text:
    Sean Christopher STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-132.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2013.
    Howard L. Dimmig, II, Public Defender, and Adam S. Tanenbaum, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Sean Christopher Stewart appeals his judgments and sentences for second-degree murder and aggravated assault. The trial court read an incorrect instruction regarding the forcible felony exception to justifiable use of deadly force. Although this error was not preserved, under the circumstances of this case and the applicable precedent, we conclude that the error qualifies as a fundamental error warranting a new trial.

The events resulting in these charges arose out of a party that Mr. Stewart attended at a house in Tampa on the evening of December 1, 2007. The people at the party were watching television while drinking hard liquor and taking Xanax. This context did not contribute to coherent, consistent testimony at the criminal trial several years later.

It is undisputed that Mr. Stewart owned several handguns. When he was invited to this home for the evening, he brought two of his more valuable guns into the home. He apparently wanted to show the weapons to his friends. As more people arrived at the home, someone put the guns in an out-of-the-way location, apparently as a safety measure.

At some point, Mr. Stewart discovered that the guns were gone. The guns were not recovered after these events, and it is reasonable to assume that someone at the party stole his weapons. Mr. Stewart was very upset.

The witnesses’ versions of these events diverge at this point. Several witnesses testify that Mr. Stewart got into a physical fight with a man named Mr. Baisden. They claim that Mr. Baisden pushed Mr. Stewart into a bookcase. As Mr. Baisden was walking away, Mr. Stewart purportedly got up and hit him in the back of the head, causing him to collapse to the ground for a short time. Mr. Stewart then walked out of the house to his pickup truck.

Mr. Stewart agrees that he walked out of the house to his truck. But in a statement that he voluntarily provided to the police at the scene of these events, he claimed that he had been the victim of the attack inside the home. He claimed that he had been hit on the head with the bookshelf. As a result, he had gone out to his truck to obtain a third handgun that was inside his truck.

Mr. Stewart did not have the keys to his truck, so he broke a window, opened the door, and retrieved the other handgun that was on the seat. At this point in the story, the witnesses’ versions again diverge.

Other people at the party claim that Mr. Stewart returned to the front door of the house, opened it forcefully, and shot Mr. Baisden. When Mr. Baisden dropped to the floor, Mr. Stewart continued to point the gun at a man standing behind Mr. Baisden. This resulted in the charge of aggravated assault. Mr. Baisden managed to get up and leave the house, but he collapsed in the adjacent yard. He lived for several days, but died of infection brought on by the shooting.

In his statement at the scene, Mr. Stewart indicated that he believed his guns had been taken by a group of men including Mr. Baisden. Mr. Stewart maintained that he did not return to the house because the group of men reinitiated the attack on him in the adjacent yard. He admitted that he shot Mr. Baisden, but claimed he did it in self-defense. Thus, he claimed that Mr. Baisden had been shot approximately where he lay in the yard.

The physical evidence in this case supports both versions of the events. The autopsy of Mr. Baisden did not reveal any trauma consistent with being hit on the head with a board. On the other hand, Mr. Stewart had an injury to his head consistent with his story that he had been attacked inside the house. Although Mr. Baisden was found in the yard where Mr. Stewart claimed that he shot him, there was blood in the house consistent with a shooting at that location. Undoubtedly, the most problematic evidence for Mr. Stewart was a bloody projectile that was found in the house, which may have been the bullet that killed Mr. Baisden.

It is noteworthy that Mr. Stewart did not delay in establishing his theory of self-defense. He repeatedly and vociferously explained in his statement at the scene that he did not call the police or leave the scene because he thought the “Stand Your Ground” law allowed him to fire his weapon in this context. At trial, there was no dispute that Mr. Stewart had shot Mr. Baisden and that Mr. Baisden died as a result of this shooting. Mr. Stewart’s only defense was self-defense.

When it came time to finalize the jury instructions, the parties, without objection, settled on a jury instruction addressing justifiable use of deadly force that tracked the language of Florida Standard Jury Instruction (Criminal) 3.6(f). The instruction stated:

A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent
1. Imminent ■ death or great bodily harm to himself or another, or
2. The imminent commission of aggravated battery against himself or another.
However, the use of deadly force is not justifiable if you find:
1. [Mr. Stewart] was attempting to commit, committing, or escaping after the commission of a felony battery; or
2. [Mr. Stewart] initially provoked the use of force against himself, unless:
a. The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on [Mr. Baisden].
b. In good faith, the defendant withdrew from physical contact with [Mr. Baisden] and clearly indicated to [Mr. Baisden] that he wanted to withdraw and stop the use of deadly force, but [Mr. Baisden] continued or resumed the use of force.

Unfortunately, the instruction: “However, the use of deadly force is not justifiable if you find ... [Mr. Stewart] was attempting to commit, committing, or escaping after the commission of a ‘felony battery’ ” should not have been given. As explained in the italicized explanations for these instructions, this forcible felony exception is to be used only when the defendant has been charged with an independent forcible felony. See Fla. Std. Jury Instr. (Crim.) 3.6(f); see also Martinez v. State, 981 So.2d 449, 457 (Fla.2008)(holding that a court should not read the forcible-felony instruction to a jury where the defendant is not charged with an independent forcible felony). The information alleged only second-degree murder and aggravated assault. It did not charge a felony battery.

The likelihood that this instruction created confusion for the jury is compounded because the trial court gave no instruction explaining the definition of “felony battery.” Why felony battery was selected for use in this instruction is unclear. There are, of course, two different crimes that are described as “felony battery.” See §§ 784.03, .041, Fla. Stat. (2007). This jury was not instructed on the elements of either of these offenses.

Factually, the jury had heard evidence that Mr. Stewart had hit Mr. Baisden with the bookshelf before the shooting occurred. Given the evidence, it is not surprising that the State had not charged Mr. Stewart with even misdemeanor battery for that altercation. But if the jurors decided that the judge was explaining to them that the bookshelf battery could be an exception preventing Mr. Stewart from being entitled to raise a claim of self-defense, it is possible that they did not consider his only defense.

In Martinez, the erroneous instruction was not fundamental error; the court explained, however, that “fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.” ’ 981 So.2d at 455 (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)).

Prior to Martinez, this court, relying on Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004), granted numerous new trials due to errors in this instruction after concluding that the instruction “was relevant to the disputed issue at trial.” See York v. State, 932 So.2d 413, 415-16 (Fla. 2d DCA 2006). This test may no longer be entirely sufficient given the discussion in Martinez, 981 So.2d 449, 451-57. Cf. Mosansky v. State, 33 So.3d 756 (Fla. 1st DCA 2010).

However, after Martinez, courts have tended to find fundamental error in this context when the erroneous instruction negates a defendant’s key theory of self-defense. See Vowels v. State, 32 So.3d 720 (Fla. 5th DCA 2010); see also Smith v. State, 76 So.3d 379 (Fla. 1st DCA 2011); Sloss v. State, 45 So.3d 66 (Fla. 5th DCA 2010). In this case, the selection of felony battery as the forcible felony makes the instruction potentially more harmful. We have carefully considered whether the location of the bloody projectile might be evidence sufficient to make Mr. Stewart’s defense “extremely weak,” like the claim in Martinez. 981 So.2d at 456. But after considering Mr. Stewart’s full cooperation at the scene of these events and after carefully reviewing his long statement to the police, we conclude that his defense had sufficient strength that he is entitled to a new trial with proper jury instructions.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ., Concur.

      . From our record it is unclear, but it is possible, that Mr. Stewart’s keys and billfold were taken by the same person who took his two handguns.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. H.D., Appellee.
    No. 2D11-5262.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   LaROSE, Judge.

The State appeals the dismissal of a possession of cocaine charge against H.D. after the trial court granted his motion to suppress evidence. See § 893.13, Fla. Stat. (2011). We reverse.

Police received an anonymous tip that someone was selling drugs from a red pickup truck. When Officers Zarra and O’Brien arrived at the scene, they saw H.D. riding a bicycle away from the truck. No one else was nearby. They dispatched a Be-On-(the)-Look-Out alert (BOLO) for a black male fleeing the scene on a bicycle. H.D. abandoned the bicycle and the officers chased him on foot.

Officer Morley heard the BOLO and saw H.D. scaling a privacy fence in back of a house. H.D. ignored the officer’s orders to stop and entered the backyard. People standing in the yard were telling H.D. to leave. H.D. tried to enter the house. Officer Morley ordered H.D. to stop and drop to the ground. When H.D. refused to do so, Officer Morley tasered him. The officer arrested him and found several grams of cocaine in his possession.

The trial court granted H.D.’s motion to suppress, finding that the BOLO was improper because Officers Zarra and O’Brien failed to corroborate the anonymous tip and had inadequate grounds to detain H.D. See Simms v. State, 51 So.3d 1264, 1266 (Fla. 2d DCA 2011). The trial court ruled that the unlawful BOLO tainted Officer Morley’s authority to stop H.D. even after H.D. trespassed on private property. According to the trial court, the cocaine was inadmissible as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The State concedes that the BOLO was unlawful, but argues that H.D.’s refusal to leave the private property constituted a trespass in Officer Morley’s presence that purged the taint of the improper BOLO and gave the officer authority to stop H.D. See id. at 488.

