author: GRIFFIN, J.

text:
    Shane CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-934.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Shane Chapman [“Chapman”] appeals his judgment and sentence for possession of ammunition by a convicted felon and tampering with physical evidence. On appeal, he argues that the trial court erred by denying his motion for judgment of acquittal on the count of tampering with physical evidence. Specifically, he contends that the State failed to establish a prima facie case because the evidence was insufficient to prove the second element of the charged offense, namely that he had the intent to destroy, conceal, or remove the alleged contraband so as to impair its verity or availability.

At trial, Sergeant Donald Devlin, Supervisor for the Community Response Team with the Osceola County Sheriffs Office [“Sergeant Devlin”] testified that he came into contact with Chapman while “conducting an operation that night on River Road.” Law enforcement had received information about narcotic sales on River Road from Crime Watch and area residents, and the purpose of the operation was to identify drug dealers. Sergeant Devlin was in an unmarked patrol vehicle.

At approximately 8:00 p.m., Sergeant Devlin observed an individual, whom he later identified as Chapman, drive a white GMC truck “to the intersection near Mincy and River” and, thereafter, observed a black male make contact with Chapman through the driver’s side window of the truck. Sergeant Devlin watched the black male reach into the driver’s side window, but did not see whether any items were exchanged. The contact lasted about fifteen seconds, after which Chapman drove the truck away heading westbound on Highway 192. Sergeant Devlin noticed that a brake light was out on the truck.

Sergeant Devlin initiated a traffic stop by activating the lights of the unmarked patrol vehicle. Chapman did not pull over. Instead, Sergeant Devlin observed Chapman’s hand come out of a rolled-down window in the truck and an object bounce off the ground. Chapman then traveled approximately “another half a mile” before he pulled over.

Sergeant Devlin made contact with Chapman, explained the reason for the stop, and informed him about having observed him throw something out of the truck. According to Sergeant Devlin, Chapman stated that “he had, in fact, purchased some cocaine on River, and that he had discarded it out of the car [truck] because he didn’t want to go to jail.” Later, Sergeant Devlin “went back and tried to look” for the cocaine that Chapman had thrown from the truck’s window, but was unable to recover it since “[t]he road is very busy” and “there [are] all kinds of rocks in the road and everything else.”

Contrary to Sergeant Devlin’s account, according to Chapman, he did not make contact with a black male off of River Road. Instead, as he was slowing down to make a turn onto Oregon Avenue, a law enforcement officer pulled up behind him in a patrol vehicle and turned on the vehicle’s lights. The law enforcement officer “jumped” out of the patrol vehicle, “about snatched” Chapman out of the truck “with his gun drawn,” and asked about drugs. He did not ask whether Chapman threw anything out of the truck window, and Chapman did not tell him that he threw something out of the truck window.

Chapman contends on appeal that the evidence was insufficient to prove that he had the intent to destroy, conceal, or remove the alleged contraband so as to impair its verity or availability. He asserts that while the act of throwing the alleged contraband out of the truck window amounted to abandonment, it did not amount to tampering with physical evidence because the substance was not altered and was not concealed.

Section 918.13, Florida Statutes (2007), entitled “Tampering with or fabricating physical evidence,” provides in pertinent part:

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation;

At its core, this statute punishes the damage, destruction or concealment of physical evidence in an effort to prevent its use in a criminal case. The courts of many jurisdictions have labored to distinguish this type of offense from mere abandonment of contraband by a suspect in an effort to avoid being caught in possession of contraband or some other item of evidence. Florida courts also have engaged in this effort with results that are not entirely clear or consistent. In Boice v. State, 560 So.2d 1383, 1384-85 (Fla. 2d DCA 1990), the Second District Court of Appeal said:

We do not attempt to define the extreme boundaries of “tampering” in this case. However, we do not believe that the legislature intended the simple act of abandoning a bag of crack cocaine at the scene of an arrest, in the clear sight of a law enforcement officer, to constitute the commission of this additional third-degree felony. If the defendant’s act in this case constituted tampering, then a nineteen-year-old who threw a can of beer from his car when stopped by a police officer would commit not only the second-degree misdemeanor of possession of alcoholic beverages, but also the third-degree felony of tampering with evidence. We do not believe that the legislature intended an additional felony under such circumstances.

(Footnotes omitted).

Subsequently, in State v. Jennings, 666 So.2d 131, 133 (Fla.1995), the Florida Supreme Court concluded that courts in Florida were applying overbroadly the decision in Boxee. The court concluded that swallowing an object constitutes altering, destroying, concealing, or removing a “thing” within the meaning of section 918.13, Florida Statutes. Id. In an effort to clarify the law, the high court explained:

In Munroe v. State, 629 So.2d 263, 264 (Fla. 2d DCA 1993), Jones v. State, 590 So.2d 982, 983 (Fla. 1st DCA 1991), and Thomas v. State, 581 So.2d 993, 994 (Fla. 2d DCA 1991), the courts relied on Boxee for the proposition that tossing evidence away in the presence of a law enforcement officer does not constitute tampering under section 918.13. But see Hayes v. State, 634 So.2d 1153, 1154 (Fla. 4th DCA) (affirming tampering conviction where defendant dropped bag of rock cocaine into drainage outlet while being pursued by law enforcement officer), review denied, 645 So.2d 452 (Fla.1994).
We disagree with Boice to the extent it can be read to mean that tossing evidence away in the presence of a law enforcement officer does not, as a matter of law, constitute a violation of the statute. Depending upon the circumstances, such an act could amount to tampering or concealing evidence. An affirmative act of throwing evidence away constitutes more than mere abandonment.

Id.

In State v. Harper, 800 So.2d 708 (Fla. 5th DCA 2001), the defendant had been arrested on charges of tampering with evidence based upon instructions he gave to a passenger in his vehicle to throw marijuana and a marijuana pipe out the window while a traffic stop was being conducted. The court granted the defendant’s motion to dismiss, but this Court reversed on the authority of Jennings. Id.

In Obas v. State, 935 So.2d 38, 38-39 (Fla. 4th DCA 2006), the Fourth District Court of Appeal concluded that the trial court should have granted a defendant’s motion for judgment of acquittal because the evidence was insufficient to establish that the defendant tampered with evidence where “as an officer was about to stop [the] defendant, who was on a bicycle, [the] defendant opened a container, dropped cocaine rocks on the ground, and tossed the container five feet.” It explained:

If [the] defendant had dropped or thrown the items so that they could not have been retrieved, it would be another matter, like swallowing. In this case, however, where he merely dropped the cocaine rocks and tossed the container on the ground, and both were easily found, the evidence was insufficient. Otherwise a tampering conviction could be obtained whenever a suspect merely drops drugs on the ground.

Id. at 39.

Thereafter, in Evans v. State, 997 So.2d 1281, 1282 (Fla. 4th DCA 2009), the Fourth District concluded that a trial court had erred by denying a motion for judgment of acquittal on a charge of tampering with evidence, explaining:

The only evidence presented to the jury was that the defendant either threw or dropped the cocaine rock in the sand and the officers were unable to find it thereafter. Without further evidence of specific intent to tamper with or conceal the evidence, the only additional circumstance that the jury could consider is the fact that the defendant happened to be on sand at the time he threw or dropped the rock. To convict without more penalizes the defendant for the type of surface upon which he was standing at the time of his arrest. Therefore, the lack of other circumstances in this record leads to the conclusion that, even in the light most favorable to the State, the evidence is insufficient to find anything more than mere abandonment....

Id. at 1284.

Here, there is evidence that, after Sergeant Devlin activated the patrol vehicle’s lights, in an effort to effect a traffic stop of Chapman, Chapman threw the alleged contraband out the truck’s window while the truck was in motion, and continued driving for approximately one-half mile before pulling over. Throwing the cocaine from the moving car was almost certain to make its recovery impossible, and it was made more certain by the failure to stop for half a mile. Chapman’s own words establish he was attempting to get rid of the cocaine. This is not a case like Obas or Evans where there was abandonment in a location proximate to law enforcement and nothing to suggest an attempt to damage, destroy or cause the evidence to be lost. This case is well within the language and intent of the statute.

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.

      . At trial, Chapman moved for judgment of acquittal on the ground that the evidence was insufficient to prove the first element of the charged offense, namely that he had knowledge that an investigation was about to occur. However, on appeal, he argues that the evidence was insufficient to prove the second element of the charged offense. The State does not contend that Chapman failed to preserve the argument for appeal, however. See Stephens v. State, 787 So.2d 747, 753 (Fla.2001).

      . There is a cogent discussion of this issue in State v. Lasu, 278 Neb. 180, 768 N.W.2d 447, 449 (2009). Nebraska’s tampering with physical evidence statute is similar to Florida's.


source: Caselaw Access Project

author: TORPY, J.

license: Public Domain

text:
    Huran BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2259.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2010.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

In this resisting an officer case, Appellant challenges the denial of a special instruction regarding the lawfulness of his police detention. Appellant also challenges his convictions for resisting with and without violence on double jeopardy grounds. We affirm on the jury instruction issue, but reverse the conviction for resisting without violence, concluding that it is a double jeopardy violation.

The jury was given the standard instructions then in existence on resisting an officer with and without violence and battery on an officer. Included within each standard instruction was the language that the State is required to prove that the officer was “engaged in the lawful execution of a legal duty.” See Fla. Std. Jury Instr. (Crim) 8.11, 21.1, 21.2 (2008). Additionally, the court instructed the jury that “investigating and issuing a trespass constitutes the lawful execution of a legal duty.” Appellant does not contend that these instructions were incorrect statements of the applicable law. Rather, Appellant challenges the denial of his proposed, special instruction that:

The Defendant has the right to resist without violence an officer who conducts an unlawful arrest, detention and or [sic] criminal investigation.
The Court further instructs that if the arrest of Huran Brown is unlawful, the Defendant has the right to resist, obstruct or oppose without violence such unlawful arrest.

