author: VILLANTI, Judge.

text:
    Charles Lyn CHERINGTON, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-990.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2009.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Charles Lyn Cherington, Sr., appeals the order revoking his probation and the sentence imposed upon revocation. We affirm the revocation of Cherington’s probation but remand for the court to strike the finding that he violated condition (4) of his probation. We also reverse Chering-ton’s sentence and remand for him to be resentenced using a corrected scoresheet.

In February 2006, Cherington pleaded no contest to one count of aggravated assault with a deadly weapon and one count of violating a domestic violence injunction. He was sentenced to thirty-six months’ drug offender probation.

On October 22, 2008, the Department of Corrections filed an affidavit of violation of probation alleging that Cherington had violated three conditions of his probation: condition (3) by changing his residence without consent; condition (4) by visiting places where drugs were unlawfully sold, dispensed, or used; and condition (8) by violating the law. Following an evidentia-ry hearing, the trial court found that Cher-ington had violated all three conditions of his probation. It then revoked his probation and sentenced him to thirty months in prison on the underlying aggravated assault conviction and to time served on the underlying domestic violence injunction conviction. Cherington now seeks review of both the revocation of his probation and the resulting sentence.

As to the revocation of his probation, Cherington does not dispute that the State presented sufficient evidence to establish that he violated conditions (3) and (8) of his probation. However, he contends that the State failed to fully prove the violation of condition (4) as it was alleged in the affidavit. We agree.

Condition (4) of Cherington’s probation order provides:

You will not use intoxicants to excess or possess any illegal drugs or narcotics unless prescribed by a physician. You will not visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.

Thus, there are three separate conditions in this provision: (1) that Cherington will not use intoxicants to excess; (2) that Cherington will not possess illegal drugs; and (8) that Cherington will not visit places where drugs are unlawfully sold, dispensed, or used.

The affidavit of violation of probation filed against Cherington alleged as follows concerning condition (4):

Violation of Condition Four (4) of the orders of Drug Offender Probation, by visiting places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed or used; and as grounds for belief that the offender violated his probation, Officer Garzillo states that on or about October 11, 2008 at approximately 2:00 A.M., the offender did visit an associate’s house in Zephyr-hills where he purchased $40.00 worth of crack cocaine from “TJ” and smoked his $40.00 plus some of “TJ’s”. The subject provided this Officer with hand written and verbal admission.

Thus, the allegations of the affidavit clearly alleged a violation of only the third provision of condition (4) and not a violation of the first two provisions of condition (4).

At the revocation hearing, however, the State presented no evidence that Chering-ton visited any “associate’s” house, that he purchased cocaine from TJ or anyone else, or that he smoked either his or TJ’s cocaine on October 11, 2008. Instead, it presented only evidence that Cherington had possessed cocaine on some undetermined date through Cherington’s own admission to his probation officer that he had smoked cocaine with a friend. However, that admission, without more, did not fairly meet the conduct as charged in the violation of condition (4). Nevertheless, the trial court found without equivocation that the State had proved that Cherington violated condition (4) of his probation.

“[A] trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation.” Parminter v. State, 762 So.2d 966, 967 (Fla. 2d DCA 2000); see also Butler v. State, 450 So.2d 1283, 1285 (Fla. 2d DCA 1984); Perkins v. State, 842 So.2d 275, 277 (Fla. 1st DCA 2003). To revoke probation based on conduct not charged in the affidavit constitutes a deprivation of the defendant’s right to due process of law. See Perkins, 842 So.2d at 277. A revocation based on uncharged conduct generally requires reversal.

For example, in Harrington v. State, 570 So.2d 1140 (Fla. 4th DCA 1990), the affidavit of violation alleged that Harrington had violated condition (6) of her probation by

using intoxicants; to wit; cocaine to excess and visiting places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed or used, and as grounds for belief that she violated her probation, affiant states the aforesaid tested positive for cocaine in a test completed by the Department of Corrections on August 4, 1989 and confirmed by Wuesthoff Memorial Hospital Lab.

Id. at 1141. However, at Harrington’s violation of probation hearing, the State did not present any evidence that Harrington had used cocaine. Id. at 1142. Instead, the only evidence presented was that Harrington admitted to smoking marijuana. Id. Further, while the State presented evidence that Harrington’s live-in boyfriend used cocaine, the State did not present evidence that Harrington ever visited a place where cocaine was used or that her boyfriend had used cocaine in the residence they shared. Id. Because the only evidence supporting the violation of this condition was Harrington’s admission to smoking marijuana, which was not the conduct charged in the affidavit, the Fourth District held that the trial court had improperly revoked Harrington’s probation, and it reversed the order of revocation and remanded for reinstatement of her probation. Id. at 1142-43.

Similarly here, the affidavit alleged that Cherington violated condition (4) by visiting an “associate’s” house in Zephyrhills on October 11, 2008, where Cherington allegedly purchased and smoked $40 of cocaine. However, the State presented no evidence to support this allegation. It did present evidence that Cherington had admitted to possessing and using cocaine on some undetermined date, but this was not the conduct explicitly charged in the affidavit concerning condition (4). Accordingly, because the State did not prove its allegations concerning the violation of condition (4), the trial court erred in finding that Cherington had violated this condition of his probation.

Despite this error, however, we need not reverse the order of revocation. After hearing the evidence against Cher-ington, the trial court stated on the record that while it would not have revoked probation based solely on the violation of condition (3), given the violation of conditions (4) and (8), it would revoke the probation. It is clear from this statement that even if the violation of condition (4) was not found, the trial court would have revoked Cher-ington’s probation based on the violation of conditions (3) and (8). Accordingly, because it is apparent from the record that the trial court would have revoked Cher-ington’s probation even in the absence of the violation of condition (4), we affirm the order of revocation but remand with instructions to strike the references to condition (4) in that order.

In addition to his challenge to the revocation order itself, Cherington also argues that the trial court erred in sentencing him because the scoresheet used at the revocation hearing contained an error. Again we agree.

The scoresheet used at Cherington’s sentencing upon revocation included twelve points for a “community sanction violation,” which resulted in a lowest permissible sentence of 15.75 months in prison. At the hearing, Cherington objected to the inclusion of these twelve points, arguing that only six points should be scored for the community sanction violation, which would result in the lowest permissible sentence being any nonstate prison sanction. The trial court overruled Cherington’s objection and sentenced him based on the inclusion of twelve points for the “community sanction violation.” This was error.

The applicable sentencing scoresheet statute provides, in pertinent part:

Community sanction violation points are assessed when a community sanction violation is before the court for sentencing. Six (6) sentence points are assessed for each community sanction violation and each successive community sanction violation, unless any of the following apply:
1. If the community sanction violation includes a new felony conviction before the sentencing court, twelve (12) community sanction violation points are assessed for the violation, and for each successive community sanction violation involving a new felony conviction.
2. If the community sanction violation is committed by a violent felony offender of special concern as defined in s. 918.06:
a. Twelve (12) community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where:
(I) The violation does not include a new felony conviction; and
(II) The community sanction violation is not based solely on the probationer or offender’s failure to pay costs or fines or make restitution payments.
b. Twenty-four (24) community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where the violation includes a new felony conviction.

§ 921.0024(l)(b), Fla. Stat. (2008) (emphasis added). A “violent felony offender of special concern” is defined as follows:

(b) For purposes of this section and ss. 903.0351, 948.064, and 921.0024, the term “violent felony offender of special concern” means a person who is on:
1. Felony probation or community control related to the commission of a qualifying offense committed on or after the effective date of this act;
2. Felony probation or community control for any offense committed on or after the effective date of this act, and has previously been convicted of a qualifying offense;
3. Felony probation or community control for any offense committed on or after the effective date of this act, and is found to have violated that probation or community control by committing a qualifying offense;
4. Felony probation or community control and has previously been found by a court to be a habitual violent felony offender as defined in s. 775.084(l)(b) and has committed a qualifying offense on or after the effective date of this act;
5. Felony probation or community control and has previously been found by a court to be a three-time violent felony offender as defined in s. 775.084(l)(c) and has committed a qualifying offense on or after the effective date of this act; or
6. Felony probation or community control and has previously been found by a court to be a sexual predator under s. 775.21 and has committed a qualifying offense on or after the effective date of this act.
(c) For purposes of this section, the term “qualifying offense” means any of the following:
14. Aggravated assault under s. 784.021.

§ 948.06(8)(b), (c), Fla. Stat. (2008) (emphasis added). Pursuant to these statutory provisions, Cherington’s scoresheet should have included six points for a community sanction violation unless he had a new felony conviction at the time of sentencing or qualified as a “violent felony offender of special concern” as defined.

The undisputed facts here show that Cherington did not have a new felony conviction when he was before the court for sentencing on the violation of probation. Further, Cherington did not qualify as a “violent felony offender of special concern.” While Cherington’s underlying conviction was for aggravated assault, which is a qualifying offense under the statute, that underlying offense occurred in 2005, before the effective date of the amended section 948.06(8) on October 1, 2007. Thus, under the plain language of the statute, that offense could not be used to qualify Cherington as a “violent felony offender of special concern” for purposes of the sentencing scoresheet. Accordingly, the State incorrectly scored twelve points for the community sanction violation, and the scoresheet used at Cherington’s sentencing was erroneous.

