text:
    Alex BARRON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-587
    District Court of Appeal of Florida, Third District.
    Opinion filed April 12, 2017

      Carlos J. Martinez, Public Defender, and Stephen Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE and SCALES, JJ.
   EMAS, J.

In 2005, Alex Barron was civilly committed following a jury trial upon a petition for involuntary civil commitment of sexually violent predators, pursuant to sections 394.910-.930, Florida Statutes (2015).

In 2015, Barron filed a petition for release from civil commitment, which required the trial court to follow the threshold procedures established in section 394.918(3), Florida Statutes (2015):

The court shall hold a limited hearing to determine whether there is probable cause to believe that the person’s condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing and the right to be present. Both the petitioner and the respondent may present evidence that the court may weigh and consider. If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue.

At the limited hearing, Barron and the State each presented differing evaluation reports from two psychologists who evaluated Barron. The evaluation presented by Barron concluded that, in the doctor’s opinion, there is probable cause to believe Mr. Barron’s condition has so changed that it is now safe for him to be at large in the community. The evaluation presented by the State concluded that, in the doctor’s opinion, Barron’s condition has not so changed that it is safe for him to be at large in the community, and that he remains likely to engage in acts of sexual violence if returned to society.

The trial court reviewed the two evaluations, heard argument of counsel, and concluded that Barron had not established probable cause to believe his condition has so changed that it is safe for him to be at large and that he will not engage in acts of sexual violence if discharged. The court therefore denied the petition, including Barron’s request that the matter be set for trial on Barron’s petition for release.

We affirm the trial court’s ruling. In doing so, we acknowledge that our holding is based in large part upon the recent amendment to section 394.918(3). Prior to 2014, that subsection provided:

The court shall hold a limited hearing to determine whether there is probable cause to believe that the person’s condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing, but the person is not entitled to be present. If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue.

Case law construing this prior version of the statute held that the trial court’s obligation was simply to determine the legal sufficiency of the evidence presented by the petitioner, and that a weighing of the evidence was inappropriate:

[A] trial court’s determination whether a petitioner has met the burden of proving his entitlement to receive a trial must be based upon an analysis of the sufficiency of the evidence presented, rather than by weighing the evidence presented by both parties at the probable cause hearing. The petitioner’s representative should be allowed to present evidence by testimony or affidavit, and the court should then determine if, assuming that the evidence is true, it would be sufficient to meet the petitioner’s burden of proof. If so, a full trial should be held. If not, no such trial is necessary. We reach this conclusion because the petitioner is not allowed to be present at the probable cause healing and therefore, allowing the decision to be made based upon the weighing of conflicting evidence presented in an evidentiary hearing would create significant due process problems.

Westerheide v. State, 888 So.2d 702, 706 (Fla. 5th DCA 2004) (emphasis added). See also Spivey v. State, 100 So.3d 1254, 1256 (Fla. 5th DCA 2012)(observing: “A judge’s review of the evidence in a section 394.918(3) limited probable cause hearing is similar to an evaluation conducted in response to a motion for directed verdict: the court must determine the sufficiency of the evidence presented, without weighing it and making credibility determinations”); In re Commitment of Allen, 927 So.2d 1070, 1074 (Fla. 2d DCA 2006) (observing that “if the committed person presents evidence supporting release at a limited probable cause hearing, the trial court considers only that evidence to determine probable cause; it does not weigh the evidence against any letter from the Florida Civil Commitment Center or other evidence presented by the State”); Fuery v. State, 968 So.2d 77 (Fla. 4th DCA 2007).

In 2014, the Florida Legislature amended section 394.918(3). See Laws of Florida 2014, chapter 2014-2, § 6. The amended version provides that the petitioner has the right to be present at the probable cause hearing, and further provides that both the petitioner and the State may present evidence for the court to consider:

The court shall hold a limited hearing to determine whether there is probable cause to believe that the person’s condition has so changed that it is safe for the person to be at large and that the person will not engage in acts of sexual violence if discharged. The person has the right to be represented by counsel at the probable cause hearing and the right ⅛⅛⅛-the.person is-not entitled to be present. Both the petitioner and the respondent may present evidence that the court may weigh and consider. If the court determines that there is probable cause to believe it is safe to release the person, the court shall set a trial before the court on the issue.

(Added language underlined; deleted language indicated by strikethrough.)

We must give this amended statutory language its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the legislature. See Green v. State, 604 So.2d 471 (Fla. 1992). Applying this fundamental rule of statutory construction, we hold that the trial court was authorized under the statute to “weigh and consider” the State’s competing evaluation in assessing whether Barron met his burden of establishing probable cause. It would appear that the 2014 amendment to section 394.918(3) supersedes those corresponding portions of Westerheide and its progeny. We affirm, without further discussion, the remaining points raised on appeal.

Affirmed.

      . This law is commonly referred to as the Jimmy Ryce Act.

      . Barron's psychologist met with Barron in person before preparing the evaluation report, and had also performed an evaluation of him in 2012. The State’s psychologist did not meet with Barron, but reviewed Barron’s psychologist’s evaluation report as well as other relevant records provided by the State Attorney's Office, the records related to his initial commitment, and the records generated by the Florida Civil Commitment Center during the period of Barron’s civil commitment.

      . Under section 394.918(3), if a trial court finds probable cause, it shall set the petition for a full determination at a nonjury trial pursuant to section 394.918(4), which provides:
      At the trial before the court, the person is entitled to be present and is entitled to the benefit of all constitutional protections afforded the person at the initial trial, except for the right to a jury. The state attorney shall represent the state and has the right to have the person examined by professionals chosen by the state. At the hearing, the state bears the burden of proving, by clear and convincing evidence, that the person's mental condition remains such that it is not safe for the person to be at large and that, if released, the person is likely to engage in acts of sexual violence.

      . In addition, the legislature is presumed to have been aware of the judicial construction of the existing statute when it enacted the 2014 amendments to section 394.918(3). Jones v. ETS of New Orleans, Inc., 793 So.2d 912 (Fla. 2001). By amending the statute to provide the defendant with the right to be present at the probable cause hearing, the State with the right to present evidence at that hearing, and the trial court with the authority to weigh and consider the evidence presented by both parties, the Florida Legislature expressed a clear intent to alter the judicial construction of the statute as set forth in Westerheide.

      . Barron did not raise below, or here on appeal, any constitutional challenge to the 2014 amendment to section 394.918(3).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jonathan LEWIS, Petitioner, v. Judge Phillip PENA, Respondent.
    CASE NO. 1D17-0373
    District Court of Appeal of Florida, First District.
    Opinion filed April 13, 2017

      Jonathan Lewis, Pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. The court retains jurisdiction to consider the imposition of sanctions against petitioner.

WETHERELL, BILBREY, and JAY, JJ„ CONCUR.


author: BERGER, J.

text:
    Robert Lee RUMPH, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3550
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nora H. Hall, Assistant Attorney General, Daytona Beach, for Appel-lee.
   BERGER, J.

Robert Lee Rumph, Jr., appeals the judgment and sentence imposed upon him by the trial court after he pled no contest to second-degree murder with a firearm pursuant to a negotiated plea agreement. He argues that the trial court committed reversible error when it failed to follow the proper competency procedures and failed to enter a written order finding him competent to proceed before it permitted him to enter a guilty plea. We agree and reverse. ■

Shortly before 3:00 p.m. on November 8, 2009, Foquan Bell was shot eight times in his apartment. The gunman paused in the middle of the shooting, left the apartment to reload his firearm, and returned to fire additional rounds into Bell. Bell was pronounced dead at the scene.

