text:
    PGA NORTH II OF FLORIDA, LLC, Appellant, v. DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 4D10-1895.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.

      Gary M. Dunkel and Jason H. Okleshen of Greenberg Traurig, P.A., West Palm Beach, and Elliot H. Scherker and Elaine D. Walter of Greenberg Traurig, P.A., Miami, for appellant.
    Alexis M. Yarbrough, General Counsel, and Gregory G. Costas, Assistant General Counsel, Tallahassee, for appellee.
   POLEN, J.

Appellant, PGA North II of Florida, LLC (“PGA North”), appeals the trial court’s final judgment, entered in favor of appellee, Department of Transportation (“DOT”), ordering that DOT need not compensate PGA North for the tract of land at issue in this appeal. We disagree with the trial court and reverse for entry of judgment for PGA North and hold that it is entitled to compensation for the period of time during which it had no ingress or egress to or from its tract. On remand, the trial court should determine the amount of compensation to which PGA North is entitled.

PGA North “is the successor in interest of Royal American Industries, Inc., as to the real property,” an 86.34 acre tract, which is the subject of the appealed final judgment, evidenced by a special warranty deed and affidavit of conversion. In January of 1982, a final judgment was entered by the trial court, ordering DOT to compensate Royal American Industries, Inc. (“Royal American”) for property taken and damages to the remainder of the property. The final judgment ordered compensation to Royal American for the taking of a portion of its property to build a southbound ramp from PGA Boulevard to Interstate 95 (“1-95”). This taking “substantially reduced the availablé access from Royal American’s remainder property consisting of approximately 90 acres (the parent tract), onto PGA Boulevard.” The final judgment allocated $669,603.00 as compensation for property taken and $450,097.00 as compensation for severance damages to the remainder, totaling $1,119,700.00. Additionally, the final judgment ordered that, upon receiving a building permit by the City of Palm Beach Gardens to construct on the parent tract, DOT was to issue a permit to Royal American for the construction of access driveways from the parent tract to PGA Boulevard. If DOT determined it should revoke or modify the permits, the final judgment held that DOT must compensate Royal American based on the possible damage to the remainder property.

In 1999, PGA North began negotiations to purchase the parent tract; however, it was unable to secure the entire ninety-acre parcel because DOT had begun discussions with then parent tract owner, the MacArthur Foundation (“MacArthur”), to acquire 3.6 acres of the parcel for a flyover project. PGA North, represented by Catalfumo Construction Development (“Catalfumo”), entered into a contract with MacArthur and took title of 86.34 acres of land by conveyance of a special warranty deed in March. Catalfumo’s CEO testified that at the time PGA North acquired the property, it was landlocked, but because it took the land subject to the 1982 final judgment, PGA North would get access to the road or receive compensation for its inability to gain such access. Before PGA North acquired the property from MacArthur, DOT attempted to acquire the same for its flyover project. PGA North acquired 86.34 acres of the land, while the remaining 3.6 acres were retained by MacArthur. DOT then acquired the remaining 3.6 acres of the parcel of land, which abutted PGA Boulevard. PGA North sought enforcement of the 1982 final judgment to receive compensation in lieu of access points, as it became obvious that access points would never be constructed.

This matter was tried before the court, non-jury, on March 8, 9 and 10, 2010. In its final judgment, dated April 2010, the trial court found a fundamental problem with PGA North’s claim, and that was a failure by PGA North to ever acquire title to the 3.6 acre portion of the parent tract which would have allowed access to PGA Boulevard. The court further found that the unity of title which existed when the 1982 final judgment was entered was severed during the March 1999 conveyance and that PGA North had no access to PGA Boulevard, except over the 3.6 acre abutting land retained by MacArthur at the time of the conveyance to PGA North. Additionally, the court held that PGA North improperly asserted that DOT prevented it access to PGA Boulevard when, in fact, it was MacArthur’s actions which gave rise to a claim, not DOT’S. Lastly, the trial court determined that an implied easement was not created at the time of conveyance. This appeal followed.

“[Wjhere a trial court’s conclusions following a non-jury trial are based upon legal error, the standard of review is de novo.” Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008). We apply this standard of review because this case involves the legal effect of documents, creating questions of law.

PGA North contended that it had a right to traverse the 3.6 acre parcel of land as the party to whom the parent tract was conveyed, subject to the 1982 final judgment. “Covenants are loosely defined as ‘promises in conveyances or other instruments pertaining to real estate.’ ” Palm Beach Cnty. v. Cove Club Investors Ltd., 734 So.2d 379, 382 n. 4 (Fla.1999). Covenants are divided into two categories: real and personal covenants. Id. A real covenant “concerns the property conveyed and the occupation and enjoyment thereof.” Id. “If the performance of the covenant must touch and involve the land or some right or easement annexed and appurtenant thereto, and tends necessarily to enhance the value of the property or renders it more convenient and beneficial to the owner, it is a covenant running with the land.” Id. A personal “covenant is collateral or is not immediately concerned with the property granted.” Id.

Here, the trial court found that a covenant did not exist, but instead, a conditional promise to grant access and, upon a breach, compensate PGA North monetarily. An expert real estate attorney testified that the 1982 final judgment did not create a covenant running with the land because it did not have any language which created an easement or covenant; it provided for damages in the event access was not granted, rather than specific performance; the judgment provided a conditional right of access; and there are third parties who have control over the access. The attorney did not find any language in the final judgment or deed that granted an express easement and there was no actual use to create an implied easement.

In order to establish a covenant that runs with the land, the following must be shown: the covenant touches and concerns the land; intent; and notice. Winn-Dixie, Stores, Inc. v. Dolgencorp, Inc., 964 So.2d 261, 265 (Fla. 4th DCA 2007). Here, the land in question is approximately ninety acres. There is a developable 86.34 acre parcel which was conveyed to PGA North and a 3.6 acre parcel which abuts PGA Boulevard and is now owned by DOT. PGA North contended that the covenant touches and concerns the land because it enhances the value of PGA North’s property while burdening the servient 3.6 acre parcel. PGA North further contended that intent was shown by the language of the 1999 special warranty deed. The special warranty deed provided that the land was conveyed by MacArthur to PGA North:

TOGETHER with (a) all the tenements, hereditaments and appurtenances thereto belonging in anyway appertaining to the Land, (b) all easements, rights, interests, claims, reversions and appurtenances belonging to or in any way appertaining to the Land and (c) all right, title and interest of grantor in and to all real property lying within streets, alleys and other public ways (before or after vacation thereof) contiguous to the Land, but only to the center line of said streets, alleys and other public ways.

DOT asserted that the 1999 special warranty deed expressly excepted the terms of the 1982 final judgment — the document which created a covenant running with the land. DOT thereby argued that, if a covenant running with the land existed pursuant to the 1982 judgment, it was extinguished by the special warranty deed. We disagree with DOT’S assertions because an exception in a deed is not equivalent to excepting out. Where a special warranty deed conveys all tenements, her-editaments and appurtenances appertaining to the land, the intent is for all rights and access points to and from the land to be included. The language in the special warranty deed conveyed in 1999 expressly conveyed all rights to the land, thus the requisite intent, notice, and touching and concerning of the land was present to prove the existence of a covenant running with the land.

Ingress and egress

An implied easement by necessity is granted when land is granted “to which there is no accessible right-of-way except over [the] land.” Matthews v. Quarles, 504 So.2d 1246, 1247 (Fla. 1st DCA 1986). For entitlement to cross the servient land, the following must be present:

(1) both properties must at one time have been owned by the same party, (2) the common source of title must have created the situation causing the dominant tenement to become landlocked, and (3) at the time the common source of title created the problem the servient tenement must have had access to a public road.

Id. Additionally, section 704.01(1), Florida Statutes, provides:

The common-law rule of an implied grant of a way of necessity is hereby recognized, specifically adopted, and clarified. Such an implied grant exists where a person has heretofore granted or hereafter grants lands to which there is no accessible right-of-way except over her or his land, or has heretofore retained or hereafter retains land which is inaccessible except over the land which the person conveys. In such instances a right-of-way is presumed to have been granted or reserved. Such an implied grant or easement in lands or estates exists where there is no other reasonable and practicable[] way of egress, or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved.

§ 704.01(1), Fla. Stat. (2011). Moreover, this court cited to the Supreme Court of Florida and held that not only is reasonable necessity required, but absolute necessity is required. Palm Beach Polo Holdings, Inc. v. Equestrian Club Estates Prop. Owners Ass’n, 949 So.2d 347, 349-50 (Fla. 4th DCA 2007) (citing Tortoise Island Communities, Inc. v. Moorings Ass’n, 489 So.2d 22 (Fla.1986)).

PGA North argued that the 86.34 acre quadrant of land, located in the northwest corner, was landlocked. DOT asserted that there was a pre-existing comprehensive plan for the City of Palm Beach Gardens to build a connection through the land to Military Trail, eliminating a reasonable, and especially an absolute, need for an easement. The First District Court of Appeal has held that the time that is most crucial “is the instant that the dominant tenement becomes landlocked.” Enzor v. Rasberry, 648 So.2d 788, 792 n. 4 (Fla. 1st DCA 1994). Additionally, Florida’s long-standing rule is that an easement by implication passes by conveyance to all subsequent grantees. Id. The right to the easement expires upon the acquisition of another reasonable or practicable means of ingress and egress. Id. However, “a potential future means of access to a public road by way of an express easement across lands of another does not defeat a way of necessity.” Id. at 792 n. 7.

