author: EDWARDS, J.

text:
    Darius Lamar GRAYSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-3128
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 24, 2017

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EDWARDS, J.

Appellant raises three issues on appeal from two related cases. In one case, he was convicted, following a jury trial, of burglary of a dwelling and third-degree grand theft (property valued at more than $300 but less than $20,000). In the second case, he pleaded guilty, after losing the first trial, to attempted burglary of an occupied dwelling and grand theft (property valued at more than $300 but less than $20,000).

Background Facts

On the night of Appellant’s arrest, one resident of the burglarized house went downstairs at approximately 2:00 a.m. He did not observe anything out of place. He went back downstairs around 2:30 a.m. and noticed that a previously closed sliding glass door was half-way open and several kitchen drawers were opened. The resident alerted others in the house, and they quickly determined that car keys, a backpack with nursing school textbooks, a laptop computer, two iPads, a Kindle Fire tablet, several gaming systems, and a Prada purse were missing from the home.

The victims called the police and reported that the burglary had occurred within thirty minutes of their call. Several police cars responded to the call because the neighborhood was recently plagued with residential burglaries. Within minutes of the call, one police car reported to the victims’ house. Other police cars surrounded the neighborhood in an attempt to intercept any suspects leaving the area. Two officers in a patrol car drove to an adjacent public ball field and parked on the other side of a wood line separating the field from the victims’ neighborhood in case the burglar or burglars escaped through the woods. The ball field was closed at that time of night.

Within approximately two minutes of arriving at the ball field, the police officers saw the silhouette of a single person walking in and out of the wood line. The individual, who was later identified as Appellant, was approximately 150 yards away when first spotted by the police. Given the low light and distance, the police could not observe whether Appellant was carrying burglar tools, disguises, or any stolen property. Appellant was not coming from the specific direction of the victims’ house; however, he was coming from the direction of their neighborhood.

The two police officers crouched down until Appellant neared. They then stood up, shined flashlights toward Appellant, and said, “Police Department. Stop!” Appellant ran a short distance, where he got stuck in thick brush. One of the officers recognized Appellant from previous encounters and called out his name. Appellant did not resist the officers when they approached him in the brush. After detaining Appellant, the officers located a set of car keys, a cigarette lighter, a pack of cigarettes, a Nintendo GameCube console, a television remote control, and other personal property on the ground where Appellant was standing. Those items all came from- the victims’ house. The officers also recovered a glove from the area.

The officers arrested Appellant, who was wearing a black hat, a black top, and black pants, for loitering, prowling, and resisting arrest without violence. They handcuffed him and read him his Miranda rights. Aside from Appellant, the responding officers did not encounter any other individuals in the area. In addition to, the items found at Appellant’s feet, police found other property in the victims’ yard which had been stolen, from inside the house. No useful fingerprints or DNA were recovered from the victims’ house or any of the stolen items.

After his arrest, Appellant spoke with police in a videotaped interview. He said he was -visiting a friend in the victims’ neighborhood and had begun walking to his brother’s house, located several miles away, when he was apprehended. He explained that he cut through the wood line to avoid the police because they always bother him.

In his interview, Appellant stated that he saw three young men, dressed in black, walking behind a house in the neighborhood. He suggested that those three men committed the burglary. Appellant admitted that he walked through several backyards, peeked inside one screen door, and entered the porch of one house. He also admitted he needed money but denied stealing any personal property. He informed the officers that if, hypothetically, he had stolen property, he would not have taken the items to a pawn shop but instead would have sold the items to his friends.

At trial, the State presented the testimony of the responding officers and the victims. It also played Appellant’s recorded interview with the police. Appellant did not testify at trial. The residents could not identify Appellant as the burglar. Appellant moved for a judgment of acquittal (“JOA”), which was denied.

Motion to Suppress

The first issue on appeal is whether Appellant’s seizure was legal. “While the test to be applied to factual findings of the trial court in this regard is whether competent, substantial evidence supports those findings, the trial court’s application of the law to the facts is reviewed de novo.” Pritchard v. State, 987 So.2d 204, 205 (Fla. 5th DCA 2008) (citations omitted). The trial judge denied the motion to suppress, noting that a nearby home was burglarized thirty minutes earlier and that Appellant was roaming in and out of the wood line at 3:00 a.m. near a neighborhood that experienced a recent rash of burglaries. According to the police, no other suspects were encountered, and it was unusual to encounter anyone walking through the ball field at that time of night. The fact that Appellant ran back into the woods as soon as the officers identified themselves also contributed to the officers’ suspicion.

The issue presented on the motion to suppress is whether the events, circumstances, and police observations created an articulable, well-founded suspicion of Appellant’s involvement in criminal activity or whether the seizure was simply a well-played hunch. Turner v. State, 552 So.2d 1181, 1182 (Fla. 4th DCA 1989). “In determining whether an officer had a reasonable suspicion of criminal activity, courts consider the totality, of the circumstances.” Parker v. State, 18 So.3d 555, 558 (Fla. 1st DCA 2008) (citing Huffman v. State, 937 So.2d 202, 206 (Fla. 1st DCA 2006)). “Relevant factors include ‘the time of day; the appearance and behavior of the suspect ... and anything incongruous or unusual in the situation as interpreted in light of the officer’s knowledge.’ ” Id. (alteration in original) (quoting Huffman, 937 So.2d at 206).

Many cases have discussed what consideration should be given to a defendant running from the police when determining the legality of an investigatory stop. In Illinois v. Wardlow, 528 U.S. 119, 123-25, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the United States Supreme Court held that unprovoked flight in a high crime area can provide grounds for reasonable suspicion to justify an investigatory Terry stop. While flight is “not necessarily indicative of wrongdoing ... it is certainly suggestive of such.” Wardlow, 528 U.S. at 124, 120 S.Ct. 673. “[Ujnprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature is not ‘going about one’s business’; in fact it is just the opposite.” Id. at 125,120 S.Ct. 673.

In Parker, the First District held that once the defendant “began to run, [police] had a reasonable suspicion to conduct an investigatory stop, based on the additional factors of the time of night, the emptiness of the street, and the recent occurrence of a crime in the near vicinity.” Parker, 18 So.3d at 559. “Flight, in itself, is insufficient to support a reasonable suspicion of criminal activity.” Id. at 558 (citing S.G.K. v. State, 657 So.2d 1246, 1248 (Fla. 1st DCA 1995)). “Nonetheless, flight can be one factor, among others, that contributes to an officer’s reasonable suspicion of criminal activity.” Id. (citing Blue v. State, 837 So.2d 541, 546 (Fla. 4th DCA 2003)). “Flight can support a resisting [arrest without violence] charge if the [S]tate proves that (1) the officer had an articula-ble well-founded suspicion of criminal activity that justifies the officer’s detention of the defendant, and (2) the defendant fled with knowledge that the officer intended to detain him or her.” V.L. v. State, 790 So.2d 1140, 1142-43 (Fla. 5th DCA 2001) (citations omitted).

Similarly, in Sinclair v. State, 816 So.2d 149, 150-51 (Fla. 1st DCA 2002), with two judges concurring and one dissenting, the First District held that an articulable well-founded suspicion existed for a Terry stop when the defendant was spotted in the area of the crime around the time the crime was committed, the defendant changed his direction of travel when he first saw the police and again when one of the officers indicated that he wanted to speak with the defendant, and the responding officers did not observe any other individuals in the area. Although the facts of this case present a close call, we agree with the trial court that there was a reasonable suspicion to justify an investigative stop. Thus, the motion to suppress was properly denied.

Denying Motion for JOA

Second, Appellant argues that the trial court erred in denying his motion for JOA. In moving for a JOA, the “defendant admits not only the facts stated in the evidence, but also every reasonable conclusion favorable to the State that the fact-finder might fairly infer from the evidence.” State v. Odom, 56 So.3d 46, 49 (Fla. 5th DCA 2011). We have carefully reviewed the record and find that there was sufficient evidence introduced at trial to submit the case to the jury. Therefore, the motion for JOA was properly denied.

Ineffective Assistance of Counsel

Third, Appellant claims that the State did not sufficiently prove that the value of the stolen property exceeded $300 and that defense counsel was ineffective for failing to move for a JOA as to the third-degree grand theft charge. He contends that if the motion was granted, he would have been convicted of petit theft, which carries a shorter sentence. “Claims of ineffective assistance of counsel are generally not reviewable on direct appeal.” Gordon v. State, 126 So.3d 292, 294 (Fla. 3d DCA 2011). However, claims of ineffective assistance of counsel may be raised on appeal if ineffectiveness is obvious on the face of the appellate record and the prejudice caused by the conduct is indisputable. See Larry v. State, 61 So.3d 1205, 1207 (Fla. 5th DCA 2011).