Later that day, Rumph arrived at his mother’s house and was “acting crazy.” He was taken into custody by Sheriffs deputies under the Baker Act. Eventually, Bell’s cousin, who also happened to be Rumph’s ex-girlfriend, implicated Rumph in Bell’s murder. A grand jury indicted Rumph for first-degree murder and burglary of a dwelling with a firearm and an assault or battery by a grand jury.

Initially, Rumph intended to raise an insanity defense, and the trial court appointed experts to conduct a sanity evaluation. Rumph later reconsidered his situation and agreed to a plea agreement with the State. Rumph agreed to plead guilty to second-degree murder. The plea hearing was held on October 1, 2012. During the plea colloquy, Rumph “shut down” and was unable to communicate with the trial court. The trial court appointed two experts, Dr. Jeffrey A. Danziger and Dr. Gregory A. Prichard, to evaluate Rumph’s competency to proceed. Dr. Danziger reported back to the trial court that Rumph was not competent to stand trial because he could not assist his attorney in preparing a defense. Dr. Prichard concurred with Dr. Danziger’s assessment. The trial court adjudicated Rumph incompetent to proceed on November 7, 2012, and Rumph was placed at the Florida State Hospital for treatment.

While Rumph was at the hospital, Dr. Mimi Okazaki evaluated Rumph. In April 2013, Dr. Okazaki found that Rumph was still not competent to stand trial. However, on October 2, 2013, Dr. Okazaki reported in her evaluation that Rumph was now competent to stand trial. Rumph was discharged from the Florida State Hospital and returned to the Orange County Jail. After his return to the jail, Dr. Danziger reexamined Rumph. In a report dated January 23, 2014, Dr. Danziger opined that although Rumph was not well and still exhibited symptoms, he had partially improved and was competent to stand trial. A third examiner, Dr. Ryan Hall, examined Rumph on February 18, 2014. In his February 24, 2014 report, Dr. Hall concluded that Rumph was competent but might need additional time and more frequent breaks during the trial to ensure he understood the proceedings.

During a pretrial hearing on June 24, 2014, the trial court acknowledged that it had not read the competency evaluations but queried counsel for the State and Rumph about his condition. Rumph’s counsel replied that the doctors thought Rumph was competent. On July 2, 2014, Rumph agreed to enter a no contest plea as part of a plea bargain with the State to reduce the murder charge to second-degree murder and to drop a burglary of a dwelling count. Rumph agreed to a sentence of at least twenty-five years but no more than forty-five years.

During the plea colloquy, the trial court asked Rumph questions about the medications he was taking and asked counsel for both parties whether Rumph was competent. They agreed he was' competent. The trial court accepted the no contest plea and verbally found Rumph was competent based on its colloquy with Rumph and the representations of counsel. The trial court also noted that “the doctors have said you’re competent to proceed.” The doctors who evaluated Rumph did not testify at the hearing. The trial court did not enter a written order adjudicating Rumph competent to stand trial. Later, Rumph was sentenced to forty years in the Department of Corrections, including a twenty-five-year mandatory minimum sentence.

A criminal case may not proceed at any material stage while the defendant is not competent to proceed. Fla. R. Crim. P. 3.210(a); McCray v. State, 71 So.3d 848, 862 (Fla. 2011) (quoting Caraballo v. State, 39 So.3d 1234, 1252 (Fla. 2010)). “The test for whether a defendant is competent to stand trial is ’whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.’” Peede v. State, 955 So.2d 480, 488 (Fla. 2007) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)); accord § 916.12(1), Fla. Stat. (2014); Whitfield v. State, 164 So.3d 745, 746 (Fla. 5th DCA 2015). Once a defendant has been adjudicated incompetent by the trial court, a presumption of incompetency arises that persists until the trial court adjudicates the defendant competent to proceed. Molina v. State, 946 So.2d 1103 (Fla. 5th DCA 2006) (citing Jackson v. State, 880 So.2d 1241, 1242 (Fla. 1st DCA 2004)); see also Sledge v. State, 871 So.2d 1020 (Fla. 5th DCA 2004). “[T]he failure to obsei-ve procedures adequate to protect'a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.” Drope v. Missouri. 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). This constitutes fundamental error and may be raised without filing a motion to withdraw the plea. See Hunter v. State, 174 So.3d 1011, 1014 (Fla. 1st DCA 2015) (citing Jackson, 880 So.2d at 1242); Martinez v. State, 851 So.2d 832, 834-35 (Fla. 1st DCA 2003); see also Shakes v. State, 185 So.3d 679, 683 (Fla. 2d DCA 2016) (citing Ross v. State, 155 So.3d 1259, 1260 (Fla. 1st DCA 2015)).

After a defendant has been adjudicated incompetent, a hearing is necessary to overcome the presumption of incompetency and find the defendant competent. See Presley v. State, 199 So.3d 1014 (Fla. 4th DCA 2016) (quoting Roman v. State, 163 So.3d 749, 751 (Fla. 2d DCA 2015)); Macaluso v. State, 12 So.3d 914, 915 (Fla. 4th DCA 2009) (citing Abreu-Gutierrez v. James, 1 So.3d 262 (Fla. 4th DCA 2009)). If the trial court finds that the defendant is competent to proceed, it must enter a written order adjudicating the defendant competent. Fla. R. Crim. P. 3.212(b), (c)(7); Molina, 946 So.2d at 1105 n.1 (citing Bailey v. State, 931 So.2d 224 (Fla. 1st DCA 2006)).

Competency is a legal rather than a medical question, and the expert reports prepared by the examiners are merely advisory. See Dougherty v. State, 149 So.3d 672, 677-78 (Fla. 2014) (citing McCray, 71 So.3d at 862). The parties may stipulate to deciding competency based on the written expert reports rather than live expert testimony, but the defendant and the other parties may not stipulate to competency itself, particularly when the defendant was previously adjudicated incompetent, as the trial court must make an independent determination on the issue. Id. at 678 (citing Fowler v. State, 255 So.2d 513, 515 (Fla. 1971)); Presley, 199 So.3d at 1018; Blow v. State, 902 So.2d 340, 342 (Fla. 5th DCA 2005) (citing Sledge, 871 So.2d at 1021). The stipulation to determining the issue based on the expert’s written reports may be inferred from the context. See Presley, 199 So.3d at 1018-19 (citing Merriell v. State, 169 So.3d 1287, 1288 (Fla. 1st DCA 2015)).

Here, Rumph was adjudicated incompetent to stand trial from November 7, 2012, until the trial court found him competent immediately before taking his plea on July 2, 2014. Because there is no written order in the record adjudicating Rumph competent, remand is necessary. See Dougherty, 149 So.3d at 679; Shakes, 185 So.3d at 682 n.1; Molina, 946 So.2d at 1105 n.1; Bailey, 931 So.2d at 224; Martinez, 851 So.2d at 834. Were it simply that the trial court failed to enter a written order, we would remand for the trial court to do so, nunc pro tunc, to July 2, 2014. See Martinez, 851 So.2d at 834 (quoting White v. State, 548 So.2d 765, 768 (Fla. 1st DCA 1989)). However, there is another problem with this case. Even assuming an implicit stipulation to decide the competency issue existed based on the expert evaluation reports, which would arise from the improper stipulation to competency based on those reports, it is unclear if the trial court actually reviewed those reports before making its ruling. See Fla. R. Crim. P. 3.212(a); Presley, 199 So.3d at 1018-19.

