author: EMAS, J.

text:
    Torrence LAWTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2505.
    District Court of Appeal of Florida, Third District.
    March 6, 2013.
    Carlos J. Martinez, Public Defender and Andrew Stanton, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

      Before ROTHENBERG and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Torrence Lawton (“Lawton”) appeals the denial of his motion to correct illegal sentences pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. Lawton contends that the life-without-parole sentences imposed upon the nonhomicide offenses, committed while he was a juvenile, violate the authority established in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). For the reasons that follow, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

BACKGROUND

The relevant facts are not in dispute. In 1987, at the age of sixteen, Lawton was charged in case number 87-9838 with first degree murder, attempted first degree murder and armed robbery (“the homicide/nonhomicide case”). That same year, Lawton was also charged in an unrelated case (case number 87-8000) with two counts of attempted murder (“the nonho-micide case”).

A jury found Lawton guilty of all three charges in the homicide/nonhomicide case. Prior to sentencing in that case, Lawton pled guilty to the charges in the nonhomi-cide case. On February 9, 1988, the trial court entered sentences on both cases as follows:

The homicide/nonhomicide case (case number 87-9838)

First-Degree Murder (Count One): Life in prison without parole eligibility for twenty-five years;

Attempted First-Degree Murder with a Firearm (Count Two): Life in prison with a three-year mandatory minimum (for use of a firearm in the commission of the offense) to run consecutively with the sentence in Count One;

Armed Robbery (Count Three): Life in prison, to run concurrently with the sentence in Count Two but consecutively with the sentence in Count One.

The nonhomicide case (case number 87-8000)

Attempted FirsL-Degree Murder with a Firearm (Count One): Life in prison with a three-year mandatory minimum;

Attempted First-Degree Murder with a Firearm (Count Two): Life in prison with a three-year mandatory minimum, to run concurrent with the sentence in Count One.

The two sentences in the nonhomi-cide case were to run concurrent with each other and concurrent with the sentences imposed in the homicide/nonhomicide case. The judgments and sentences were all affirmed on direct appeal. See Lawton v. State, 538 So.2d 1369 (Fla. 3d DCA 1989). Lawton thereafter filed several postconviction motions; each was denied and affirmed on appeal. The instant appeal arises out of a motion for postconviction relief filed by Lawton following the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Lawton contended that, pursuant to Graham, the life-without-parole sentences imposed on his nonhomicide offenses (i.e., attempted first-degree murder and armed robbery in case number 87-9838; two counts of attempted first-degree murder in case number 87-8000) were unconstitutional. The trial court denied Lawton’s motion for post-conviction relief, finding the sentences were permitted under Graham because those sentences were imposed at the same time as the sentence for his homicide conviction. This appeal followed.

Lawton argues he has been unconstitutionally sentenced to life without parole for nonhomicide offenses committed when he was a juvenile. Lawton argues that because he is presently eligible for parole on his homicide offense, but will never be eligible for parole on his nonhomicide offenses, the nonhomicide sentences must be reversed and remanded in light of the holding in Graham.

The State asserts that Graham applies only where a juvenile is sentenced solely on nonhomicide offenses and that, because sentence was imposed on his homicide sentence at the same time sentence was imposed on the four nonhomicide sentences, Graham does not apply.

In other words, argues the State, because Lawton committed a homicide, it was permissible for the trial court to sentence him to life without parole on the nonhomicide crimes for which he was sentenced at the same time, whether or not the homicide and nonhomicide offenses were committed at the same time or arose out of the same criminal episode. The State also argues that the sentence of life with parole eligibility after twenty-five years (on the homicide) does not render the life-without-parole sentences (on the nonhomicides) constitutionally infirm under Graham.

The statutory scheme in 1987

At the time these crimes were committed (1987), first-degree murder was a capital felony. Any person convicted of first-degree murder and not sentenced to death “shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole. ...” § 775.082, Fla. Stat. (1987). Attempted first-degree murder with a firearm was a life felony (sections 777.04(4)(b), 775.087(l)(a), Fla. Stat. (1987)), punishable “by a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.” § 775.082(3)(a), Fla. Stat. (1987). Armed robbery with a firearm was a first-degree felony punishable “by imprisonment for a term of years not exceeding life imprisonment.” §§ 775.082(3)(b), 812.13(2)(a), Fla. Stat. (1987).

Four years earlier, in 1983, the Florida Legislature established sentencing guidelines. See Ch. 83-87, § 2 at 306-08, Laws of Fla. By its terms, Chapter 947 of the Florida Statutes (providing for parole) did not apply to offenders sentenced pursuant to the guidelines. § 921.001(10), Fla. Stat. (1987). However, the sentencing guidelines also expressly provided that the guidelines did not apply to first-degree murder (and other “capital felonies”) committed after October 1, 1983. § 921.001(4)(a), Fla. Stat. (1987).

Thus, Florida law as it existed in 1987 provided only two possible sentences for first-degree murder: death or life without parole eligibility for twenty-five years. In the event that the State waived death as a possible penalty (as was done in this case) the only remaining lawful sentence which could be imposed was life without parole eligibility for twenty-five years. Ironically, in 1987, the maximum sentence for attempted first-degree murder (or armed robbery) was life without eligibility for parole.

ANALYSIS

The nonhomicide case (case number 87-8000; two counts of attempted first-degree murder)

In Graham, the United States Supreme Court held that the Eighth Amendment to the United States Constitution prohibits the imposition of a life without parole sentence on a juvenile nonhomicide offender:

The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.

Graham, 130 S.Ct. at 2034.

As the holding above intimates, Graham carved out an exception for juveniles who commit both homicide and nonhomicide offenses. The State posits that, because Lawton committed a homicide in case number 87-9838, the life without parole sentences for the unrelated nonhomicide offenses in case number 87-8000 are lawful under Graham.

Lawton contends that the exception carved out in Graham was limited to non-homicide offenses which are a part of the same criminal episode in which the homicide was committed. Because the nonho-micide offenses in case number 87-8000 are unrelated to the homicide offense in case number 87-9838, Lawton argues, the Graham exception does not apply to the life-without-parole sentences imposed for the two counts of attempted first-degree murder in 87-8000. We agree.

In explaining its rationale for establishing the rule laid down in Graham, the Supreme Court reviewed the various states’ legislative schemes regarding juvenile sentencing. The Court found that thirty-seven states permit sentences of life without parole for a juvenile nonhomicide offender in some circumstances. The Court then reviewed the actual sentencing practices among those states which authorized life-without-parole sentences for non-homicide offenses. The Court determined “an examination of actual sentencing practices in jurisdictions where the [life-without-parole] sentence in question is permitted by statute discloses a consensus against its use. Although these statutory schemes contain no explicit prohibition on sentences of life without parole for juvenile nonhomicide offenders, those sentences are most infrequent.” Id. at 2023. In Graham, the State contended that the study was inaccurate “because it [did] not count juvenile offenders who were convicted of both a homicide and a nonhomicide offense, even when the offender received a life without parole sentence for the nonho-micide.” Id. The Court explained its rationale for treating such cases differently:

Juvenile offenders who committed both homicide and nonhomicide crimes present a different situation for a sentencing judge than juvenile offenders who committed no homicide. It is difficult to say that a defendant who receives a life sentence on a nonhomicide offense but who was at the same time convicted of homicide is not in some sense being punished in part for the homicide when the judge makes the sentencing determination. The instant case concerns only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.