We conclude that it was not an abuse of discretion to refuse to give this instruction. In reaching this conclusion, we acknowledge that there exists some confusion in the decisional law, necessitating that we expound upon our holding.

These cases are made complicated by the fact that “lawfulness” of the police behavior is an element of the crimes under some circumstances. Issues of lawfulness may be mixed questions of fact and law or pure questions of law. Even when they are pure questions of law, however, the ultimate determination of whether the element is proven is for the jury, not because the jury determines questions of law but because the jury has the ultimate responsibility to apply the facts to the law in a criminal case, even when the facts are not in dispute. As one court succinctly put it:

Unlike in a civil case, the trial court in a criminal case may not direct a verdict for the State on an essential element, no matter how compelling the evidence. This is because “[ajlthough a jury has a duty to convict when the evidence proves guilt beyond a reasonable doubt, its duty is distinct from its power, and a jury has the power to acquit the defendant even if its verdict is contrary to the law and the evidence.”

Green v. State, 240 Ga.App. 774, 525 S.E.2d 154, 157 (1999) (footnotes omitted) (quoting Johnson v. State, 223 Ga.App. 294, 477 S.E.2d 439, 440, (1996)). Although the trial court should not usurp the jury’s power to acquit, it is not obligated to encourage its use or even advise the jury that it has the power. In fact, the instructions to the jury should be quite to the contrary. Standard instructions properly advise juries that the judge determines what law applies, and they are duty-bound to follow the law, even if they do not like it. For example, Florida Standard Jury Instruction (Criminal) 2.1 advises:

It is the judge’s responsibility to decide which laws apply to this case and to explain those laws to you. It is your responsibility to decide what the facts of this case may be, and to apply the law to those facts. Thus, the province of the jury and the province of the court are well defined, and they do not overlap. This is one of the fundamental principles of our system of justice.

Likewise, Florida Standard Jury Instruction (Criminal) 3.13 advises:

In closing, let me remind you that it is important that you follow the law spelled out in these instructions in deciding your verdict. There are no other laws that apply to this case. Even if you do not like the laws that must be applied, you must use them. For two centuries we have lived by the constitution and the law. No juror has the right to violate rules we all share.

(Emphasis supplied).

The responsibility of the lawyers and the trial judge is to properly instruct the jury on the applicable law so that the jury can decide the issue with the proper legal guidance. Telling the jury that it must determine the “lawfulness” or “unlawfulness” of the police behavior, without more, as was proposed here, does nothing to further the ends of justice. Unfortunately, there is no standard instruction appropriate to all circumstances so courts have struggled with these instructions. The court must avoid an instruction that is tantamount to directing a verdict on the issue, but the court should decide all applicable issues of law and properly instruct the jury so that it can decide disputed issues of fact and apply the facts to the law. Stated another way, the jury should be charged in accordance with its duty without interfering with its power.

By way of example, if, in a hypothetical case, a police officer approaches a car parked on a public street and smells burning marijuana emanating from the vehicle, but encounters non-forcible resistance during a search, then two possible instructions might be given, depending upon whether facts are in dispute. If there is no factual dispute regarding whether the officer actually smelled marijuana, the standard instruction, including a statement that “the search of a car is the lawful execution of a legal duty,” is appropriate. If there is a dispute in the evidence concerning whether the officer actually smelled marijuana, the instruction may be modified as follows: “the search of a car is the lawful execution of a legal duty if a police officer smells marijuana coming from the vehicle prior to conducting the search.” Lawyers may then argue the factual dispute to the jury using the legal framework contained within the instruction. Importantly, under this hypothetical, it is not the jury’s function to determine if the smell of marijuana gives rise to probable cause to search; that is a question of law for the judge to decide. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979) (application of probable cause standard to facts is question of law for court).

When the lawfulness of police behavior involves the consideration of several disputed facts, the construction of a proper instruction might be more cumbersome, but that does not justify the use of an instruction that is incomplete or inaccurate, or which shifts to the jury the responsibility to decide legal issues. It would be inappropriate, for example, to give the jury a definition of “reasonable suspicion” and tell it to decide if police officers had reasonable suspicion in a given case, or to ask the jury to determine whether the “community caretaker doctrine” or “fresh pursuit doctrine” applies to a given set of facts. The approach in any case should be to first determine the material facts that bear on the lawfulness of the police action. If those facts are not in dispute, and the trial judge determines that such facts legally authorize the police action under the applicable legal standard, then a simple instruction like the one used in this case is appropriate. If, however, material facts that bear on the lawfulness of the police action are in dispute, then the trial court must charge the jury in such a manner that it may determine the facts and apply them to the law as we have illustrated. The instruction must be stated in the abstract to avoid the usurpation of the jury’s authority to make the final call.

The principles that we have addressed here apply equally to the statutory element that the victim is an “officer,” as defined by law. See § 843.01, Fla. Stat. (2008). The statutory definition is quite involved. Even though this is an element, just as “lawfulness,” whether a particular officer is an officer as defined in the statute is a question of law. It would be inappropriate for the judge to simply throw the statutory definition of “officer” at the jury. It would be worse yet for the judge to instruct the jury to decide the issue without any legal framework, just as the defense proposed to do here on the far more complex issue of “lawfulness.” Nor should the judge grant a directed verdict on the issue by saying that a particular named officer is an officer as defined. Instead, the judge should give an abstract instruction on the law as it relates to this element, just as the standard instruction provides. For example: “Every officer of the Florida Highway Patrol is an officer within the meaning of the law.” True, under this instruction, the jury would be duty-bound to render a verdict for the state on this element — not because the judge has directed a verdict, but because the judge has correctly instructed on the law as it relates to the facts, and the jury is bound to follow the law. Its power to apply the facts to the law, however, remains unimpeded under this example.

The current versions of the standard instructions for resisting with and without violence retain the directive that the trial court instruct on this element as a matter of law but no longer contain a standard instruction for the “lawfulness” element. Instead, the resisting with violence instruction contains a note suggesting that a special instruction be given when the issue of “lawfulness” is raised by the defense. Curiously, the resisting without violence instruction does not contain a similar note. Unfortunately, this revision raises more questions than it provides answers. We think the prior version of the instruction, when properly used, was perfectly fine in most circumstances. “Lawfulness” is an element of proof, except when section 776.051(1) applies. The jury must decide disputed, material issues of fact that bear on the element and apply the law to the facts. The judge tells them what the law is.

In holding as we have, we have not overlooked State v. Anderson, 639 So.2d 609 (Fla.1994). In that case, our high court expressly approved McBride v. State, 604 So.2d 1291 (Fla. 3d DCA 1992), and disapproved Scott v. State, 594 So.2d 832 (Fla. 4th DCA 1992). Both decisions had addressed the propriety of the standard instruction, like the one used here. Scott had determined that this instruction impermissibly usurped the jury’s province. McBride held to the contrary. The Court agreed with McBride. Despite its holding, in dictum, the Anderson Court said that, if requested, a special instruction should be given to apprise the jury that it must decide the lawfulness issue. It suggested that this can be accomplished by insertion of the word “lawful” before “arrest.” This aspect of the written opinion cannot be reconciled with the Court’s holding and must be disregarded as mere dictum, The jury’s province is not invaded when it is properly instructed on the law and its unbridled power to apply the facts to the law is not usurped. That was the precise holding in McBride. In fact, telling the jury to decide what is lawful in this manner invades the province of the court. The standard instructions explain the respective responsibilities of the judge and jury. The jury is told that it has the sole responsibility to apply the facts to the law. Telling the jury that it has the duty to follow the law and telling them what the law is does not usurp that power.

Here, the police were called by the apartment manager to eject a group of young people who were congregating in the parking lot. The manager requested that the police issue them warnings not to return. The manager told the police officers that the young people were not residents. Appellant was among the group identified by the manager. When the police officers confronted him and instructed him to stop so that they could identify him and issue a warning, he fled. This aspect of the evidence was not in dispute. Based on this evidence, the police officers had reasonable suspicion to detain Appellant, even if it turned out that Appellant actually had permission to be on the premises. Therefore, it was entirely appropriate for the trial judge to instruct the jury in generic terms as he did.

As for the double jeopardy issue, our decision is controlled by Swilley v. State, 845 So.2d 930 (Fla. 5th DCA 2003). Contrary to the argument advanced by the State, Swilley was not implicitly overruled by Valdes v. State, 3 So.3d 1067 (Fla.2009). In Valdes, our high court addressed the interpretation of section 775.021(4)(b)2., Florida Statutes, which addresses offenses that are degrees of the same offense. Our decision in Swilley was based on section 775.021(4)(b)3. It excepts from the application of the rule lesser offenses that are subsumed by a greater offense. Accord Ruiz-Alegria v. State, 14 So.3d 1276 (Fla. 2d DCA 2009).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER and LAWSON, JJ., concur.

      . These instructions were amended after Appellant’s trial.