One requirement of a proper hearing is that the trial court actually reviews the expert reports and other evidence. See Presley, 199 So.3d at 1018-19; Belizaire v. State, 188 So.3d 933, 934-35 (Fla. 1st DCA 2016) (quoting Ross, 155 So.3d at 1259-60). The January 23, 2014 expert report by Dr. Danziger was sealed on February 5, 2014. The February 24, 2014 expert report from Dr. Hall was sealed and filed with the trial court on April 16, 2014. During the June 24, 2014 hearing, the trial court admitted that it had not read the reports. It is unclear whether the trial court read the reports before taking the plea on July 2, 2014, or whether it relied on counsel’s assertion that the doctors found Rumph competent to stand trial.

Accordingly, we reverse the trial court’s competency determination and remand with instructions for the trial court to determine whether it is possible to conduct a retrospective hearing on Rumph’s competency as of July 2, 2014. See Dougherty, 149 So.3d at 679 (citing Mason v. State, 489 So.2d 734, 737 (Fla. 1986)). If it is possible to conduct the hearing, and the trial court determines that Rumph was competent, then the trial court shall enter a nunc pro tunc written order adjudicating him competent. See id. If it is not possible to conduct the retrospective hearing, or if the trial court conducts the hearing and finds that Rumph was incompetent on July 2, 2014, then it should vacate the judgment and sentence and withdraw Rumph’s plea. See id.

REVERSED AND REMANDED.

EDWARDS, J. and JACOBUS, B.W., Senior Judge, concur.

      . § 394.463(2)(a)2„ Fla. Stat. (2009).

      . Material stages of criminal proceedings include the trial, pretrial hearings on factual issues where the defendant might testify, entry of a plea, contempt hearings, violation of probation hearings, and sentencing. Fla. R. Crim. P. 3.210(a)(1).


author: EDWARDS, J.

text:
    Timothy HAMPTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-2745
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2017

      Timothy Hampton, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EDWARDS, J.

En Banc

Timothy Hampton (“Appellant”) appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for posteonviction relief regarding his pleas of no contest, convictions, and sentences for several drug felonies, evidence tampering, and resisting a law enforcement officer. Appellant set forth three separate grounds in his motion as bases for his claims of ineffective assistance of counsel and involuntary pleas. The posteonviction court summarily denied Grounds One and Two. After an evidentia-ry hearing on Ground Three, the court denied Appellant’s motion in its entirety. We affirm as to Grounds Two A and Three without further discussion. For the reasons discussed below, we reverse and remand for further proceedings as to Ground One and affirm as to Ground Two B.

GROUND ONE: FAILURE TO CHALLENGE WIRETAP ORDER

Appellant claims in Ground One that defense counsel was ineffective for failing to move to quash the order that authorized a wiretap based upon an allegedly insufficient probable cause affidavit. Appellant claims that a motion to quash the order would have been successful and would have weakened the State’s case to such an extent that it would have resulted in either dismissal of all charges, acquittal, or lighter sentences. Appellant further claims that if the motion was filed and granted, he would not have pleaded no contest.

The posteonviction court held that Appellant’s no contest plea precluded post-conviction attack on the admissibility of the evidence. However, a rule 3.850 motion alleging that “trial counsel provided ineffective assistance by failing to file a motion to suppress is a legally sufficient claim, which is not waived by an entry of a plea.” Spencer v. State, 889 So.2d 868, 870 (Fla. 2d DCA 2004) (citations omitted); see also MacKinnon v. State, 39 So.3d 537, 538 (Fla. 5th DCA 2010). Thus, the postconviction court erred when it relied on legal insufficiency in summarily denying Appellant’s first ground for relief. The record does not contain the motions to suppress or transcripts of the hearings resolving the motions; therefore, we cannot determine whether the motions addressed the propriety of the wiretap order. We reverse and remand with instructions for the postcon-viction court either to attach records that conclusively refute Appellant’s claims or to conduct an evidentiary hearing on Ground One.

GROUND TWO B: INCOMPLETE INFORMATION ON CONSEQUENCES OF HABITUALIZED OFFENDER SENTENCING

In Ground Two B, Appellant alleges that his plea was involuntary because he was not properly advised of the possible adverse consequences of being sentenced as a habitual felony offender (“HFO”), with regard to the opportunity for early release from prison. The postconviction court noted that, during the sentencing proceedings, Appellant was not expressly advised about the possible effect of habitu-alization on early release eligibility. The court determined, however, that Appellant received written notice of the State’s intent to seek an HFO sentence enhancement, which advised that such a sentence “may cause the defendant to be ineligible for certain gain time or prison programs.” The court, therefore, summarily denied Ground Two B because Appellant did not demonstrate prejudice.

In Ashley v. State, 614 So.2d 486 (Fla. 1993), the Florida Supreme Court held that before a defendant can be properly designated as a habitual offender after the entry of a guilty or no contest plea, “1) [t]he defendant must be given written notice of intent to habitualize, and 2) the court must confirm that the defendant is personally aware of the possibility and reasonable consequences of habitualization.” 614 So.2d at 490 (footnote omitted). The second prong, “reasonable consequences of habitualization,” includes informing a defendant of his or her eligibility for habitu-alization, the maximum HFO term, and the fact that habitualization may affect the possibility of early release. Id. at 490 n.8. A defendant’s claim that the trial court failed to inform him of the reasonable consequences of habitualization calls into question the voluntariness of the plea. State v. Thompson, 735 So.2d 482, 484 (Fla. 1999). “[T]he issue of voluntariness may be raised in the trial court in a motion for postconviction relief if the issue has not been previously raised and ruled upon.” Id. at 485.

In this case, during Appellant’s plea colloquy, the trial court went through each count and advised Appellant of the maximum HFO enhanced sentence and related fines. The State’s written notice of intent to seek an HFO sentence indicated that being sentenced as an HFO could make Appellant ineligible for certain gain time or prison programs. Appellant did not, however, receive any further explanation from his counsel or the court regarding the effect his habitualization would have on gain time, early release, or conditional release from prison.

Post-Ashley legislation raised questions about whether a discussion of gain time is still required in the plea colloquy for a defendant who may be sentenced as an HFO. The Florida legislature has eliminated automatic grants of gain time for crimes committed on or after January 1, 1994. Barrs v. State, 883 So.2d 846, 846 (Fla. 1st DCA 2004). Therefore, the First, Third, and Fourth Districts concluded that a discussion of the impact of habitualization on gain time in the plea colloquy,is no longer needed. Smith v. State, 126 So.3d 397, 400 (Fla. 4th DCA 2013); Barrs, 883 So.2d at 846; Ferguson v. State, 677 So.2d 968, 968-69 (Fla. 3d DCA 1996). We agree with those courts that this legislation resulted in “the elimination of basic gain time for all offenders [and] nullified Ashley’s requirement to advise offenders that habitualization may affect the possibility of early release.” Smith, 126 So.3d at 400 (citations omitted).

