I also agree that there is no suggestion on this record that such was Orange County’s purpose. We should also be alert that this “thwarting” can go both ways. The record suggests that Mr. Main-waring may have had a hand in Indian River County’s repeated refusal to send him to Orange County so he could be tried.

      . Curiously, Mr. Mainwaring pleaded guilty to the Indian River charges and is now serving prison time in the custody of the Florida Department of Corrections.


text:
    Raymond M. GOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3042.
    District Court of Appeal of Florida, Fifth District.
    May 15, 2009.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor and L. Charlene Matthews, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

This case began as an Anders appeal. Appellant’s underlying crime was grand theft over $20,000, a third-degree felony, to which he pleaded nolo contendere and was sentenced on July 30, 2007, to eighteen months of probation. He was subsequently charged with violation of probation. The public defender was ordered to file a supplemental initial brief addressing whether reversible error was committed when Appellant’s probation was revoked due to his arrest for DUI. We cited Hines v. State, 358 So.2d 183 (Fla.1978); Lockett v. State, 547 So.2d 1292 (Fla. 5th DCA 1989), and Purvis v. State, 397 So.2d 746 (Fla. 5th DCA 1981), which stand, overall, for the proposition that probation cannot be revoked based solely on proof of an arrest during the probationary period where the sole condition assertedly violated was that the probationer “live and remain at liberty without violating any law” and the only evidence of a violation was hearsay.

Here, Appellant admitted that he was arrested for DUI and identified the ticket that he received. He did not admit to the DUI. There was no Breathalyzer test, no arrest affidavit, no video of Appellant’s behavior during the traffic stop or booking offered in evidence. The arresting officer did not testify. The only evidence of the law violation was the ticket. The trial court found that Appellant violated his probation based on the arrest and reinstated the probation and extended probation to five years. Without this violation, Appellant’s probationary period would have ended January 31, 2009.

In its response, the State urges that this appeal should be dismissed because Appellant is now a fugitive from justice, an arrest warrant having been issued for Appellant on December 12, 2008. Under Griffis v. State, 759 So.2d 668 (Fla.2000), if an appellant absconds after filing an appeal, the reviewing court has the discretion to dismiss the appeal. According to the State’s filing, Appellant absconded on or about December 12, 2008, and as of the date the State filed its response, February 18, 2009, he was still missing. Had Appellant gone missing after the end of his original term of probation, we would likely not dismiss the appeal; however, having elected to abscond during the original probationary term, this appeal is essentially moot. Accordingly, we elect to dismiss this appeal.

APPEAL DISMISSED.

GRIFFIN, TORPY and EVANDER, JJ., concur.

      . Appellant principally relied on Robinson v. State, 907 So.2d 1284, 1287 (Fla. 2d DCA 2005):
      The proper standard for finding a new law violation is whether a preponderance of the evidence establishes that the probationer committed the charged offense or offenses. See Reyes v. State, 711 So.2d 1378, 1378 (Fla. 2d DCA 1998); Amador v. State, 713 So.2d 1121, 1122 (Fla. 3d DCA 1998). “Proof sufficient to support a criminal conviction is not required to support a judge's discretionary order revoking” probation. Robinson v. State, 609 So.2d 89, 90 (Fla. 1st DCA 1992). Here, the trial court used an incorrect standard in finding the new law violations and never reached the ultimate issue of whether the State had proven the violation by the greater weight of the evidence. Accordingly, the trial court abused its discretion by finding that Mr. Robinson violated condition 5 of his probation.


text:
    Douglas WALKER, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D08-6384.
    District Court of Appeal of Florida, First District.
    May 15, 2009.
    Rehearing Denied July 1, 2009.
    Douglas Walker, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Walker v. McNeil, 982 So.2d 692 (Fla. 1st DCA 2008).

KAHN, THOMAS, and ROBERTS, JJ., concur.


text:
    Stacy McDAVID, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2132.
    District Court of Appeal of Florida, First District.
    May 21, 2009.
    Rehearing Denied July 6, 2009:
    Stacy McDavid, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.


text:
    Rudolph LUDAWAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2179.
    District Court of Appeal of Florida, First District.
    May 21, 2009.
    Rehearing Denied July 6, 2009.