In Wong Sun, the Supreme Court declined to adopt a “but for” test for assessing motions to suppress:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Id. at 487-88 (quoting Maguire, Evidence of Guilt, 221 (1959)). To determine whether the evidence in this case is sufficiently distinguishable, we consider three factors: “ ‘(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.’” State v. Frierson, 926 So.2d 1139, 1143 (Fla.2006) (quoting United States v. Green, 111 F.3d 515, 521 (7th Cir.1997) (relying on factors set forth in Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975))). No single factor is dispositive; we must base our determination on the totality of the circumstances. See Frierson, 926 So.2d at 1144.

The short time between the BOLO and the seizure of the cocaine and the obvious inadequacy of the BOLO support the trial court’s ruling that the officer obtained the cocaine by exploiting the unlawful BOLO. The key factor here, however, is whether H.D.’s intervening trespass while fleeing from Officer Morley was a sufficient attenuation to purge the taint of the unlawful BOLO. See id. at 1140. H.D. committed the trespass in Officer Morley’s presence. See § 810.09(1), Fla. Stat. (2011). H.D.’s trespass was, indeed, sufficiently attenuated from the improper BOLO. See, e.g., State v. Clavette, 969 So.2d 468, 466 (Fla. 5th DCA 2007) (“The courts have consistently held that the evidence of the new crime is admissible notwithstanding the prior illegal arrest or search.”); State v. White, 642 So.2d 842, 844 (Fla. 4th DCA 1994). Therefore, we reverse the trial court’s order granting H.D.’s motion to suppress the cocaine police found on his person and remand for further proceedings.

Reversed and remanded.

VILLANTI and BLACK, JJ„ Concur.


text:
    SCHOOL BOARD OF HILLSBOROUGH COUNTY, Appellant, v. TAMPA SCHOOL DEVELOPMENT CORP., d/b/a Trinity School for Children, Appellee.
    No. 2D11-5811.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2013.

      Thomas M. Gonzalez and LaKisha M. Kinsey-Sallis of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Appellant.
    Stephanie Alexander of Tripp Scott, P.A., Tallahassee, for Appellee.
   LaROSE, Judge.

The School Board of Hillsborough County appeals an administrative order reversing its decision to deny a request by Tampa School Development Corporation, d/b/a/ Trinity School for Children (Trinity), to consolidate the charter contracts of its two schools. The School Board argues that the administrative law judge (ALJ) lacked subject matter jurisdiction and erred in reversing the School Board’s denial. It also contends that section 1002.33(6)(h), Florida Statutes (2011), violates the Florida Constitution to the extent that it impinges on the School Board’s authority to run the public school system in Hillsbor-ough County. We affirm.

Facts

Trinity currently operates two charter schools in Tampa pursuant to contracts with the School Board. One is an elementary school (Trinity School); the second is a middle school (Upper School). Both are excellent institutions, having received A grades from the Florida Department of Education (DOE). Trinity established its first charter school in 1999 as a school for grades kindergarten through eight. In 2004, when a building across the street became available, the School Board allowed Trinity to split its one charter school into two in order to receive federal grants available for new charter schools. Although a separate charter contract applied to each school, the two well-performing schools were operated by the same governing board, shared facilities and staff, and were considered by the community to be a single school.

In 2008, after several years of struggling with the unexpected administrative costs of running two schools, Trinity sought to reconsolidate its two charter contracts with the School Board. Trinity could save about $120,000 per year by eliminating duplicative administrative tasks such as preparing two sets of financial audits, two accountability reports, and two school improvements plans. The Charter School Supervisor for the School Board advised Trinity that, according to DOE, Trinity could combine the schools:

After consulting with the Department of Education regarding your request to combine Trinity School for Children and Trinity Upper School, the district has been advised that you are able to combine the two schools. I will present your request to the Hillsborough County School Board regarding the combination of the two schools during your schools’ contract renewal process.

Trinity’s charter contracts were not scheduled for renewal until 2010, but Trinity believed that consolidation was a foregone conclusion. Indeed, when it came time to submit a renewal contract in May 2010, the School Board sent Trinity only one draft contract that covered both schools. Trinity and the School Board began to negotiate the terms of that single document. The School Board did not advise Trinity that it had to submit a new charter school application. See § 1002.33(3)(a).

In June 2010, implementation of an unanticipated statutory change altered the administrative fee that a charter school must pay to a sponsoring school board. As a result, if the School Board approved Trinity’s proposed consolidation, the School Board would lose approximately $60,000 per year in fees from Trinity. Retreating from its earlier assurances, the School Board rejected consolidation, advising Trinity in writing that there is no educational benefit for students by combining the two schools.

Thereafter, Trinity and the School Board attempted, unsuccessfully, to mediate this matter before DOE. See § 1002.33(6)(h). Mediation failed. In April 2011, Trinity requested a hearing before the Division of Administrative Hearings (DOAH). See id. The School Board moved to dismiss for lack of jurisdiction. The ALJ denied the motion. After an evidentiary hearing, he granted Trinity’s consolidation request.

Analysis

At the outset, we address DOAH’s subject matter jurisdiction over Trinity’s consolidation request. Section 1002.33(6)(h) provides, in part, as follows:

The terms and conditions for the operation of a charter school shall be set forth by the sponsor and the applicant in a written and contractual agreement, called a charter. The sponsor shall not impose unreasonable rules or regulations that violate the intent of giving charter schools greater flexibility to meet educational goals.... The administrative law judge may rule on issues of equitable treatment of the charter school as a public school, whether proposed provisions of the charter violate the intended flexibility granted charter schools by statute, or on any other matter regarding this section except a charter school application denial, a charter termination, or a charter nonrenewal.

If the School Board’s rejection of Trinity’s consolidation request was “a charter school application denial, a charter termination, or a charter nonrenewal,” DOAH lacked jurisdiction. It was none of these. Indeed, the School Board’s letter advising Trinity of its rejection hardly allows such a facile characterization.

We agree with the ALJ that Trinity’s request was an effort to modify existing charter contracts. As such, the statutory bar to DOAH’s jurisdiction was inapplicable. As the ALJ reasoned:

[Sjection 1002.33(7)'(c) shows a legislative intent that an existing charter school may modify its original charter without having to provide a new application. Section 1002.33(7)(c) provides that “[a] charter may be modified during its initial term or any renewal term upon the recommendation of the sponsor or the charter school’s governing board and the approval of both parties to the agreement.” The plain meaning of the term “modification” means, in relevant part, “the making of a limited change in something; also the result of such change.” Merriam-Webster Dictionary, http://www.merriam-webster. corn/ dictionary/modification. Thus, the legislature has provided an existing charter school with the authority to seek a modification of its charter. Because of [sic] the issue brought forward by Trinity School occurs in the context of an existing charter and is a dispute concerning the charter school statute, subject matter jurisdiction is proper under section 1002.33(6)(h).

Tampa Sch. Dev. Corp., d/b/a Trinity Sch. For Children, No. 11-2183, at *2, 2011 WL 6328412 (Fla. Div. Admin. Hearings Oct. 25, 2011).

The procedural posture in which this matter came before the ALJ establishes that Trinity was not applying for a new charter. Moreover, the School Board’s decision does not qualify as a charter termination or nonrenewal. This dispute by the terms of section 1002.33(6) was not exempt from the ALJ’s consideration. The ALJ properly exercised jurisdiction.

We now address whether the ALJ erred in granting the requested consolidation. He did not; competent, substantial evidence supported his decision. We fail to see how consolidation would not inure to the benefit of Trinity’s students. The ALJ found that Trinity’s “request to combine the two charter schools into one charter is appropriate and consistent with the flexibility that the legislature has provided to charter schools, and meets the express guides for charter schools.” Id. at 5. Section 120.68(10), Florida Statutes (2012), provides:

If an administrative law judge’s final order depends on any fact found by the administrative law judge, the court shall not substitute its judgment for that of the administrative law judge as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside the final order of the administrative law judge or remand the case to the administrative law judge, if it finds that the final order depends on any finding of fact that is not supported by competent substantial evidence in the record of the proceeding.

We will not substitute our judgment if the ALJ’s findings are supported by competent, substantial evidence. Competent, substantial evidence, sufficient to sustain a finding of an administrative agency, is evidence that is sufficiently relevant and material that a reasonable mind might accept as adequate to support the conclusion reached. De Groot v. Sheffield, 95 So.2d 912 (Fla.1957) (en banc); Fla. Bd. of Med. v. Fla. Acad. of Cosmetic Surgery, Inc., 808 So.2d 243 (Fla. 1st DCA 2002). . The ALJ concluded:

The facts clearly showed that both of the charter schools operate and function as one school, sharing many of the same resources. Further, it was undisputed that both Trinity School charters provide an excellent education for their students and that combining the two charters into one charter will result in efficiency of resources and save the charter schools approximately $125,000.00 a year. One of the legislature’s express guiding principles is that charter schools “[pjromote enhanced academic success and financial efficiency by aligning responsibility with accountability.”