Several victims provided testimony related to the value of the stolen property. The relevant testimony included that that the iPads were recently purchased, the laptop cost $400, the backpack cost $100, the Kindle Fire cost $200, the PlayStation cost $300, the Prada purse was valued between $350 and $900, and a replacement smart car key would cost between $100 and $200, plus an additional cost to have the car rekeyed. The victims also testified to the accuracy of photographs depicting the stolen property recovered by police outside the victims’ house. While the proof of value of each item could have been more detailed to include the condition of each item when stolen, the evidence was sufficient to permit a jury to find that the total value of the stolen property exceeded $300. We conclude that a motion for judgment of acquittal on that point would not have been granted; thus, there was no ineffective assistance of counsel and no prejudice to Appellant. Furthermore, because this claimed ineffective assistance of counsel is not clear on the face of the record, it should be raised, if at all, in a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, having now carefully considered this fully briefed claim of ineffective assistance of counsel raised by Appellant, we deny it on the merits.

AFFIRMED.

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

      . When pleading guilty in the second case, Appellant reserved his right to appeal the denial of his motion to suppress, which was deemed dispositive.

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


source: Caselaw Access Project

author: KELSEY, J.

license: Public Domain

text:
    Earl Ladon LANDRUM, Jr., Former Husband, Appellant, v. Melissa Lynn LANDRUM, Former Wife, Appellee.
    CASE NO. 1D16-0291
    District Court of Appeal of Florida, First District.
    Opinion filed February 24, 2017.
    Rehearing Denied March 24, 2017
    William S. Graessle and Jonathan W. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.
    Clyde Davis, Fernandina Beach, for Ap-pellee.
   KELSEY, J.

The former husband in this dissolution action appeals a final order equitably distributing the parties’ marital assets. Husband raises several issues with the distributions of real property in that order, and after careful consideration, we find one preserved error that requires reversal.

Before the trial court could equitably distribute the marital property, it had to determine which assets were marital. One of those assets was the Pigeon Creek property, consisting of two contiguous parcels, one 13 acres and the other 3.5 acres. When the parties married in 2001, Husband and his sister each owned an undivided half-interest in the smaller parcel, and Husband solely owned the larger parcel. During the marriage, the parties gave Husband’s sister money to pay the property taxes on a different tract of land she owned. As repayment, she deeded to Husband her half-interest in the smaller Pigeon Creek parcel. Thus, both Pigeon Creek parcels were titled solely in Husband’s name when the marriage was dissolved. The trial court determined all of the 3.5-acre parcel was a marital asset because Husband acquired his sister’s interest with marital funds.

We review de novo a trial court’s legal conclusion that an asset is marital or nonmarital. Smith v. Smith, 971 So.2d 191, 194 (Fla. 1st DCA 2007). Assets acquired during the marriage by either spouse individually or by both spouses jointly are marital assets. § 61.075(6)(a)(l)(a), Fla. Stat. (2014). On the other hand, assets acquired by either party before the marriage are nonmarital assets. § 61.075(6)(b)(l). Therefore, the half-interest Husband acquired in the 3.5-acre parcel of the Pigeon Creek property before the marriage was a nonmarital asset, while the interest he acquired during the marriage with marital funds was a marital asset. Husband’s acquisition of his sister’s half-interest in the parcel with marital funds did not convert his pre-marital half-interest into a marital asset. Kittinger v. Kittinger, 582 So.2d 139, 139-40 (Fla. 5th DCA 1991). Therefore, the trial court erred in determining that the 3.5-acre parcel of the Pigeon Creek property was entirely a marital asset. Accordingly, we remand this case to the trial court for entry of an amended final order consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

MAKAR and WINSOR, JJ., CONCUR.


author: BLACK, Judge.

text:
    Floyd CONLIN, Appellant, v. Stephanie CONLIN, Appellee.
    Case No. 2D16-1442
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2017

      George E. Gelb of Jupiter Legal Advocates, Jupiter, for Appellant.
    Michael S. Dyer of The Law Offices of Michael Samuel Dyer, West Palm Beach, for Appellee.
   BLACK, Judge.

Floyd Conlin (former husband) challenges the final judgment of dissolution of marriage, asserting that the trial court erred in awarding Stephanie Conlin (former wife) permanent periodic alimony based upon his gross income rather than his net income. He also argues that the trial court erred in failing to identify and distribute a Parent PLUS loan he incurred on behalf of the parties’ daughter. We reverse.

The trial court determined that the former wife had a need for permanent periodic alimony and that the former husband had the ability to pay alimony. See § 61.08(2), Fla. Stat. (2013); Cleary v. Cleary, 872 So.2d 299, 304 (Fla. 2d DCA 2004) (“The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.” (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980))). The trial court awarded the former wife $4750 per month in permanent periodic alimony. The former husband does not dispute the former wife’s need for alimony but argues that the award was erroneously based upon his gross income and that he lacks the ability to pay the amount of alimony awarded.

The ability to pay alimony must be based on the party’s net income. See Moore v. Moore, 157 So.3d 435, 436 (Fla. 2d DCA 2015) (“An award of alimony must be based on the income that is available to the party, i.e., the party’s net monthly income.”); Vanzant v. Vanzant, 82 So.3d 991, 993 (Fla. 1st DCA 2011) (citing Canakaris for the proposition that a court must determine ability to pay based on net income). The final judgment provides, in pertinent part:

The [former husband] earns approximately $150,000 per year and his income has increased annually.
The [former husband’s] Financial Affidavit dated March 5, 2014, states the [former husband] has a monthly income of $10,385 or $124,620.00 annually. ... [H]e has earned an incentive/bonus pay for the past 12 years in a row of approximately $30,000.00. The bonus was not included on the [former husband’s] Financial Affidavit. The [former husband’s] true income is approximately $150,000 per year.

It is apparent from the former husband’s financial affidavit that the stated monthly income of $10,385, or $124,620 annually, reflects his gross income. The final judgment makes no other mention of the former husband’s income. See Kingsbury v. Kingsbury, 116 So.3d 473, 474-75 (Fla. 1st DCA 2013) (“Here, the only mention in the final judgment of Mr. Kingsbury’s income, and thus his ability to pay alimony, was his gross income. This is error.”); Vanzant, 82 So.3d at 993 (“[W]e reverse the alimony and child support awards because the awards appear to have been based on the trial court’s finding that the former husband’s net income was ‘between $4,879.76 and $4,754.76.’ This finding is not supported by the record because these figures reflect the gross income shown on the former husband’s amended financial affidavit, not his net income.”). Furthermore, it is not clear how the trial court arrived at a “true income” figure of $150,000 since adding the former husband’s gross annual bonus of $30,000 to his gross annual salary of $124,620 equates to $154,620. Even if the trial court intended for this figure to account for the former husband’s net income, or at least his net annual bonus, the record before us simply does not clearly demonstrate that the alimony award was based on the former husband’s net income as required. See Rentel v. Rentel, 124 So.3d 993, 994 (Fla. 4th DCA 2013) (“Because it is not apparent that the trial court based its alimony calculations on net income, we reverse and remand to make the required findings and to modify the award if necessary.”); see also McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008) (“Meaningful appellate review is hampered by the absence of findings as to how the trial court determined the income amount.”).

Regarding the equitable distribution, the former husband testified that he incurred a Parent PLUS loan in the amount of $12,900 on behalf of the parties’ daughter for her education. The parties disputed whether the loan was marital or nonmarital, and the trial court failed to characterize it and distribute it accordingly. The trial court erred in this regard. Section 61.075(1) provides that “the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities.” Section 61.075(3) further provides that “[t]he distribution of all marital assets and marital liabilities ... shall include specific written findings of fact” including the “[c]lear identification of nonmarital assets and ownership interests” and the “[ijdentification of the marital liabilities and designation of which spouse shall be responsible for each liability.” § 61.075(3)(a), (c). The trial court is thus required to identify all marital and nonmarital assets and liabilities before it equitably distributes those that are marital. See Wolf v. Wolf, 979 So.2d 1123, 1125 (Fla. 2d DCA 2008) (“Section 61.075(3) ... requires the trial court to clearly identify and value all of the marital and nonmarital assets and liabilities and to determine entitlement to each marital asset and responsibility for each marital debt.”); Embry v. Embry, 650 So.2d 190, 191 (Fla. 2d DCA 1995) (“Section 61.075 ... requires the trial court to set apart to each spouse his/her nonmarital assets and liabilities before making an equitable distribution of the marital assets. This involves an identification of what items are marital and non-marital assets and liabilities.”).