Moreover, on this record, we cannot say that the scoresheet error was harmless. On direct appeal, the question of whether a scoresheet error is harmless is answered by determining whether the same sentence would have been imposed under a corrected scoresheet. State v. Anderson, 905 So.2d 111, 112 (Fla.2005); see also Brooks v. State, 969 So.2d 238, 241 (Fla.2007) (reaffirming that the “would have been imposed” standard applies to scoresheet errors on direct appeal). Under the “would have been imposed” standard, a sentence based on an erroneous scoresheet must be reversed unless “the appellate court is clearly convinced that the defendant would have received the same sentence notwithstanding the score-sheet error.” Anderson, 905 So.2d at 114 (quoting Sellers v. State, 578 So.2d 339, 341 (Fla. 1st DCA 1991)). Generally, when a defendant is sentenced to state prison and “[t]he presumptive sentence under a corrected scoresheet will not involve a state prison sanction, ... it cannot be said that the same sentence would have been imposed absent the error.... ” Williams v. State, 720 So.2d 590, 591 (Fla. 2d DCA 1998); see also Ray v. State, 987 So.2d 155, 156 (Fla. 1st DCA 2008) (holding that when the trial court sentenced the defendant to prison under the belief that the lowest permissible sentence was a prison term but the lowest permissible sentence under a corrected scoresheet would be a nonprison sanction, the court could not say that the same sentence would have been imposed had the trial court had the correct information).

Here, the trial court erroneously believed that the twelve points scored for the community sanction violation were proper, and thus it erroneously believed that the lowest permissible sentence was 15.75 months in prison. However, using a corrected scoresheet that included only six points for the community sanction violation, the lowest permissible sentence would be any nonstate prison sanction. Thus, on this record, we cannot say that the trial court would have imposed the same sentence had it had the benefit of a correct scoresheet. Therefore, we reverse Cher-ington’s sentence and remand for resen-tencing using a corrected scoresheet.

Revocation affirmed, sentence reversed, and remanded with instructions.

FULMER and NORTHCUTT, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Syehean BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-176.
    District Court of Appeal of Florida, Fifth District.
    Dec. 15, 2009.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Giuliano v. State, 46 So.2d 182 (Fla.1950).

MONACO, C.J, TORPY and COHEN, JJ., concur.


text:
    David H. CHARLIP, Appellant, v. Melvin D. RIFF, Appellee.
    No. 3D09-1128.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 2009.
    Rehearing Denied Jan. 15, 2010.
    David H. Charlip, Hollywood, for appellant.
    George M. Nachwalter, Miami, for ap-pellee.
    Before COPE, GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Afrazeh v. Miami Elevator Co. of America, 769 So.2d 399, 401 (Fla. 3d DCA 2000).


author: COPE, J.

text:
    Maria C. ROTHERMEL, Appellant, v. BXL ASSOCIATES, Frederick M. Nerlinger, Delores R. Nerlinger and Bexhill, Ltd., Appellees.
    Nos. 3D08-1690, 3D09-573.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 2009.
    Houlihan & Partners and Gerald J. Houlihan, Miami, for appellant.
    Do Campo & Thornton and John Thornton, Miami, for appellees.
    Before COPE, ROTHENBERG, and LAGOA, JJ.
   On Motion for Remand

COPE, J.

This matter is before us on a motion for remand filed by plaintiffs-appellees BXL Associates, Frederick M. Nerlinger, Delores R. Nerlinger and Bexhill, Ltd. We treat the motion for remand as a confession of error.

Plaintiffs sued defendant-appellants Maria Cecilia Rothermel, and Rolf H. Rother-mel. The amended complaint asserted multiple counts in contract and tort which allege, in substance, misappropriation of funds. On May 29, 2008, the trial court entered a partial summary judgment against Maria C. Rothermel for $1,484,735, which represented a treble damage award for count 6, civil remedies for criminal practices. The partial summary judgment included the words of finality, “for which sum let execution issue forthwith.” On February 4, 2009, the trial court entered another treble damage partial summary judgment against Ms. Rothermel for $2,745,000. This partial summary judgment also contained the phrase, “for which sum let execution issue forthwith.” The trial court retained jurisdiction over the remaining counts against Ms. Rothermel, which are factually interwoven with count six.

Ms. Rothermel appealed both partial summary judgments and the appeals have been consolidated. The plaintiffs moved to dismiss the appeal, arguing that as a matter of law, a partial summary judgment is not appealable where, as here, the counts remaining in the trial court are interwoven with the count on which partial summary judgment was entered. This court denied the motion with respect to Maria C. Roth-ermel because the partial summary judgments contained the words of finality “for which sum let execution issue forthwith.” See McGurn v. Scott, 596 So.2d 1042, 1045 (Fla.1992); Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315, 319 (Fla. 3d DCA 1987).

Plaintiffs’ counsel then filed a motion for remand, requesting that this court return this matter to the trial court so that the partial summary judgments could be “modified by the trial court to remove the unnecessary ‘for which sum let execution issue forthwith’ language.” The plaintiffs acknowledge that the partial summary judgments did not fully adjudicate any of the causes of action against Maria C. Roth-ermel.

We treat the motion for remand as a confession of error. The plaintiffs acknowledge that the phrase “for which sum let execution issue forthwith” should not have been included in the partial summary judgments.

We therefore reverse the partial summary judgments now before us and remand with directions to the trial court to strike the phrase “for which sum let execution issue forthwith.” With that modification, the partial summary judgments have the status of an interlocutory order granting summary judgments. We do not reach the merits of any of Ms. Rothermel’s arguments raised in this appeal. Those arguments may be raised on appeal at such time as an appealable order is entered in the future.

Reversed and remanded for further proceedings consistent herewith.

      . The appeal was previously dismissed as to Rolf H. Rothermel, against whom no appeal-áble order was entered.

      . The trial court reserved ruling over count six with respect to codefendant Rolf H. Roth-ermel.

      .As stated in footnotes 1 and 2, Rolf H. Rothermel also appealed. This court dismissed his appeal as taken from a non-appeal-able order. See Northcutt v. Pathway Financial, 555 So.2d 368, 369 (Fla. 3d DCA 1989) ("That portion of the partial summary judgment which strikes the affirmative defenses is a non-final, non-appealable order.”).


author: DAMOORGIAN, J.

text:
    STRAX REJUVENATION AND AESTHETICS INSTITUTE, INC., Appellant, v. Donna SHIELD and Roger L. Gordon, M.D., Appellees.
    No. 4D09-3587.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2009.
    Monica L. Pierce of Chimpoulis & Hunter, P.A., Davie, for appellant.
    Susan S. Lerner of Josephs Jack, Miami, for appellee, Donna Shield.
   DAMOORGIAN, J.

This case is before us on an appeal of a non-final order denying Strax Rejuvenation and Aesthetics Institute, Inc.’s (Strax) Motion to Dismiss and Compel Arbitration. We issued an order to show cause as to why the appeal should not be dismissed because, from the face of the notice, the appeal appeared untimely. See Ruffin v. Kingswood E. Condo. Ass’n, 719 So.2d 951, 952 (Fla. 4th DCA 1998). Specifically, the Broward County Clerk of Court’s time stamp on the notice of appeal shows a date of August 21, 2009, which is one day past the thirty-day time limit for invoking the jurisdiction of this court. See Fla. R.App. P. 9.110(b).

Strax responded to the show cause order by filing a Response and a Motion to Deem Notice of Non-Final Appeal Timely Filed. The response and motion were accompanied by two affidavits, one from Strax’s counsel and one from the owner of the courier service that delivered the notice to the courthouse for filing with the clerk of the circuit court. In her affidavit, Strax’s counsel states that, on August 18, 2009, she prepared the notice of appeal and placed it in her firm’s “Broward County” filing box so that the notice would be picked up by a courier service and filed in the Broward County courthouse on August 19, 2009. The owner of the courier service states in his affidavit that he regularly picks up documents at Strax’s counsel’s law office that are destined for filing at the Broward County courthouse before 2:00 p.m. each day. Documents picked up before 2:00 p.m. are delivered to the courthouse and filed on the same day. Finally, the courier states that, on August 19, 2009, he went to the law firm, picked up the notice of appeal, and delivered it to the Broward County Clerk of Courts on that same day. The clerk’s time stamp on the notice, however, shows that the notice was filed on August 21, 2009.

With no citation to authority, Strax argues that we should take jurisdiction of this appeal because “[tjhere is no reason that the Notice of Non-Final Appeal on behalf of [Strax] would not have been filed on August 19, 2009, the same day it was delivered to the Clerk of the Court by the courier service.” We presume that Strax meant to say that the clerk’s time stamp creates a rebuttable presumption that may be overcome by sworn testimony to the contrary. Citing our decision in Harrell v. Harrell, 879 So.2d 87, 88 (Fla. 4th DCA 2004), the appellee, Donna Shield, responds that as a matter of law the clerk’s time stamp is conclusive and, therefore, the appeal is untimely.