Florida law requires that the defendant be made aware of the reasonable or direct consequences of habitualization prior to entering a plea. Ashley, 614 So.2d at 490; State v. Rodriguez, 990 So.2d 600, 603 (Fla. 3d DCA 2008). A “direct” consequence “represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.” Major v. State, 814 So.2d 424, 431 (Fla. 2002) (quoting Zambuto v. State, 413 So.2d 461, 462 (Fla. 4th DCA 1982)). “Neither the trial court nor counsel is required to forewarn a defendant about every conceivable collateral consequence of a plea to criminal charges.” Simmons v. State, 611 So.2d 1250, 1252 (Fla. 2d DCA 1992). “Gain time, good time, provisional credit time, and additional mitigating credits are all collateral consequences of a guilty plea.” Rodriguez, 990 So.2d at 606. Thus, a plea is not rendered involuntary nor is ineffective assistance of counsel established when the defendant is not informed of every possible ramification or limitation concerning gain time or every possible reduction in time to be served. Henderson v. State, 626 So.2d 310, 311 (Fla. 3d DCA 1993); see also Cariveau v. Sec’y, Fla. Dep’t. of Corr., No. 3:14-cv-542-J-32MCR, 2016 WL 6600955, at *5 (M.D. Fla. Nov. 8, 2016).

Based on the foregoing, we sua sponte considered the matter en banc and now recede from Williams v. State, 2 So.3d 1089 (Fla. 5th DCA 2009), and Murphy v. State, 952 So.2d 1214 (Fla. 5th DCA 2007), to the extent that those decisions (1) required trial courts to include in plea colloquies an Ashley-based discussion of the possible impact habitualization could have on accrual of gain time, despite the legislative abolition of basic gain time; and (2) found that ineligibility for gain time or early release through certain programs is a direct consequence of a plea. We also certify conflict with the decisions of the Second District in Parker v. State, 808 So.2d 264 (Fla. 2d DCA 2002), Butler v. State, 764 So.2d 794, 795 (Fla. 2d DCA 2000), Black v. State, 698 So.2d 1370, 1371 (Fla. 2d DCA 1997), and Watson v. State, 661 So.2d 72, 72 (Fla. 2d DCA 1996).

We agree with the postconviction court that Appellant did not demonstrate how he was prejudiced by not receiving additional information about possible direct consequences of HFO enhancement before entering his plea, nor is there any readily apparent potential for prejudice to him under the facts of this case. Accordingly, we affirm Ground Two B.

AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH INSTRUCTIONS; CONFLICT CERTIFIED.

COHEN, C.J., SAWAYA, PALMER, ORFINGER, TORPY, EVANDER, BERGER, WALLIS, and LAMBERT, JJ., concur.

      . Habitual felony offenders, habitual violent felony offenders, and violent career criminals are now eligible for gain time under the sentencing provisions that apply to habitualized offenders. See § 775.084(4)(k)l., Fla. Stat. (2011). Thus, incentivized gain time applies equally to offenders with HFO and non-HFO status.

        . We are aware that HFO inmates who accrue incentivized gain time, upon release from prison, are placed on supervision subject to the conditional release requirements authorized by section 947.1405, Florida Statutes (2011), for the period of time equal to their accrued gain time. Evans v. Singletary, 737 So.2d 505, 507 (Fla. 1999). Conditional release has been described as “an extra post-prison probation-type program.” Id. We note that an HFO inmate is ineligible for control release, a program used to reduce prison populations in order to avoid overcrowding; however, no inmate has the right to be included in any controlled release pursuant to the relevant statute. See § 947.146(2), Fla. Stat. (2011). While not specifically mentioned by Appellant, both control release and conditional release fall into the category of collateral consequences of a plea.


author: OSTERHAUS, J.

text:
    Jeffrey Lance HILL, Sr., and Linda Petry Hill, Appellants, v. SUWANNEE RIVER WATER MANAGEMENT DISTRICT, Appellee.
    CASE NO. 1D16-3343
    District Court of Appeal of Florida, First District.
    Opinion filed April 18, 2017

      Jeffrey Lance Hill, Sr., pro se, Appellant.
    Leonard J. Dietzen, III, and Brian L. Hayden of Rumberger, Kirk & Caldwell, P.A., Tallahassee, for Appellee.
   OSTERHAUS, J.

Jeffrey Lance Hill, Sr., and Linda Petry Hill appeal an order granting final summary judgment on their takings claim on grounds that the Suwannee River Water Management District possesses absolute quasi-judicial immunity from suit. We reverse because the District’s actions that flooded the Hills’ property weren’t rulings or judicial acts that qualify to receive quasi-judicial immunity.

I.

The Hills, their pond and dam, and the Suwannee River Water Management District have a long history. In 2006, the District sought an injunction against Mr. Hill’s company, El Rancho No Tengo, Inc., asserting that it must get a permit to repair the dam at the farm, which had eroded after significant rainfall in 2003. According to the final permanent injunction order from 2007, water had flowed out through a dam spillway into adjacent fields and beyond, depositing a large amount of farm soil into Columbia County’s Alligátor Lake Recreational Area, southwest of the dam. Everyone agreed that repair was necessary to keep the dam safe. Mr. Hill and his children proceeded to work on fixing the dam without a permit and without the help of anybody with formal training in the construction and repairs of dams. The final injunction order, however, found the work to be improperly done and to have a significant likelihood of failing and causing further damage. It required Mr. Hill’s company “forthwith [to] drain the dam to the lowest level feasible and, within 60 days of the entry of this order, provide to [the District] engineering certification of the dam and its appurtenant works and an operation and maintenance plan.” The injunction further ordered that the defendant “shall not impound water to its full capacity behind the dam until [the District] provides written approval ... of the certification and operation and maintenance plan.” Mr. Hill’s company appealed the injunction order, but this court affirmed. See El Rancho No Tengo, Inc. v, Suwannee River Water Mgmt. Dist., 6 So.3d 56 (Fla. 1st DCA 2009).

Since that time, neither the company nor the Hills have complied with the injunction order, either to drain their pond (an affidavit attached to the Third Amended Complaint refers to the pond as the Hills’ pond), or to satisfy the injunction’s required maintenance and operation plan requirements. The District has repeatedly inspected the dam, found the water-level dangerously high, and sought the Hills’ compliance to drain the water as required by the court’s injunction, but to no avail. The District returned to the circuit court again-and-again for relief due to the water-level. And the circuit court responded by issuing multiple contempt orders authorizing the District “[to drain] the impoundment to the lowest level feasible and [to remove] as much of the dam in the vicinity of the principal spillway as necessary to allow water to continuously flow unimpeded downstream from the impoundment.” Mr. Hill’s affidavit attached to the third Amended Complaint states that the pond has been drained four times between 2008 and 2010.

The Hills didn’t challenge the various contempt orders or findings therein, but filed an independent court action claiming a real property taking, among other things, in 2011. The Hills alleged that the District’s drainage actions flooded their farm’s sixty acres and has denied them viable and beneficial use of their land since September 2008 without any compensation. The Hills sought an order to cease the flooding caused by the District and compensatory damages of at least one million dollars.

After a hearing, the circuit court granted final summary judgment for the District. The order concluded that the District possessed quasi-judicial-immunity with respect to the takings claim because its actions were taken under the authority of court orders. The Hills appealed the summary judgment order.

II.

The circuit court’s order granting summary judgment involves a pure question of law that we review de novo. Jax Utils. Mgmt., Inc, v. Hancock Bank, 164 So.3d 1266, 1269 (Fla. 1st DCA 2016); Caribbean Conser. Corp. v. Fla. Fish & Wildlife Conserv. Comm’n, 838 So.2d 492, 500 (Fla. 2003).