Id.

The State in the instant case argues that because Lawton was sentenced on the same day and at the same time for all offenses in both cases, he falls within the Graham exception because he was “at the same time convicted of homicide.” This is a strained reading of Graham. In context, Graham clearly intended the exception to apply where the juvenile is convicted of committing both a homicide and nonhomi-cide in the course of the same criminal episode. Graham surely did not envision the situation in which, by happenstance, convenience, case management, or otherwise, a juvenile defendant consolidates two unrelated cases for sentencing purposes and thereby subjects himself to being sentenced to life without parole on a nonhomi-cide offense simply because he is also being sentenced, on the same day, on an unrelated homicide offense. Accepting the State’s argument would mean a very different result for Lawton if he had simply scheduled his sentencing hearing on the nonhomicide case one day before his sentencing hearing on the homicide case.

We hold that the life-without-parole sentences imposed for the two counts of attempted first-degree murder in the nonho-micide case (case number 87-8000) violate Graham and Lawton is entitled to a new sentencing hearing on those counts.

The homicidelnonhomicide case (case number 87-9838; first-degree murder, attempted first-degree murder and armed robbery)

The analysis is quite different with regard to the homicide/nonhomicide case, because Lawton was convicted of both homicide and nonhomicide offenses which arose out of a single criminal episode. On its face, therefore, the sentences of life without parole on the two nonhomicide offenses appear to fall squarely within the exception created in Graham, permitting the imposition of such a sentence for a juvenile who “committed both homicide and nonhomicide crimes_” Id. at 2023. In fact, the record reveals that the trial court, in sentencing Lawton to life without parole for the attempted murder and the armed robbery, departed upward from the sentencing guidelines, and properly considered the unscored homicide as an aggravating factor justifying the departure sentence on the two nonhomicide offenses. See Lawton v. State, 538 So.2d 1369 (Fla. 3d DCA 1989); McPhaul v. State, 496 So.2d 1009 (Fla. 2d DCA 1986) (affirming departure sentence of 99 years for armed robbery based upon unscored conviction for first-degree murder). The sentence exemplifies the very rationale relied upon by the Supreme Court in Graham in differentiating between juvenile offenders who commit only a nonhomicide offense and those who commit both a homicide and nonhomicide offense. As the Supreme Court made clear, it is “difficult to say that a defendant who receives a life sentence on a nonhomicide offense but who was at the same time convicted of homicide is not in some sense being punished in part for the homicide when the judge makes the sentencing determination.” Id. at 2023.

The defense contends, however, that the life-without-parole sentences on the two nonhomicides are nevertheless unconstitutional because those sentences (life without parole) exceeded the sentence imposed for the homicide (life with parole eligibility after twenty-five years). This, Lawton contends, is a grossly disproportionate sentence, because he is now eligible for parole consideration on his homicide but is not parole eligible on the two nonhomicide offenses.

However, nothing in Graham requires that the sentence on the homicide equal or exceed the sentence on the nonhomicide offense in order for the sentences to be lawful. More importantly, however, under the statutory scheme that existed at the time of the instant case, the trial judge imposed the maximum sentence authorized for first-degree murder. In fact, the trial court had no discretion whatsoever; given that the death penalty had been waived by the State, the trial court was required by law to impose a sentence of life without parole eligibility for twenty-five years. See § 775.082(1), Fla. Stat. (1987). In 1987, a sentence of life without parole for the homicide would have been illegal. The trial court did not and could not exercise any discretion in imposing this sentence. It seems plain, given the upward departure sentences of life-without-parole on the two nonhomicide offenses, that the trial court would have imposed life without parole on the homicide count, had such a sentence been authorized under the law.

Moreover, Lawton’s argument that the sentences are disproportionate is predicated not upon the decision in Graham, but upon a sentencing scheme that existed in 1987, which provided a non-discretionary sentence for first-degree murder (life without parole eligibility for twenty-five years) that was less severe than the discretionary maximum sentence for attempted first-degree murder (life without parole). Any such claim of disproportionality should have been raised on direct appeal or, at the latest, in a motion filed under Rule 3.850 within two years of his conviction and sentence becoming final. His proportionality claim as to the sentences imposed in case number 87-9838 are time-barred.

We affirm the trial court’s order denying relief as to case number 87-9838. We reverse the trial court’s order denying relief as to the two counts of attempted first-degree murder in case number 87-8000 and remand for a new sentencing hearing and for proceedings consistent with this opinion.

      . Lawton was also charged with, and pled guilty to, possession of a firearm while engaged in a criminal offense. However, the sentence in that case is neither the subject of this appeal nor relevant to our discussion and analysis.

      . Of course, even if the State had not waived the death penalty in this case, subsequent decisions have established that Lawton, a juvenile at the time of the homicide, was not eligible for the death penalty. See Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).

      . In 1994, the Florida Legislature amended section 775.082(1) to eliminate parole eligibility for first-degree murder. See Ch. 94-228, § 1 at 1577, Laws of Fla. Since that time, the only two possible penalties for first-degree murder are death or life without parole.

      . Although the nonhomicide case has the lower case number, the offenses in case number 87-8000 were committed after the homicide (and nonhomicide) offenses were committed in case number 87-9838.

      . Cf. Akins v. State, 104 So.3d 1173 (Fla. 1st DCA 2012) (reversing nonhomicide sentence of life without parole where trial court exercised its discretion in imposing a sentence of twenty-seven years on the related homicide offense of second-degree murder, an offense punishable by a maximum of life in prison). We find the Akins case distinguishable from this case because here, the defendant received two life sentences.

      . This statutory anomaly — and the resulting fact that life without parole eligibility for twenty-five years represented the only sentence the court could impose for the homicide — distinguishes the instant case from Akins v. State, 104 So.3d 1173 (Fla. 1st DCA 2012), and Washington v. State, 110 So.3d 1 (Fla. 2d DCA 2012).

      . Although the mandatory sentence for first-degree murder was less severe than the maximum sentence for attempted first-degree murder, one could reasonably argue that the mandatory, non-discretionary nature of the sentence for first-degree murder renders it "more” severe, as the maximum sentence is also the minimum sentence, and the trial judge is prohibited from considering mitigating circumstances of the crime or the defendant, and thus prohibited from making an individualized sentencing decision in fashioning the appropriate sentence. By contrast, the trial judge had the discretion to consider such circumstances in fashioning the appropriate sentence for the nonhomicide offenses (attempted first-degree murder and armed robbery). In case number 87-9838, for example, the sentencing guideline range for Lawton’s two non-homicide charges was seventeen to twenty-two years. Although the trial court ultimately departed upward from that range, the court had the discretion to impose a guidelines sentence well below the maximum permissible sentence of life without parole.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Gerard WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1148.
    District Court of Appeal of Florida, Third District.
    March 6, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and LOGUE, JJ.
   SUAREZ, J.

Gerard Williams appeals from his convictions for armed carjacking, attempted second degree murder, attempted first degree felony murder, and possession of a firearm while engaged in a criminal offense. We affirm in part and reverse in part.

