author: KELLY, Judge. LUCAS, Judge, concurring.

text:
    Eric MCFARLANE, a/k/a Eric Livingston McFarlane, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5462
    District Court of Appeal of Florida, Second District.
    Opinion filed March 21, 2018
    Howard L. Dimmig, II, Public Defender, and Ama N. Appiah, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Eric McFarlane challenges his convictions for possession of cocaine with intent to sell and criminal mischief. We agree with his argument that reversal is required on his conviction for possession of cocaine with intent to sell because the State failed to prove the cocaine was intended for sale rather than for personal use. However, we find no merit in McFarlane's remaining argument and, accordingly, affirm his conviction for criminal mischief.

A detective stopped McFarlane's car because he recognized McFarlane and suspected he was driving with a suspended license. Upon confirming that McFarlane had a suspended license, the detective conducted a search incident to arrest and found that McFarlane had $42 and a small box in his pocket holding methamphetamine and cocaine. Eight cocaine rocks were different sizes and were not individually packaged. Three officers testified at trial and opined that based on their experiences the way the cocaine was packaged and cut up in various sizes was indicative of distribution, but each officer conceded that the cocaine could also be for self-use. No testimony was presented as to the total weight of the cocaine.

The quantity or packaging of drugs found in a defendant's possession may indicate an intent to sell. Phillips v. State, 961 So.2d 1137, 1138 (Fla. 2d DCA 2007) (noting that the amount and quantity of drugs possessed by an individual may be circumstantial evidence of his intent to sell where such amount is inconsistent with personal use). "[H]owever, in cases where small amounts of narcotics are found, courts generally require other proof of suspicious circumstances, drug paraphernalia available, or other evidence which circumstantially would indicate intent to sell." Lesane v. State, 895 So.2d 1231, 1233 (Fla. 4th DCA 2005) ; see also Jackson v. State, 818 So.2d 539, 541 (Fla. 2d DCA 2002) (holding that where the defendant was arrested for fleeing a traffic stop and found to possess $400 and five grams of cocaine packaged in six ring baggies, the quantity was not so large as to imply an intent to sell without other evidence); Williams v. State, 569 So.2d 1376, 1377 (Fla. 2d DCA 1990) (concluding that evidence consisting of ten pieces of cocaine, marijuana rolling papers, $72, and a weapon was insufficient to prove intent to sell); Thomas v. State, 212 So.3d 410, 412-13 (Fla. 4th DCA 2017) (holding that the evidence was insufficient to prove intent to sell drugs where the quantity of drugs was small, the drugs were not individually packaged, $1086 in cash was not mingled with the drugs, and the arresting officer did not observe the defendant engage in any conduct consistent with illegal drug sales before stopping him for a traffic violation); Sampson v. State, 863 So.2d 404, 405 (Fla. 4th DCA 2003) (reversing the defendant's conviction for possession of cocaine and cannabis with intent to distribute where no evidence was presented that the 12.9 grams of cocaine found on the defendant was inconsistent with personal use or that there was any other indication that the defendant intended to sell the cocaine).

The trial court erred in failing to grant McFarlane's motion for judgment of acquittal on the possession of cocaine with intent to sell charge. Before the arresting officer stopped McFarlane's car he did not observe McFarlane engage in any conduct consistent with illegal drug sales. McFarlane did not have large amounts of drugs or money; he did not have a gun, scales, baggies, or any other items to indicate that he was in the business of selling drugs. Further, the officers conceded at trial that McFarlane's possession of the cocaine rocks could have been for his own personal use. See Thomas, 212 So.3d at 413 (holding that "the state's evidence was legally insufficient to prove an intent to sell the cocaine, especially in light of the state's expert's opinion testimony that appellant's possession of some of the cocaine pieces could have been either with an intent to sell or for his own personal use").

Accordingly, we reverse McFarlane's conviction for possession of cocaine with intent to sell. We remand for entry of a judgment for simple possession of cocaine and for resentencing on the reduced charge.

Reversed in part, affirmed in part, and remanded.

SILBERMAN, J., Concurs.

LUCAS, J., Concurs with opinion.

LUCAS, Judge, concurring.

I agree with the court's decision to reverse Mr. McFarlane's conviction for possession of cocaine with intent to sell because I, like the majority, am bound by precedent to do so. I do wonder, though, whether the law on the issue of criminal intent to sell has become overly didactic-perhaps to the point that it is becoming unsustainable. It is one thing to catalog those aspects of a drug sale prosecution that can provide circumstantial evidence of a defendant's criminal intent to sell-having a large quantity of drugs, associated paraphernalia, scales, rolls of cash, and so forth-but quite another to turn them into requisites that must be shown, without which the State cannot present its case to the jury. These "tools of the trade," as it were, are indicia of an accused's intent to sell illegal drugs, and the courts rightly allow their consideration in these prosecutions because criminal intent is an element uniquely reserved for a jury's determination. See State v. Tovar, 110 So.3d 33, 36 (Fla. 2d DCA 2013) ("[A] trial court should rarely, if ever, grant a motion for judgment of acquittal based on the state's failure to prove mental intent." (quoting Hardwick v. State, 630 So.2d 1212, 1214 (Fla. 5th DCA 1994) ) ); Wallace v. State, 764 So.2d 758, 759 (Fla. 2d DCA 2000) ("[P]roof of mental intent is seldom accomplished by direct evidence; consequently, the absence of direct proof on the question of the defendant's mental intent should rarely, if ever, result in a judgment of acquittal." (quoting Ehrlich v. State, 742 So.2d 447, 450-51 (Fla. 4th DCA 1999) ) ). But our case law treats the presence of these circumstantial indicia of drug dealing as if they were a requisite part of the element of intent that the State must prove in cases where there is no direct evidence of a criminal intent to sell drugs. In truth, we are tasking the State with providing a surrogate for direct evidence (chosen from an opaquely defined list of our making) on the issue of a defendant's intent to sell. Why?