      . We say under some circumstances because of the effect of section 776.051(1), Florida Statutes (2008). Prior to its recent amendment, this statute prohibited the use of force in defending against an unlawful arrest. Tillman v. State, 934 So.2d 1263 (Fla.2006). In its present form, the statute applies to both arrests and other lawful actions by police. Essentially, what this statute does is eliminate the element of lawfulness when force is used. Dyer v. Lee, 488 F.3d 876, 879 (11th Cir.2007). It does not establish a defense, as some courts suggest. "Lawfulness” is an element of the crime that the State must prove. This statute must be read in pari materia with the resisting with violence and battery statutes. The net effect is to negate the element of lawfulness. Interestingly, the initial bill proposed that "lawful” be deleted as an element in the resisting with violence statute, but it was not adopted in that form. We can only assume that, because the resisting with violence statute proscribes both resisting with actual force and resisting with threatened force, the legislature intended "lawfulness” to remain an element unless actual force is used.

      . The judge may grant a directed verdict for the defendant, however, provided that there is no material fact dispute regarding the "lawfulness” element. This could lead to a seemingly anomalous result in cases where the court is called upon to address a motion to suppress. For purposes of constitutional criminal procedure, the court must address the lawfulness of police action and resolve factual disputes as the trier of fact. If the court grants the motion by resolving a material fact dispute adverse to the state, although the finding controls the pretrial suppression issue, it is not dispositive for purposes of determining the lawfulness element.

      . The "vice,” as Judge Schwartz puts it, in using a case-specific instruction is that it is tantamount to a directed verdict. McBride v. State, 604 So.2d 1291, 1292 (Fla. 3d DCA 1992). This is avoided by stating the legal proposition in the abstract. Id.

      . Whether the officer is sufficiently experienced to offer this opinion testimony is a matter for the court. The jury could still discredit the testimony, however, when it applies the facts to the law.

      . Owens is a civil case. Nevertheless, a question of law is a question of law, whether the case is civil or criminal. The distinction between the two is that, in a civil case, the court can grant a directed verdict on an element. In a criminal case, the court cannot grant a directed verdict on an element because the jury retains the power to disregard the law.

      . The statute says: “officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; parole and probation supervisor; county probation officer; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty.” § 843.01, Fla. Stat. (2008).

      . It is conceivable that this could involve a fact issue.

      . It was dictum because the defendant did not ask for an instruction. See Cirelli v. Ent, 885 So.2d 423, 427 (Fla. 5th DCA 2004). As such, we are not bound by it. Id.

      . Nor have we overlooked Evans v. State, 13 So.3d 100 (Fla. 4th DCA 2009), which purported to rely upon Anderson's dictum. Because that opinion does not include the complete charge given there or explain whether material facts were in dispute, we cannot determine if we are in conflict with its holding. To the extent that it follows the dictum in Anderson, we obviously conclude otherwise.

      . Alternatively, we hold that any error was harmless. Both lawyers extensively argued the issue to the jury, and the prosecutor expressly acknowledged that this was an issue for the jury to decide. See, e.g., Lynch v. State, 829 So.2d 371, 376 (Fla. 4th DCA 2002) (applying harmless error doctrine to court's refusal to give proposed special instruction).


author: PER CURIAM.

text:
    Tarsis LINHARES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1672.
    District Court of Appeal of Florida, First District.
    May 28, 2010.

      Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. The notice of appeal filed on April 3, 2009, appealing the judgment and sentence, rendered on January 15, 2009, and the order denying Appellant’s 3.800(c) motion to reduce sentence, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). A motion to mitigate under rule 3.800(c) is discretionary with the court and is itself not appeal-able. See Riggs v. State, 847 So.2d 1037, 1038 (Fla. 1st DCA 2003).

DISMISSED.

KAHN, ROWE, and MARSTILLER, JJ., concur.


text:
    STATE of Florida, Appellant, v. James Nelson HASH, Appellee.
    No. 1D09-4962.
    District Court of Appeal of Florida, First District.
    May 28, 2010.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the State’s appeal of the trial court’s order suppressing Appellee’s statement made during a taped interview. See Fla. R.App. P. 9.140(c)(1)(B) (permitting appeal by the State from a pretrial order suppressing confessions, admissions, or evidence obtained by search and seizure). We treat the remainder of the State’s appeal as a petition for writ of certiorari because it concerns pretrial orders suppressing collateral crime evidence. See Richardson v. State, 706 So.2d 1349, 1357 (Fla.1998); State v. Smith, 951 So.2d 954, 956 (Fla. 1st DCA 2007). We deny the petition because the State has not shown that the trial court departed from the essential requirements of the law. See Smith, 951 So.2d at 957 (explaining that to obtain certiorari review in a criminal case, it is not enough to show that a pretrial order is incorrect; it must be shown that the order departs from the essential requirements of the law).

AFFIRMED in part; DENIED in part.

HAWKES, C.J., VAN NORTWICK and THOMAS, JJ., concur.


text:
    Eric M. PRESSLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0089.
    District Court of Appeal of Florida, First District.
    May 28, 2010.
    Eric M. Pressley, pro se, Petitioner.
    Bill McCollum, Attorney General, and Ian M. Cotner, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the order rendered June 8, 2009, denying petitioner’s motion to correct illegal sentence in Duval County Circuit Court case number 16-2002-CF-10035-AXXX-MA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the circuit court for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D).

DAVIS, CLARK, and WETHERELL, JJ., concur.


text:
    Wesley ASHCRAFT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1667.
    District Court of Appeal of Florida, First District.
    May 28, 2010.
    Bjorn E. Brunvand of Bjorn E. Brun-vand, P.A., Clearwater, for Petitioner.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered January 22, 2003, in Duval County Circuit Court case number 16-2002-CF-009436, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him on appeal.

DAVIS, CLARK, and WETHERELL, JJ., concur.


author: PER CURIAM. KAHN, J.,

text:
    Glendell RUSS, Petitioner, v. STATE of Florida, Respondent.
    Nos. 1D99-4378, 1D00-0243.
    District Court of Appeal of Florida, First District.
    May 28, 2010.
    Robert A. Morris, Banks & Morris, P.A., Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED.

HAWKES, C.J., and THOMAS, J., concur; KAHN, J., concurs with opinion.

KAHN, J.,

concurring.

The petitioner, Glendell Russ, seeks, in this habeas corpus proceeding, an order withdrawing or vacating our opinion of February 2, 2001, which reinstated Mr. Russ’ conviction on a felony charge of official misconduct. State v. Russ, 778 So.2d 414 (Fla. 1st DCA), rev. den., 794 So.2d 606 (Fla.2001). In that case, a panel of this court reversed the well-reasoned order of a Leon County circuit judge concluding “that the State’s theory on the statutory meaning of the word ‘falsify’ lacks an evidentiary basis on the facts of the case.” Russ, 778 So.2d at 414.

Mr. Russ subsequently sought habeas corpus relief in federal court. This relief was granted by the United State District Court for the Northern District of Florida, and then affirmed by the Eleventh Circuit Court of Appeals. See Russ v. Florida, 104 Fed.Appx. 150 (11th Cir.2004) (unpublished). The grant of habeas corpus by the Northern District of Florida, as affirmed by the Eleventh Circuit, acts to vacate the conviction for official misconduct. Nevertheless, anyone using the popular legal research tool known as Westlaw would not be directed to the federal rulings and could, therefore, conclude that the conviction has stood, when in fact it has not. With this explanation, I concur in the majority’s decision to deny the relief sought by Russ.


text:
    Daron L. DANIELS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1782.
    District Court of Appeal of Florida, First District.
    May 28, 2010.
    Daron L. Daniels, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied as legally insufficient.

DAVIS, CLARK, and WETHERELL, JJ., concur.


author: WETHERELL, J.

text:
    Brian William ADKINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4823.
    District Court of Appeal of Florida, First District.
    May 28, 2010.
    Nancy A. Daniels, Public Defender and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant seeks review of the judgment and sentence entered based upon his nolo contendré plea. We affirm the judgment and sentence without comment. However, for the reasons that follow, we reverse the order denying Appellant’s motion to withdraw his plea and remand for the trial court to enter an order dismissing the motion for lack of jurisdiction.

Appellant filed his notice of appeal in this case on August 17, 2009. Eight days later, on August 25, 2009, Appellant filed a pro se motion to withdraw his plea. On September 25, 2009, the trial court entered an order summarily denying the motion on the merits.

In its denial, the trial court cited Adams v. State, 942 So.2d 1024 (Fla. 4th DCA 2006), for the proposition that it had jurisdiction to consider the motion notwithstanding the previously-filed notice of appeal. Adams is distinguishable because in that case the motion to withdraw the plea was filed before the notice of appeal was filed, and pursuant to Florida Rule of Appellate Procedure 9.020(h)(3), the notice of appeal did not affect the trial court’s ability to rule on the motion. Id. By contrast, in this case, the motion to withdraw the plea was filed after the notice of appeal, which divested the trial court of jurisdiction to consider the motion. See Hines v. State, 32 So.3d 678 (Fla. 1st DCA 2010); Mingo v. State, 914 So.2d 1070 (Fla. 2d DCA 2005); McCray v. State, 840 So.2d 274 (Fla. 4th DCA 2003).

Because the trial court was without jurisdiction to consider Appellant’s motion to withdraw plea, the trial court should have dismissed the motion rather than denying it on the merits. Accordingly, we reverse that order and remand with directions for the trial court to dismiss the motion for lack of jurisdiction.

Judgment and sentence AFFIRMED; order denying motion to withdraw plea REVERSED and REMANDED with directions.

WEBSTER and MARSTILLER, JJ, concur.

       The notice of appeal was technically premature because although the sentencing hearing was held on August 10, 2009, the judgment was not rendered until August 24, 2009, when the written order was filed with the clerk of the trial court. But, pursuant to Florida Rule of Appellate Procedure 9.110(0, the premature notice of appeal was effective to vest jurisdiction in this court upon rendition of the judgment.


author: MORRIS, Judge.

text:
    WEST VILLAGES IMPROVEMENT DISTRICT, an independent special district of the State of Florida, Petitioner, v. NORTH PORT ROAD AND DRAINAGE DISTRICT, a dependent special district of the State of Florida, Respondent.
    No. 2D09-2221.
    District Court of Appeal of Florida, Second District.
    May 28, 2010.