Although not cited by either party, Florida Rule of Civil Procedure 1.080(e) states in pertinent part that “[t]he date of filing is that shown on the face of the paper by ... the clerk’s time stamp.” This language was added to the rule in 1984. See In re Amendments to Rules of Civil Procedure, 458 So.2d 245, 247 (Fla.1984). At first glance, we take the plain and unambiguous language in the rule to mean that the date upon which the jurisdictional time clock begins to tick is that date reflected in the clerk’s time stamp. However, our understanding of the meaning of the rule does not resolve whether the Florida Supreme Court intended to establish a bright line rule to resolve the uncertainty surrounding the accuracy of the clerk’s time stamp.

Prior to the rule’s amendment, it appears that at least two courts permitted a party to rebut the presumption that the clerk’s time stamp reflects the actual date a paper was filed with the clerk of the trial court. In Knee v. Smith, 313 So.2d 117, 118 (Fla. 1st DCA 1975), the First District Court of Appeal accepted jurisdiction of an appeal of an order granting summary judgment despite the fact that the notice of appeal bore a clerk’s time stamp date that made the filing of the notice one day in excess of the jurisdictional thirty-day period. In accepting jurisdiction, the court noted that, “it appears from the affidavits submitted to this Court that the Clerk’s office actually received the notice of appeal within the 30 day jurisdictional period.” Id. at 118. Curiously, the court accepted jurisdiction based solely on the affidavits, rather than remanding the case to the trial court to resolve what appears to be disputed issues of fact.

Knee was followed by two cases from the Third District Court of Appeal, in which the court accepted jurisdiction of an appeal despite the clerk’s time stamp bearing a date that would result in the appeal being untimely. In Pettigrew & Bailey v. Pickle, 429 So.2d 340 (Fla. 3d DCA 1983), the court determined that it had jurisdiction of an appeal after holding that the trial court did not err in amending the filing date of the notice of appeal. Id. at 343. There, the trial court took evidence concerning the accuracy of the clerk’s time stamp. Relying upon the trial court’s determination pursuant to its authority to correct clerical mistakes in parts of the record, the court concluded that the notice of appeal was timely. Id,.; see also Fla. R. Civ. P. 1.540(a). In reaching its conclusion the court explained that:

We have not overlooked the contention that the trial court erred in amending the filing date of the notice of appeal and that the appeal was therefore untimely. Upon due consideration, we find no merit in appellees’ argument. Before correcting the notice to reflect the actual filing date, the trial court weighed the evidence concerning the accuracy of the court clerk’s date stamp and considered affidavits averring that the notice and check were delivered within the applicable filing period. A clerical error may be corrected by the court.

Pickle, 429 So.2d. at 343 (citations omitted).

Following its holding in Pickle, and after rule 1.080(e) was amended, the Third District in Weintraub v. Alter, 482 So.2d 454 (Fla. 3d DCA 1986), held that:

A notice of appeal is generally deemed filed on the date it is actually filed with the clerk of the trial court. This date is presumptively shown by the filing date which the clerk of the trial court stamps on the face of the notice — although this is not a conclusive showing and may be rebutted by other evidence.

Id. at 457 (emphasis added).

We now turn to our decision in Harrell, which Shield argues resolves the issue now before us. In Harrell, the appellant mailed her notice of appeal with the intent to have the notice delivered to the circuit court within the time limit for filing her appeal. 879 So.2d at 87. We held that “a notice of appeal must be filed with the appropriate court within the required time, and merely mailing the notice or having the notice placed in a post office box within the required time period is not sufficient.” Id. at 88. Unlike the instant case, in Harrell there was no dispute that the clerk’s time stamp was accurate.

Shield also relies on Capone v. Florida Board of Regents, 774 So.2d 825, 826 (Fla. 4th DCA 2000). The issue in Capone was whether the court’s policy of accepting papers filed with the clerk by 9:00 a.m. as having been actually filed the previous day, can extend the jurisdictional time limits for the filing of petitions for certiorari and original writs. Id. Holding that the appeal was untimely, this court concluded that its local rules and practices cannot usurp the constitutional power of the supreme court’s authority to establish the time limit within which appellate review must be sought. Id. at 827 (citing Congregation Temple De Hirsch of Seattle, Wash, v. Aronson, 128 So.2d 585, 586 (Fla.1961)). Shield’s reliance on Capone and Harrell is misplaced because neither case resolves whether rule 1.080(e) creates a rebuttable presumption or a bright line rule.

The clear and concise language of the 1984 amendment to rule 1.080(e) compels us to conclude that the supreme court intended to establish a bright line test. To be sure, interpreting rule 1.080(e) in a bright line fashion obviates the need to engage in any fact finding beyond the information stamped on the notice of appeal. Finite rules make sense. They are easy to follow, easier to apply, and remove doubt. And, while we are cognizant of the fact that it is within the realm of possibility that the clerk’s date stamp machine may, from time to time, produce an incorrect date, prudent attorneys and clerks always have the option of paying closer attention to such details before the jurisdictional time limit expires.

Accordingly, we hold that, pursuant to rule 1.080(e), the clerk’s date stamp is dispositive on the issue of the date of filing a paper with the trial court. In this case, the clerk’s date stamp establishes that the notice of appeal was filed after the expiration of the jurisdictional time limit to file an appeal. Therefore, the motion to dismiss is granted and this appeal is dismissed. In so doing, we certify conflict with the Third District’s opinion in Wein-traub.

Dismissed.

TAYLOR and HAZOURI, JJ., concur.

      . Strax did not seek to have the trial court correct the record.


text:
    Philip BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2663.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 2009.
    Rehearing Denied Jan. 26, 2010.
    Philip Butler, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Helton v. State, 947 So.2d 495 (Fla. 3d DCA 2006).


author: EVANDER, J.

text:
    F.L.C., Father of J.L.C. and J.L.C., Children, Appellant, v. G.C. and N.C., Stepfather and Mother, etc., Appellees.
    No. 5D08-4231.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2009.

      Brenda H. Smith, Umatilla, for Appellant.
    Brian J. Welke, Eustis, for Appellee.
   EVANDER, J.

The father appeals from a final judgment terminating his parental rights. He contends that the evidence was insufficient to establish abandonment and that the termination of his parental rights was not the least restrictive means to protect the children. We disagree and, accordingly, affirm the final judgment.

In December 2007, the mother and stepfather filed their Joint Petition for Adoption by Step-Parents seeking, inter alia, to terminate the father’s parental rights to twin boys born in March 1997. The petition alleged that the father had abandoned the children. The adjudicatory hearing was held on October 13, 2008.

Abandonment may be found where there is clear and convincing evidence that the efforts of a parent to support and communicate with the child are “only marginal efforts that do not evince a settled purpose to assume all parental duties.” § 63.032(1), Fla. Stat. (2008); see also M.A.F. v. E.J.S., 917 So.2d 236 (Fla. 5th DCA 2005). Here, the trial court’s determination that the father had abandoned the children was amply supported by the record. The evidence supported the trial court’s findings that the father 1) had no meaningful relationship with the children, 2) had made less than marginal efforts to communicate with his sons, and 3) had failed to provide adequate support.

The lack of a meaningful relationship between the father and his sons was caused, in part, by the father’s criminal propensities. The evidence established that because of his commission of various felonies, the father had been incarcerated for over half of the children’s lives. Specifically, the father was incarcerated from August 27, 1998 through May 2, 1999; from October 1, 1999 through July 26, 2005; and from July 3, 2008 through the date of the hearing. Furthermore, the father’s anticipated release date from his current incarcerative sentence is October 21, 2012. Thus, by the time of his anticipated release date (when the boys are 15½ years old), the father would have been incarcerated for approximately two-thirds of the children’s lives. Indeed, the children’s counselor testified that the boys’ primary memories of their father were from visiting him in jail or prison. The boys did not want to recommence these visits and the father, himself, acknowledged that he knew very little about his sons.

The evidence also supported the trial court’s finding that the father’s efforts to communicate with his children were less than marginal. The father had only two face-to-face contacts and one telephone conversation with the children subsequent to his release from prison in July 2005. In the preceding five years, the father had been visited by the boys in prison on seven or eight occasions. Prior to that time, the father’s contacts with his children were sporadic, at best.

The father’s lack of financial support for the children also supported the trial court’s finding of abandonment. The father provided no financial support for the first 8⅜ years of the children’s lives. After being ordered to make child support payments on December 13, 2005, the father made only sporadic payments, although employed for much of the ensuing thirty-month period of time. Since January 1, 2006, his child support payments were in arrears in excess of $9,000.

The undisputed evidence also reflected that the stepfather had been meeting the boys’ emotional and financial needs and established a significant father/son relationship with them. Given the relationship between the stepfather and the children, the stepfather’s desire to adopt the boys, and the court’s finding that the father had abandoned the children, it is clear that termination of the father’s parental rights was in the children’s best interest.