When PGA North acquired the 86.34 parcel of land, the 3.6 acres that MacArthur retained for “business purposes” abutted the main road, PGA Boulevard. Daniel Catalfumo, of Catalfumo Construction Development, testified that a developer on the 86.34 parcel of land has a monumentally significant need' of access to PGA Boulevard. In order to have obtained access to the parcel of land owned by PGA North, one had to: “get off 1-95, go around the loop road, go back under a bridge, go around the corner, make four different turns to get there.” At the time the 86.34 acre parcel of land was purchased, there was access to the north through a residential neighborhood. However, PGA North never used it because it could not use the access point on a permanent basis for its intended commercial purpose. DOT suggested that PGA North could have built a bridge to gain access to PGA Boulevard; however, section 704.01, Florida Statutes, provides that “no other reasonable and practicable way of egress, or ingress and same is reasonably necessary for the beneficial use or enjoyment of the part granted or reserved” while section 704.03 defines “practicable” as “ “without the use of bridge.’” §§ 704.01, 704.03, Fla. Stat. (2011).

We therefore hold that PGA North had no reasonable means of access to PGA Boulevard for a period of time and was landlocked until it later obtained the right to access under the 3.6 acre flyover project. Because the 1982 final judgment ordered compensation in lieu of access and DOT did not issue permits to allow PGA North access, we hold that the trial court erred in not awarding compensation to PGA North for that period during which it was landlocked. Accordingly, we reverse the trial court’s order and remand this cause so the court below can conduct further proceedings in order to assess the compensation to which PGA North is entitled.

Reversed and Remanded.

Conner, J., and Gillespie, Kenneth L., Associate Judge, concur.

      . A special warranty deed has the effect of conveying the entire title and estate of the grantor, if that is what the grantor so intended. See Harris v. Sklarew, 166 So.2d 164, 166 (Fla. 3d DCA 1964). A special warranty differs from a general warranty deed only in that a general warranty deed warrants against claims of all persons, whereas a special warranty is limited to claims involving the grant- or. Id.

      . Section 704.03, Florida Statutes, provides that practicable means " ‘without the.use of bridge, ferry, turnpike road, embankment, or substantial fill.’” § 704.03, Fla. Stat. (2011).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lunick JANVIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2838.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Antony P. Ryan, Regional Counsel, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Melntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We have considered the issues raised by appellant concerning the trial court’s denial of his motions to suppress, and find no error. Accordingly, we- affirm the conviction.

We remand, however, to correct a scrivener’s error in appellant’s life sentence. The trial court indicated that the sentence included a twenty-five year minimum mandatory pursuant to “F.S. § 775.082(1).” On remand, this provision must be corrected.

Affirmed; Remanded.

POLEN, GROSS and LEVINE, JJ, concur.


author: POLEN, J.

text:
    PHILIP MORRIS USA, INC., Appellant, v. Lucinda NAUGLE, Appellee.
    Nos. 4D10-1607, 4D10-3574.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2012.

      Gary L. Sasso of Carlton Fields, Tampa, Andrew S. Brenner and Stephen N. Zack of Boies, Schiller & Flexner LLP, Miami, for appellant.
    Richard B. Rosenthal of Richard B. Ro-senthal, P.A., Joel S. Perwin of Joel S. Perwin, P.A., Miami, and Robert W. Kelley, John J. Uustal and Todd McPharlin of Kelley Uustal, PLC, Fort Lauderdale, for appellee.
   POLEN, J.

Philip Morris USA, Inc. (PM USA) appeals the final judgment, awarding appel-lee, Lucinda Naugle, $36,760,500, after finding PM USA liable for Naugle’s injuries caused by her addiction to PM USA-manufactured cigarettes. PM USA raises five issues on appeal. We reject each of appellant’s contentions of error and affirm the judgment in its entirety.

As an Engle progeny case, the trial was conducted in two phases in the manner we approved of in R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707 (Fla. 4th DCA 2011). The evidence presented in Phase I revealed that Naugle smoked PM USA-manufactured cigarettes from 1968 (age 20) until 1993. When she began smoking cigarettes, she had never heard of nicotine or its addictive nature. She became addicted and was eventually diagnosed with severe chronic obstructive pulmonary disease (COPD) with exacerbation. The Phase I jury found that Naugle was an Engle class member (i.e., she had been addicted to cigarettes containing nicotine and the addiction was a legal cause of her emphysema).

Phase II involved issues of causation, comparative fault, and damages. The trial court instructed the Phase II jury that based on the Phase I verdict, Naugle was entitled to the following Engle findings: (1) PM USA was negligent; (2) PM USA sold or supplied cigarettes that were defective; (3) PM USA placed cigarettes on the market that were defective and unreasonably dangerous; (4) PM USA concealed or omitted material information not otherwise known or available, concerning the health effects or addictive nature of smoking cigarettes; and (5) PM USA agreed with other tobacco companies to conceal or omit information concerning the health effects of cigarettes or their addictive nature with the intention that smokers and the public would rely on this information to their detriment.

After Phase II, the trial court instructed the jury on legal causation as to each of Naugle’s claims. The jury found PM USA ninety percent at fault and Naugle ten percent at fault and awarded compensatory damages in the following amounts: $90,000 for past medical expenses; $3.7 million for future medical expenses; $12.2 million for past pain and suffering; and $40.6 million for future pain and suffering. The jury further determined, by clear and convincing evidence, that punitive damages were warranted in the amount of $244 million.

The trial court granted PM USA’s post-verdict motion for remittitur and reduced the non-economic compensatory damages to $9,825,000, for a total compensatory damages award of $12,982,500, after applying comparative fault. The trial court also reduced the punitive damages award from $244,000,000 to $25,965,000, a 2:1 punitive-to-compensatory ratio. Naugle accepted the remitted amount of $38,947,500, and the trial court entered an amended final judgment in the amount of $36,760,500. PM USA now appeals the amended final judgment. For the reasons set forth below, we affirm on all points raised.

The trial court correctly applied Engle and correctly instructed the jury as to legal causation.

PM USA conceded at oral argument that our decision in Brown forecloses the first two issues raised in its brief — whether application of the Engle findings to this progeny case violates appellant’s due process rights and whether the trial court properly instructed the jury as to legal causation.

The trial court properly denied PM USA’s motion for directed verdict as to the fraudulent concealment and conspiracy claims.

PM USA argues that Naugle did not prove reliance, and in any event, her claims are barred by the statute of repose. “[A] trial court should direct a verdict against the plaintiff only if there is no evidence, or reasonable inferences therefrom, upon which a jury may find for the nonmoving party.” NITV, L.L.C. v. Baker, 61 So.3d 1249, 1252 (Fla. 4th DCA 2011) (citation omitted). We review this issue de novo. Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006).

Fraud can occur by omission, and one who undertakes to disclose material information has a duty to disclose that information fully. ZC Ins. Co. v. Brooks, 847 So.2d 547, 551 (Fla. 4th DCA 2003) (citing Gutter v. Wunker, 631 So.2d 1117, 1118-19 (Fla. 4th DCA 1994)). “[A] claim of fraudulent misrepresentation and/or concealment requires proof of detrimental reliance on a material misrepresentation.” Soler v. Secondary Holdings, Inc., 771 So.2d 62, 69 (Fla. 3d DCA 2000) (citing Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985)). “If a plaintiff claims to be misled, but cannot demonstrate a causal connection between the defendant’s conduct and the plaintiffs misapprehension, the plaintiff cannot recover.” Humana, Inc. v. Castillo, 728 So.2d 261, 265 (Fla. 2d DCA 1999) (citation omitted). However,

[i]t is not necessary that a direct statement be made to the representee in order to give rise to the right to rely upon the statement, for it is immaterial whether it passes through a direct or circuitous channel in reaching him, provided it be made with the intent that it shall reach him and be acted on by the injured party.

Harrell v. Branson, 344 So.2d 604, 606 (Fla. 1st DCA 1977) (citation omitted).

Florida’s statute of repose requires that any action “founded upon fraud” be filed within twelve years “after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.” § 95.031(2)(a), Fla. Stat. (2007). Engle was filed on May 5, 1994; thus, any concealment claim in this case had to be based on conduct that occurred after May 5, 1982. Because fraudulent concealment requires proof of reliance, Naugle’s claim is barred unless the record demonstrates that she justifiably relied on statements or omissions made after that date. Joy v. Brown & Williamson Tobacco Corp., No. 96-2645CIV-T24(B), 1998 WL 35229355, *5 (M.D.Fla. May 8, 1998).

At trial, Naugle testified that by 1970, she was aware that smoking could be dangerous to her health. However, the Engle findings prove “that [PM USA] concealed or omitted material information not otherwise known or available knowing that the material was false or misleading or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.” Engle, 945 So.2d at 1277; Brown, 70 So.3d at 710. Although Naugle was aware that smoking could have been dangerous to her health, the Engle findings preclusively establish that PM USA knew that smoking cigarettes presented dangerous health consequences and that it concealed material information relating to the true health effects of smoking as well as the addictive nature of smoking.