Accordingly, we affirm the dissolution of marriage but reverse the alimony award and equitable distribution. In determining the amount of alimony on remand, the trial court is instructed to make specific findings as to the former husband’s ability to pay alimony based on his net income. The trial court is also instructed to value the contested Parent PLUS loan, identify it as marital or nonmarital, and distribute it accordingly.

Affirmed in part, reversed in part, and remanded.

CRENSHAW and MORRIS, JJ., Concur.

      . We recognize that the entirety of the blame for this error should not fall on the trial court. At the close of the hearing, the court instructed both parties to submit a proposed final judgment with an equitable distribution chart attached, and the former husband apparently failed to do so. Cf. McCants, 984 So.2d at 683 (stating that the wife arguably waived her claim that the trial court erred in failing to distribute all marital assets and liabilities because despite the court sending the wife a memo of its findings to aid her in drafting the final judgment and instructing her to notify the court in the event it neglected to address anything in its memo, the wife failed to so notify the court and instead prepared a final judgment absent the required findings and distribution of assets and liabilities). Additionally, though the former husband referenced his equitable distribution chart in testifying about the loan, our record does not reflect that it was marked as an exhibit and admitted. Further, the former husband did not raise this issue in a timely motion for rehearing.


author: CRENSHAW, Judge.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR THE REGISTERED HOLDER OF MORGAN STANLEY HOME EQUITY LOAN TRUST 2007-2 Mortgage Pass Through Certificates, Series 2007-2, Appellant, v. V. David FAIRBANKS, Jr., and Denise Fairbanks, Appellees.
    Case No. 2D15-2833
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2017.
    Patrick G. Broderick of Greenberg Traurig, P.A., West Palm Beach; and Kimberly S. Mello and Jonathan S. Tannen of Greenberg Traurig, P.A., Tampa, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellees.
   CRENSHAW, Judge.

Deutsche Bank National Trust Company appeals the order dismissing its foreclosure action without prejudice. The trial court’s dismissal was based on its determination that the Bank failed to comply with paragraph twenty-two of the mortgage because the Bank’s notice of default did not specify that failure to cure the default may result in sale of the property. Paragraph twenty-two of the mortgage provides, in pertinent part:

Lender shall give notice to Borrower prior to acceleration following Borrower’s breach .... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument, foreclosure by judicial proceeding and sale of the Property-

The relevant portion of the notice at issue informed the Fairbankses that the “[failure to bring [their] account current may result in [the lender’s] election to exercise [its] right to foreclose on [the] property.”

“[W]hen the content of a lender’s notice letter ... varies in only immaterial respects from what the mortgage requires, the letter substantially complies, and a minor variation from the terms of paragraph twenty-two should not preclude a foreclosure action.” Green Tree Servicing, LLC v. Milam, 177 So.3d 7, 14-15 (Fla. 2d DCA 2015). Contrary to the Fairbankses’ argument on appeal, the notice did not “omit[ ] an entire element” of paragraph twenty-two simply because it did not specify that foreclosure may result in a sale. Per sub-part (d) of paragraph twenty-two, the notice adequately informed the Fairbankses that the failure to cure , the default could result in foreclosure. The failure to specify that foreclosure could result in a sale was a minor variation from the language in paragraph twenty-two that did not “go[] to the essence of the parties’ bargain.” Green Tree, 177 So.3d at 15. Because the notice substantially complied with paragraph twenty-two, we reverse and remand for further proceedings.

Reversed and remanded.

KELLY and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . This court’s opinion in Green Tree Servicing, LLC v. Milam, 177 So.3d 7 (Fla. 2d DCA 2015), had not yet issued at the time of the trial court’s ruling.


author: MORRIS, Judge.

text:
    Edis PADILLA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-1973
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2017

      Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   MORRIS, Judge.

Edis Padilla appeals his convictions after a jury trial for burglary of a dwelling and possession of burglary tools. We affirm his convictions but write to address his argument that the jury instruction for burglary constituted fundamental error.

At trial, the victim testified that Padilla and another man forced their way into her house through the back door. The men used power tools to remove the door knob from the door. As the men entered the house, the door alarm chimed, and' the men looked around the house for a few seconds and then left the house.

The trial court read the following instruction on burglary of dwelling:

To prove the crime of burglary the State must prove the following two elements beyond a reasonable doubt: First, the defendant entered a structure or conveyance owned by or in the possession of [the victim]; secondly, at the time of entering the structure or conveyance the defendant had the intent to commit an offense other tha[n] burglary or trespass in a structure or conveyance.
Even though unlawful entry or remaining in a structure or conveyance is proved[,] if the evidence does not establish that it was done with the intent to commit a burglary of a dwelling, possession of burglary tools or an offense other than burglary or trespass the defendant must be found not guilty of burglary.

(Emphasis added.) The defense did not object to the jury instructions. Padilla was found guilty as charged on both counts.

On appeal, Padilla argues that the jury instruction on burglary of a dwelling was circular and confusing. He contends that while the jury in this case may have initially understood that it had to find that he had an intent to commit an offense other than burglary, the second portion of the instruction rendered the first portion—and the elements of the offense—unclear and circular.

Padilla relies on Long v. State, 188 So.3d 116, 117 (Fla. 1st DCA 2016), in which the First District held that the jury instruction for “burglary was erroneous because it misinformed the jury that it had to find the defendant entered with an intent to commit burglary, rather than a separate offense.” The court explained the error:

[T]he jury was told it could convict the defendant without finding the defendant had the intent to commit an offense separate from the burglary. Initially, the jury was properly instructed that the State had to prove Long had the intent to commit an offense in the structure. However, later on in the instruction, the court used the circular phrasing “intent to commit burglary.” This second portion of the instruction erroneously defined the “offense” the State needed to prove as burglary.

Id. at 118-19. The court went on to hold that where the defendant’s intent was directly at issue, the error was fundamental. Id. at 119 (holding that error was fundamental in prosecution where intent was directly at issue but not in prosecution where defense counsel conceded that a burglary had occurred).

There are several problems with applying Long to this case. First, the court in Long relied on Viveros v. State, 699 So.2d 822, 824 (Fla. 4th DCA 1997). But in Vive-ros, in addition to the second portion of the instruction being circular, the first portion of the instruction—regarding the intent element of burglary—was improper because it instructed the jury that the defendant had to have “a fully-formed, conscious intent to commit the offense of burglary.” Id. The court reasoned that “it is circular to define ‘burglar/ by indicating the need to show an intent to commit ‘burglar/ within the structure or conveyance, rather than an intent to commit an underlying ‘offense’ within the structure or conveyance.” Id. Numerous other cases have held similarly to Viveros regarding the instructions on the element of intent for burglary. See, e.g., Lee v. State, 958 So.2d 521 (Fla. 2d DCA 2007); Lawrence v. State, 746 So.2d 1252 (Fla. 5th DCA 1999); Harrison v. State, 743 So.2d 178 (Fla. 3d DCA 1999); Puskac v. State, 735 So.2d 522 (Fla. 4th DCA 1999). In Long, the first instruction given on the elements of burglary was similar, although not identical, to the erroneous one in Viveros: the jury was simply instructed that the State had to prove the defendant “had the intent to commit an offense” in the structure. 188 So.3d at 118. The Long court concluded that “the jury was never told that in order to convict the defendant of burglary, it had to find the defendant entered the structure with the intent to commit theft or an offense other than burglary.” Id. at 119.

Here, the trial court initially instructed the jury that it must find that Padilla “had the intent to commit an offense other tha[n] burglary or trespass in a structure or conveyance.” (Emphasis added.) This properly instructed the jury that the offense intended to be committed within the structure must be one other than burglary or trespass. Thus, the instruction in this case did not suffer from the same malady as the instructions in Viveros and Long.

Second, the latter portion of the instruction in this case is different than that in Long. As noted above, the second portion of the instruction in Long stated that “if the evidence does not establish that it was done with the intent to commit burglary, the defendant must be found not guilty of burglary.” Id. at 118. The Long court stated that this “second portion of the instruction erroneously defined the ‘offense’ the State needed to prove as burglary.” Id. at 118-19. Here, the trial court instructed the jury that Padilla should be found not guilty if the evidence did not establish that the entry was done with the “intent to commit a burglary of a dwelling, possession of burglary tools or an offense other than burglary or trespass.” Therefore, even if the use of the phrase “burglary of a dwelling” in this second portion of the instruction was circular, the jury was properly instructed that the entry should have been done with the intent to commit possession of burglary tools or another offense other than burglary or trespass.

