author: ROBERTS, J.

text:
    Reynoldo MARTIN-GODINEZ, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1860
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017

      Andy Thomas, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Robert Quentin Humphrey, Assistant Attorney General, Tallahassee,,for Appellee.
   ROBERTS, J.

In this appeal, the appellant argues the trial court erred in denying his pre-trial motion to suppress statements made to law enforcement at' a time when he had not been provided with an appropriate interpreter. We find no error in the trial court’s denial of the motion to suppress and affirm.

The appellant is a native of Guatemala and primarily speaks a dialect of the Mayan language, Mayan Mam, along with some Spanish. The State filed sexual battery and lewd and lascivious molestation charges against the twenty-two-year-old appellant, claiming he molested his niece who was between eight and nine years old ■at the time. After, he was identified as a suspect, the appellant .-was detained and interviewed by a Spanish-speaking detective. At the outset of the .interview, the appellant told the detective that he only spoke a little English, but he did speak Spanish. The detective asked the appellant several questions in Spanish about his background and reviewed his constitutional rights. The appellant, was sufficiently able to answer the questions and voiced an understanding of his rights. The appellant signed a Miranda waiver form and was able' to read the first line' aloud to the detective. After • affirmatively waiving his rights, the appellant agreed to speak" with the detective and provided several incriminating statements.

The appellant later moved to suppress the statements, arguing that they were obtained in violation of his privilege against self-incrimination, and his,right to counsel because he did not understand his Miranda rights and the interview, which were conducted in Spanish instead of Mayan Mam. The appellant argued that his limited édueation further impeded his ability to understand his legal rights. The State responded that the appellant never conveyed that he could not understand Spanish, never asked for a Mayan Mam interpreter, and had' agreed to talk with the detective after affirmatively waiving his Miranda rights. Thé trial court denied the motion to suppress upon the “totality of the circumstances,”, which included its review of the DVD and transcript of the interview and consideration of the testimony and argument at the Suppression hearing. It found the appellant understood Spanish enough to freely and voluntarily waive his Miranda rights with a full understanding of what he was doing and he had agreed to speak with the detective.

On appeal, the appellant argues that it was error to deny the motion to suppress where the totality of the circumstances, including his language barrier, lack of education, relátively short time in the United States, and lack of exposure to the judicial system, supported a conclusion that he did not knowingly, intelligently, or voluntarily waive his right to counsel or his privilege against self-incrimination. We disagree.

A ruling on a motion to suppress comes to the appellate court with a presumption of correctness. Spivey v. State, 45 So.3d 51, 54 (Fla. 1st DCA 2010) (citing Connor v. State, 803 So.2d 598, 605 (Fla. 2001)). This Court applies a mixed standard of review, giving deference to the factual findings that are supported by competent, substantial evidence, but reviewing the determination of constitutional rights de novo. Id.

The State carried the burden to prove the appellant waived his Miranda rights by a preponderance of the evidence. Balthazar v. State, 549 So.2d 661, 662 (Fla. 1989). In order to waive Miranda rights, the waiver must be made “voluntarily, knowingly and intelligently.” Murdock v. State, 115 So.3d 1050, 1055 (Fla. 4th DCA 2013) (citations omitted). The burden of proving voluntariness is “heavier” when a defendant claims a language barrier, but the standard of proof remains the same. Balthazar, 549 So.2d at 662. The appellant does not claim that his waiver was the product of intimidation, coercion, or deception. Therefore, the totality of the circumstances must show that his waiver was made with a full awareness of the rights he was abandoning and the consequences of the abandonment. Murdock, 115 So.3d at 1055 (citing Louis v. State, 855 So.2d 253, 255 (Fla. 4th DCA 2003)).

The trial judge’s finding that the appellant understood Spanish well enough to freely and voluntarily waive his Miranda rights with a full understanding of what he was doing is supported by competent, substantial evidence. The appellant was able to sufficiently answer the detective’s background questions in Spanish, and he acknowledged he understood the rights he was waiving. The appellant argues that the trial judge failed to consider factors beyond his language barrier; however, her ruling was made upon consideration of the “totality of the circumstances.” While the appellant did state he only had a second-grade education, there was no indication that he had anything but average intelligence. His answers to the detective’s questions indicated he had a sufficient understanding of the judicial system. For example, when asked if he knew what a lawyer was, the appellant stated it was someone to advocate for him. After the appellant affirmatively waived his rights, the interview continued in Spanish wherein the appellant provided a detailed account of his actions against his niece. Accordingly, the trial judge appropriately denied the motion to suppress, allowing for the admission of the appellant’s incriminating statements.

AFFIRMED.

LEWIS and WINSOR, JJ., CONCUR.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The court also considered the observations of a previous judge who had presided over an earlier hearing on child hearsay evidence, which the appellant does not challenge on appeal. The previous judge had denied' the appellant’s request to delay the proceedings in order'to find a Mayan Mam interpreter. The previous judge personally observed that the appellant had a sufficient command of Spanish such that continuing the proceedings with a Spanish interpreter would not jeopardize his constitutional rights. While declining to delay the proceedings, defense counsel was allowed to continue to search for a Mayan Mam interpreter. One was eventually located and was present from the appellant’s suppression hearing throughout the remainder of trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brian K. SANFORD, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2819
    District Court of Appeal of Florida, First District.
    Opinion filed August 15, 2017
    Brian K. Sanford, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla. 2004).

This Court reserves jurisdiction to consider the imposition of sanctions.

ROWE, MAKAR, and JAY, JJ., CONCUR.


author: SALARIO, Judge.

text:
    Kadarian Daime FREEMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2740
    District Court of Appeal of Florida, Second District.
    Opinion filed August 16, 2017.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   SALARIO, Judge.

In this Anders appeal, Mr. Freeman seeks review of a judgment and sentence in a 2015 ease and a related order revoking his probation in two 2012 cases. In June 2016, Mr. Freeman pleaded no contest to charges in the 2015 case involving multiple counts of burglary of a dwelling and grand theft of a dwelling involving more than $100 and one count of driving with a suspended or revoked license. He reserved no issues for appeal. He was given concurrent sentences of fifteen years in prison for each burglary count, five years in prison for each grand theft count, and time served for the license count. We affirm these convictions and sentences without further comment.

At the time he committed the offenses at issue in the 2015 case, Mr. Freeman was serving probation in two 2012 cases in which he had been adjudicated guilty on counts for robbéry with a deadly weapon, armed burglary, and harassing á witness. At the sáme hearing where he pleaded to the'new charges, he also admitted to violating all of the technical and substantive conditions of his probation that he was alleged to have violated as specified in an affidavit and amended affidavit of violation of probation filed subsequent to the events underlying the new charges. The trial court accepted this admission and entered a single order revoking his probation in both 2012 cases. The trial court sentenced him as a youthful offender to concurrent 214-month sentences oii each count in those cases. We affirm the revocation of his probation and resulting sentences in those cases without further comment.

There are two technical problems with the written record in each of the 2012 cases that we are required to correct. First, when it entered the new written sentences as a result of the probation revocation, the trial court also reentered the written judgments in the two cases. But Mr. Freeman had previously been adjudicated guilty of those offenses and written judgments thereon had already been entered. Entering those same judgments a second time in conjunction with the entry of the new written sentences is an error, correctable in an Anders proceeding, that requires the reversal of the new and superfluous written judgments. See Butler v. State, 195 So.3d 1147, 1148-49 (Fla. 2d DCA 2016), Second, the written order of revocation in the 2012 cases does not specify the conditions of probation that he admitted to violating, as it is required.to do. See Cato v. State, 845 So.2d 250, 251 (Fla. 2d DCA 2003).

For these reasons, we reverse only the new, unauthorized' written judgments for the 2012 violation of probation cases and direct that they be stricken on remand. We further direct that the written order of revocation be amérided to reflect the conditions of probation, as specified in the affidavits, that he admitted to violating. In all other respects, we affirm.

Affirmed in part; reversed , in part; remanded.

VILLANTI and BLACK, JJ., Concur.

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


author: FERNANDEZ, J.

text:
    Anthony Willard JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D17-944 and 3D17-1000
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017

      Kenneth P. Speiller, for appellant; Anthony Willard Johnson, in proper person.
    • Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, SALTER and FERNANDEZ, JJ.
   FERNANDEZ, J.

Anthony Willard Johnson appeals the denial of his “Second Motion for Post-Conviction Relief,” alleging that his plea was not voluntary because it was not entered with a full understanding of the ramifications of the plea. We affirm. .

At the time of the plea, Johnson was on probation in five cases that originated in 2005, and he faced potential life sentences in each of fhe cases. The plea resulted from new charges filed in 2013, including attempted first-degree murder with a firearm and possession 'of-a firearm by a convicted felon, Johnson faced mandatory life as a prison releasee reoffender in the new case.

Johnson entered into a written plea agreement that provided for. a twenty-five year prison sentence in each of the cases, including the probation cases and the new case. The State waived the minimum mandatory sentence requirement in the new case. Johnson was serving a two-hundred thirty-five month prison sentence in federal prison when he entered his plea.

In the written plea agreement, the State and Johnson requested that the trial court recommend that the State and federal sentences be served concurrently, and they further agreed that if the recommendation was not accepted -by either entity, this provision of the plea agreement would not support a- motion to vacate the plea or a motion for post-conviction, relief.-' Specifically, the relevant portion of the agreement provided as follows:

The State of Florida hereby requests that the Court recommend that the defendant’s sentence be served concurrently with his 235 month federal sentence in Federal. Case # l:13CR20619(s)MOORE. The defendant understands and acknowledges that this recommendation is not binding upon the federal government or State of Florida Department of Corrections, and is merely a recommendation. By accepting this plea agreement, the defendant acknowledges and accepts that if this recommendation is not honored, that would not serve as a basis for a post-conviction challenge to this plea agreement or a basis to vacate this plea agreement.