In our district this whole muddled notion appears to have sprouted from the circumstantial evidence rule, which requires a prosecution based upon circumstantial evidence to be inconsistent with the defendant's reasonable hypothesis of innocence. See Williams, 569 So.2d at 1376 (reciting circumstantial evidence rule and decreeing that defendant's possession of ten pieces of cocaine, marijuana rolling papers, razor blades, $72 cash, and a weapon were not inconsistent with defendant's theory that the cocaine he possessed was for personal use, not for sale); see also Phillips, 961 So.2d at 1138 ("Where the only proof of an intent to sell is circumstantial, [that proof] may support a conviction only if it excludes every reasonable hypothesis of innocence." (alteration in original) (quoting Glenn v. State, 824 So.2d 1046, 1049 (Fla. 4th DCA 2002) ) ). I am not convinced that the application of the circumstantial evidence rule we have wrought-focused and applied, as it is, entirely on the singular element of intent-can be aligned with the Florida Supreme Court's clarification of that rule in Knight v. State, 186 So.3d 1005, 1010 (Fla. 2016) ("[W]e agree with the Fifth District that [the circumstantial evidence standard] should not be applied based on any particular element of a crime being itself proven entirely by circumstantial evidence."). Since the element in question is one that often turns on circumstantial evidence, it may be time to reconsider our decisions in Phillips, 961 So.2d 1137, Jackson, 818 So.2d 539, and Williams, 569 So.2d 1376, to the extent their underpinning is an erroneous element-centric application of the circumstantial evidence rule.

Accordingly, while I concur with the court's decision today, I question whether the precedents we are applying to reach this decision remain entirely sound. Hopefully an occasion arises where we can thoughtfully reassess them.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Emmanuel Sospeter GIMONGE, Appellant, v. Laurie Sospeter GIMONGE, Appellee.
    Case No. 5D17-2747
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 23, 2018
    Jason Brian Phillips, of J. Brian Phillips, P.A., Orlando, for Appellant.
    Adam H. Sudbury of Apellie Legal, Orlando, for Appellee.
   PER CURIAM.

Emmanuel Sospeter Gimonge ("Father") appeals a non-final order granting an emergency motion for child pick-up in favor of Laurie Sospeter Gimonge ("Mother"). Father argues that the trial court erred in granting Mother's motion because she failed to file a petition to relocate with the couple's minor child under section 61.13001, Florida Statutes (2017). We affirm.

The parties were married in 2011 and have one child in common. They separated in 2015, but Mother filed for dissolution of marriage in 2017. That action remains pending. After filing for dissolution, Mother, without Father's consent or a court order, left Florida with the child and moved to Michigan. Father filed an ex parte emergency motion for child pick-up, seeking to have the child returned to Florida. The court declined to rule on an ex parte basis and set the motion for a hearing. We glean from the limited record that the parties ran out of time at the scheduled hearing.

The parties subsequently entered into a stipulation that resolved Father's motion, the nature of which forms the essence of this appeal. The terms of the agreement provided that the child would remain in Mother's custody, pending the outcome of a scheduled mediation. If the parties were unable to reach an agreement during mediation, either party would be able to file a motion for temporary relief pending trial. Father would have one month of timesharing in the summer, which required that he would pick the child up in person in Michigan, as well as timesharing over winter break. Additionally, the agreement provided, "Father shall not be prejudiced should the child end up attending school in Michigan pending a scheduled mediation or trial date." The agreement specifically provided that Father reserved his right to litigate the issues raised in the emergency motion at the time of trial. The stipulation specified that it was "a temporary agreement without prejudice to either side taking a different, new, or conflicting position later." The trial court approved and ratified the agreement by temporary order.

Father subsequently filed an ex parte emergency motion for contempt/enforcement and child pick-up, alleging that Mother refused to comply with the agreed-upon summer visitation. As a result, the court awarded Father thirty days of make-up timesharing. Toward the end of that timesharing, Father filed an emergency motion for injunction to prevent the removal of the child from Florida (and by implication his having to return the child to Mother), arguing that Mother had failed to file a petition to relocate with the child and had removed the child from Florida without his consent. In turn, Mother filed an emergency motion for child pick-up order, alleging that Father refused to return the child following his timesharing pursuant to the court ordered make-up visitation. The trial court ruled in favor of Mother.

Section 61.13001, Florida Statutes (2017), governs "[p]arental relocation with a child." It provides, in relevant part:

(2) Relocation by agreement. -
(a) If the parents and every other person entitled to access to or time-sharing with the child agree to the relocation of the child, they may satisfy the requirements of this section by signing a written agreement that:
1. Reflects consent to the relocation;
2. Defines an access or time-sharing schedule for the nonrelocating parent and any other persons who are entitled to access or time-sharing; and
3. Describes, if necessary, any transportation arrangements related to access or time-sharing.
(b) If there is an existing cause of action, judgment, or decree of record pertaining to the child's residence or a time-sharing schedule, the parties shall seek ratification of the agreement by court order without the necessity of an evidentiary hearing unless a hearing is requested....
(3) Petition to relocate. -Unless an agreement has been entered as described in subsection (2), a parent or other person seeking relocation must file a petition to relocate and serve it upon the other parent, and every other person entitled to access to or time-sharing with the child. The pleadings must be in accordance with this section ....

§ 61.13001(2) - (3), Fla. Stat. (2017). Under the clear language of the statute, parties may either agree to a child's relocation, or the relocating parent must file a petition to relocate. The central issue on appeal is whether the parties' agreement authorized Mother to temporarily relocate with the parties' child pending final dissolution proceedings, without filing a petition to relocate pursuant to section 61.13001(3).