The defendant was accused of shooting the victim, taking the victim’s car, and taking property from the victim’s car. Prior to trial, the defendant’s girlfriend provided papers and receipts to the FBI, seeking a deal for her husband (not the defendant) who was in federal prison. The papers included receipts with the victim’s name—papers that allegedly were taken from the victim’s car at the time of the robbery. The State sought to introduce these facts through the FBI agent’s testimony. Prior to trial, the defense unsuccessfully sought to preclude the FBI agent’s testimony as to who gave him the papers, arguing that it would lead to an inescapable inference that the non-testifying witness furnished the FBI with evidence of the defendant’s guilt. The court allowed the testimony because there were no hearsay statements concerning the defendant, but only testimony about the fact that documents were turned over to the FBI. The record shows that defense counsel did not object at trial to the FBI agent’s testimony as to why the papers were given to him. The documents contained the victim’s name, but no one testified as to how those documents came into the non-testifying witness’s possession. The record shows that, in context of the testimony, there was no mention of the defendant’s name and no reference to any specific crime. We find that the error claimed was unpreserved by specific objection, and conclude, after a complete review of the record, that the trial court’s error, if any, in admitting the testimony was harmless. See Corona v. State, 64 So.3d 1232, 1242 (Fla.2011) (holding that, for an appellate court to reverse a judgment or sentence on appeal, the asserted error must either be preserved by specific objection or constitute fundamental error); Spann v. State, 857 So.2d 845, 852 (Fla.2003) (requiring specific objection at trial to preserve issue for appeal); State v. Calvert, 15 So.3d 946, 948 (Fla. 4th DCA 2009) (holding that, to properly preserve an issue for appellate review, a litigant must make a timely, specific, contemporaneous objection); see also § 90.104(1), Fla. Stat. (2010).

Williams correctly argues that his conviction on the count of possession of a firearm in the commission of a felony is illegal and must be vacated as it violates the double jeopardy clause. Williams also was convicted of carjacking (Count 1), attempted second degree murder (as a lesser included offense of Count 2), and attempted first degree felony murder (Count 3). The jury made specific findings that Williams possessed and discharged a firearm causing great bodily harm to the victim during the commission of these offenses. The trial court enhanced the sentences for carjacking and first degree murder counts for use of a firearm, and sentenced Williams to life imprisonment for Counts 1, 3 and 4, suspending entry of sentence for Count 2.

The State cannot, consistent with double jeopardy principles, charge, convict and sentence a defendant with two substantive offenses for the single act of possession of one weapon. See Cleveland v. State, 587 So.2d 1145 (Fla.1991) (holding that when a robbery conviction is enhanced because of the use of a firearm in committing the robbery, the single act involving the use of the same firearm in the commission of the same robbery cannot form the basis of a separate conviction and sentence for the use of a firearm while committing a felony); see also Gracia v. State, 98 So.3d 1243 (Fla. 3d DCA 2012); Williams v. State, 83 So.3d 929 (Fla. 3d DCA 2012); Merrell v. State, 841 So.2d 677 (Fla. 3d DCA 2003); Hall v. State, 752 So.2d 1245 (Fla. 3d DCA 2000); Brown v. State, 617 So.2d 744 (Fla. 1st DCA 1993). We therefore reverse Williams’ conviction and sentence for possession of a firearm while committing a felony. We affirm Williams’ remaining convictions and sentences.

Affirmed in part, reversed in part.


author: WELLS, Chief Judge.

text:
    Shoshana Candiotti SCHECTER, Appellant, v. Leroy SCHECTER, Appellee.
    No. 3D12-1714.
    District Court of Appeal of Florida, Third District.
    March 6, 2013.

      Maurice J. Kutner; Greene Smith & Associates and Cynthia L. Greene, for appellant.
    Akerman Senterfitt and Gerald B. Cope, Jr.; Crabtree & Associates and John G. Crabtree; Fox Rothschild and Jeffrey M. Pollack, (New York), for appellee.
    Before WELLS, C.J., and CORTINAS and LOGUE, JJ.
   WELLS, Chief Judge.

Former wife, Shoshana Schecter, appeals from a non-final order terminating her former husband Leroy Schecter’s previously agreed to and court ratified temporary alimony and attorney’s fees obligations. We find no abuse of discretion in the trial court’s decision to terminate the payment of Mrs. Schecter’s temporary alimony but do find the order terminating the payment of her temporary fees to be without support.

In July 2002, after an eighteen year romantic relationship, the parties executed a prenuptial agreement in which the now former husband, Leroy Schecter, (then with a disclosed net worth approaching $160 million) and the now former wife, Shoshana Candiotti, (then with a worth of almost $1 million) agreed that in the event their contemplated marriage ended in a divorce, Shoshana would receive only $260,000 from Mr. Schecter.

In February 2010, Mr. Schecter filed for a divorce and sought to enforce the prenuptial agreement. Mrs. Schecter sought to set it aside. During the course of the proceedings, the parties entered into two agreements to provide for temporary support and attorney’s fees for Mrs. Schecter. Both agreements, or stipulations, were spread on the record in the form of agreed orders. The first agreement, entered on July 29, 2010, was embodied in an order titled “Agreed Order on Wife’s Motion for Temporary Relief and Husband’s Motion for Exclusive Use of Marital Home,” and (1) required Mr. Schecter to pay certain amounts to Mrs. Schecter; (2) granted Mrs. Schecter exclusive possession of the parties’ Indian Creek Village home (along with some funds to defray the costs thereof); and (3) obligated Mr. Schecter to pay Mrs. Schecter’s attorney’s fees and costs during the pending litigation:

1. As and for temporary spousal support for the Wife, the parties have agreed to the following:
a)The Husband shall ensure that the Wife shall continue to have use of her Visa card, with a Ten Thousand ($10,-000.00) Dollar per month limit ...;
b) The Husband shall pay to the Wife the sum of One Thousand ($1,000.00) Dollars a week in the form of cash or check;
c) The Husband shall create an escrow account with the sum of Three Thousand ($3,000.00) Dollars to pay the Wife’s travel expenses ...;
d) The Husband shall pay up to the sum of One Thousand ($1,000,00) Dollars a week directly to the Wife’s domestic help ...;
2. The parties have agreed that the Wife shall have the exclusive use and occupancy of the Indian Creek Village residence until further order of the Court.
3. The Husband shall continue to maintain the fixed bills in connection with the Indian Creek Village residence....
4. As and for the Wife’s temporary attorney’s fees, suit monies, and costs the parties have agreed that the Husband shall pay the sum of One Hundred Fifty Thousand ($150,000.00) Dollars. The aforementioned sum shall be paid, in full, to the Law Firm of Boies, Schiller & Flexner LLP, on or before July 29, 2010.
5. Commencing on August 1, 2010, and for every month thereafter so long as this matter is pending, the Wife shall submit her legal and accounting bills for payment to the Husband’s counsel for payment by the Husband. In the event that any of Wife’s legal and accounting bills are questioned by the Husband or remain unpaid in full within ten (10) days from receipt of the same, the parties have agreed that Justice Gerald Kogan shall be appointed as Special Magistrate with the power to decide the appropriateness of said bills. The Husband shall bear all fees and expenses charged by Justice Kogan in this matter, without prejudice.