      Margaret E. Wood of Caldwell Pacetti Edwards Schoech & Viator, LLP, West Palm Beach, for Petitioner.
    Maggie D. Mooney-Portale and Terry E. Lewis of Lewis, Longman, & Walker, P.A., Bradenton, and Robert K. Robinson and Jackson C. Kracht of Nelson Hesse, L.L.P., Sarasota, for Respondent.
   MORRIS, Judge.

In this second-tier certiorari proceeding, West Villages Improvement District seeks to quash the circuit court’s order which upheld non-ad valorem special assessments imposed by the North Port Road and Drainage District (NPRDD) upon real property owned by West Villages. We conclude that the circuit court departed from the essential requirements of law by failing to apply the principle espoused in Blake v. City of Tampa, 115 Fla. 848, 156 So. 97 (1934), and therefore, we grant cer-tiorari.

I. Background

West Villages is an independent special district of the State of Florida, located in Sarasota County. NPRDD is a municipal dependent special district wholly contained within the city of North Port. West Villages owns nine parcels of real property located within the city of North Port upon which NPRDD imposed the non-ad valo-rem assessments.

In mid-2008, NPRDD amended its enabling ordinance to provide that NPRDD would levy non-ad valorem assessments against real property owned by governmental entities. NPRDD then published a notice of public hearing to address the adoption of the non-ad valorem assessment roll for the 2008-2009 fiscal year. Thereafter, West Villages received notices of the proposed assessments for each of the nine parcels in question. West Villages timely filed written objections to the proposed assessments arguing, in relevant part, that there was no explicit or necessarily implied legislative authorization for NPRDD to impose the non-ad valorem assessments upon any property owned by West Villages, as such property constituted public property.

At the public hearing, West Villages objected not only verbally but also in writing to the proposed assessments, raising the same arguments which it previously made. Despite West Villages’ objections, NPRDD passed a resolution which established the non-ad valorem assessment rates and which adopted the proposed non-ad valo-rem assessment roll.

Thereafter, West Villages filed appeals to address the imposition of the non-ad valorem assessments for each of the nine parcels. Again, West Villages asserted there was no legal basis for NPRDD to impose the non-ad valorem assessments upon the parcels in question. On October 17, 2008, the district director for NPRDD issued a letter to West Villages denying the appeals.

On November 14, 2008, West Villages filed its petition for writ of certiorari in the circuit court. In its order denying West Villages’ petition, the circuit court cited City of Boca Raton v. State, 595 So.2d 25 (Fla.1992), and determined, in relevant part, that “[a] dependent special district ... has the authority to levy non-ad valo-rem assessments on specially benefited properties pursuant to both their home rule authority and statutory authority.” It is this conclusion which we have determined warrants certiorari relief.

II. Analysis

“[Cjertiorari should not be used to grant a second appeal but, instead, is limited to those instances in which the lower court did not afford procedural due process or departed from the essential requirements of the law.” Housing Auth. of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004).

The departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. There must be a violation of a clearly established principle of law resulting in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). A failure to observe “the essential requirements of law” has been held synonymous with a failure to apply “the correct law.” [Haines City Cmty. Dev. v.] Heggs, 658 So.2d [523,] 530 [ (Fla.1995) ]. The district courts of appeal “should not be as concerned with the mere existence of legal error as much as with the seriousness of the error.” Id. at 528 (quoting Combs v. State, 436 So.2d 93, 95 (Fla.1983)). In the context of certiorari review of a circuit court’s decision sitting in its appellate capacity, certiorari relief may be granted when the circuit court’s legal error in applying the incorrect law is sufficiently egregious or fundamental. Bottcher v. Walsh, 834 So.2d 183, 184-85 (Fla. 2d DCA 2002).

Id.

West Villages contends that pursuant to Blake, NPRDD could not lawfully impose the non-ad valorem assessments without statutory authority and that the circuit court therefore departed from the essential requirements of law by failing to apply Blake and grant certiorari relief to West Villages.

In Blake, the city of Tampa sought to foreclose a special assessment lien against a special tax school district in Hillsborough County. 156 So. at 98. The school district’s motion to dismiss the complaint was denied. Id. The Florida Supreme Court was ultimately asked to determine whether property acquired and used for public school purposes could be sold to pay a special assessment. Id. The court determined that it could not. Id. at 100. However, in reaching that decision, the court explained how special assessments could be validly applied to public property:

[I]t is recognized by the weight of authority in the United States that with the exception of property of the general government, such as may be used for a custom house, post office, or other public building, all other public property is assessable if so provided by legislation, for it is unquestionably competent for the lawmaking power to authorize lands of the state, or public property belonging either to municipal corporations or to other public quasi corporations, or to political subdivisions, to be subjected to special assessments. But public property will not be deemed to be so included unless by special enactment or necessary implication.

Id. at 99 (emphasis added). This discussion in Blake leads this court to conclude that legislative authorization — whether express or necessarily implied — is required before a special assessment can be imposed upon public property.

However, NPRDD maintains that the City of Boca Raton case recognized that legislative authorization is no longer required for the imposition of special assessments by municipal districts. The circuit court was apparently persuaded by this argument as it cited City of Boca Raton in denying certiorari relief below.

In that case, the Florida Supreme Court was asked to determine whether the city of Boca Raton could lawfully impose special assessments in order to fund improvement bonds without having been given a specific grant of authority from the legislature. 595 So.2d at 26. In finding that the city of Boca Raton could lawfully impose the special assessments, the Florida Supreme Court recited the history of municipal powers, specifically recognizing that under the 1885 version of the Florida Constitution, municipal powers were dependent upon specific grants of authority by general or special act. Id. at 27. The court went on to describe how municipalities were afforded broad home rule powers when the constitution was amended in 1968 and again in the Municipal Home Rule Powers Act of 1973. Id. at 27-28. Thus, according to the court, municipalities can “now exercise any governmental, corporate, or proprietary power for a municipal purpose except when expressly prohibited by law.” Id. at 28.

Our interpretation of the holding in City of Boca Raton is that municipalities’ broad home rule powers encompass the ability to generally impose special assessments even absent specific legislative authority. Those general powers do not, however, permit municipalities to impose special assessments on public property in violation of the principle espoused in Blake. We find it significant that the City of Boca Raton case did not even mention the Blake decision, much less explicitly overrule it. And it is well settled that the supreme court does not overrule itself by implication. See Puryear v. State, 810 So.2d 901, 905 (Fla.2002). We also note that the City of Boca Raton case did not separately address whether public property would be subject to special assessments in the absence of specific legislative authority. We thus believe that the special exception for public property described in Blake survived not only the constitutional amendment in 1968, but also the enactment of the Municipal Home Rule Powers Act.

We find support for our decision in City of Gainesville v. State, Department of Transportation, 778 So.2d 519 (Fla. 1st DCA 2001). In that case, the First District acknowledged that “legislative intent to sanction special assessments on state property must ‘clearly appear [ ] from the statute.’” Id. at 522 (alteration in original) (quoting Edwards v. City of Ocala, 58 Fla. 217, 50 So. 421, 422 (1909)). We recognize that City of Gainesville is limited in application because there the city of Gainesville did not argue that state property was subject to special assessment. Yet we find it noteworthy that the exception for public property was still being recognized nine years after City of Boca Raton was decided.

Further supporting our decision is the fact that upon review of the City of Gainesville case, the Florida Supreme Court commented that: “As a state agency, ... DOT would be exempt from special assessments absent a statute specially authorizing, either explicitly or ‘by necessary implication,’ special assessments on state property.” City of Gainesville v. State, 863 So.2d 138, 143 n. 3 (Fla.2003). We interpret this comment to mean that in relation to the imposition of special assessments, the exception for public property is still alive and well according to the Florida Supreme Court.

NPRDD argues that Remington Community Development District v. Education Foundation of Osceola, 941 So.2d 15 (Fla. 5th DCA 2006), supports its position that it may impose the non-ad valorem assessments, even without express or necessarily implied legislative authority. In Remington, the Remington Community Development District challenged a summary judgment which had been entered in favor of the Education Foundation of Osceola (the charter school). Id. at 15. In granting summary judgment, the trial court determined that the charter school was exempt from paying special assessments levied by Remington because of the charter school’s statutory status as a public school. Id. at 16.

On appeal, the Fifth District noted that section 1013.51, Florida Statutes (2005), permitted public schools to unilaterally invoke an exemption from special assessments. Id. at 16 n. 1. However, the court went on to hold that the statutory exemption did not apply to charter schools because pursuant to section 1002.33(16)(a), Florida Statutes (2005), charter schools were exempted from all statutes contained within chapter 1013. Id. at 17.

NPRDD thus argues that Remington stands for the proposition that unless there is a statutory exemption, all public property may be subjected to special assessments. We do not read Remington so broadly. The issue in Remington was whether a charter school qualified for the statutory exemption provided for in section 1013.51. But there is no holding in Remington that all public property is subject to special assessments absent a statutory exemption.