We also reject the father’s contention that reversal is required because the trial court failed to make a specific finding in its written order that termination of parental rights was the least restrictive means to protect the children. This court has previously held that because involuntary termination of parental rights proceedings under Chapter 63 involves state infringement upon a fundamental right, the least restrictive means test should apply to Chapter 63 involuntary termination proceedings in the same manner as applied to Chapter 39 involuntary termination proceedings. A.J. v. K.A.O., 951 So.2d 30, 32 (Fla. 5th DCA 2007). However, the least restrictive means test is not intended to preserve the parental bonds at the cost of a child’s future. Id. The least restrictive means test simply requires that measures short of termination be utilized if such measures would permit the safe re-establishment of the parent/child bond. Id.; see also M.M. v. Dep’t of Children and Families, 931 So.2d 280 (Fla. 5th DCA 2006); K.B. v. Dep’t of Children and Families, 834 So.2d 368, 369 (Fla. 5th DCA 2003). Here, the trial court specifically found that the father did not have a meaningful father/child bond with either of his two sons. Where there is little or no bond to protect and there was never a parent/child relationship to re-establish, termination of parental rights is not barred by the application of the least restrictive means test. A.J., 951 So.2d at 33; see also Interest of K.W., 891 So.2d 1068, 1070 (Fla. 2d DCA 2004).

AFFIRMED.

PALMER and ORFINGER, JJ., concur.


author: TORPY, J.

text:
    Robert Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3196.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2009.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   TORPY, J.

Appellant was convicted of four counts of felony petit theft. Although Appellant raises two points on appeal, only one point merits discussion — whether the lower court erred when it denied his motion to suppress the fruits of a warrantless search of his automobile, which was conducted incident to his lawful arrest on outstanding warrants. We conclude that the search was lawful under the Supreme Court’s recent pronouncement in Arizona v. Gant, - U.S. -,-, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009), even though Appellant was not within reach of the vehicle at the time of the search. We also conclude, in the alternative, that the fruits of the search should not be excluded, even if the search was unlawful, because police relied in good faith upon the widely accepted interpretation of the law in effect at the time of the search.

Corporal Venaziano of the Lake County Sheriff’s Office stopped Appellant’s vehicle because of outstanding warrants. After Venaziano identified Appellant and confirmed two outstanding warrants for theft, he took Appellant into custody, handcuffed him and placed him in the patrol car. Venaziano then “took an initial look in the car and [he] noticed on the front seat of the car was a lady’s wallet immediately in [his] line of view, which was on the driver’s seat.” He opened the wallet to see who it belonged to. The wallet did not belong to Appellant, but instead to an elderly woman. Thereafter, Venaziano conducted a search of the vehicle. During this search, he located three other wallets on the floor of the passenger’s side. These wallets also belonged to elderly women. Appellant told Venaziano that he found the wallets at a pharmacy and then later said that he found the wallets at a grocery store. He claimed that he was trying to find a place to turn them in. The jury concluded otherwise.

The trial court denied Appellant’s motion to suppress, which he argued without benefit of counsel. Appellant claimed, inter alia, that police had no cause to search his vehicle because the vehicle had no connection to the crimes for which he was arrested. The trial court dismissed this argument, applying the then — prevailing interpretation of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), which held that, “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 460, 101 S.Ct. 2860. On review, Appellant challenges the trial court’s reliance upon Belton in light of Gant, which was decided after Appellant’s conviction. Specifically, Appellant challenges the applicability of the search incident to arrest exception because he was already shackled and locked in a police car at the time of the search, a fact not in dispute. To resolve this case, we must examine the parameters of the search incident to arrest exception in light of Gant.

We begin our analysis with a brief discussion of a trilogy of Supreme Court cases preceding Gant. The first is the seminal case of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). There, police arrested Chimel at his home pursuant to an arrest warrant for burglary. Even though police did not have a search warrant, they searched several rooms in Chimel’s house and discovered evidence to support the burglary prosecution. On review, the Court held that, although police may conduct a warrantless search incident to a lawful arrest to locate weapons or evidence of the crime, the search must be limited to the arrestee’s person and the area within the arrestee’s “immediate control.” Id. at 763, 89 S.Ct. 2034.

Subsequent to Chimel, much debate ensued about how to determine the area within the “immediate control” of the ar-restee. The limits of this area, described by some commentators and courts as the “Chimel circle,” became particularly problematic in the context of vehicle searches, eventually leading the Court to address the issue in this specific context in Belton. Belton, 453 U.S. at 459 n. 1, 101 S.Ct. 2860 (describing lower court decisions on this issue in “disarray”). There, Belton and three other men were stopped in a car by a New York state trooper. When the trooper approached the car, he smelled marijuana and noticed a suspicious envelope in the car. He ordered all the men from the car, separated them and then searched the car. During the search, he found drugs in the zippered pocket of Bel-ton’s jacket, which was on the back seat of the car. Belton argued that the search violated Chimel because the jacket was outside his immediate control at the time of the search.

On review, the Court decided to address the validity of the search only under the search incident to arrest exception, without consideration of the automobile exception. Id. at 463, 101 S.Ct. 2860 (Rehnquist, J., concurring). It acknowledged that its holding in Chimel had created confusion and sought to construct a “single, familiar standard ... to guide police officers” in searches of this nature, while maintaining the constitutional principles enunciated in Chimel. Id. at 460 n. 3, 101 S.Ct. 2860. It concluded with a seemingly unequivocal statement of the law when applying Chimel in the “particular and problematic” context of vehicle searches. It held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 460, 101 S.Ct. 2860. The Court also specified that the permissible scope of the search included containers, whether “open or closed,” including those which, by their very nature “could hold neither a weapon nor evidence.” Id.

Belton resulted in considerable debate by academics and lower courts, sparked in part by the criticism of the dissenting judges who labeled its so-called “bright-line” rule arbitrary and without logical underpinning to the constitutional justification for these searches. Gant, 129 S.Ct. at 1718. Belton also drew considerable criticism because it appeared to authorize a search even when the nature of the offense of arrest was such that no evidence might be found under any circumstances, such as the case when the offense of arrest involved a minor traffic violation. See Myron Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wis. L.Rev. 657, 695 (2002); see also Jon F. Sheehan, State v. Pierce: State Constitutional Protection against the Belton Search Incident to Arrest Rule, 30 New Eng. L.Rev. 843, 851-62 (1996). Despite this debate and criticism, the widely accepted interpretation of Bel-ton’s holding was quite literal. Courts upheld vehicle searches not only in situations like Belton, where the object of the search (but not the vehicle) was outside the reach of the arrestee, but also in situations where the arrestee had been secured prior to the search. Id.; see cases cited infra note 8. Courts also routinely approved searches incident to arrest for traffic violations. See, e.g., United States v. Caldwell, 97 F.3d 1063, 1067 (8th Cir.1996) (involving search after arrest for driving with suspended license); United States v. Byrd, 47 F.3d 1170, 1177, 1995 WL 72299 (6th Cir.1995) (upholding search incident to arrest for traffic violation); State v. Landry, 543 So.2d 314 (Fla. 2d DCA 1989) (upholding search of vehicle and duffel bag after arrest for driving with suspended license); State v. Irvin, 483 So.2d 461, 463 n. 3 (Fla. 5th DCA 1986) (holding initial stop for driving with suspended license validates search incident to arrest).

Although Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), presented the Supreme Court with a case in which a Belton search had been conducted while the arrestee was handcuffed and in the back of the police car, the majority opinion did not specifically confront that issue. However, the concurring opinion of Justice Scalia did address the issue, and it is particularly instructive here because it was later adopted by the Court in Gant. Justice Scalia criticized the lack of historical and logical underpinning for a broad interpretation of Belton. According to Justice Scalia, a Belton search could only be justified to recover “evidence relevant to the crime for which [an arrestee] was arrested.” Id. at 629, 124 S.Ct. 2127 (Scalia, J., concurring). He noted that the historical authorization to search the place where an arrestee is arrested was not to prevent the arrestee from destroying evidence, but for the purpose of “gathering evidence relating to the crime of arrest.” Id. at 630, 124 S.Ct. 2127. He reasoned that police have “broader ... authority” over a lawfully arrested person and that evidence of the crime is “most likely to be found” at the place of arrest. He concluded:

There is nothing irrational about broader police authority to search for evidence when and where the perpetrator of a crime is lawfully arrested. The fact of prior lawful arrest distinguishes the arrestee from society at large, and distinguishes a search for evidence of his crime from general rummaging. Moreover, it is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended.

Id. (emphasis supplied). According to Justice Scalia, to justify a search under Bel-ton, the officer must consider the “nature of the charge” to determine if relevant evidence might be found in the vehicle. Id. at 632, 124 S.Ct. 2127.

In Gant, the Supreme Court was presented with facts that advanced the criticisms of Belton’s bright-line rule to the forefront. Gant had been arrested for a traffic violation, handcuffed and secured in a police car before the search took place. Thus, the search could not be premised on the rationale that Gant might gain access to a weapon or destroy evidence. The Court held that the search incident to arrest was unlawful. It stated:

Police may search a vehicle incident to a recent occupant’s arrest only if the ar-restee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arres-tee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Gant, 129 S.Ct. at 1723-24 (emphasis supplied). The first prong of the Gant holding, when the arrestee is within “reaching distance,” was based on the narrower interpretation of Belton by the Arizona Supreme Court, which had held that “when the passenger compartment is within an arrestee’s reaching distance, Belton supplies the generalization that the entire compartment and any containers therein may be reached.” Id. at 1718. The Gant Court accepted this interpretation. In other words, if the arrestee is still within reaching distance of the car at the time of the search, the permissible scope of the search includes the entire passenger compartment, including any containers therein. Here, as was the case in Gant, Appellant was handcuffed in the back of the police car at the time of the search, rendering the search impermissible under this prong of the Gant holding. But our conclusion on this point does not end our inquiry because Gant also authorizes the search of the passenger compartment under a second prong — when it is “reasonable to believe the vehicle contains evidence of the offense of arrest.” Id. at 1723-24. A search for this purpose is authorized irrespective of whether the passenger compartment is within the reach of the arres-tee at the time of the search. Id.