The circuit court granted summary judgment for the District in this case on quasi-judicial immunity grounds. “A judge or quasi-judicial official may claim judicial immunity only if he can demonstrate: (1) the ruling in question was a ‘judicial act;’ and (2) there was jurisdiction to issue the ruling.” Fuller v. Truncale, 50 So.3d 25, 28 (Fla. 1st DCA 2010). “When these two prongs can be shown, the judge or quasi-judicial official may claim judicial immunity, even if the ruling in question was unwise, reckless, or malicious.” Id. The District in this case isn’t a judge or judicial official. For judges, absolute immunity is recognized “because of the special nature of their responsibilities.” Butz v. Economou, 438 U.S. 478, 511, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). But other officials too may be considered “quasi-judicial” officers and receive “quasi-judicial” immunity based on the functional comparability of their judgments with those of judges. Id. at 512, 98 S.Ct. 2894. A recent Fourth District opinion hinged absolute immunity for nonjudicial officials, for instance, on whether the action was “integrally related to the judicial process. Absolute quasi-judicial immunity for nonjudicial officials is determined by a functional analysis of their actions in relation to the judicial process.” Zoba v. City of Coral Springs, 189 So.3d 888, 891 (Fla. 4th DCA 2016) (quotation omitted).

We recognize that courts in Florida and elsewhere have applied quasi-judicial immunity in many instances where non-judges have made decisions resembling judicial acts. See, e.g„ Fuller, 50 So,3d at 28 (immunity applied to clerk of court’s adjudication of traffic infractions and suspending drivers’ licenses); Fong v. Forman, 105 So.3d 650, 653 (Fla. 4th DCA 2013) (same); Dep’t of Highway Safety v. Marks, 898 So.2d 1063 (Fla. 5th DCA 2005) (decisions of a hearing officer); Andrews v. Fla. Parole Comm’n, 768 So.2d 1257 (Fla. 1st DCA 2000) (decisions by the Parole Commission); Office of State Attorney, Fourth Judicial Cir. of Fla. v. Parrotino, 628 So.2d 1097, 1098 (Fla. 1993) (decisions by state attorneys); Johnson v. Harris, 645 So.2d 96, 98 (Fla. 5th DCA 1994) (immunity applied to a date stamp placed by a judge’s assistant); see also Martin v. Hendren, 127 F.3d 720, 721 (8th Cir. 1997) (immunity applied to a law enforcement officer’s courtroom action taken at the judge’s behest). But in these cases, the courts applied immunity to decisional actions that were qualitatively different than what occurred here. The District’s actions here, draining a pond and flooding fields, isn’t part and parcel of the judicial process, or functionally comparable to the work of judges—making decisions, resolving disputes, adjudicating rights, processing cases, and the like. See Montejo v. Martin Mem’l Med. Ctr., 935 So.2d 1266, 1270 (Fla. 4th DCA 2006) (rejecting a hospital’s quasi-judicial immunity claim because its action wasn’t co-extensive with immunity afforded judges). And so, we cannot affirm the decision to grant final summary judgment to the District on quasi-judicial immunity grounds.

III.

We thus REVERSE the circuit court’s order granting summary judgment and REMAND for additional proceedings.

BILBREY and WINOKUR, JJ., CONCUR.

       Even if the District’s actions were functionally equivalent to judicial acts, we note that judicial decisions aren’t necessarily immune from takings claims. See Stop the Beach Renourishment, Inc. v. Fla. Dept. of Envtl. Prot., 560 U.S. 702, 715, 130 S.Ct. 2592, 177 L.Ed.2d 184 (2010) (Scalia, J., plurality opinion) (''[T]he Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking. ... [A] legislative, executive, or judicial restriction of property use may or may not be [a taking], depending on its nature and extent. But the particular state actor is irrelevant.”) (emphasis in original).


author: SCALES, J.

text:
    Wayne DUNBAR, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-19
    District Court of Appeal of Florida, Third District.
    Opinion filed April 19, 2017

      Wayne Dunbar, in proper person.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for respondent.
    Before SUAREZ, C.J., and ROTHENBERG and SCALES, JJ.
   SCALES, J.

On January 3, 2017, Petitioner Wayne Dunbar filed with this Court the instant petition seeking a writ of mandamus. We dismiss the petition.

Last year, this Court affirmed without elaboration Dunbar’s conviction for possession of a firearm by a convicted felon. Dunbar v. State, 185 So.3d 1248 (Fla. 3d DCA 2016) (table). In August of 2016, Dunbar filed a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.850. The State responded on August 24, 2016. The following day, the trial court adjudicated Dunbar’s motion (granting his motion, in part, as to a jail credit calculation, but otherwise denying the motion), and Dunbar appealed this order to this Court on September 26, 2016. On April 12, 2017, this Court affirmed the decision of the trial court in case number 3D16-2361.

Presumably unaware that the trial court, on August 25, 2016, had denied his rule 3.850 motion, Dunbar, on September 16, 2016, filed a purported reply to the State’s August 24, 2016 response. Rather than treating Dunbar’s reply as a motion for rehearing of its August 25, 2016 order, the trial court simply struck Dunbar’s reply as moot on October 5, 2016.

Dunbar then forwarded a notice of appeal to the Miami-Dade Circuit Court in which he sought to appeal to this Court the trial court’s October 5, 2016 order striking his reply as moot. Because the circuit court apparently did not receive this notice of appeal, the clerk of the court did not transmit it to this Court. Thus, in the instant case, Dunbar has petitioned this Court to issue a writ of mandamus ordering the circuit court to transmit to this Court his appeal of the order striking his reply as moot.

Because Dunbar’s September 16, 2016 reply was filed more than fifteen days after the trial court’s August 25, 2016 order denying Dunbar’s rule 3.850 motion, the trial court did not err by failing to treat Dunbar’s reply as a motion for rehearing under rule 3.850(j). Dunbar’s reply was not an “authorized and timely motion” so as to authorize an adjudication by the trial court prior to this Court’s adjudication of Dunbar’s appeal in case number 3D16-2361. Because Florida Rule of Appellate Procedure 9.140(b) does not authorize an appeal of an order striking a reply, this Court has no jurisdiction to review the trial court’s October 5, 2016 order. That the clerk of the circuit court did not receive or transmit Dunbar’s purported appeal of the trial court’s October 5, 2016 order is of no consequence. There are no grounds for this Court to issue a writ of mandamus.

Petition dismissed.

      . A motion seeking rehearing of an order denying a movant’s rule 3.850 motion must be filed within fifteen days of the service of the order. Fla. R. Crim. P. 3.850(j).

      . Both Dunbar’s reply and the trial court’s corresponding order are part of the record in case number 3D16-2361.

      . Rule 3.850 does not contemplate a movant's reply.

      . Fla. R. App. P, 9.020®.


text:
    Robert GODDARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2969
    District Court of Appeal of Florida, Second District.
    Opinion filed April 21, 2017.

      Arturo R. Rios of Law Office of Arturo R. Rios, P.A., St. Petersburg, for Appellant.
   PER CURIAM.

Robert Goddard appeals the order summarily denying his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively refute Mr. Goddard’s claim that counsel provided ineffective assistance by misadvising him regaining the deportation consequences of pleading guilty, we reverse and remand for further consideration of Mr. Goddard’s claim.

Background

Mr. Goddard is an immigrant from Barbados and is a lawful permanent resident of the United States. In August 2015, pursuant to a negotiated plea agreement, Mr. Goddard pleaded guilty to possession of methylenedioxymethamphetamine (MDMA), possession of prescription drugs without a prescription, possession of cocaine, possession of cannabis with intent to sell, and possession of drug paraphernalia. The trial court withheld adjudication and ordered twenty-four months’ probation and ten days of confinement in the county jail. As a result of those convictions, the Department of Homeland Security detained Mr. Goddard and initiated removal proceedings in February 2016.