We note that in reaching its decision, the Fifth District cited Blake for the proposition that “[historically, public schools in Florida were not exempt from special assessments.” Remington, 941 So.2d at 16. This statement must be read in context, however, because in Blake, the special assessments had been specifically authorized by a special act of the legislature and subsequently confirmed and validated by another special act. See Blake, 156 So. at 98. And ultimately, the Blake court recognized that special assessments may only be imposed upon public property “if so provided by legislation.” Id. at 99. We therefore reject NPRDD’s argument that Remington supports its position that it may lawfully impose non-ad valorem assessments on West Villages’ property despite the absence of legislative authority. But to the extent that our conclusions conflict with the Fifth District’s opinion m Remington, we certify conflict.

We hold that the circuit court departed from the essential requirements of the law by failing to apply Blake. We therefore grant certiorari and quash the order under review. We also certify the following question as one of great public importance, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

MAY A MUNICIPAL DEPENDENT SPECIAL DISTRICT, PURSUANT TO MUNICIPAL HOME RULE POWER, IMPOSE A NON-AD VALOREM SPECIAL ASSESSMENT UPON REAL PROPERTY OWNED BY A STATE GOVERNMENTAL ENTITY, IN THE ABSENCE OF EXPRESS OR NECESSARILY IMPLIED LEGISLATIVE AUTHORITY?

Certiorari granted, conflict certified, and question certified.

ALTENBERND and CRENSHAW, JJ., Concur.

      . West Villages also challenged the imposition of the non-ad valorem assessments on the bases that: (1) the parcels in question were exempt because they constituted common elements within residential subdivisions; (2) the parcels would not receive any benefits from the services provided by the NPRDD; and (3) NPRDD failed to comply with section 197.3632, Florida Statutes (2008), when it provided notice of the proposed assessments. However, because we have determined that the circuit court departed from the essential requirements of law by failing to apply Blake, these additional bases need not be addressed.

      . The Florida Attorney General’s Office agrees with our conclusion. See Op. Att’y Gen. Fla. 90-85 (1990) (opining that “[sjtate-owned lands are subject to special assessment by local government only when such liability is clearly provided by statute" and that "in the absence of a statute expressly so providing, state-owned land is not subject to such assessment").


author: CASANUEVA, Chief Judge.

text:
    John D’ALUSIO, Appellant, v. GOULD & LAMB, LLC, Appellee.
    No. 2D07-4426.
    District Court of Appeal of Florida, Second District.
    June 2, 2010.

      John P. Holsonback of Fuller Holson-back & Malloy, P.A., of Tampa, for Appellant.
    William Garth Christopher and Anne Carrion Tóale of Maglio Christopher & Tóale Law Firm, of Sarasota, for Appellee.
   ORDER ON MOTION FOR REVIEW OF APPELLATE ATTORNEYS’ FEES UNDER FLORIDA RULE OF APPELLATE PROCEDURE 9.400(C)

CASANUEVA, Chief Judge.

John D’Alusio seeks review of an order awarding him $6875 in appellate attorneys’ fees after he prevailed in this appeal. D’Alusio contends that the appellate fee award was inadequate; that the trial court erred when it failed to award him interest on his fees; and that the trial court should have taxed the costs of his expert witness’s fee. Although we find no error in the failure to award interest, we hold that the trial court abused its discretion in setting the amount of appellate fees and in failing to award D’Alusio a fee for his expert to testify at the hearing.

Background of the Case

After John D’Alusio prevailed on Gould & Lamb’s appeal of a final judgment refusing to enforce a noncompete agreement, see Gould & Lamb, LLC v. D’Alusio, 949 So.2d 1212 (Fla. 2d DCA 2007), D’Alusio set his previously filed motion for trial-level attorneys’ fees for hearing. Five days before the fee hearing, Gould & Lamb filed a notice of objection to the fees, questioning D’Alusio’s entitlement. But at the hearing, Gould & Lamb’s attorney objected to fees on a procedural ground, claiming that the fee motion, which was served before entry of the final judgment, was untimely pursuant to this court’s decisions construing a version of Florida Rule of Civil Procedure 1.525 that had been amended by the time D’Alusio filed his fee motion in the trial court. This court’s decisions on the former version of rule 1.525 — against the tide of decisions from the four other district courts of appeal — held that the window for filing a fee motion opened after the filing of the judgment and closed thirty days thereafter. See, e.g., Barco v. Sch. Bd. of Pinellas County, 946 So.2d 1244 (Fla. 2d DCA 2007), quashed, 975 So.2d 1116 (Fla.2008). The amended version of the rule, effective January 1, 2006, specifically provided that “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment.” Fla. R. Civ. P. 1.525 (2006) (emphasis supplied). In spite of the fact that the supreme court’s amendment of the rule called into question the authority of the Second District cases, the trial court ordered that D’Alusio’s motion for attorneys’ fees was untimely because it was filed before the judgment was rendered.

D’Alusio sought review of the trial court’s order in this appeal. During its pendency, the supreme court held that the rule set only an outside deadline for filing the attorneys’ fee motion. Barco, 975 So.2d at 1118. As D'Alusio’s motion had obviously been timely filed, Gould & Lamb appropriately conceded error. This court reversed, D’Alusio v. Gould & Lamb, LLC, 980 So.2d 1225 (Fla. 2d DCA 2008), and entered an order pursuant to rule 9.400(b) conditionally granting D’Alusio’s motion for appellate attorneys’ fees and remanding to the trial court for determination of entitlement and amount. After a hearing at which both trial and appellate fees were considered, the circuit court determined that D’Alusio was entitled to appellate fees in the amount of $6875 as well as an additional amount for trial-level fees. D’Alusio now seeks review of the order on appellate fees, contending that the amount is inadequate. We agree with his contention and reverse the order on review.

Jurisdiction — The Appellant Sought Timely Review of the Fee Order

As a preliminary matter, we must consider the timeliness of this proceeding. Rule 9.400(c) requires that “(rjeview of orders rendered by the lower tribunal under this rule shall be by motion filed in the court within 30 days of rendition.” But D’Alusio did not file a motion in this case within the thirty-day period. Rather, after his motion for rehearing was denied by the circuit court, he filed a notice of appeal of the single order that awarded him both trial and appellate fees, instituting case number 2D09-149. This court ultimately affirmed the judgment awarding trial-level attorneys’ fees in that case number on May 5, 2010.

Even though the trial court entered a single order on both trial and appellate fees, the court’s rulings on the separate fee motions were clearly distinct and independent, contained within separate paragraphs of the order. D’Alusio should have sought review of that portion of the order addressing appellate fees by motion in this case number rather than through a separate, unrelated appeal. See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997) (observing that “the correct method of seeking review of an order on appellate costs or attorney’s fees is to file a motion for review in the appellate court in the proceeding that was the subject of the award, within 30 days of rendition of the order in the lower tribunal”); Magner v. Merrill Lynch Realty/MCK, Inc., 585 So.2d 1040, 1043 (Fla. 4th DCA 1991) (holding that the failure to file a motion for review of appellate attorneys’ fees under rule 9.400(c) within thirty days of rendition waived the issue for appeal). We recognize that there exists a limited exception for review of a trial court’s order on appellate fees in a separate appeal when the appellate fee award is not the only issue on appeal. See Specialty Rests. Corp. v. Elliott, 924 So.2d 834, 838 (Fla. 2d DCA 2005); Starcher v. Starcher, 430 So.2d 991, 993 (Fla. 4th DCA 1983). However, this procedure is not favored and was adopted in the Starcher case only with “careful limitation” because the dissolution appeal presented significant issues other than the appellate fee award.

Accordingly, upon Gould & Lamb’s motion, this court dismissed that portion of case number 2D09-149 seeking review of the order on appellate fees and transferred it to this case to be considered as if the proper procedure for review had been invoked. See Pellar, 687 So.2d at 284. In doing so, we considered the motion filed as of the date of the notice of appeal in 2D09-149 but questioned whether the motion should be dismissed as untimely. Our concern was whether the filing of a motion for rehearing directed to an order on appellate attorneys’ fees is an authorized motion that can delay rendition under rule 9.020(h), which applies only to final orders of the lower tribunal. We have concluded that the order on appellate fees is essentially a final order for which a motion for rehearing can suspend rendition.

As Judge Padovano observed in Pellar, an order on appellate attorneys’ fees “has the characteristics of a final order” even though it is not “necessary or even proper” to file a notice of appeal for review. 687 So.2d at 284. Such orders appear to come within the category of post-decretal orders described by the supreme court in Clearwater Federal Savings & Loan Ass’n v. Sampson, 336 So.2d 78, 79 (Fla.1976): orders that “complete[ ] the judicial labor on that portion of the cause after judgment.” And the order on review could have been reduced to a judgment for which execution could immediately issue, although the trial court did not use such words of finality in its order. Because an order on appellate fees “constitutes a final and distinct adjudication of rights which have not been adjudicated in the original final judgment,” id., we hold that a timely motion for rehearing is authorized to suspend rendition of the order. Thus D’Alusio’s motion for review, considered to have been filed at the time that the notice of appeal was filed in 2D09-119, was timely.

The Trial Court Abused Its Discretion in Awarding Appellate Attorneys’ Fees in an Amount without Any Eviden-tiary Basis

The circuit judge who presided over the hearing on both trial-level and appellate-level fees was not the same judge who had presided at the original trial. Most of the hearing was devoted to the trial-level fees. The appellate-level fee discussion was brief and uncontroversial.