Tampa Sch. Dev. Corp., d/b/a Trinity Sch. For Children, No. 11-2183, at *5, 2011WL 6328411 (Fla. Div. Admin. Hearings Oct. 25, 2011). The final order was supported by competent, substantial evidence. It belied the School Board’s conclusion that consolidation would be devoid of educational benefit to the students. Accordingly, we affirm on this issue.

Finally, we conclude that section 1002.33(6)(h) is constitutional. The School Board’s effort to raise this issue before the ALJ was feeble. As a result, our record on this issue is sparse. We are mindful that the ALJ lacked jurisdiction to declare the statute unconstitutional. See Key Haven Associated Enters., Inc. v. Bd. of Trs. of Internal Improvement Trust Fund, 427 So.2d 153, 157 (Fla.1982), superseded by § 253.763(2), Fla. Stat., on other grounds as noted in Bowen v. Fla. Dep’t of Envtl. Regulation, 448 So.2d 566, 568-69 (Fla. 2d DCA 1984), approved, 472 So.2d 460 (Fla. 1985). Perhaps the parties would have been better served had the School Board raised this issue first in circuit court. See id. (holding circuit court may entertain declaratory action on statute’s validity in appropriate circumstances where statute being implemented by agency is claimed to be facially unconstitutional). Although the constitutional issue could have been better developed below, see Rice v. Dep’t of Health Rehabilitative Servs., 386 So.2d 844, 849 (Fla. 1st DCA 1980), we may pass on the constitutionality of a statute when it is necessary for reviewing administrative action. See id. We will not shun our duty.

Section 1002.33(6)(h) does no violence to article IX, sections 2 and 4 of our constitution. Cf. Sch. Bd. of Volusia Cnty. v. Acads. of Excellence, Inc., 974 So.2d 1186, 1191-93 (Fla. 5th DCA 2008) (holding section 1002.33(6)(c) allowing DOE to approve or deny charter school application did not violate article IX, section 4(b) of constitution conferring public school control and operation on school board). The School Board holds the authority to operate, control and supervise all free public schools within the school district. The ALJ’s decision does not diminish that constitutional role. Whether Trinity runs its middle and elementary schools under one or two charter contracts, the School Board retains the right to operate, control, and supervise the provision of educational services to the students. It bears repeating that the ALJ’s decision did not interfere with the School Board’s ability to deny a charter application or terminate a charter contract. See id. at 1193. We see no constitutional impediment to the ALJ’s decision.

Affirmed.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . In 2011, the legislature enacted legislation regarding high-performing charter schools. See § 1002.331, Fla. Stat. (2011); Ch.2011-232, § 1, at 3451, Laws of Fla. (effective July 1, 2011). The statute is not applicable to the dispute before us and we do not opine on whether Trinity's two schools would satisfy the definition of a high-performing charter school. See § 1002.331(1). We note that the statute allows the sponsor of such high-performing schools to consolidate the schools under a single charter; School Board approval does not appear to be necessary. See § 1002.331(2).

      . Section 1002.33(6)(h) provides, in part, as follows:
      The Department of Education shall provide mediation services for any dispute regarding this section subsequent to the approval of a charter application and for any dispute relating to the approved charter, except disputes regarding charter school application denials. If the Commissioner of Education determines that the dispute cannot be settled through mediation, the dispute may be appealed to an administrative law judge appointed by the Division of Administrative Hearings.

      . The School Board posits that Trinity’s dissatisfaction with the rejection of the proposal to consolidate should have been submitted to the DOE Charter School Appeal Commission. See § 1002.33(6)(c).

      . These sections provide, in pertinent part, as follows:
      SECTION 2. State board of education.— The state board of education shall be a body corporate and have such supervision of the system of free public education as is provided by law_

      SECTION 4. School districts; school boards.— '

      (b) The school board shall operate, control and supervise all free public schools within the school district....

        The thrust of the School Board’s argument is directed at section 4.


author: KHOUZAM, Judge.

text:
    Robert PHELPS and Richard Beuchat, Appellants, v. Jimmy Dean JOHNSON, Appellee.
    No. 2D11-6483.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2013.
    Rehearing Denied Feb. 28, 2013.

      Stuart J. Freeman, J. Scott Brasfield, and Robyn M. Featherston of Brasfield, Freeman, Goldis, & Cash, P.A., St. Peters-burg, for Appellants.
    Lesley B. Smith Hayes and Delano S. Stewart of The Law Office of Delano S. Stewart, P.A., Tampa, for Appellee Jimmy Dean Johnson.
    No appearance for Appellee John Henry.
   KHOUZAM, Judge.

Robert Phelps and Richard Beuchat timely appeal the circuit court’s order granting Jimmy Dean Johnson a new trial in this false imprisonment action. We reverse and remand with directions for the trial court to reinstate the verdict and enter judgment for the appellants.

Phelps and Beuchat mistakenly identified Johnson to law enforcement as the perpetrator of a strong-arm robbery and kidnapping. Johnson filed a complaint against them, alleging that their identification was made in bad faith and therefore constituted false imprisonment. A jury trial was held. Both Phelps and Beuchat testified that they were working at Car-rabba’s restaurant on the morning of April 5, 2003, when a man armed with a gun entered the building, demanded money, and locked them in the liquor room.

In the initial police report, Phelps and Beuchat identified the perpetrator as a black man over six feet tall and weighing approximately 300 pounds. Though the perpetrator had been wearing pantyhose over his face, they were still able to make out his facial features during the ten-minute period over which the robbery took place. They both noticed that the man resembled Johnson, who had periodically made produce deliveries to the restaurant. However, they did not initially identify Johnson as a suspect because they were concerned about making a false identification.

The officer who responded to the scene advised Phelps and Beuchat to continue to think about whether they might know the man who committed the robbery. Because the perpetrator wore a mask and the robbery occurred at a place of business, the officer explained to them that the crime may have been committed by a former employee or someone with a connection to the restaurant. Apparently following the officer’s direction, Phelps and Beuchat discussed their suspicion that Johnson was the perpetrator with each other as well as with one of Johnson’s coworkers. Based on these conversations, they located a photograph of Johnson on the internet. Only after seeing the photograph did they become certain that Johnson had committed the crime, and they contacted law enforcement with this information. Law enforcement arrested Johnson, and he was detained in jail while awaiting trial. Approximately five months after Johnson was arrested, another man confessed to the crimes and Johnson was released. Both Phelps and Beuchat emphasized that they were shocked to discover that they had identified the wrong man. The jury returned a verdict in favor of Phelps and Beuchat on May 11, 2011, specifically finding that Phelps and Beuchat had acted in good faith in mistakenly identifying Johnson to law enforcement and that they had not instigated, persuaded, or requested law enforcement to restrain Johnson.

On May 20, 2011, Johnson filed a motion for new trial, arguing that the trial court erred in responding outside the presence of the parties and their attorneys to the deliberating jury’s request for the definition of “outstanding warrant.” The record shows that the jury requested the definition during deliberations and that the trial judge responded while the parties and their attorneys were at lunch. When they returned, the judge informed them of the exchange. The court explained the jury’s question and his response “that they have heard all the evidence, they have all the law in the case, and to continue their deliberations.” Johnson’s counsel did not object, and the jury returned its verdict shortly thereafter. The trial court granted the motion for new trial, and Phelps and Beuchat timely appealed.

“When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion.” Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999). We recognize that this is a high standard, but we conclude that the trial court abused its discretion in granting a new trial in this case. Though it is undisputed that it was error for the trial court to answer the jury’s question outside the presence of the parties and their attorneys, as will be explained below Johnson waived any objection to this error and furthermore, the error was actually harmless.

Johnson waived any objection to the error because he was aware of the misconduct before the verdict was returned and yet he failed to raise an objec-

tion. As explained by the Third District in Nissan Motor Corp. in U.S.A. v. Padilla:

The general rule is that misconduct by a judge in connection with a deliberating jury, even if of the nature that would require setting aside the verdict if timely brought to the court’s attention, is not a post-trial ground for a new trial where the misconduct was known to the moving party or his counsel before the return of the verdict.

545 So.2d 274, 276 (Fla. 3d DCA 1989). This contemporaneous objection requirement prevents “an attorney from sandbagging the court and his opponent by postponing his motion in belief that the outcome will be favorable, reserving an option to make the motion for the first time after the trial when the preliminary assessment has proved wrong.” Id. Here, the judge informed the parties and their attorneys that the jury had asked a question and that he had responded outside their presence. Johnson did not object before the return of the verdict or even after the verdict was announced. He first raised the issue in his motion for new trial filed nine days later. Thus, Johnson waived his objection to the error.

Even if Johnson had not waived his objection, he would be unable to show that he was prejudiced by the trial court’s error.

[Wjhere a trial judge’s ex parte communication with a jury in a civil case does not affect any substantial rights of the parties, the error will be deemed harmless. A complaining party thus must demonstrate specific prejudice, which might include a showing of an inability of the reviewing court to determine from the record whether the action was actually harmless.