In approving this second search scenario, which the Court acknowledged was an expansion of the Chimel holding, the Gant Court expressly approved Justice Scalia’s concurring opinion in Thornton. Gant, 129 S.Ct. at 1714. It explained:

In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arres-tee’s vehicle and any containers therein.

Id. at 1719 (internal citations omitted) (emphasis supplied). The Court concluded that because “Gant was arrested for driving with a suspended license — an offense for which police could not expect to find evidence in the passenger compartment of Gant’s car,” the search could not be sanctioned under the second prong either. Id. at 1713.

Here, Appellant’s offense of arrest was theft, an offense for which police could “expect to find evidence.” Therefore, unlike the facts in Gant where the arrest was for a traffic violation, the search here was justified as an incident to the arrest for the purpose of “gathering evidence” of the crime of theft. It makes no difference that Appellant was secured at the time of the search.

In holding as we do, we specifically reject Appellant’s argument that the search was not justified because there was no evidence, apart from the offense of arrest, connecting the crime to the vehicle. The Fourth Amendment protects people, not places, and only under circumstances where the person enjoys a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). When a person is seized during a lawful custodial arrest, the effects on his person are also seized and the arrestee enjoys no distinct privacy interest in these effects as they are merely an extension of his person. Ingram v. State, 928 So.2d 423, 429 (Fla. 1st DCA 2006). The effects within his immediate control are treated the same as the effects on his person for constitutional purposes. Indeed, the search incident to arrest exception, unlike the automobile exception, has never been premised on the precondition that there be independent suspicion that there are weapons or evidence at the time and place of arrest. Rather:

“The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.”

Belton, 453 U.S. at 460, 101 S.Ct. 2860 (quoting United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)) (emphasis supplied). We conclude, therefore, that the “reasonable belief that evidence might be found” prong of Gant can be satisfied solely from the inference that might be drawn from the nature of the offense of arrest itself, and the assumption that evidence might be found at the place of the arrest. Thornton, 541 U.S. at 629, 124 S.Ct. 2127 (Scalia, J„ concurring) (stating “not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended”).

Our conclusion on this issue finds ample support in the concurring opinion of Justice Scalia in Thornton. In discussing the “evidence gathering” justification for a search incident to arrest, he observed that a “motorist may be arrested for a wide variety of offenses; in many cases, there is no reasonable basis to believe relevant evidence might be found in the car.” Thornton, 541 U.S. at 632, 124 S.Ct. 2127 (Scalia, J., concurring). Justice Scalia cited Atwater v. City of Logo Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (involving failure to wear seat-belt), and Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (involving speeding), as examples of these types of cases. It is clear from this discussion that the “nature of the charge” is determinative of whether there exists a reasonable basis to search for evidence, not whether there is some independent evidence that gives rise to a belief that the particular vehicle contains evidence. Id. at 630, 124 S.Ct. 2127. As Justice Scalia observed: “[I]t is not illogical to assume that evidence of a crime is most likely to be found where the suspect was apprehended.” Id. Where, as here, the offense of arrest is such that police could “expect to find” fruits and instruments of the crime, the search is justified as an incident to the arrest because it is reasonable to believe that evidence might be found.

We acknowledge that the second prong in Gant is capable of a more expansive interpretation. See 3 Wayne R. LaFave, Search and Seizure § 7.1(d) (4th ed. 2009) (acknowledging two plausible interpretations of Gant but predicting “nature-of-the-offense” test will prevail). Arguably, Gant establishes an entirely new warrant-less search exception that requires some particularized belief that the place of arrest contains evidence. If this is the case, then the applicability of the new exception would turn on a case-by-case analysis of probabilities, or possibilities, more akin to the “automobile exception” than the search incident to arrest exception. To adopt this construction, we would have to assume that our high Court intended to completely eviscerate Belton and Robinson, even though the Court failed to expressly overrule either decision. Belton expressly approved Robinson’s conclusion that a lawful search incident to arrest ‘does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.’ Belton, 453 U.S. at 459, 101 S.Ct. 2860 (quoting Robinson, 414 U.S. at 235, 94 S.Ct. 467). Such a construction would also contradict Justice Scalia’s concurring opinion in Thornton, which was grounded in the historical interpretation of the search incident to arrest exception and offered the “evidence gathering” rationale to bulwark and uphold Belton’s bright-line rule. Given the development of this special application of the search incident to arrest exception to automobiles, and the language used by the Court, we read Gant to address the two criticisms of Belton and reject any construction that implicitly creates a completely new exception to the warrant requirement. We think Gant is simply a fine-tuning of Belton, not a complete overhaul.

Although we hold that “reasonable belief,” as used in Gant, is solely determined from the “nature of the offense of arrest,” we would reach the same conclusion in this case even if we used a Tenrry -like definition of the phrase “reasonable belief,” which is simply “something more” than a “suspicion based on bare intuition.” Wallace v. State, 8 So.3d 492, 494 (Fla. 5th DCA 2009). The quantum of information needed to meet this standard is rather minimal, as is best exemplified by the recent case of Arizona v. Johnson, — U.S. -, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). There, police stopped a car for a traffic violation. Johnson was a back-seat passenger not suspected of committing any crime. Because he was wearing gang-like clothing and carrying a scanner, police asked him to exit the car and questioned him. He told them that he had been in prison and that he lived in a town where police knew there was a gang presence. Based on this information alone, they frisked him for weapons. The search revealed a weapon for which Johnson was arrested. The Court upheld the frisk under the reasonable suspicion standard.

We think the facts here present a more compelling basis to support a finding of reasonable suspicion than those in Johnson. Here, police knew that Appellant had outstanding warrants for theft. When the officer looked in his car, he saw a woman’s wallet in plain view, supporting an inference that this was the fruit of his theft charge. Although these facts may not be sufficient to meet the more rigorous probable cause standard, they certainly gave rise to more than a “mere hunch” that the vehicle contained evidence of a crime.

In addition to concluding that the search here was lawful, we also conclude, in the alternative, that exclusion of the fruits of the search is not an available remedy in any event. Exclusion in this case would not fulfill the purpose of the exclusionary rule because police were acting in good faith reliance on the widely accepted interpretation of Belton. The purpose of the exclusionary rule is to deter police misconduct. United States v. Leon, 468 U.S. 897, 918, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). It is a rule of last resort, only to be applied when it “result[s] in appreciable deterrence” and the benefits of deterrence outweigh the societal costs of suppressing evidence, thereby frustrating the truth-seeking process. Id. at 909-10, 104 S.Ct. 3405 (quoting United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)). Thus, to trigger the exclusionary rule, police misconduct must be “deliberate, reckless, or grossly negligent ... or in some circumstances recurring or systemic negligence.” Herring v. United States, — U.S. -, -, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009). No such misconduct is present in this case.

The application of the good faith exception to the facts of this case is supported by two Supreme Court decisions applying the doctrine in analogous circumstances. In Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979), the Court held that good faith reliance on a city ordinance, which at the time had not been declared unconstitutional, was valid regardless of the subsequent judicial determination of its unconstitutionality. Similarly, in Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), the Court applied the good faith exception where police reasonably relied upon a statute authorizing warrantless administrative searches, but the statute was subsequently found to violate the Fourth Amendment. In our view, this case presents an even more compelling case for the application of the exception. Here, police relied upon a constitutional interpretation that had been widely accepted over an extensive period of time, not merely an untested statute or city ordinance.

Belton itself was the product of an attempt by the Supreme Court to avoid the harsh consequences of the exclusionary rule in automobile search cases by devising a straight-forward, bright-line rule that would “guide” police through the previously murky waters of searching automobiles incident to arrest. The statement of the holding was broad and unequivocal. It was taken literally by federal courts across the country and all of the courts in Florida, which approved searches conducted even after the arrestee had been first secured by police. As recently as 2004, in Thornton, the Supreme Court relied upon Belton to uphold the search of a secured arrestee. The broad interpretation of the Belton holding was widely taught in police academies. Gant, 129 S.Ct. at 1722. Given the articulated purpose of Belton, the breadth of its holding, the widely accepted interpretation of its holding for twenty-eight years and the obvious good faith reliance upon it by police, we cannot envision a stronger ease for the application of the good faith exception. It would be contradictory to conclude that the good faith exception can be applied in cases such as Leon, where police relied on one judge’s determination that a particular search passes muster, but cannot be applied here, where the search is conducted in accordance with overwhelming precedent. To apply the exclusionary rule in this case cannot possibly deter police because they did exactly what they were trained to do based on what we (judges) told them was appropriate. Accord United States v. McCane, 573 F.3d 1037 (10th Cir.2009) (applying good faith exception to uphold pre-Gcmi search); see also United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975) (noting exclusionary rule serves no purpose when search is conducted in good faith reliance on statute consistently upheld by lower courts, but is subsequently declared invalid by Supreme Court). But see United States v. Gonzalez, 578 F.3d 1130, 1133 (9th Cir.2009) (holding good faith exception cannot be applied).

