author: ALTENBERND, Judge.

text:
    Deborah Lynn ARMSTRONG, Appellant, v. Janice M. ARMSTRONG, Appellee.
    No. 2D09-2781.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.

      Alan F. Wagner of Wagner, Vaughan & McLaughlin, P.A., Tampa; and James C. Crawford of Sears Crawford, L.L.P., Houston, TX, for Appellant.
    Virginia R. Vetter, Tampa; and Dominie J. Baccarella of Baccarella & Baccarella, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

Deborah Lynn Armstrong (Deborah) appeals an order denying her motion to intervene in the closed dissolution proceeding between Janice M. Armstrong (Janice) and Adger Armstrong. Although some legal confusion exists concerning the respective rights of Deborah and Janice to Mr. Armstrong’s retirement plan, we conclude that a motion to intervene in a closed divorce proceeding was not the correct method to resolve this dispute. The trial court should have dismissed or stricken Deborah’s motion, as requested by Janice, rather than treat it as a motion to modify child support. Accordingly, we reverse the order on appeal and remand for entry of an order of dismissal without prejudice to Deborah’s rights to file an appropriate proceeding to resolve the confusion.

Adger Armstrong played football in the National Football League for approximately six years in the early 1980s. He began his career in Texas and ended it in Florida. As a player, he participated in the Bert Belle/Pete Rozelle NFL Player Retirement Plan. That plan is managed by a plan administrator in Baltimore, Maryland. The details of the plan and the monetary value of Mr. Armstrong’s participation in the plan are not revealed by the record in this case.

Mr. Armstrong married Deborah in 1977. They divorced in Texas in 1986. Mr. Armstrong was properly served in that divorce but did not otherwise participate in the proceeding. In the final decree of divorce entered in Texas, provisions were made for the custody and support of a child who is now an adult. Deborah apparently received no form of permanent alimony. The decree divided the marital estate between the two parties. Deborah received:

One-half (1/2) of any and all sums as of May 1, 1986[,] whether unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, pension plan, severence [sic] pay account, employee stock option plan, employee savings plan, accrued unpaid bonuses, or other benefit program existing by reason of ADGER ARMSTRONG’S past, present, or future employment, specifically but not limited to the severence [sic] pay account ADGER ARMSTRONG will be entitled to upon retirement from the National Football League.

In 1986, Mr. Armstrong married Janice. They had four children during this marriage and divorced in Tampa, Florida, in 2002. Mr. Armstrong again did not actively participate in the dissolution proceeding. Because he did not participate, it appears that Janice, her attorney, and the court were all unaware of the earlier Texas judgment that awarded half of the retirement plan to Deborah.

The amended final judgment of dissolution entered on October 10, 2002, in the Florida proceeding, found that Mr. Armstrong had abandoned his family. It awarded custody of the four children to Janice. Since it was unlikely that Mr. Armstrong would pay child support after having abandoned his family, the final judgment recites in paragraph 9:

That the Respondent is the beneficiary of a National Football Player Benefits, a/k/a Bert/Bell/Pete Rozelle NFL Player Retirement Plan, and that said Benefits can be used to pay child support for the children for past support commencing on June 28, 1999, until the youngest child becomes eighteen (18) years of age or until nineteen (19) years of age if the child is still attending high school full time.

At the conclusion of the final judgment it orders:

That Petitioner and the minor children are entitled to Respondent’s National Football Player Benefits, a/k/a Bert/ Bell/Pete Rozelle NFL Player Retirement Plan, showing an arrearage of $25,800.00 from July 1, 1999 through October 1, 2002, future payments of $645.00 per month commencing November 1, 2002 until May 8, 2017 when the youngest child reaches the age of 18 or 19 if still in high school as a full time student $112,280.00, for a total child support amount of $138,030.00.

Janice’s attorney prepared a Qualified Domestic Relations Order (QDRO) that was entered on October 28, 2002. Because Deborah’s attorney died shortly after entry of the Texas decree in Texas, he had never prepared Deborah’s QDRO. A different attorney prepared a QDRO for Deborah in February 2003, which was executed by a Texas judge and signed by both Deborah and Adger Armstrong to indicate their approval and consent to both the form and content of the QDRO. Although the timing of this order suggests that it may have been prepared in response to the QDRO entered in Florida, our record does not explain the timing of this order.

This court does not have jurisdiction over the NFL Player Retirement Plan. We have little knowledge as to the correspondence or other communications between the two former wives of Mr. Armstrong and the plan administrator. The record contains a letter dated January 13, 2009, from an attorney representing the Plan, indicating that the Plan would begin paying Janice’s claim in February 2009 unless the plan administrator received a court order “directing otherwise.”

On January 16, 2009, Deborah filed a motion to intervene in Janice’s Florida dissolution action asking the Florida court to enforce the Texas QDRO and modify that Florida QDRO. In May 2009, Mr. Armstrong signed a “joinder in motion” and filed an affidavit stating that he wants Deborah to receive her 50 percent of the retirement benefits and that he does not wish to modify in any fashion his child support obligation to the children of his marriage to Janice. These documents are the full extent of his participation in these proceedings.

Janice’s trial counsel appeared in response to the motion to intervene and filed a motion to dismiss the intervenor’s motion. The motion to dismiss accurately-noted that the final judgment in the case had been entered seven years earlier in 2002. It argued that the intervenor was a “stranger” to the case and had no standing to seek relief by intervention in 2009.

The motion to dismiss was set for hearing on May 7, 2009. It is unclear from our record, but perhaps the motion to intervene was also noticed for this hearing. In any event, the hearing was somewhat disorganized, and Mr. Armstrong’s recent filing indicating that he did not wish to modify child support seems to have redirected the trial court’s view of the case. On May 11, 2009, the trial court denied the interve-nor’s motion and determined that this ruling rendered the motion to dismiss moot. The trial court concluded that Deborah’s motion was actually a motion to modify child support to Janice’s children and that Deborah had no authority to seek such a modification. Deborah appealed this ruling.

Although it is undoubtedly true that Deborah would have no authority to seek modification of child support to Janice’s children, we are not convinced that she ever intended to alter the amount of child support that had been awarded in the Florida case. Deborah actually argues that she owned 50 percent of the retirement plan before Janice became Mr. Armstrong’s lawful wife. As a result, she maintains that the Florida court never obtained any legal authority to award her 50 percent of the retirement plan to Janice as a method to pay child support. In essence, Deborah is arguing that the Florida court and the plan administrator are wrongfully using her assets to pay child support to Janice’s children.

Janice argues that rights to the Plan are not determined by the dates on the two final judgments in the divorce proceedings, but rather are determined either by the dates on the QDROs or by the time of filing of the QDRO with the plan administrator. She argues in terms of “perfecting” a claim to the retirement plan, much like one might perfect a secured interest under the Uniform Commercial Code. See §§ 679.S081-.3141, Fla. Stat. (2009).

It may come as no surprise that neither former wife has presented this court with a statute or precedent that squarely resolves the matter. While the filing of the QDRO with the plan administrator may affect the administrator’s response to the claim, we are at least initially impressed with Deborah’s argument that her claim to the retirement plan vis-á-vis a future wife was determined by her final decree in Texas. However, if Deborah’s argument is correct, she would appear to have no need to modify the Florida judgment or the Florida QDRO. Those orders simply distributed 100 percent of the retirement rights of Mr. Armstrong to Janice as those rights existed in 2002. In other words, the Florida judgment distributed 100 percent of his 50 percent claim to the plan.

We conclude that the reasoning in the trial court’s order, treating the motion to intervene as a motion to modify child support, was an error of law. On the other hand, we agree with Janice that the dissolution proceeding was completely concluded and that it did not present a lawsuit in which Deborah was free to intervene. See generally Lewis v. Turlington, 499 So.2d 905, 907 (Fla. 1st DCA 1986) (“The general rule is that after litigation has resulted in a final judgment third persons will not be allowed to intervene as parties to the litigation.”).

A Florida court must give full faith and credit to a valid Texas judgment, and a Texas court must honor a Florida judgment in the same manner. Nothing suggests that either of these judgments is void or improper. Somehow the two judgments need to be reconciled with one another in a court that has jurisdiction over both former wives, and in a proceeding that either binds the plan administrator or that presents a resolution that the plan administrator is willing to follow. It maybe that the parties could obtain a resolution if they cooperate in an action for declaratory relief. This court merely holds that a motion to intervene in the closed Florida divorce is not the correct procedure to reach the needed resolution. We require the trial court to dismiss the motion on remand so that it will be clear that the trial court did not reach and resolve the merits of this dispute.

Reversed and remanded.

KELLY and KHOUZAM, JJ„ Concur.

      . Most, if not all, of the value of this retirement plan would apparently have been a non-marital asset that Mr. Armstrong earned and brought into the second marriage because his career appears to have ended at approximately the same time that he married Janice.

      . As if this case were not already sufficiently' complex, the record suggests that Janice married Mr. Armstrong in Florida a few weeks before he obtained a divorce from Deborah in Texas.

      . Despite his apparent willingness to sit on the bench and watch this event from the sidelines, Mr. Armstrong may have an interest in these proceedings. Janice was not awarded 100 percent of his retirement as an asset, but merely as a source of payment for court-ordered child support. His youngest child turns eighteen in 2017. Depending on the amount of his vested interest in this retirement plan, there may come a time when he receives payments from the plan.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    John G. WILCOX, Appellant, v. Juana MUNOZ, Appellee.
    No. 2D08-5743.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.

      Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    Philip Averbuck, Highland City, for Ap-pellee.
   SILBERMAN, Judge.