As the First District held in R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010), this concealed information was designed to create doubt in the smoker as to all of the known health hazards created by smoking cigarettes. Moreover, the record in this case demonstrates that PM USA continued to conceal material information relating to the true health effects of smoking well after 1982. We therefore hold that it was for the jury to determine (1) whether Naugle would have continued to smoke PM USA’s cigarettes if not for PM USA’s nondisclosures; and (2) whether Naugle justifiably relied on the false controversy created by the tobacco industry after May 5, 1982. The jury found for Naugle on these issues, and as the jury’s findings are supported by competent substantial record evidence, we do not disturb these findings on appeal.

The trial court did not err in denying PM USA’s motion for new trial based on the compensatory and punitive damages awards.

The trial court found that the non-economic and punitive damages were excessive pursuant to section 768.74(5), Florida Statutes:

I am [] convinced that the jury panel was conscientious, intelligent, and sincerely intent on doing justice. However, I must conclude that the jury was moved by passions — sympathy for [Naugle’s] suffering and anger toward PM USA’s conduct and strategy, resulting in the failure to follow my instructions that the damages awarded shall be based solely on PM USA’s conduct directed to this Plaintiff, and the harm caused to this Plaintiff.

The trial court granted PM USA’s motion for remittitur and denied its motion for new trial. PM USA argues that because the trial court expressly found that both the compensatory and punitive damages awards were infected by passion and prejudice, and that the jury disregarded the court’s instructions, likely including punishment for non-party harms in awarding punitive damages, the awards must be set aside because these errors cannot be cured by remittitur. Instead, PM USA argues a new trial is the proper remedy.

In reviewing a trial court’s grant or denial of a motion for new trial, this court applies an abuse of discretion standard. Philip Morris v. French, 897 So.2d 480, 490 (Fla. 3d DCA 2004). Orders of remittitur are likewise reviewed for an abuse of discretion. Adams v. Saavedra, 65 So.3d 1185, 1188 (Fla. 4th DCA 2011). In support, PM USA relies on Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977), wherein the Florida Supreme Court stated: “In the absence of improper influences a remittitur may be appropriate, but here the District Court concluded that the verdicts were indicative of improper influences of passion and prejudice working on the jury.” Id. at 627. PM USA argues that this language demonstrates that re-mittitur cannot cure a jury’s disregard for its instructions. We find that this argument lacks merit for two reasons. First, PM USA’s argument is rebutted by the language of Florida’s remittitur statute:

In determining whether an award is excessive or inadequate ... the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture. ...

§ 768.74(5)(a)-(c), Fla. Stat. (2010) (emphasis added). Based on the criteria set forth in section 768.74(5), “[i]f the court finds that the amount awarded is excessive or inadequate, it shall order a remittitur or additur, as the case may be.” § 768.74(2), Fla. Stat. (2010) (emphasis added). As the statute clearly states, passion, prejudice, corruption, ignoring the evidence, and consideration of improper elements of damages are all contemplated by the statute as reasons for remittitur.

Second, the “improper influences” in Lassitter consisted of newspaper articles discussing events leading up to the trial as well as the trial progress; heated exchanges during the trial; an admonishment by the trial judge of one attorney for calling a witness a liar; and a threat made by the trial judge to jail one of the attorneys. Lassitter, 349 So.2d at 627. We find Lassitter distinguishable on its facts.

PM USA also relies on Lindenfield v. Dorazio by Dorazio, 606 So.2d 1255 (Fla. 4th DCA 1992); however, Lindenfield does not support PM USA’s argument for a new trial. In Lindenfield, the trial court ordered an additur; however, because the appellants did not stipulate to the additur, the trial court granted the plaintiffs’ alternative motion for a new trial. Id. at 1257. Thus, in Lindenfield, the propriety of the trial court’s decision to grant an additur or remittitur was not at issue, as the additur was rejected by appellants, and a new trial was ordered. Although this court approved of the trial court’s order granting a new trial, it did not decide the issue of whether additur or a new trial was the more appropriate remedy. Instead, this court’s disagreement was only with the trial court’s decision to limit the new trial to the issue of damages. Id. at 1257 n. 1.

Additur/remittitur and a new trial are both appropriate remedies where a finding is made by the trial court that the jury was influenced by passion or prejudice:

A trial “court should not order a new trial unless it believes that the amount awarded is so great ‘as to indicate that the jury must have found it while under the influence of passion, prejudice or gross mistake.’ ” State Farm Mut. Auto. Ins. Co. v. Rindner, 996 So.2d 932, 934-35 (Fla. 4th DCA 2008) (quoting Glabman v. De La Cruz, 954 So.2d 60, 62 (Fla. 3d DCA 2007)). “ ‘Remittitur cannot be granted unless the amount of damages is so excessive that it shocks the judicial conscience and indicates that the jury has been influenced by passion or prejudice.’ ” City of Hollywood v. Hogan, 986 So.2d 634, 647 (Fla. 4th DCA 2008) (quoting Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 1002 (Fla. 4th DCA 2004)).

Progressive Select Ins. Co. v. Lorenzo, 49 So.3d 272, 278 (Fla. 4th DCA 2010). Accordingly, having made such findings, the trial court did not abuse its discretion in granting appellant’s motion for remittitur and denying appellant’s motion for new trial.

The non-economic damages award and the punitive damages award, as reduced by the trial court, are not excessive.

1. As reduced, the compensatory damages award is not excessive.

Even if not vacated altogether, PM USA argues that the non-economic pain and suffering award of $9,825,000, as reduced by the trial court, remains grossly excessive and must be reduced further.

Florida law requires that “awards of damages be subject to close scrutiny by the courts and that all such awards be adequate and not excessive.” § 768.74(3), Fla. Stat. (2010). “Under Florida law an award of non-economic damages must ‘bear a reasonable relation to the philosophy and general trend of prior decisions in such cases.’ ” Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir.2008) (quoting Gresham v. Courson, 177 So.2d 33, 39-40 (Fla. 1st DCA 1965)). See also Davis v. United States, No. 08-81447-CIV, 2010 WL 2331094 at *9 (S.D.Fla. June 10, 2010) (“In reviewing the general trend of decisions in similar cases, the court should generally limit its inquiry to cases where pain and suffering awards were upheld against excessiveness challenges in similar scenarios, with a particular focus on cases drawn from the state appellate court having jurisdiction over the location where the tort in question occurred.”).

Non-economiq damages (e.g., mental pain and suffering) “are inherently difficult to measure.” R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 310-312 (Fla. 1st DCA 2012) (quoting Braddock v. Seaboard Air Line R.R., 80 So.2d 662, 668 (Fla.1955)). In Townsend, the First District affirmed a non-economic damages award of $10.8 million (before reduction for comparative fault) to the plaintiff, a personal representative of the estate of her deceased husband:

Although the $10.8 million compensatory damage award in this case is higher than the non-economic damage awards affirmed by this Court in the other En-gle progeny cases that we have reviewed to date, we cannot say that the award obviously exceeds the “reasonable range within which the jury may properly operate.” [Bould v. Touchette, 349 So.2d 1181, 1185 (Fla.1977) ].... We are persuaded from our review of the record that a proper evidentiary basis existed to justify the award and that, despite its size, it was not based merely on passion or prejudice.

Id. at 312 (footnotes omitted).

Although the First District determined that $10.8 million awarded by the jury was “certainly at the outer limit of reasonableness for a case such as this,” the court held that “the award is not so inordinately large that it shocks our collective judicial conscience.” Id. at 313 (citation omitted). Accordingly, the First District found “no abuse of discretion in the trial court’s refusal to second-guess the jury’s award of compensatory damages.” Id.

Here, Naugle presented testimony that her lungs are deteriorating, making it very hard for her to breathe. For example, she cannot walk to the car each morning; cannot drive; cannot do her own grocery shopping; and cannot stand in the shower or bend over to shave her own legs. Her treating physician testified that she has suffered from severe COPD with exacerbation since the 1990s and is now dependent on her oxygen tube twenty-four hours a day and will be for the rest of her life. He also testified that Naugle is experiencing muscle wasting.

A pulmonologist who has treated emphysema patients for thirty years, testified that Naugle has “severe lung disease” and that emphysema causes “the work of breathing” to cause “chronic pain” such as “generalized chest wall aching” and “fatigue [that] can be severe” and “extreme.” He further testified that emphysema affects Naugle’s ability to “get up and walk around and move around freely” and even creates difficulty for her to get in and out of a normal bed. He explained that “any cold will turn into a possible major disaster.”

Naugle’s sister-in-law testified that Nau-gle has been hospitalized two or three times and has been on oxygen, twenty-four hours a day, for several years. She explained that Naugle constantly has to sit down and take breaks while getting ready for work in the morning in order to regain her breathing capacity.