Johnson now claims that the trial court should have specifically advised him that, if the Florida Department of Corrections and the Federal Bureau of Prisons did not accept the trial court’s recommendation, he would be required to serve his state and federal sentences consecutively. He claims that the failure of the trial court to advise him accordingly resulted in an involuntary plea that he must be allowed to withdraw.

“A plea agreement is a contract and the rules of contract law are applicable to plea agreements.” Garcia v. State, 722 So.2d 905, 907 (Fla. 3d DCA 1998). A reading of the entire plea colloquy demonstrates that the trial court engaged in a thorough discussion with Johnson. Although Johnson expressed displeasure with the trial court’s admonishment that the recommendation was just that, a recommendation, he acknowledged that he wanted to enter into the plea agreement. The trial court advised Johnson that he did not have to enter into the plea agreement, and that he could instead have hearings in each of the five probation violation cases and a trial in the new case, but Johnson declined that opportunity. Johnson opted to complete the plea colloquy and adhere to the plea agreement.

The order of the trial court denying Johnson’s motion for post-conviction relief is therefore affirmed.

AFFIRMED.


author: LAGOA, J.

text:
    Todd DEARRIBA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017

      Todd Dearriba, in proper person.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before LAGOA, SCALES, and LUCK, JJ.
   LAGOA, J.

Appellant, Todd Dearriba (“Appellant”), appeals from an order summarily denying his pro se motion titled “Readdress Previous Motion to Clarify Sentence Structure.” Because the record before us fails to show that Appellant is entitled to no relief, we reverse and remand for attachments of records conclusively showing that Appellant is not entitled to relief.

I. FACTUAL AND PROCEDURAL HISTORY

On July 8, 2016, Appellant filed a “Motion to Clarify Sentence Structure or in Opposition Motion for Jail Time Credit” pursuant to Florida Rule of Criminal Procedure 3.801. In that motion,'Appellant states that at his original sentencing hearing in two separate cases (Case Number F99-8521 and Case Number F00-23981) he had been credited 709 days of jail credit time. Appellant’s motion further asserted that at his resentencing hearing, he was resentenced to fifteen years of imprisonment in both cases, and was credited 709 days in Case Number F99-8521 but only 619 days in Case Number F00-23891. Appellant requested clarification from the trial court as to whether the sentences had been imposed coterminously and further requested that his sentences in both cases reflect the proper jail credit awarded previously at his original sentencing hearing.

On July 28, 2016, the trial court entered a written order granting Appellant’s motion and stating: “sentence in F99-8521 is correct, motion pertains to F00-23981.” Appellant did not appeal the July 28, 2016, order.

On November 15, 2016, Appellant filed another motion titled “Readdress Previous Motion to Clarify Sentence Structure.” In that motion, Appellant alleged that the trial court’s July 28, 2016, order never addressed whether the two sentences were imposed coterminously. Appellant requested that the trial court “reissue an order to the Florida Department of Corrections re-clarifying its previous order rendered on July 28, 2016 that the Defendant was granted his sentences to be [run] conterminous which would terminate both sentences stated above on December 18, 2017 in this cause.” On December 1, 2016, the trial court summarily denied Appellant’s November 15, 2016, motion without a hearing. This appeal ensued.

This Court sua sponte ordered the State to address whether the December 1, 2016, order constituted an appealable order. In its response, the State asserted that the order was not appealable because Appellant’s November 15, 2016, motion was an untimely motion for rehearing.

II. ANALYSIS

Florida Rule of Appellate Procedure 9.140(b)(1)(D) provides that:

(1) Appeals Permitted. A defendant may appeal
(D) orders entered after final jüdg- • ment or finding of guilt, including orders revoking or modifying probation or community control, or both, or orders denying relief un- ' der Florida Rule of Criminal Procedure 3.800 (a), 3.801, 3.850, 3.851, or 3.853.

Here, the trial court’s July 28, 2016,. order granted Appellant’s rule 3.801 motion. As such, it was not an appealable order pursuant to rule 9.140(b)(1)(D). Although the Appellant’s November 15, 2016, rule 3.801 motion seeks the type of relief normally found in a motion for rehearing, we do not consider it a motion for rehearing as the trial court’s July 28, 2016, order did not deny Appellant’s July 8, 2016, motion, but instead granted it.

Because Appellant appeals from the trial court’s December. 1, 2016, order summarily denying his motion, this .Court- must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D). Because the record before us fails to make the required showing, we reverse the order and remand for attachment of records conclusively showing that the Appellant is not entitled to any relief or an evidentiary hearing. See Langdon v. State, 947 So.2d 460 (Fla. 3d DCA 2007). If the trial court again enters an order summarily denying the postconviction motion, the trial court shall attach record excerpts conclusively showing that the Appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: LUCK, J.

text:
    Johnathan SIMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2289
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and .Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SALTER, LOGUE and LUCK, JJ.
   LUCK, J.

Johnathan Simon shot and killed Jason Maharaj, and shot and attempted to kill fourteen year old Harris Ostral, as the two victims were walking to the Burger King near school. The jury, after an eight day trial, convicted Simon of first degree murder and attempted first degree murder. Simon contends that his convictions and life sentences should be reversed because it was fundamental error for the state’s deoxyribonucleic acid expert to bolster her credibility by testifying about how. her work was reviewed by a colleague. We find no fundamental error, and affirm.

Factual Background and Procedural History

On September 10, 2009, victims Maharaj and Ostral, along with several of their friends, were walking to a nearby Burger King restaurant after school let out. Simon, following the group, pulled out a gun and started to fire several shots, two of which struck Ostral. Ostral-ran into the Burger King while the rest of his friends tried to run away. Ostral, still inside the Burger King, heard three or four more shots.. When he went outside, Ostral saw Maharaj lying on the floor dying.

Detective Jonathan Ortiz found Simon four blocks away at an Advanced Auto Parts. Simon looked “shocked and sweaty.” Det. Ortiz asked where he was coming from, and Simon responded he was coming from his girlfriend’s house and pointed north. Det. Ortiz thought Simon’s response was unusual because he was walking from the south. Because Simon matched" the description of the shooter, and the unusual way he was acting, Det. Ortiz detained Simon. Ostral, the victim, and Angela Go-thier-Rodriguez, who was sitting in a car at the Burger King drive-thru window during the shooting, identified Simon as the gunman.

The next day, another detective canvassed" the area between the Burger King and the Advanced Auto Parts for" the murder weapon. In a grassy area three-hundred feet from the Burger King, the canvassing detective found the murder weapon wrapped in a white shirt. The casings and projectiles (parts of the ammunition) collected at the Burger King matched the firearm found in the grassy, area.

The shirt, firearm, and the firearm’s magazine were tested for Simon’s DNA. At trial, the state’s DNA expert gave a detailed description of the general steps her lab takes in conducting DNA tests:

State: When you receive samples for analysis, how many steps do you put them through during the course of your testing?
DNA expert: Well, it definitely doesn’t happen like it does on CSI over a commercial break. There are several steps to the DNA analysis process starting with the first step, which is called the extraction. In this step we’re trying to remove the DNA from the actual item that it’s on, and this could be a swab that we receive, this could be an item of clothing. The next step would be the quantitation step, and at this step we want to see how much DNA we have, because we want to be within a certain range to give us the best chance of getting a DNA profile when we got to our next step, which is the amplification process. Now copies of the DNA and labeling the DNA with fluorescent tags so that when we put our sample through an instrument and use software programs, we’re able to detect a DNA profile.
State: Now as you proceed through these steps, how do you ensure quality accuracy and make sure there’s no cross contamination.
DNA expert: So there’s a number of things we do. The first step is actually wearing gloves, lab coats, face mask. And we also include one sample or several, the requirements, additional samples that don’t have any DNA. So they’re included so we can check that our chemicals don’t have a DNA profile in them. At certain steps of the DNA process, we also need to include a positive and negative control to make sure that the chemicals are working properly. In addition to that, we have certain requirements as far as labeling our tubes, handling our tubes. We’ll only have one tube that contains DNA open at any one time to make sure that the integrity of that sample is maintained.
State: Do you always get a DNA profile from items that are submitted to the lab for testing?
DNA expert: No, we don’t always get a DNA profile.
State: After you’re finished testing, do you have your results looked at by someone else for review?
DNA expert: Yes, that’s correct. Before the report can be released, the case had to go through the technical review process. So what this entails is another DNA analyst, sometimes it’s a supervisor, but if not, there’s other people that can do it as well. I’ve reviewed my coworkers’ cases as well. But we have to go through the case[,] examine the worksheets, look at the data, and make sure that we would come up with the same DNA profiles and the same conclusions.

There was no objection during this part of the DNA expert’s testimony.

The direct examination then turned to what the DNA expert tested in this case, and the results of her testing. No comparable DNA was found on the shirt and firearm, but the state’s DNA expert was able to get a DNA profile from the firearm’s magazine. The DNA profile on the magazine was a mixture, and there was a one-in-fifty chance that Simon’s DNA was a possible contributor to the mixture.

The jury convicted Simon of first degree and attempted first degree murder, and the trial court sentenced him to two concurrent life sentences. This appeal based on the DNA expert’s testimony followed.

Standard of Review

“The admission or exclusion of evidence,” generally, “is subject to an abuse of discretion standard of review.” Kopsho v. State, 84 So.3d 204, 217 (Fla. 2012). Where a defendant failed to object to expert testimony, however,

he must show fundamental error in order to be entitled to relief. An error is fundamental if it reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. This is a high burden, which requires an error that goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.