Life From The Sea, Inc. v. Levy, 502 So.2d 473, 474-75 (Fla. 3d DCA 1987). Here, the record shows that the error was actually harmless. The definition of “outstanding warrant” that the jury requested was irrelevant to the question the jurors had to resolve to reach a verdict: whether Phelps and Beuchat acted in good faith. Further, by simply reminding the jurors that they already had all of the evidence and law in the case at their disposal, the judge gave a legally correct answer to the jury’s inquiry — and indeed, Johnson has not proposed an alternative response. Finally, the evidence presented at trial and summarized above strongly supported the verdict. For all of these reasons, we conclude beyond a reasonable doubt that the error did not affect the verdict. Accordingly, we reverse and remand for the trial court to reinstate the verdict and enter judgment for Phelps and Beuchat.

Reversed and remanded with directions.

DAVIS, J., and RAIDEN, MICHAEL E., Associate Judge, Concur.


author: EVANDER, J.

text:
    Patrick SILFRAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4553.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Patrick Silfran appeals from the denial of his motion to withdraw plea. The record reflects a series of procedural irregularities and a failure of defense counsel to timely object to same with the result that Silfran received a sentence that was inconsistent with statements made by the trial court and counsel at the plea hearing. To avoid a manifest injustice, we conclude that ineffective assistance of counsel is evident from the record and, accordingly, direct the trial court to vacate Silfran’s judgment and conviction, and afford him the opportunity to withdraw his plea. See Barber v. State, 901 So.2d 364, 366 (Fla. 5th DCA 2005) (if record on its face ra-fleets the merit of claim of ineffective assistance of trial counsel, then appellate court may consider issue on direct appeal).

Silfran was charged with dealing in stolen property. At his scheduled plea hearing, the State advised the trial court that if Silfran deposited $3,000 toward restitution that day, it would recommend a twenty-seven-month prison sentence. At that point, the trial court suggested its intent to impose a twenty-four-month community control sentence instead of prison. The State then informed the trial court that it was uncertain as to the exact amount of restitution to be sought and a discussion ensued as to whether to postpone the plea and sentencing until all parties were aware of the exact amount of restitution being sought.

After having the opportunity to discuss the matter with his counsel, Silfran decided to enter a plea that day. The trial court accepted Silfran’s plea and inexplicably, without objection, sentenced Silfran to thirty years in prison. The trial court explained to Silfran and counsel that it would schedule a sentence modification hearing. If Silfran failed to appear for the modification hearing, the thirty-year sentence would remain in effect. If Silfran appeared, the trial court indicated its intent to modify the sentence to one imposing community control. Indeed, the trial court indicated that if Silfran paid the entire amount of restitution during the first year of community control, it would “let him out” of his second year of community control. Based on its understanding that Silfran would be making a $8,000 restitution payment that day, the trial court entered a restitution order purporting to make restitution “a condition of pre-sen-tencing release.”

Silfran duly appeared at the scheduled modification hearing. His counsel advised the trial court that Silfran had attempted to make a $8,000 restitution payment through the clerk’s office, but the clerk had refused payment because of a purported deficiency in the trial court’s restitution order. Counsel further represented that Silfran again had the $3,000 with him and was prepared to make a restitution payment that day. The State did not dispute defense counsel’s representations. Although the trial court entered an amended restitution order, no additional effort was made to ensure that the clerk’s office would accept Silfran’s tendered payment. Instead, the trial court continued the modification hearing to a later date.

At the rescheduled modification hearing, Silfran appeared with a different attorney. (It appears from the record that the “new” attorney was an assistant public defender who was merely covering the hearing for Silfran’s assigned attorney.) The State informed the trial court of its intent to present evidence that Silfran had been arrested on new charges and that any monies that Silfran may have paid (or attempted to pay) toward restitution were likely from an illegal source. Having just learned of the new charges and the State’s intent to seek a harsher sentence, defense counsel moved for a continuance. The trial court summarily denied the continuance request, permitted the State to present the testimony of the detective who had conducted the investigation leading to Silfran’s new charges, and then imposed a five-year prison sentence followed by fifteen years’ probation. Based on the prosecutor’s representations, the trial court also entered a $23,662.08 restitution order against Silfran.

Subsequent efforts by Silfran to withdraw his plea or to have his sentence reduced were unsuccessful, and this appeal ensued.

We cannot help but be troubled by the events that occurred below. It appears that at the time Silfran entered his plea, all participants had a general understanding that if Silfran paid $3,000 toward restitution through the clerk’s office, he would receive a community control sentence. Instead, without objection from counsel, a thirty-year sentence was initially imposed.

Furthermore, it appears that Silfran attempted to promptly make the $3,000 restitution payment but, through no fault of his own, the clerk’s office refused to accept payment. The record reflects that defense counsel’s efforts to address with the trial court the apparent “disconnect” between the restitution order and the clerk’s office were de minimis. It seems likely that if arrangements had been made to ensure that the clerk’s office would accept Sil-fran’s $3,000 tender, Silfran would have received a community control sentence at the initially scheduled sentence modification hearing — a sentence that would have been consistent with the trial court’s statements during the plea hearing.

Finally, we are troubled by the trial court’s refusal to grant a continuance at the rescheduled modification hearing where defense counsel had just learned of the State’s intent to seek a harsher sentence based on information that defense counsel had not had the opportunity to investigate.

Given the aforesaid procedural irregularities and the instances of ineffective assistance of counsel apparent from the face of the record, we direct the trial court to vacate Silfran’s judgment and sentence and afford him the opportunity to withdraw his plea.

REVERSED and REMANDED.

PALMER and LAWSON, JJ., concur.

      . By separate order, we granted Silfran’s petition for belated appeal.

      . § 812.019(2), Fla. Stat. (2008).

      . We would observe that the procedural irregularities arising in this case could largely have been avoided if the trial court had accepted the plea, set sentencing for a later date, and released Silfran pursuant to a Quar-terman agreement. See Quarterman v. State, 527 So.2d 1380 (Fla.1988).


author: GRIFFIN, J.

text:
    Brian Robert STANNARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4350.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.

      James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Brian Robert Stannard [“Stannard”] appeals his convictions for trafficking in more than fourteen grams of oxycodone and obtaining a prescription by fraud. Because we agree with Stannard that it was error for the trial court to refuse to charge the jury on the defense of duress, we reverse the conviction and remand for a new trial.

Stannard had been taking oxycodone for knee pain, but the prescription ran out and Stannard had no job. He obtained some oxycodone on credit from a drug dealer named Pops. According to Stannard, he owed Pops $150 for the drugs he previously bought on credit. When Stannard failed to pay what he owed to Pops, Pops and his friends came by several times a month demanding payment. Pops threatened Stannard every time he saw him. Stan-nard was so afraid that he and his mother felt compelled to move from his residence.

Pops found Stannard at his néw address and continued to threaten him. Finally, on April 18, 2010, the night in question, Pops and his friends pulled into the driveway of the residence where Stannard was residing, grabbed Stannard and said, “come on, it’s time to pay up.” They placed him in the back seat of a vehicle. Stannard testified at trial that one of the men in the vehicle told him that this was his last chance; either he “was going to pay up or [he] was going to be beat bad enough that his mom wouldn’t recognize [him].” Pops was driving the vehicle and they took Stannard to a Walgreens Drug Store. On the way, Pops pulled out a prescription that had already been filled out with Stannard’s name and other information. Pops told Stannard that he was to go into Walgreens and fill the prescription to clear his debt.

Stannard went into Walgreens, accompanied by several of Pops’ friends. These friends stayed within sight of Stannard the entire time he was in the store; they were “right there.” Although they did not approach the pharmacist with Stannard, Stannard testified that they were watching him, and he was afraid. Stannard believed that if he did not hand over the prescription, Pops would follow through with his threat to harm Stannard. Stannard was afraid for himself, and he also feared for his mother’s safety. After the prescription was filled, the men took the drugs from Stannard before they left the store.

At trial, Stannard’s counsel asked for the standard criminal jury instruction on duress (Fla. Std. Jury Instr. (Crim.) 3.6(k), which the court denied, stating:

I don’t find that imminent or impending was met and a threat of future harm is not sufficient to prove this defense. It has to be imminent or impending. There has been no testimony other than this was his chance to pay back the money he owed.
It’s still not imminent and impending. And walking into the store with a prescription, not calling the police before or afterwards, getting the prescription, ae- ' knowledging that he’s been buying oxy-codone illegally from them and on his own prescriptions, I just don’t find that testimony credible. I have to find it credible in order to allow the legal definition of duress or necessity to stand.
It requires that he has no reasonable means to avoid it except by committing the crime.
Could have told the pharmacist, please call the police, I’ll stay here.... He didn’t do that.
It requires an imminent and impending danger that cannot be avoided by using other means. That’s not the case. And a threat of future harm is not sufficient.
Do this or else, that’s a threat of future harm. That’s not sufficient to rise to the legal definition of duress and necessity. So no, I’m not giving that instruction.

In his closing argument, Stannard argued that he had been compelled to act as he did because of the threats from Pops. In response, the State argued:

And Pops, guess what? Pops doesn’t matter.... Pops has no relevance for why you six are sitting here and why you six are going to decide this case. What you need to determine: Has the State proven that the drug is oxyco-done? Yes. Has he received 14 grams of it or more? Yes.... You will not find anything in that instruction packet about Pops that says you can come back not guilty because of all this fantastic story of Pops.