(Emphasis added). The temporary support delineated in paragraph 1 specified no termination date; the exclusive use provisions delineated in paragraph 2 were to remain in effect “until further order of the court”; and the fee provisions delineated in paragraphs 4 and 5 were to remain in effect “so long as [the] matter is pending.”

The second agreement (or stipulation) between the parties was executed on June 23, 2011, and modified only paragraph 5 of the earlier stipulation and order regarding attorney’s fees. That agreement obligated Mr. Schecter to pay only 85% of Mrs. Schecter’s attorney’s fees upon being invoiced for same with the necessity and reasonableness of the remaining 15% to be determined after entry of a final judgment by either agreement of the parties or determination by a special master. This agreement also stated that it was “without prejudice for the Court to make an ultimate determination as to the Wife’s entitlement to attorney’s fees and costs and the reasonableness and amount of said fees and costs.”

A little less than a week later, the parties’ marriage was dissolved in a bifurcated proceeding with the court below retaining jurisdiction to determine whether the parties’ prenuptial agreement was valid and binding. That same month, the court below “adopted, ratified and approved in all respects” the parties’ agreement to modify paragraph 5 of their earlier agreement to clarify Mr. Schecter’s continuing obligation to pay Ms. Schecter’s attorney’s fees.

On April 10, 2012, following a three week trial, the court below orally announced that it had determined that the parties’ prenuptial agreement was valid and enforceable. The court advised, however, that it would take “several months” before a written judgment would be entered. No determination was made as to Mrs. Schecter’s entitlement to attorney’s fees or the reasonableness of any previously awarded fees. A little less than three weeks later, Mr. Schecter filed a “Motion to Terminate Temporary Support, Temporary Attorney’s Fees and Costs, for the Immediate Return of Automobile, and for Other Relief’ claiming that continued compliance with the parties’ prior agreements (and agreed orders thereon) would “give the Former Wife an undeserved windfall” because the amount of alimony that she was to receive pursuant to the prenuptial agreement was substantially less than sums already paid in temporary support and fees. In response, the trial court terminated both Mr. Schecter’s temporary support and attorney’s fees obligations.

We start with two established principles. One, “proceedings under chapter 61 are in equity and governed by basic rules of fairness as opposed to the strict rule of law.” Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Two, there is a long-held difference in the controlling effect of pre- and post-dissolution contractual obligations. This distinction was outlined in Belcher v. Belcher, 271 So.2d 7, 9 (Fla.1972), which pronounced that “[f]or temporary support, suit money and temporary attorney’s fees, the State remains an interested party and cannot be excluded by contract during this period of continuance of the legal relationship of husband and wife.” This obligation recognizes the State’s interest in preventing spouses from becoming dependent upon the welfare of others and is so significant that it precludes the parties to a marriage from contracting away or waiving temporary support and attorney’s fees before a final judgment is entered. Id. at 9-10. See Lashkajani v. Lashkajani, 911 So.2d 1154, 1157 (Fla.2005) (reconfirming the obligation of spousal pre-judgment support recognized in Belcher.),

Addressing the trial court’s decision on each of the obligations at issue in this case, we affirm the trial court’s decision to terminate Mr. Schecter’s temporary support obligation. Section 61.14(ll)(a), of the Florida Statutes provides that “[a] court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding.”

Duss v. Duss, 92 Fla. 1081, 111 So. 382, 383-84 (1926), likewise confirmed a trial court’s authority to terminate a temporary support obligation:

Alimony does not arise from a business relation, but from the relation of marriage. It is not founded upon contract, express or implied, but on the natural legal duty of the husband to support his wife and children. The existing general obligation of the husband to support is made specific by judicial decree of the court of appropriate jurisdiction. Audubon v. Shufeldt, 181 U.S. 575, 21 S.Ct. 735, 45 L.Ed. 1009. The power of the court to enter the decree in the first instance is not dependant upon the agreement of the parties. Neither is the court in any sense bound by the agreement of the parties, but may adopt or reject it as seems consistent and proper to the court. For the same reason the agreement cannot preclude the court in the proper exercise of its jurisdiction and power, which exists entirely independent of the agreement, from modifying or vacating its own interlocutory order as may be justified by subsequent 'developments during the pendency of the cause.

(Emphasis added); accord Craig v. Craig, 157 Fla. 710, 26 So.2d 881, 883 (1946); see 26 Fla. Jur. 2d Family Law § 1093 (2012) (“An order granting temporary alimony or support is an interim or interlocutory order, and, in the absence of intervening appellate jurisdiction, it remains within the control of the court until the final judgment is entered. Until then, the court may modify or set aside the order, even though it was entered by consent of the parties and pursuant to an agreement between them.” (footnotes omitted) (emphasis added)).

Below, Mr. Schecter argued that over a twenty-one month period he had paid Mrs. Schecter temporary support, including the expenses for exclusive use of the matrimonial home, of approximately $2.5 million excluding the amounts he paid for Mrs. Schecter’s attorney’s fees. He argued these amounts were greatly in excess of the amounts he was required to pay under the Pre-nuptial Agreement, which the court by then had found to be valid and controlling. Mr. Schecter argued the evidence showed Mrs. Schecter had substantial means of her own, with a net worth that “may be as high as $2 million.” Mrs. Schecter did not dispute the facts contained in her former husband’s motion, but argued only the temporary support should not be terminated until the final judgment was entered.

On the facts presented, we cannot conclude the trial court abused its discretion in terminating Mr. Schecter’s temporary support obligation. Having paid over ten times the amount previously agreed to and with no claim by Mrs. Schecter of insufficient funds for her own support, good cause arguably was demonstrated for termination of Mr. Schecter’s temporary support obligation. Thus, we cannot characterize the trial court’s decision as arbitrary, fanciful, or unreasonable. See Vargas v. Deutsche Bank Nat’l Trust Co., 104 So.3d 1156 (Fla. 3d DCA 2012) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), confirming that “discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, in other words where no reasonable person would take the view adopted by the trial court”).

We cannot, however, approve of the trial court’s decision to terminate Mr. Schecter’s temporary attorney’s fees obligation. Any determination regarding an award of attorney’s fees in a dissolution proceeding “begins with section 61.16 [of the Florida Statutes]”, Rosen, 696 So.2d at 699, which provides that a “court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under [chapter 61]”. § 61.16, Fla. Stat. (2012).