Williams v. State, 209 So.3d 543, 557-58 (Fla. 2017) (citations and quotations omitted).

Discussion

Simon contends that the DNA expert’s last answer in the block quote above was fundamental error because it bolstered her testimony by referring to another analyst reviewing her work. .We assume without deciding that the DNA expert’s answer was improper bolstering. Even so, the error was not fundamental.

Florida courts have found bolstering er-. rors like the one alleged here and still upheld serious criminal convictions. In Schwarz v. State, 695 So.2d 452 (Fla. 4th DCA 1997), for example, the fourth district affirmed the defendant’s child murder conviction even after finding an expert bolstering error because “the error was harmless under the. facts in this case.” Id. at 455. In Bunche v. State, 5 So.3d 38 (Fla. 4th DCA 2009), the same court affirmed the defendant’s burglary conviction even after finding an expert bolstering error because the defense theory was that the state could not prove when the defendant had been in the burgled property. Id. at 41. And in Tolbert v. State, 114 So.3d 291 (Fla. 4th DCA 2013), the fourth district, again, affirmed the defendant’s.rape and kidnapping convictions even after finding a bolstering error because the non-testifying expert’s opinion was only that there was male DNA on the rape kit swab, and did not specifically implicate the defendant. Tolbert, 114 So.3d at 295.

If these bolstering errors were fundamental, as Simon claims,-the fourth district could not have applied the harmless error standard and affirmed the convictions in Schwarz, Bunche, and Tolbert. “By its very nature, fundamental error has to be considered. harmful. If the error was not harmful, it would not meet our requirement for being fundamental.” Reed v. State, 837 So.2d 366, 370 (Fla. 2002).

We reach the same conclusion here. The DNA results, as in Tolbert, did not identify Simon as possessing the firearm and shirt. The results showed that a mixture of DNA was found on the magazine of the firearm, and there was a one-in-fifty possibility Simon’s DNA contributed to the mixture. This was hardly conclusive. Simon’s DNA was not on the two places it would’ most likely have been found—the shirt he was wearing and the firearm he was holding. In its closing argument, the state acknowledged the DNA expert “can’t always give you a complete answer,” and “can’t tell you, yes, it’s a match or it’s not a match.” “Nobody’s ever said that the ,DNA evidence is going to convict [Simon],” the state conceded. Like in Tolbert, even with the bolstering, the expert still did not implicate Simon such that the verdict of guilty could not have been obtained without the bolstered DNA evidence.

Moreover, even without the DNA,‘ the evidence of Simon’s identity as the shooter was strong, and came from multiple eyewitnesses! Ostral, the attempted murder victim, identified Simon as the one who shot at him and his friends. Gothier-Rodri-guez, who was sitting in a car at the drive-thru window, identified Simon as the shooter. Simon also matched the shooter’s description given by multiple on-scene witnesses. And, moments after the murder, Simon was foúnd four blocks away from the Burger King, nervous and with an implausible story.’ Unlike the one-in-fifty DNA test, • this was sound ■ evidence on which the jury could have found Simon guilty of murder and attempted murder.

Conclusion

Because the DNA expert’s testimony was not fundamental error, we affirm Simon’s convictions and sentences.

Affirmed.

      .In Schwarz, the state's expert forensic pathologist testified regarding the cause of death "that when he gets involved in an unusual case he does not rely solely on his own opinions, but regularly consults other pathologists.” Schwarz, 695 So.2d at 454. The Schwarz expert said he “consulted two pathologists on his staff, and three others from Pennsylvania, South Carolina and Miami, Florida.” Id.

      . In Bunche, the state’s fingerprint expert testified that "[e]very time we have an identification where we've established the identifying an individual in a crime, we always have two people look at it.” Bunche, 5 So.3d at 39-40.

      . In Tolbert, the state’s DNA expert testified about a DNA test conducted by a different expert years earlier that confirmed there was male DNA on the swab taken from the victim following her kidnapping and rape. Tolbert, 114 So.3d at 293-94.


text:
    Christopher John COLE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1437
    District Court of Appeal of Florida, Third District.
    Opinion filed August 16, 2017
    Christopher John Cole, in proper person. ,
    Pamela Jo Bondi, Attorney General, for appellee.
    Before LAGOA, EMAS and SCALES, JJ.
   PER CURIAM.

Appellant Christopher John Cole appeals frbm the trial court’s denial of his motion to correct illegal sentence under Florida Rule ’ of - Criminal Procedure 3.800(a). We affirm'the order insofar as it determined that Cole’s life- sentences on counts nine' -and '"ten of the information (imposed pursuant to a negotiated plea) were not illegal. Cole was sentenced to life imprisonment for two counts of attempted first-degree murder,- during which Cole was alleged to have used a firearm, thus reclassifying the offenses from first-degree to life- felonies. See §’ 775.087(l)(a), Fla. Stat.'(1989).-Independently, and as a violent habitual felony ■ offender, Cole was subject to a miaximum sentence of life in prison for each of these offenses.' See § 775.084(4)(b)l„ Fla. Stat. (1989).

As to Cole’s claim that the twenty-five year mandatory minimum sentences (imposed concurrently as part of the life sentences on counts nine and ten) are illegal, we note that Cole has completed this portion of his sentence, and is already eligible for parole. See Cole v. State, 786 So.2d 1203 (Fla. 3d DCA 2001),.We therefore dismiss this portion of the appeal as moot. See, e.g., State v. Ortiz, 79 So.3d 177 (Fla. 3d DCA 2012); Mathews v. State, 91 So.3d 142 (Fla. 2d DCA 2012); Maybin v. State, 884 So.2d 1174 (Fla. 2d DCA 2004).

Affirmed in part and dismissed in part.

      . We also note that Cole was serving a concurrent twenty-five year mandatory minimum sentence on count eleven, a sentence not challenged by Cole as illegal.


text:
    Keith JEFFRIES, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-2109
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    Rachael E. Bushey, Tampa, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the April 21, 2017, judgment and sentence in Case No. 16-CF-002385, in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

COHEN, C.J., SAWAYA and LAMBERT, JJ.i concur.


text:
    Jesus O. GARCIA, a/k/a Mantana Luis, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-1792
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    Jesus O. Garcia, Milton, pro se.'
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vineent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy ,of this opinion shall be filed with the trial court and be treated as the notice of appeal from the December 29, 2016 order denying Petitioner’s pro se motion for post-conviction relief, filed in Case No. 2003-CF-001246, in the Circuit Court in and for Marion County, Florida, See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

TORPY, EVANDER and BERGER JJ., concur.


author: EDWARDS, J.

text:
    John YOUNG, Appellant, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Department of Corrections and State of Florida, Appellees.
    Case No. 5D17-1308
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    John L. Young, Cross City, pro se.

      Beverly Brewster, Assistant General Counsel, Department of Corrections, Tal-lassee, for Department of Corrections, Ap-pellee.
    Rana Wallace, General Counsel, Commission on Offender Review, Tallahassee, for Appellee, Commission on Offender Review.
    No appearance for Appellee, State of Florida.
   EDWARDS, J.

John Young appeals the order dismissing what the Putnam County Circuit Court treated as a motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Although the circuit court correctly dismissed Young’s first claim against one respondent, finding it should be filed as a civil writ in Leon County Circuit Court, the court erred when it failed to address Young’s claim that his life sentence for capital sexual battery is illegal.

In October 1985, Young entered a guilty plea to capital sexual battery and was sentenced to life imprisonment with a minimum mandatory 25-year term after he admitted in a police interview to having a “sexual problem” with a boy under the age of ten. Young has repeatedly and unsuccessfully challenged the legality of his life sentence. The trial court and this court have denied each challenge.

Young’s current challenge to his life sentence began as a petition for writ of certio-rari, filed with the Florida Supreme Court, in which he posed two questions:

1. When a PPRD [Presumptive Parole Release Date] is set beyond [defendant’s] life expectancy does the sentence become invalid and indeterminate where the statutory sentence statute in effect at the time can no longer carry out its terms?
2. Can a person be held under a capital felony when the capital punishment was abolished for 794.011?

The Supreme Court treated Young’s filing as a petition for habeas corpus, transferred it to the Putnam County Circuit Court, and proposed that the petition might be considered as a rule 3.800(a) motion. The circuit court treated it as a rule 3.800(a) motion, but then dismissed Young’s motion, stating that it would have been more appropriately presented as a civil writ to the circuit court or district court of appeal in which the Department of Corrections is headquartered. From that decision, Young filed a petition for writ of certiorari in the First District Court of Appeal, which in turn transferred that petition to this court. We treat this as an appeal from the dismissal of Young’s rule 3.800(a) motion.

In his first claim, Young challenged the legality of action by the Florida Commission on Offender Review regarding its establishment of his PPRD beyond his life expectancy. In his second claim, he challenged the legality of his sentence and his continued incarceration by the Department of Corrections and the State of Florida. In this second claim, Young seems to assert that the abolition of the death penalty for non-fatal sexual battery in Buford v. State, 403 So.2d 943 (Fla. 1981), resulted in the concurrent re-categorization of “capital” felonies as first-degree felonies for which life sentences could not be imposed and somehow transformed them into nonexistent crimes for which he could not be imprisoned.