Father contends that the parties' agreement was not an agreement for relocation, but rather it was merely a stipulated contact schedule. We find no error in the trial court's disinclination to engage in such semantics. The parties' agreement complied with the mandates of section 61.13001(2). The agreement reflects that Father consented to temporary relocation: Mother resided in Michigan and the agreement provided that the child would remain in her custody and possibly attend school in Michigan. See § 61.13001(2)(A) 1., Fla. Stat. The agreement defines Father's timesharing, detailing his rights over summer and winter breaks. See id. § 61.13001(2)(A) 2. The agreement also provides transportation arrangements, requiring Father to both pick up and return the child in Michigan. See id. § 61.13001(2)(A) 3. Once ratified by the court, it became a temporary child custody order. Therefore, the agreement complied with the requirements of section 61.13001(2), and Mother was not required to subsequently file a petition to relocate. See id. § 61.13001(2) - (3).

We note, however, that the agreement at issue is temporary, pending final dissolution proceedings. The agreement specifically allows Father to raise at trial the issue of Mother's admittedly improper initial removal of the child from Florida, and Mother can raise Father's failure to return the child at the conclusion of the summer visitation. We express no opinion on whether relocation would be appropriate.

AFFIRMED.

COHEN, C.J., BERGER and LAMBERT, JJ., concur.

      Jurisdiction exists pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii) b., which provides jurisdiction in family law matters to review non-final orders determining "the rights or obligations of a party regarding child custody."

      The court also ordered Father to pay temporary child support.


text:
    Lorenzo Lee WILLIAMS, DOC #127304, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4911
    District Court of Appeal of Florida, Second District.
    Opinion filed March 23, 2018
    Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, for Appellee.
   PER CURIAM.

Lorenzo Williams appeals the order revoking his probation in circuit court case numbers 15-438 and 15-494 after a hearing. We affirm without comment the trial court's finding that Williams willfully violated condition five and special condition four of his probation by committing new law offenses and contacting the victim and the court's revocation of Williams' probation. However, we reverse the revocation order to the extent that it incorrectly states that Williams admitted the violations, and we remand for the trial court to correct this scrivener's error. See Hamilton v. State, 128 So.3d 177 (Fla. 2d DCA 2013).

Affirmed in part; reversed in part; remanded with instructions.

VILLANTI, SLEET, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Michael W. HANEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3816
    District Court of Appeal of Florida, Second District.
    Opinion filed March 23, 2018
    Michael W. Haney, pro se.
   PER CURIAM.

Michael W. Haney appeals the order summarily denying his second amended motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. For the reasons explained below, we reverse those portions of the order that summarily deny grounds three and nine and affirm without comment the summary denial of the remaining grounds.

Background

A jury found Mr. Haney guilty of one count of possession of methamphetamine and one count of possession of drug paraphernalia. The trial court sentenced him to forty-four months' imprisonment and time served, respectively. Mr. Haney appealed his judgment and sentences, and this court affirmed. Haney v. State, 211 So.3d 1038 (Fla. 2d DCA 2016) (table decision).

The limited postconviction record reflects that two members of the sheriff's crime suppression team concealed themselves in shrubbery, after midnight, on a dark street with the intent to stop those who provided cause and investigate possible criminal activity. They observed "multiple subjects moving out and about the road," at least two of whom were crossing the road at a forty-five degree angle towards them. One deputy stepped out into the road to make contact with one of the subjects, Mr. Haney, whom he stopped for jaywalking. The deputy turned on his flashlight, announced his presence, provided the reason for stopping Mr. Haney, and asked to search Mr. Haney. Mr. Haney consented, and the deputy directed Mr. Haney to move to the side of the road where the deputy could safely conduct a search.

The deputy testified that he used his flashlight to "check the ground" where he directed Mr. Haney and that he "didn't notice anything out of the ordinary. Didn't notice anything that would stand out." After searching Mr. Haney's pockets, the deputy asked if he could search Mr. Haney's shoes and socks. Mr. Haney consented. The deputy testified that the following occurred:

He sat down on the ground and I watched him all the way down to the ground watching until he sat down. And then he removed his boot. And when he removed his boot I could see on the ground a small clear plastic bag, and [he] immediately advised that it wasn't his.
Q. When you say you saw it on the ground describe to the jury in what proximity to the defendant was this bag?
A. I could not see it until he had moved his foot slightly when you try to put it down to take the other boot off. It was directly under his foot.

While the first deputy stopped and searched Mr. Haney, the second deputy was, according to the first deputy, "making contact with" another man approximately fifteen feet away from where the first deputy either stopped or searched Mr. Haney.

At the conclusion of the State's case, Mr. Haney's trial counsel moved for a judgment of acquittal, asserting that the State failed to prove that Mr. Haney had exclusive control over the road where the small bag containing methamphetamine was found or that Mr. Haney knew the methamphetamine was there. His trial counsel argued:

We know from the jury instructions that mere proximity to a substance is not sufficient to establish control over it. So even if he was standing on top of it in the gravel that's-we would argue that that's not sufficient, and there's been no evidence put forth by the State either in the form of admissions or other incriminating evidence by the deputy that he ever had it on his person.
We know that it was in the gravel on the ground underneath his foot and that's really all we know.

The trial court denied his motion.

The man stopped by the second deputy testified in Mr. Haney's defense that he was carrying a small bag containing methamphetamine that night and that he dropped it when the second deputy approached him. This man stepped out of the road, and the second deputy patted him down and released him. Mr. Haney then walked "up behind" this other man to the area where the other man had been searched, and the other man watched as the first deputy searched and arrested Mr. Haney.

The second deputy testified for the State in rebuttal that he did not observe the man drop something and that he stopped the other man "ten, maybe fifteen feet" from where the first deputy searched Mr. Haney.

The Postconviction Claims

In ground three of his second amended motion, Mr. Haney asserted that his trial counsel was ineffective for failing to raise as an affirmative defense that the State failed to prove he had dominion and control over the bag containing methamphetamine. In ground nine, he asserted that his trial counsel was ineffective for failing to object to the jury instructions because they did not instruct the jury that when contraband is found in a place that the accused does not control, proximity to the contraband is not sufficient to establish the accused's power and intention to control it.