Because the purpose of this statute is to “ensure that both parties will have a similar ability to obtain competent legal counsel,” and “assure that one party is not limited in the type of representation he or she would receive because that party’s financial position is so inferior to that of the other party,” it neither is “necessary that one spouse be completely unable to pay attorney’s fees for the trial court to require the other spouse to pay those fees,” nor should one spouse be required to diminish his or her share of a distribution, to receive a temporary fee award. Rosen, 696 So.2d at 699 (quoting, in part, Stan dard, Guar. Ins. Co. v. Quanstrom, 555 So.2d 828, 835 (Fla.1990)); Canakaris, 382 So.2d at 1197; Cullen v. Cullen, 884 So.2d 304, 306 (Fla. 2d DCA 2004) (“It is not necessary that one spouse be completely unable to pay attorneys’ fees for the circuit court to require the other spouse to pay them. The purpose of an attorneys’ fee award under section 61.16, Florida Statutes ... is to ensure that both parties will have a similar ability to obtain competent legal counsel.”) (citation omitted); Giovanelli v. Giovanelli, 654 So.2d 154, 155 (Fla. 4th DCA 1995) (“The principle criterion for an award of attorney’s fees in a marital case is the relative financial resources of the parties. Moreover, it has been pronounced that the award of attorney’s fees is proper to avoid an inequitable diminution of the fiscal sums granted ... in those proceedings.”) (citations omitted); Askegard v. Askegard, 584 So.2d 47, 49 (Fla. 1st DCA 1991) (“To avoid an inequitable diminution of funds, the trial court was free to award attorney’s fees.”).

In this case, the parties made no attempt to contract away or to waive the entitlement to temporary support, including temporary attorney’s fees, pending entry of a final judgment. Indeed, the parties entered into not 'one but two agreements providing for Mrs. Schecter to receive temporary attorney’s fees, the first for “every month ... so long as this matter is pending,” (emphasis added), the second addressed a 15% hold back. The parties agreed that 15% of the fees that she was to incur would be reviewed after judgment was entered to determine if those fees were reasonable and that the court below would ultimately determine the total amount for fees and costs to which she would be entitled. There is no dispute that this matter still is pending and no dispute that an “ultimate” reckoning as to the amount to which Mrs. Schecter is entitled for her fees and costs has yet to be determined.

Also, while an agreement concerning the payment of temporary attorney’s fees need not be deemed controlling, it also should not be ignored. See Vick v. Vick, 675 So.2d 714, 718 (Fla. 5th DCA 1996) (“Since the determination of fees and costs related to a matter which the parties properly could stipulate, the trial court was bound by the pretrial stipulation.”); Menendez v. Menendez, 435 So.2d 287, 289 (Fla. 5th DCA 1983) (“[T]he former husband contends the award of attorney’s fees to his former wife is erroneous because the lower court made the award without expert testimony regarding the fees. He has waived this objection by having stipulated below to the court determining the award without the necessity of expert testimony.”). Here, the parties made a deal — that Mr. Schecter would pay Mrs. Schecter’s temporary attorney’s fees “so long as [the] matter is pending.” As this appeal confirms, this matter still is “pending” and Mr. Schecter’s belief that his promises allow a “windfall,” failed to provide a sufficient basis for terminating that obligation.

In short, legally and equitably, Mrs. Schecter is entitled to receive temporary attorney’s fees and costs, unless, that is, Mr. Schecter can demonstrate that consideration of the financial resources of both parties or some other equitable imperative mandates termination of those payments. To date, Mr. Schecter has made no such showing. Thus, we conclude the trial court abused its discretion in deciding to terminate this obligation.

The order on appeal therefore is affirmed as to the termination of the temporary alimony obligation but reversed as to the termination of the obligation to pay Mrs. Schecter’s temporary attorney’s fees in accordance with the parties’ prior agreements.

Affirmed in part, reversed in part.

      . According to the former husband, he already had paid the former wife some $2.5 million in temporary support and over $150,000 for her attorney’s fees.

      . Lashkajani recognized that although Belcher speaks of a husband’s duty of support, that duty has now been extended by law to both spouses. Lashkajani, 911 So.2d at 1157, n. 2 (citing ch. 71-241, ch. 95-147, Laws of Fla., and section 61.09 of the Florida Statutes).

      . In Lashkajani, the court did carve out something of a caveat to this longstanding analysis concluding that "prenuptial agreement provisions awarding attorney's fees and costs to the prevailing party in litigation regarding the validity and enforceability of a prenuptial agreement are enforceable.” It did so observing:
      Prevailing party clauses in prenuptial agreements can be distinguished from provisions regarding pre-dissolution support. Provisions waiving the right to temporary alimony or attorney's fees and costs incurred in the dissolution proceedings are included to enrich the parties entering the agreement. In contrast, prevailing party clauses protect the agreement itself. Their purpose is to indemnify the party who relied on the agreement and constitute a disincentive to one who may frivolously challenge it.

        Id. at 1159.

      . This included a half interest in a waterfront home on Miami Beach owned with her mother, where Mrs. Schecter's interest was valued at $950,000. •

      . See Cobo v. Sierralta, 13 So.3d 493, 500-01 (Fla. 3d DCA 2009) ("[T]he failure to award such fees to [Ms. Cobo], and certainly the failure to enforce the only limited award made, deprived Cobo of any meaningful representation ... See Robbie v. Robbie, 591 So.2d 1006, 1009 (Fla. 4th DCA 1991) (confirming that the purpose of a fee award in dissolution actions 'is to ensure that both parties ... have similar access to counsel and can thus fight the action on a nearly equal footing’); see also Rosen v. Rosen, 696 So.2d 697, 699 (Fla. 1997) (reiterating the standard announced in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), that the purpose of a fee award in dissolution action is to ensure that both parties have ‘a similar ability to obtain competent legal counsel’); Young v. Young, 898 So.2d 1076, 1077 (Fla. 3d DCA 2005) (confirming that the purpose of a fee award in dissolution actions is to ‘ensure that both parties to a dissolution case have similar access to counsel and that neither has an unfair ability to obtain legal assistance because of the other's financial advantage’ ”) (emphasis added).); see also Lashkajani, 911 So.2d at 1156-57 (reconfirming a spouse’s obligation as “including the responsibility for attorney's fees and costs,” which cannot be contracted away); Blanton v. Blanton, 654 So.2d 1240, 1240 (Fla. 2d DCA 1995) (stating that the "obligation to provide spousal support during the term of a marriage includes responsibility for the payment of attorney’s fees and costs” ... [and this obligation] cannot be waived or contracted away”); Veiga v. Veiga, 563 So.2d 1089, 1090 (Fla. 5th DCA 1990) (finding that "spousal support obligation during coverture includes liability ... for ... prejudgment attorney's fees and cannot be contracted away”).

      . In Kelly v. Kelly, 925 So.2d 364 (Fla. 5th DCA 2006), our sister court found that the court below abused its discretion in failing to award attorney’s fees to a former wife even though the former wife had secured a $1.8 million distribution. The court concluded that "one party need not be completely without ability to pay attorney fees in order to be awarded fees.” Id. at 368. Thus, in significant part, because the former husband’s assets and income exceeded the former wife’s by a factor of 8 — he left the marriage with a net worth exceeding $12,000,000 while the former wife left with only the proceeds from the $1.8 million marital home — denial of a fee award to the former wife was reversed.
      Here, as in Kelly, the wife with a net worth of approximately $2 million has some ability to pay. However, Mr. Schecter’s net worth is almost $180 million, ninety times that of Mrs. Schecter. Moreover, a significant part of Mrs. Schecter’s net worth is tied up in a home owned with her mother. On these facts, and in light of the parties’ agreements, we conclude that here, as in Kelly, the order terminating the temporary fees obligation should be reversed.


author: ROTHENBERG, J.

text:
    Christopher STEPP, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-203.
    District Court of Appeal of Florida, Third District.
    March 6, 2013.

      Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and LOGUE, JJ.
   ROTHENBERG, J.

The defendant, Christopher Stepp, appeals from his convictions and sentences for first degree murder and attempted armed robbery. The sole issue he raises in this appeal is whether the trial court abused its discretion by precluding defense counsel from arguing in closing argument that the police detective failed to subpoena a witness’s phone records to corroborate his testimony that the defendant used several phones to call the witness on the night of the murder, and during one of these phone calls, the defendant confessed to the offenses charged. For the following reasons, we conclude the trial court did not abuse its discretion, and we therefore affirm.

First, when the State attempted to question the witness as to whether the defendant called him from multiple phone numbers, the defense objected and the trial court sustained the objection. This question perhaps could have established that either the State did not subpoena the phone records or, if they were subpoenaed, why law enforcement was unable to verify that the witness received calls from the defendant. Therefore, as the defense objection was sustained, error, if any, was invited.

Second, although defense counsel asked the detective whether he had the ability to subpoena phone records, after the detective responded that he did, defense counsel did not ask the detective if he had in fact subpoenaed the witness’s phone records. Thus, because there was no evidence introduced through testimony or otherwise that the detective did not subpoena the phone records, defense counsel’s argument regarding the detective’s failure to subpoena the phone records would have been based on facts not in evidence, and clearly improper. See Merck v. State, 975 So.2d 1054, 1061 (Fla.2007) (“Closing argument is an opportunity for counsel to review the evidence and to explicate those inferences which may reasonably be drawn from the evidence.”); Goodrich v. State, 854 So.2d 663, 664 (Fla. 3d DCA 2003) (“Attorneys should be given great latitude in presenting their closing arguments, but they are required to confine their argument to the facts and evidence presented to the jury, and all logical deductions therefrom.”).

Accordingly, we conclude the trial court did not abuse its discretion in limiting defense counsel’s closing argument, and, therefore, we affirm the defendant’s convictions and sentences for first degree murder and attempted armed robbery.

Affirmed.


text:
    Fredric F. PICKETT, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3362.
    District Court of Appeal of Florida, Third District.
    March 6, 2013.

      Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before EMAS and LOGUE, JJ„ and SCHWARTZ, Senior Judge.
   EMAS, J.

Frederic Pickett appeals the trial court’s denial of his motion for new trial on the charge of witness tampering, contending that the jury was improperly instructed on a theory of the crime not charged in the information, and that this unpreserved error is fundamental, requiring a new trial. We affirm.

The evidence at trial established that on March 5, 2009, Pickett and Crystal Hawkins were arguing in Hawkins’ house. The argument escalated, and Hawkins attempted to leave her house. Pickett proceeded to punch Hawkins twice in the stomach. Hawkins had previously told Pickett that she was six weeks’ pregnant. These events formed the basis for the charge of aggravated battery on a pregnant victim.

Several days later, Pickett and Hawkins were involved in another argument. As the argument escalated, Hawkins tried to leave her house. Pickett aimed a gun at her face and demanded that she come back inside the house. Hawkins returned to the house and, after further argument and threats by Pickett, Hawkins left the house, picked up her children from a neighbor’s house and headed for the bus stop. Pickett followed Hawkins to the bus stop and called Hawkins on her cell phone after Hawkins got on the bus, telling Hawkins that he was coming after her. Hawkins then got off the bus and called the police. A police officer responded to the scene and, using Hawkins’s cell phone, called Pickett to hear his side of the story. According to the officer, Pickett became belligerent over the'phone. Hawkins stayed at a friend’s house that night and went to the police station the next day for further assistance. The police placed Hawkins and her children in a domestic violence shelter where they lived for three months. These events formed the basis for the charge of armed false imprisonment.

On April 7, 2009, Pickett called Hawkins, threatening that “if he found out that the police were looking for him, he was going to F me up. And if he found out he [was] getting prison time, he [was] going to send somebody to kill me.” This phone call formed the basis for the charge of tampering with a witness.

On April 15, 2009, Pickett was taken into custody, and was later charged in a five-count information. Relevant for our purposes, Pickett was charged in Count One with aggravated battery on a pregnant victim (a second-degree felony), in Count Four with armed false imprisonment (a second-degree felony), and in Count Five with tampering with a witness or victim in an investigation of a second-degree felony (thereby making Count Five a first-degree felony).

As to the tampering charge, the information read in pertinent part:

FREDRIC FREEMAN PICKETT, JR., on or about April 7, 2009, did unlawfully and knowingly threaten or attempt to threaten a victim, to-wit: CRYSTAL HAWKINS with the intent to cause or induce said person to withhold testimony, ... from an official investigation or official proceeding ... or hinder, delay, or prevent the communication to a law enforcement officer or judge of information relating to the commission or possible commission of an offense ... when said official investigation or official proceeding affected is the investigation or prosecution of a second degree felony, to wit: AGGRAVATED BATTERY ON A PREGNANT PERSON AND/OR ... FALSE IMPRISONMENT, in violation of s. 914.22(1) and s. 914.22(2)(c), Fla. Stat.

At trial, the following jury instruction was given:

Tampering with a victim. To prove the crime of tampering with the victim, the state must prove the following three elements beyond a reasonable doubt.
Then the third element is, he did so during an official investigation or prosecution for aggravated battery on a pregnant victim, and/or armed false imprisonment.

Pickett contends that the jury was improperly instructed that it could convict him of tampering with an armed, false imprisonment investigation (a second-degree felony), where the information alleged interference with a false imprisonment investigation (a third-degree felony). Although Pickett concedes that he expressly agreed to the giving of the above instruction, Pickett argues that the instruction constitutes fundamental error, and that such error necessitates a new trial on the tampering charge. We disagree.

Jury instructions are “subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred.” Reed v. State, 837 So.2d 366, 370 (Fla.2002) (quoting State v. Delva, 575 So.2d 643, 644 (Fla.1991)). “Fundamental error occurs when the omission or inclusion in the instruction is material to what the jury must consider in order to convict.” Delva, 575 So.2d at 645 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)). In the case at bar, however, Pickett did not simply fail to preserve this issue by failing to object, but expressly agreed to the instruction he now claims was erroneously given.

Even if an erroneous jury instruction constitutes fundamental error, this Court has held that the error is deemed waived if counsel requests, or affirmatively accepts, the erroneous jury instruction. Martinez v. State, 98 So.3d 1190 (Fla. 3d DCA 2012); Jimenez v. State, 994 So.2d 1141, 1142-43 (Fla. 3d DCA 2008); Falwell v. State, 88 So.3d 970 (Fla. 5th DCA 2012); Tindall v. State, 997 So.2d 1260, 1261 (Fla. 5th DCA 2009). During the charge conference, when the court explained that it added the word “armed” to the false imprisonment language of the tampering instruction, to determine the degree of the felony under investigation, defense counsel replied: “That’s fine.” In doing so, Pickett waived his right to raise this issue on appeal.

Even if no waiver had occurred by Pickett’s affirmative consent to the jury instruction, the giving of the instruction was not fundamentally erroneous. Pickett argues that including the word “armed” in the instruction, when the word “armed” was not expressly included in the tampering count of the information, permitted the jury to convict Pickett on an “alternative theory” not charged in the information, resulting in a denial of due process, and was thus was fundamental error. We do not agree.