In an amended motion for postconviction relief filed in March 2016, Mr. Goddard raised one claim of ineffective assistance of counsel, alleging that his trial counsel specifically advised him on two separate occasions that his pleas would not subject him to deportation if the trial court withheld adjudication. Mr. Goddard asserted that had counsel not given him that advice, he would not have pleaded guilty and would have proceeded to trial.

After ordering the State to respond, the postconviction court issued a two-paragraph order adopting the State’s reasoning that the trial court’s advisement during the plea colloquy, “if you are not a U.S. citizen you are subject to deportation,” cured any prejudice from counsel’s misadvice. This appeal follows.

Analysis

When reviewing the summary denial of a motion filed under rule 3.850, this court applies de novo review and “must accept the movant’s factual allegations as true to the extent that they are not refuted by the record.” Jennings v. State, 123 So.3d 1101, 1121 (Fla. 2013) (citing Occhicone v. State, 768 So.2d 1037, 1041 (Fla. 2000)). Since there was no evi-dentiary hearing, the court “must examine each claim to determine if it is legally sufficient[ ] and, if so, whether the record refutes it.” Allen v. State, 854 So.2d 1255, 1258 (Fla. 2003). “[UJnless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Fla. R. App. P. 9.141(b)(2)(d).

Mr. Goddard raises one claim of ineffective assistance of counsel, for which he is required to show that (1) counsel’s performance was deficient and (2) the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that counsel was deficient, Mr. Goddard must overcome the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. “In the plea context, a defendant satisfies the prejudice requirement only where he can demonstrate ‘a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ “ Hernandez v. State, 124 So.3d 757, 762 (Fla. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). “[A] petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Id. (alteration in original) (quoting Padilla v. Kentucky, 559 U.S. 356, 372, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)).

A. Deficiency

First, the record does not conclusively refute Mr. Goddard’s claim that counsel’s misadvice constituted deficient performance, as the deportation consequences of pleading guilty could be easily determined from reading the federal removal statute. In Padilla, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284, the Supreme Court held that counsel has a duty to advise noncitizen clients of the deportation consequences of pleading guilty. The Court ruled that it is deficient performance for counsel to fail to advise or to affirmatively misadvise a client regarding the deportation consequences of pleading guilty when those consequences are “truly clear.” Id. at 369, 130 S.Ct. 1473.

Like Mr. Goddard, Mr. Padilla was charged with committing a crime involving a controlled substance (transportation of a large amount of marijuana). Id. at 359,130 S.Ct. 1473. In concluding that counsel was deficient for not advising Mr. Padilla that he would likely be deported if he pleaded guilty, the Court stated “counsel could have easily determined that [Mr. Padilla’s] plea would make him eligible for deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses.” Id. at 368, 130 S.Ct. 1473 (referring to 8 U.S.C. § 1227(a)(2)(B)(i)). In that situation, where the deportation consequence of pleading guilty was clear, counsel rendered deficient performance by failing to accurately advise his client that a conviction would almost certainly lead to deportation.

Similarly, Mr. Goddard faced controlled substance charges that would be grounds for deportation under the same federal removal statute. See 8 U.S.C. § 1227(a)(2)(B)(i) (2015) (“Any alien who at any time after admission has been convicted of a violation of ,.. any law or regulation of a State ... relating to a controlled substance .,., other than a single offense involving possession for one’s own use of 30 grams or less of marijuana, is deporta-ble.”). Mr. Goddard’s MDMA, cocaine, and marijuana convictions would each qualify under the statute. Thus, as was the case in Padilla, the deportation consequence of pleading guilty was clear, and counsel therefore would have been deficient for providing anything short of accurate advice that deportation would be all but certain.

On that point, Mr. Goddard asserts in a sworn affidavit that counsel specifically told him on two occasions that he would not be deported if he pleaded guilty. According to Mr. Goddard, counsel was adamant that if the court withheld adjudication then he would not have any formal convictions that would allow for deportation. This advice was incorrect, as a withholding of adjudication qualifies as a conviction for deportation purposes. See 8 U.S.C. § 1101(a)(48)(A) (defining “conviction” as including a withhold of adjudication when (i) “the alien has entered a plea of guilty” and “(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty”); Gomez v. State, 126 So.3d 444, 444 (Fla. 4th DCA 2013) (noting that deportation for a controlled substance offense “was automatic, regardless of the withholding of adjudication”). Taking his assertions as true, as we are required to do, Mr. Goddard has made a sufficient showing of deficiency, and the record does not refute his claim on this point.

B. Prejudice

Second, the record does not conclusively refute Mr. Goddard’s claim that he was prejudiced by counsel’s deficient performance, as he alleges that he would not have pleaded guilty had he known that he would likely be deported, and the court’s plea colloquy was insufficient to cure counsel’s misadvice. The State contends that the court’s advisement during the plea colloquy was unequivocal and negated counsel’s errors. However, in the context of refuting prejudice, a court must look to the totality of the circumstances to determine if the defendant knew of the deportation consequences of entering a guilty plea, and the record in this case does not conclusively show that Mr. Goddard knew of those consequences.

The Florida Supreme Court explained in Hernandez, 124 So.3d at 763, that for a plea colloquy to cure counsel’s deficiency it must rise to the same level of accuracy and clarity that Padilla requires of counsel:

Where deportation consequences are “truly clear,” the United States Supreme Court in Padilla requires effective counsel to provide more than equivocal advice concerning those consequences. At least in those circumstances, an equivocal warning from the trial court is less than what is required from counsel and therefore cannot, by itself, remove prejudice resulting from counsel’s deficiency.

(Citation omitted.) Thus, in cases such as this one, where counsel is required to provide clear and accurate advice that a guilty plea will almost certainly result in deportation, the court’s advisement in the plea colloquy must be equally clear and accurate in order to erase any prejudice.

In addition to looking at the clarity of the plea colloquy, the supreme court in Hernandez also indicated that the analysis should look at the totality of the circumstances to determine if the defendant was on notice of the deportation consequences of his plea:

The fact that an equivocal warning from the trial court is insufficient to categorically eliminate prejudice in every circumstance is not to say, however, that the plea colloquy is meaningless .... Instead, a colloquy containing an equivocal warning from the trial court and an acknowledgment from the defendant contributes to the totality of the circumstances by providing evidence that the defendant is aware of the possibility that a plea could affect his immigration status. In other words, the colloquy required by [Florida Rule of Criminal Procedure] 3.172(c)(8) may refute a defendant’s postconviction claim that he had no knowledge that a plea could have possible immigration consequences; however, it cannot by itself refute a claim that he was unaware of presumptively mandatory consequences.

Id. (emphasis added and citation omitted).

Accordingly, we must determine whether the court, through its plea colloquy, met counsel’s duty under Padilla to correctly inform the defendant of the “presumptively mandatory” deportation consequences of pleading guilty and whether it appears from the totality of the circumstances that the defendant pleaded guilty with knowledge of those consequences.