Stannard was found guilty as charged by the jury.

A defendant is entitled to have the jury instructed on his theory of defense if there is any evidence to support it, so long as the theory is recognized as valid under the law of the state. Worley v. State, 848 So.2d 491 (Fla. 5th DCA 2003). The trial court should not weigh the evidence for the purpose of determining whether the instruction is appropriate. Mickel v. State, 929 So.2d 1192, 1196 (Fla. 4th DCA 2006) (quoting Smith v. State, 424 So.2d 726, 732 (Fla.1982)). The trial court should examine the evidence in the light most favorable to the defendant to decide whether the necessary elements of the defense have been placed before the jury. Mickel, 929 So.2d at 1196.

Duress or coercion is a recognized defense to crimes other than homicide. Hall v. State, 136 Fla. 644, 187 So. 392 (1939). Duress was said to excuse criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law. United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). To be entitled to a charge on the defense of duress, the defense version of the evidence must demonstrate six elements:

1) the defendant reasonably believed that a danger or emergency existed that he did not intentionally cause; 2) the danger or emergency threatened significant harm to himself or a third person; 3) the threatened harm must have been real, imminent, and impending; 4) the defendant had no reasonable means to avoid the danger or emergency except by committing the crime; 5) the crime must have been committed out of duress to avoid the danger or emergency; and 6) the harm the defendant avoided outweighs the harm caused by committing the crime.

Driggers v. State, 917 So.2d 329, 330 (Fla. 5th DCA 2005). See Std. Jury Instr. (Crim.) 3.6(k). A threatened harm that is “impending” or “imminent” is one that is about to take place and there is no reasonable opportunity to escape the compulsion without committing the crime. Wright v. State, 402 So.2d 493, 497 n. 6 (Fla. 3d DCA 1981).

Here, there was evidence that a direct threat of serious bodily harm was made, that the defendant believed the threat, and that the threat of harm was capable of being carried out immediately. The State contends that the threatened harm was not “impending” or “imminent” because Stannard had at least one opportunity to escape Pops’ compulsion. The State suggests that when he was alone at the pharmacy counter with the pharmacist, Stannard had an opportunity to alert the pharmacist and to have the pharmacist contact the police. Whether Stannard’s story was credible, whether the threatened harm was imminent and impending, and whether he had a reasonable means to avoid the threatened harm are for the jury.

We reject the State’s argument that the error in not instructing the jury on duress was harmless. Not only was the jury given no opportunity to weigh the elements of Stannard’s defense, but the State expressly argued that his defense was irrelevant because there was no instruction.

REVERSED and REMANDED for a new trial.

PALMER and LAWSON, JJ., concur.

      . Stannard was sentenced to fifteen years on the trafficking charge and five years concurrent on the fraud charge.


author: PALMER, J.

text:
    GAYNOR HILL ENTERPRISES, INC., Appellant, v. ALLAN ENTERPRISES, LLC, Kevin Allan, and Donna Allan, Appellees.
    No. 5D11-3505.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    Rehearing Denied Feb. 19, 2013.

      James N. Charles, Celebration, for Appellant.
    Scott R. Rost and F. Lee Morrison of South Milhausen, P.A., Orlando, for Appel-lees.
   PALMER, J.

Gaynor Hill Enterprises, Inc., (Gaynor Hill) appeals the trial court’s order granting Kevin and Donna Allan’s motion for relief from judgment. We reverse.

Kevin and Donna Allan owned Allan Enterprises, LLC, which owned Holmar Villas (Holmar), a property management business. Gaynor Hill purchased Holmar from Allan Enterprises, but soon after filed a lawsuit against Allan Enterprises and the Allans individually for rescission and damages, claiming that Holmar did not have the number of properties or profitability that had been represented. By that time, the Allans had relocated from Florida to the United Kingdom. Gaynor Hill served process on the Allans by substitute service on the Secretary of State, filed its attorney’s affidavit of substitute service, and then obtained a default final judgment against both Allan Enterprises and the Allans.

The Allans filed a motion seeking relief from the default judgment, arguing that it was entered without personal jurisdiction over them and was based on a defective affidavit of service. The trial court granted the motion, concluding that the statute allowing substitute service on the Secretary of State did not apply because Gay-nor Hill’s claims against the Allans did not arise out of business activity, but instead, sounded in contract and tort. Alternatively, the court concluded that Gaynor Hill was required to personally serve the Al-lans, rather than serving the Secretary of State, because they did not attempt to conceal their whereabouts or evade service. Also alternatively, the court concluded that the affidavit of service by Gaynor Hill’s attorney was actually an acknowledgment, not an affidavit, so it was not sufficient to support the entry of a default judgment. Gaynor Hill argues that all three rationales were erroneous, and we agree.

. The standard of review of an order granting a motion for relief from judgment is generally gross abuse of discretion. See Schultz v. Time Warner Entm’t Co., 906 So.2d 297, 299-300 (Fla. 5th DCA 2005). However, pure issues of law within the order are reviewed de novo. Cf. Toler v. Bank of Am., Nat’l Ass’n, 78 So.3d 699, 701-02 (Fla. 4th DCA 2012) (“An order denying a motion for relief from judgment is reviewed for an abuse of discretion.... Questions of law, such as the interpretation of statutes, are reviewed de novo.”); Phenion Dev. Group, Inc. v. Love, 940 So.2d 1179, 1181 (Fla. 5th DCA 2006) (“Generally, we review a trial court’s decision on a rule 1.540(b) motion for abuse of discretion. However, when the underlying judgment is void, the trial court has no discretion, but is obligated to vacate the judgment.” (citation and quotation marks omitted)); Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (stating, in appeal of denial of rule 1.540 motion, “A ruling on personal jurisdiction should be reviewed de novo.”; also stating abuse of discretion standard).

First, the trial court erred in concluding that Gaynor Hill’s claims did not arise out of'business activity within the meaning of the substitute service statute. The substitute service statute provides, in relevant part:

48.181 Service on nonresident engaging in business in state
(1) The acceptance by ... any person who is a resident of the state and who subsequently becomes a nonresident of the state'... of the privilege extended by law ... to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the persons ... of the Secretary of State of the state as their agent on whom all process in any action or proceeding against them ... arising out of any transaction or operation connected with or incidental to the business or business venture may be served.

§ 48.181(1), Fla. Stat. (2010) (emphasis added). Here, Gaynor Hill’s claims arose out of the sale of Holmar. Under the statute’s broad language, this sale was a “transaction or operation connected with or incidental to [a] business or business venture.” Therefore, substitute service was proper. Cf. State ex rel. Weber v. Register, 67 So.2d 619, 620 (Fla.1953) (holding that purchase of orange grove was a business venture under substitute service statute, and listing the grove with a real estate broker was a transaction connected with or incidental to the venture); Dans v. Gran Habana Rest. & Lounge, Inc., 244 So.2d 157 (Fla. 3d DCA 1971) (holding that signing of contract to purchase restaurant business was one of several activities that, taken together, amounted to engaging in a business venture).

Next, the trial court erred in concluding that substitute service on the Secretary of State was not effective, since Gaynor Hill was required to personally serve the Allans because they did not attempt to conceal their whereabouts or evade service. The issue of whether the Allans concealed their whereabouts or evaded service was irrelevant because the substitute service statute applies to a “resident of the state ... who subsequently becomes a nonresident,” regardless of whether that nonresident conceals his whereabouts or evades service. See § 48.181(1).

Finally, the trial court erred in concluding that the affidavit of substitute service of process by Gaynor Hill’s attorney was actually an acknowledgment, so it could not support the default judgment. The substitute service statute requires an affidavit from the plaintiff:

48.161 Method of substituted service on nonresident
[Substituted service of process on a nonresident ... by serving a public officer designated by law shall be made ... by mailing the copies by certified mail to the public officer.... Notice of service and a copy of the process shall be sent forthwith by registered or certified mail by the plaintiff or his or her attorney to the defendant, and the defendant’s return receipt and the affidavit of the plaintiff or his or her attorney of compliance shall be filed....

§ 48.161(1) (emphasis added). “An affidavit is ... a statement in writing under an oath.... An oath is an unequivocal act, before an officer authorized to administer oaths, by which the person knowingly attests to the truth of a statement and assumes the obligations of an oath.” Crain v. State, 914 So.2d 1015, 1019 (Fla. 5th DCA 2005) (quotation marks and citation omitted). In contrast, an acknowledgment is “[a] formal declaration made ... by someone who signs a document and confirms that the signature is authentic.... An acknowledgment is a verification of the fact of execution, but is not a verification of the contents of the instrument execut-ed_” Black’s Law Dictionary, “acknowledgment” (9th ed.2009) (quotation marks omitted).

Confusion often arises between an affidavit and an acknowledgment. Both memorialize acts done before a notary. But, in an affidavit, ... the person swearing before the notary must under oath assert that the facts set forth in the document are true. In an acknowledgment, the person merely declares that he executed and signed the document.
Where an affidavit is called for, an acknowledgment will not suffice.