John G. Wilcox, the Former Husband, seeks review of the trial court’s order granting his postjudgment petition to modify his child support obligation. The Former Husband raises four challenges to the court’s order below. Our review of this case is limited by the parties’ failure to arrange for a recording of the proceedings below. However, because the trial court failed to make findings regarding the parties’ incomes and ability to pay and erroneously ordered the parties to equally share child care expenses, we reverse.

The parties were divorced in 2005 in New Jersey. The final judgment of dissolution incorporated a marital settlement agreement in which the parties agreed that the Former Wife would have sole legal custody of the Former Wife’s nephew, whom the parties had adopted. The Former Wife waived any right she had to alimony in exchange for the Former Husband’s promise to pay child support of $276 weekly ($1186.80 monthly). This amount was calculated using the New Jersey child support guidelines based upon the Former Husband’s net weekly income of $1688 ($7258.40 monthly) as a composer. The Former Husband agreed to pay seventy percent of employment-related child care expenses for a live-in nanny. The Former Husband also agreed to pay seventy percent of any noncovered medical, dental, and prescription medication expenses for the child. These percentages reflected the Former Husband’s percentage share of the child support need.

The agreement recognized that the Former Husband was going to be unemployed in June 2005 and that such an event would constitute a substantial change in circumstances that might entitle him to have the child support award modified “taking into account all of the circumstances at that time.” As anticipated, the Former Husband subsequently filed a petition to modify his child support obligation and alleged that his income had substantially decreased.

The Former Husband submitted a financial affidavit that reflected a net monthly income of $1109. The Former Wife submitted a financial affidavit that reflected a net monthly income of $1939. The trial court thereafter entered an order finding that the Former Husband had “suffered a change in income” and decreasing the child support award from $1186.80 monthly to $754.27 monthly “[p]ursuant to the Child Support Guideline calculation.” The order made no findings regarding the parties’ incomes or their ability to pay and did not attach a child support guidelines worksheet. Additionally, the order required each party to equally share one-half of the child care expenses and any noncovered medical, dental, and prescription medication expenses.

The Former Husband filed a motion for rehearing in which he argued that the trial court had erred by (1) failing to make findings of fact regarding the parties’ incomes and miscalculating the child support award, (2) failing to add the child care expenses to the basic child support obligation, (3) failing to allocate the noncov-ered medical, dental, and prescription medication expenses on a percentage basis, and (4) ordering the first payment due May 1, 2008. The trial court denied the motion, and this appeal followed.

On appeal, the Former Husband re-argues the first three issues he raised in his motion for rehearing. Additionally, the Former Husband raises the new argument that the court erred in failing to make the new child support award retroactive to the date of filing. Because the parties failed to arrange for a recording of the hearing on the petition to modify, our review is limited to errors that occur on the face of the final judgment. Mobley v. Mobley, 18 So.3d 724, 725 (Fla. 2d DCA 2009); Soto v. Soto, 974 So.2d 403, 404 (Fla. 2d DCA 2007).

1. Findings of Fact

Section 61.30, Florida Statutes (2006), provides guidelines establishing the amount of child support to be awarded based on the parties’ combined net monthly incomes. If the award deviates from the guidelines by more than five percent, the final judgment must explain why the guidelines amount is unjust or inappropriate. § 61.30(l)(a). To calculate the award of child support, the court should add the net monthly incomes for both parties together and look to the statutory chart to determine the corresponding minimum child support need. § 61.30(5-6). The court then calculates each party’s percentage share of the child support need by dividing their net monthly income by the combined net monthly income. § 61.30(9). Each party’s actual dollar share is then calculated by multiplying the minimum child support need by the party’s percentage share. § 61.30(10).

It is well-settled that a trial court errs by failing to make findings of fact regarding the parties’ incomes when determining child support. See Guida v. Guida, 870 So.2d 222, 225 (Fla. 2d DCA 2004); Valdes v. Valdes, 6 So.3d 731, 732 (Fla. 1st DCA 2009); Todd v. Guillaume-Todd, 972 So.2d 1003, 1007 (Fla. 4th DCA 2008). This is because findings regarding the parties’ incomes are necessary for a determination of whether the support ordered departed from the guidelines and, if so, whether that departure was justified. Jones v. Jones, 636 So.2d 867, 867 (Fla. 4th DCA 1994). Thus, the failure to include findings regarding the parties’ incomes for purposes of child support calculations renders a final judgment facially erroneous, and the absence of a transcript does not preclude reversal on that basis. Guida, 870 So.2d at 225; Aguirre v. Aguirre, 985 So.2d 1203, 1207 (Fla. 4th DCA 2008); Todd, 972 So.2d at 1007.

We are mindful that, in cases involving equitable distribution and alimony, this court has held that the lack of a transcript precludes a party from establishing that any error in failing to make the required findings was harmful. See Esaw v. Esaw, 965 So.2d 1261, 1265 (Fla. 2d DCA 2007). In Esaw, the wife challenged the trial court’s failure to make specific factual findings in support of its alimony and equitable distribution awards, but the record did not contain a transcript of the dissolution proceedings. Id. at 1263. This court recognized that it was reversible error for a court to fail to include findings of fact in support of alimony and equitable distribution. Id. at 1263-64.

However, the court also recognized that it was the wife’s burden to demonstrate harmful error arising from those omissions. Id. at 1264. The court explained that, to establish harmful error, the wife was required to show that “ ‘it is reasonably probable that a result more favorable to the appellant would have been reached if the error had not been committed.’ ” Id. (quoting Fla. Inst. for Neurologic Rehab., Inc. v. Marshall, 943 So.2d 976, 979 (Fla. 2d DCA 2006)). The court concluded that the absence of the transcript precluded the wife from meeting this burden. Id. at 1265.

Esaw is distinguishable from this case for two reasons. First, the court in Esaw did not address the issue of the trial court’s failure to make findings required to support an award of child support. Simply put, child support is different than alimony or equitable distribution. “Child support ‘is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.’ ” Serio v. Serio, 830 So.2d 278, 280 (Fla. 2d DCA 2002) (quoting Armour v. Allen, 377 So.2d 798, 800 (Fla. 1st DCA 1979)). The right to child support belongs to the child, and it cannot be waived by parents. Id. We are thus disinclined to extend Esaw to cases involving child support awards.

Second, in this case, unlike in Esaw, the Former Husband makes specific allegations of harm arising from the absence of factual findings. This court’s ruling in Esaw turned on the wife’s failure to meet her burden of establishing harmful error due to the lack of a transcript. 965 So.2d at 1265. In analyzing the wife’s burden, this court noted that “the wife has made no attempt to show how the inadequacy of the findings constitutes harmful error.” Id. Thus, this court concluded, “Because the wife did not provide a transcript or appropriate substitute and did not demonstrate harmful error, we will not reverse the judgment on the basis of the wife’s claim that the findings are inadequate.” Id.

In this ease, however, the Former Husband makes a specific claim of harm resulting from the trial court’s failure to make findings regarding the parties’ incomes. The Former Husband claims that, based upon the parties’ incomes, the child support award is not supported by the child support guidelines. The Former Husband argues that the child support was improperly calculated as evidenced by the fact that the award is nearly seventy percent of his income as listed on his financial affidavit.

2. Child Care Expenses

The Former Husband argues that the trial court erred by ordering the parties to equally share the child care expenses. Section 61.30(7) provides, in pertinent part, as follows:

Child care costs incurred on behalf of the children due to employment, job search, or education calculated to result in employment or to enhance income of current employment of either parent shall be reduced by 25 percent and then shall be added to the basic obligation. After the adjusted child care costs are added to the basic obligation, any moneys prepaid by the noncustodial parent for child care costs for the child or children of this action shall be deducted from that noncustodial parent’s child support obligation for that child or those children.

The Former Husband correctly argues that the court should have included seventy-five percent of the child care expenses in the basic child support amount as required by section 61.30(7). See Calero v. Calero, 996 So.2d 244, 246 (Fla. 4th DCA 2008); Guard v. Guard, 993 So.2d 1086, 1091 (Fla. 5th DCA 2008). This error is apparent on the face of the record because the court instead ordered that the parents equally share child care expenses.

3. Noncovered Medical, Dental, and Prescription Medication Expenses

The Former Husband argues that the trial court failed to comply with section 61.30(8) in ordering the parties to equally share the child’s noncovered medical, dental, and prescription medication expenses. Section 61.80(8) provides, in pertinent part, as follows:

Health insurance costs resulting from coverage ordered pursuant to s. 61.13(l)(b), and any noncovered medical, dental, and prescription medication expenses of the child, shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis.

It is error for the court to equally divide the noncovered medical, dental, and prescription medication expenses when the court arrives at an unequal percentage share of child support. See Martinez v. Martinez, 911 So.2d 288, 289 (Fla. 2d DCA 2005); Salazar v. Salazar, 976 So.2d 1155, 1157 (Fla. 4th DCA 2008); Forrest v. Ron, 821 So.2d 1168, 1168 (Fla. 3d DCA 2002). We are unable to determine whether the court’s award of noncovered medical, dental, and prescription medication expenses was error because of the court’s failure to provide findings of fact regarding the parties’ incomes and the parties’ percentage share of the child support need. On remand, the court should review this award to ensure it reflects the parties’ percentage share of the child support need.