Citing the limited portion of the first deputy's testimony that it attached to its order, the postconviction court denied ground three, finding that "[t]he State proved the Defendant had knowledge and dominion over the drugs as the ground was checked prior to the search and encounter with the Defendant, and after the Defendant removed his socks and shoes, the narcotics were found directly underneath his foot." In summarily denying ground nine, the postconviction court found that the same testimony "did not establish mere proximity as the Defendant alleges, but rather that the Defendant had actual possession of the narcotics in his shoe."

Analysis

To establish a claim of ineffective assistance of trial counsel, a defendant must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance is established by showing that "counsel's representation fell below an objective standard of reasonableness" under "prevailing professional norms." Id. at 688, 104 S.Ct. 2052. Prejudice is established by demonstrating a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have differed. Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In an appeal from an order summarily denying a rule 3.850 motion, this court must reverse unless the postconviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

The postconviction record does not reveal whether the State proceeded under a theory of actual or constructive possession, but "under either theory the requisite control is not established by an accused's mere proximity to the contraband." Sanders v. State, 210 So.3d 246, 248 (Fla. 2d DCA 2017) (quoting G.G. v. State, 84 So.3d 1162, 1164 (Fla. 2d DCA 2012) ). Accordingly, the standard jury instruction for the crime of possession of a controlled substance directs trial courts to provide the following instruction, if applicable: "Mere proximity to a substance is not sufficient to establish the power and intention to control that substance when the substance is in a place that the person does not control."

The postconviction court's attachments reflect that the methamphetamine was found in gravel on the side of a dark road. They do not reflect that the deputy testified that Mr. Haney was touching the bag of methamphetamine or that he observed it fall from Mr. Haney's sock or boot. Nor does the postconviction record reflect that the State presented any other evidence, such as fingerprints or incriminating statements, to connect Mr. Haney to the methamphetamine. Thus, the postconviction record reveals that the State's case rested on the inference that the methamphetamine fell from Mr. Haney's boot because the first deputy found the bag of methamphetamine in close proximity to Mr. Haney, and he "[d]idn't notice anything that would stand out" before Mr. Haney sat down to remove his boot. And as mentioned above, the postconviction record also reflects that Mr. Haney's trial counsel's theory of defense, at least at the close of the State's case, was that Mr. Haney's proximity to the methamphetamine did not prove that he controlled it.

The postconviction record does not conclusively refute Mr. Haney's claim that his trial counsel's failures to present this defense to the jury through the standard instructions and to object to the omission of the instructions were unreasonable under the circumstances. Rather, it shows that the proposed jury instructions were both appropriate and consistent with the defense Mr. Haney's trial counsel presented in his motion for judgment of acquittal. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052 ("[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.").

Nor does the postconviction record conclusively refute Mr. Haney's claims that he was prejudiced by these omissions. Although the deputy testified that he used his flashlight to look at the ground as Mr. Haney sat down and that "he didn't notice anything out of the ordinary," the postconviction court's attachments show that the deputy testified that there were "several subjects" on the dark street. The trial transcripts attached to Mr. Haney's motion reveal that the other man confessed to dropping a small bag of methamphetamine shortly before the deputy observed a small bag of methamphetamine on the ground beneath Mr. Haney's foot. Under these circumstances, the postconviction record does not conclusively refute Mr. Haney's claim that there is a reasonable probability that the outcome of his trial would have differed if his jury had been instructed that his proximity to the methamphetamine and drug paraphernalia is not sufficient to establish his power and intention to control them when they are in a place that he does not control.

Accordingly, we reverse those portions of the postconviction court's order that summarily deny grounds three and nine of Mr. Haney's second amended rule 3.850 motion and remand for the postconviction court to reconsider these claims. Should the postconviction court again enter an order summarily denying the postconviction motion, it shall attach those portions of the record that conclusively show Mr. Haney is entitled to no relief.

Affirmed in part; reversed in part; and remanded.

SILBERMAN, MORRIS, and LUCAS, JJ., Concur.

      We note that although Mr. Haney attached the instruction for possession of paraphernalia to his motion, the postconviction record does not contain the instruction for possession of methamphetamine. See Simon v. State, 997 So.2d 490, 492 (Fla. 4th DCA 2008) ("A defendant's factual allegations in a rule 3.850 motion must be accepted as true to the extent they are not conclusively refuted by the record." (citing Prince v. State, 964 So.2d 783, 784 (Fla. 4th DCA 2007) ) ).

      "Possession is actual when the contraband is (1) in the defendant's hand or on his person, (2) in a container in the defendant's hand or on his person, or (3) within the defendant's ' "ready reach" ' and the contraband is under his control." Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009) (quoting Harris v. State, 954 So.2d 1260, 1262 (Fla. 5th DCA 2007) ). "[T]o establish constructive possession, the State must prove that the defendant had dominion and control over the contraband and knew the contraband was within his presence." Id. at 677.

      Fla. Std. Jury Instr. (Crim.) 25.7; see also Fla. Std. Jury Instr. (Crim.) 25.14 ("Mere proximity to drug paraphernalia is not sufficient to establish the power and intention to control that drug paraphernalia when the drug paraphernalia is in a place that the person does not control.").

      The postconviction court did not attach the opening statements or the closing arguments to its order.


author: KHOUZAM, Judge.

text:
    Curtis Eugene WILSON, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1506
    District Court of Appeal of Florida, Second District.
    Opinion filed March 23, 2018.
    Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   KHOUZAM, Judge.

We affirm the judgment and sentences of Curtis Eugene Wilson, III, without comment. Our affirmance, however, is without prejudice for Mr. Wilson to file an appropriate postconviction motion alleging the involuntariness of his plea. See Fla. R. Crim. P. 3.850(a)(5) ; Fla. R. Crim. P. 3.172(c) ; Koenig v. State, 597 So.2d 256, 258 (Fla. 1992) ; Vance v. State, 796 So.2d 1286, 1288 (Fla. 5th DCA 2001).

Affirmed.