Third, we find persuasive the point made by Judge Kelsey in her partial dissent in Long. She pointed out that the use of the term “burglary of a dwelling” in that latter portion of the instruction simply informed the jury that the State was required to prove that the entry was done with the specific intent to commit burglary, which itself required the intent to commit another offense. Id. at 121-22 (Kelsey, J., dissenting in part and concurring in part).

The subsequent reference to committing “burglary” occurred only within the portion of the instruction informing the jury what would not be sufficient evidence to convict the defendant!)] ... This was an accurate representation of the point of law that burglary is a specific intent crime.
This part of the instructions focused the jury’s attention on whether the state had proved that the defendant had entered [the structure] with the specific intent to commit burglary—which the trial court had just correctly defined as requiring intent to commit “an offense” or “a crime” in the entered structure.

Id. (Kelsey, J., dissenting in part and concurring in part) (citation omitted).

For these reasons, we conclude that the inclusion of the phrase “burglary of a dwelling” in the latter part of the instruction did not amount to fundamental error. See Freeman v. State, 787 So.2d 152 (Fla. 4th DCA 2001) (holding that error in first part of burglary instruction was cured by correct instruction in second portion of the instruction).

Affirmed.

CRENSHAW and BLACK, JJ., Concur.

      . Padilla was sentenced to twenty-four months in prison followed by three years’ probation on the burglary count and to a concurrent sentence of twenty-four months in prison followed by one year of probation on the possession count.


author: SALARIO, Judge.

text:
    Caleb Andrew FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D14-5886
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2017

      Howard L. Dimmig, II, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   SALARIO, Judge.

Caleb Fernandez was convicted of possession of cocaine, received a forty-month prison sentence, and appeals both his conviction and sentence. We affirm his conviction without comment. Based on the supreme court’s decision last year in Norvil v. State, 191 So.3d 406, 407 (Fla. 2016), we are required to reverse his sentence because the trial court improperly considered Mr. Fernandez’s arrest for an alleged offense committed while he was on pretrial release on the possession charge.

The facts underlying Mr. Fernandez’s arrest and conviction in this case do not matter with respect to the issue on which we write. What does matter is that according to his scoresheet, Mr. Fernandez faced a sentence ranging from a non-state prison sanction up to a maximum of five years in prison. Although the forty-month sentence he got is in that range, he argues that the trial court improperly relied on his arrest on an unrelated charge for being a felon in possession of a firearm while on pretrial release for this case. He had not been convicted of that alleged new offense at the time of the sentencing. The trial judge stated that she was imposing a forty-month sentence “[b]ased on all the evidence that was recently presented to me, based on the history, ... based on your age, based on the fact that you re-offended—but the possession of a firearm by a convicted felon was subsequent to his release.” (Emphasis added.) In light of the supreme court’s decision in Norvil, we must agree with Mr. Fernandez that he is entitled to resentencing.

In Norvil, the State argued at sentencing that the trial court should consider a new charge of which the defendant had not then been convicted. The trial court did so, and the Fourth District affirmed, Norvil v. State, 162 So.3d 3 (Fla. 4th DCA 2014), reasoning that, among other things, the new charge was both relevant and supported by the evidence. The supreme court took the case on conflict grounds and quashed the Fourth District’s decision. 191 So.3d at 410. It adopted a “bright line rule for sentencing purposes: a trial court may not consider a subsequent arrest without conviction during sentencing for the primary offense.” Id. at 410.

Under Norvil, the trial court was not permitted to consider Mr. Fernandez’s felon in possession arrest in imposing sentence on the possession of cocaine charge in this case. Mr. Fernandez did not, however, object to the court’s consideration of that arrest at sentencing or raise the issue in a motion under Florida Rule of Criminal Procedure 3.800(b). Thus, we may reach the sentencing issue he now presents on appeal only if it results from a fundamental error in the sentencing process. See Jackson v. State, 983 So.2d 562, 578 (Fla. 2008); see also Hayes v. State, 150 So.3d 249, 251 (Fla. 1st DCA 2014).

Mr. Fernandez correctly argues that a trial court’s consideration of a constitutionally impermissible sentencing factor is a fundamental error in the sentencing process. Yisrael v. State, 65 So.3d 1177, 1177 (Fla. 1st DCA 2011); see also Williams v. State, 164 So.3d 739, 740 (Fla. 2d DCA 2015) (finding “fundamental error and a denial of due process” in the consideration of certain sentencing factors). The question then becomes whether the sentencing error Norvil identifies is such an error. The Norvil opinion states that the legal issue the case presented was whether a defendant’s due process rights are violated when a trial court considers a subsequent charge at sentencing—an issue of constitutional dimension. 191 So.3d at 407. The opinion’s legal analysis, however, focused on the text of the Criminal Punishment Code—which the court held forbade consideration of subsequent charges with which a defendant had not been convicted—a statutory matter that would not necessarily present a constitutional problem. See id. at 408-09. Reading Norvil as a whole, we conclude that it stands for the proposition that consideration of subsequent charges with which the defendant has not been convicted violates due process for three reasons: (1) that is the import of the language the court used, see id at 410 (stating that a bright-line prohibition on any consideration of subsequent charges “preserves a defendant’s due process rights”), (2) that is the way the opinion frames the legal issue it addresses, and (3) that was the holding of Yisrael, 65 So.3d at 1178, one of the conflict cases that Norvil approved. .As a result, we may reach Mr. Fernandez’s argument here. See Jackson, 983 So.2d at 578; Hayes, 150 So.3d at 251.

The State asserts that the trial court did not actually rely on the pending felon in possession charge in imposing the sentence. Given what the trial court stated on the record, that characterization seems difficult to support. In any event, it is of no legal moment whether the record shows beyond any doubt that the trial court considered the new charge in imposing sentence. The State has the burden “to show that the trial court did not rely on the pending charge resulting from the subsequent arrest.” Norvil, 191 So.3d at 409; see also Gray v. State, 964 So.2d 884, 885 (Fla. 2d DCA 2007) (reversing where the State failed to carry "its burden to show that the trial court did not consider the pending charge”). The record in this case—involving the trial court’s explicit statement that the sentence was, at least in part, “based on” the subsequent charge and no other statements or evidence to the contrary—does not allow the State to carry that burden.

Mr. Fernandez requests that we remand for resentencing before a different judge. We agree, of course, that where a trial court considers an impermissible factor in imposing sentence, remand for re-sentencing is the correct remedy. See, e.g., Brown v. State, 27 So.3d 181, 183 (Fla. 2d DCA 2010); Gray, 964 So.2d at 885. Because the opinions related to improper sentencing considerations overwhelmingly direct resentencing before a different judge and the State has not disputed that component of Mr. Fernandez’s request, we direct that resentencing take place before a different judge. See, e.g., Williams, 164 So.3d at 741; Brown, 27 So.3d at 183; Bracero v. State, 10 So.3d 664, 666 (Fla. 2d DCA 2009).

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

KHOUZAM and LUCAS, JJ„ Concur.

      . There may be reason to question whether the assignment of a new judge in this case serves a purpose. As the decisions cited in the text demonstrate, the cases directing this remedy offer little in the way of legal reasons for why it would be necessary in every case. Unlike cases involving, for example, a trial judge’s expression of negative views of the class of offenders to which a defendant belongs, e.g., Goldstein v. State, 154 So.3d 469 (Fla. 2d DCA 2015), or a trial judge’s punishment of a defendant for maintaining his innocence and failing to show remorse, e.g., Williams, 164 So.3d 739, it is not obvious that a trial judge’s consideration of a subsequent criminal charge—without more—should cause us to presume that the same judge would be unable to resentence the defendant fairly. Nor does this record reflect other comments by the trial judge that would cause us to have this concern. Because reassignment is not contested here, however, we have no reason to consider these issues further.


author: LOGUE, J. FERNANDEZ, J.,

text:
    Michael E. TEPEDINO, Petitioner, v. Yamineth BAKER, Respondent.
    No. 3D17-402
    District Court of Appeal of Florida, Third District.
    Opinion filed March 1, 2017.

      Orshan, Spann & Fernandez-Mesa, and Steven P. Spann, for petitioner.
    Kenneth Kaplan, for respondent.
    Before FERNANDEZ, LOGUE, and SCALES, JJ.
   LOGUE, J.