We also find noteworthy that the Gant Court recognized that qualified immunity will shield officers from civil liability for pre-Gant searches conducted pursuant to the widely accepted interpretation of Belton. Gant, 129 S.Ct. at 1723. If police conduct were “deliberate, reckless or grossly negligent” so as to “trigger” the exclusionary rule, it could not be qualifiedly immune.

In conclusion, we hold that when the offense of arrest of an occupant of a vehicle is, by its nature, for a crime that might yield physical evidence, then as an incident to that arrest, police may search the passenger compartment of the vehicle, including containers, to gather evidence, irrespective of whether the arrestee has access to the vehicle at the time of the search. If the offense of arrest is for a crime for which there is no physical evidence, then the search of the vehicle is not authorized as an incident to arrest, unless the arrestee has access to the passenger compartment of the vehicle at the time of the search, as was the case in Belton. For searches conducted before Gant was decided, in reliance on the widely accepted interpretation of Belton, the exclusionary rule is not available as a remedy.

AFFIRMED.

EVANDER and COHEN, JJ., concur.

      . We emphasize that our decision today involves only the application of the search incident to arrest exception to the warrant requirement. Although the State has urged that we apply other warrant exceptions, such as the automobile exception and inventory, under the “tipsy coachman” doctrine, we have determined that the record before us precludes application of these alternative arguments.

        . The Court acknowledged that this second scenario "does not follow from Chimel.” Gant, 129 S.Ct. at 1719.

      . In the context of a vehicle search, Belton, as qualified by Gant, provides a bright-line definition of the area Within an arrestee's immediate control by permitting the search of the entire passenger compartment, including open and closed containers, even though some of those areas might not be within the actual control of the arrestee at the time of the search. This special application of the search incident to arrest exception may be grounded in the notion that one's privacy rights in the passenger compartment of a vehicle are diminished. See California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).

      . Justice Scalia's concurring opinion in Gant also sheds light on his interpretation of this second prong of Gant. He explained that "a vehicle search incident to arrest is ipso facto ‘reasonable’ only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.” Gant, 129 S.Ct. at 1725 (Scalia, J., concurring). Justice Scalia explained that he would prefer to overrule Belton's authorization to search for weapons and only allow vehicle searches incident to arrest under Gant’s second prong. Id.

      . We agree with Professor LaFave's “hunch" that "Gant was only intended to cut back on Belton with respect to the most egregious subterfuge arrest situations, where a mere traffic violation previously provided the basis needed to make a full search of a vehicle.” LaFave, supra, § 7.1(d).

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Reasonable suspicion is something more than a "mere hunch.” United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002).

      . United States v. Dorsey, 418 F.3d 1038, 1041 (9th Cir.2005); United States v. Sumrall, 115 Fed.Appx. 22, 24 (10th Cir.2004); United States v. Wesley, 293 F.3d 541, 544 (D.C.Cir.2002); United States v. Cruz-Rojas, 104 F.3d 354, 1996 WL 690008 (2d Cir.1996); United States v. Snook, 88 F.3d 605, 606 (8th Cir.1996); United States v. Gonzalez, 71 F.3d 819, 822 (11th Cir.1996); United States v. Jackson,
        918 F.2d 236, 240 (1st Cir.1990); United States v. White, 871 F.2d 41, 43 (6th Cir.1989); United States v. Taylor, 857 F.2d 210, 212 (4th Cir.1988); United States v. Karlin, 852 F.2d 968, 970-71 (7th Cir.1988), cert. denied, 489 U.S. 1021, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989); United States v. Schecter, 717 F.2d 864, 865 (3d Cir.1983); United States v. Collins, 668 F.2d 819, 821 (5th Cir.1982); Padron v. State, 449 So.2d 811, 812 (Fla.1984); State v. Waller, 918 So.2d 363, 366-67 (Fla. 4th DCA 2005); State v. Gilbert, 894 So.2d 1055, 1056 (Fla. 1st DCA 2005); State v. Brooks, 744 So.2d 598, 599 (Fla. 2d DCA 1999); Sommer v. State, 465 So.2d 1339, 1340 (Fla. 5th DCA 1985); State v. Valdes, 423 So.2d 944, 944 (Fla. 3d DCA 1982).

      . Although the Ninth Circuit did not elaborate, apparently it concluded that it could not apply the good faith exception because the Gant Court had not. We do not view that as an impediment because the Court did not address the application of the doctrine one way or the other. The approach we take is not unprecedented. For example, in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the Court invalidated a search conducted pursuant to a statute and reversed the lower court’s order denying a motion to suppress. Two years later, in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the Court held that the exclusionary rule was inapplicable where police had acted in good faith reliance upon the same statute in a pre-Almeida-Sanchez search.

      . As the Supreme Court observed, a search under this scenario should be rare ''[b]ecause officers have many means of ensuring the safe arrest of vehicle occupants....” Gant, 129 S.Ct. at 1719.


author: ORFINGER, J.

text:
    Horace Dwayne McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1862.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2009.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   ORFINGER, J.

Horace McKinney appeals his convictions of grand theft and robbery with a firearm, which arose from a single taking of cash and a cell phone at gunpoint. McKinney contends that the dual convictions violate his protection against double jeopardy. We disagree and affirm.

“The most familiar concept of the term ‘double jeopardy’ is that the Constitution prohibits subjecting a person to multiple prosecutions, convictions and punishments for the same criminal offense.” Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009). However, there is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction, as long as the Legislature intends to authorize separate punishments. Hayes v. State, 803 So.2d 695, 699 (Fla.2001). Absent a clear statement of legislative intent to authorize separate punishments for two crimes, courts employ the Blockburger test, as codified in section 775.021, Florida Statutes, to determine whether separate offenses exist. Section 775.021(4) provides:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense.... For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

McKinney contends that robbery and theft are simply aggravated forms of the same underlying offense. Consequently, McKinney asserts that section 775.021(4)(b)2., precluding dual convictions for “offenses which are degrees of the same offense as provided by statute,” mandates a robbery conviction alone. Until recently, precedent supported McKinney’s argument. In Sirmons v. State, 634 So.2d 153 (Fla.1994), our supreme court held that convictions for robbery with a weapon and grand theft arising from a single act could not stand under section 775.021(4)(b)2. because both offenses were aggravated forms of the same underlying offense, distinguished only by degree. See, e.g., Ward v. State, 898 So.2d 1152 (Fla. 5th DCA 2005); Elozar v. State, 825 So.2d 490 (Fla. 5th DCA 2002). The supreme court narrowed that holding in Gordon v. State, 780 So.2d 17, 23 (Fla.2001), concluding that courts must discern the “primary evil” that a specific offense is intended to punish in order to determine whether the offenses are degree variants of each other under section 775.021(4)(b)2. See State v. Paul, 934 So.2d 1167, 1175 (Fla.2006); State v. Florida, 894 So.2d 941, 948-49 (Fla.2005).

In Valdes, the supreme court cast aside the “primary evil” standard utilized in Gordon, and more narrowly construed the “degree variants” standard referenced in Sirmons, holding:

[T]he plain meaning of the language of subsection (4)(b)(2), providing an exception for dual convictions for “[ojffenses which are degrees of the same offense as provided by statute,” is that “[t]he Legislature intends to disallow separate punishments for crimes arising from the same criminal transaction only when the statute itself provides for an offense with multiple degrees.”

Id. at 1076 (quoting Paul, 934 So.2d at 1176 (Cantero, J., specially concurring)). The court explained that the exception found in section 775.021(4)(b)2. is intended to apply narrowly and prohibits separate punishments only when a criminal statute provides for variations in degree of the same offense, such as the theft statute, which expressly identifies three degrees of grand theft and two degrees of petit theft or the homicide statute, which specifically categorizes three degrees of murder as well as multiple forms of manslaughter. Id. Only in such a circumstance would section 775.021(4)(b)2. bar separate punishments, as the defendant would be punished for violating two or more degrees of a single offense. Id. (citing Sirmons, 634 So.2d at 156 (Grimes, J., dissenting)).

By statute, robbery is not a degree of theft nor is theft a degree of robbery. As a result, utilizing the analysis mandated by Valdes, we conclude that section 775.021(4)(b)2. does not prohibit McKinney’s convictions for robbery with a firearm and grand theft. In doing so, we expressly and directly certify conflict with Shazer v. State, 3 So.3d 453 (Fla. 4th DCA 2009), which holds to the contrary, relying on Sirmons rather than Valdes.

We find no merit in the sole remaining issue.

AFFIRMED.

LAWSON and JACOBUS, JJ., concur.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).


author: MONACO, C.J.

text:
    Robert W. BURBAGE, Appellant, v. Kristine H. BURBAGE, Appellee.
    No. 5D08-4102.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2009.