MORRIS and SALARIO, JJ., Concur.


author: LaROSE, Chief Judge.

text:
    Humphrey IGBERAESE, Appellant, v. VILLAGE OF STONEYBROOK II CONDOMINIUM ASSOCIATION, INC.; Appellee.
    Case No. 2D17-1676
    District Court of Appeal of Florida, Second District.
    Opinion filed March 28, 2018
    Humphrey Igberaese, pro se.
    Jacob A. Brainard and Michael H. Casanover of the Business Law Group, P.A., Tampa, for Appellee Village of Stoneybrook II Association, Inc.
   LaROSE, Chief Judge.

Humphrey Igberaese appeals the final summary judgment of foreclosure entered in favor of Village of Stoneybrook II Condominium Association arising from his unpaid assessments. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm, without further comment, as to each of the issues raised by Mr. Igberaese, save one, which we must dismiss.

In the final judgment, the trial court found that the Association was entitled to an award of attorney's fees, but reserved jurisdiction to determine the amount. Although we have jurisdiction over the final judgment, see Singh v. U.S. Bank, N.A., 223 So.3d 436, 438 (Fla. 2d DCA 2017) ("Beyond dispute, however, we have jurisdiction to review the final judgment of foreclosure ...."), we cannot address Mr. Igberaese's challenge to the trial court's determination of the Association's entitlement to fees, see Pulling v. Billmyre Enters., Inc., 223 So.3d 1086, 1087 (Fla. 2d DCA 2017) ("[A]n order which only determines the right to attorney's fees without setting the amount is a nonappealable, nonfinal order." (quoting Smith v. Smith, 169 So.3d 220, 221 (Fla. 2d DCA 2015) ) ).

Consequently, we affirm the final judgment, but dismiss without prejudice that portion of Mr. Igberaese's appeal challenging the Association's entitlement to attorney's fees. See Salem v. Abram, 868 So.2d 1213, 1214 (Fla. 2d DCA 2004) (affirming the entry of final judgment, but dismissing the portion of the appeal challenging the trial court's determination of entitlement to attorney's fees).

Affirmed, in part; dismissed, in part.

KHOUZAM and LUCAS, JJ., Concur.


text:
    James WITT, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3689
    District Court of Appeal of Florida, Second District.
    Opinion filed March 28, 2018.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

James Witt appeals the circuit court's order revoking his probation in case number 2010-CF-1118 and his resulting sentence. The State has conceded error in part. We accept the State's concession of error and reverse and remand in part, with instructions for the circuit court to enter an amended sentence that (1) strikes Mr. Witt's designation as a habitual felony offender and (2) imposes a corrected $100 cost of prosecution fee under section 938.27(8), Florida Statutes (2016).

Additionally, following revocation the circuit court entered a new judgment in 2010-CF-1118. "Duplicative adjudications of guilt after revocation of probation or community control are superfluous, are unauthorized, and can cause undue confusion in future proceedings." Butler v. State, 195 So.3d 1147, 1148 (Fla. 2d DCA 2016) ; see also Pierce v. State, 150 So.3d 1207, 1208-09 (Fla. 2d DCA 2014). Thus, we reverse the unauthorized judgment. We affirm the circuit court's order revoking Mr. Witt's probation and the resulting sentence in all other respects.

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

NORTHCUTT, BLACK, and LUCAS, JJ., Concur.


text:
    ESCA INVESTMENT, INC., Appellant, v. Alejandro TARRAZA, Appellee.
    No. 3D17-39
    District Court of Appeal of Florida, Third District.
    Opinion filed April 4, 2018
    Quintairos, Prieto, Wood & Boyer, P.A., and Thomas A. Valdez (Tampa), David Tarlow (Fort Lauderdale) and Michael Wood (Fort Lauderdale), for appellant.
    Kawel PLLC, and Andrew Paul Kawel, for appellee.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

ESCA Investment, Inc., the defendant below, appeals from the trial court's order granting a new trial upon motion filed by Alejandro Tarraza, plaintiff below. The trial court granted the motion for new trial based upon the individual and cumulative effect of defendant's violation of an order in limine , improper closing argument (properly preserved by defendant's contemporaneous objection), and a determination that the jury's award of zero damages for future pain and suffering was contrary to the manifest weight of the evidence.

Upon our consideration of the trial court's careful and detailed seven-page order, and our own review of the record upon which the trial court based its determinations, we find no abuse of discretion. See Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla. 1999) (holding: "When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion"); Castlewood Intern. Corp. v. LaFleur, 322 So.2d 520, 522 (Fla. 1975) (observing: "Since at least 1962, it has been the law of Florida that a trial court's discretion to grant a new trial is 'of such firmness that it would not be disturbed except on clear showing of abuse ....' Cloud v. Fallis, 110 So.2d 669, 672 (Fla. 1959). A heavy burden rests on appellants who seek to overturn such a ruling, and any abuse of discretion must be patent from the record"); Ryan v. Atlantic Fertilizer & Chem., Co., 515 So.2d 324, 327 (Fla. 3d DCA 1987) (holding that the burden is on appellant "to clearly or plainly show that there was a gross or palpable abuse of discretion" in trial court's granting new trial).

Affirmed.


text:
    Raul Jesus MARI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2386
    District Court of Appeal of Florida, Third District.
    Opinion filed April 4, 2018
    Richard C. Klugh, P.A., and Richard C. Klugh, for appellant.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before LAGOA, LOGUE and SCALES, JJ.
   PER CURIAM.

After conducting an evidentiary hearing on Appellant Raul Jesus Mari's motion for post-conviction relief alleging ineffective assistance of counsel, the trial court entered a thorough and detailed order specifically identifying how each of Mari's claims were refuted either by the record or by the testimony provided at the evidentiary hearing. Because the trial court correctly applied the Strickland standard, and because each of the trial court's factual findings are supported by competent substantial evidence, we affirm. See Rojas v. State, 922 So.2d 350, 352 (Fla. 3d DCA 2006) ("A claim of ineffective assistance of counsel is a mixed question of law and fact. The trial court's factual findings and credibility determinations are afforded deference and if supported by competent, substantial evidence, will not be disturbed on appeal.").