Thus, the jury received evidence of Nau-gle’s gradual deterioration over a period of fifteen years, which ultimately has led to her inability to breathe on her own without the assistance of a machine, “whose malfunction or loss of power would result in her demise.” The trial court noted that Naugle’s suffering was “clearly evident in the courtroom throughout the three weeks of trial,” and that “[t]he jury must also have concluded that [Naugle] was an independent woman who progressively became more and more incapable of functioning without the assistance of family and machine; each year enjoying life less and less.”

In reducing the non-economic damages award, the trial court assigned $10,000 damages for the years 1993 and 1994, increased that amount by $10,000 for the years of 1995 through 1999, further increased the amount by $15,000 each year from 2000 through 2005, further increased that amount by $25,000 each year from 2006 through 2008, and assigned $300,000 for 2009. Because the jury determined Naugle has a twenty-two year life expectancy, the trial court assigned $1,000 per day ($365,000 per year) for future damages.

It is important to note that the plaintiff in this case is the actual Engle class member rather than a personal representative. In this case, the verdict compensates Naugle for a period of approximately forty years (approximately seventeen years for past pain and suffering and twenty-two years for future pain and suffering). Therefore, the size of this verdict does not shock the conscience of this court. A verdict is not excessive just because it is large. Citrus Cnty. v. McQuillin, 840 So.2d 343, 347 (Fla. 5th DCA 2003) (citing Tobias v. Osorio, 681 So.2d 905, 907 (Fla. 4th DCA 1996)). Based on the First District’s decision in Townsend, the evidence presented to the trial court in this case, and the percentage by which the non-economic damages award was already reduced, we hold that the trial court did not abuse its discretion on remittitur. As reduced, the verdict is not excessive.

2. As reduced, the punitive damages award is not excessive.

Relying on numerous federal court decisions, PM USA contends that the $25,965,000 punitive damages award, as reduced by the trial court, remains excessive and requires further reduction because a 1:1 ratio is the constitutional maximum in cases involving six-or seven-figure compensatory damages awards. Pursuant to Florida law, an award of punitive damages may not exceed the greater of three times the amount of compensatory damages awarded. § 768.73(l)(a)l., Fla. Stat. (2010). However, where the fact finder determines that the wrongful conduct was motivated solely by unreasonable financial gain and determines that the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by the defendant, it may award an amount of punitive damages four times the amount of compensatory damages. § 768.73(l)(b)l., Fla. Stat. (2010). Nevertheless, section 768.73 does not prohibit an appellate court from determining the reasonableness of a punitive damages award that is less than three times the amount of compensatory damages. § 768.73(l)(d), Fla. Stat. (2010). Here, the remitted punitive damages award is twice the size of the compensatory award.

In Martin, the First District affirmed a punitive-to-compensatory damages ratio of 7.58 to 1:

We find the $25 million award here is not out of proportion with what the jury clearly considered to be wanton conduct by RJR in marketing a product it knew to be harmful and misleading the public about the health risks of smoking cigarettes. Neither does the award place RJR in a precarious financial position as the evidence showed that between 2005 and 2008 it had shareholder equity of approximately $8 billion and net annual earnings of $1 billion. We recognize, as RJR points out, there are thousands of Engle progeny cases pending in the trial courts and the company’s potential financial exposure is significant. But our review is limited to the facts and circumstances of this case, and we decline to disturb an otherwise reasonable punitive damages award to mitigate RJR’s future liability. Finally, the 7.58 to 1 ratio of punitive to compensatory damages does not, under the circumstances of this case, offend due process. Neither the United States Supreme Court nor the Florida Supreme Court has adopted a bright-line limit to which punitive damages awards must adhere.... There remain “no rigid benchmarks that a punitive damages award may not surpass,” but “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with” higher ratios. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). We find no justification in the record to undo the jury’s decision to award Mrs. Martin $25 million in punitive damages.

Martin, 53 So.3d at 1072 (emphasis in original).

Accordingly, we hold that the ratio in this case, 2:1, is constitutional and not excessive in this ü7%gde-progeny case.

Affirmed.

TAYLOR and HAZOURI, JJ., concur.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . Here, as in Brown, the trial court did not allow the jury to use the Phase I findings to determine legal causation, and thus liability, in Phase II. Instead, the jury was properly instructed on legal causation as to Naugle's claims in Phase II and was required to make causation findings on the Phase II verdict form. We find no error. See Brown, 70 So.3d at 715-18.

      . The Martin court held that the record contained abundant evidence from which the jury could infer reliance on the false controversy created by the tobacco industry aimed at creating doubt among smokers that cigarettes were hazardous to health. Martin, 53 So.3d at 1069.

      . Specifically, testimony, as well as PM USA’s own internal business records, revealed that PM USA publicly denounced the Surgeon General’s conclusion in 1988 that smoking was addictive, and PM USA did not admit that smoking was the cause of various diseases, including emphysema and lung cancer until October 2000, when PM USA altered its website to state that PM USA agrees with the opinions articulated by the Surgeon General. In addition, a video clip from 1994 was admitted into evidence, wherein PM USA executives, including PM USA’s CEO, testified before Congress that smoking was not proven to be harmful and nicotine was not addictive. At trial, Doctor Kenneth Cummings testified that in 1994, “there was no doubt” within the medical community that smoking was the cause of diseases like lung cancer and emphysema, and that such information "had been known for decades.” Dr. Cummings testified that "as early as 1958, [PM USA] scientists had indicated that cigarette smoking had been the cause of lung cancer.”

      . On the Friday before the oral argument scheduled for the following Tuesday, PM USA filed a "notice of supplemental authority,” attaching the cases of Waste Management, Inc. v. Mora, 940 So.2d 1105 (Fla.2006), and Olivas v. Peterson, 969 So.2d 1138 (Fla. 4th DCA 2007), and arguing that pursuant to these cases, it was the "party adversely affected” by the trial court’s remittitur. In its initial brief, PM USA essentially argued that it was entitled to a new trial on damages because the jury was swayed by passion and prejudice. However, PM USA never argued in its initial brief that a new trial was required under section 768.74 because it was a "party adversely affected” by the remittitur. The argument based on section 768.74 is clearly a separate and distinct argument from the. one raised on appeal. As a result, this is not merely a case where the appellant made an argument on appeal, but failed to- cite relevant cases in support of its argument. Rather, the substance of the argument—that it was entitled to a new trial under section 768.74 as the party adversely affected by the remittitur—was never raised in the initial brief and was raised for the first time in the guise of a notice of supplemental authority. Thus, PM USA’s submission of "supplemental authority” did not supplement its arguments raised in its initial brief. Therefore, the issue is waived. See Hall v. State, 823 So.2d 757, 763 (Fla.2002) (citing J.A.B. Enters. v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992) ("[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.”)).


text:
    Othneil ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2924.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

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


text:
    Barbara ALVAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1468.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, and Luis E. Reynoso of Law Offices of Walter A. Reynoso, P.A., Coral Gables, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Smith v. State, 85 So.3d 551 (Fla. 4th DCA 2012); McCalla v. State, 77 So.3d 845 (Fla. 4th DCA 2012); Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011), Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011); State v. Green, 944 So.2d 208 (Fla.2006).

WARNER, POLEN and GROSS, JJ., concur.


author: WARNER, J.

text:
    Ocelyn ST. CYR, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-583.
    District Court of Appeal of Florida, Fourth District.
    July 11, 2012.
    Ocelyn St. Cyr, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   On Motion to Supplement the Record on Appeal

WARNER, J.

In this appeal of an order denying a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), the state has moved to supplement the appellate record with the sentencing documents from appellant’s case file, as it claims a review of the sentencing documents is required for a complete understanding of appellant’s sentence and to respond to the issue raised in appellant’s brief. We deny the motion.

One would think that an appellate court should have available to it the actual sentencing documents any time it reviews the ruling on a motion to correct an illegal sentence. However, for reasons unknown to us, Florida Rule of Appellate Procedure 9.141(b)(2)(A) provides (and has always provided) that “the clerk of the lower tribunal shall transmit to the court, as the record, copies of the motion, response, reply, order on the motion, motion for rehearing, response, reply, order on the motion for rehearing, and attachments to any of the foregoing....” In other words, the record, as structured by the rule, does not contain the original sentencing documents, unless they are an attachment to the order.

When summarily denying a motion to correct an illegal sentence, the appellate courts have uniformly held that the trial court is required to attach to its order those portions of the record which conclusively refute the movant’s allegations. See Watson v. State, 51 So.3d 1204 (Fla. 4th DCA 2011); Smedley v. State, 993 So.2d 551 (Fla. 1st DCA 2008); Perez-Boza v. State, 943 So.2d 291 (Fla. 3d DCA 2006); Tyler v. State, 927 So.2d 194 (Fla. 2d DCA 2006); Moore v. State, 741 So.2d 577 (Fla. 5th DCA 1999). The record in this case consists of the foregoing documents, and the sentencing documents are not attached to any of them. We have consistently held that “the state cannot cure the defect in the trial court’s order by providing records to this court.” Bennett v. State, 946 So.2d 84, 85 (Fla. 4th DCA 2006).

The state must respond to the appellant’s brief with the documents contained within the record. The state and the criminal justice community should review and suggest an amendment to the rule on what constitutes the record on appeal in these cases, because the failure to include the sentencing documents as part of the record prevents a thorough review and probably results in unnecessary reversals.