      Tammy L. Jaques, Deland, for Appellant.
    Joan Stefanec Briggs, of Adams, Briggs & Briggs, Daytona Beach, for Appellee.
   MONACO, C.J.

The former husband, Robert W. Bur-bage, appeals an order finding him in arrears of his past child support obligation amounting to $4,000, holding that he willfully and deliberately failed to pay that amount to the former wife, Kristine H. Burbage, and finding him in contempt of the order requiring him to pay that amount. The trial court sentenced Mr. Burbage to ninety days in the county jail, and set a purge amount of $4,000. We find no error in the trial court’s findings that there was a valid support order in effect; and that the appellant failed to pay the ordered support; and that the failure to pay was willful. See Fla. Fam. L.R.P. 12.615(e); Chetram v. Singh, 937 So.2d 716 (Fla. 5th DCA 2006). The trial court, however, made no findings with respect to the present ability of Mr. Burbage to pay the support or to comply with and pay the purge conditions. See Fla. Fam. L.R.P. 12.615(e); Dileo v. Dileo, 939 So.2d 181, 184 n. 1 (Fla. 5th DCA 2006). We are, therefore, required to reverse and remand this matter to the trial court to determine whether the former husband has the ability to pay the purge amount.

Mr. Burbage also appeals an order awarding attorney’s fees to the former wife. We likewise reverse the fee award and remand for the trial court to make the appropriate factual findings to support its disposition. See Rowl v. Rowl, 864 So.2d 1236 (Fla. 5th DCA 2004); see also Heysek v. Heysek, 997 So.2d 489 (Fla. 2d DCA 2008). We note, however, that the trial court is free in its reconsideration of this issue, as it did in the initial grant of fees, to consider the actions and behavior of the former husband when awarding fees. See Firestone v. Firestone, 704 So.2d 1146 (Fla. 4th DCA 1998); Patterson v. Patterson, 399 So.2d 73 (Fla. 5th DCA 1981).

REVERSED and REMANDED.

SAWAYA and PALMER, JJ, concur.


text:
    Patrick J. PIERNI, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3165.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2009.
    Patrick J. Pierni, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for appellee.
   PER CURIAM.

Pierni appeals from the summary denial of his Rule 3.850 motion for post-conviction relief. As the State concedes, the first two grounds for relief set forth in Pierni’s motion were facially sufficient. However, the trial court failed to provide any rationale or specific reference to the record to support its denial of relief. Accordingly, as to these grounds, we reverse the trial court’s order and remand to either attach documents conclusively refuting Pierni’s allegations or hold an eviden-tiary hearing. Perez v. State, 17 So.3d 344 (Fla. 5th DCA 2009). We affirm the trial court’s summary denial of Pierni’s third ground for relief.

AFFIRMED, in part; REVERSED, in part; REMANDED.

PALMER, EVANDER and JACOBUS, JJ., concur.

      . Fla. R.Crim. P. 3.850.


text:
    Sylvester PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3733.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2009.
    Sylvester Peterson, Jasper, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Sylvester Peterson appeals from an order summarily denying seven of eight issues raised in his motion for postconviction relief, and setting the eighth issue for an evidentiary hearing. This is a non-final order, which cannot be appealed until the trial court issues its final ruling on the last issue raised in Peterson’s motion. See Fla. R.App. P. 9.141(b)(1) and 9.130(3); Canfield v. Cantele, 837 So.2d 371, 375 (Fla.2002). Accordingly, we dismiss the appeal.

DISMISSED.

MONACO, C.J., and LAWSON and EVANDER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Charles Allen PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-6175.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2009.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

A jury found Charles Peterson guilty of robbing a retail store. We reverse because the trial court erroneously excluded evidence bearing on the bias or motive of a key State witness and rejected a special jury instruction applicable to Peterson’s theory of defense.

Both errors related to the use of force that is a necessary element of the crime of robbery. A larcenous taking of property constitutes a robbery if “in the course of the taking” there is a use of force, violence, assault or putting in fear. § 812.13(1), Fla. Stat. (2008). An act is “ ‘in the course of the taking’ if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property” and “it and the act of taking constitute a continuous series of acts or events.” § 812.13(S)(b).

Peterson’s defense focused on the last-mentioned aspect of the charge. His theory was that he had abandoned the stolen property before he used force to escape the scene. In such circumstances, Florida’s courts have held that the act of taking and the use of force were not a continuous series of acts or events for purposes of the robbery statute. See State v. Baker, 540 So.2d 847 (Fla. 3d DCA 1989) (affirming dismissal of robbery charge when evidence showed that defendant took property without use of force, abandoned property, and then used force to leave; under such circumstances, use of force was not “part of ‘a continuous series of acts or events’ involved with taking of property”) (quoting in part § 812.13(3)(b)); see also Garcia v. State, 614 So.2d 568 (Fla. 2d DCA 1993) (relying on Baker to reverse robbery conviction under similar circumstances where use of force followed abandonment of property). Under Peterson’s theory, he was guilty only of the misdemeanor offense of resisting a merchant. See § 812.015(6).

Both the State’s case and Peterson’s theory of defense in large part hinged on the testimony of the State’s chief witness at trial, Theodora Green. Green recounted that on the day of the incident she was working her shift as a sales clerk at a Dollar General store. She observed Peterson in the socks and underwear aisle putting merchandise in the waistband of his pants. Green called the police and secured the front door to keep Peterson in the store. She was assisted by the store manager, who happened to arrive during the episode. Apprised of the situation, the manager endeavored to hold the door closed from the outside. Peterson approached the exit, left his shopping basket, and forced his way out of the store by pushing Green aside. Peterson was able to escape in a car that pulled up in front of the store.

Green’s testimony was pivotal because she was the only witness who contradicted Peterson’s theory that he had transferred the stolen merchandise to the shopping basket that he abandoned before shoving his way out of the store. She testified that some bystanders briefly grabbed Peterson’s shirt as he fled, and she glimpsed merchandise still packed around his waist. After police officers responded to the scene, the store manager showed them a videotape of the incident captured by the store’s surveillance system. The videotape was not preserved, but the manager and the officers testified that it showed Peterson taking merchandise off the shelf and concealing it under his clothing. Peterson’s abandoned shopping basket also contained merchandise. The witnesses were unable to discern from the videotape whether the items in the basket were the same ones that they saw Peterson take from the shelves.

On appeal, Peterson complains that the trial court abused its discretion by excluding evidence about the reason Green no longer worked at the Dollar General store and about her desire to regain her job. In a proffer, the defense established that Green left because she was suspected of stealing from the store and that she still wished to work there. Defense counsel argued that this evidence was relevant to show her bias and motive to testify favorably for her former employer. The court allowed the defense to establish simply that Green no longer worked at the store. It prohibited any other questions on that topic.

It has long been established that evidence of a witness’s interest, motives, animus, or status in relation to the proceeding is not collateral or immaterial. Bryan v. State, 41 Fla. 643, 26 So. 1022, 1028 (1899). Although a trial court has discretion regarding the admission of evidence, that discretion is limited by the rules of evidence. Michael v. State, 884 So.2d 83, 84 (Fla. 2d DCA 2004). Those rules provide that the credibility of a witness may be attacked by showing that the witness is biased. § 90.608(2), Fla. Stat. (2008). A criminal defendant has the right to show a witness’s possible ulterior motive for testimony, Michael, 884 So.2d at 84, and he or she should be afforded wide latitude in questioning a witness about her bias or motive for testifying, Lloyd v. State, 909 So.2d 580 (Fla. 2d DCA 2005).

In Peterson’s case the trial court abused its discretion in preventing the defense from showing that Green had a motive to testify as she did, that being to curry favor in an attempt either to regain her job or to improve her former employer’s recommendation for future employment. Because Green was the only witness who testified that Peterson had the .merchandise with him when he left the store, we cannot say that this error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Accordingly, we must reverse on this issue.

Peterson also challenges the trial court’s determination to give only the standard jury instruction on robbery. The court rejected Peterson’s request that it also instruct the jury that “[i]f it is established that the property was abandoned prior to the use of force then you must find the Defendant not guilty of a robbery.”

A defendant who requests a special jury instruction must demonstrate that (1) the special instruction is supported by the evidence; (2) the standard instruction does not adequately cover the theory of defense; and (3) the special instruction is a correct statement of the law and not misleading or confusing. Stephens v. State, 787 So.2d 747, 756 (Fla.2001). Taking these elements in reverse order, it is clear that Peterson’s proposed addition to the robbery instruction was a correct statement of the law. See Garcia; Baker. Moreover, the State did not argue, and the court did not find, that the special instruction would have been misleading or confusing. Nor do we see it as such.

We also conclude that the standard instruction did not adequately cover Peterson’s theory of defense. The standard instruction required the jury to find that force was used “in the course of the taking,” which was then defined as “prior to, contemporaneous with, or subsequent to” the taking and that the use of force and the taking of the property “constitute[d] a continuous series of acts or events.” Fla. Std. Jury Instr. (Crim.) 15.1. The standard instruction did not inform the jury that if the property was abandoned prior to the use of force, under the law the taking and the use of force were not a continuous series or acts or events. As such, the instruction did not cover Peterson’s theory of defense.