Young’s first claim that the Commission on Offender Review improperly set his PPRD beyond his life expectancy should have been filed in a petition for writ of mandamus in the Leon County Circuit Court, and the trial court correctly dismissed this claim. See Johnson v. Fla. Parole Comm’n, 841 So.2d 615, 617 (Fla. 1st DCA 2003). “[Jjudicial review is ... available through the common law. writs of mandamus, for review of PPRD’s, and ha-beas corpus, for review of effective parole release dates.” Armour v. Fla. Parole Comm’n, 963 So.2d 305, 307 (Fla. 1st DCA 2007). Once the trial court conducts a complete review and denies the petition, the inmate is not entitled to a second plenary appeal but may file a petition for writ of certiorari in the district court of appeal. Id, Therefore, if Young wishes to pursue this claim, he must file a petition for writ of mandamus in the Leon County Circuit Court to obtain review of his PPRD.

In Young’s second claim he alleges that his life sentence is illegal because capital sexual battery is no longer a capital felony. The Putnam County Circuit Court did not address this second claim; rather, it dismissed the motion without prejudice to permit Young to file a civil writ in the circuit where he is housed. An argument can be made that the proper venue for such a filing is the circuit where he is imprisoned, as he challenges being, incarcerated based on what he claims is a nonexistent capital felony. However, at its roots, Young’s second claim challenges his sentence. Sentencing is the obligation of the court rather than the Department of Corrections. See Forbes v. Singletary, 684 So.2d 173, 174 (Fla. 1996); Thomas v. State, 612 So.2d 684, 684 (Fla. 5th DCA 1993). The Putnam County Circuit Court, where Young was convicted and sentenced, would be the proper court to address this second claim that focuses on his sentence. See Borinstein v. State, 893 So.2d 687, 688 (Fla. 5th DCA 2005). Although we are aware that similar claims have been litigated, we will not address the merits because we are remanding the case for further consideration.

Accordingly, we affirm the trial court’s dismissal of claim one without prejudice for Young to seek review of his PPRD in the. Second Judicial-Circuit Court in Leon County, but reverse as to claim two and remand for further consideration in the Seventh Judicial Circuit Court, in Putnam County to address and rule on Young’s claim that his life sentence is illegal based on the decision in Buford v. State, 403 So.2d 943 (Fla. 1981).

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER and ORFINGER, JJ., concur.

      . See, e.g., Rusaw v. State, 451 So.2d 469 (Fla. 1984); Carter v. State, 483 So.2d 740 (Fla. 5th DCA 1986).


text:
    Nicklos Michael KOPANON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-843
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, ,for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm Nicklos Michael Kopanon’s judgment and sentence. However, we remand this matter with instructions for the trial court to identify which terms of probation Kopanon violated, and to correct a scrivener’s error that incorrectly states that Kopanon admitted to violating his probation. See Patt v. State, 876 So.2d 1278 (Fla. 5th DCA 2004); Brinson v. State, 866 So.2d 1268, 1269 (Fla. 5th DCA 2004).

AFFIRMED; REMANDED with instructions.

SAWAYA, PALMER and WALLIS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Antonio Vincent ADAMS, Appellee.
    Case No. 5D17-442
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Sean Kevin Gravel and Nancy Ryan, Assistant Public Defenders, Daytona Beach, for Appellant.
   PER CURIAM.

The State challenges the order suppressing evidence discovered in plain view after police officers stopped Appellee’s vehicle and ordered him out of the car. Although the trial court concluded that the stop was properly predicated on reasonable suspicion that the vehicle’s windows were too darkly tinted, the court concluded that the officers did not have an independent basis for ordering Appellee (the driver) to exit the vehicle. Appellee does not controvert that this conclusion .was error based upon Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), and its progeny. He argues instead that the error was not preserved due to the lack of “precise argument” below by the State. We disagree and reverse. We conclude that the State’s argument regarding the justification for ordering Appellee from the vehicle was sufficient to preserve the issue.

REVERSED AND REMANDED.

TORPY, EVANDER and LAMBERT, JJ., concur.


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. Howard Lee HAWKINS, Jr., Appellee.
    Case No. 5D16-4373
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PALMER, J.

The State of Florida appeals two downward departure sentences imposed by the trial court after Howard Hawkins, Jr. (the defendant) pled no contest in two unrelated cases to resisting an officer with violence and petit theft with prior convictions. Because the reasons provided for the departure sentences were legally invalid, we reverse.

The resisting charge arose in connection with a traffic stop, during which the defendant shoved two officers with his open palms. The petit theft charge arose roughly eight months later when the defendant was confronted by a Lowe’s employee as he was exiting the store with a pressure washer for which he did not pay.

The defendant entered an open plea of no contest to both charges. At the sentencing hearing, defense counsel argued for downward departure sentences as to both convictions.

With regard to the resisting conviction, defense counsel argued, among other things, that a departure was warranted on non-statutory grounds because one of the officers involved did not recommend prison in his statement in the pre-sentence report and the defendant did not injure the officers.

Agreeing with defense counsel, the trial court ruled:

I’m gonna find that ... at least one victim ... in this case announced to the writer of the [pre-sentence report] in this case, through the Department of Corrections, that he doesn’t think that further retribution is necessary under the circumstances.
I’m also gonna consider the facts that it’s an open-hand push or shove for which, as I indicated before, nobody received any treatment, time off, workers’ comp payments or anything of that nature.

As for the petit theft charge, defense counsel argued that a valid non-statutory basis for departure was as follows: the pressure washer never left the store and, as a consequence, the store suffered no loss. The court ruled, “I’m not sure that that’s sufficient ... for me to find a non-statutory downward departure under the circumstances, but I will do so .... ” Ultimately, the court sentenced the defendant to downward departure sentences of time served and two years of community control followed by two years of probation on both counts. This appeal followed.

“When analyzing a downward departure sentence, appellate courts must first determine whether ‘the trial court applied the correct rule of law and whether competent, substantial evidence supports the trial court’s reason for imposing a downward departure sentence.’ ” State v. Browne, 187 So.3d 377, 378 (Fla. 6th DCA 2016) (quoting State v. Leverett, 44 So.3d 634, 636 (Fla. 5th DCA 2010)). “Whether there is a valid legal ground is a question of law, to be reviewed de novo .... ” State v. Walker, 923 So.2d 1262, 1264 (Fla. 1st DCA 2006).

The State argues that the trial court’s reasons for imposing the downward departures are legally invalid and, therefore, this court must reverse the two departure sentences. We agree.

“In Florida, sentencing for all non-capital offenses committed after October 1, 1998 is governed by the Criminal Punishment Code [ (CPC) ], enacted by the Florida Legislature and contained in Chapter 921, Florida Statutes.” State v. Hodges, 161 So.3d 531, 533 (Fla. 3d DCA 2014). The CPC requires that a scoresheet be prepared for “each defendant, which takes into account and assesses points based upon, inter alia, the severity of the defendant’s primary offense at conviction, additional offenses at conviction, prior criminal history[, and victim injury].” Id. (citing §§ 921.022-.024, Fla. Stat. (2012)). The points assigned for these and other factors are then “added together and, after additional calculations ..., the resulting score (represented in months) establishes a defendant’s ‘lowest permissible sentence’ which ‘is assumed to be the lowest appropriate sentence for the offender being sentenced.’ ” Id. (quoting § 921.00265(1), Fla. Stat. (2012)). Section 921.0026(2) contains a list of valid reasons, also called mitigating factors or circumstances, supporting a downward departure from the lowest permissible sentence. See State v. McKnight, 35 So.3d 995, 997 (Fla, 5th DCA 2010). “The statutory list of-mitigating factors is not exclusive and the trial court may impose a downward departure, sentence for reasons not .delineated in section 921.0026.” Id. (citations omitted). In analyzing non-statutory mitigating circumstances, “a reviewing court must consider the reasons given in light of the stated legislative sentencing policy.” Id, (citations omitted).

Here, the trial court provided two reasons for departing from the lowest permissible sentence on the resisting conviction: 1) one of the officers involved did not recommend a prison sentence, and 2) neither of the officers involved were injured during the encounter.

As to the first reason, we have held that a victim’s request for leniency is not a valid reason for a departure sentence. See, e.g., State v. Ussery, 543 So.2d 457, 457 (Fla. 5th DCA 1989); State v. White, 532 So.2d 1083, -1084 (Fla. 5th DCA 1988). Accordingly, the officer’s recommendation for a nort-incarcerative sentence does not constitute a valid reason for departure.

Similarly, the second reason for departure, i.e., no injury to the two, officers, is not a legally valid reason for departure. A trial court may not downward depart based on facts already considered when computing a defendant’s' lowest permissible sentence, such as victim injury. Lee v. State, 223 So.3d 342, 360, 2017 WL 2374401 (Fla. 1st DCA June 1, 2017); ac; cord State v. Chapman, 805 So.2d.906, 908 (Fla, 2d DCA 2001). As such, the trial court could not depart downward based on the officers’ lack of injury.

As for the petit theft conviction, the trial court departed downward based on the fact that the defendant did not actually leave-the store with the pressure washer, However, merely committing an offense “less heinously” than other defendants is not a legally.valid ground to support a downward departure. State v. Subido, 925 So.2d 1052, 1059 (Fla.-5th DCA .2006); see also State v. Lacey, 553 So.2d 778, 779 (Fla. 4th DCA 1989) (“The amount of the [theft] victim’s loss is not a valid reason for departure.” (citing Hankey v. State, 485 So.2d 827 (Fla. 1986))); Accordingly, the fact that the defendant did not actually remove the pressure washer from the store is not a valid reason to downward depart.

Hence, the downward departure sentences are reversed. “On remand, the trial court may again consider imposing a departure sentence if there are valid legal grounds to support the departure sentence, and those legal grounds are supported by competent, substantial evidence.” Lee, 223 So.3d at 360 (citing Jackson v. State, 64 So.3d 90 (Fla. 2011)),

REVERSED AND REMANDED.