POLEN and CIKLIN, JJ., concur.


text:
    Carl BALOM, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4234.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, CIKLIN and GERBER, JJ., concur.


text:
    Samuel H. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3895.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Samuel H. Smith, Milton, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Bover v. State, 797 So.2d 1246 (Fla.2001), and Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008).

HAZOURI, DAMOORGIAN and GERBER, JJ., concur.


author: GROSS, J.

text:
    Benjamin L. FEAST, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3869.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Benjamin Feast appeals four convictions arising from the theft of copper piping. He argues that after the expiration of the prescribed speedy trial time period, and after the defendant filed a notice of expiration, the state committed a discovery violation by disclosing a DNA test and a lab technician who had conducted the analysis. We reverse, because the discovery violation, along with the trial court’s failure to hold a Richardson hearing, procedurally prejudiced the defense.

Feast was accused of removing the copper piping from an uninhabited apartment building that had been damaged by Hurricane Wilma. No state witness saw Feast inside the building. Although he ran when confronted by the police, he had no stolen property in his possession when caught. At the scene of the crime, the police found a bag that contained hammers, saws, screwdrivers, wire cutters, wrenches, and gloves.

Feast filed a notice of expiration of speedy trial pursuant to Florida Rules of Criminal Procedure 3.191(h) and (p). Two days later, the court set the matter for trial within ten days, as required by rule 3.191(p). On August 9, 2010, day five of the ten-day period, jury selection commenced. Also on August 9, the state filed supplemental discovery listing (1) the addition of evidence: a crime laboratory analysis report (dated April 15, 2010) and (2) the addition of a witness: the lab technician and DNA expert who conducted the analysis, Ida Saunders. The lab report revealed that a partial DNA profile had been obtained and analyzed from a pair of gloves found with the bag of tools near the scene of the crime. The DNA samples extracted from the gloves indicated a male, but a search of the DNA profile “against the Broward County Combined DNA Index System (CODIS) failed to detect any similar profiles.” This information might have assisted the defense, since Feast’s DNA profile was included in the CODIS system.

The defense attorney made the court aware of the discovery violation. The attorney wanted to speak to Saunders but she was not under subpoena, so the court was not willing to compel a deposition. The prosecutor indicated that he was not going to call Saunders as a witness, but defense counsel indicated that the witness might have information that would be helpful to the defense. The court said that the defendant’s rule 3.191(p) notice meant that he “gave up the rights to do any discovery.” Defense counsel doubted that she could secure Saunders’ attendance at trial, and the court did not believe it had the power to order the witness’s appearance at trial. The court gave the defendant the option of waiving speedy trial and obtaining a continuance to take Saunders’ deposition. The ease proceeded to trial.

At trial, the gloves recovered at the scene took on significance. In her closing argument, defense counsel argued a lack of evidence, including an absence of DNA evidence on the copper pipe that was the object of the burglary. The prosecutor explained the lack of fingerprint and DNA evidence by pointing to the gloves “the defendant had in his possession.” Had the defense had time to follow the avenue of testimony suggested by Saunders’ report, it might have been able to show that the state’s theory about the gloves did not fit the facts of the case.

There was a discovery violation; the state disclosed the existence of the witness and her report after the expiration of the speedy trial period. The state’s responsibility for the violation was not excused because the line prosecutor was not personally aware of Saunders’ involvement in the case until just before trial; the state “is charged with constructive possession of all information and evidence in the hands of its agents, including police.” Rojas v. State, 904 So.2d 598, 600 (Fla. 5th DCA 2005). See also Tarrant v. State, 668 So.2d 223, 225 (Fla. 4th DCA 1996). The defense made the court aware of the violation. The trial court should have conducted a hearing pursuant to Richardson v. State, 246 So.2d 771 (Fla.1971). See, e.g., Jones v. State, 32 So.3d 706, 710-11 (Fla. 4th DCA 2010). The purpose of such a hearing is “to ferret out procedural prejudice” and to “decide whether the .discovery violation prevented the aggrieved party from properly preparing for trial.” Raffone v. State, 483 So.2d 761, 763 (Fla. 4th DCA 1986).

The trial court incorrectly assumed that the defendant’s notice of expiration of speedy trial forfeited the right to further discovery. Here, the state’s discovery violation occurred after the speedy trial period had run and after the defense attorney had filed a notice of the expiration of the speedy trial time period pursuant to rule 3.191(p). After the speedy trial period has run, if a “defendant is not ready for trial because of substantial discovery violations by the state which materially impede the defense’s preparation,” a defendant may secure a continuance without giving up speedy trial rights. Von Waldner v. State, 860 So.2d 1061, 1063 (Fla. 5th DCA 2003). Under these circumstances, during the time periods of rule 3.191(p)(3), a “defendant should not have to choose between the right to a speedy trial and the right to discovery within sufficient time to adequately prepare for trial.” Vega v. State, 778 So.2d 505, 506 (Fla. 3d DCA 2001). Had the court conducted a Richardson hearing, it was authorized to “continue the case and charge it to the state even if it resulted in a later dismissal for violation of the speedy trial rule.” Staveley v. State, 744 So.2d 1051, 1053 (Fla. 5th DCA 1999). Faced with the prospect of such a dismissal, the state may have offered to secure the attendance of the lab technician before the rule 3.191(p)(3) ten-day trial period expired.

There is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred, so the failure to hold the Richardson hearing is not a harmless error. See State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995).

We therefore reverse and remand for a new trial preceded by a Richardson hearing.

POLEN and LEVINE, JJ., concur.


text:
    Robert BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3971.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2012.
    Robert Bailey, Doral, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the denial of appellant’s rule 3.800(a) motion to correct illegal sentence. Appellant is not entitled to presentence jail credit for time spent on house arrest. Licata v. State, 788 So.2d 1063 (Fla. 4th DCA 2001).

Affirmed.

POLEN, GROSS and LEVINE, JJ., concur.


text:
    Gregory VICTOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2276.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Antony P. Ryan, Regional Counsel, and Louis G. Carres, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Gregory Victor appeals the final judgment of the trial court, adjudicating him guilty of carjacking after a jury trial. He argues that the trial court erred by not conducting a “genuineness analysis” pursuant to Melbourne v. State, 679 So.2d 759 (Fla.1996), after he objected to the use of numerous peremptory challenges used by the State to strike black prospective jurors. We agree, reverse, and remand for a new trial.

After a party raises a timely objection that a peremptory challenge is being used in a racially discriminatory manner (step 1),

the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is. not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Id. at 764 (footnotes omitted).

[S]tep 2 of the Melbourne test requires only that the proffered reasons be facially ethnic-neutral. If the reasons are not ethnic-based, the trial judge must then assess the genuineness of the reasons in order to determine whether they are pretextual. A conclusion that the proffered reasons are not ethnic-neutral is not synonymous with a finding of pretext. The former requires only a superficial analysis to determine facial, ethnic neutrality, whereas the latter requires a judicial assessment of credibility of both the proffered reasons and the attorney or party proffering them.

Greene v. State, 718 So.2d 334, 335 (Fla. 3d DCA 1998) (emphasis added). See also Bellamy v. Crosby, 31 So.3d 895, 899 (Fla. 1st DCA 2010) (“Once the proponent of the strike offers a race-neutral reason, the court must proceed to the genuineness determination in step three. It may not skip step three or conflate it with step two.”).

Although Melbourne “does not require the trial court to recite a perfect script or incant specific words in order to properly comply with its analysis under step three,” the trial court must still “weight ] the genuineness of a reason just as it would any other disputed fact.” Wimberly v. State, 118 So.3d 816, 821 (Fla. 4th DCA 2012) (quoting Hayes v. State, 94 So.3d 452, 463 (Fla.2012)). “Therefore, where the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court.” Id. at 821 (quoting Hayes, 94 So.3d at 463). In fact, “Florida’s appellate courts have fairly consistently reversed for a new trial where the record provides no indication that the trial court engaged in the required genuineness inquiry.” Id. (quoting Hayes, 94 So.3d at 463-64).

In Wimberly, we approved of the trial court’s genuineness analysis pursuant to Melbourne because the record in that case reflected that the court assessed “the credibility of the proffered reasons and determine[d] whether these reasons were genuine in light of the circumstances of the case and the total course of the voir dire in question.” Id. at 822.

The record indicates that, when the defense raised Melbourne objections to jurors 3 and 7, the court referred to relevant circumstances — including the racial make-up of the venire, prior strikes exercised against the same racial group, and a strike based on a reason equally applicable to an unchallenged juror — in determining that the state’s proffered reasons for striking those jurors were genuine. The fact that the trial court did not incant magic words to indicate that it considered the same circumstances when striking juror 23 does not suggest to us that the court did not undertake a genuineness inquiry at that time.

Id. at 826 (emphasis added).

However, in Bellamy, the First District reversed the defendant’s conviction and remanded for a new trial because the record was devoid of any findings that the purportedly neutral reasons for striking the jurors was not pre-textual. Bellamy, 31 So.3d at 896, 901. Although the trial court found the State’s reasons for striking the jurors to be race-neutral, “it did not engage in the genuineness determination part of the analysis at all.” Id. at 899.