4. Retroactivity

The Former Husband argues that the trial court erred by failing to order modification of child support retroactive to the date of filing. A trial court abuses its discretion in refusing to modify child support retroactively to the date of filing the petition if the need for support and the ability to pay existed at the time of filing. See Martland v. Arabia, 987 So.2d 118, 120 (Fla. 4th DCA 2008); Bardin v. State, Dep’t of Revenue, 720 So.2d 609, 611 (Fla. 1st DCA 1998). However, the Former Husband cannot establish error because the record does not reflect that he actually established need and ability to pay retroactive to the date of filing the petition. Also, the record does not reflect that he requested that the award be retroactive. See Esaw, 965 So.2d at 1265. The Former Husband’s petition for modification does not contain such a request, the record does not contain a transcript of the hearing on the petition, and the Former Husband did not argue for retroactivity in his motion for rehearing. Thus, we cannot conclude that the trial court erred regarding this issue.

In conclusion, the trial court erred by failing to make findings regarding the parties’ incomes and ability to pay and erroneously ordered the parties to equally share child care expenses. Although the record does not contain a transcript of the hearing below, these errors are apparent on the face of the record and require reversal of the order in its entirety. On remand, the court should recalculate child support and enter a new order specifying the basis for modification of child support, including the parties’ incomes and percentage share of the child support need. The court should include seventy-five percent of the child care expenses in the basic child support amount before determining the allocation of each party’s share of child support. The court should also ensure that the Former Husband’s share of the child’s noncov-ered medical, dental, and prescription medication expenses is proportionate to his percentage share of the child support need. If the Former Husband did indeed request and establish a basis for retroactive modification of child support, the court may adjust the effective date of the award as well.

Reversed and remanded.

ALTENBERND, J., and FULMER, CAROLYN K., Senior Judge, Concur.

      . Indeed, if the child support obligation is calculated from the parties' incomes as listed on their financial affidavits without consideration for child care costs, the total child support obligation would be $654 and the Former Husband’s monthly obligation would be approximately $235. See § 61.30(6), (9), (10).


text:
    Joseph WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1931.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.
    Joseph Williams, pro se.
   ALTENBERND, Judge.

Joseph Williams is serving three concurrent twenty-five-year sentences for robbery. After he pleaded to these offenses, he filed a “writ of replevin complaint” to obtain a wallet, a watch, some shoes, and $100.64 that had been seized by the St. Petersburg Police Department at the time of his arrest. Mr. Williams filed this pleading under his criminal case and did not initiate a separate proceeding. The trial court properly treated his “writ” as a motion to recover property. See Brown v. State, 613 So.2d 569, 570 (Fla. 2d DCA 1993) (stating that a defendant is not required to file a separate suit for replevin or conversion when seeking to recover property seized in connection with his or her case). The trial court ordered a response, and the police department admitted that it had the property and was willing to return it. The police department, however, pointed out that Mr. Williams owed $1599 in restitution, a $475 fine, and additional costs. The trial court ordered the police department to return all of the property to Mr. Williams, except for the money. Without giving Mr. Williams an opportunity to respond, the trial court ordered the police department to transfer the money to the Sixth Judicial Circuit Clerk of Court to assist in satisfying the above-referenced obligations.

Mr. Williams argues that the trial court violated his rights by ordering his money transferred to someone other than himself when the only pending motion was his request that the money be returned to him. He relies on Benedetti v. State, 584 So.2d 203, 204 (Fla. 2d DCA 1991), which holds that the court cannot forfeit money to the State under these circumstances without providing the defendant with notice and an opportunity to be heard. We agree that Benedetti is controlling. Accordingly, we reverse the order and remand for further proceedings in which the trial court may either order the police department to return the money to Mr. Williams or provide him with notice and an opportunity to respond to any other lawful transfer that the court may seek to make of this money. We express no opinion on the court’s authority to compel the police department to transfer funds to the clerk of court under these circumstances.

Reversed and remanded.

DAVIS and KHOUZAM, JJ., Concur.


author: CRENSHAW, Judge.

text:
    Luke FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-6422.
    District Court of Appeal of Florida, Second District.
    May 21, 2010.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Luke Fisher appeals his judgments and sentences for trafficking in cocaine, possession of methamphetamine, possession of oxycodone, possession of MDMA, driving while license suspended, carrying a concealed firearm, and possession of drug paraphernalia. Fisher argues the trial court erred by imposing sentences that did not adhere to the terms of a deferred sentencing plea agreement. Yet we find Fisher did not preserve this issue by filing a motion to withdraw plea, and thus his argument is beyond our scope of review for the purpose of this appeal. Accordingly, we affirm his judgments and sentences.

On November 4, 2008, Fisher entered into a written negotiated plea agreement wherein he agreed to plead no contest in exchange for a sentence of forty-eight months in prison with a minimum mandatory term of three years for the felony offenses and time served for the misdemeanor possession offense. Fisher understood that the trial court would defer sentencing and he would be allowed to remain at liberty, until the sentencing hearing. The trial court informed Fisher that under the terms of the agreement, if he failed to appear at the sentencing hearing or if he “pick[ed] up any new charges” in the interim, the trial court would not honor the agreed-upon sentence.

Unfortunately for Fisher, at the sentencing hearing on December 5, 2008, the trial court was informed that he had been arrested as a result of his participation in two controlled drug buys that occurred on November 6 and November 21, 2008. The trial court proceeded to conduct an eviden-tiary hearing pursuant to Neeld v. State, 977 So.2d 740, 745 (Fla. 2d DCA 2008), to determine if Fisher had violated the plea agreement by committing a new law violation. At the conclusion of the evidentiary hearing, the trial court found competent, substantial evidence that Fisher had violated the plea agreement and sentenced him to twenty years in prison for trafficking in cocaine and five years in prison for the other felonies.

A defendant who pleads guilty or nolo contendere “[has] a constitutional right to appeal, although the issues that they can raise on appeal are limited.” Leonard v. State, 760 So.2d 114, 116 (Fla.2000). Under Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii), a defendant who enters a guilty or nolo contendere plea and who does not expressly reserve the right to appeal a prior dispositive ruling of the trial court is limited to raising issues that occurred contemporaneously with the plea, which concern: (1) the trial court’s lack of subject matter jurisdiction; (2) a violation of the plea agreement, if preserved by a motion to withdraw the plea; (3) an involuntary plea, if preserved by a motion to withdraw the plea; and (4) a sentencing error, if preserved. See Fla. R.App. P. 9.140(b)(2)(A)(ii)(a)-(d); Biggs v. State, 24 So.3d 797, 798 (Fla. 2d DCA 2010).

Fisher argues the trial court violated the terms of the plea agreement by relying on insufficient evidence to determine that he committed a new law violation and thereafter imposing a sentence greater than the sentence approved under the plea agreement. In support of his argument, Fisher relies on the evidentiary requirements set forth in Neeld. But in Neeld, this court, prior to addressing the merits of his appeal, noted Neeld had filed a motion to withdraw plea. 977 So.2d at 741. In contrast, for reasons that are unclear in our record on appeal, Fisher did not file a motion to withdraw his plea. Therefore, Fisher’s contentions were not preserved under rule 9.140(b)(2)(A)(ii)(b), and we find his arguments concerning the sufficiency of the evidence relied upon by the trial court to be beyond our scope of appellate review. Accordingly, we affirm Fisher’s judgments and sentences without prejudice to any right he may have to file a motion for postconviction relief.

WALLACE and KHOUZAM, JJ., Concur.


text:
    In the Interest of J.D. and S.D., children. Department of Children and Family Services, Petitioner, v. S.D., Respondent.
    No. 2D10-196.
    District Court of Appeal of Florida, Second District.
    May 26, 2010.
    Douglas Sherman, Bartow, for Petitioner.
    Jackson Stuart Flyte, Regional Counsel, Second District, and Robert D. Rosen, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Respondent.
   ALTENBERND, Judge.

The Department of Children and Family Services petitions for a writ of certiorari vacating a nonfinal order reunifying the children, J.D. and S.D., with the mother, S.D., in Alabama. S.D. and the guardian ad litem concede error.

The trial court violated the Interstate Compact on the Placement of Children Act, codified at section 409.401, Florida Statutes (2009), by placing the children, J.D. and S.D., with their mother, S.D., in Alabama, prior to the completion of a home study and without obtaining the consent of the appropriate public authorities of Alabama. We therefore grant the petition for writ of certiorari, vacate the order, and remand for further proceedings. See H.P. v. Dep’t of Children & Families, 838 So.2d 583 (Fla. 5th DCA 2003). This opinion does not compel the immediate removal of the children from Alabama, but the trial court must conduct a hearing as soon as possible to determine the status of the children and to ensure the conditions of their placement are in full accordance with the law.

Petition granted.

WHATLEY and WALLACE, JJ„ Concur.


author: PER CURIAM.

text:
    Larry BANTOLA, Appellant, v. Sandra BANTOLA, n/k/a Sandra Simic, Appellee.
    No. 3D09-3394.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.
    Dee M. Dolvin, for appellant.
    Judith A. Homko, for appellee.
    Before GERSTEN, SHEPHERD and CORTEÑAS, JJ.
   PER CURIAM.

Larry Bantola, the father, appeals from an order eliminating a bond to ensure return of his child from a visit with Sandra Bantola, n/k/a Sandra Simic, the mother in Peru. Finding no abuse of discretion, we affirm the trial court order. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Affirmed.


author: ROTHENBERG, J.

text:
    Calvin JONES, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D09-1196.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.
    Calvin Jones, in proper person.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for respondent.
    Before ROTHENBERG, LAGOA and SALTER, JJ.
   ROTHENBERG, J.