Applying the supreme court’s Hernandez analysis to this case, the particular plea colloquy that the trial court gave to Mr. Goddard did not cure counsel’s misad-viee and the totality of the circumstances do not conclusively show that Mr. Goddard knew the consequences of pleading guilty. The trial court’s plea colloquy in this case contained a string of advisements regarding nearly a dozen different rights that Mr. Goddard was giving up by pleading guilty, with a brief advisement concerning deportation in the middle:

COURT: Okay, by entering into this plea agreement you’re giving up certain constitutional rights related to this case that I need to go over with you. You are giving up the right to a jury trial, the right to the proof of the allegations by the State beyond and to the exclusion of any reasonable doubt. The right to confront witnesses, the right to be represented by an attorney at the trial and to have your attorney cross-examine witnesses called by the State and to subpoena and compel witnesses on your behalf.
You are also giving up the right to choose not to testify and to have the jury told they cannot hold that against you as well as giving up the right to choose to testify and have your testimony considered like that of any other witnesses. You are also giving up the right to appeal guilt or innocence of the charges and if you are not a U.S. citizen you are subject to deportation.
Also, if at any time you are ever incarcerated prior to your release the State can make a determination as to whether you had ever been accused of, charged with or found guilty of a sexually violent or sexually motivated offense in which case the State can file involuntary civil commitment proceedings against you to have you held civilly pursuant to the terms of the Jimmy Ryce Act. So, do you understand all of those matters?
THE DEFENDANT: Yes, sir.

(Emphasis added.) In light of the assured advice that Mr. Goddard received from counsel, the trial court’s advisement was insufficient to properly inform Mr. Goddard of the severe and nearly certain deportation consequences of pleading guilty.

Mr. Goddard alleged that counsel told him on two occasions that a withhold of adjudication would not subject him to deportation. Mr. Goddard asserted that he questioned counsel to make sure and that counsel assured him that he had nothing to worry about. Looking at the totality of the circumstances, the trial court’s brief statement, in the midst of a long colloquy, that the pleas would subject Mr. Goddard to deportation was insufficient to meet counsel’s duty under Padilla, and it does not establish that Mr. Goddard knew the deportation consequences of pleading guilty. Accordingly, the record does not conclusively refute Mr. Goddard’s claim of prejudice.

Conclusion

Because the record does not conclusively show that Mr. Goddard is not entitled to relief, we reverse the postconviction court’s summary denial of his motion and remand for further consideration of his claim, including an evidentiary hearing if necessary.

Reversed and remanded.

WALLACE, LaROSE, and MORRIS, JJ., Concur.

      . Prior to 2016, rule 3.172(c)(8) contained a simple advisement that a finding of guilt "may” result in deportation. See In re Amendments to Fla. Rules of Criminal Procedure, 188 So.3d 764, 766, 770 (Fla. 2015).

      . We note that the change in rule 3.172(c)(8)’s standard advisements between 2015 and 2016 demonstrates the supreme court’s recognition of the importance of a thorough advisement and the inadequacy of a brief advisement. Prior to 2016, the rale instructed trial courts to simply advise a defendant that “if he or she is not a United States citizen, [a guilty or no contest] plea may subject him or her to deportation.” Fla. R. Crim. P. 3.172(c)(8). In the 2016 version of rule 3.172(c)(8), courts are now instructed to give a much more comprehensive advisement:
      (A)If the defendant is not a citizen of the United States, a finding of guilt by the court, and the court’s acceptance of the defendant’s plea of guilty or no contest, regardless of whether adjudication of guilt has been withheld, may have the additional consequence of changing his or her immigration status, including deportation or removal from the United States.
      (B) The court should advise the defendant to consult with counsel if he or she needs additional information concerning the potential deportation consequences of the plea.
      (C) If the defendant has not discussed the potential deportation consequences with his or her counsel, prior to accepting the defendant’s plea, the court is required, upon request, to allow a reasonable amount of time to permit the defendant to consider the appropriateness of the plea in light of the advisement described in this section.
      (D) This admonition should be given to all defendants in all cases, and the trial court must not require at the time of entering a plea that the defendant disclose his or her legal status in the United States,


author: LAGOA, J.

text:
    Eduardo CASTILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1868
    District Court of Appeal of Florida, Third District.
    Opinion filed April 26, 2017

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ.
   LAGOA, J.

Eduardo Castillo (“Castillo”) appeals from his conviction and sentence for second degree murder with a deadly weapon. On appeal, Castillo raises two arguments. First, Castillo argues that the trial court erred in overruling defense counsel’s objection to comments made by the State in closing argument. Second, Castillo argues that the trial court improperly reclassified his second degree murder conviction from a felony of the first degree to a life felony pursuant to section 775.087(l)(a), Florida Statutes (2015).

With regard to the first argument, we find that the error was harmless, and affirm Castillo’s conviction for second degree murder without further discussion. With regard to the second argument, we agree that the State failed to introduce any substantive evidence that Castillo had actual possession of a deadly weapon. We therefore conclude that the reclassification of Castillo’s conviction to a life felony constitutes fundamental error and remand to the trial court for resentencing without reclassification under section 775.087(l)(a).

I. FACTUAL AND PROCEDURAL HISTORY

The State charged Castillo and his co-defendants by information with the second degree murder of Luis Rodriguez (“Rodriguez”) in violation of section 782.04(2), Florida Statutes (2015). The information alleged that Rodriguez was killed by “BEATING AND/OR STRIKING HIM REPEATEDLY’ and that “during the course of committing said offense, [Castillo] carried, used, or threatened to use a deadly weapon, to wit: A BAT AND/OR A STICK AND/OR A ROCK.”

At trial, the State presented the testimony of several witnesses who either witnessed or were involved in the attack. Joel Forcelledo (“Forcelledo”) testified that on the night of January 7, 2010, he was working as a security guard at a nursing home when he heard screaming in a nearby parking lot. Forcelledo saw several individuals chasing one male who was running and fell down. When the victim fell, he was beaten with a bat but Forcelledo could not identify any of the attackers. Forcelledo called 911 and then rushed to aid the victim.

T.L. testified that on the night in question she witnessed Rodriguez running from a group of at least ten boys that were members of the Bout That Life (“BTL”) gang. At trial, T.L. identified “Teddy,” “Baby,” and “Young Money,” but she did not identify Castillo. T.L. saw “Teddy” slam Rodriguez to the floor and also saw “Baby” throw a rock at the victim. She further testified that the entire group of boys participated in hitting and kicking Rodriguez. When T.L.’s father screamed that the police were coming, the group dispersed, and T.L. went to the aid of Rodriguez.

The State presented the testimony of two other witnesses who identified Castillo as participating in the attack on Rodriguez. Specifically, Daniel Salas (“Salas”) testified that on the night of January 7, 2010, he, Castillo, and others beat Rodriguez, and that during the beating, Castillo “grabbed [Rodriguez] by the shirt and started punching him in the face.” Salas did not testify that Castillo used a stick or other weapon.

Rodriguez’s friend, Mauricio Ordonez (“Ordonez”), also testified at trial. Ordo-nez testified that on the night of January 7, he and Rodriguez were at Riverside Elementary School when they heard the name of the gang, BTL, being screamed behind them. A group of people, including Castillo, began to chase him and Rodriguez, so they ran. At trial, Ordonez identified “Baby,” “Castillo,” “Teddy,” “Alex,” and “Young Money” as part of the group that chased him on the night of January 7. On direct examination, Ordonez testified that he did not see any part of the beating because he became separated from Rodriguez while they were running and he hid in a building. The State then elicited testimony from Ordonez concerning a prior inconsistent statement—specifically, that on January 8, 2010, the day after the beating, Ordonez contacted the police and told them that he saw Rodriguez “get beat to death.” Ordonez testified that his January 8 statement to the police was not true, that he had not seen any part of the beating, and that he lied to the police so that his friend “could get justice.” During defense counsel’s cross-examination of Ordonez concerning his January 8 statement to the police, the following exchange occurred:

Q. Then you went on to say that you observed Tito, Tito Castillo, repeatedly hit the victim with a long stick, that was a lie too, wasn’t it?
A. Yes.
Q. Now, I believe on direct examination that you testified that your reason for going into the police department and lying was that you wanted to seek justice for your friend?
A. Yes.