COHEN, C.J., and EVANDER, J., concur.


text:
    Duane Joseph MCCOY, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3906
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    James S. Purdy, Public Defender, and Nicole J. Martingano, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Deborah A. Chance, Assistant Attorney General, Daytona. Beach, for Appellee.
   PER CURIAM.

Duane Joseph McCoy, Jr., appeals the trial court’s order revoking his probation. We affirm the judgment and sentence without further discussion; However, .we note that, although the trial court orally announced the conditions of probation McCoy violated, it did not specify those conditions in its written order. We remand this case to the trial -court to enter a corrected order identifying the conditions McCoy violated. See Lewis v. State, 8 So.3d 370, 371 (Fla. 5th DCA 2009); Payne v. State, 920 So.2d 742, 743 (Fla. 5th DCA 2006).

AFFIRMED and REMANDED with Instructions.

PALMER, WALLIS and LAMBERT, JJ., concur. ■


author: PER CURIAM. BERGER, J.,

text:
    Johnny Mack BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3489
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    James S. Purdy, Public Defender, and Jeri Delgado, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Johnny Mack Brown, Jr., appeals the sentence imposed after a jury found him guilty of one second-degree felony and several misdemeanors. Appellant argues that the trial court improperly considered a pending charge at sentencing, without receiving evidence, when the court repeatedly emphasized the charged conduct during the sentencing hearing, indicated that it believed the conduct occurred, and appeared to rely on the conduct, in part, to justify the sentence.

In Norvil v. State, the Florida Supreme Court announced that “a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.” 191 So.3d 406, 410 (Fla. 2016). The Court did so based upon its interpretation of the Criminal Punishment Code and section 921.231, Florida Statutes, regarding presentence investigation reports. We are bound by Norvil’s interpretation of these statutes absent an amendment by the Legislature.

“If portions of the record reflect that the trial court may have relied upon impermissible considerations in imposing sentence, the State bears the burden to show from the record as a whole that the trial court did not rely on such impermissible considerations.” Nusspickel v. State, 966 So.2d 441, 444-45 (Fla. 2d DCA 2007). Given the record here, the State has not carried its burden. Accordingly, we reverse the sentence and remand for re-sentencing before a different judge. See McGill v. State, 148 So.3d 531 (Fla. 5th DCA 2014).

REVERSED and REMANDED.

COHEN, C.J., BERGER and EISNAUGLE, JJ„ concur.

BERGER, J., concurs specially, with opinion, in which EISNAUGLE, J., concurs.

BERGER, J.,

concurring specially, with opinion.

I concur in the opinion based solely on the Florida Supreme Court’s recent decision in Norvil v. State, 191 So.3d 406, 407 (Fla. 2016). In Norvil, the supreme court relied on the Legislature’s directive in chapter 921, Florida Statutes, (2010) when it held that a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense. Id. at 407-09. The court concluded:

[Tjhe CPC is unambiguous concerning the factors a trial court may consider in sentencing a defendant. The Legislature included prior arrests as information that is helpful in imposing the appropriate sentence for a defendant. § 921.231(1)(c), Fla. Stat. (2010). However, if the Legislature had intended to include subsequent arrests and their related charges as permissible sentencing factors, it would have done so. See Roster v. Sullivan, 160 So.3d 385, 390 (Fla. 2015) (“Florida courts are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’”) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984)).

Id. at 409.

In light of this holding, I would urge the Legislature to amend section 921.231(1), to include subsequent arrests and their related charges as permissible sentencing factors. As Justice Canady aptly noted in his well-reasoned dissent:

[I]t is indeed a remarkable proposition that a defendant who has committed an additional crime while out on bond should not have that subsequent crime held against him when being sentenced for the earlier offense. Due process does not require the adoption of such a nakedly unreasonable proposition. The view is unassailable that such a crime committed by a defendant while out on bond reflects unfavorably on the defendant’s character just as much as—if not more than—crimes that were committed previously. The character of the defendant and a concomitant assessment of the likelihood that the defendant will reoffend are unquestionably proper matters for a sentencing judge to consider when imposing sentence within the statutory maximum.

Norvil, 191 So.3d at 411.

EISNAUGLE, J., concurs.


text:
    Jeffrey Michael PARENTI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-2203
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017

      James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jeffrey Michael Parenti (“Appellant”) appeals the trial court’s denial of his Florida Rule of . Criminal Procedure 3.850 motion for postconviction relief alleging ineffective assistance of counsel. Although Appellant raised five grounds for relief in his motion, he challenges only the trial court’s denial of ground one, in which he alleged that defense counsel provided ineffective assistance by not informing him that he qualified for sentencing as a habitual felony offender (“HFO”). Finding that the trial court erred by denying relief on this ground, we reverse and remand for further proceedings consistent with this opinion.

In 2011, the State charged Appellant with DUI manslaughter (count I), driving' while license suspended or revoked causing death (count II), and vehicular homicide (count III).' After Appellant’s first trial resulted in a mistrial, the State extended him a plea offer of seven years’ incarceration followed by eight years’ probation. The State and defense counsel informed Appellant that he faced a maximum of fifteen years’ incarceration if convicted at trial. Appellant rejected the plea offer, and the case proceeded to a second trial, at which the jury convicted him on all counts.

After trial, the State filed a notice of intent to seek HFO sentencing. Defense counsel objected, reasoning that the' State previously informed Appellant that it sought a maximum • sentence of fifteen years’ incarceration. The trial court overruled defense counsel’s objection on the ground that the State properly filed its notice approximately thirty days before sentencing. The trial court sentenced Appellant as an HFO to concurrent terms of thirty years’ incarceration, with four years minimum (count I), and ten years’ incarceration (count II). Appellant then filed a motion for postconviction relief arguing, inter alia, that defense counsel provided ineffective assistance by not informing him that he potentially faced sentencing as an HFO. Appellant alleged that, had defense counsel informed him that he faced a maximum sentence of. thirty years’ incarceration, he “would have unhesitantly accepted the State’s plea offer.”

At the evidentiary hearing, defense counsel testified that he did not know that Appellant—who had twelve prior felony convictions—qualified as an HFO. Defense counsel elaborated that he, was “very surprised” when the State filed its notice of intent to sentence Appellant as an HFO. Defense counsel believed that, “had [Appellant] known about the 30 years habitual felony offender being sentence day.for day ... to up to 30 years it could have influenced his decision.” Appellant similarly testified, that. defense counsel never informed him of his potential HFO status. Appellant believed that, based on his plea negotiations with the State, he faced a maximum of fifteen years’ incarceration. After the hearing, the trial court entered an order denying Appellant’s motion for postconviction relief on all grounds. On ground one, the trial court determined that, because the State did not file its notice of intent to seek sentencing as an HFO until after trial, defense counsel did not provide ineffective assistance by failing to inform Appellant of that possibility during plea negotiations.

When considering a trial court’s ruling on a rule 3.850 motion after an evidentiary hearing, we defer to the trial court’s factual findings—provided that they are supported by competent, substantial evidence—but we review de novo the trial court’s “application of the law to those facts.” Jennings v. State, 123 So.3d 1101, 1113 (Fla. 2013) (quoting Mungin v. State, 932 So.2d 986, 998 (Fla. 2006)). The Florida Supreme Court has explained that, in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must establish two elements to raise a successful claim of ineffective assistance of counsel:

First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.

Schoenwetter v. State, 46 So.3d 535, 546 (Fla. 2010) (quoting Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla. 1986)). To obtain relief on the ground that defense counsel misadvised the defendant not to accept a plea, the defendant must establish that:

(1) he or she would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

Alcorn v. State, 121 So.3d 419, 422 , (Fla. 2013). When determining whether defense counsel’s misadvice concerning a plea prejudiced the defendant, the trial court must consider the circumstances “at the time of the offer and what would have been done with proper and adequate advice.” Id. at 432 (emphasis omitted).

The Fourth District Court addressed nearly identical circumstances in Lester v. State, 15 So.3d 728 (Fla. 4th DCA 2009). In Lester, the State charged the defendant with robbery by force. Jd. at 729. The defendant rejected a plea offer of 41.7 months’ incarceration based on defense counsel’s advice that he faced a maximum sentence of fifteen years’ incarceration. Id. The case proceeded to trial, and a jury convicted Appellant as charged. Id. Thereafter, the State filed a notice of intent to seek habitual violent felony offender (“HVFO”) sentencing. Id. The trial court determined that the defendant qualified as an HVFO, sentencing him to thirty years’ incarceration. Id. The defendant moved for postconviction relief, reasoning that defense counsel provided ineffective assistance by not informing him that he potentially qualified as an HVFO. Id. At the evidentiary hearing, defense counsel testified that he never discussed habitualization with the defendant. Id. Defense counsel believed that the defendant may have instead accepted the plea had he known of the potential sentence as an HVFO. Id. The trial court denied the defendant’s motion, reasoning that - defense counsel did not misadvise him with regard to the plea offer. Id. at 730. The Fourth District Court reversed, holding that the defendant demonstrated “that counsel was ineffective and that he would have taken the plea had counsel informed him of the consequences.” Id. at 731.

We find that the trial court erred by-denying ground one of Appellant’s motion for postconviction relief. Similar to Lester, defense counsel conceded that he did not know that his client potentially qualified as a habitual offender. Cf. id. at 729. In addition, defense counsel testified that Appellant may have accepted the plea if he understood his maximum potential sentence. See id. Appellant averred in his rule 3.850 motion that: (1) he would have accepted the plea if he knew of his potential HFO status; (2) the State would not have withdrawn the plea; (3) the trial court would have accepted the plea; and (4) the trial court would have sentenced him to less than thirty years’ incarceration. See Alcorn, 121 So.3d at 422. We disagree with the trial court’s conclusion that, because the State did not file its notice of intent to seek an HFO sentence until after trial, defense counsel did not provide ineffective assistance. Defense counsel should have informed Appellant that his twelve prior felony convictions potentially qualified him for the HFO designation, regardless of whether the State sought HFO sentencing before or after trial.