The defendant seeks habeas corpus relief on the basis of ineffective assistance of appellate counsel. The defendant claims that appellate counsel failed to raise, and should have raised on appeal, that the sentence imposed by the trial court after the defendant violated his probation was vindictive. A review of both the original sentencing transcript placing the defendant on probation and the transcript regarding the subsequent probation violation hearing, however, conclusively refutes any claim of vindictive sentencing. Because appellate counsel cannot be faulted for failing to file a meritless claim, we deny the petition. See Henyard v. State, 883 So.2d 753, 764 (Fla.2004); Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (holding that “[i]f a legal issue ‘would in all probability have been found to be without merit’ had counsel raised the issue on direct appeal, the failure of appellate counsel to raise the meritless issue will not render appellate counsel’s performance ineffective”).

Petition denied.


author: SHEPHERD, J.

text:
    Iris FLORES, Appellant, v. RISCOMP INDUSTRIES, INC., Appellee.
    No. 3D07-2921.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.

      Wasson & Associates and Roy D. Was-son; Greene & Sanders and Lisa A. Sanders, Miami, for appellant.
    Luks, Santaniello, Perez, Petrillo, Gold and Jones, and Orestes Perez and Alison B. Marshall, Ft. Lauderdale, for appellee.
    Before SHEPHERD, CORTIÑAS, and SALTER, JJ.
   SHEPHERD, J.

Appellant, Iris Flores, appeals a trial court order dismissing her Third Amended Complaint with prejudice, on the ground the causes of action do not relate back to the date she filed her original complaint, one day before the statute of limitations ran on her personal injury action against Appellee, Riscomp Industries, Inc. We respectfully disagree with the decision of the trial court and reverse this case for further proceedings.

In her initial complaint, Flores alleged she slipped and fell in a Miami International Airport terminal bathroom, for which Riscomp was bound by contract to “furnish[], manag[e], and supervis[e] the janitorial services.” Although Flores knew before she filed the initial complaint that Riscomp had subcontracted its janitorial responsibilities for this portion of the terminal to N & K Enterprises, Inc., and that N & K employee, Anne Davis, was assigned to properly clean the restroom used by Flores, Flores did not sue or seek to add either of them to her complaint as a defendant. Nevertheless, she amended her complaint three times after her initial filing, so by the time of the dismissal with prejudice, the Third Amended Complaint sounded in four counts: Negligence of Agent, Non-delegable duty, Violation of Contractual Duty, and Negligent Selection, Supervision and Retention. Although additional allegations of fact were inserted into the complaint as it progressed through its steps, and the legal theories of recovery were supplemented and modified, the substantive factual situation remained the same as that found in the original complaint — a slip and fall on property for which Riscomp was responsible.

To survive a motion to dismiss after the statute of limitations has passed, an amended complaint must relate back to the original pleading made before the expiration of the statute of limitations. See Fla. R. Civ. P. 1.190(c). To relate back, the claim must arise out of the same “conduct, transaction, or occurrence.” See Maraj v. N. Broward Hosp. Dist., 989 So.2d 682, 685 (Fla. 4th DCA 2008); see also Peters v. Mitchel, 423 So.2d 983, 983 (Fla. 3d DCA 1982); Meltsner v. Aetna Cas. & Ins. Co., 177 So.2d 43, 45 (Fla. 3d DCA 1965). The doctrine is to be applied liberally to achieve its salutary ends. See C.H. v. Whitney, 987 So.2d 96, 99 (Fla. 5th DCA 2008); Ron’s Quality Towing, Inc. v. S.E. Bank of Fla., 765 So.2d 134, 135 (Fla. 1st DCA 2000). We have articulated the test to be whether “the original pleading gives fair notice of the general fact situation out of which the claim or defense arises.” Kiehl v. Brown, 546 So.2d 18, 19 (Fla. 3d DCA 1989) (citations omitted) (emphasis added).

On de novo review, we find the changing of legal theories to reach Flores’ ultimate conclusion did not alter the “general fact situation out of which the claim arose.” Id.; cf. Lefebvre v. James, 697 So.2d 918 (Fla. 4th DCA 1997) (affirming the dismissal of an amendment to a complaint filed after the statute of limitations had run with prejudice, where the plaintiff sought to add a negligent delivery claim to a claim initially alleging the product, as delivered, was deficient). Accordingly, we reverse the order dismissing this case with prejudice.

Flores also seeks reversal of an order denying her motion for discovery sanctions. We affirm the trial court denial of this application.

Affirmed in part, reversed in part, and remanded for further proceedings.


text:
    David Dwayne BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2348.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.

      Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Ansley P. Peacock, Assistant Attorney General, for appellee.
    Before COPE, ROTHENBERG, and LAGOA, JJ.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

ROTHENBERG, J.

We reconsider on remand our opinion in Brown v. State, 967 So.2d 236 (Fla. 3d DCA 2007) (“Brown I”), which was quashed by the Supreme Court of Florida following its decision in State v. Brown, 3 So.3d 1190 (Fla.2009) (“Brown II”). As ordered by the Supreme Court of Florida, we have reconsidered our earlier decision in light of Garzon v. State, 980 So.2d 1038 (Fla.2008) (“Garzon II”), and conclude that based on an examination of the “totality of the record,” the jury instructions given in this case do not constitute fundamental error. Accordingly, we affirm the defendant’s convictions.

THE ISSUE

The defendant, David Dwayne Brown, and the codefendant, Collies Jasper Robinson, were charged with the first degree murders of Eric Williams (Count I) and Edward Leon Bernard (Count II), and the attempted first degree murder of Lawrence Wade (Count III). The defendant was also charged with possession of a firearm by a violent career criminal (Count IV) and display of a firearm while committing a felony (Count V). The defendant and codefendant were tried separately, with the defendant’s trial proceeding on Counts I — III and V.

The jury found the defendant guilty of Counts I — III and V, and he was subsequently sentenced. Although the defendant did not object to the instructions given, other than to object to the name of the codefendant not being included in the instructions, he argued on appeal that the instructions improperly implied that he could be convicted of first degree murder and attempted first degree murder based solely on the acts of another. This Court agreed. Because the evidence as to Counts II and III did not directly implicate the defendant, this Court concluded that the instructions as to those two counts constituted fundamental error. However, because there was direct evidence as to the defendant’s guilt regarding Count I, this Court found no fundamental error and affirmed the defendant’s conviction as to that count. Brown I, 967 So.2d at 238.

GARZON v. STATE (GARZON II)

The Florida Supreme Court granted review of this Court’s decision in Brown I, and stayed the proceedings pending its review of Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006) (“Garzon I”). Garzon and codefendants Coles and Balthazar were tried together for seven offenses stemming from a home invasion. As to Garzón, the State’s theory was that he was involved in the criminal scheme although he was not physically present. Without objection, the instructions as to each count included an “and/or” conjunction between the names of the defendants. For example, as to the charge of armed burglary, the jury was instructed as follows:

[T]o prove the crime of armed burglary of a dwelling, as charged in Count Two of the information, the State must prove the following three elements beyond a reasonable doubt. Number one, Zamir Garzón and/or [Charly] Coles and/or Ray Balthazar entered or remained in a structure owned by or in the possession of Sandra Smith.
Number two, Zamir Garzón and/or [Charly] Coles and/or Ray Balthazar did not have the permission or consent of Sandra Smith or anyone authorized to act for her to enter or remain in the structure at the time.
Number three, at the time of entering or remaining in the structure, Zamir Gar-zón and/or [Charly] Coles and/or Ray Balthazar had a fully formed, conscious intent to commit the offense of grand theft and/or robbery in that structure.

Garzon I, 939 So.2d at 281 (emphasis added). In addition to the charges on the substantive offenses, the trial court gave the jury the standard charge on principals. Garzon I, 939 So.2d at 282 (citing Fla. Std. Jury Instr. (Crim.) 3.5(a)). Further, as Garzón, Coles, and Balthazar were tried together, the trial court gave a multiple defendants instruction and used a verdict form that was individualized as to each defendant without the use of the “and/or” language. Garzon II, 980 So.2d at 1040. Balthazar was convicted on all counts, whereas Garzon and Coles were acquitted on one of the seven charges.

On appeal to the Fourth District Court of Appeal, Garzón and Balthazar argued that “the inclusion of the ‘and/or’ conjunction in the jury instructions was fundamental error because the jury ‘could’ have convicted one defendant based solely upon the conclusion that another codefendant’s conduct ‘may have satisfied the elements’ of an offense.” Garzon I, 939 So.2d at 283. In essence, Garzon and Balthazar argued that because of the “and/or” conjunction, the jury could have convicted them based on the acts of their codefendants without finding that they were acting as principals.

In addressing the issue, the Fourth District, however, noted that not all erroneous jury instructions constitute fundamental error:

To be fundamental, an erroneous jury instruction “must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” [State v.] Delva, 575 So.2d [643, 644-45 (Fla.1991)] (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)); see Floyd v. State, 850 So.2d 383, 403 (Fla.2002). This means that an erroneous jury instruction is fundamental error “when the omission is pertinent or material to what the jury must consider in order to convict.” Id. at 645 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)); accord Reed v. State, 837 So.2d 366, 369-70 (Fla.2002). Thus, “[flailing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” Delva, 575 So.2d at 645.