We recognize that standard jury instructions are presumed correct and are preferred over special instructions. See Stephens, 787 So.2d at 755. However, the use of standard jury instructions does not relieve the trial court of its obligation to determine whether the standard instructions accurately and adequately state the law applicable to a given case. Brown v. State, 11 So.3d 428, 432 (Fla. 2d DCA 2009). Indeed, the discretion of a trial court in such matters has been characterized as “fairly narrow” because a defendant is entitled to have the jury instructed on his theory of defense if any evidence supports that theory, so long as the theory is valid under Florida law. Chavers v. State, 901 So.2d 409, 410 (Fla. 1st DCA 2005) (quoting in part Goode v. State, 856 So.2d 1101, 1104 (Fla. 1st DCA 2003)).

This brings us to the final criterion— whether Peterson’s proposed special instruction was supported by the evidence. The store manager and the responding police officers testified that they could not say whether Peterson left the store with merchandise. They acknowledged that he had left items in the abandoned shopping basket that were consistent with the items they observed him taking from the shelves when they reviewed the surveillance tape. Green was the only witness to testify on this point, and her credibility was subject to impeachment. The defense would have been able to argue that the jury should consider her bias and motive when weighing her testimony. Thus, the defense presented a version of the evidence that warranted the special instruction. The trial court abused its discretion when refusing to give this instruction, and we must reverse on this issue as well.

Reversed and remanded for new trial.

FULMER and VILLANTI, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Anthony George NADZO, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-640.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2009.

      Christopher E. Cosden of The Wilbur Smith Law Firm, Fort Myers, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Anthony George Nadzo appeals the revocation of his probation and the resulting judgments and sentences in circuit court case numbers 06-CF-015497, 06-CF-020240, and 06-CF-020357. We affirm in part and reverse in part.

On September 20, 2006, Nadzo pleaded guilty in case number 06-CF-015497 to possession of a controlled substance, a third-degree felony, and driving under the influence, a first-degree misdemeanor. The trial court imposed concurrent sentences of six months’ probation. On December 4, 2006, an affidavit was filed alleging that Nadzo had violated his probation. On March 19, 2007, Nadzo admitted to violating his probation. He also pleaded no contest to multiple counts in case numbers 06-CF-020240 and 06-CF-020357. The trial court sentenced Nadzo in all three cases to concurrent terms of fifty-nine months in prison, suspended, with twenty-four months of drug offender probation.

On September 11, 2008, an affidavit of violation of probation was filed in all three cases. At the revocation hearing on January 8, 2009, Nadzo admitted to violating his probation. Nadzo asked the trial court to exercise its discretion and impose a sentence of less than fifty-nine months in prison. The court rejected Nadzo’s request and stated, “I have to sentence you to fifty-nine months. I have no choice; my hands are tied. It was the deal you made. I have compassion for you, I don’t want to do that but that’s what I have to do.” The court revoked Nadzo’s probation in all three cases and sentenced Nadzo to concurrent terms of fifty-nine months in prison.

The State properly concedes that the trial court was under the misconception that it was required to impose the full term of the suspended sentence originally imposed when Nadzo was placed on probation in March 2007. The court had the option to “revoke, modify, or continue the probation or community control or place the probationer into a community control program.” Cowart v. State, 860 So.2d 1041, 1042 (Fla. 5th DCA 2003) (quoting § 948.06(1), Fla. Stat. (2002)). Furthermore, upon revocation of probation, the court was authorized to impose a sentence less than the original sentence. See id. Therefore, we reverse Nadzo’s sentence for possession of a controlled substance in case number 06-CF-015497 and his sentences in case numbers 06-CF-020240 and 06-CF-020357, and remand to the trial court for resentencing. See Griffin v. State, 783 So.2d 337, 338 (Fla. 5th DCA 2001) (reversing and remanding for resen-tencing where trial court sentenced defendant under an “apparent misunderstanding of the law”).

Nadzo also contends that the trial court lacked jurisdiction to revoke his probation and to sentence him for the DUI offense in case number 06-CF-015497 because he had already served the statutory maximum for that offense. When the court imposed the suspended sentence of fifty-nine months in prison and twenty-four months of probation in March 2007, it exceeded the statutory maximum of one year for a first-degree misdemeanor. See §§ 316.193(6)(a), 775.082(4)(a), Fla. Stat. (2005). Therefore, Nadzo was illegally on probation and the court lacked jurisdiction to revoke his probation in January 2009 and sentence him on the DUI charge. See Manning v. State, 961 So.2d 1135, 1136-37 (Fla. 2d DCA 2007).

Accordingly, we reverse the revocation order and the judgment and sentence for the DUI offense in case number 06-CF-015497 and remand with directions that they be stricken. We affirm the revocation of probation and the resulting judgments in case numbers 06-CF-020240 and 06-CF-020357 and for the possession of a controlled substance count in case number 06-CF-015497, but we reverse the sentences and remand for resentencing. On remand, the trial court shall enter written revocation orders consistent -with this opinion.

Affirmed in part, reversed in part, and remanded with directions.

NORTHCUTT and VILLANTI, JJ., Concur.


text:
    R.S., Father of H.S., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-1999.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2009.
    Lori D. Loftis, Jeffrey Deen, Altamonte Springs, and Mark A. Skipper of Mark A. Skipper, P.A., Orlando, for Appellant.
    Jeffrey Dana Gillen, West Palm Beach, for Appellee.
   PER CURIAM.

In this dependency proceeding, Appellant challenges the lower court’s entry of a consent to the dependency against Appellant because he did not personally appear at a pre-trial conference, although his counsel appeared on his behalf. Appellee properly concedes error. See In re C.R., 806 So.2d 646 (Fla. 2d DCA 2002). The order adjudicating the child dependent as to Appellant is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

MONACO, C.J. and GRIFFIN and TORPY, JJ., concur.


author: ROWE, J.

text:
    Austin Jeremy BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3665.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Nancy A. Daniels, Public Defender and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Anthony J. Golden, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

The appellant raises three issues on appeal. We affirm as to the appellant’s first two issues, but reverse and remand as to the third issue: Whether the trial court erred in ruling that a youthful offender sentence cannot be imposed in lieu of a mandatory minimum sentence under the 10/20/Life statute. We find that remand is necessary because the record demonstrates that the trial court was mistakenly under the impression that it lacked discretion to sentence the appellant as a youthful offender.

At sentencing, Bennett’s counsel urged the trial court to sentence him as a youthful offender under section 958.04, Florida Statutes (2007), while the state requested a 15-year sentence with a 10-year mandatory minimum sentence under the 10/20/Life statute, section 775.087, Florida Statutes (2007). The trial court repeatedly expressed the view that it had no discretion to sentence the appellant as a youthful offender in lieu of the 10-year mandatory minimum sentence under the 10/20/Life statute:

THE COURT: I don’t think I can [impose a youthful offender sentence]. I read the statute. The statute on 10/20/ Life is pretty clear. Most of the language says shall; it doesn’t say may. It doesn’t give the Court any discretion in my reading of the statute.
I don’t think that there is any provision that I’ve been shown that allows the Court not to impose the minimum mandatory.
We couldn’t find any case law where it had been discussed, maybe because it is fairly new, but I don’t think I have any authority to deviate from what the statute requires the Court to do on an offense where a gun was used.

Contrary to the trial court’s discussion on the record, there is well-established case law directly on point which holds that a trial court has the option of avoiding a 10/20/Life sentence, and may instead impose a youthful offender sentence. See, e.g., Ruth v. State, 949 So.2d 288 (Fla. 1st DCA 2007); State v. Drury, 829 So.2d 287 (Fla. 1st DCA 2002); Postell v. State, 971 So.2d 986 (Fla. 5th DCA 2008).

In Drury, this court expressly held that “a trial court may sentence a defendant to a youthful offender sentence in lieu of the 10/20/Life statute’s minimum mandatory requirement.” Id. at 290. (Emphasis in original.) The court also addressed the use of the mandatory language in the 10/20/Life statute and found that even though the language of the statute provides for mandatory sentencing using the word “shall,” a trial court may, nevertheless, impose a youthful offender sentence rather than a 10/20/Life sentence. Id. at 288 (citing Holmes v. State, 688 So.2d 986, 987 (Fla. 1st DCA 1994)).

Similarly, in Postell, the court held that the defendant was entitled to a new sentencing hearing due to the trial court’s mistaken belief that youthful offender sentencing was not available. In Holmes, 638 So.2d at 987, this court found that remand was necessary where the record showed that the trial court was under the impression that it did not have the option of sentencing a defendant under the youthful offender statute where the defendant had used a firearm. See also Ruth v. State, 949 So.2d at 290.

As in those cases where the record showed that the trial court incorrectly believed it lacked discretion to impose a youthful offender sentence rather than a sentence under the 10/20/Life statute, remand is necessary here to allow the trial court to exercise its discretion in sentencing. However, in accord with established precedent, we note on remand that the appellant “is merely entitled to a resen-tencing in which the trial court is fully informed of its discretion to sentence appellant as a youthful offender; appellant is not necessarily entitled to resentencing as a youthful offender.” Id. (citing Holmes, 638 So.2d at 987).

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing in accord with this opinion.

VAN NORTWICK and PADOVANO, JJ., concur.