Affirmed.

      Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: KELLY, Judge.

text:
    Tony Eric DUPIN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4413
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018
    Howard L. Dimmig, II, Public Defender, and Ivy R. Ginsberg, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Tony Eric Dupin appeals from his judgment and sentence for aggravated battery with a deadly weapon (a knife). He argues that his trial counsel's failure to object to the absence of a jury instruction on justifiable use of nondeadly force constituted ineffective assistance of counsel. While it is rare that a claim that defense counsel is ineffective will be considered on direct appeal, a defendant may raise it if the "ineffectiveness is apparent on the face of the record and it would be a waste of judicial resources to require the trial court to address the issue." Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla. 1987). Counsel's performance in this case meets that standard. See McComb v. State, 174 So.3d 1111, 1113 (Fla. 2d DCA 2015) (finding ineffective assistance of counsel on the face of the record where counsel's failure to request an instruction on justifiable use of nondeadly force deprived the defendant of a defense); see also Michel v. State, 989 So.2d 679, 681 (Fla. 4th DCA 2008) (same). Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

CASANUEVA and KHOUZAM, JJ., Concur.


text:
    William Charles RICHARDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2436
    District Court of Appeal of Florida, Third District.
    Opinion filed April 4, 2018
    William Charles Richardson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
    ON ORDER TO SHOW CAUSE
   PER CURIAM.

On February 21, 2018, the Court affirmed the denial of William Richardson's petition for writ of habeas corpus. On the same date, the Court ordered Richardson to show cause why he should not be prohibited from filing further pro se appeals, petitions, motions, or other pleadings in this Court relating to lower tribunal case F75-11762.

Upon consideration of Richardson's response to the order to show cause and the successive, duplicative, pro se petitions and appeals brought by Richardson, we conclude that good cause has not been shown. Richardson has engaged in the filing of meritless, frivolous, and successive claims, continuing to seek relief from this Court notwithstanding prior adverse determinations on the merits.

In accordance with State v. Spencer, 751 So.2d 47 (Fla. 1999), and Concepcion v. State, 944 So.2d 1069 (Fla. 3d DCA 2006), Richardson is prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his conviction, judgment, and sentence in lower tribunal case F75-11762. We direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to the circuit court case number unless they have been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing. See Whipple v. State, 112 So.3d 540 (Fla. 3d DCA 2013).

Additionally, any such further and unauthorized pro se filings by Richardson may subject him to appropriate sanctions, including the issuance of written findings forwarded to the Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2017).

      Richardson failed to provide any response that would justify such filings; see the trial court's orders in the circuit court case entered October 13, 2017, June 24, 2016, September 24, 2015, and April 12, 2013, as well as this Court's opinions and orders in Case Nos. 3D17-2051, 3D16-2162, 3D16-1825, 3D15-1936, 3D15-530, and 3D13-2045.


author: NORTHCUTT, Judge.

text:
    Ezekiel GANDY, III, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3133
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   NORTHCUTT, Judge.

Ezekiel Gandy filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), claiming that his Criminal Punishment Code scoresheet was inaccurate because its prior record section incorrectly listed offenses for which he had not been convicted. The postconviction court denied the motion because it would have required an evidentiary hearing. However, Gandy's claim would be cognizable in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850, and it would be timely as such. See Thomas v. State, 149 So.3d 159, 160 (Fla. 1st DCA 2014). Accordingly, we reverse and remand for the postconviction court to allow Gandy the opportunity to raise the claim in a facially sufficient motion filed pursuant to Florida Rule of Criminal Procedure 3.850, if he has not already done so. See id.

Reversed and remanded with instructions.

SILBERMAN and MORRIS, JJ., Concur.


author: BADALAMENTI, Judge.

text:
    Richard Albert ROBERTS, DOC #C09992, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3499
    District Court of Appeal of Florida, Second District.
    Opinion filed April 4, 2018.
    Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Richard Albert Roberts appeals his jury conviction for capital sexual battery and the resulting life sentence and sexual predator designation imposed by the trial court. Roberts contends that the trial court erred by designating him a sexual predator pursuant to the Florida Sexual Predators Act. After careful review and the benefit of oral argument, we accept the State's concession that the sexual predator designation was error and reverse that portion of Roberts's sentence.

The sexual predator designation applies to an offense committed on or after October 1, 1993. See § 775.21(4)(a), Fla. Stat. (2015). Here, the felony information charges that the offense occurred approximately a decade prior to October 1, 1993. The trial court nevertheless designated Roberts a sexual predator pursuant to section 775.21 in a written order dated July 1, 2015, and indicated the same in Roberts's judgment. As the State properly concedes, this was error. See Wade v. State, 728 So.2d 284, 285 (Fla. 2d DCA 1999) ("Because [the defendant's] offenses were committed prior to October 1, 1993, we conclude that he did not meet the criteria for a sexual predator designation."), receded from on other grounds by King v. State, 911 So.2d 229 (Fla. 2d DCA 2005) ; see also Dennis v. State, 32 So.3d 79, 80 (Fla. 2d DCA 2009).

On remand, the trial court shall strike Roberts's sexual predator designation imposed for the conviction in this case and enter an amended judgment omitting this designation. See Dennis, 32 So.3d at 81 ; Wade, 728 So.2d at 285. We affirm his conviction and resulting life sentence in all other respects.

Affirmed in part; reversed in part; remanded with instructions.

NORTHCUTT and SLEET, JJ., Concur.

      See ch. 93-277, § 1, at 2621, Laws of Fla.

      Prior to filing his initial brief in this appeal, Roberts timely filed a Florida Rule of Criminal Procedure 3.800(b) motion, requesting that the trial court correct his sentence by removing the sexual predator designation. Because the trial court failed to rule on this motion within sixty days, the motion was deemed denied by the trial court. See Fla. R. Crim. P. 3.800(b)(2)(B).