Garzon I, 939 So.2d at 282-83. The Fourth District explained that the “determination of whether fundamental error occurred requires that the ‘and/or’ instructions be examined in the context of the other jury instructions, the attorneys’ arguments, and the evidence in the case.” Garzon I, 939 So.2d at 283. After considering the “totality of the record,” the Fourth District concluded that the erroneous jury instructions did not constitute fundamental error, reasoning as follows:

This is not a case where the court failed to correctly instruct on an element of the crime over which there was a dispute. All elements of all crimes were correctly charged. What the “and/or” conjunctions placed in issue was whether one defendant could be held criminally liable for the conduct of a codefendant. If the law of principals applies to a defendant’s conduct, that defendant can properly be convicted for a codefen-dant’s criminal acts. Garzón could have been found guilty if either Coles or Balthazar committed a substantive crime and Garzón helped either man commit the crime within the meaning of the principals instruction.
In this ease, the standard principals instruction placed all the other instructions in the proper context. The instruction explained that a defendant is responsible for the criminal act of another person if “the defendant had a conscious intent that the criminal act be done” and the “defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person ... to actually commit the crime.” Fla. Std. Jury Instr. (Crim.) 3.5(a). If the jury found the principals instruction applied to him, Garzón could lawfully have been found guilty of crimes that either Balthazar or Coles, or both, committed in the house.
With respect to Garzón, everyone in the courtroom knew that the issue boiled down to whether the state had proven that he was the person to whom Balthazar spoke over the cell phone during the home invasion.
The prosecution used the principals instruction as the centerpiece of its argument that Garzón was guilty of the crimes committed by his codefendants. The state did not use the “and/or” conjunctions to argue for a legally incorrect or improper theory of guilt.

Garzon I, 939 So.2d at 284.

The Florida Supreme granted review of the Fourth District’s decision in Garzon I, and issued its decision in Garzon II, addressing whether the unobjected-to “use of the ‘and/or’ instructions together with the standard principals instructions was fundamental error.” Garzon II, 980 So.2d at 1042.

The Florida Supreme Court agreed with the Fourth District that the use of the “and/or” conjunction did not constitute fundamental error, reasoning:

[TJhis is not a case where the court failed to correctly instruct on an element of the crime over which there was a dispute, as in Delva/Reed. Since this case does not present a Delva/Reed error, the Fourth District was correct in examining the totality of the record to determine if the “and/or” instruction met the exacting requirements of fundamental instruction error.

Garzon II, 980 So.2d at 1043.

Following its independent review of the “totality of the record,” including the standard jury instruction on principals, the jury instruction on multiple defendants, the individualized verdict form, the attorneys’ arguments, and the jury’s verdict, the Florida Supreme Court concluded that the erroneous instructions did not constitute fundamental error. Garzon II, 980 So.2d at 1044.

Following Garzon II, the Florida Supreme Court issued its decision in Brown II, quashing this Court’s opinion in Brown I and remanding for reconsideration in light of Garzon II. Thus, on remand, this Court must determine, based on the “totality of the record,” whether the jury instructions given in the instant case constitute fundamental error.

BASED ON A REVIEW OF THE TOTALITY OF THE RECORD WE FIND NO FUNDAMENTAL ERROR

No fundamental error occurred in this case. This conclusion is based on the indictment, the opening statements, the evidence introduced at trial, the closing arguments, the jury instructions, the verdict form, and the fact that the defendants were tried separately.

The State’s theory of this case was that the defendant and codefendant, acting in concert with one another from a common scheme or plan, killed Eric Williams and Edward Leon Bernard, and attempted to kill Lawrence Wade. That is how this case was charged and tried. The arguments of counsel made it clear that the jury was going to have to determine whether the State proved beyond a reasonable doubt that they were acting together in each instance. The trial court’s instructions to the jury also made it clear that this was the State’s theory of the case and an issue to be resolved by the jury. Because the jury was instructed throughout the proceedings that before the defendant could be held responsible for the actions of another, the State was required to prove that the defendant and that other person were working together, they both had a conscious intent that the criminal acts be committed, and they were helping each other carry out a common criminal purpose, we conclude that the instructions given did not mislead the jury or constitute fundamental error.

A. The Indictment

In all three Counts: I, II, and III, the murder of Eric Williams, the murder of Edward Leon Bernard, and the attempted murder of Lawrence Wade, respectively, the indictment charged that David Dwayne Brown (the defendant) and Collies Jasper Robinson (the codefendant) “each in concert with each other from a common scheme or plan, did unlawfully and felo-niously” kill or attempt to kill the victim. (Emphasis added). At the beginning of the trial, the trial court read the indictment to the jury. Thus, from the very beginning of the proceedings, the jury was told that the State was charging the defendant and codefendant as acting together to commit these offenses.

B. Opening Statements

In its opening statement, the State described the location of the shooting, Mr. Bernard’s home, as a “neighborhood hangout” from which Mr. Bernard and Mr. Williams would sell drugs and where individuals, including Mr. Williams, would gather to play cards in the carport. The State explained that the evidence would demonstrate the following. Mr. Williams routinely kept an AK-47 rifle within reach to protect himself. On the night of the shooting, Mr. Bernard was having a party at his house. Between 7:00 p.m. and 8:00 p.m., the defendant arrived at the party, headed straight to the carport, and asked Mr. Bernard, “Where’s my money?” After Mr. Bernard failed to respond, the defendant stated, “Do you think I am playing with you?” The defendant left the party, but returned several hours later with a “partner and a plan” — “to get the money or to get these two men.” Upon returning, the defendant walked into the carport and grabbed the AK-47, pointing it at Mr. Williams. Mr. Williams and Mr. Bernard rushed the defendant, and the three men began to struggle for the AK-47. During the struggle, codefendant Robinson exited a vehicle carrying a shotgun. Upon seeing codefendant Robinson with the shotgun, Mr. Wade ran and was shot in the back by codefendant Robinson. After Mr. Bernard dropped to the floor, co-defendant Robinson came “in close for the kill,” shooting Mr. Bernard in the chest at close range. After Mr. Bernard was shot by codefendant Robinson, Mr. Williams stopped struggling for the AK-47 and began to run. While running, the defendant shot at Mr. Williams several times with the AK-47, hitting him in his back, face, thigh, and head. The defendant and his “partner” — codefendant Robinson — left, taking the two weapons with them.

Defense counsel told the jurors that the witnesses they would be hearing from lacked credibility because they are convicted felons who were using drugs and alcohol on the night of the shooting. Defense counsel also suggested that the actual shooter of the shotgun was not the code-fendant, Robinson, but one of the eyewitnesses, Ramlah Aquamina, because gunshot residue was found on his hand.

C. The Evidence

The following evidence was introduced at trial. The defendant, Mr. Bernard and Mr. Williams (the two deceased victims), and a fourth individual were partners in a drug dealing business. On the day of the shooting, Mr. Bernard was having a party at his house to celebrate a friend’s birthday, and the defendant came to Mr. Bernard’s house twice that evening. During the first encounter, the defendant confronted both Mr. Bernard and Mr. Williams, claiming that they owed him money. Mr. Bernard and Mr. Williams ignored the defendant and the defendant left the party. Nathan Mathis, who was at the party and witnessed this exchange, told Mr. Williams he should pay the defendant the money owed, but Mr. Williams told Mr. Mathis to mind his own business. Mr. Williams then brought out an AK-47 (allegedly for protection because they were selling drugs at the party), and propped it against a wall. Mr. Mathis also testified that there were no other guns at the party that night.

Several hours later, around midnight, the defendant returned to the party, entered the carport, grabbed the AK-47 that Mr. Williams had propped against the carport wall, pointed the gun at Mr. Williams and Mr. Bernard, who were seated at a table playing cards, and tried to fire the gun, which did not fire because the safety was on. Mr. Williams and Mr. Bernard rushed the defendant, and the three men began to struggle over the AK-47. While everyone else ran for cover, Mr. Wade was shot in the back with a shotgun. Mr. Bernard was fatally shot in the chest with the same shotgun at a very close range. The defendant was seen shooting Mr. Williams with the AK-47. Mr. Aquamina, one of the witnesses who heard shots being fired as he fled, called the police, directed them to the house, returned to the scene, and spoke with the police. Pursuant to its investigation, law enforcement issued a BOLO for the vehicle seen leaving the house. Days later, a vehicle matching the BOLO was stopped, and the driver of the vehicle was identified as the defendant and the passenger was identified as the code-fendant, Robinson.

It was later determined that Mr. Williams was shot multiple times with a high-powered rifle such as an AK-47, including shots to his back and one to his chest. The projectiles went through his lung and spinal column paralyzing him. Conversely, Mr. Bernard and Mr. Wade were shot with the same shotgun. The defendant was positively identified by several individuals, and a Nike cap found at the crime scene contained the defendant’s DNA.

D. Closing Arguments

In defense counsel’s initial closing argument, he read the complete standard jury instruction on the law of principals and argued that the evidence did not establish that the defendant and another person acted together as principals to commit the charged offenses. Specifically, defense counsel argued:

The Judge is going to instruct you about principals and the state is obligated to prove each and every essential element as they do in any crime about principals. And the Judge is going to tell you and he will in a little while if the defendant helped another person or persons commit or attempt to commit a crime that defendant is a principal and must be treated as if he had done all of the things that the other person or persons did if the defendant has a conscious intent that the criminal act be done and the defendant did some act or said some word which was intended to and which did insight [sic], cause, encourage, assist or advice [sic] the other person or persons to actually commit the attempt to commit the crime. To be a principal the defendant does not have to be present when a crime is committed or attempted to be committed. Where does it indicate that the other person and/or David Brown advised each other, told each other, did something together to cause a crime? Where? Where is there any issue, any evidence that they were principals? This other fellow, where? There is no evidence.... The state is obligated to prove to you that somehow they got together to commit this crime or these crimes. There is no such evidence. It doesn’t exist.

(Emphasis added).