      Rudolph Ludaway, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.


text:
    BOARD OF MEDICINE, Appellant, v. Francisco VAZQUEZ, M.D., Appellee.
    No. 1D08-1914.
    District Court of Appeal of Florida, First District.
    May 29, 2009.
    Bill McCollum, Attorney General; Edward A. Tellechea, Senior Assistant Attorney General; Garnett W. Chisenhall, Donna Canzano McNulty and Lisa Ann McGlynn, Assistant Attorneys General, Tallahassee, for Appellant.
    Stephen T. Maher of Shutts & Bowen, LLP, Miami; Michael P. Gennett of Aker-man Senterfitt, Miami, for Appellee.
   PER CURIAM.

We affirm in all respects the finding of the administrative law judge that the challenged agency statement constitutes a rule which has not been adopted pursuant to section 120.54, Florida Statutes.

AFFIRMED.

KAHN, THOMAS, and ROBERTS, JJ., concur.


author: HAZOURI, J.

text:
    Sean DUPREE, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-779.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Rehearing Denied July 21, 2009.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Appellant, Sean Dupree, appeals from his convictions for armed kidnapping, false imprisonment, aggravated battery, aggravated assault, and battery. Dupree raises three issues on appeal. We discuss only the one which requires us to reverse and remand for a new trial.

Dupree and Aireka Washington, a student at Job Corps in Miami, met through a chatting service and went out together a couple of times. Her interest in him was as a friend and a person who might become a.business partner as well as show her the club scene in Miami. She knew he had a live-in girlfriend. On their third meeting, he picked her up and drove her to his house in Weston. They had a few drinks. According to Washington, Du-pree’s behavior then changed. He restrained her, battered her with a whip and his fists, kicked her, and threatened her with a gun. He then restrained her whole body with duct tape and refused to let her leave. He eventually stopped hitting her and removed the tape. Washington could not move or walk after that without assistance. She was kept at Dupree’s home for a week being placed in either the living room or a bedroom. At one point, when no one was in the living room with her, she was able to crawl to the kitchen to look for a telephone, but the one she found was not connected.

During that time Dupree’s girlfriend, Alicia Taylor, came in several times. Taylor braided her hail- and tried to speak to her. After she was there for a week, Dupree gathered all of Washington’s belongings, put her in his car, and drove her to Fort Myers, where he left her with a woman and her young daughter. The woman left to take her daughter to school and Washington was able to call 911.

Dupree’s defense to which he testified was that Washington agreed to pose for pictures which portrayed actual bondage and domination acts. She was interested in this in order to make money. All the things he did to Washington were with her consent.

Prior to trial, the state filed a Notice of Intent to Use Evidence of Other Crimes, Wrongs or Acts in which it notified the trial court that it intended to present the testimony of Alicia Taylor that Dupree had struck her on more than one occasion, discharged a stun-gun into her thigh, tied her to a chair, placed a thong in her mouth, and pressed an operating hair dryer against her buttocks. The state argued that the testimony was relevant as to her fear of Dupree and why Taylor did not notify law enforcement of Dupree’s actions against Washington or assist Washington in escaping. After Taylor’s testimony was proffered, the trial court ruled that the evidence was not Williams rule evidence, but was relevant as to why Taylor did not call the police. We agree with the trial court that the testimony elicited from Taylor concerning Dupree’s prior acts of violence did not qualify as Williams rule evidence. We note that on appeal the state has abandoned its assertion made at trial that these prior acts constituted Williams rule evidence.

On appeal, Dupree argues that the evidence was not relevant or, in the alternative, any relevance it had was outweighed by its prejudicial effect. The state argues that it was necessary to elicit this testimony of Taylor’s fear of Dupree in order to explain why she did not call the police or assist Washington in escaping.

“Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. (2006). Taylor’s conduct was not an issue in Dupree’s trial. Therefore, her alleged fear and her reasons for that fear are irrelevant. To further compound the error, the state used this testimony in its final argument to assert that this evidence of Dupree’s bad character and propensity for violence proved that he was guilty as charged.

We conclude that the trial court abused its discretion in finding the evidence relevant and its admission was not harmless.

Reversed and Remanded.

STEVENSON and LEVINE, JJ., concur.

      . Dupree was also charged with possession of a firearm by a convicted felon, which was severed from the trial on the above charges.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


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    W.B., Father of D.B., and D.B., Children, Appellant, v. DEPT. OF CHILDREN & FAMILIES, Appellee.
    No. 5D08-4375.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2009.