[T]he trial court did not make a finding as to whether the reason offered for the strike was a pretext. Instead, it simply stated, “I have heard all of the Neil[ ] challenges that have been made, and there have been race-neutral reasons given for the challenges.” It did not make the next step of going on to the third part of the analysis, determining the genuineness of the state’s reasons.

Id. at 900. See also Tetreault v. State, 24 So.3d 1242, 1244 (Fla. 1st DCA 2009) (“Like Simmons,[] the court below bypassed the third step in the Melbourne analysis and focused solely on the fact that the State’s reasons behind its peremptory strikes were gender-neutral. It did not make a finding, implicit or otherwise, that the gender-neutral reasons were genuine. Accordingly, because the record does not indicate that the trial court engaged in the required third step of the Melbourne analysis, we are required to reverse and remand for a new trial.”).

Here, after the State moved to strike a prospective juror, Ms. G., a black female, defense counsel asked for a race-neutral reason. The State responded: “She was arrested and she mentioned her son was arrested.” Defense counsel noted that the State had not moved to strike other members on the panel who were also arrested, to which the State argued: “Not that they were arrested, the family members were arrested. There’s a difference, counselor.” The trial court responded: “The court finds there is a race-neutral reason. I have her down as being arrested as well. State’s two. With Ms. C. as juror number six. Defense. And Ms. C. is a black female.”

The State then moved to strike Ms. C. Defense counsel asked for a race-neutral reason for the strike, and the State noted that she was arrested for a code violation. Defense counsel argued that when she was questioned, she said she would be impartial. The trial court responded: “But it’s still a race-neutral reason.... ”

After the State moved to strike the only black male prospective juror, Mr. H., defense counsel again asked for a race-neutral reason. The State supported its strike by arguing that Mr. H.’s family member was arrested for attempted murder, and

more so than that, when he responded to me about when I was asking, again, negative feelings towards law enforcement, your Honor may recall how he jumped and talked about the shoot to kill order that was involving his nephew, for no reason, that he wanted to go into. That’s my reason.

The following transpired:

Defense: Judge, he didn’t do it for no reason. He was specifically asked by the state attorney about that.... The question was posed and he responded to the question. That’s what happened. That’s what happened with the other people on the panel who also had problems. The State has not shown—
Court: The Court finds it’s race-neutral.

The State then moved to strike Ms. N., a black female:

State: When she was talking about the police to [defense counsel], as to what they will and won’t do, she made a point of jumping up and saying, I have personal experience with a police officer lying, and I quote, to make a point.
Defense: Judge, she didn’t jump up at all. She just said a police officer lied, and that was to the point of saying whether or not police officers will lie. This is getting to be a pattern. We’re striking all of the black prospective panel.
State: For the record, your Honor, Ms. D. is on the panel. She is an African American female.
Defense: The State has made strikes against or cause challenges against one, two, three, four, five, six — no. I’m sorry. Six. Seven, and this will bfe eighth black member of the prospective panel.
Court: The Court finds a race-neutral reason.

The State then moved to strike Ms. J., another black female, based on the fact that she was on community service. Defense counsel objected and argued that the State was engaging in a pattern of discrimination. The State noted that a black female remained on the panel, and the trial court allowed the strike, merely stating, “okay.”

As was the case in Bellamy, Tetreault, and Simmons, the trial court found the State’s reasons to be race neutral but never considered the genuineness of the State’s purported race-neutral reasons, even after appellant alleged purposeful discrimination. Instead, the trial court merely restated its finding that the strikes were based on race-neutral grounds. Consequently, we find this case distinguishable from Wimberly.

Moreover, we conclude that had the trial court inquired as to the genuineness of the State’s strikes, it would have concluded that the State’s strike as to Ms. G. was pretextual. This is because earlier in the voir dire proceeding, defense counsel moved to strike a prospective juror, Mr. M., for cause because “[h]e said something about a family member that went to jail....” The State responded: “He was responsive. He said he could be fair and impartial. I mean just about more than half the jurors on this panel has a family member who has been arrested. He said it wasn’t an issue. He said he could be fair and impartial.” (Emphasis added).

According to the State, Mr. M. (a white prospective juror) should not have been stricken from the panel based on the fact that he had a family member who had previously been arrested. However, the State moved to strike Ms. G. (a black prospective juror) on this reason alone. Based on this record, we find the State’s reason for striking Ms. G. to be pretextual. See Wimberly, 118 So.3d at 821 (“the state’s proffered reason for striking juror 23 applied to only one other person, who was also stricken, albeit for a different reason”). Regardless, the trial court never pressed the State to show that its reason for the strike was genuine rather than pretextual. Instead, the trial court erroneously conflated step 2 of Melbourne with step 3.

Here, the trial court did not explicitly perform an on-the-record genuineness analysis. Because the trial court also failed to refer to relevant circumstances, such as the strike based on the reason equally applicable to an unchallenged juror (Mr. M. and Ms. C.), we cannot determine, on this record, that the trial court implicitly considered the genuineness of the State’s proffered reasons. The record in this case is devoid of any findings that the purportedly neutral reasons for the State’s strikes were not pretextual. In accordance with Melbourne, we reverse and remand for a new trial.

Reversed and Remanded.

GROSS and LEVINE, JJ„ concur.

      . State v. Neil, 457 So.2d 481 (Fla.1984).

      . Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006). In Simmons, when the defense challenged the prosecution’s reason for striking a potential juror, the trial court stated, "I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.” Id. at 582. The First District held that "[b]y focusing merely on the fact the state offered a seemingly race-neutral reason, and accepting that the prosecution’s reason for the strike may be solely for the benefit of the defense, it appears that the trial court bypassed the genuineness inquiry required in the Melbourne analysis.” Id. at 582-83.

      . Cf. Michelin N. Am., Inc. v. Lovett, 731 So.2d 736, 740-41 (Fla. 4th DCA 1999) (‘'[Although the trial court below did not use the magic words of Melbourne while conducting the Neil inquiry, the court pressed [the opponent of the challenge] to respond to [the proponent of the challenge’s] reason regarding [the prospective juror’s] experience with a Michelin blowout, thus indicating the court found this reason to be facially race-neutral. After [the opponent of the challenge] responded that [the proponent of the challenge] accepted other jurors with similár experience with a Michelin blowout, a fact not borne out by the record, the court then denied Michelin’s challenge. Although the trial court did not use the language of Melbourne, its denial amounted to a finding Michelin’s reason was not genuine.”).


text:
    James GAYOSO, Appellant, v. Kerry GAYOSO, Appellee.
    No. 4D10-2048.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 2012.
    Jay A. Gayoso of Jay A. Gayoso, P.A., Aventura, for appellant.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC and Mindy E. Jones of Coast to Coast Legal Aid of South Florida, Inc., Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing and withdraw our opinion dated June 6, 2012.

This case is dismissed pursuant to the stipulation of the parties.

POLEN, GROSS and CONNER, JJ., concur.


text:
    Michael BAYSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2011.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Michael Bayson, Okeechobee, pro se.
    No appearance required for appellee.
   On Order to Show Cause

PER CURIAM.

This court by unpublished opinion affirmed the denial of appellant’s Rule 3.800(a) motion to correct illegal sentence. We issued an order to show cause why this court should not impose the sanction of no longer accepting petitioner’s pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999). Having considered appellant’s response, which reargues the meritless points that he has raised repeatedly, we exercise our discretion and now impose the sanction of no longer accepting petitioner’s pro se filings.

This case constitutes appellant’s eighth appeal of a Rule 3.800(a) denial in this court. In his last Rule 3.800(a) appeal, 4D09-3418, appellant was cautioned by order that continued repetitive or frivolous filing would result in sanctions. Appellant has repeated the same meritless arguments in many of these motions and in habeas corpus petitions as well. The present motion was directed at a 1991 case where the court revoked probation and imposed a sentence of four and a half years in prison. Appellant was not sentenced as a habitual violent felony offender (HWO) in this 1991 case. His allegations that he received an illegal HVFO sentence in this case are false.

The sentence for burglary of a dwelling in the 1991 case about which appellant now complains was completed long ago. Appellant is serving two consecutive life sentences as an HVFO for robbery in a 1992 and in a 1993 case. The 1991 case at issue ran concurrent with the life sentences in the 1992 and 1993 cases. Appellant, who has prior robbery convictions as well, qualifies for HVFO sentencing in the 1992 and 1993 cases. The circumstances convince us that this appeal is not only frivolous, but malicious as well.

Appellant again repeats the same merit-less claims regarding the HVFO sentences in the 1992 and 1993 cases. He claims that the State violated section 775.084(5), Florida Statutes, the sequential sentencing requirement, because he was sentenced for the probation violation in the 1991 case and for his new offenses in the 1992 and 1993 cases at the same time and in the same court room.