Based on the foregoing, we reverse the trial court’s denial of ground one of Appellant’s motion for postconviction relief. We note that, because the trial court found that defense counsel did not provide deficient performance, it never reached the question of whether defense counsel’s performance prejudiced Appellant. Therefore, we remand this case to the trial court to determine whether Appellant has shown that “(1) he would have accepted the offer had counsel advised him of the correct statutory maximum sentence, (2) the prosecutor would not have withdrawn the offer, and (3) the court would have accepted the offer’s terms.” Alcorn, 121 So.3d at 433 (“Because the issue of whether [defendant] can establish prejudice remains unresolved at this juncture, we do not reach the issue of the appropriate remedy in this case because it would be premature to do so.”).

REVERSED and REMANDED for further proceedings.

PALMER, WALLIS and EDWARDS, JJ., concur.

      . See § 775.084(1)(a), Fla. Stat. (2011).

      . The trial court then vacated;Appellant’s conviction for vehicular homicide on double jeopardy grounds.


text:
    Mona M. CUMBERLAND, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-1012
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Mona Cumberland appeals her conviction and sentence for one count of fighting and baiting animals under section 828.122(3), Florida Statutes (2014). The charge stemmed from an organized dogfight that occurred at a residence where Cumberland lived. On the night of Cumberland’s arrest, law enforcement entered the backyard of the residence and observed two pit bulls actively fighting in a makeshift fighting ring. Thirty-three dogs were taken from the property. Most of the animals were bleeding and had facial injuries. Additionally, paraphernalia found within the home and on the property was consistent with an organized dogfighting operation. Twenty-six people were arrested on the night of the incident.

Cumberland raises a number of issues on appeal, only one of which merits discussion. The trial court ordered Cumberland to pay $3000 to the ASPCA as part of her sentence. We reverse that portion of Cumberland’s sentence because “there is no statutory authority permitting the trial court to order ... a $3000 donation to the ASPCA,” and therefore imposing that requirement was improper. See Bell v. State, 216 So.3d 751, 752 (Fla. 5th DCA 2017).

Accordingly, we affirm Cumberland’s conviction but reverse and remand for the trial court to strike the $3000 donation to the ASPCA from her sentence.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

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


text:
    Darrell Lemond LOWE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-890
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    James S. Purdy, Public Defender, and Matthew Funderburk, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Darrell Lowe appeals the judgment and sentence imposed by the trial court after it found that Lowe had violated community control. We affirm the violation. However, as the State properly concedes, we are compelled to remand because the trial court failed to enter a written order specifying which community control conditions Lowe violated. See Roberts v. State, 76 So.3d 1047, 1048 (Fla. 5th DCA 2011) (“This court has consistently held that the trial judge must specify, in the written order or judgment, which conditions of probation or community control have been violated.” (citing Bell v. State, 60 So.3d 558 (Fla. 5th DCA 2011))).

Accordingly, we vacate the judgment under review and remand for entry of a proper order specifying which conditions Lowe was found to have violated.

Judgment VACATED; case REMANDED for entry of a proper adjudication order.

EVANDER, BERGER, and WALLIS, JJ., concur.


text:
    Q.B., a Child, Petitioner, v. STATE of Florida, Respondent.
    Case Nos. 5D17-2615, 15-CJ005750-A-OR, 15-CJ005861-A-OR, 15-CJ006092-A-OR, 15-CJ006139-A-OR, 16-CJ003903-A-OR, 16-CJ004057-A-OR
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 18, 2017
    Robert Wesley, Public • Defender, and Aaron Zeilberger, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We grant Petitioner’s petition for writ of habeas corpus and order Petitioner’s immediate release from secure detention. Petitioner admitted to violations of probation in six separate cases and was sentenced to a non-secure residential commitment program for all of the violations. The trial court set a hearing date to determine the status of Petitioner’s placement in that program and ordered that Petitioner be detained until that hearing. At that hearing, the probation officer requested that Petitioner be further detained until a later date. The trial court set another hearing date for September 8, 2017, to determine Petitioner’s status again. The record indicates that as of August 15, 2017, Petitioner has been held beyond the fifteen-day limit provided in section 985.27(l)(a), Florida Statutes (2017). Accordingly, we order Petitioner’s immediate release from secure detention.

PETITION GRANTED.

SAWAYA, ORFINGER, and TORPY, JJ., concur.


text:
    Bernadette DORCEUS, Appellant, v. ONEWEST BANK, FSB, Appellee.
    No. 3D16-2425
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017
    Jerome L. Tepps (Sunrise), fpr appellant.
    Albertelli Law, Brandon S. Vesely, and Andrea K. Alies (Tampa), for appellee.
    Before SALTER, SCALES and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Suchman Corporate Park v. Greenstein, 600 So.2d 532 (3d DCA 1992).


author: SUAREZ, J.

text:
    IRA SCOT SILVERSTEIN, LLC, etc., Petitioner, v. Elide KUBE, Respondent.
    No. 3D17-1022
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017
    Ira Scot Silverstein, PLLC and Ira Scot Silverstein (Ft. Lauderdale), for petitioner.
    Roniel Rodriguez IV, P.A. and Roniel Rodriguez IV, for respondent.
    . Before SUAREZ, LAGOA, and FERNANDEZ, JJ. -
   SUAREZ, J.

Ira Scot Silverstein, LLC n/k/a Ira Scot Silverstein, PLLC petitions for a writ of certiorari in connection with the trial court’s denial of its Motion for Reconsideration and Motion for Protective Order regarding production of documents. We grant the petition because the ordering of the production of the requested documents constitutes a departure from an essential element of the law, would cause material harm and could not be rectified on appeal. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla. 2010); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla. 1995).

Petitioner is a law firm which has represented several lenders in numerous foreclosure actions. Respondent was a defendant in one such foreclosure action. In connection with an Affirmative Defense, Respondent served a Request for Production seeking copies of all of Petitioner’s retainer agreements, with, the lenders it had represented from May 2013 to May 2016. Respondent also sought copies of all affidavits of attorney’s, fees filed by Petitioner for the same time period as well as all pleadings identifying Petitioner as counsel of record and all final judgments awarding fees to the plaintiffs therein. Respondent also sought copies of all checks representing payment of the fees from the lenders.

Respondent is not entitled to production of any such documents from Petitioner -by virtue of the litigation privilege. Any action taken by Petitioner in connection with its representation of clients in unrelated foreclosure actions is. protected by the privilege and its contracts and communications relating to such representation .are likewise protected in the context of the claim made here. Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 386 (Fla. 2007). We therefore grant the petition for certiorari and quash the trial court’s order below.

Petition Granted.


text:
    Carlos OMES, as Personal Representative of the Estate of Alejandro “Alex” Omes, Appellant, v. ULTRA ENTERPRISES, INC., Appellee.
    No. 3D16-338
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017

      Marko & Magolniek, P.A. and Joel S. Magolnick, for appellant.
    Damian & Valori LLP and Peter F. Valori and Russell Landy; Akerman LLP and Gerald B. Cope, Jr., for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LOGUE, JJ.
   SUAREZ, J.

This appeal arises out of a bench trial in which the issues were presented through testimonial evidence and numerous documents. The numerous issues are complex and the trial court issued a 16-page findings of fact and law. The trial court’s order is specific, well-researched and reasoned, and, in our view, correct in all aspects. We address this opinion only to the issues raised on appeal and have attempted to boil them down and address each as simply and directly as possible.

Alex Omes and Russell Faibisch founded Ultra Enterprises, Inc. [“UEI”] for the purpose of holding the intellectual property of the Ultra Music Festival [“Ultra”], founded in 2002. UEI owns the trademarks and licenses associated with Ultra. UEI used other corporate entities for producing the music festival, licensing and promotion. Festival Productions and Ticket Junkie were two of these entities. UEI held no stock in either entity but Omes was a shareholder in both.

Omes and Russell were the only two partners' of UEI until 2005, when they brought in Russell’s brother, Charles Fai-bisch, who also brought with him a much needed cash infusion. The three signed a Memorandum of Understanding [“MOU”] in 2005. That, document joined Charles as a shareholder, gave him 300 shares, set forth the general duties of each person, and stated an “intent” that Omes and Russell be co-managers. Omes served as President and Russell as chairman of the Board of Directors. In 2010, Adam Russakoff joined Ultra as a 10% shareholder. That same year, the Board hired a new accountant, who found the books to be in total disarray. The accountant found no fraud or misconduct, just poor recordkeeping. The accountant was able to. reconstruct and reconcile UEI’s books, which became the basis for the valuation in this case.

As Ultra became more' successful, the record indicates that Omes began using his Ultra contacts and influence to set up side deals for himself. This situation progressed to the point where Russell became concerned that Omes was diminishing the value and uniqueness of Ultra by using his Ultra connections and reputation to compete with Ultra on the side. In August 2010, the UEI Board of Directors removed Omes as President, citing self-dealing at UEI’s expense and failure to communicate and share equally in corporate decision-making. Russell became" President. Omes then became a minority shareholder at 30%, without office.