      Mark A. Skipper, Orlando and Jeffrey Deen, Altamonte Springs, Regional Counsel, for Appellant.
    Jeffrey Dana Giillen, Dept, of Children & Families, West Palm Beach, for Appel-lee.
    Jennifer S. Paullin, Orlando, for Guardian Ad Litem.
   PER CURIAM.

In light of the Appellee’s confession of error, this appeal is summarily reversed pursuant to Florida Rule of Appellate Procedure 9.315(b), and remanded to the trial court for further proceedings.

REVERSED and REMANDED.

PALMER, C.J., ORFINGER and LAWSON, JJ. concur.


text:
    Richard M. GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-5530.
    District Court of Appeal of Florida, First District.
    June 17, 2009.
    Richard M. Griffin, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Richard Griffin is hereby afforded a belated appeal from judgment and sentence in case number 2005-CF-283 in the Circuit Court for Alachua County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

PETITION GRANTED.

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.


text:
    David Buck CULVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2274.
    District Court of Appeal of Florida, First District.
    June 18, 2009.
    David Buck Culver, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, BENTON, and ROBERTS, JJ., concur.


text:
    Tony L. ASHLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2459.
    District Court of Appeal of Florida, First District.
    June 18, 2009.
    Tony L. Ashley, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, BENTON, and ROBERTS, JJ., concur.


text:
    Ali WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0141.
    District Court of Appeal of Florida, First District.
    June 22, 2009.
    Ali Washington, pro se, Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges an order by which the trial court denied his Florida Rule of Criminal Procedure 3.800(a) motion through which he alleged that his twenty-year sentence for attempted armed robbery is illegal because it exceeds the statutory maximum. Attempted armed robbery is a second degree felony which carries a statutory maximum of fifteen years unless an enhancement statute applies. In denying the appellant’s motion, the trial court indicated that the enhanced sentence is authorized because the appellant was sentenced as a habitual violent felony offender. But the trial court did not attach record excerpts demonstrating that the appellant was sentenced as a habitual violent felony offender. In the absence of such attachments, the order under review must be reversed. See Fla. R.App. P. 9.141(b)(2).

The order is therefore reversed, and this case is remanded to the trial court for further consideration of the appellant’s motion.

HAWKES, C.J., ALLEN, and CLARK, JJ., concur.


text:
    CEQUENT TOWING PRODUCTS, INC., Petitioner, v. John A. LOYD, as Father and Personal Representative of the Estate of Jonathan Andrew Loyd, deceased, and Doris M. Loyd, as Mother and Personal Representative of the Estate of Tony Clayton McDonald, deceased; Robert K. Billings, Cathy Billings, individually and d/b/a Little Pond Farm; Little Pond Farm; Reese Products, Inc.; Camping World, Inc.; 4-Star® Trailers, Inc.; and Haylo Trailers, Inc., Respondents.
    No. 1D09-0513.
    District Court of Appeal of Florida, First District.
    June 22, 2009.
    Jeffrey B. Shapiro of Arnstein & Lehr LLP, Miami, for Petitioner.
    Joseph A. Zarzaur, Jr. of Zarzaur Law, P.A., Pensacola, for Respondents.
   PER CURIAM.

We withdraw our original opinion and substitute the following.

In response to the petition for writ of certiorari, Respondents John A. Loyd, as Father and Personal Representative of the Estate of Jonathan Andrew Loyd, deceased, and Doris M. Loyd, as Mother and Personal Representative of the Estate of Tony Clayton McDonald, deceased, concede the relevant period for discovery of Petitioner’s documents is January 1, 2000, through May 7, 2006. These respondents have offered to provide staffing to conduct the discovery which would be subject to the confidentiality provisions of the protective order. This obviates the need for the court to review the order.

The petition for writ of certiorari is denied.

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.


text:
    Samuel WIGFALS, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    Nos. 1D07-4724, 1D07-4725.
    District Court of Appeal of Florida, First District.
    June 22, 2009.
    Samuel Wigfals, pro se, Appellant.
    Bill McCollum, Attorney General; Joe Belitzky, Assistant Attorney General; and Kathleen Von Hoene, General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED for lack of jurisdiction. See Gaither v. McDonough, 968 So.2d 57, 58 (Fla. 1st DCA 2007).

WEBSTER, BENTON, and ROBERTS, JJ., concur.