First, the placing of a defendant on probation qualifies as a sentence for purposes of the sequential sentencing requirement. State v. Richardson, 915 So.2d 86, 88-89 (Fla.2005). Second, appellant’s claim that an offense for which he was on probation could not be used because it “was still an active sentence,” is expressly contrary to the law. Section 775.084(2), Florida Statutes (1991), provides: “For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for tuhich he is to be sentenced toas committed during such probationary period.” (emphasis added). Finally, appellant’s claim that his 1991 case should not have been presented as a prior conviction is without merit. While burglary of a dwelling is not an enumerated offense under the HVFO statute, section 775.084(l)(b), Florida Statutes (1991), the State at sentencing also presented appellant’s prior convictions for robbery in a 1988 and in a 1990 case.

To show that appellant qualified as an HVFO, the State had to establish that appellant had previously been convicted of one enumerated felony (such as robbery). § 775.084(l)(b)l.c., Fla. Stat. (1991). The 1992 and 1993 robberies were committed “within 5 years of the date of the conviction of the last prior enumerated felony.” § 775.084(l)(b)2., Fla. Stat. (1991). The defendant clearly qualifies as a habitual violent felony offender in every sense of the term. Within a span of five years, appellant committed at least four robberies of which he was convicted.

Appellant’s claims that the State’s notice of intent to seek enhanced penalties was insufficient in the 1992 case because it was allegedly signed by someone other than an attorney and because allegedly no notice of intent was filed in the 1993 case, do not allege an illegal sentence. See Ives v. State, 993 So.2d 117, 120 (Fla. 4th DCA 2008) (citing Bover v. State, 797 So.2d 1246, 1251 (Fla.2001)). These arguments, raised some twenty years after sentencing, are devoid of any arguable merit.

Appellant’s repetitive filing of frivolous and malicious postconviction challenges and appeals interferes with this court’s ability to consider legitimate claims. Abuse of postconviction process damages the remedy for other litigants. McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010). We therefore exercise our discretion and hereafter shall refuse to accept any more of appellant’s pro se filings. The clerk of this court is directed to no longer accept appellant Michael Bayson’s pro se pleadings, petitions, motions, documents, or other filings; we will only accept that filings are signed by a member in good standing of The Florida Bar. No motion for rehearing shall be entertained.

Further, we direct the clerk of this court to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat. (2012).

Sanctions imposed.

WARNER, GROSS and TAYLOR, JJ., concur.

      . Case number 4D00-4061 was dismissed; Bayson v. State, 823 So.2d 785 (Fla. 4th DCA 2002) (4D02-1730) (table); Bayson v. State, 868 So.2d 531 (Fla. 4th DCA 2004) (4D03-4766) (table); Bayson v. State, 915 So.2d 1222 (Fla. 4th DCA 2005) (4D05-2649) (table); Bayson v. State, 954 So.2d 1170 (Fla. 4th DCA 2007) (4D06-4437) (table); Bayson v. State, 966 So.2d 400 (Fla. 4th DCA 2007) (4D07-3053) (table); Bayson v. State, 37 So.3d 868 (Fla. 4th DCA 2010) (4D09-3418) (table).

      . Bayson v. State, 954 So.2d 36 (Fla. 4th DCA 2007) (4D06-3447) (table) (appeal of habeas corpus denial). A petition for writ of habeas corpus filed in this court, case number 4D08-191, was dismissed.


text:
    Vincent B. McLYNDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3898.
    District Court of Appeal of Florida, Fourth District.
    Aug. 22, 2012.
    Vincent B. McLynden, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, GROSS and CIKLIN, JJ., concur.


text:
    Toccara McCLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-270.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Carey Haughwout, Public Defender, and Amy L. Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion fob Review of Order Denying Post-Trial Release

PER CURIAM.

We grant review of the trial court’s order denying movant Toccara McClover’s bond pending appeal of her conviction of felony retail theft. Neither the trial court’s order nor the transcript of the June 13, 2012 hearing reflect that the trial court considered the criteria for post-conviction bond set forth in Younghans v. State, 90 So.2d 308 (Fla.1956). See Fla. R.Crim. P. 3.691(a). The trial court’s order denying bond did not “set forth the factual basis on which the decision was made and the reasons therefor.” Fla. R.App. P. 9.140(h)(3). We remand to the trial court for a new bond hearing.

Motion granted and remanded for further proceedings.

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Endy DESIR, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1610.
    District Court of Appeal of Florida, Fourth District.
    Aug. 29, 2012.
    Michael Salnick of Law Offices of Sal-nick, Fuchs & Bertisch, P.A., West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012); Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

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


author: CONNER, J.

text:
    Richard Allen WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1431.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Richard Allen White (“White”) was originally charged with attempted first degree murder and robbery with a weapon. White raises two issues: 1) he was improperly resentenced on the attempted murder charge by Judge Kaplan when the original sentencing judge, Judge Weinstein, was available; and 2) Judge Weinstein failed to grant his Rule 3.800(b) motion for resen-tencing after a corrected scoresheet was filed for the attempted murder charge. We affirm on the first issue without further discussion. We reverse the denial of White’s Rule 3.800(b) motion.

The following is a summary of the time-line of events leading up to this appeal:

Timeline of Trial Court and Appellate Proceedings

June 28, 2006 White was convicted after a jury trial of attempted first degree murder and robbery. At the original sentencing by J. Weinstein, White was sentenced to life for the attempted murder charge and thirty years on robbery charge. The sentences were imposed concurrently.
March 16, 2007 White’s motion to correct sentencing error was granted, and White was resentenced to thirty years on the attempted murder charge to be served consecutive to the robbery charge.
January 30, 2008 White’s conviction on robbery was reversed by this court, and the case was remanded to vacate the conviction.
June 30, 2009 On remand, White appeai'ed before J. Kaplan, and defense counsel stated that if J. Kaplan was going to resentence on the murder charge, the case had to be transferred back to J. Weinstein. J. Kaplan did not resentence on murder, but stated “he still gets 30 years on Count One,” referring to the attempted murder charge. J. Kaplan vacated the robbery charge. A corrected scoresheet showing only the attempted murder charge was filed. The original scoresheet resulted in a lowest permissible sentence of 138 months. The corrected scoresheet shows a lowest permissible sentence of 48 months.
August 17, 2009 White petitioned for a belated appeal, alleging he asked trial counsel to file an appeal, but the appeal was not filed. A commissioner took evidence and determined White timely asked for an appeal, but trial counsel did not comply with his request.
April 1, 2010 This court entered an order granting the petition for belated appeal and designating our order as the Notice of Appeal. We directed a new case number be issued (which is the instant appeal).
August 27, 2010 White filed a Rule 3.800(b)(2) motion. In paragraph 3, he alleged the change in the lowest permissible sentence from the original scoresheet to the corrected scoresheet required a new sentencing.
November 16, 2010 White filed an unopposed motion in our court to relinquish jurisdiction to the trial court. The motion to relinquish alleged White’s Rule 3.800(b)(2) motion, which was never ruled upon by the trial court The motion to relinquish also alleged that J. Weinstein entered an order specifically stating that “resentencing” was to take place on January 7, 2011. J. Weinstein’s order setting resentencing was dated October 19, 2010.
November 22, 2010 This court granted the stipulated motion by appellate counsel and relinquished jurisdiction to the trial court. Our order did not specifically mention relinquishment for resentencing or the Rule 3.800(b)(2) motion.
February 18, 2011 J. Weinstein conducted a hearing. From the transcript, it appears that he was somewhat puzzled about the purpose of the hearing. The confusion occurred in part because defense counsel did not make clear that White was seeking a resentencing after a corrected scoresheet was filed for the attempted murder charge. Instead, defense counsel put forth an argument seeking a new trial on the attempted murder charge because the robbery charge had been vacated. The state attorney contributed to the confusion by arguing that on direct appeal all this court did was vacate the robbery charge and we did not state we remanded for a new sentencing hearing on the attempted murder charge. J. Weinstein recalled that he had already resentenced White on the attempted murder charge on a previous motion to correct sentencing. J. Weinstein stated during the hearing that if White was seeking a new trial or felt there was some further sentencing error, White needed to file the appropriate motion. J. Weinstein concluded White had already been resentenced on the attempted murder charge and there was no appropriate pending motion which entitled White to resentencing on that charge. Unfortunately, J. Weinstein misconceived the reason for the hearing because both defense counsel and the state attorney failed to properly explain why appellate counsel sought to relinquish jurisdiction. J. Weinstein declined to enter any mitten order on the hearing. When specifically pressed by defense counsel to enter a mitten order, J. Weinstein declined, stating no proper motion was before the court.

We first observe that we may have contributed to the confusion of the trial court when we vacated White’s robbery conviction and did not remand for the trial court to consider if resentencing was required on the murder charge.

Rule 3.800(b)(2)(B), Florida Rules of Criminal Procedure, provides that a motion pursuant to the rule is deemed denied if the trial court does not enter a written order on the motion within 60 days after the motion is filed. In this case, no written order has been entered by the trial court on White’s motion. Although appellate counsel sought to rectify the situation by an agreed order for relinquishment, trial counsel failed to properly advise Judge Weinstein of the reason for the hearing.

“Recognizing the importance of a correct scoresheet, our rules provide defendants several opportunities for raising such error.” State v. Anderson, 905 So.2d 111, 118 (Fla.2005). “Florida Rule of Criminal Procedure 3.800(b) also allows a motion in the trial court to correct such error before and during the pendency of an appeal.” Id.; see also Jackson v. State, 983 So.2d 562 (Fla.2008) (listing an inaccurate scoresheet as a sentencing error that can be raised under rule 3.800(b)).