The instruction did not permit the jury to convict the defendant on an alternative theory not charged in the information. To determine whether Pickett’s due process rights were denied, we focus our analysis first on whether the information wholly failed to charge a crime under the laws of the state. See Baker v. State, 4 So.3d 758 (Fla. 1st DCA 2009) (citing State v. Gray, 435 So.2d 816 (Fla.1983)). If the answer is “no,” whether the charging document failed to adequately place Pickett on notice of the nature of the tampering charge, such that he was unable to properly prepare a defense to the charge. Baker, 4 So.3d at 758. Even where a charging document omits an essential element, it may still be found sufficient if it “references a specific section of the criminal code which sufficiently details all the elements of the offense.” Id. at 761 (quoting DuBoise v. State, 520 So.2d 260, 265 (Fla.1988)).

The charge of tampering with a witness or victim is a “derivative offense,” in that the degree of the tampering offense is based upon, and increased one degree from, the underlying crime or crimes under investigation. Section 914.22(2), Florida Statutes (2010), provides the following penalties for tampering:

(2) Tampering with a witness, victim, or informant is a:
(a) Felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a misdemeanor.
(b) Felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a third degree felony.
(c) Felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a second degree felony.

Because the underlying investigation involved second-degree felonies, Pickett’s tampering charge constituted a first-degree felony. A review of the charging document reveals that the information properly charged a crime, and gave Pickett adequate notice of the nature and elements of the offense to permit him to defend the charge. This is made plain by a review of the three relevant counts:

Count One of the charging document alleged Pickett committed aggravated battery upon a pregnant victim and specifically cited section 784.045(l)(b), Florida Statutes (2009). In the caption on the first page of the information, Count One was titled “AGGRAVATED BATTERY-PREGNANT VICTIM 784.045(l)(b) Fel.2D.”

Count Four of the charging document alleged Pickett committed false imprisonment, and further alleged that “during the commission of the offense, said defendant possessed a firearm or destructive device and/or during the commission of such felony, said defendant carried, displayed, used, threatened, or attempted to use a weapon, to wit: A FIREARM, in violation of s. 787.02(2) and 775.087, Fla. Stat.” In the caption on the first page of the information, Count Four alleged “FALSE IMPRISONMENT/ARMED 787.02(2) & 775.087 FEL 2D.”

Count Five alleged Pickett committed tampering with a witness or victim in the “investigation or prosecution of a second degree felony, to wit: aggravated battery on a pregnant person and/or ... false imprisonment, in violation of s. 914.22(1) and 9U.22(2)(c).” (emphasis added). In the caption on the first page of the information, Count Five alleged “TAMPER/WIT/VIC/2D DEGREE FELONY S. 914.22(2)(c) FEL ID.”

The allegation that Pickett was armed in the course of committing false imprisonment was not an essential element of the crime of simple false imprisonment. Rather, the allegation that Pickett was armed in the course of committing false imprisonment could (if proven at trial) be used to reclassify his offense from a third-degree felony to a second-degree felony. This was made clear by the express allegations in Count Four as . described above, and the statutory references to the firearm reclassification statute, section 775.087. .We conclude that the charging document did not wholly fail to charge a tampering offense, nor did it omit an essential element of the crime charged, as the body of the information, together with the caption and the statutory references, properly alleged the offense of tampering.

Further, the allegations contained in the information placed Pickett on adequate notice of the nature of, and penalties for, the charge in Count Five (tampering), which derived from the underlying investigation into, and prosecution of, the aggravated battery and armed false imprisonment charges contained in the other counts of the information.

Had Pickett believed that the information failed to properly charge a crime, or otherwise failed to provide adequate notice of the crime charged or possible penalties, the Rules of Criminal Procedure provided him with two pretrial remedies: a motion for statement of particulars under rule 3.140(n), or a motion to dismiss under rule 8.190(c). The former rule provides:

The court, on motion, shall order the prosecuting attorney to furnish a statement of particulars when the indictment or information on which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable the defendant to prepare a defense. The statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney.

Fla. R. Crim. P. 3.140(n). There is nothing in the record to indicate that Pickett sought a statement of particulars. Nor is there anything in the record indicating that Pickett moved to dismiss the information before trial, based upon the now-asserted defects. Had he done so, Rule 3.140(o) would have guided the trial court’s determination of whether dismissal was appropriate:

No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of mis-joinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Pickett has failed to establish that the information wholly failed to charge a crime or was impermissibly vague, indistinct and indefinite. Indeed, Pickett has not, and cannot, establish any prejudice from the language of the charging document. It is clear that the caption and body of the information contained:

all the elements of the offense pleaded in terms sufficient enough to apprise the accused of what he must be prepared to meet, and ... pleaded in such a manner as to enable the defendant to plead prior jeopardy as a defense if additional charges are brought for the same offense.

Battle v. State, 365 So.2d 1035, 1037 (Fla. 3d DCA 1978).

Affirmed.

      .' Pickett was also charged with possession of a firearm by a convicted felon and aggravated assault with a firearm. Pickett was acquitted of the aggravated assault charge. The charge of possession of a firearm by a convicted felon was bifurcated from the trial on the other charges and was later nolle prossed by the State.

      . As discussed infra, the degree of the underlying offense being investigated or prosecuted determines the degree of (and thus the maximum sentence for) the offense of witness tampering.

      . For this reason, the cases cited by Pickett in support of his "alternative theory" argument are inapposite. See, e.g., Jomolla v. State, 990 So.2d 1234 (Fla. 3d DCA 2008); Brown v. State, 41 So.3d 259 (Fla. 4th DCA 2010); Calloway v. State, 37 So.3d 891 (Fla. 1st DCA 2010).

      . Section 787.02 provides in relevant part:
      (1)(a) The term "false imprisonment” means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.
      (2) A person who commits the offense of false imprisonment is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Section 775.087 provides in relevant part:
      (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows:
      (a)In the case of a felony of the first degree, to a life felony.
      (b) In the case of a felony of the second degree, to a felony of the first degree.
      (c) In the case of a felony of the third degree, to a felony of the second degree.

      . Section 914.22(1) defines the crime of tampering; section 914.22(2)(c) specifically provides that the tampering offense is a "[f]elony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, where the official investigation or official proceeding affected involves the investigation or prosecution of a second degree felony.”

      . If it were an "essential element" of the crime, the firearm reclassification statute could not be applied. See § 775.087(1), Fla. Stat. (2010) (a felony may be reclassified "whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm ...”) (emphasis added).


author: PER CURIAM.

text:
    Angel R. RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-6002.
    District Court of Appeal of Florida, First District.
    March 8, 2013.
    Angel R. Rivera, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, Florida Department of Corrections, Tallahassee (no appearance), for Appellee.
   PER CURIAM.

Appellant has sought review of an Order Denying Motion to Remove Lien. Review of such an order would ordinarily be called up for review in an appeal from the final order entered concluding the action below. Mathews v. Risk Management, 16 So.3d 230 (Fla. 1st DCA 2009). Here, however, no final order has yet been entered. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995) (dismissing appeal as premature where order granted motion to dismiss without dismissing action). Thus, the appeal is premature and must be dismissed. The dismissal is without prejudice to appellant’s right to seek review upon the rendition of a final order disposing of the petition for writ of mandamus.