D’Alusio’s attorney testified and presented expert testimony on the number of hours expended for the appeal and a reasonable rate for the work. D’Alusio’s senior attorneys spent approximately 100 hours on the appeal, and associates had expended another 28.6 hours. Although, according to D’Alusio’s expert, a typical single-issue appeal might require only 30 hours of attorney time, this case presented a unique situation in that the Second District’s case law was contrary to that of all the other districts. Furthermore, even though D’Alusio had retained attorneys from both New Orleans and Florida, the expert was careful to exclude duplicate time. Ultimately, D’Alusio’s expert testified that a reasonable number of hours for senior attorney time to do research, prepare briefs, and pursue the entry of an order after Gould & Lamb made concessions was 70.1 and that a rate of $800 per hour was reasonable based upon rates of $275 to $450 typically charged by appellate attorneys in Tampa. The expert also reduced the associate hours to 14.1 at a rate of $165 per hour. Based upon these figures, the expert concluded that the total reasonable attorneys’ fee for the appeal would be $23,520.

Gould & Lamb then presented its expert, who testified at the outset that he “didn’t really have any dispute about what their expert said” concerning this single issue appeal relating to entitlement to attorney’s fees with the minor exception that he opined that a reasonable fee for a lawyer in the Twelfth Judicial Circuit to pursue an appeal of this nature would be $275 per hour. He concluded that a figure of $22,000 was a reasonable fee for the appellate work. And in closing argument, Gould & Lamb’s attorney reiterated that there was no real dispute about the amount of fees: “20 to 25 [thousand] for the appeal.”

Contrary to this evidence and argument, the circuit judge found that “25 hours is a reasonable amount to have expended on the appeal and that an hourly rate of $275.00 is reasonable,” which yielded a fee of $6875, an amount less than one-third of the fee proposed by either expert witness. In rendering this fee order, the court did not address any associate time, reduced the number of hours from approximately 85 to 25, and awarded the lowest rate that had been described as typical in the Tampa area for appellate work.

An appellate court reviews an order on appellate attorneys’ fees under an abuse of discretion standard. DiStefano Constr., Inc. v. Fid. & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992). The court will find an abuse of discretion in setting an attorneys’ fee award if the trial court has not identified with precision the reasonable hourly rate and the number of hours reasonably expended on the matter. See, e.g., Highlands Carpentry Serv., Inc. v. Connone, 873 So.2d 611, 613 (Fla. 2d DCA 2004). “[A]n appellate court has a greater ability to review the reasonableness of an appellate attorney’s fee award than an award for trial court work because the legal work was done in the appellate court.” Hoegh v. Estate of Johnson, 985 So.2d 1185, 1187 (Fla. 5th DCA 2008) (citing Pellar, 687 So.2d at 285). When reviewing an order on appellate attorneys’ fees, appellate judges are “not required to abandon what [they] learned as lawyers or [their] common sense in evaluating the reasonableness of an award.” Trumbull Ins. Co. v. Wolentarski, 2 So.3d 1050, 1057 (Fla. 3d DCA 2009).

We find that the circuit court abused its discretion in drastically reducing the number of hours that was reasonable for this appeal, in contravention of the amount agreed to by both experts, without any specific findings. Although the judge was not bound by the expert opinions or attorney affidavits in setting the award, the record is totally devoid of any evidence to support a conclusion that the award was reasonable.

This appeal concerned the proper interpretation of amended rule 1.525. D’Alusio divided his initial brief into three issues: first, he argued that the amended rule prescribes a deadline for the filing of the motion no later than 30 days after judgment is entered but does not bar an earlier filed motion as premature; second, he proposed that the court should certify conflict with the other districts or await the outcome of the Barco decision by the supreme court; and third, he contended that Gould & Lamb’s attorneys essentially blindsided him by remaining silent and not objecting until well over a year after the motion was filed. Under the circumstances, these were all reasonable arguments, set out in a coherent initial brief. Gould & Lamb vigorously argued in its answer brief that the amendment to the rule was not intended to correct the language that informed this court’s earlier, pre-amendment decisions on when the motion must be filed. By the time D’Alusio filed his reply brief, the supreme court had decided Barco, and he correctly argued that this court must reverse and remand based on this new precedent. Our review of the briefs, records, and applicable case law in this appeal, as well as our common sense understanding of the costs of appellate practice, convinces us that the circuit court’s appellate fee award was clearly inadequate and unsupported by any evidence. As Gould & Lamb conceded at the hearing, a reasonable appellate fee award in this case is $22,000, and we disapprove the trial court’s order and remand for entry of an order granting fees to D’Alusio in that amount.

The reasonableness of our decision is confirmed by the Fifth District’s recent opinion in Hoegh, 985 So.2d at 1187, which reviewed an award of $37,125 in appellate fees to the appellee when the appellant raised no justiciable issue of law on appeal. No oral argument was held, and the appellee was required to argue only that competent, substantial evidence supported the verdict. The Fifth District found no error in setting $275 per hour as the reasonable rate but held that it was an abuse of discretion to find that more than 80 hours of attorney time was reasonable. Accordingly, the Fifth District reversed and remanded for entry of an order to the appellee in the amount of $22,000. Id. In contrast, D’Alusio’s attorneys, representing the appellant, were required to expend much more time than did the appellee’s attorneys in Hoegh, suggesting that an award of at least $22,000 is reasonable in this case.

Failure to Award Expert Witness Fees as Costs Was Error

We also disapprove the omission in the circuit court’s order of any finding that D’Alusio was entitled to a cost award for his expert witness’s fees. A party who seeks an award of appellate attorneys’ fees must present expert testimony concerning the reasonable time and hourly rate or the resulting order will be overturned as an abuse of discretion. See Snow v. Harlan Bakeries, Inc., 932 So.2d 411, 412 (Fla. 2d DCA 2006). D’Alusio’s expert testified that he spent approximately 10.5 hours preparing for and testifying at the hearing, that he charges a rate of $225 per hour, and that he expected to be paid for his work. Our court has held that “[ejxpert witness fees paid to the testifying expert are not discretionary if the attorney expects to be compensated for his testimony.” Rock v. Prairie Bldg. Solutions, Inc., 854 So.2d 722, 724 (Fla. 2d DCA 2003) (citing Stokus v. Phillips, 651 So.2d 1244 (Fla. 2d DCA 1995)). On remand, the circuit court shall tax D’Alusio’s expert’s fee of $2362.50 as a cost to Gould & Lamb.

Order disapproved; remanded with instructions.

KELLY and CRENSHAW, JJ., Concur.


author: CIKLIN, J.

text:
    Leroy SINGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2171.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2010.
    Rehearing Denied July 9, 2010.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

The appellant, Leroy Singh, appeals from his conviction of second degree murder with a firearm for the death of Kevin Padmore. We are called upon to decide whether the trial court gave an erroneous jury instruction on the lesser included offense of manslaughter by requiring the same intent element of the greater offense of second degree murder. Additionally, we must determine whether the lower court erred in not permitting two defense witnesses to testify. We affirm, finding that the jury instruction was not fundamentally erroneous because it allowed the jury to find manslaughter by culpable negligence rather than an intent to kill. We also find that the proffered evidence of the two witnesses could not have properly added to Singh’s theory of self-defense.

Singh was initially charged along with co-defendant Donald Budhai with first degree murder. Before trial, Budhai entered into a plea agreement and was deported.

The evidence at trial described a shooting at an apartment where five friends were gathered. Around four to five o’clock in the afternoon, Singh arrived at the apartment and had a confrontation with Padmore, with whom he previously had a friendship. Singh then left without incident. Twenty minutes to a half-hour later, Singh returned with two companions and again confronted Padmore. Padmore decided to walk away and turned back into the apartment when Singh pulled out a gun from his waist area and started shooting. Padmore was struck in the back with a bullet and later died. Three individuals who were at the scene witnessed Singh pull out a gun and start shooting. Two witnesses stated that they had observed Singh in possession of a gun prior to the shooting and one witness, who was with Padmore all day, testified that Padmore did not have a gun. When Singh was taken into custody, he admitted that he shot Padmore but did it because Padmore “was reaching for his gun.”

At trial, defense counsel sought to present the testimony of Singh’s father and uncle who themselves were involved in confrontations with Padmore. After a proffer, the trial court disallowed the testimony, finding that there was no evidence to suggest that Singh was aware of these confrontations in order to be relevant to his theory of self-defense.

The jury returned a verdict for the lesser included offense of second degree murder with a firearm. The jury also made the specific finding that appellant possessed and discharged a firearm and that, as a result of discharging the firearm in his possession, he caused the death of Kevin Padmore.

Jury Instructions

Singh argues that the jury instruction on the lesser included offense of manslaughter was fundamentally erroneous because it required the finding of an intent to kill, thereby precluding the jury from choosing between two possible verdicts: second degree murder or manslaughter.

The following jury instruction was given to the jury on manslaughter, in relevant part:

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt:
One. Kevin Padmore is dead.
Two. Leroy Singh intentionally caused the death of Kevin Padmore or the death of Kevin Padmore was caused by the culpable negligence of Leroy Singh.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.
I will now define culpable negligence for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intent to harm, that violation is negligence.
But culpable negligence is more than a failure to use ordinary care toward others.
In order for negligence to be culpable, it must be gross and flagrant.
Culpable negligence is a course of conduct showing reckless disregard for human life, or of the safety of persons exposed to it’s dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others.
Culpable negligence is consciously doing an act or following a course of eon-duct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

Fla. Std. Jury Instr. (Grim.) 7.7. (2007).