Michael E. Tepedino, the Father, petitions for a writ of prohibition to prevent the trial court from hearing the Motion to Establish Time-Sharing filed by the Mother, Yamineth Baker. The Father contends that the motion improperly seeks to modify the parties’ existing time-sharing schedule without properly complying with the pleading requirements of Florida Rule of Civil Procedure 1.110(h) and Florida Family Law Rule of Procedure 12.110. Even if such a pleading defect were a procedural barrier to the Mother obtaining the relief she seeks, an issue we do not reach, it does not go to the trial court’s subject matter jurisdiction to review such motions. Where the trial court has subject matter jurisdiction, prohibition will not lie to prevent even an erroneous exercise of that jurisdiction which can be corrected on appeal, if necessary. See English v. McCrary, 348 So.2d 293, 298-99 (Fla. 1977).

Dismissed.

SCALES, J., concurs.

FERNANDEZ, J.,

concurring.

Although I agree with the majority that prohibition does not lie under these circumstances, I write only to express one concern: a proceeding that flows from a motion to modify timesharing after a final judgment has already established time-sharing may result in a significant waste of judicial resources and of the parties’ time. This is particularly true where an objection to the proceeding was properly raised. We have previously held that a trial court abuses its discretion when it proceeds on a motion for modification under circumstances that require the filing of a supplemental petition for modification pursuant to Florida Family Law Rule of Procedure 12.110. See Braswell v. Braswell, 935 So.2d 604, 606 (Fla. 3d DCA 2006); Cuartas v. Cuartas, 951 So.2d 980, 983-85 (Fla. 3d DCA 2007).

LOGUE, J., concurs.

      . A motion to establish timesharing is no different than a motion to modify timesharing where a final judgment has already established timesharing.


author: Per Curiam.

text:
    Kenneth W. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-957
    District Court of Appeal of Florida, Fourth District.
    March 1, 2017

      Kenneth W. Young, Carrabelle, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

The order denying appellant’s petition for writ of habeas corpus is affirmed. The petition was a proeedurally barred, untimely and successive postconviction challenge to his conviction in 1999. See Baker v. State, 878 So.2d 1236, 1241 (Fla. 2004). Appellant’s claim that he was not charged in count one of the indictment is frivolous. This same frivolous claim was rejected by the trial court and affirmed by this court in Case number 4D15-3175. Appellant’s repetition of this frivolous claim is an abuse of process.

Appellant is cautioned that any further frivolous or abusive filing will result in sanctions, such as a bar on pro se filing in this court and referral to prison officials for consideration of disciplinary procedures. See State v. Spencer, 751 So.2d 47 (Fla. 1999); § 944.279(1), Fla. Stat. (2016).

Affirmed.

Ciklin, C.J., Taylor and May, JJ., concur.


text:
    Thomas M. JILEK, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3728
    District Court of Appeal of Florida, Fourth District.
    March 1, 2017
    Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    No appearance for appellee.
   Per Curiam.

We grant counsel’s motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and affirm appellant’s conviction and sentence. See Walker v. State, 203 So.3d 192 (Fla. 4th DCA 2016). Our affirmance is without prejudice to appellant’s fifing of a timely rule 3.850 motion challenging the voluntariness of his plea. See Jackson v. State, 190 So.3d 98, 98 n.1 (Fla. 4th DCA 2015).

Affirmed.

Warner, Gross and Damoorgian, JJ., concur.


author: LOGUE, J.

text:
    Reginald WILKINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-544
    District Court of Appeal of Florida, Third District.
    Opinion filed March 1, 2017
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SALTER, EMAS, and LOGUE, JJ.
   LOGUE, J.

Reginald Wilkinson filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 contesting his mandatory life sentence imposed for a murder he committed at the age of sixteen. The postconviction court denied the motion without a hearing. We reverse the mandatory life sentence and remand for sentencing under sections 775.082, 921.1401, and 921.1402, Florida Statutes.

In 1994, Wilkinson was convicted of first-degree murder with a firearm for a crime he committed when sixteen years old. He was sentenced to life in prison with eligibility for parole after twenty-five years, as was mandatory under the law at the time.

Decades later, the United States Supreme Court decided Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455. 2469, 183 L.Ed.2d 407 (2012). Miller held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” In response to Miller, the Florida legislature ended mandatory life sentences for juveniles. It also adopted guidelines that provided a sentencing judge with discretion to sentence a juvenile to life, but only after consideration of the individual circumstances concerning the juvenile and the crime. §§ 775.082, 921.1401, 921.1402, Fla. Stat.

The Florida Supreme Court has held that Miller should be applied retroactively. Falcon v. State, 162 So.3d 954 (Fla. 2015). Indeed, it applied Miller retroactively to a sentence of life with the possibility of parole after twenty-five years, essentially the same sentence as the one at issue here. Atwell v. State, 197 So.3d 1040, 1048 (Fla. 2016) (“In most respects, a sentence of life with the possibility of parole for first-degree murder, based on the way Florida’s parole process operates under the existing statutory scheme, actually resembles a mandatorily imposed life sentence without parole that is not proportionate to the offense and the offender.” (quotations omitted)). We have interpreted Atwell to require reversal in circumstances similar to this case. See Neely v. State, 207 So.3d 357 (Fla. 3d DCA 2016); Miller v. State, 3D15-2492, 208 So.3d 834, 834-35, 2017 WL 362547, at *1 (Fla. 3d DCA Jan. 25, 2017).

Reversed and remanded.


author: COHEN, C.J.

text:
    Reno WOLFGANG, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-3128
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 3, 2017

      Reno Wolfgang, Punta Gorda, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, C.J.

Reno Wolfgang appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Wolfgang’s motion raises thirty-eight grounds, most of which are either legally insufficient or refuted by the postconviction court’s order. For the legally insufficient claims, Wolfgang should have been allowed an opportunity to amend his motion. Fla. R. Crim. P. 3.850(f)(3); Spera v. State, 971 So.2d 754 (Fla. 2007). We reverse and remand to provide Wolfgang an opportunity to amend, if possible, grounds three, four, and twenty. In addition, we reverse and remand for the trial court to attach records conclusively refuting grounds nine, twenty-four, and thirty-three or to hold an evidentiary hearing on those claims. See Fla. R. App. P. 9.141(b)(2)(D). We affirm the postconviction court’s summary denial of the remainder of Wolfgang’s claims.

Wolfgang was found guilty of five counts of lewd or lascivious battery on a child between the age of twelve and sixteen years old, one count of using the internet to lure a child, three counts of traveling to meet a minor for illegal sexual conduct, and eight counts of transmitting material harmful to a minor. His convictions and sentences were affirmed on direct appeal. Wolfgang v. State, 146 So.3d 1205 (Fla. 5th DCA2014).

Claims for ineffective assistance in violation of a defendant’s Sixth Amendment right to counsel are governed by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland established a two-prong analysis: 1) the defendant must show that counsel’s performance was deficient—counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”; and 2) that the deficient performance prejudiced the defendant—there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 446 U.S. at 687, 694,100 S.Ct. 1945.

In ground three of his motion, Wolfgang alleges that his counsel lied during a Nelson hearing and in her response to a Florida Bar complaint he filed. Wolfgang asserts that had counsel been truthful, she would have been removed and replaced by a lawyer who “may have been effective.” Wolfgang’s claim of prejudice is facially insufficient because it relies on mere speculation. He should, however, be given an opportunity to amend. See Spera, 971 So.2d at 758; Fla. R. Crim. P. 3.850(f)(3).

Wolfgang next argues, in ground four, that his trial counsel was ineffective for failing to suppress audiotaped statements he made to the police. The transcript attached to the postconviction court’s order includes some statements that arguably invoked Wolfgang’s right to remain silent; yet the records attached to the order do not demonstrate that Wolfgang’s counsel moved to have portions of the audiotaped statement suppressed. Therefore, the court erred in summarily denying this claim. Although Wolfgang presents a colorable claim for deficient performance, however, his allegation of prejudice is facially insufficient because he merely alleges, “but for Counsel’s deficient performance the outcome of the trial would have been different.” Such a generic and conclusory statement of prejudice is insufficient for rule 3.850 purposes. See Jones v. State, 998 So.2d 573, 584 (Fla. 2008). Under these circumstances, the postconviction court should have given Wolfgang the opportunity to amend ground four.

In ground nine, Wolfgang argues that his counsel was ineffective for failing to follow a trial court order that required counsel to meet with him to review and discuss the discovery. He alleges that he was prejudiced by this failure because it precluded discussion of strategy to impeach a State witness. The records attached to the postconviction court’s order actually support Wolfgang’s claim that counsel did not review discovery with him. On remand, the trial court must either attach other records that conclusively refute this allegation or hold an evidentiary hearing.