Pina v. Simon-Pina, 544 So.2d 1161, 1162 (Fla. 5th DCA 1989) (footnotes omitted).

Here, the document in question stated:

AFFIDAVIT ON SERVICE OF PROCESS
STATE OF FLORIDA
COUNTY OF OSCEOLA
BEFORE ME, the undersigned authority, on this day appeared [Gaynor Hill’s attorney], who being by me first duly sworn, says as follows:
Affiant, [Gaynor Hill’s attorney], says he is attorney for plaintiff in this action. Affiant mailed or caused a copy of the process and complaint in this action to be mailed to the Secretary of State of Florida....
[Further facts regarding substitute service.]
Under penalties of perjury, I declare that I have read the foregoing affidavit and the facts stated in it are true.
[Attorney’s signature]
ACKNOWLEDGMENT
STATE OF FLORIDA
COUNTY OF OSCEOLA
I HEREBY CERTIFY that on this day, before me, an officer duly authorized in the State aforesaid and in the County aforesaid, to take acknowledgments, personally appeared [Gaynor Hill’s attorney].
WITNESS my hand and official seal in the County and State last aforesaid this February 10, 2010.
[notary’s signature, seal, etc.]

Although the document was not a model of clarity, it sufficiently displayed the attributes of an affidavit: it was titled AFFIDAVIT ON SERVICE OF PROCESS; Gay-nor Hill’s attorney referred to himself as “Affiant,” and his statements were about the facts of service; and the attorney’s last paragraph stated, “Under penalties of perjury, I declare that I have read the foregoing affidavit and the facts stated in it are true.”

The wording of the notary block is not sufficient to vitiate the document’s effectiveness as an affidavit. The notary block must be read in conjunction with the rest of the document. In the document’s first paragraph, the notary recited, “BEFORE ME, the undersigned authority, on this day appeared [Gaynor Hill’s attorney], who being by me first duly sworn, says as follows,” followed by the attorney’s factual statements. Moreover, the heading “ACKNOWLEDGMENT” cannot be viewed as characterizing what the attorney was doing in signing the document, because the heading appeared at the top of the notary block, not the top of the document itself. Thus, despite ambiguity within the notary block, the document taken as a whole was an affidavit.

Our conclusion is in accord with the principle that “minor technical defects in an affidavit do not render it a nullity.” Gupton v. Dep't of Highway Safety, 987 So.2d 787, 738 (Fla. 5th DCA 2008). Moreover, the Fourth District concluded similarly in Bell v. Renar Dev. Co., 811 So.2d 780 (Fla. 4th DCA 2002). There, a party challenging the validity of a purported affidavit argued that it was not properly sworn. The document stated:

FINAL CONTRACTOR’S AFFIDAVIT
BEFORE ME, the undersigned authority, this day personally appeared Renee Doss, who deposes and says: 1. Affiant is the Chairman of Renar Fine Homes (“Contractor”) and has personal knowledge of all facts hereinafter stated.
FURTHER AFFIANT SAITH NOT
The foregoing Instrument was acknowledged before me this 5 day of November 1999, by Renee M. Doss (name), Chairman (title), of Renar Dev., a_ (state) corporation, on behalf of the corporation. He/ (She) is personally known to me or has produced_ as identification and did (did not) take an oath.

Id. at 781. The Fourth District “recognize[d] that instead of stating that the affidavit was sworn to before the notary, the affidavit use[d] the term ‘acknowledged.’ ” Id. at 782. However, the court held that the document was sufficient to constitute an affidavit. The court reasoned, among other things, that the document was titled an “Affidavit” and referred to the signer as “affiant.” Id.

Accordingly, we reverse and remand for reinstatement of the default judgment.

REVERSED and REMANDED.

LAWSON and JACOBUS, JJ., concur.

      . See Fla. R. Civ. P. 1.540(b)(4) (2011).

      . See § 48.181(1), Fla. Stat. (2010).

      . We reject without comment the Allans’ al-temative arguments for affirmance.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. William Edward JOHNSON, Appellee.
    No. 2D12-1158.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

We reverse the trial court’s dismissal of the charges against William Edward Johnson based on the constitutionality of section 898.13, Florida Statutes (2011). See State v. Adkins, 96 So.3d 412 (Fla.2012).

Reversed and remanded.

ALTENBERND and BLACK, JJ., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


text:
    STATE of Florida, Appellant, v. Robert McMILLEN, Appellee.
    No. 2D11-6323.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellant.
   PER CURIAM.

We reverse the trial court’s dismissal of the charges against Robert McMillen based on the constitutionality of section 893.13, Florida Statutes (2011). See State v. Adkins, 96 So.3d 412 (Fla.2012).

Reversed and remanded.

ALTENBERND and BLACK, JJ., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.


text:
    Jesse William SHOEMAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3856.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The State appropriately concedes error because Appellant did not receive notice of the restitution hearing. See Papageorge v. State, 710 So.2d 53, 55 (Fla. 4th DCA 1998). Accordingly, we reverse the restitution order and remand this cause for a new hearing.

REVERSED AND REMANDED.

PALMER, TORPY and EVANDER, JJ., concur.


author: PER CURIAM. ORFINGER, C.J.,

text:
    Mark BENOIT, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-711.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

TORPY and EVANDER, JJ., concur.

ORFINGER, C.J., concurring specially with opinion.

ORFINGER, C.J.,

concurring specially with opinion.

I concur with the decision to affirm Mr. Benoit’s convictions. While the State clearly, in my view, violated the court’s order in limine, it was within the trial court’s discretion to deny the motion for mistrial.

In her opening statement, the prosecutor referred to matters that the trial court previously ruled were inadmissible. Then, when the mistrial motion was made, the prosecutor claimed that she did not violate the order in limine, arguing that her opening statement was not evidence and the order only precluded the matters referred to from being introduced into evidence. That explanation is disingenuous at best and fails even the “straight face” test. The prosecutor should have been sanctioned for what was a blatant violation of the court’s order. The State should demand better from its assistant state attorneys.


text:
    ALAQUA PROPERTY OWNERS ASSOCIATION, INC., Appellant, v. David ACOSTA, Appellee.
    No. 5D12-1528.
    District Court of Appeal of Florida, Fifth District.
    Feb. 5, 2013.
    James A. Gustino, of James A. Gustino, P.A., Winter Garden, for Appellant.
    David Acosta, Longwood, pro se.
   PER CURIAM.

AFFIRMED. See Autozone Stores, Inc. v. Northeast Plaza Venture, LLC, 934 So.2d 670 (Fla. 2d DCA 2006).

ORFINGER, C.J., GRIFFIN and EVANDER, JJ., concur.


author: JACOBUS, J.

text:
    Thomas SHORTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2394.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.
    Thomas B. Shorter, III, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   JACOBUS, J.

The appellant, Thomas Shorter, appeals the denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court denied Shorter’s motion after an evidentia-ry hearing, concluding that Shorter’s ineffective assistance of counsel claim failed to meet either prong of the Strickland, test. We reverse.

Shorter was on conditional release when he was arrested and charged for the sale of cocaine. He subsequently entered a plea of no contest to the charge and was sentenced to 19 months’ imprisonment. There was no mention at the combined plea and sentencing hearing regarding whether the plea was to run concurrently or consecutively to any prior sentence. However, the Parole Commission later ruled that Shorter violated his conditional release and he would have to serve out his prior sentence before serving the sentence on the charge for selling cocaine.

Shorter subsequently filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.850, alleging that he received ineffective assistance of counsel on the cocaine charge because he had told his attorney that he wanted the sentence to run concurrently with his prior sentence, from which he was on conditional release. The motion alleged that Shorter had been affirmatively misadvised by his lawyer that the court did not have jurisdiction to make the current sentence run either consecutively or concurrently to his prior sentence because the Parole Commission had not yet held a hearing on his violation of the conditional release and, thus, there was no disposition of the prior sentence.

At the evidentiary hearing on Shorter’s 3.850 motion, both the assistant state attorney and Shorter’s lawyer represented to the court that there had been no affirmative misadviee by counsel, because it would have been without jurisdiction to make Shorter’s sentence concurrent or consecutive as it was an undetermined sentence. Shorter’s lawyer acknowledged that he had advised Shorter of this at the time the plea was offered and this is what Shorter understood the law to be. The trial court agreed with the attorneys regarding the legal effect of the violation and denied the motion.

The information given to Shorter was a misstatement of the law. Conditional release occurs after a defendant is already sentenced. Mayes v. Moore, 827 So.2d 967, 971 (Fla.2002); Evans v. Singletary, 737 So.2d 505 (Fla.1999). Upon violation of conditional release, a defendant is not resentenced; rather the Parole Commission makes an administrative determination regarding conditional release, which leaves the original sentence undisturbed. See, e.g., Fla. Admin. Code R. 23-23.011 (concerning the procedure for the revocation of conditional release). Because a potential punishment for a conditional release violation is not an as-yet undetermined sentence, and the defendant is already subject to a sentence, a court can order a new sentence to run consecutively or concurrently to such a sentence. See Scantling v. State, 711 So.2d 524, 525-26 (Fla.1998) (holding that trial court could impose new sentence consecutive to prior sentence, despite pending control release violation related to prior sentence); Richardson v. State, 947 So.2d 1219 (Fla. 1st DCA 2007) (recognizing that court is under a duty to exercise its discretion to order sentence to run concurrently or consecutively to prior sentence, despite pending control release violation).