Thereafter, the State presented its closing argument, stating that the evidence showed that the defendant shot and killed Mr. Williams with an AK-47; a second individual, who the State contended was the codefendant, Collies Jasper Robinson, shot and killed Mr. Bernard, and shot Mr. Wade with a shotgun; and these two men were acting together as principals to commit these crimes. Therefore, the defendant was guilty of murdering Mr. Bernard and attempting to murder Mr. Wade because the defendant was working in concert with the second shooter. The State argued that although it contended that the second shooter (with the shotgun) was Collies Jasper Robinson, the State was not required to prove the identity of the second shooter. Specifically, the State argued that the defendant believed Mr. Bernard and Mr. Williams owed him money, and “the defendant decided to take justice into his own hands. He and someone else, because the person’s identity is unknown to you.... But he and somebody else came there with the intent of doing harm. They came loaded with a shotgun and were ready to use it.” (Emphasis added). Thereafter, the State also read the standard jury instruction on the law of principals, thus providing this instruction to the jury for a second time. After re-reading the principals instruction to the jury, the State explained that the instruction worked both ways — if the defendant was helping someone else commit the crimes or the other person helped the defendant commit the crimes, they were equally responsible:

In other words, when two people help each other they are both responsible. And one thing that you will decide at the end of this ease is if there are, in fact two people involved.... [W]e have two gunmen and two people who are willing to use those guns. And the fact that one shot one and another shot the other does not change the fact that they were both deeply involved in what was going on. And how do we know that two people were involved?

The State outlined the physical evidence and argued that the physical evidence suggested that two people, working in concert, were involved in the shooting:

It is very clear. All you have to do is put the physical evidence together in the proper way.... We do not have to prove the identity of the second person to you in this trial.... What we do have to prove is that another person was involved and that that other person was acting as a principal with the defendant as I have already discussed with you how we have done that.... [0]nce again bringing in the principal theory, even though it is clear that David Brown did not fire the shot that killed Edward Leon Bernard he is just as guilty as the person who filed [sic] this shot because he was working together with that individual and they were working in concert. And for all intents and purposes, each time that the trigger was pulled there are were [sic] two fingers on the trigger. Both on the shotgun and on the A.K. 47. And those were the fingers of David Brown and the other person, whoever that was. You don’t have to decide who the identity of this person is to hold the defendant responsible. All you have to do, all you have to decide is for all intents and purposes his finger was on the trigger because these guys were working together.

(Emphasis added).

Defense counsel reiterated on rebuttal that the State had to prove that the defendant and the second shooter were working in concert, and argued that the evidence did not support such a finding:

How did they act in concert? How did they agree to kill anybody? ... [T]ell me where any evidence exists that two people tried to help one another in this scenario in this context.... [The State] has to show the connection between those two people and that they somehow in concert decided to kill somebody. That is what they have to show.

(Emphasis added).

E. Jury Instructions

Following closing arguments, the trial court explained to the jury that the defendant had been charged with several crimes, and although all counts were tried together, “each crime and the evidence applicable to it must be considered separately and a separate verdict returned as it [sic] each.” Thereafter, the trial court instructed the jury on the circumstances that must be proven before the defendant could be found guilty of first degree murder, attempted first degree murder, or any lesser included offense.

The trial court instructed the jury that: (1) as to first degree premeditated murder, the State had to prove that the death of each victim was caused by the criminal act of the defendant or another person acting as principal; (2) as to first degree felony murder, the State had to prove that the death of each victim occurred as a consequence of and while the defendant was in the commission of or the attempt to commit murder and he was the person who actually killed each victim or each victim was killed by another person, but both the defendant and the person who killed each victim were principals in the commission of the murder; and (3) as to the attempted murder of Lawrence Wade, the State had to prove that the defendant or another person acting as a principal did some act intended to cause the death of Lawrence Wade that went beyond just thinking or talking about it and the defendant or another person acting as a principal acted with a premeditated design to kill Lawrence Wade.

Following these instructions, the trial court read the standard jury instruction regarding principals — thus providing the jury with this instruction for a third time:

If the defendant helped another person or persons commit or attempt to commit a crime the defendant is a principal and must be treated as if he had done all of the things that the other person or persons did if the defendant had a conscious intent that the criminal act be done and the defendant did some act or-said some word which was intended to and which did insight [sic], cause, encourage, assist or advise the other person or persons to actually commit or attempt to commit the crime.
To be a principal the defendant does not have to be present when the crime is committed or attempted.

CONCLUSION

Based on the totality of the record, we conclude that the instructions provided to the jury did not confuse the jury as to its responsibility nor constitute fundamental error.

As to Count I, the murder of Mr. Williams, several eyewitnesses saw the defendant grab the AK-47 and at least one of these witnesses saw the defendant actually shoot Mr. Williams with the AK-47. Neither the State nor the defense argued during trial or closing arguments that another person participated in the murder of Mr. Williams. Thus, based on the evidence and the arguments of counsel, it is clear that the defendant’s conviction for the first degree murder of Mr. Williams was based on his own criminal acts, not the acts of another person acting as a principal. The trial court’s instructions as to this count, therefore, did not constitute fundamental error.

As to the first degree murder of Mr. Bernard (Count II) and the attempted first degree murder of Mr. Wade (Count III), the evidence, including eyewitness accounts and the location where the spent shotgun casings were located, demonstrate that the defendant was not the person who fired the shotgun at Mr. Wade and Mr. Bernard. Therefore, the defendant’s convictions as to Counts II and III were based on the acts of another person. Nonetheless, in reviewing the “totality of the record,” we find that the jury instructions did not constitute fundamental error because the trial court read the indictment to the jury at the beginning of the trial which charged the defendant as acting in concert with the codefendant from a common scheme or plan to commit the murders and the attempted murder; the trial court read the standard jury instruction to the jury on the law of principals; and the attorneys repeatedly communicated to the jurors that they could not convict the defendant for the acts of another person unless they found that the law of principals was met. For example, during its opening statement, the State argued that “[t]he defendant left the party, but returned several hours later with a “partner and a plan” — “to get the money or to get these two men.” Additionally, during closing argument, defense counsel argued: “The state is obligated to prove to you that somehow they got together to commit this crime or these crimes.” Similarly, the State argued in closing, “once again bringing in the principal theory, even though it is clear that David Brown did not fire the shot that killed Edward Leon Bernard he is just as guilty as the person who filed [sic] this shot because he was working together with that individual and they were working in concert.” Finally, on rebuttal, defense counsel once again explained to the jury that in order to convict the defendant for the acts of another, the jury had to find that the defendant and the other person were working in concert: “[The State] has to show the connection between those two people and that they somehow in concert decided to kill somebody. That is what they have to show.” Additionally, during voir dire, the trial court explained the law of principals to the jury, as did the State. Thus, after performing a complete review of the record, we conclude that based on the “totality of the record,” we find there was no fundamental error as to Counts II and III. Accordingly, we affirm the defendant’s convictions.

Affirmed.

      . The multiple defendants instruction read as follows:
      A separate crime is charged against each defendant in each count of the information. The defendants have been tried together; however, the charges against each defendant and the evidence applicable to him must be considered separately. A finding of guilty or not guilty as to one or some of the defendants must not affect your verdict as to any other defendants or other crimes charged.

        Garzon II, 980 So.2d at 1040.

      . Count I provides in relevant part:
      DAVID DWAYNE BROWN ... and COLLIES JASPER ROBINSON, each in concert with the other from a common scheme or plan, did unlawfully and feloniously kill a human being, to wit: ERIC WILLIAMS ... from a premeditated design to effect the death of the person killed or any human being, or while engaged in the perpetration of, or in an attempt to perpetrate any murder of another human being, to wit: LAWRENCE WADE and/or EDWARD LEON BERNARD ..., by shooting the said ERIC WILLIAMS ... and during the course of the commission of the offense, said defendants discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon ERIC WILLIAMS ..., a human being, in violation of s. 782.04(1), s. 777.011 and s. 775.087, Florida Statutes.
      (Emphasis added).
      Count II provides in relevant part:
      DAVID DWAYNE BROWN ... and COLLIES JASPER ROBINSON, each in concert with the other from a common scheme or plan, did unlawfully and feloniously kill a human being, to wit: EDWARD LEON BERNARD ... from a premeditated design to effect the death of the person killed or any human being, or while engaged in the perpetration of, or in an attempt to perpetrate any murder of another human being, to wit: LAWRENCE WADE and/or ERIC WILLIAMS ..., by shooting the said EDWARD LEON BERNARD ... and during the course of the commission of the offense, said defendants discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon EDWARD LEON BERNARD ..., a human being, in violation of s. 782.04(1), s. 777.011 and s. 775.087, Florida Statutes.
      (Emphasis added).
      Count III provides in relevant part:
      DAVID DWAYNE BROWN ... and COLLIES JASPER ROBINSON, each in concert with the other from a common scheme or plan, did unlawfully and feloniously attempt to kill a human being, to wit: LAWRENCE WADE, from a premeditated design to effect the death of a human being, by shooting him with a shotgun, and during the course of the commission of the offense, said defendants discharged a firearm or destructive device and as a result of the discharge, death or great bodily harm was inflicted upon LAWRENCE WADE, a human being, with a weapon, to wit: A firearm, in violation of s. 782.04(1), s. 777.04(1), s. 777.011 and s. 775.087, Florida Statutes.
      (Emphasis added).

      . The relevant portions of the trial court's instructions are as follows:
      I now instruct you on the circumstances that must be proven before the defendant may be found guilty of murder in the first degree or any lessor [sic] included crime and/or attempted first degree murder or any lessor [sic] included crime.
      There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.
      Before you can find the defendant guilty of first degree premeditated murder the state must prove the following three elements beyond a reasonable doubt. As to Count one, first Eric Williams is dead. Second, the death was caused by the criminal act of the defendant or another person acting as a principal. Third, there is a premeditated killing of Eric Williams.
      As to Count Two, Edward Leon Bernard is dead. Second, the death was caused by the criminal act of the defendant or another person acting as a principal. Third, there was a premeditated killing of Edward Leon Bernard.