Regarding ground twenty, Wolfgang alleges his counsel was ineffective for failing to admit into evidence all of the emails and text messages in this case, under the rule of completeness, rather than to allow the State to introduce only the messages it chose. Wolfgang claims the additional documentation would have ensured that the evidence was not taken out of context, and it would have supported his entrapment defense. Again, Wolfgang’s claim for relief is facially insufficient as to prejudice. He merely claims, in a concluso-ry fashion, that the messages would have “been an important part” of his defense. He does not elaborate on what the text messages and e-mails would have shown, instead only claiming that a complete review would have helped his case. Wolfgang should have been allowed an opportunity to amend his facially insufficient claim.

As to ground twenty-four, at trial and apparently without objection, the State introduced certain items recovered from Wolfgang’s truck, including restraints, a dog collar, and pepper spray. Wolfgang claims that counsel was ineffective in failing to object to this evidence as irrelevant. In denying this claim, the post-conviction court found that those items were not introduced to support any claim at trial—which is precisely Wolfgang’s point. We reverse the summary denial of this ground and remand for the court to either attach records that conclusively refute the claim or to hold an evidentiary hearing.

Finally, in ground thirty-three, Wolfgang argues that his counsel was ineffective for failing to move to recuse the trial judge. At sentencing, Wolfgang claims that the trial judge told him “he no longer exists anymore.” The postconviction court did not consider this claim, melding it into a discussion of another motion to disqualify that Wolfgang had filed at an earlier stage of the case. We reverse and remand for the postconviction court either to attach records refuting this claim or to hold an evidentiary hearing.

In sum, we reverse and remand for attachment of records or an evidentiary hearing on grounds nine, twenty-four, and thirty-three. We reverse and remand to provide Wolfgang an opportunity to amend, if possible, grounds three, four, and twenty. As to all other grounds, we affirm.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

SAWAYA and ORFINGER, JJ., concur.

      . Wolfgang divided his grounds into the basic phases of trial—pre-trial, trial, and sentencing—then numbered the claims within each section separately. For simplicity, we have elected to number each of Wolfgang’s claims sequentially in the order they are presented in his petition.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: ROWE, J.

text:
    Samuel Allen JACKSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-144
    District Court of Appeal of Florida, First District.
    Opinion filed March 3, 2017
    Andy Thomas, Public Defender, and William Pafford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

Samuel Allen Jackson appeals his judgment and sentence for aggravated battery with a deadly weapon. We affirm all issues raised in his appeal and write only to address Jackson’s argument that the trial court erred in admitting a photograph depicting the victim’s injuries. Jackson argues that the photograph was not relevant, was inflammatory, and had a high probability of creating unfair prejudice. We disagree. Because the photograph was relevant to prove that Jackson used a deadly weapon in the course of the battery and the photograph was not shocking in nature, the trial court did not err in admitting the photograph into evidence.

“[E]vidence of victim injury, even where not an element of the offense charged, is admissible if otherwise relevant.” T.B. v. State, 669 So.2d 1085, 1086 (Fla. 4th DCA 1996) (en banc). Photographic evidence of injuries in an aggravated battery case may be relevant to determine whether a battery occurred in the first place, and if the charge is aggravated battery with a deadly weapon, to demonstrate that the weapon in question was used in a manner that would qualify it as a deadly weapon. Id.; see also Brooks v. State, 726 So.2d 841 (Fla. 5th DCA 1999) (holding that evidence of the victim’s injuries was relevant to corroborate that a battery took place and that the wooden-handled kitchen knife used in that battery qualified as a deadly weapon).

Here, the photograph at issue was offered by the State to prove that Jackson used the knife in a manner that would allow the knife to qualify as a deadly weapon when he stabbed the victim. § 784.045(l)(a)2., Fla. Stat. (2014). The victim sustained two stab wounds on the side of his back and two in his chest. The photograph depicted the victim lying on a hospital bed wearing a breathing mask and with IV tubes running to his body. The photograph also showed gauze on the victim’s chest, where he was stabbed twice. Other photographs were admitted into evidence without objection, but those showed close-up views of the stab wounds. The photograph of the victim in the hospital bed indicated to the jury in a way that other subsequent photographic .exhibits submitted by the State could not, the location of the stab wounds, specifically, the proximity of those wounds to the victim’s heart. Thus, the photograph was relevant to whether Jackson used the knife in a deadly manner.

Further, the photograph’s relevance was not substantially outweighed by the danger of undue prejudice. The Florida Supreme Court explained the standard for admitting graphic photographs of a victim:

This Court has long followed the rule that photographs are admissible if they are relevant and not so shocking in nature as to defeat the value of their relevance. Where photographs are relevant, “then the trial judge in the first [instance] and this Court on appeal must determine whether the gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jury and [distract] them from a fair and unimpassioned consideration of the evidence.” We have consistently upheld the admission of allegedly gruesome photographs where they were independently relevant or corroborative of other evidence.

Hertz v. State, 803 So.2d 629, 641 (Fla. 2001) (quoting Czubak v. State, 570 So.2d 925, 928 (Fla. 1990)).

The photograph of the victim in this case could not be described as gruesome or graphic. It did not depict significant amounts of blood. In fact, the victim’s wounds were covered by gauze. Further, the victim had recovered by the time of trial and the jury was instructed that its “verdict should not be influenced by feelings of prejudice, bias or sympathy.”

The photograph was not shocking in nature; other photographs depicting the victim’s injuries were admitted into evidence; the victim had fully recovered by the time of trial; and the jury was instructed appropriately to avoid acting out of prejudice, bias, or sympathy. Therefore, the danger of unfair prejudice did not outweigh the photograph’s relevance.

For these reasons, Jackson’s judgment and sentence are AFFIRMED.

LEWIS and KELSEY, JJ., CONCUR.


author: WINOKUR, J.

text:
    John MCDONALD, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-4458
    District Court of Appeal of Florida, First District.
    Opinion filed March 7, 2017
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

Appellant John McDonald appeals his conviction for two counts of vehicular homicide. McDonald argues that the court violated Florida Rule of Criminal Procedure 3.410 when it failed to consult with counsel before responding to a question submitted by the jury during deliberations. We agree and reverse.

During its deliberations at -trial, the jury sent a note to the court asking “What is [McDonald’s] driving record like? Does he get tickets for speeding often?” The judge wrote an answer, ‘You must rely on the evidence you have heard.” Neither party objected. The jury then sent a second note reading, “Copy of Trooper Bazinet’s report.” This report was not admitted at trial, so the court wrote a reply note reading, “You must rely on the evidence admitted during the trial.” Both the prosecutor and defense counsel assented to the response.

The jury then sent a note with a third question, “Did the passenger in the Toyota Corolla [the car struck by McDonald] have her seatbelt on?” The judge did not discuss the note with counsel for either party. Instead, the court told the parties that he was bringing the jury back in, without explanation. The court then made the following statement to the jury:

Ladies and gentlemen, I have brought you back in because I know that you have already asked a couple questions and I have sent back a couple answers. I’m going to take a moment and—these are the jury instructions that you have copies back there in the jury room. I’m going to turn to page 2 of these jury instructions. Okay. And the second paragraph, I’m going to read it, and I’m going to reread it and I’m going to reread it and I’m going to reread it, and I want you to listen to me very carefully.
It is to the evidence introduced in this trial and to it alone that you are to look for that proof.
Let me read it again: It is to the evidence introduced in this trial and to it alone that you are to look for that proof.
Now, if you don’t understand that, I don’t mind keep on saying it, but the only thing that you are to consider is the evidence admitted in this trial. No other investigations, no other inquiries, no other matters are going to be submitted to you, nothing else. The only thing that you consider your verdict on is what you have heard from this witness stand and the exhibits produced during the course of the trial. Have I made myself clear?
Thank you. Please go back into the jury room and deliberate.

Defense counsel made no comment about the court addressing the jury in this manner. Shortly after this instruction, the jury returned a guilty verdict on both counts of vehicular homicide.

McDonald moved for new trial, in part on the ground that the court violated Rule 3.410, Florida Rules of Criminal Procedure, with regard to the third juror question. This rule provides as follows:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read or played back to them they may be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read or played back to them. The instructions shall be given and the testimony presented only after notice to the prosecuting attorney and to counsel for the defendant. All testimony read or played back must be done in open court in the presence of all parties. In its discretion, the court may respond in writing to the inquiry without having the jury brought before the court, provided the parties have received the opportunity to place objections on the record and both the inquiry and response are made part of the record.[]

(Emphasis supplied.) Violation of Rule 3.410 is reversible error. See Colbert v. State, 569 So.2d 433 (Fla. 1990). See also Bradley v. State, 513 So.2d 112 (Fla. 1987) (“The right to participate, set forth in Ivory, includes the right to place objections on the record as well as the right to make full argument as to why the jury request should or should not be honored.”); Ivory v. State, 351 So.2d 26, 27 (Fla. 1977) (“We now hold that it is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request.”). We conclude that the trial court violated this rule, and accordingly reverse and remand for a new trial.