(Emphasis added).

The jury subsequently found Castillo guilty of second degree murder and checked a box on the verdict form finding that Castillo “carried, displayed, or used a deadly weapon.” Based on the jury’s finding, the trial court reclassified Castillo’s conviction for second degree murder from a felony of the first degree to a life felony pursuant to section 775.087(l)(a). Castillo was sentenced to life, and this appeal ensued.

II. ANALYSIS

On appeal, Castillo argues that the State failed to prove that he used or had actual possession of a deadly weapon during the commission of the crime and, therefore, the trial court erred in reclassifying his second degree murder conviction from a felony of the first degree to a life felony pursuant to section 775.087(l)(a).

Castillo concedes that the issue of the sufficiency of the evidence as to the allegation that he used or possessed a deadly weapon was not raised below as his counsel did not object to the verdict form or preserve the issue in any way. Because the issue was not preserved, the standard of review is fundamental error.

In Monroe v. State, 191 So.3d 395, 401 (Fla. 2016), the Florida Supreme Court, in addressing fundamental error, explained that “reviewing courts should proceed with caution when considering whether a fundamental error has occurred.” The Supreme Court further explained, “[w]e have even more narrowly applied the fundamental error doctrine to alleged errors of insufficient evidence.” Id. (emphasis added). Indeed, there are only two instances where an unpreserved challenge to the sufficiency of the evidence can be reviewed. Id.; see also F.B. v. State, 852 So.2d 226, 230 (Fla. 2003) (“[W]e hold that, with two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court.”). The first exception concerns death penalty cases and is therefore not applicable here. See F.D., 852 So.2d at 230. The second exception “occurs when the evidence is insufficient'to show that a crime was committed at all.” Id.

Thus, an argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error-i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.

852 So.2d at 230-31; accord Monroe, 191 So.3d at 401 (stating that an unpreserved challenge to the sufficiency of the evidence can be reviewed “when there is insufficient evidence that a defendant committed any crime”) (emphasis in original); see, e.g., Troedel v. State, 462 So.2d 392, 399 (Fla. 1984) (finding that “a conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error”); Stanton v. State, 746 So.2d 1229, 1230 (Fla. 3d DCA 1999) (same).

Here, the State argues that Castillo’s conviction was properly reclassified based upon his actual possession of a stick, and that this conclusion is supported by Ordo-nez’s acknowledgement during cross-examination of his prior inconsistent statement made to the police on January 8, the day after Rodriguez’s murder. Specifically, the State relies upon Ordonez’s response of “yes” to defense counsel’s question: “Then you went on to say that you observed Tito, Tito Castillo, repeatedly hit the victim with a long stick, that was a lie too, wasn’t it?” The State argues that the jury did not find Ordonez’s testimony that he lied to the police to be credible, that they “apparently believed his original statement,” and that this constitutes substantive evidence that Castillo was in possession of a stick during the attack.

Under section 90.801(2)(a), Florida Statutes (2015), prior inconsistent statements can be admitted as substantive evidence “if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is ... [inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” § 90.801(2)(a), Fla. Stat. (2015). The law is well-established that “a statement given under oath during a police investigation is not a statement given at an ‘other proceeding1 and consequently is not admissible as substantive evidence under section 90.801(2)(a).” Pearce v. State, 880 So.2d 561, 569 (Fla. 2004) (citing State v. Delgado-Santos, 497 So.2d 1199 (Fla. 1986)); see also S.L. v. State, 993 So.2d 1108, 1110 (Fla. 4th DCA 2008) (holding that police officer’s testimony as to the victim’s prior inconsistent statements made to him on day of the alleged crime were not admissible as substantive evidence and could not be used to support a finding of guilt). Here, Ordonez’s prior inconsistent statement to police was not given at a trial, hearing, or other proceeding or in a deposition. Accordingly, while Or-donez’s prior inconsistent statement could be used for impeachment, Ordonez’s prior inconsistent statement cannot constitute admissible substantive evidence.

III. CONCLUSION

Because the State presented no substantive evidence that Castillo used or had personal possession of a deadly weapon, i.e., a stick, during the commission of the crime, we find that the trial court erred in reclassifying Castillo’s conviction from a felony of the first degree to a life felony pursuant to section 775.087(l)(a). Accordingly, we affirm Castillo’s conviction, but reverse his sentence and remand for re-sentencing without reclassification under section 775.087(1). Castillo shall be present at the resentencing.

Affirmed in part; reversed in part and remanded for resentencing.

      . Because T.L. was a minor at the time of the attack, we refer to her in this opinion only by her initials.

      . T.L. testified that she was familiar with the gangs operating in her neighborhood as her brother was a member of the rival gang, Riverside. T.L. further testified that neither she nor Rodriguez were members of the Riverside gang.

      . The State did not charge Salas in the information referenced in this case.

      . Castillo’s brief refers to this witness as Mauricio Perez. As the trial transcript and the Statement of Facts in Support of Arrest Warrant contained in the record refer to this witness as Mauricio Ordonez, we refer to him as such in this opinion.

      . Ordonez testified that he was familiar with the BTL gang and the Riverside gang but that neither he nor Rodriguez were members.

      . At trial, Ordonez identified Castillo by his nickname "Tito.”

      . The trial transcript reflects that during cross-examination, defense counsel was apparently reading from Ordonez’s statement to the police. The State objected to defense counsel "reading something not in evidence, improper impeachment,” and to defense counsel "reading from something that’s not a prior sworn statement.” The trial court overruled the objections.

      . Section 782.04(2) provides in part that "murder in the second degree ... constitutes a felony of the first degree.”

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

      .Both Castillo and the State agree that Castillo’s conviction could not be reclassified based on a co-defendant’s possession of a deadly weapon. Indeed, the law is well-settled that that section 775.087(1) does not permit vicarious enhancement. See State v. Rodriguez, 602 So.2d 1270, 1272 (Fla. 1992) ("We hold that, when a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775,087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.”); Connolly v. State, 172 So.3d 893, 910 (Fla. 3d DCA 2015) ("We agree with the defendant that his conviction for second degree murder could not be reclassified under section 775,087(1) based on a co-defendant’s possession or use of a weapon or firearm during the commission of the murder.”); see also Campbell v. State, 935 So.2d 614, 618 (Fla. 3d DCA 2006); Chase v. State, 74 So.3d 1138, 1139 (Fla. 2d DCA 2011).

      . Although not necessary to this Court's analysis to reverse Castillo's reclassification under section 775.087(l)(a), we note that the State's argument that Castillo’s conviction was properly reclassified suffers from an additional infirmity. In a criminal prosecution, even where a prior inconsistent statement is admissible, "a prior inconsistent statement standing alone is insufficient to prove guilt beyond a reasonable doubt.” State v. Moore, 485 So.2d 1279, 1281 (Fla. 1986); see also Santiago v. State, 652 So.2d 485, 486 (Fla. 5th DCA 1995) (where the only evidence offered by the state to substantiate the charge of attempted murder is the prior inconsistent statement of its own witness, the evidence is insufficient to support a conviction). In the case at issue, the State presented no testimony, other than Ordonez’s acknowledgment on cross-examination of his prior inconsistent statement, to support the State's allegation that Castillo used or possessed a stick or deadly weapon during the commission of the crime. As such, even if Ordonez’s prior inconsistent statement was admissible as substantive evidence, Ordonez’s testimony alone would be insufficient as a matter of law to prove Castillo’s actual use or possession of a deadly weapon.