      Before you can find the defendant guilty of first degree felony murder the state must prove the following three elements beyond a reasonable doubt. As to Count One, first, Eric Williams is dead. Second, the death occurred as a consequence of and while the defendant was engaged in the of [sic] murder. Or the death occurs as a consequence of and while the defendant was attempting to commit murder. Third, the defendant was the person who actually killed Eric Williams or Eric Williams was killed by a person other than the defendant, but both the defendant and the person who killed Eric Williams were principals in the commission of murder.
      As to Count two, Edward Leon Bernard is dead. Second, the death occurred as a consequence of and while the defendant was engaged in the commission of murder. Or the death occurred as a consequence of and while the defendant was attempting to commit murder. Third, the defendant was the person who actually killed Edward Leon Bernard. Or Edward Leon Bernard was killed by a person other than the defendant but both the defendant and the person who killed Edward Leon Bernard were principals in the commission of murder.
      In order to convict of first degree felony murder it is not necessary for the state to prove that the defendant had a premeditated design or intent to kill.

      Before you can find the defendant guilty of attempted first degree murder premeditated murder the state must prove the following three elements beyond a reasonable doubt.

        First, the defendant or another person acting as a principal did some act intended to cause the death of Lawrence Wade that went beyond just thinking or talking about it.
      Second, defendant or another person acting as a principal acted with a premeditated design to kill Lawrence Wade.

      Third, the act would have resulted in the death of Lawrence Wade except that someone prevented the defendant from killing Lawrence Wade or he failed to do so.


author: SUAREZ, J.

text:
    F.R. ALEMAN & ASSOCIATES, INC., Appellant, v. Humberto R. CISNEROS and the Florida Unemployment Appeals Commission, Appellees.
    No. 3D09-1927.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.

      Fisher & Phillips and Cathy M. Stutin and Candice C. Pinares-Baez, Fort Laud-erdale, for appellant.
    Louis A. Gutierrez and Geri Atkinson-Hazelton, Tallahassee, for Florida Unemployment Appeals Commission.
    Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

F.R. Aleman & Associates, Inc. (“the employer”), appeals a decision of the Florida Unemployment Appeals Commission reversing the appeals referee’s determination that the claimant, Humberto Cisneros, was not entitled to unemployment compensation benefits. We reverse the Florida Unemployment Appeals decision. The claimant was not entitled to unemployment benefits because he was discharged due to misconduct connected with work.

The claimant was employed as a utility designer for the employer, a licensed engineering and mapping firm. His duties included locating and marking the surface locations of underground utilities at construction sites. The policy of the employer was to allow employees cash advances for company expenses. In 2008, while assigned to work on a project at the Miami International Airport, the claimant parked his company vehicle in the general airport parking lot at a charge of fifteen dollars per day. He advised his immediate supervisor that he did not have enough money to pay for parking and, as a result, his supervisor drove from Fort Lauderdale to the Miami International Airport to pay for his parking fee. After the incident, the employer met with the claimant and cautioned him on the procedure for obtaining cash in advance for parking. In disregard of the employer’s instructions, on a second occasion, the claimant failed to obtain money in advance for parking. The claimant again was assigned to report to the Miami International Airport construction site. Instead of reporting to work, the claimant advised the employer that he only had twenty dollars in his bank account and could not pay for parking. The supervisor told him to withdraw the twenty dollars from the bank and the employer would reimburse him later in the day or he could park in the airport remote lot free of charge. The claimant did neither and, without advising his employer, failed to report to work. The employer had to make arrangements for another crew to come in and make up for the lost production for the day. The employer discharged the claimant on November 6, 2008, for not reporting to the job site and not advising his employer of his intention not to report. The appeals referee found that the claimant was discharged for misconduct connected with work and disqualified him from receiving unemployment benefits. The Unemployment Appeals Commission reversed the appeals referee’s decision on grounds that the claimant’s conduct did not rise to the level of misconduct. The employer appeals the Unemployment Appeals Commission decision.

In determining if the record contains competent substantial evidence to support the appeals referee’s findings, the reviewing tribunal may not make credibility determinations or substitute its judgment for that of the appeals referee. Jackson v. Unemployment Appeals Comm’n, 730 So.2d 719 (Fla. 5th DCA 1999). The referee’s findings of fact cannot be disturbed if supported by competent substantial evidence, even where there is evidence supporting a different result. Jackson, 730 So.2d at 721. Although the Unemployment Appeals Commission adopted the factual findings of the appeals referee, it concluded that the appeals referee’s decision was not in accord with Florida law and substituted its own legal conclusion that the claimant’s actions did not rise to the level of misconduct.

Section 443.101(l)(a), Florida Statutes (2008) disqualifies a claimant from receiving benefits when he is discharged from work due to misconduct connected with work. Misconduct is defined as:

(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

§ 443.036(29), Fla. Stat. (2008).

The record shows that the claimant had a prior history of being reprimanded for failing to perform in accord with the employer’s standards. Then in 2008, he deliberately disregarded his employer’s work policy of receiving cash advances for parking upon arriving at the Miami International Airport job site without enough money to pay for parking. Because of his disregard of the employer’s policy for parking money advances, his supervisor was forced to drive from Fort Lauderdale to pay for his parking. Afterward, the claimant was reprimanded and, again, instructed to obtain petty cash for parking if needed. Despite being cautioned to obtain parking money in advance from the employer, on November 6, 2008, the claimant arrived at the airport construction site unable to pay for parking with only twenty dollars in his bank account. His supervisor gave him two options: to go to the bank and withdraw the twenty dollars and apply for reimbursement from the employer, or to park in the remote parking lot free of charge. The claimant said nothing more to his supervisor and failed to report to the job site. The employer had to make arrangements for another crew to come in and make up for the lost production for the day. The employer discharged the claimant the same day for not reporting to the job site and for not informing the employer of the fact that he was not intending to report to work.

The appeals referee correctly concluded that the claimant’s actions constituted misconduct as defined under section 443.036(29). The claimant’s series of recurrent actions disregarding his obligations and duties to his job, including more than once disobeying the employer’s policies resulting in failure to report to work and failure to notify his employer of his absence, amounted to disregard of the interests of the employer. See Bozzo v. Safelite Glass Corp., 654 So.2d 1042 (Fla. 3d DCA 1995); Thurber v. Hillier & Wanless, P.A., 642 So.2d 75 (Fla. 4th DCA 1994); Barragan v. Williams Island, 568 So.2d 106 (Fla. 3d DCA 1990); Nat’l Ins. Servs., Inc. v. Fla. Unemployment. Appeals Comm’n, 495 So.2d 244 (Fla. 2d DCA 1986); Citrus Cent. v. Detwiler, 368 So.2d 81 (Fla. 4th DCA 1979); cf. Vega v. Fla. Unemployment Appeals, 833 So.2d 310 (Fla. 3d DCA 2003) (holding that employee entitled to benefits where there was no formal “call-in work rule” or other evidence that employee had been previously warned to notify his employer if he was unable to report to work).

We therefore reverse the Unemployment Appeals Commission’s holding that the claimant was entitled to unemployment compensation benefits.

Reversed.


text:
    Ernest Lee COLEMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-820.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.
    Ernest Lee Coleman, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, CORTINAS, and SALTER, JJ.
   PER CURIAM.

Earnest Lee Coleman appeals the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800. Each of the sentence-related claims raised by Coleman has previously been considered and rejected by the circuit court and by this Court. Coleman v. State, 857 So.2d 886 (Fla. 3d DCA 2003); 879 So.2d 632 (Fla. 3d DCA 2004); 922 So.2d 213 (Fla. 3d DCA 2006); and 995 So.2d 501 (Fla. 3d DCA 2008).

Coleman’s claims directed to issues other than his sentence were required to have been brought (but were not) in his unsuccessful plenary appeal, Coleman v. State, 709 So.2d 654 (Fla. 3d DCA 1998), or within the two-year time period allowed by Florida Rule of Criminal Procedure 3.850.

Affirmed.


author: WARNER, J.

text:
    Ricky MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-739.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Ricky Miller appeals his conviction of possession of cocaine. At his trial, he requested that the court instruct the jury on his affirmative defense of lack of knowledge that the substance he possessed was cocaine. The trial court refused to give the instruction. We reverse.

The possession of cocaine charge arose from Miller’s possession of a glass pipe which contained cocaine residue. When Miller testified in his own defense, counsel had specifically asked Miller whether he knew that cocaine was in the pipe, and Miller denied knowing of any. During the charge conference, the defense requested a jury instruction on lack of knowledge of the illicit nature of a controlled substance, as it was an affirmative defense to the cocaine possession charge. The trial court declined to give the standard instruction on this affirmative defense, because there was no evidence that Miller did not know that cocaine was illegal. Defense counsel argued that the instruction was proper where evidence supported the contention that Miller did not know cocaine was in the pipe confiscated from him. The trial court disagreed and denied the request for the affirmative defense instruction. The court later instructed the jury as follows:

[T]o prove the crime of possessing cocaine, the State must prove three elements beyond a reasonable doubt.
First, they have to prove that Mr. Miller possessed a certain substance. Second, that the substance was cocaine. And third, that Mr. Miller had knowledge of the presence of the substance.

A written copy of the instructions was provided to the jury for its deliberations. The jury convicted Miller of possession of cocaine, along with other charges. He appeals only his conviction for possession of cocaine.