Reversed and remanded.

JAY and WINSOR, JJ., CONCUR.

      . We reject McDonald’s claim that the evidence was legally insufficient to support the conviction. Because we are reversing McDonald’s conviction for new trial, we need not address his remaining issues on appeal.

      . Regarding his failure to object to the trial court's statements to the jury at the time they were made, McDonald alleged in his motion that his counsel had been unaware of the third juror question until after trial.

      . Rule 3.410 was amended in 2015, after trial in this case. This provision is now Rule 3.410(a), and contains slightly altered language. In re Amendments to Florida Rules of Criminal Procedure, 188 So.3d 764, 773 (Fla. 2015).


author: WINSOR, J.

text:
    Hazael SANTIAGO-MORALES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-1018
    District Court of Appeal of Florida, First District.
    Opinion filed March 7, 2017
    Andy Thomas, Public Defender, and Jennifer S. Morrissey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Julian E. Markham, Assistant Attorney General, Tallahassee, for Appellee.
   WINSOR, J.

Hazael Santiago-Morales did not realize he was emailing an undercover officer. He thought the person he was emailing (a person he met through Craigslist) was a single mother seeking an older man to “teach” her fourteen-year-old daughter about sex. After making detailed arrangements by phone and email, Santiago-Morales di’ove from the Panama City area to Tallahassee, anticipating sex with a child. Police arrested him when he arrived.

The State charged Santiago-Morales with violating section 847.0135(3)(b), Florida Statutes, “which prohibits the use of computer services or devices to solicit the consent of a parent or a person believed to be the parent, legal guardian, or custodian of a child to engage in unlawful sexual conduct with the child,” State v. Shelley, 176 So.3d 914, 916 (Fla. 2015), reh’g denied (Oct. 9, 2015). The State also charged him with violating section 847.0136(4)(b), “which prohibits traveling to meet a minor to engage in unlawful sexual conduct after using computer services or devices to make a prohibited solicitation,” id. at 917. A jury convicted Santiago-Morales of both.

On appeal, Santiago-Morales argues entrapment and double jeopardy. We reject his entrapment arguments without discussion. But bound by the Florida Supreme Court’s recent Shelley decision, and consistent with the State’s concession, we agree with Santiago-Morales that his lesser conviction cannot stand.

In Shelley, which came down after the trial in this case, the state supreme court held that double-jeopardy principles prohibit separate convictions under sections 847.0135(3)(b) and 847.0135(4)(b) if “based upon the same conduct.” 176 So,3d at 919. In this case, as the State concedes, both charges were based on same conduct. Santiago-Morales solicited the fictitious mother for sex with the fictitious child, and then he traveled based on that same solicitation. This is not a case in which the “solicitation and traveling convictions arose from different criminal episodes and acts,” McCarter v. State, 204 So.3d 529, 530 (Fla. 1st DCA 2016)—if it were, the separate convictions could stand. In this case, on the particular facts before us, Shelley obligates us to reverse Santiago-Morales’s lesser included conviction.

We therefore reverse and remand for the trial court to vacate Santiago-Morales’s conviction and sentence for violating section 847.0135(3)(b). We affirm in all other respects.

AFFIRMED IN PART and REVERSED IN PART.

ROBERTS, C.J., and LEWIS, J., CONCUR.


author: PER CURIAM.

text:
    Nedra GABRIEL, Appellant, v. Doris SALAZAR, Appellee.
    No. 3D16-1021
    District Court of Appeal of Florida, Third District.
    Opinion filed March 8, 2017
    Jay Koretsky (Lauderdale Lakes), for appellant.
    Eaton & Wolk, and Douglas F. Eaton, for appellee.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Concession of Error

Based on the appellee’s commendable concession, we reverse the dismissal with prejudice of the complaint. We remand with instructions to permit the plaintiff to amend the complaint.

Reversed and remanded.


author: LAGOA, J.

text:
    TENDER LOVING CARE GARDEN SUPPLY, INC., and Claude Halioua, Appellants, v. JESHER’S, LLC, a Florida Limited Liability Company, Eric Bitney, Jean Bitney, and Sheila Lawyer, Appellees.
    No. 3D16-998
    Consolidated: 16-1148
    District Court of Appeal of Florida, Third District.
    Opinion filed March 8, 2017
    Cunningham Miller, P.A., and Robert K. Miller, Marathon, for appellants.
    Campbell & Malafy, and John Campbell, Coral Gables and Richard Malafy, Marathon, for appellees.
    Before LAGOA, SALTER, and EMAS, JJ.
   LAGOA, J.

Appellants, Tender Loving Care Garden Supply, Inc. (“TLC”), and Claude Halioua (“Halioua”), appeal from two trial court orders. Specifically, TLC and Halioua appeal the trial court’s May 25, 2015, Omnibus Order ruling on multiple motions of both parties, and the April 18, 2016, Order directing the parties to specifically perform a property sale transaction pursuant to obligations under a lease option contract.

With regard to the trial court’s May 25, 2015, Omnibus Order, because this matter remains pending in the trial court, we dismiss the appeal as an improper appeal taken from a non-final, non-appealable order. See Fla. R. App. P. 9.130(a)(3). With regard to the trial court’s April 18, 2016, Order, we affirm.

Dismissed in part; affirmed in part.

      . This case was consolidated with case no. 3D16-1148, which was a prior petition for writ of prohibition and mandamus that this Court denied on July 28, 2016.

      . We note that this Order- is appealable as a non-final order determining the right to immediate possession of property under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii).


author: SALTER, J.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant, v. Melody Gaskin MOBLEY, Appellee.
    No. 3D16-1934
    District Court of Appeal of Florida, Third District.
    Opinion filed March 8, 2017

      Bryan Cave and W. Bard Brockman (Atlanta, Ga.) and Zina Gabsi, for appellant.
    Catherine A. Riggins, for appellee.
    Before WELLS, SALTER and EMAS, JJ.
   SALTER, J.

Deutsche Bank National Trust Company (“Deutsche Bank”) appeals an order involuntarily dismissing Deutsche Bank’s residential mortgage foreclosure action against the appellee, Melody Gaskin Mob-ley. Ms. Mobley defended the foreclosure action as the personal representative of the estate of her late mother, Virginia Gaskin, who passed away in 2011. Following the close of Deutsche Bank’s case in the non-jury trial, the trial court granted Ms. Mobley’s motion for involuntary dismissal based on a purported lack of standing at the inception of the case. For the reasons which follow, we reverse and remand the case for further proceedings.

When the foreclosure complaint was filed in August 2012, a copy of the original note, endorsed in blank, was attached to the complaint. In September of 2013, Deutsche Bank filed the original promissory note and mortgage; a special endorsement to Deutsche Bank was included.

At trial, Deutsche Bank’s witness was an officer from the servicing company for Deutsche Bank, Ocwen Financial Corporation. The witness testified to the delivery of the original note and mortgage to Ocwen in preparation for litigation, the defaults and default letters, the payment history, and Ocwen’s recordkeeping. She explained that the note had been returned to Deutsche Bank for an additional and specific endorsement before the complaint was filed, and that Deutsche Bank had possession of the original note and mortgage when the complaint was filed.

The Bank’s clarification of a blank endorsement did not vitiate its standing to initiate the foreclosure case on either endorsement, given its possession of the original note and mortgage when the complaint was filed. Morgan v. Bank of New York Mellon, 200 So.3d 792, 796 (Fla. 1st DCA 2016). Deutsche Bank’s clarification of the endorsement only supports Deutsche Bank’s standing. Section 673.2051(3), Florida Statutes (2016), specifies that a “holder may convert a blank indorsement that consists only of a signature into a special indorsement by writing, above the signature of the indorser, words identifying the person to whom the instrument is made payable.”

Ms. Mobley made the argument below and here that the lender and its servi-cer are different entities and that physical possession of the note by one of them must exclude possession by the other. In reality, however, “[p]ossession of a note by a third party agent such as a servicer or law firm, gives the ‘owner’ of the note constructive possession sufficient to establish standing as the note’s holder.” U.S. Bank, Nat’l Ass’n v. Angeloni, 199 So.3d 492, 493 (Fla. 4th DCA 2016); Phan v. Deutsche Bank Nat’l Trust Co., ex rel. First Franklin Mortg. Loan Trust 2006-FF11, 198 So.3d 744, 748 (Fla. 2d DCA 2016) (citing Third District cases, among others, for the proposition that physical possession by an agent is constructive possession by the principal, conferring standing for the principal’s complaint for breach).