It is very clear that the lawyers and the court were under the impression that the court had no jurisdiction one way or the other to make the sentence either concurrent or consecutive. Since Shorter’s attorney affirmatively misadvised him of the law, he is entitled to withdraw his plea. See, e.g., Forberb v. State, 437 So.2d 1079, 1081 (Fla.1983) (“It is a well established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea.”). Accordingly, we remand the case with instructions to allow the withdrawal of the plea.

REVERSED and REMANDED WITH INSTRUCTIONS.

SAWAYA and TORPY, JJ„ concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: ORFINGER, C.J.

text:
    STATE of Florida, Appellant, v. A.R.R., a Child, Appellee.
    No. 5D12-1306.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellee.
   ORFINGER, C.J.

The State of Florida appeals the trial court’s order dismissing its delinquency petition charging Appellee, A.R.R., a juvenile, with one count of resisting a law enforcement officer with violence and three counts of battery on a law enforcement officer. The State asserts that the trial court erred in its finding that the law enforcement officers were not in the performance of a legal duty. We agree and reverse.

According to the State, Appellee’s mother reported to the Citrus County Sheriffs Department that the then twelve-year-old Appellee was involved in sexual activity with another juvenile. In response, two deputies went to Appellee’s home and, with her mother’s consent, went inside to speak with Appellee. During the course of that discussion, Appellee became very upset with the deputies and her mother. She began screaming and became highly agitated. Ultimately, her behavior led the lead deputy to believe, based on his experience and training, that if he left Appellee alone with her mother, the situation would escalate into a physical altercation. After trying to calm Appellee without success, the deputy reached out to take Appellee by the arm and guide her to a chair. She responded by kicking him. The deputy then handcuffed Appellee, and placed her under arrest. When the two deputies, along with a third deputy called to the scene, attempted to place Appellee in the rear of a caged vehicle, she bit and kicked at them, and was ultimately secured with a hobble strap.

The State charged Appellee with one count of resisting a law enforcement officer with violence and three counts of battery on a law enforcement officer. Appel-lee filed a motion to dismiss, alleging that the deputies were not engaged in the performance of a legal duty when they used force to restrain or arrest her, a required element of both charged offenses. The trial court granted the motion, and dismissed all four counts against Appellee.

A motion to dismiss should be granted only when, viewed in the light most favorable to the State, the undisputed material facts are insufficient to establish a prima facie case of the charged offense. State v. Norwood, 66 So.3d 388, 388 (Fla. 5th DCA 2011). Motions to dismiss criminal charges are treated like summary judgment motions in civil cases, the purpose of which is to test the legal sufficiency of the underlying case. State v. Kalogeropolous, 758 So.2d 110, 111 (Fla. 2000); State v. Siegel, 778 So.2d 426, 427 (Fla. 5th DCA 2001). The defendant bears the burden of establishing that there are no material issues of disputed fact and that the facts do not establish a prima facie case of guilt. Kalogeropolous, 758 So.2d at 111.

To convict a defendant for battery of a law enforcement officer and resisting an officer with violence, the State must prove that the officer was engaged in the lawful performance or the execution of a legal duty. Tillman v. State, 934 So.2d 1263, 1266 (Fla.2006), superseded by statute on other grounds, § 776.051(1), Fla. Stat. (2008); Eastes v. State, 960 So.2d 873, 876 (Fla. 5th DCA 2007). In determining whether the State pled sufficient facts to establish this element, not defined by either statute, trial courts should rely on the statutory and decisional law governing the particular duty in which the officer is engaged at the point that the resistance occurs. C.E.L. v. State, 24 So.3d 1181, 1186 (Fla.2009); Sinquefield v. State, 1 So.3d 370, 372 (Fla. 2d DCA 2009); Davis v. State, 973 So.2d 1277, 1279 (Fla. 2d DCA 2008).

An officer is engaged in the performance of his official duties when acting within the scope of his employment. United States v. Heliczer, 373 F.2d 241, 245 (2nd Cir.1967); Clinton v. State, 421 So.2d 186, 188 (Fla. 2d DCA 1982)-. In Florida, “[t]he ... duties ... of state.and county officers shall be fixed by law.” Art. II, § 5(c), Fla. Const. Section 30.15(1), Florida Statutes (2011), states, in relevant part, that “[s]heriffs, in their respective counties, in person or by deputy, shall .... (e) [b]e conservators of the peace in them counties.” “In our complex society, police are charged with the duty to protect people and property, wherever they are situated, under a variety of circumstances.” Ortiz v. State, 24 So.3d 596, 607 (Fla. 5th DCA 2009) (Torpy, J., concurring). “In performing this duty, they are required to protect against crime without waiting for it to occur.” United States v. Markland, 635 F.2d 174, 176 (2d Cir.1980).

Here, the deputies were within their authority in responding to Appellee’s mother’s call, alleging sexual activity by the twelve-year-old child. Once inside the home, the situation evolved, requiring the deputy to grab Appellee’s arm in order to prevent her from assaulting her mother. See F.J.R. v. State, 922 So.2d 308, 310 (Fla. 5th DCA 2006) (holding that for reasons of public and personal safety, police officers need to be able to keep reasonable control over certain situations). Viewed in the light most favorable to the State, the deputy was in the lawful performance of a legal duty. Thus, the State established a prima facie case of resisting a law enforcement officer with violence against Appellee for purposes of withstanding a dismissal of the delinquency petition.

In addition, after Appellee was handcuffed, she had further physical contact with the deputies as they attempted to place her in a car to transport her. The trial court’s order only parenthetically refers to the additional incidents in its findings, noting, “[t]he two [sic] additional charges of battery on Law Enforcement Officers allegedly occurred after the child was arrested and placed in patrol vehicles.” However, the order dismisses all four counts, including the three charges based on Appellee’s violence after being arrested. This is clear error. A person is not entitled to use physical force to contest even an illegal arrest. See § 776.051(1), Fla. Stat. (2011); Jones v. State, 570 So.2d 433, 435 (Fla. 5th DCA 1990). Appellee committed the subsequent violence on the deputies in response to their attempt to arrest her. Hence, even if her arrest was illegal, Appellee was not justified in using force against the deputies.

For these reasons, we reverse the trial court’s order dismissing the delinquency petition and remand for further proceedings.

REVERSED and REMANDED.

PALMER and BERGER, JJ., concur.

      . An order of dismissal is reviewed de novo. State v. Shuler, 988 So.2d 1230, 1231 (Fla. 5th DCA 2008).

      . Appellee brought her motion to dismiss pursuant to Florida Rule of Juvenile Procedure 8.085(a)(2), which is analogous to Florida Rule of Criminal Procedure 3.190(b). Flence, caselaw applying rule 3.190(b) is instructive. See B.M. v. State, 915 So.2d 649, 651 (Fla. 2d DCA 2005); State v. C.H., 747 So.2d 450, 451 (Fla. 4th DCA 1999). However, the supreme court has expressly held that the procedural remedies available in rule 3.190(d) are not available in juvenile proceedings as the juvenile rules provide greater flexibility to the court and the parties. D.K.D. v. State, 470 So.2d 1387, 1389 (Fla.1985).

      . These duties are "functionally identical.” C.M.M. v. State, 983 So.2d 704, 705 n. 1 (Fla. 5th DCA 2008).

      . Judge Torpy went on to explain:
      Police officers wear many hats: criminal investigator, first aid provider, social worker, crisis intervener, family counselor, youth mentor and peacemaker, to name a few. They are charged with the duty to protect people, not just from criminals, but also from accidents, natural perils and even self-inflicted injuries. We ask them to protect our property from all types of losses— even those occasioned by our own negligence. They counsel our youth. They quell disputes between husband and wife, parent and child, landlord and tenant, merchant and patron and quarreling neighbors. Although they search for clues to solve crime, they also search for missing children, parents, dementia patients, and occasionally even an escaped zoo animal.

        Ortiz v. State, 24 So.3d 596, 607 n. 5 (Fla. 5th DCA 2009) (Torpy, J., concurring)(emphasis added).


text:
    John Patrick CRIMINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2901.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.

      James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

John Crimins, Jr., appeals his conviction for aggravated battery upon Jason Warren. He contends that the trial court committed fundamental error by giving the jury the forcible felony exception to the self-defense instruction where there was no evidence that he was engaged in a separate and independent forcible felony at the time of the claimed self-defense. We reverse.

Crimins was charged with attempted first degree murder and aggravated battery of Warren, aggravated battery of Mo-riah Mace, animal cruelty, and the misdemeanor offense of violation of a pretrial release condition in a domestic violence case. Mace was Crimins’ former girlfriend and the mother of his three-year-old child. She had obtained a “no-contact” order against Crimins and, at the time of the events in question, was residing with Warren.