Recently in State v. Montgomery, No. SC09-332, — So.3d -, -, 2010 WL 1372701, *1 (Fla. Apr. 8, 2010), the Florida Supreme Court found that “the crime of manslaughter by act does not require the State to prove that the defendant intended to kill the victim.” Therefore, “the use of the standard jury instruction on manslaughter, which required that the State prove the defendant’s intent to kill the victim, constituted fundamental error.” Id. In Montgomery, the trial court instructed the jury that the State had to prove “two things: The first being again that [the victim] is dead and, secondly, that Mr. Montgomery intentionally caused her death ... it is not necessary for the state to prove that the defendant had a premeditated design to cause death.” Montgomery v. State, — So.3d-,-(Fla. 1st DCA 2009). This instruction imposed “a more stringent finding of intent upon manslaughter than upon second-degree murder,” even though “manslaughter is just one step removed from second-degree murder.” — So.3d at -, -. See also Hankerson v. State, 831 So.2d 235, 237 (Fla. 1st DCA 2002) (“The addition of an element regarding a lesser included offense [in a jury instruction] ... taints the underlying fairness of the entire pro-eeeding” and constitutes fundamental error.).

Like the defendant in Montgomery, Singh was convicted of second degree murder and the jury was instructed on manslaughter. Unlike Montgomery, the instruction given by the trial court allowed the jury two options in finding the second element of manslaughter by act; either that appellant “intentionally caused the death” or the death “was caused by the culpable negligence” of appellant. The court in Salonko v. State, No. 1D08-4879, — So.3d -, -, 2010 WL 480844, *2 (Fla. 1st DCA Feb. 12, 2010), found this extra instruction to be enough to distinguish the case from Montgomery, explaining that the fundamental error in Montgomery “does not exist when the trial court gives an instruction on manslaughter by culpable negligence.” “Although the jury found, by its second-degree murder verdict, that Appellant did not intend to kill the victim, based on the instructions given, it could have returned a verdict for the lesser-included offense of manslaughter by culpable negligence while still honoring its finding that there was no intent to kill.” Id. See also Nieves v. State, 22 So.3d 691, 692 (Fla. 2d DCA 2009) (“Furthermore, unlike Montgomery and Zeigler, the jury in Nieves’ case was also instructed on the lesser-included offense of manslaughter by culpable negligence.”).

The instruction given by the trial court did not constitute error.

Testimony of Two Defense Witnesses

Singh asserts that the testimony of his father and uncle should have been admitted because it was proof of Padmore’s aggressive and threatening manner toward him. This testimony, Singh argues, would have supported his theory of self-defense.

The proposed testimony involved an alleged incident where the victim, Padmore, came to the outside of Singh’s house and confronted Singh’s father and uncle in a manner that was “rude, threatening and aggressive.” After the testimony was proffered, the trial court recognized and specifically found that neither witness could positively state that Singh himself had heard or saw what happened.

Courts give wide latitude in allowing evidence to support a theory of self-defense. See Nelson v. State, 739 So.2d 1177, 1178 (Fla. 4th DCA 1999) (‘“[I]f there is the slightest evidence of an overt act by the victim which may be reasonably regarded as placing the defendant in imminent danger, all doubts as to the admission of self-defense evidence must be resolved in favor of the accused.’” (citation omitted)); Borders v. State, 433 So.2d 1325, 1326 (Fla. 3d DCA 1983) (“In a homicide prosecution a defendant should be permitted the widest of latitude when introducing evidence in support of a self-defense theory.”). Evidence of past threats could support a reasonable fear of Padmore at the time of the incident. See Johnson v. State, 718 So.2d 848, 849 (Fla. 5th DCA 1998) (“In establishing self-defense, evidence either of the victim’s reputation for violence or of specific prior acts of violence is admissible to prove the victim’s dangerous character when the defendant knew of the victim’s violent acts or of his violent reputation at the time the alleged offense occurred.”). However, “[s]uch evidence is admissible only if the defendant knew of the violent acts or reputation because it may ‘reveal the reasonableness of the defendant’s apprehension at the time of the incident. ” Id. (citation omitted). “Testimony of persons other than the defendant regarding the victim’s specific acts of violence is not relevant because ‘it sheds no light on the defendant’s state of mind; it shows only that the victim had a propensity for violence.’ ” Id. (citation omitted). There was no evidence that Singh was aware of the incident described by his father and uncle.

While Singh did testify to a previous incident with Padmore, there was no evidence linking that incident with the one described by the two witnesses.

Accordingly, we find no reversible error and affirm.

Affirmed.

GERBER, J., and COX, JACK S„ Associate Judge, concur.

      . Since Singh’s trial, the Florida Supreme Court has added additional language to clarify that the requisite intent for manslaughter by act is intent to commit an act that caused the death of the victim and not an intent to kill the victim. In re Standard Jury Instructions in Criminal Cases — Report No. 2007-10, 997 So.2d 403 (Fla.2008).


text:
    Henry TORRES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-114.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Henry Torres, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Sanchez v. State, 683 So.2d 606 (Fla. 3d DCA 1996); Jenkins v. State, 615 So.2d 754 (Fla. 3d DCA 1993).


author: SUAREZ, J.

text:
    Carlos G. FIGUEROA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-341.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Carlos G. Figueroa, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, LAGOA, JJ.
   SUAREZ, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to conclusively refute the defendant’s claim that he is owed 2,460 days of credit for time served in prison on the original incar-cerative portion of his sentence, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts that conclusively refute the defendant’s claim that he is owed 2,460 days of credit for time served.

Reversed and remanded for further proceedings.


text:
    Julio CURI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-586.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Julio Curi, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

Julio Curi appeals from an order denying his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. Because burglary of an unoccupied dwelling is a “forcible felony,” for which defendant could be sentenced as a violent career criminal, we affirm. § 775.084(l)(d)(a), Fla. Stat. (2003); § 776.08, Fla. Stat. (2003); Ubilla v. State, 8 So.3d 1200 (Fla. 3d DCA 2009), and cases cited therein.

Affirmed.


author: CORTINAS, J.

text:
    Gregory THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2401.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.

      Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, J.

Gerzon Ferrales (the “Victim”) was unloading luggage after arriving from Tampa with his wife, his mother, and his mother’s husband when he was approached by the defendant, Gregory Thomas (“Thomas”). Thomas approached the Victim and his family under the pretext of selling them a CD player. When they declined to purchase, Thomas snatched a purse from the shoulder of the Victim’s mother. In addition to personal items belonging to the Victim’s mother, the purse also contained $460 that the Victim had given to his mother. Thomas attempted to flee the scene in a getaway car driven by another individual. The Victim attempted to prevent the taking by grabbing on to the passenger side door of the vehicle as it took off.

As the vehicle sped away, Thomas forcibly attempted to knock the Victim from the side of the car. At one point, the driver stopped and apparently exited the car, but he quickly re-entered and resumed driving after he noticed approaching witnesses. Throughout these events, the Victim continued to resist the taking by holding on to the car door. After several minutes, the car arrived at a padlocked gate at the Opa-locka airport. The car slowed down, then sped through the gate and at least one more fence at the airport. The force of these impacts peeled the Victim off the car door. The Victim suffered several broken bones, lacerations, and bruises and died later at the hospital as a result of blunt force trauma to the head and neck. The car was found abandoned not far from the airport, along with the purse.

Thomas was tried on charges of first degree felony murder, robbery by sudden snatching, and grand theft auto. At trial, Thomas moved for a judgment of acquittal on the count of first degree felony murder after the State rested. Thomas argued that there was insufficient evidence to establish the predicate felony of robbery. The motion was denied, and the jury ultimately found Thomas guilty of first degree felony murder, robbery by snatching, and grand theft auto. Thomas appeals the denial of his motion for acquittal.

We review the denial of the motion for judgment of acquittal de novo. Troy v. State, 948 So.2d 635, 645-46 (2007); Johnston v. State, 863 So.2d 271, 283-84 (Fla.2003); Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Generally, a conviction supported by substantial competent evidence will not be reversed by an appellate court. See Pagan, 830 So.2d at 803. Sufficient competent evidence exists to sustain a conviction “[i]f, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt....” Id.

The elements of the crime of robbery are set forth in section 812.13, Florida Statutes. Prior to 1987, Florida law “interpreted section 812.13 as being consistent with the common law ... [and required that] ‘[t]he violence or intimidation [associated with robbery] must precede or be contemporaneous with the taking of the property.’ ” Royal v. State, 490 So.2d 44, 46 (Fla.1986) (quoting Montsdoca v. State, 84 Fla. 82, 93 So. 157, 159 (1922)). Before being amended by the legislature, section 812.13 defined “robbery” as follows:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.

Effective October 1, 1987, however, the robbery statute was amended by the inclusion of the phrase “when in the course of the taking” in subsection 812.13(1) and the addition of section 812.13(3)(b). See Ch. 87-315, ■§ 1, Laws of Fla.; §§ 812.13(1), (3)(b), Florida Statutes (1987).

The version of the statute applicable to this case, inclusive of the 1987 amendment, reads as follows:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(3)(a) An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.
(b) An act shall be deemed “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.

§ 812.13, Fla. Stat. (2004) (emphasis added). By amending the statute, the legislature essentially expanded the definition of robbery to include acts occurring after the taking, provided that such acts and the taking are part of a “continuous series of acts or events.” Following the 1987 amendment, the “force, violence, assault, or putting in fear” no longer has to be exerted against the person from whom the property was taken, so long as it was exerted in the course of the taking. See Santilli v. State, 570 So.2d 400, 402 (Fla. 5th DCA 1990) (“[T]he continuity of [the shoplifter’s] progression from the store to his forceful act against the [pursuing] officer with his car outside the store justified submission of the robbery offense to the jury.”); Rumph v. State, 544 So.2d 1150, 1151-52 (Fla. 5th DCA 1989) (“[A shoplifter’s] use of force to shove [a store employee] out of his way and into the door as he fled with [stolen property] constitutes the use of force in flight after the taking and provides the evidence to sustain [the shoplifter’s] conviction for robbery.”)