On July 11, 2012, because of Omes’s continuing actions, the Board of Directors by unanimous written consent recommended that the shareholders amend the articles of incorporation to prohibit self-dealing and competition with UEI by UEI shareholders, and to provide UEI with the right to redeem the shares of, inter alia, a shareholder who has competed with UEI. Also on July 11, 2012, those shareholders owning a majority of the common stock of UEI (70%) accepted the recommendation of the Board of Directors and amended the articles to so provide. The shareholders did this by a-Written Consent. Following the amendment, on the same day, the directors of -UEI voted unanimously to redeem Omes’s shares based on his self-dealing and competing personal businesses. Omes was notified that same day of the Board’s actions and of his right to appraisal to determine the value of his shares. The form provided to- Omes explained that in order to exercise his appraisal rights, he needed to return the documents, an Exercise of Appraisal Rights form and Stock Power form, on or before August 20, 2012. On August 20, 2012, Omes served Ultra with his Exercise of Appraisal Rights form, which stated that Omes exercised his appraisal rights and tendered his stock but did not accept UEI’s valuation of $1,200 per share. Omes instead offered a counter-valuation of $111,111.11 per share. UEI then ceased doing business with Ticket Junkie and Festival Productions and contracted with entities having no connection with Omes. Omes then filed the underlying suit against UEI, and Russell and Charles Fai-bisch, and Adam Russakoff as individuals, invoking the appraisal process while at the same instance objecting to it.

In response, UEI filed a one-count complaint to establish the fair value of Omes’s shares. See § 607.1330(1), Fla. Stat. (2016). The trial court, after taking evidence and hearing argument of the parties, concluded that 1) the appraisal process was properly invoked, and found in favor of UEI;. 2) dissolution was not available as a remedy where there was no deadlock between directors; 3) the appraisal value of Omes’s stock by Omes’s appraiser was rejected by the trial court as without realistic basis, and the appraisal of Omes’s stock by UEI’s appraiser was adopted by the trial court as supported by competent substantial evidence. Carlos Omes [“Estate P.R.”] is the personal representative of the Estate of Alex Omes, who died during the pendency of the litigation below. He seeks to reverse the trial court’s conclusions and to be installed as Alex Omes’s replacement as President of UEI. , .

The Estate P.R. argues in this appeal that the MOU is in reality a shareholder agreement. The trial court rejected that argument, as do we. The MOU is not, according to section 607.1302(4), Florida Statutes (2016), an article of incorporation, bylaw, or a board of director’s resolution. The MOU does not fall within any statutory exception. As the trial court pointed out, the MOU may act as a shareholder agreement, but it did not prohibit the corporate actions at issue here. See Foreclosure FreeSearch, Inc. v. Sullivan, 12 So.3d 771, 778 (Fla. 4th DCA 2009) (“The majority shareholder has a right to engage the appraisal process to eliminate the rights of dissenting shareholders and put an end to corporate strife. The process must produce a fair result for the minority shareholders;”).

The Estate P.R. also argues that Omes should have had pre-consent and post-consent notice of the Board’s amendments to the articles of incorporation. The trial court determined that there was no procedural prejudice to Omes and no evidence the outcome would have been any different. As the trial court stated, “that to return these shareholders to square one so that a pre-vote notice can be given to Omes’s ,Estate and a new and fruitless vote be taken with notice before and after, would be inequitable and is unnecessary to protect any rights of any party in this case.” In any event, section 607.0704, Florida Statutes (2016), provides that, unless ótherwise provided in the articles of incorporation, a majority of the shareholders of a corporation can take action without a meeting, without prior notice, and without a vote. The only requirement is that notice must be given to shareholders who have not consented in writing, or who were not entitled to vote, within ten days. Here, the Board supplied Omes with the notice the same day the action occurred.

Finally, the Estate P.R.’s claims of corporate error are barred; by electing to participate in the appraisal process and returning the duly signed “Exercise of Appraisal Rights” and “Stock Power” forms, the trial court properly found that Omes lost all rights as a shareholder pursuant to section 607.1323(1), and instead became entitled to payment of fair value for the shares. This is dispositive of the appeal.

Affirmed."

      . UEI’s ownership was at that time apportioned between Russell Faibisch (30%), Alex Omes (30%), Charles Faibisch (30%), and Adam Russakoff (10%).

      . Omes continued to promote personal side deals and music festivals. He planned a major music festival to compete with Ultra, promoted it as an Ultra co-founder, arid sold tickets. The event never took place, and Omes never reimbursed ticketholders.

      . Section 607.1323(1), - Florida Statutes (2016), provides, in pertinent part, ‘‘Once a shareholder deposits that shareholder’s certificates or, in the case of uncertificated shares, returns the executed forms, that shareholder loses all rights as a shareholder .... ” (emphasis added).


text:
    Charles VISCITO, Appellant, v. Barbara VISCITO, Appellee.
    No. 3D15-786
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017.

      Crabtree & Auslander and John G. Crabtree, Charles M. Auslander and Brian C. Tackenberg, for appellant.
    Richard A. Schurr; Christy L. Hertz, for appellee.
    Before SUAREZ, LAGOA and SALTER, JJ.
   On Motion for Review of Judgment Awarding Appellate Fees and Costs

PER CURIAM.

Charles Viscito seeks review of a circuit court order and judgment awarding appellate attorney’s fees and costs to the ap-pellee, Barbara Viscito, pursuant to our opinion affirming the trial court’s final judgment in the parties’ dissolution of marriage case, and our order conditionally granting and remanding the motion for appellate attorney’s fees. Mr. Viscito’s motion is well taken; the trial court’s order awarded Ms. Viscito $63,364.00 in appellate attorney’s fees and $4,208.00 for costs without entering the findings required by Rosen v. Rosen, 696 So.2d 697, 700 (Fla. 1997), and section 61.16, Florida Statutes (2016).

Our order of December 21, 2016, specified that Ms. Viscito’s motion for appellate attorney’s fees was “conditionally granted and remanded to the trial court to fix amount pursuant to Rosen v. Rosen, 696 So.2d 697 (Fla. 1997).” Rosen requires a “need and ability to pay” analysis before an award is made. “Appellate attorney’s fees are awarded on the basis of needs and ability to pay in family law cases and not on the prevailing party analysis.” Phillip J. Padovano, 2 Fla. Prac., Appellate Practice § 22:5, n. 5 (2016 ed.). Section 61.16(1) makes this assessment equally applicable to an award of costs as well as appellate attorney’s fees, “unless an appellate party’s cause is deemed to be frivolous.” Our opinion in this appeal did not deem Mr. Viscito’s arguments to be “frivolous.”

A review of the hearing transcript shows that the trial court believed that this Court’s December 21, 2016, order only required a determination as to reasonable fee amount. The language -used by this Court (to “fix” an amount pursuant to Rosen) may have led to this conclusion. At the fee and costs hearing, the former husband argued that the trial court was required under this Court’s “conditional” grant of fees to consider first need and ability to pay, but the trial court would not hear argument on the issue as it was under the impression that it was only required to fix an amount.

As this Court explained in Randall v. Randall, 930 So.2d 840 (Fla. 3d DCA 2006), this Court may either grant appellate attorney’s fees and remand for the trial court to assess a reasonable fee, or provisionally grant appellate attorney’s fees and remand to establish entitlement under Rosen, but in either event, the Court’s “order says so.” Id. at 841.

And as the Fourth District Court of Appeal explained in Gerhardt v. Gerhardt, 738 So.2d 485, 486 (Fla. 4th DCA 1999), reiterating that Court’s holding in White v. White, 683 So.2d 510, 512-13 (Fla. 4th DCA 1996):

[W]hen we grant a motion for appellate attorney’s fees founded on section 61.16, we have no way of knowing how great is the need to equalize the access to legal services, nor how great is the ability to pay. ...
Hence, a blanket grant of a motion for appellate attorney’s fees under section 61.16 is, unless we expressly say otherwise in the order granting the motion, a determination of only whether the matter of appellate fees should be further addressed by the trial court. It represents our tentative conclusion that the moving party should be given a chance to show that he or she needs help from the adverse party as to some or all of the appellate fees reasonably incurred and, if the need is proven, that the paying party has the ability to defray some or all of the moving party’s fees. We have then concluded preliminarily that an apparent, or prima fade, basis for a fee award exists under section 61.16, but that the final award is subject to a determination of need and ability by the trial judge. It is not an apportionment decision by us of the moving party’s needs or the paying party’s ability,.any more that it represents a decision by us as to the amount of the fees deemed reasonable.

As already noted, this Court’s December 21, 2016, order states that the attorneys’ fees are “conditionally granted” and that the trial court is to fix an amount pursuant to Rosen—which itself requires that primary consideration be given to the financial resources of the parties. There was no evidence presented at the fee and costs hearing regarding the financial resources of the parties, the former wife’s need for appellate attorneys’ fees, or the former husband’s ability to pay. The fee and costs order is therefore not supported by competent, substantial evidence and constitutes an abuse of the trial court’s discretion. See Sierra v. Sierra, 505 So.2d 432, 434 (Fla. 1987) (“[T]he necessity and the reasonableness of an award of attorney’s fees must be supported by competent substantial evidence. The party who is going to suffer the financial detriment of payment of the fees must be provided an opportunity to be heard.”).

The costs award also requires consideration of “the relative financial resources of the parties” as Specified by section 61.16(1). We therefore reverse and remand to the trial court the order and judgment of May 17, 2017, for consideration under Rosen, section 61.16, and this opinion.

      . Viscito v. Viscito, 214 So.3d 736 (Fla. 3d DCA 2017). Mr. Viscito's petition for discretionary review by the Supreme Court of Florida is pending, case no. SC17-697.

      . This might occur when "there is no question from the content of the record that, based upon the relative finances of the parties, one party is entitled to fees.” Rados v. Rados, 791 So.2d 1130, 1133-35 (Fla. 2d DCA 2001).


author: LOGUE, J.

text:
    Michael SANDOVAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-774
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017
    Law Offices of Matthew Troccoji, P.A., and Matthew J. Troccoli, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee. <•
    Before SALTER, EMAS, and LOGUE, JJ.
   LOGUE, J.