      We have carefully reviewed all arguments raised by Roberts in this appeal. We reject his remaining arguments without comment.


author: Per Curiam.

text:
    Rudolph ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2159
    District Court of Appeal of Florida, First District.
    April 10, 2018
    Rudolph Andrews, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant Rudolph Andrews, convicted of trafficking in cocaine, filed a timely motion and then amended motion under rule 3.850, Florida Rules of Criminal Procedure, asserting that his trial counsel acted ineffectively. Appellant's amended motion was denied without an evidentiary hearing-the trial court finding that Appellant did not meet the prejudice prong of the standard provided in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and he appeals. The State concedes error, we accept the concession, and reverse for an evidentiary hearing on the motion.

Appellant's specific issue was that counsel was ineffective by failing to object when the State had the court reporter from the hearing on Appellant's motion to suppress read portions of Appellant's testimony from the suppression hearing to the jury during trial. Appellant did not testify at trial, so there is no argument that the Appellant's testimony at the suppression hearing was being used as impeachment at trial.

A defendant's testimony during a hearing on a motion to suppress may not be entered into evidence against him in a subsequent trial. See Simmons v. United States , 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). After a full review of the record, we cannot conclude that the admission of Appellant's testimony did not cause Appellant prejudice. Johnson v. State , 537 So.2d 1116, 1117-18 (Fla. 4th DCA 1989). We therefore reverse and remand for the trial court to hold an evidentiary hearing to determine whether the State can prove Appellant's trial counsel had a strategic reason for failing to object to this testimony. See Occhicone v. State , 768 So.2d 1037, 1048 (Fla. 2000) (discussing that counsel cannot be found to have acted ineffectively if counsel engaged in a strategic decision which "was reasonable under the norms of professional conduct."). If the trial court cannot conclude that counsel's failure to object constituted a reasonable strategic decision, the trial court shall afford Appellant a new trial. See Johnson , 537 So.2d at 1118.

REVERSED and REMANDED for an evidentiary hearing.

Roberts, Bilbrey, and Kelsey, JJ., concur.

      The amended motion for post-conviction relief raised no new issues and was therefore timely since it related back to the initial motion. See Lukehart v. State , 70 So.3d 503 (Fla. 2011).

      As in Johnson, "the key question here was appellant's dominion and control over the cocaine. We surely cannot say beyond a reasonable doubt that evidence out of appellant's own mouth demonstrating dominion and control would not reasonably have had any effect on the trier of fact in determining guilt." Id. at 1118.
      This court conducted a comparison between the testimony read before the jury, and the full transcript of the hearing testimony. The comparison reflected that at least twice the reporter read abbreviated selections which resulted in the appearance that Appellant admitted he knew he had possessed the cocaine removed from his boxer shorts. However, a full reading of the transcript reflects that Appellant did not appear to be admitting guilt, but was instead confirming that the cocaine had been removed from his boxer shorts by the deputy. The defense's strategy at trial was to argue the deputy had framed Appellant by pretending to remove the cocaine from Appellant's person.
      Further, the State repeatedly highlighted to the jury this selection from Appellant's hearing testimony, arguing this was an admission of guilt. The State referred to this statement during argument on the elements of trafficking, asserting that Appellant's statement met the knowledge prong which the State needed to prove to acquire his conviction for trafficking in cocaine. The transcript reflects that these arguments concerning the selected hearing testimony were, along with the testimony of the two deputies who conducted the arrest of Appellant, central to the State's case.


text:
    WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., Appellant, v. Glenda URBINA, et al., Appellees.
    No. 3D15-2683
    District Court of Appeal of Florida, Third District.
    Opinion filed April 4, 2018.
    McGlinchey Stafford, and N. Mark New, II, Karin L. Posser, Kevin Inman, and William L. Grimsley (Jacksonville), for appellant.
    Wesoloski Carlson, P.A., and Erik D. Wesoloski, for appellee Western Homes LLC.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

This is an appeal from an order granting final summary judgment in favor of Appellee, Western Homes LLC, in a foreclosure action. Based on Western Homes LLC's concession of error, we reverse the summary judgment and remand for further proceedings. See Deutsche Bank Tr. Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016), review denied sub nom. Aqua Master Ass'n, Inc., etc. v. Deutsche Bank Nat'l Tr. Co. Americas, etc., SC16-732, --- So.3d ----, 2018 WL 1136530 (Fla. Mar. 2, 2018).

Reversed and remanded.


text:
    Felix L. CUEVAS-RODRIGUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1147
    District Court of Appeal of Florida, First District.
    April 13, 2018
    Felix L. Cuevas-Rodriguez, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied on the merits.

Makar, Winokur, and Winsor, JJ., concur.


text:
    Gerald DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-1325
    District Court of Appeal of Florida, First District.
    April 13, 2018
    John A. Ramsey, Jr., Gainesville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition seeking belated appeal is denied on the merits.

Lewis, Roberts, and Jay, JJ., concur.


text:
    Jeffery L. GORDON, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION and Ocean Partners Associates, Ltd., Appellees.
    Case No. 5D17-1259
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018
    Jeffery L. Gordon, Cocoa, pro se.
    Katie Sabo, Tallahassee, for Appellee, Reemployment Assistance Appeals Commission.
    No Appearance for Appellee, Ocean Partners Associates, Ltd.
   PER CURIAM.

AFFIRMED. See Mid-Fla. Freezer Warehouses, Ltd. v. Unemplmt. App. Comm'n , 41 So.3d 1014, 1017-18 (Fla. 5th DCA 2010) ("On appeal, this Court cannot make credibility determinations or substitute its judgment for that of the referee, and instead, must uphold the referee's decision where there is competent, substantial evidence to support the decision." (citation omitted) ).