In order to prove robbery in the case before us, the State was required to demonstrate that there was a “taking of money or other property ... from the person or custody of another” and that “in the course of the taking, there [was] the use of force, violence, assault, or putting in fear.” See § 812.13, Fla. Stat. (2004). These statutory requirements were satisfied because 1) there was a taking of money from the person of the Victim’s mother; 2) there was a use of force, violence, assault, or putting in fear by both Thomas and the driver against the Victim; 3) the exertion of such use of force was subsequent to the taking, while the victim was attempting to retrieve the stolen money; and 4) the taking and the use of force while fleeing the crime scene comprised a continuous series of acts, rendering the use of force “in the course of the taking.” See id.; Santilli, 570 So.2d at 401-02. We further clarify that there need not be any legal relationship (i.e., mother-son or employer-employee) between the person from whom the property is taken and the person against whom the force, violence, assault, or putting in fear is exerted, provided that the taking and the use of force comprise a continuous series of acts or events. See Santilli, 570 So.2d 400; Rumph, 544 So.2d 1150.

Thomas’ reliance upon Gaiter v. State, 824 So.2d 956 (Fla. 3d DCA 2002), is misplaced. Gaiter is entirely distinguishable from the case before us as it involved a landlord who confronted a would-be thief attempting to steal, from the landlord’s premises, a bicycle belonging to the landlord’s tenant. Unlike the instant case, no evidence was presented in Gaiter to demonstrate that anything was taken from the person of another or that the landlord had custody of the bicycle when it was taken. Thomas places particular reliance on the statement in Gaiter that “[o]ne of the essential elements of robbery is that the person who is placed in fear or assaulted must either own or have custody of the property being taken.” Id. at 957. When read in context, it is evident that this statement is dicta, and we are neither bound nor persuaded by it.

Based upon the foregoing, there is substantial competent evidence to support the conviction of felony murder and the finding of the elements of the predicate felony of robbery by the jury. Accordingly, we affirm.

Affirmed.

      . During his interview after he was taken into custody, Thomas admitted that he had stolen the getaway car a short time before the incident involving the Victim, but he also stated that the car was later stolen from him by someone else. Thomas maintained that he was not involved in the incident that caused the Victim’s death.

      . Section 812.13 was again later amended in 1992. However, the 1992 amendment is not pertinent to our analysis.

      . Witness testimony demonstrates that Thomas forcibly attempted to remove the Victim from the car door as the car sped away.


text:
    Walter H. CARY, III, and Roxane L. Cary, Appellants, v. CLAY COUNTY SHERIFF’S OFFICE and Clay County, Florida, Appellees.
    No. 1D09-5665.
    District Court of Appeal of Florida, First District.
    June 2, 2010.
    Walter H. Cary, III, and Roxane L. Cary, pro se, Appellants.
    John W. Jolly, Jr., Tallahassee, for Ap-pellees.
   PER CURIAM.

DISMISSED. Blackstock v. Blackstock, 776 So.2d 359 (Fla. 1st DCA 2001); Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

WOLF, BENTON, and PADOVANO, JJ., concur.


text:
    Bryant WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2274.
    District Court of Appeal of Florida, Third District.
    June 2, 2010.
    Rehearing Denied June 25, 2010.
    Bryant Williams, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before GERSTEN and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Harris v. State, 30 So.3d 674 (Fla. 3d DCA 2010).


text:
    Adam B. GOODEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2060.
    District Court of Appeal of Florida, First District.
    June 2, 2010.
    Adam B. Gooden, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Turner v. State, 557 So.2d 939 (Fla. 5th DCA 1990).

WOLF, BENTON, and PADOVANO, JJ., concur.


text:
    J.R.W., III, a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-219.
    District Court of Appeal of Florida, First District.
    June 3, 2010.
    Nancy A. Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See A.L.B. v. State, 23 So.Bd 190 (Fla. 1st DCA 2009).

PADOVANO, THOMAS, and CLARK, JJ., concur.


author: COHEN, J.

text:
    S.K.D., Appellant, v. J.P.D., Appellee.
    No. 5D08-3611.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2010.

      Hal Vogel, Aventura, for Appellant.
    Jason M. Gordon, Cocoa Beach, for Ap-pellee.
   COHEN, J.

We reverse the trial court’s order striking Appellant’s, S.K.D., motion for relief from judgment, filed pursuant to Florida Rule of Civil Procedure 1.540, because the trial court erroneously concluded that this court had already decided the issues raised therein, and therefore was bound by law of the case. We have jurisdiction and deem both the appeal and rule 1.540 motion timely. S.K.D. raises four issues, only one of which merits discussion.

The parties exhaustively litigated the dissolution of their marriage and the dependency adjudication of their children, which were consolidated for trial. The Department of Children and Families’ (“DCF”) dependency petition alleged that the parties’ infant and two-year-old child were subject to abuse, abandonment, and neglect due to Appellant’s severe alcohol and prescription drug abuse, which resulted in her confinements under the Baker and Marchman Acts. Ultimately, the trial court entered final judgments dissolving the marriage, equitably distributing the marital property, granting sole parental authority and primary physical residence to Appellee, and terminating jurisdiction and supervision in the dependency matter.

After noticing her appeal of the trial court’s final judgments, Appellant learned that, while the dependency case was pending, Appellee engaged in a personal relationship with the Program Director of DCF for Brevard County, who was involved in their case. DCF’s Office of Inspector General found the allegations were supported. Appellant then filed the instant rule 1.540 motion asking the trial court to relieve her from all orders and judgments in the consolidated cases due to fraud, misrepresentation, mistake, inadvertence, and newly discovered evidence, which demonstrated DCF violated her rights and failed to perform its responsibilities and duties to reunite her with her children. The allegations did not relate facts germane to the dissolution proceeding. Appellant unsuccessfully motioned this court to relinquish jurisdiction to allow the trial court to consider her rule 1.540 motion.

Following this court’s per curiam affirmance of the trial court’s judgments, Appellant sought a hearing on her rule 1.540 motion. Appellee responded with a motion to strike. After a hearing, the trial court granted the motion to strike, concluding that this court decided the issues raised in Appellant’s motion, and therefore it was precluded by law of the case from revisiting these issues. “The doctrine of the law of the case [applies] to issues actually considered and decided by a former appeal involving the same case.” Analyte Diagnostics, Inc. v. D’Angelo, 792 So.2d 1271, 1272 (Fla. 4th DCA 2001). Analyte Diagnostics demonstrates why this doctrine is inapplicable in this case.

In Analyte Diagnostics, during the pen-dency of an appeal, the appellants filed a rule 1.540 motion based on new facts suggesting fraud on the trial court by one of the appellees. The appellants unsuccessfully sought relinquishment of the appellate court’s jurisdiction to allow the trial court to rule on their rule 1.540 motion, and their appeal was denied when the court later affirmed the trial court’s judgment. Subsequently, they raised the rule 1.540 motion in the trial court, which denied relief based on law of the case because the appellate court declined to relinquish jurisdiction and the issue was raised in their briefs. The Fourth District reversed, concluding that the issue, neither considered nor ruled upon below, was not properly before it. Id. at 1272. Further, it determined that it was apparent that the merits of the rule 1.540 motion to vacate were never considered in the first appeal. Therefore, the per curiam affirmance of the final judgment did not bar the trial court’s consideration of the rule 1.540 motion. Id.

Appellee attempts to distinguish Analyte Diagnostics by asserting that this court considered Appellant’s rule 1.540 motion because it was attached to her motion to relinquish jurisdiction which this court denied. However, the attachment of a motion, never before considered or ruled upon by the trial court, to a motion to relinquish jurisdiction does not properly present an issue to this court. Id. Further, “[t]he denial of a motion to relinquish jurisdiction cannot be considered a decision on the merits of the claim for which relinquishment is sought.” Id.

We also reject Appellee’s contention that the trial court addressed the rule 1.540 motion when it denied Appellant’s motion to reconsider and stated: “The court having reviewed said Motion and being otherwise advised in the premises.It is not apparent from the trial court’s language that it was speaking about any motion other than Appellee’s motion to strike. Further, the order did not include any language susceptible of an interpretation that it considered the merits of Appellant’s rule 1.540 motion. Accordingly, we reverse the order striking Appellant’s rule 1.540 motion and remand for the trial court to consider the merits of her motion.

The trial court, when exercising its discretion in considering a motion for new trial, must consider the parameters expressed in E.I. DuPont De Nemours v. Native Hammock Nursery, Inc., 698 So.2d 267, 269 (Fla. 3d DCA 1997): “Would the new evidence probably change the result if a new trial is granted? Has it been discovered since the trial? Could it have been discovered before the trial by the exercise of due diligence? Is it material to the issues? Is it merely cumulative or impeaching?” Material evidence is described as that “which is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case.” City of Winter Haven v. Tuttle/White Constructors, Inc., 370 So.2d 829, 831-32 (Fla. 2d DCA 1979).

The trial court should also consider that a motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege “colorable entitlement” to relief. Smith v. Smith, 903 So.2d 1044, 1045 (Fla. 5th DCA 2005). We express no opinion as to whether any colorable entitlement is shown, whether the evidence is merely impeaching, or if it would probably change the result.

REVERSED and REMANDED.

SAWAYA and EVANDER, JJ., concur.

      . Fla. R.App. P. 9.130(a)(5).

      . Appellant filed her Florida Rule of Civil Procedure 1.540 motion within one year of the trial court's entry on July 6, 2005, of the order denying her timely motions for rehearing of the final judgments.

      . This court affirmed per curiam the final judgments. S.K.D. v. Dep’t of Children & Families, 974 So.2d 402 (Fla. 5th DCA 2008) (table).