With regard to scoresheet errors, our supreme court wrote in Brooks v. State, 969 So.2d 238 (Fla.2007): “When score-sheet error is presented using any of the three procedures described above [direct appeal, 3.800(b) motions, or 3.850 motions], any error is harmless if the record conclusively shows that the trial court would have imposed the same sentence using the correct scoresheet.” Id. at 241 (citing Anderson, 905 So.2d at 118; Jones v. State, 901 So.2d 255, 258 (Fla. 4th DCA 2005)).

In Jones, we reversed the denial of a Rule 3.800(b) motion where the evidence did not clearly show the inclusion of points on the scoresheet for a manslaughter conviction was proper. We remanded the Jones case for the trial court to determine if the inclusion of points for manslaughter was proper and, if the inclusion of manslaughter points was error, whether any evidence in the record conclusively demonstrated that the trial court would have imposed the same sentence.

Here, after we vacated White’s conviction for robbery, a new scoresheet with fewer points and a lower permissible sentence was filed with the trial court for the attempted murder conviction. The score-sheet used at the original sentencing and the previous resentencing for attempted murder was not correct. Facially, a sentencing error within the scope of a Rule 3.800(b) motion has occurred. White is entitled to a new sentencing hearing unless the record conclusively shows a thirty-year sentence would have been imposed at re-sentencing on March 16, 2007 if a correct scoresheet had been used.

The trial court has never entered an order denying White’s Rule 3.800(b) motion filed on August 27, 2010. By the procedure set forth in the rule, the motion is deemed denied by the trial court. The denial was error. Thus, we reverse the denial of White’s Rule 3.800(b) motion and remand the case for a new sentencing hearing on attempted first degree murder unless the record conclusively shows a thirty-year sentence would have been imposed at resentencing on March 16, 2007, if a correct scoresheet had been used.

Affirmed in part; reversed, in part.

WARNER and STEVENSON, JJ., concur.


text:
    A.P., a Child, Petitioner, v. Kevin HOUSEL, in his capacity as Superintendent of the St. Lucie Regional Juvenile Detention Center, Respondent.
    No. 4D12-2961.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2012.
    Diamond R. Litty, Public Defender, and Renee M. Rancour, Assistant Public Defender, Vero Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, respondent.
   PER CURIAM.

A.P., a juvenile, petitions for a writ of habeas corpus seeking release from secure detention. We previously granted the petition by order. This opinion follows.

The juvenile was on probation for burglary of a dwelling and resisting an officer without violence. The juvenile admitted violating probation by failing to attend a treatment program. The court adjudicated the juvenile delinquent and committed the juvenile to a moderate risk residential program. The court ordered secure detention pending placement. See § 985.27, Fla. Stat. (2012). The child initially scored eleven points on the risk assessment instrument (RAI), which is insufficient to qualify for secure detention. After the disposition, however, the State changed the RAI, scoring eight points under Section IIID.l for “committed” legal status. Defense counsel objected to the scoring of these points. The court ruled that the points were properly scored because the juvenile was now committed.

The State argues that petitioner fails to identify any authority holding that the points are not properly scored in this situation. Petitioner notes that the State previously conceded error in a prior case where this court granted relief by unpublished order.

“The detention of juveniles is governed entirely by statute and strict compliance is required.” S.M. v. State, Dept. of Juvenile Justice, 91 So.3d 175, 175 (Fla. 4th DCA 2012). Section 985.245, Florida Statutes (2012), provides: “All determinations and court orders regarding placement of a child into detention care shall comply with all requirements and criteria provided in this part and shall be based on a risk assessment of the child, unless the child is placed into detention care as provided in s. 985.255(2).”

The “committed or detention” under section HID of the RAI refers to whether the juvenile was committed or detained at the time of the offense, and not to the petitioner’s status post-disposition. See P.A.J. v. Gnat, 684 So.2d 310, 311 (Fla. 1st DCA 1996) (“[T]he RAI requires the assessment of additional points under the category addressing the child’s legal status at the time of the current offense.” ) (emphasis supplied). The juvenile was not “committed” or in “detention” at the time of the offense. The eight points at issue could not be scored.

Petition granted.

HAZOUEI, CIKLIN and LEVINE, JJ., concur.


text:
    Byron ORTIZ-MEDINA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2084.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2012.
    Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for rehearing

PER CURIAM.

We grant the parties’ motions for rehearing, withdraw our previously issued opinion, and substitute the following in its place.

Appellant appeals his convictions and sentences for armed kidnapping and aggravated assault with a deadly weapon, claiming that they violate double jeopardy. We agree and reverse his conviction and sentence for aggravated assault with a deadly weapon.

A defendant’s double jeopardy rights are violated when he is convicted of two “[ojffenses which require identical elements of proof.” § 775.021(4)(b)l., Fla. Stat. In James v. State, 386 So.2d 890, 891 (Fla. 1st DCA 1980), the court found that a claim that the defendant kidnapped the victim while armed with the intent “to inflict bodily harm upon or to terrorize the victim” alleged the same elements of aggravated assault with a firearm. “The proof showed that appellant confined his victim by threatening him with a loaded shotgun.” Id. The court concluded that the aggravated assault conviction was barred by section 775.021(4)(b)l. because both charges rested on identical elements of proof for conviction.

As in James, the amended information alleged that appellant kidnapped the victim while armed with the intent to “inflict bodily harm upon or to terrorize the victim.” The proof showed that appellant confined and moved the victim by threatening her with a knife and creating within her a fear of violence. Thus, the conviction of both crimes required identical elements of proof, contrary to section 775.021(4)(b)l. Accordingly, we reverse and remand for the trial court to vacate appellant’s conviction for aggravated assault with a deadly weapon. We affirm appellant’s conviction and sentence for armed kidnapping, and we remand for re-sentencing under a revised scoresheet and for the trial court to correct the final judgment to reflect that the jury determined appellant was not masked at the time of the offense. Because we affirm appellant’s conviction for armed kidnapping, we need not address the state’s cross-appeal regarding suppression of appellant’s confession. Capehart v. State, 583 So.2d 1009, 1016 n. 9 (Fla.1991).

Affirmed in part, reversed in part, and remanded.

POLEN, GROSS and LEVINE, JJ., concur.


text:
    David Reid HITCHCOCK, Appellant, v. Priscilla U. HITCHCOCK, Appellee.
    No. 4D11-941.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 2012.
    Glenn H. Mitchell, West Palm Beach, for appellant.
    Roberta G. Mandel of Roberta G. Man-del, P.A., Miami, for appellee.
   PER CURIAM.

The husband appeals and the wife cross-appeals the trial court’s second amendment to the final judgment of dissolution of marriage entered after remand from this court. We agree with the wife that the trial court erred in reimbursing her for only half of the husband’s attorney’s fees. As to the remaining issues, we affirm without comment.

In Hitchcock v. Hitchcock, 992 So.2d 436, 439 (Fla. 4th DCA 2008), we reversed and remanded for the trial court to equitably distribute the marital assets and “to reconsider its award of attorney’s fees and costs based on the parties’ relative financial circumstances regarding their need and ability to pay.” On remand, the trial court equitably distributed the assets. Because the distribution of assets no longer favored the wife, the trial court ordered the husband to reimburse the wife $50,957 for half of his attorney’s fees previously paid by the wife.

“A trial court has broad discretion in awarding attorney’s fees in a dissolution case.” Mondello v. Torres, 47 So.3d 389, 397 (Fla. 4th DCA 2010). “The standard for awarding attorney’s fees in dissolution cases is the financial need of the requesting party and the financial ability of the other party to pay.” Campbell v. Campbell, 46 So.3d 1221, 1222 (Fla. 4th DCA 2010). How marital assets have been divided is relevant in awarding attorney’s fees, but it is not controlling. Bernstein v. Bernstein, 524 So.2d 472, 473 (Fla. 4th DCA 1988).

In Garrett v. Garrett, 559 So.2d 613 (Fla. 3d DCA 1990), the appellate court reversed an award of attorney’s fees to the wife where the alimony award to the wife and the equitable distribution left the parties with substantially equal resources, and the wife’s portion was liquid enough so that she had the ability to pay for her own fees and costs. Like in Garrett, the record in this case does not support a finding that the husband has a need for his attorney’s fees to be paid. The equitable distribution left the parties with substantially equal resources, the husband’s income greatly exceeded the wife’s, and the husband received sufficient liquid assets such that he has the ability to pay for his own attorney’s fees. Cf. Adair v. Adair, 720 So.2d 316, 318 (Fla. 4th DCA 1998) (reversing the denial of attorney’s fees where although the court equally divided the marital assets of the parties, the husband had significantly more income than the wife).

In sum, we reverse and remand for the trial court to enter an order reimbursing the wife for the full amount of attorney’s fees previously awarded to the husband. We affirm as to all other issues.

Affirmed in part, reversed in part, and remanded.

GROSS, LEVINE, JJ„ and ROSENBERG, ROBIN L., Associate Judge, concur.