The jury was unable to reach a verdict on the attempted murder count, found Cri-mins not guilty of aggravated battery of Mace and of animal cruelty, but guilty of the other two charges. On appeal, Cri-mins does not challenge his conviction for violation of a pretrial release condition in a domestic violence case.

Warren and Crimins both testified at trial. According to Warren, he was standing outside Mace’s residence smoking a cigarette when he was attacked by Cri-mins. Crimins was wielding a meat cleaver and inflicted severe injuries on Warren.

Crimins gave a significantly different version of the events in question. According to Crimins, he was approaching the front door of Mace’s residence when Warren stepped out of the house and swung a baseball bat at him. In response, Crimins pinned the baseball bat to his side, removed the meat cleaver from inside his coat, and swung it at Warren to disarm him. Crimins further testified that he was carrying the meat cleaver because of the potential of “trouble” from Warren who had previously threatened Crimins with physical violence.

No other witnesses testified as to how the altercation between Warren and Cri-mins began.

Without objection, the trial court gave the following instruction regarding self-defense to the jury:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which he is charged if the injury to Jason Warren and/or Moriah Mace resulted from a justifiable use of deadly force.
Deadly force means a force likely to cause death or great bodily harm.
The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting: Another’s attempt to murder him; or, any attempt to commit aggravated battery upon him.
A person is justified in using deadly force if he ... reasonably .believes that such force is necessary to prevent: Imminent death or great bodily harm to himself- or another; or, the imminent commission of aggravated battery against himself or another.
However, the use of deadly force is not justifiable if you find that John Crimins was attempting to commit, committing, or escaping after the commission of attempted first degree murder; or, John Crimins initially provoked the use of force against himself, unless the force asserted towards the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on Jason Warren and Mori-ah Mace; and, in good faith, the defendant withdrew from physical contact with Jason Warren and Moriah Mace and clearly indicated to them that he wanted to withdraw and stop the use of deadly force, but Jason Warren and Mo-riah Mace continued or resumed the use of force.

(Emphasis added).

The forcible felony exception instruction, providing that a claim of self-defense is not available to a defendant who is attempting to commit, committing, or escaping after the commission of a forcible felony, does not apply where there is no forcible felony independent of the felony(s) for which the defendant is claiming self-defense. Martinez v. State, 981 So.2d 449, 454 (Fla.2008) (“[W]e hold ... that for the forcible-felony instruction to apply, there must be an independent forcible felony other than the one which the defendant claims he or she committed in self-defense”).

The State argues that it was appropriate for the forcible felony exception instruction to be given because Crimins was charged with the separate offense of attempted murder. We reject this argument because for purposes of applying the forcible felony exception instruction, the attempted murder charge was not a separate and independent offense. The aggravated battery (upon Warren) charge and the attempted murder charge arose from the same underlying facts and Crimins’ claim of self-defense was asserted as to both charges based on his claim that Warren had initiated the physical violence by attacking him with a baseball bat. See Martinez (forcible-felony instruction on self-defense was not warranted in trial of defendant for attempted premeditated murder and aggravated battery with a deadly weapon for the single act of stabbing his girlfriend); see also Santiago v. State, 88 So.3d 1020 (Fla. 2d DCA 2012) (where defendant shot (or shot at) three individuals, killing one and injuring another, and was charged with one count of murder and two counts of attempted murder, it was error to give forcible felony instruction where defendant was claiming self-defense as to all three counts; defendant was not engaged in separate and independent forcible felony at the time he allegedly acted in self-defense).

Because Crimins did not object to the giving of the forcible felony exception instruction, this court must determine whether the use of such instruction constituted fundamental error. Where a challenged jury instruction involves an affirmative defense, as opposed to an element of the crime, fundamental error only occurs when a jury instruction is so flawed as to deprive the defendant of a fair trial. Martinez, 981 So.2d at 455. In Martinez, the supreme court concluded that the giving of the forcible felony exception instruction was not fundamental error because self-defense was not the only strategy pursued by Martinez and his claim of self-defense was “extremely weak.” Martinez, 981 So.2d at 456.

By contrast, Florida courts have found fundamental error when self-defense was the defendant’s primary defense and the evidence could not be viewed as “extremely weak.” See, e.g., Smith v. State, 76 So.3d 379 (Fla. 1st DCA 2011) (improper forcible felony jury instruction constituted fundamental error in prosecution of aggravated battery where case involved classic “he said/she said” incident with no other eyewitnesses and some testimony, if believed by the jury, would have shown defendant was not initial aggressor and resisted alleged victim in self-defense); Vowels v. State, 32 So.3d 720 (Fla. 5th DCA 2010) (fundamental error to give forcible felony instruction where only defense pursued was self-defense, witnesses gave significantly different versions of events as to who initial aggressor was, and no forensic evidence was admitted establishing exact sequence of events); De La Hoz v. State, 997 So.2d 1198 (Fla. 3d DCA 2008) (giving jury instruction on independent forcible felony exception to self-defense constituted fundamental error warranting reversal of conviction for second-degree murder where there was no independent felony in the case and instruction negated defendant’s sole defense of self-defense).

In the instant case, Crimins’ sole defense at trial to the count for aggravated battery against Warren was self-defense. And, although the State was able to impeach much of Crimins’ trial testimony with evidence of prior inconsistent statements, we cannot conclude that the evidence of guilt was overwhelming or that the claim of self-defense was “extremely weak.”

REVERSED and REMANDED for a new trial.

AWSON and COHEN, JJ„ concur.

      . Section 741.29(6), Florida Statutes (2009). A person who willfully violates a condition of pretrial release provided in s. 903.047, when the original arrest was for an act of domestic violence as defined in s. 741.28, commits a misdemeanor of the first degree _


text:
    Decius Gene JULES, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-487.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The State properly concedes error on Appellant’s claim that his home-invasion-robbery charge violates double jeopardy in that it arose from the same episode as Appellant’s burglary-with-an-assault-or-battery charge. Accordingly, we reverse the judgment and sentence on the home-invasion charge and remand this cause for further proceedings as warranted. In all other respects, we affirm.

AFFIRM in part; REVERSED in part; and REMANDED.

GRIFFIN, TORPY and JACOBUS, JJ., concur.


text:
    Anthonique PAMPHILE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-679.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

See Williams v. State, 768 So.2d 1281, 1281 (Fla. 3d DCA 2000) (“Given the overwhelming evidence of guilt adduced by the state, we cannot find that the denial of the appellant’s motion for a continuance during trial, in order to locate a defense witness, caused any material prejudice to the appellant particularly when it is unknown whether the witnesses’ testimony would have been favorable to the appellant.”).

AFFIRMED.

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


text:
    DEPARTMENT OF CORRECTIONS, Petitioner, v. STATE of Florida and Jeverious Franklin, Respondent.
    No. 5D12-4414.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.
    Michael T. Kennett, Assistant General Counsel, Florida Department of Corrections, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Jeverious Franklin was charged in three cases with burglary of a dwelling, and in a fourth case with burglary of a dwelling and grand theft of a motor vehicle. In each case, the trial court withheld adjudication of guilt and sentenced Franklin as a youthful offender to eighteen months’ incarceration followed by forty-two months’ probation, to be served concurrently. Based upon the trial court’s withholding adjudication of guilt, the Department of Corrections filed the instant petition for a writ of certiorari, arguing the sentences imposed were illegal. We assume the trial court was provided with that petition and, in any event, recognized the problem with the sentence as it brought Franklin back for resentencing and reduced the eighteen-month sentence to 364 days in jail. The trial court did not alter the probationary portion of the sentence.

The Department of Corrections correctly asserts the original sentences were illegal. It is improper, whether the sentence is pursuant to the Florida Youthful Offender Act or otherwise, to withhold adjudication of guilt when sentencing a defendant to the Department of Corrections. State v. Dishman, 5 So.3d 773 (Fla. 4th DCA 2009); Switzer v. State, 940 So.2d 1248 (Fla. 1st DCA 2006); State v. Davis, 721 So.2d 1243 (Fla. 4th DCA 1998); State v. Oates, 610 So.2d 522 (Fla. 2d DCA 1992).

Based upon the resentencing, the State asserted that the issue had become moot. Ordinarily, we would agree and dismiss the petition for writ of certiorari by order. However, of late, we have seen a number of cases with the same sentencing infirmity. Because it is an issue that has reoc-eurred and appears likely to be repeated, we feel it appropriate to instead dismiss the petition as moot by opinion. See Holly v. Auld, 450 So.2d 217, 218 n. 1 (Fla.1984).

PETITION DISMISSED.

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

      . §§ 958.011-. 15, Fla. Stat. (2011).


text:
    Kimberly REESE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-4630.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2013.
    Kimberly Reese, Ocala, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in ease no. 10-CF-8869-D, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, C.J., SAWAYA and BERGER, JJ., concur.


text:
    John J. LAWRENCE, Appellant, v. DEPARTMENT OF REVENUE o/b/o Melissa WALKER, Appellee.
    No. 5D11-762.
    District Court of Appeal of Florida, Fifth District.
    Feb. 12, 2013.
    John J. Lawrence, Lakeland, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

GRIFFIN, PALMER and JACOBUS, JJ., concur.