Ms. Mobley’s additional arguments do not merit further elaboration. As a matter of law, Ms. Mobley’s motion for involuntary dismissal should have been denied. We reverse the final order of dismissal and remand the case for further proceedings.

      . Ms. Mobley’s father, Clarence Gaskin, signed the note and mortgage with Virginia Gaskin in 2006. Mr. Gaskin passed away in 2010, and title to the encumbered property became vested in his wife, Virginia Gaskin. Title passed to Ms. Mobley when Virginia Gaskin’s estate was probated,

      . Default occurred in September 2009, and no payments were made from that date through the 2016 bench trial.

      . Why the Uniform Commercial Code prefers ‘'indorsement” to the more common American usage, "endorsement,” can remain a mystery for purposes of this opinion.

      . Although promulgated after the complaint was filed in the present case, section 702.015, Florida Statutes (2016), Florida Rule of Civil Procedure 1.115 and Forms 1.944(a) and (b) have since clarified the manner in which a lender or its agent must certify, at inception of the foreclosure case, that it is the owner and holder of a note and mortgage, or is otherwise entitled to commence the action on the note and mortgage.


author: SLEET, Judge.

text:
    ARC HUD I, LLC, Appellant, v. Donald C. EBBERT; Linda M. Ebbert; Crossroads Mobile Home Community Homeowner’s Association, Inc.; Wells Fargo Bank, National Association as Successor by Merger to Crossland Mortgage Corp.; and Chris Robbins, Appellees.
    Case No. 2D15-4848
    District Court of Appeal of Florida, Second District.
    Opinion filed March 10, 2017.

      Nicholas R. Cavallaro of Gilbert Garcia Group, P.A., Tampa, for Appellant.
    Mark P. Stopa of Stopa Law Firm, Tampa, for Appellees Donald and Linda Eb-bert.
    No appearance for remaining Appellees.
   SLEET, Judge.

ARC HUD I, LLC, challenges the trial court’s order granting final summary judgment in favor of Donald and Linda Ebbert in its foreclosure action against the Eb-berts. The basis for summary judgment was the Ebberts’ contention that ARC HUD I failed to comply with a condition precedent required by Housing and Urban Development (HUD) regulations that applied to the Ebberts’ mortgage. ARC HUD I, however, maintained below that one of the regulation’s exceptions applied and that it therefore did not have to comply with the condition precedent. Because a genuine issue of material fact remained regarding whether the regulation’s exception applied to ARC HUD I, we conclude that summary judgment was not proper and we reverse.

On January 21, 2007, the Ebberts executed a note and mortgage in which the lender was identified as Secured Funding Corporation. Secured Funding later endorsed the note to MVB Mortgage Corporation. On November 8, 2011, MVB filed a foreclosure complaint against the Ebberts. During the pendency of the foreclosure action, MVB assigned the note and mortgage to ARC HUD I and ARC HUD I was substituted as plaintiff.

The Ebberts subsequently filed a motion for summary judgment, arguing that “Plaintiff failed to comply with the face-to-face counseling requirements of 24 C.F.R. § 203.604.” Pursuant to the statute, before instituting foreclosure proceedings on a mortgage insured by HUD, “[t]he mortgagee must have a face-to-face interview with the mortgagor, or make a reasonable effort to arrange such a meeting, before three full monthly installments due on the mortgage are unpaid.” 24 C.F.R. § 203.604(b) (2010). However, the statute also provides a number of exceptions under which such a meeting would not be required, including when “[t]he mortgaged property is not within 200 miles of the mortgagee, its servicer, or a branch office of either.” 24 C.F.R. § 203.604(c)(2).

To support their summary judgment motion, the Ebberts attached the affidavit of Mrs. Ebbert in which she stated, “I never participated in any face-to-face counseling with Plaintiff .... Plaintiff has no excuse to avoid this requirement ... as I reside in the property and Plaintiff has a branch within 200 miles of the property (and has had such a branch since the time of the alleged default).” In defense of the motion, ARC HUD I filed the affidavit of its agent Nakeisha Williams, who stated that “ARC HUD I, LLC and prior Plaintiff, MVB Mortgage Corp., do not have servicing centers or branch offices located within 200 miles of the subject property.”

At the summary judgment hearing, counsel for the Ebberts argued that ARC HUD I’s affidavit was insufficient because it stated that ARC HUD I and MVB “do not have”—present tense—branches within 200 miles of the property. The Ebberts maintained that this statement merely indicated that there were no branches within 200 miles of the property at the time the affidavit was sworn. They argued that the relevant issue was whether MVB—the ser-vicer at the time of the default and original party plaintiff—-had an office within 200 miles of the property at the time of the alleged default.

In granting the motion for summary judgment, the trial court stated:

The problem is that it says now. ... [Tjhe whole default and everything happened when MVB was the mortgage company. And what MVB has now doesn’t matter. We need your person to go back and look at and verify and have in an affidavit that, back in the day, MVB didn’t have an office within 200 miles of the subject property, because she doesn’t say that.
But she has to say so in the affidavit. ... [I]t had to have been more than 200 miles from the subject property back at the time this was going on. Not now, because now [doesn’t] matter.
Because it has to be at a particular— there is a particular time period on the HUD thing. They have to—it is within thirty days after such default. So we are going back to the time of the default so it is back at that time. ... If it said, do not, never did have, then I would buy it. But that is not what it says. So there is no material issue of fact.

On rehearing, ARC HUD I attached an amended affidavit from Williams, in which she stated:

Plaintiff ARC HUD I, LLC, Mortgagee^] Secure Funding Corp.[;] and prior plaintiff, MVB Mortgage Corp. have never had any servicing centers or branch offices located within 200 miles of the subject property.
Furthermore ... Secured Funding Corp., is a California Corporation. MVB Mortgage Corp., is a Michigan Corporation and neither had servicing centers or branch offices within 200 miles of the subject property three months prior to the alleged default of June 1, 2011.

The trial court denied the motion for rehearing. This was error. ARC HUD I’s amended affidavit created a material issue of fact as to whether MVB had a branch office within 200 miles of the property at the time of default and thus was required to conduct a face-to-face meeting with the Ebberts pursuant to 24 C.F.R. § 203.604(b). The trial court, however, ignored the fact that the amended affidavit contained the very language that the court specifically indicated was necessary to create a genuine issue of material fact. As such, the trial court’s grant of summary judgment was improper. See Laurencio v. Deutsche Bank Nat'l Trust Co., 65 So.3d 1190, 1192 (Fla. 2d DCA 2011) (“A movant is entitled to summary judgment ’if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ “ (quoting Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006))).

We also note that ARC HUD I was not precluded from filing an amended affidavit in connection with its motion for rehearing. “[Ujnder Florida Rule of Civil Procedure 1.530 a judge has broad discretion to grant a rehearing of a summary judgment when the party seeking rehearing submits matters that would have created an issue precluding summary judgment if they had been raised prior to the hearing on the motion.” Fatherly v. Cal. Fed. Bank, 703 So.2d 1101, 1102 (Fla. 2d DCA 1997). “Amost any additional evidence, whether newly discovered or not, is sufficient for relief on a timely motion for rehearing of a summary judgment if in the discretion of the trial judge it presents a triable issue of a material fact.” Id. (quoting Kash N’ Karry Wholesale Supermarkets, Inc. v. Garcia, 221 So.2d 786, 789 (Fla. 2d DCA 1969)).

Because the amended affidavit in opposition to summary judgment filed with the motion for rehearing created a genuine issue of material fact as to whether the mortgagee and the loan servicer had a branch office within 200 miles of the property during the time period before three full monthly installments due on the mortgage went unpaid—and thus created an issue as to whether MVB was at the time required to comply with the face-to-face meeting requirement of 24 C.F.R. § 203.604(b)—we reverse and remand for further proceedings.

Reversed and remanded.

CASANUEVA and ROTHSTEIN-YOUAKIM, JJ., Concur.

      . In various pleadings in this court and the trial court, Appellant alternatively refers to itself as either ARC HUD I, LLC, or ARC 1 HUD, LLC. For purposes of this opinion, we will refer to Appellant as ARC HUD I, LLC.

      . See also 24 C.F.R. § 203.500 (“This subpart identifies servicing practices of lending institutions that HUD considers acceptable for mortgages insured by HUD.... It is the intent of the Department that no mortgagee shall commence foreclosure or acquire title to a property until the requirements of this sub-part have been followed.”).