PALMER, TORPY and EISNAUGLE, JJ., concur.


text:
    K.T., Mother of C.T., Minor Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-5253
    District Court of Appeal of Florida, First District.
    April 16, 2018
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Ward L. Metzger, Children's Legal Services, Jacksonville, for Appellee.
    Thomasina Moore and Sara E. Goldfarb, Guardian ad Litem Program, Sanford.
   Per Curiam.

Upon consideration of Appellant's response to this Court's order of December 19, 2017, the Court has determined that the notice of appeal failed to invoke the Court's jurisdiction in a timely manner. Accordingly, the appeal is dismissed for lack of jurisdiction.

Makar, Winokur, and Winsor, JJ., concur.


author: WALLIS, J.

text:
    NORTHPORT HEALTH SERVICES OF FLORIDA, LLC and NHS Management, LLC, Appellants, v. ESTATE OF Gertrude R. CHAMPAGNE BY AND THROUGH Gloria OLSEN, Personal Representative, Appellee.
    Case No. 5D17-2693
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 13, 2018
    Dale R. Sisco and Kristi Neher Davisson, of Sisco-Law, Tampa, for Appellants.
    Megan L Gisclar and Joanna Greber Dettloff, of Wilkes & McHugh, P.A., Tampa, for Appellee.
   WALLIS, J.

Northport Health Services of Florida, LLC d/b/a West Melbourne Health and Rehabilitation Center, appeals the trial court's order denying Northport's motion to compel arbitration with Gloria Olsen, as personal representative of the Estate of Gertrude R. Champagne.

We have recently addressed the enforceability of an identical arbitration agreement in Northport Health Services of Florida, LLC v. Louis, 240 So.3d 120 (Fla. 5th DCA Mar. 2, 2018). We held in Louis that the provision requiring Alabama's Rules of Evidence to control the admissibility of evidence at arbitration was against public policy, and that the provision was severable because it concerns procedure. Id. at ---- at D506. However, we also held that the provision requiring the application of Alabama Rules of Civil Procedure to the parties' conduct of pre-hearing discovery does not violate public policy because no convincing argument was raised as to why the application is problematic. Id.

Here, the parties raise essentially the same arguments. Accordingly, we reverse and remand with instructions to the trial court to grant Northport's motion to compel and to sever from the arbitration agreement the provision applying the Alabama Rules of Evidence to the admissibility of evidence at the arbitration hearing. Id.; see also Hancock v. Northport Health Servs. of Fla., LLC, 150 So.3d 1262, 1263 (Fla. 5th DCA 2014) (affirming an order compelling arbitration of an identical arbitration agreement).

REVERSED and REMANDED, with Instructions.

SAWAYA and EDWARDS, JJ., concur.


text:
    Daniel Carroll LEVASSEUR, Appellant, v. Cassie Lynn LEVASSEUR, Appellee.
    No. 1D17-1689
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Daniel Carroll LeVasseur, pro se, Appellant.
    No appearance for Appellee.
   Per Curiam.

AFFIRMED . See Frost v. Frost , 227 So.3d 227, 227 (Fla. 1st DCA 2017) ("This court has consistently held that absent fundamental error, we will not address legal issues not presented to the trial court.").

Rowe, Ray, and Makar, JJ., concur.


text:
    Diaundra JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2389
    District Court of Appeal of Florida, First District.
    April 17, 2018
    Andy Thomas, Public Defender, and Laura Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Diaundra Jones appeals her sentence for grand theft, arguing only that the trial court considered improper factors when imposing an eight-month jail sentence. But because she has not challenged her conviction-only her sentence-and because she has already served that sentence, this appeal has become moot. See Toomer v. State , 895 So.2d 1256, 1256-57 (Fla. 1st DCA 2005) ("Where one is challenging the legality of his sentence or seeking jail credit against that sentence, and he completes the sentence during the pendency of the appeal, the appeal may be dismissed as moot."). Although Jones asserts the appeal "is not moot because a possibility exists that adverse collateral legal consequences will befall Ms. Jones," she has not articulated what those adverse collateral consequences might be, and we can conceive of none.

DISMISSED .

Wolf, Osterhaus, and Winsor, JJ., concur.


text:
    Timothy TIMMEL, as Personal Representative of the Estate of Robert Frederick Timmel, Jr., Appellant, v. Anita May TIMMEL and Robert Frederick Timmel, Jr., Appellees.
    No. 1D17-5138
    District Court of Appeal of Florida, First District.
    April 20, 2018
    Michael D. Tidwell, Douglas D. Tidwell, and Benjamin L. Alexander, Pensacola, for Appellant.
    No appearance for Appellees.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of March 9, 2018, the appeal is dismissed. See Bennett's Leasing, Inc. v. First Street Mortgage Corp. , 870 So.2d 93 (Fla. 1st DCA 2003). The dismissal is without prejudice to Appellant's right to seek appellate review upon entry of a final order.

Wolf, Roberts, and Wetherell, JJ., concur.


text:
    Peter PORTU, Appellant, v. CITY OF CORAL GABLES, Johns Eastern Company, Inc., and Corvel Corporation, Appellees.
    No. 1D16-4767
    District Court of Appeal of Florida, First District.
    April 18, 2018
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Luis F. Estrada of Angones, McClure & Garcia, P.A., Miami, for Appellees.
   Per Curiam.

Peter Portu appeals the workers' compensation order denying attorney's fees and costs. We reverse as to attorney's fees. We affirm as to costs because Portu did not preserve his claim for appeal.

Section 440.34(3), Florida Statutes (2009), entitles a claimant to attorney's fees when the "carrier files a response to petition denying benefits"; the claimant has a "successful prosecution of the petition"; and thirty days elapse from "the date the carrier ... receives the petition." Franco v. SCI at Palmer Club at Prestancia , 989 So.2d 709, 710 (Fla. 1st DCA 2008) (quoting statute). Each of those factors is present here. The fact that the petition sought a higher impairment rating than the employer eventually agreed to does not change the statutory factors. On remand, the judge of compensation claims must award fees.

AFFIRMED in part; REVERSED in part.

Kelsey, Winokur, and Winsor, JJ., concur.