BENTON, C.J., WOLF and SWANSON, JJ., concur.


text:
    Dominique HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4457.
    District Court of Appeal of Florida, First District.
    March 8, 2013.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the judgment and sentence but remand for the trial court to correct the judgment to reflect a conviction for home-invasion robbery pursuant to section 812.135(2)(a), Florida Statutes (2009). See Clark v. State, 85 So.3d 1190, 1190 (Fla. 1st DCA 2012) (affirming Anders appeal but remanding for correction of scrivener’s error).

AFFIRMED and REMANDED.

PADOVANO, ROBERTS, and CLARK, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Francis W. PAYNE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0680.
    District Court of Appeal of Florida, First District.
    March 8, 2013.
    Francis W. Payne, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Tawan WASHINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0394.
    District Court of Appeal of Florida, First District.
    March 8, 2013.
    Tawan Washington, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Henry SANTIAGO, Petitioner, v. Timothy P. RYAN, et. al., Respondents.
    No. 3D13-420.
    District Court of Appeal of Florida, Third District.
    March 11, 2013.

      Carlos J. Martinez, Public Defender, and John Eddy Morrison, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for respondents.
    Before SHEPHERD and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Santiago seeks habeas corpus relief from an order revoking his pretrial release and detaining him without bond entered pursuant to section 903.0471, Florida Statutes (2000):

Notwithstanding s. 907.041, a court may, on its own motion, revoke pretrial release and order pretrial detention if the court finds probable cause to believe that the defendant committed a new crime while on pretrial release.

(Emphasis added). The legal issue presented by the undisputed facts is whether the statute applies when the defendant commits new felonies from jail during the period between the setting of bond for previous offenses and his release. The defendant argues that the provision is inapplicable because he was not literally “on pretrial release” at the time. The trial court disagreed and so do we.

On December 25, 2012, Santiago was arrested and charged with, inter alia, aggravated stalking of his ex-wife. While being processed at the station, he was served with a temporary domestic violence injunction precluding him from unwel-comed contact with her. The next day, he was brought to a first appearance hearing on the aggravated stalking and accompanying charges at which the court set bond and entered a stay away order that also prohibited contact with the victim. See § 903.047, Fla. Stat. (2006) (“(1) As a condition of pretrial release, whether such release is by surety bail bond or recognizance bond or in some other form, the defendant shall ... (b) Refrain from any contact of any type with the victim, except through pretrial discovery pursuant to the Florida Rules of Criminal Procedure.”).

While still in jail that day, however, Santiago made threatening phone calls to his ex-wife. Later the same day, he was arrested on a new case based on those calls, charging him with aggravated stalking, witness tampering, and violation of a temporary restraining order. On the following day, Santiago went to a first appearance hearing on the new charges. The judge set a separate bond for aggravated stalking and witness tampering charges, and released him on his own recognizance on the remaining offenses. Thereafter, Santiago posted bonds simultaneously on both his first and second cases, and was released.

On January 24, 2013, Santiago appeared before the trial court for his arraignment on the first case. The trial court sua sponte revoked Santiago’s bond on that first case and, in the ruling ordered he be held without bond, based upon a determination of probable cause that he violated the conditions of his pretrial release by committing new crimes.

As we have indicated, Santiago’s position is entirely based on his claim that the alleged new crime was not committed “while on pretrial release,” and thus, that section 908.0471 does not apply. Analogizing this case to Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971); Williamson v. State, 388 So.2d 1345 (Fla. 3d DCA 1980); Stafford v. State, 455 So.2d 385 (Fla.1984); Russell v. State, 487 So.2d 366 (Fla. 2d DCA 1986) and Hart v. State, 364 So.2d 544 (Fla. 4th DCA 1978), we reject that claim and hold that the provision does apply when the defendant commits a new crime — here, by way of making threatening phone calls from jail — after the bond on his first case has been set but before he is released on the bond.

In Martin, the defendant was sentenced to jail time followed by a term of probation that would commence upon his release from jail. While Martin was serving his jail sentence he committed additional crimes resulting in further criminal charges being filed against him. The trial court revoked Martin’s probation and sentenced him to prison. He claimed error on appeal on the ground that his probation could not be revoked because it had not yet begun. The Fourth District affirmed and stated “the court’s action in revoking probation and imposing sentence on appellant was not error.” Id. at 190. While acknowledging that “technically, appellant could not have violated the terms of a probation order which had not yet taken effect at the time of the alleged violations,” the court held that it could “revoke an order of probation, the term of which has not yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation.” Id. at 190-91.

Likewise, in Williamson, 388 So.2d 1345, the appellant’s main contention was that his probation, which was to follow the conclusion of his one-year jail sentence, was improperly revoked because his failure to surrender for the service of his jail term was not technically in violation of any of the stated conditions of the order of probation. This Court agreed with the factual premises of the appellant’s argument but not with his conclusion, finding that it could lead to paradoxical results:

Since Williamson’s probationary term, which was to follow his year in jail, had not yet begun, he could not have been in violation of any of its express terms prior to that time — even if he had committed a first degree murder while at liberty.

Id. at 1347. Affirming the revocation of probation and resentencing, this Court found the following language of Martin to be controlling:

“The question here is whether a defendant probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence. We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society.
Again to draw upon the language of the Martin opinion, it would be a mockery to permit Williamson to claim his continued entitlement to future probation after he deliberately and knowingly violated the trust reposed in him upon the granting of his own request for a reciprocal benefit.
We will not approve such a result.”

Williamson, 388 So.2d at 1347-48 (quoting Martin, 243 So.2d at 190-91).

Similarly, in the case at bar, we think that the claim that a defendant is free to commit new crimes without endangering a previous order of pretrial release merely because he had not yet complied with the conditions requires an unsupportable anomaly in the statute, which, as in Williamson, we will not approve. See State v. Hackley, 95 So.3d 92, 95 (Fla.2012); State v. Burris, 875 So.2d 408, 414 (Fla.2004); Maddox v. State, 923 So.2d 442, 448 (Fla.2006).

In essence, the issue is one of statutory interpretation which, of course, is based entirely upon a correct reading of legislative intent. The very purpose of enacting section 903.0471 was to reinstate the common and well justified practice of, in effect, granting a defendant only one shot at pretrial release and, as it were, automatically revoking it when he has violated its most basic term by committing another offense thereafter. By doing so, the legislature overruled Paul v. Jenne, 728 So.2d 1167 (Fla. 4th DCA 1999), rev. granted, 741 So.2d 1137 (Fla.1999), which held that this could not lawfully be done. See also Parker v. State, 780 So.2d 210 (Fla. 4th DCA 2001), rev. granted, 800 So.2d 615 (Fla.2001). It is inconceivable, that the legislature would contemplate that the policy of “two strikes and you’re in” would not take effect merely because the defendant did not even have the goodness to be released from jail before he violated his first bond. See State v. Martinez, 103 So.3d 1013 (Fla. 3d DCA 2012).

Habeas corpus denied.