Michael Sandoval, convicted of crimes involving the possession of child pornography, appeals the denial of his postconviction motion alleging he was deprived of the effective assistance of counsel. In the motion, he argued that his trial counsel was ineffective because she did not adequately investigate the potential testimony of his stepdaughter and her mother that a third person had access to Mr. Sandoval’s computer and could have downloaded the pornography in question. The postconviction court conducted an evidentiary hearing involving the testimony of Mr. Sandoval, the stepdaughter, her mother, the investigating officer, and trial counsel, among others.

The third person at issue was a Mend of the family known only as “Lewis.” No witness knew his last name, telephone number, address, other identifying information, or whereabouts. The stepdaughter and her mother could not adequately explain why they had not mentioned Lewis to the investigating officers who had interviewed them at length regarding all persons who had access to the computer, Sandoval’s trial counsel testified that she had discussed calling the stepdaughter and her mother as witnesses, but Sandoval agreed not to call them. See Stein v. State, 995 So.2d 329, 337 (Fla. 2008) (“[I]t is axiomatic that if a defendant consents to defense counsel’s trial strategy after it had been explained to him, it will be difficult to establish a claim for ineffective assistance of counsel[.]”).

At the end of the testimony, after considering the demeanor of the witnesses and inconsistency in their various statements, the postconviction court made the following finding of fact: “I conclude that the testimony offered by the defense witnesses at the post-conviction hearing was utterly undeserving of belief. I do not believe for one moment that there is, or ever was, a ‘Lewis,’ last name unknown, phone numbér unknown, whereabouts unknown. ... I have not the slightest hesitation in concluding that the testimony [by the defense witnesses at the 3.850 evidentiary hearing] was entirely incredible.”

Because the postconviction court’s factual conclusions are supported by competent substantial evidence based upon his credibility determinations, we uphold the post-conviction court’s determination that Sandoval failed to meet his burden to establish ineffective assistance of counsel. See, e.g., Sweet v. State, 810 So.2d 854, 862 (Fla. 2002) (upholding postconviction court’s refusal to grant 3.850 motion based on ineffective assistance of counsel for failure to call a witness when the postconviction court expressly made the finding that “the jury would find [the witness’s] testimony to be as incredible as this Court found it to be”).

Affirmed.


text:
    Haviva HALPERT, Petitioner, v. Pavel NAPORKO, Respondent.
    No. 3D17-1721
    District Court of Appeal of Florida, Third District.
    Opinion filed August 23, 2017
    Nancy A. Hass, P.A. and Nancy A. Hass (Hollywood); Sandy T. Fox, P.A. and Sandy T. Fox, for petitioner.
    Pazos Law Group, P.A. and Nadia Pazos (Weston), for respondent.
    Before SUAREZ, LAGOA, and FERNANDEZ, JJ.
   SUAREZ, J.

Following review of the petition for writ of common law certiorari, it is ordered that said petition is hereby dismissed for lack of jurisdiction. Specifically, the petitioner has failed to demonstrate irreparable harm. Millennium Diagnostic Imaging Ctr., Inc. v. State Farm Mut. Auto. Ins. v. 129 So.3d 1086, 1089 (Fla. 3d DCA 2013) (“A party seeking certiorari relief must demonstrate that the trial court’s order depart[s] from the essential requirements of law, resulting in irreparable harm that cannot be adequately remedied on final appeal.”); Stockinger v. Zeilberger, 152 So.3d 71, 73 (Fla. 3d DCA 2014) (“The establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction.”).


text:
    David N. JARRETT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1159
    District Court of Appeal of Florida, Second District.
    Opinion filed August 23, 2017.
    David N. Jarrett, pro se.
   PER CURIAM.

Affirmed. See Cannon v. State, 180 So.3d 1023 (Fla. 2015); Carbajal v. State, 75 So.3d 258 (Fla. 2011); Tingley v. State, 549 So.2d 649 (Fla. 1989); DuBoise v. State, 520 So.2d 260 (Fla. 1988); Tucker v. State, 459 So.2d 306 (Fla. 1984); State v. King, 426 So.2d 12 (Fla. 1982); McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013); Doby v. State, 25 So.3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Budd v. State, 477 So.2d 52 (Fla. 2d DCA 1985); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998).

NORTHCUTT, KHOUZAM, and LUCAS, JJ., Concur.


author: OSTERHAUS, J.

text:
    Juan Francisco SANCHEZ, R.D.H., Petitioner, v. STATE of Florida DEPARTMENT OF HEALTH, Respondent.
    CASE NO. 1D16-3751
    District Court of Appeal of Florida, First District.
    Opinion filed August 28, 2017

      Ronald W. Chapman and Juan C. Santos of Chapman Law Group, Sarasota, for Petitioner.
    Sarah Young Hodges, Chief Appellate Counsel, Department of Health, Tallahassee, for Respondent.
   OSTERHAUS, J.

Juan Francisco Sanchez petitions for review of emergency agency action restricting his license to practice as a dental hygienist. We deny Mr. Sanchez’s petition because the Department’s order is facially sufficient.

I.

Pursuant to § 120.60(6), Florida Statutes, the Department entered an emergency order restricting Mr. Sanchez’s license to practice as a dental hygienist. In the order, the Department made specific and detailed factual findings of sexual misconduct by Mr. Sanchez against five female patients during dental appointments over the span of three months' of his working at a new dental hygienist job. We needn’t elaborate the details of the multiple incidents here. Suffice it to say, the Department alleged that Mr. Sanchez repeatedly had violated §§ 456.072(l)(v) and 456.063(1) by committing sexual misconduct against multiple women in the course of his work as a dental hygienist; that there was a significant likelihood that Mr. Sanchez would cause harm to female patients in the future due to “his repeated and continuous disregard for the laws and regulations governing dental hygienist[s]”; and that there existed an immediate, serious danger to the health, safety, or welfare of the citizens of the State of Florida. Based upon these allegations, the Department decided that an emergency restriction was necessary and fair under the circumstances to adequately protect the public: “[n]othing short of the immediate restriction of Mr. Sanchez’s license [would] protect the public from the dangers created by Mr. Sanchez’s continued practice of dental hygiene on female patients.” And so, it restricted Mr. Sanchez’s license to practice immediately by prohibiting him from seeing female patients until a full hearing could take place in the matter.

II.

Section 120.60(6) authorizes a state agency to take emergency disciplinary action against a state licensee under the following circumstances:

If -the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency suspension, restriction, or limitation of a license, the agency may take such action by any procedure that is fair under the circumstances if:
(a) The procedure provides at least the same procedural protection as is given by other statutes, the State Constitution, or the United States Constitution;
(b) The agency takes .only that ■ action necessary to protect the public interest under the emergency procedure;, and
■(c) The agency.states in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public, health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. The agency’s findings of immediate danger, necessity, and procedural fairness are judicially reviewable.

On appeal, our review is limited to evaluating whether the face of an emergency order provides sufficiently detailed allegations. Nath v. Dep’t of Health, 100 So.3d 1273, 1276 (Fla. 1st DCA 2012).

Mr. Sanchez argues that the Department’s order is insufficient on its face to justify the emergency restriction of his license. In his view, the order does not adequately state .that (1) Mr. Sanchez’s conduct presents an immediate danger to the public health, safety, or welfare; (2) the complained of conduct was likely to continue; or (3) the order was necessary to stop the emergency. He also argues that the order was not sufficiently narrowly tailored to be fair. We disagree with his arguments and conclude' that the detailed allegations in the Department’s order satisfied each of these elements. We more particularly address only Mr, Sanchez’s argument that the order restricting his license was not sufficiently narrowly tailored to be fair,

Many cases have construed the requirements of § 120.60(6), and among the requirements this court has applied is that emergencyorders must -be “sufficiently narrowly tailored to be fair.’ ” Nath,. 100 So.3d at 1276 (quoting Kaplan v. Dep’t of Health, 45 So.3d 19, 21. (Fla. 1st DCA 2010)). On its face, the order here doesn’t assess the heaviest possible emergency sanction. The Department didn’t suspend-Mr. Sanchez’s license altogether, but only restricted him from seeing female patients. But Mr. Sanchez asserts that the Department could have employed a more modest remedy by allowing him to continue practicing on female patients in the presence of another professional. His argument relies upon this Court’s discussion in Nath that “agencies employing the procedure must ‘explain why less harsh remedies ... would have been insufficient to stop the harm alleged,’” Nath, 100 So.3d at 1276, and resembles Machiela v. Department of Health, Board of Optometry, 995 So.2d 1168 (Fla. 4th DCA 2008), where the court reversed a suspension because it determined that merely requiring a second person in the room would sufficiently protect the public (Machiela involved an optometrist who repeatedly exposed himself to minors during office visits). But' we are satisfied in this case that the Department’s emergency order meets the statute’s requirements. Here, the allegations are that Mr. Sanchez furtively, sometimes under the cover of a dental office bib, would touch and rub the private areas of female patients while carrying out his duties cleaning and checking their teeth. Because his alleged misconduct is readily concealable in the course of carrying out his duties, we cannot fault the Department’s tailored, gender-specific restriction and conclusion that “[njothing short of the immediate restriction of Mr. Sanchez’s license to practice as a dental hygienist in the State of Florida will protect the public from the dangers created by Mr. Sanchez’s continued practice of dental hygiene on female patients..” ■

III.

Because the Department’s emergency order restricting Mr. Sanchez’s license is facially sufficient, we deny the petition.

PETITION DENIED.

ROWE and WINOKUR, JJ„ CONCUR.