In 2002, the Florida Legislature enacted section 893.101, Florida Statutes, which expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893. The statute superseded Chicone v. State, 684 So.2d 736 (Fla.1996), which had held that the state was required to prove a fourth element of the offense, namely that the defendant knew of the illicit nature of the substance. See Barrientos v. State, 1 So.3d 1209, 1216 (Fla. 2d DCA 2009). Section 893.101, Florida Statutes, thus makes possession of a controlled substance a general intent crime and provides that lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. See Wright v. State, 920 So.2d 21, 24 (Fla. 4th DCA 2005).

To prove a cocaine possession charge, the state must prove that the defendant knew that he possessed a substance, which was in fact cocaine, but the state does not have to prove that the defendant knew it was cocaine. See Fla. Std. Jury Instr. (Crim.) 25.7. Instead, the defendant may raise by affirmative defense the claim that he did not know the substance was cocaine. See Burnette v. State, 901 So.2d 925, 927 (Fla. 2d DCA 2005). The affirmative defense does not require that the defendant offer evidence that he did not know that the possession of cocaine was illegal.

In this case, Miller presented at least some evidence in support of this affirmative defense. He testified that he did not know there was cocaine in the glass pipe. “A criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.” Gregory v. State, 937 So.2d 180, 182 (Fla. 4th DCA 2006) (emphasis in original); Bozeman v. State, 714 So.2d 570 (Fla. 1st DCA 1998). Thus, the trial court should have given the requested instruction on the affirmative defense of lack of knowledge of the illicit nature of the substance. Because the trial court failed to properly instruct the jury, we reverse.

TAYLOR and MAY, JJ., concur.

      . As is so often incanted, ignorance of the law is not an excuse. See, e.g., Davis v. State, 928 So.2d 442, 448 (Fla. 5th DCA 2006).


text:
    Jeffrey LAGASSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3215.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.
    Jeffrey Lagasse, Milton, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Jeffrey Lagasse appeals a trial court order summarily denying his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the order’s summary denial with prejudice as to his claims four through seven, but reverse the order as to its denial of claims one through three. Appellant filed an amendment to his motion for post conviction relief as to those latter claims, but it did not reach the trial court before it denied relief on all grounds. Appellant is entitled under Spera v. State, 971 So.2d 754 (Fla.2007) to have the amendment considered by the trial court on the first three claims.

Affirmed in Part, Reversed and Remanded in Part.

FARMER, HAZOURI and GERBER, JJ., concur.


text:
    Ramon MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1631.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Sr., Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Farinas v. State, 569 So.2d 425, 429 n. 7 (Fla.1990) (“It is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.”) (citation omitted).

POLEN, GERBER and LEVINE, JJ„ concur.


text:
    Randall WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2923.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.
    Carlos Martinez, Public Defender, Gwendolyn Powell Braswell and Melissa Del Valle, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SHEPHERD and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

The appellant challenges, by direct appeal, the trial court’s technical denial of his Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct illegal sentence, in which he asserted his written sentence failed to conform to the sentencing judge’s oral pronouncement and he was sentenced unlawfully to a three-year minimum mandatory sentence, in exchange for his plea of guilty to carrying a concealed firearm and possession of a firearm by a delinquent, under this State’s 10-20-Life statute. See § 775.087(2)(a)1.a-r. Fla. Stat. (2008). We accept the State’s proper concession of error on the former and reverse on the latter.

The State charged Appellant with carrying a concealed firearm and possession of a firearm by a delinquent. Appellant agreed to a plea of guilty to the charges in exchange for a sentence of five years of imprisonment on each charge, with a three-year mandatory minimum. The plea colloquy does not identify upon which count the mandatory minimum was imposed. The written sentence states it was imposed on the concealed firearm charge. The plea colloquy reflects the sentencing judge ordered that both sentences were to run concurrently with each other and to a life sentence imposed on a separately charged and prosecuted murder conviction. This intent is not reflected in the written sentence.

The State concedes the written sentence should be amended to state both of the appellant’s sentences should run concurrently with the life sentence in the companion case, and we so order. See Catalan v. State, 911 So.2d 203, 204 (Fla. 3d DCA 2005) (“Where there is a difference between the court’s oral pronouncement and a written order, the oral pronouncement controls.”). The State also concedes the written sentence is in error to the extent it seeks to make mandatory three years of the five-year sentence imposed on Appellant for carrying a concealed firearm, because carrying a concealed firearm is not a qualifying offense under the 10-20-Life statute. See § 775.087(2)(a)1.a-r.

The State argues, nevertheless, that because the plea colloquy does not identify to which of the convictions in this case— carrying a concealed firearm or possession of a firearm by a delinquent — the enhancement was to be applied, the three-year minimum mandatory sentence can be applied to Appellant’s conviction for possession of a firearm by a delinquent. In support of this argument, the State points out the information charged Williams with “unlawfully and feloniously ownfing] or hav[ing] in said defendant’s care, custody, possession or control firearm, when at said time and place, the defendant had previously been found to have committed a delinquent act that would be a felony if committed by an adult of this court of this state ... in violation of s. 790.23(1).” Although an argument can be constructed that it is not clear from the information on this count whether Williams’ general plea of guilty was for possession of a firearm by a convicted felon under section 790.23(l)(a) or by a delinquent under section 790.23(1)(b) due to the absence of a second parenthetical in the charging document— the State’s theory, as we understand it— we find this argument to be unpersuasive. The 10-20-Life statute authorizes the imposition of a three-year minimum mandatory sentence when a defendant is convicted of “possession of a firearm by a felon.” § 775.087(2)(a)l.r. (emphasis added). We are of the view that the only fair way to read the information in this case is to find the appellant was charged with possession of a firearm by a delinquent. We also take judicial notice of the certified copy of Williams’ Criminal Justice Information Center printout, recently filed by defense counsel, showing all of Williams’ prior convictions (excluding the murder conviction for which Williams was sentenced concurrently with the convictions in this case) were juvenile adjudications. We agree with the reasoning of the First District Court of Appeal’s recent opinion in Potter v. State, 997 So.2d 1215, 1216 (Fla. 1st DCA 2008), that because the offense of possession of a firearm by a delinquent is not specifically listed in the 10-20-Life statute as one for which a court is authorized to impose a minimum mandatory sentence, the trial court erred in this case in imposing a minimum mandatory sentence on this count as well. Although the appellant expressly agreed to the sentence as part of a negotiated plea agreement, a defendant cannot assent to an illegal sentence. See Gregory v. State, 997 So.2d 1287, 1288 (Fla. 3d DCA 2009).

Accordingly, we reverse the appellant’s sentence and remand for the trial court to conform its oral pronouncement to its written sentence and strike the three-year minimum mandatory term. Because these amendments are ministerial acts, Appellant need not be present for resentencing. See Velez v. State, 988 So.2d 707, 708 (Fla. 3d DCA 2008).

      . Florida Rule of Criminal Procedure 3.800(b)(2) authorizes a defendant pursuing a direct appeal to file a motion to correct illegal sentence in the trial court after he files his notice of appeal, but before the filing of the initial brief. If no order on the motion is hied by the trial court within sixty days, the motion is deemed denied. Fla. R.Crim. P. Rule 3.800(b)(1)(B). We refer to such a denial here as a “technical denial.”

      . Section 790.23(1) of the Florida Statutes reads in relevant part:
      790.23. Felons and delinquents; possession of firearms, ammunition, or electric weapons or devices unlawful
      (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or to carry a
      concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:
      (a) Convicted of a felony in the courts of this state;
      (b) Found, in the courts of this state, to have committed a delinquent act that would be a felony if committed by an adult and such person is under 24 years of age; ...


text:
    TARMAC AMERICA, LLC d/b/a Tarmac, Appellant, v. Renata AVILA, as Personal Representative for the Estate of Claudia Avila on behalf of Fernanda Avila, Cicero Avila and Renata Avila, survivors, Appellees.
    No. 4D08-4379.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.
    Robert E. Biasotti and Stephanie Zimmerman of Carlton Fields, P.A., St. Pe-tersburg, for appellant.
    Marc A. Wites of Wites & Kapetan, P.A., Lighthouse Point, for appellee Renata Avila.
   PER CURIAM.

Affirmed. See Dean v. Rutherford Mulhall, P.A., 16 So.3d 284 (Fla. 4th DCA 2009).

GROSS, C.J., STEVENSON and CIKLIN, JJ., concur.


author: WHATLEY, Judge.

text:
    David B. HOWELL and Dave B. Howell, LLC, Appellants, v. ED BEBB, INC., Appellee.
    No. 2D09-3664.
    District Court of Appeal of Florida, Second District.
    May 28, 2010.

      Matthew J. Conigliaro, Annette Marie Lang, and Stephanie C. Zimmerman of Carlton Fields, P.A., St. Petersburg, for Appellants.
    Thomas C. Saunders of Saunders Law Group, Bartow, for Appellee.
   WHATLEY, Judge.

David B. Howell and Dave B. Howell, LLC (collectively referred to as Howell) filed this direct appeal of a final summary judgment to quiet title and for ejectment entered in favor of Ed Bebb, Inc. We conclude that Bebb did not establish that it was entitled to summary judgment at this stage in the pleadings and reverse.

Bebb filed an amended complaint against Howell asserting counts to quiet title, take possession of real property, require specific performance, foreclose on a mortgage, and for ejectment. Howell filed a motion to dismiss, and while the motion was pending, Bebb filed a motion for summary judgment. After a hearing on Bebb’s motion, the circuit court entered final summary judgment in favor of Bebb.

Generally, “[a] movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). But if “a plaintiff moves for summary judgment before the defendant has filed an answer, ‘the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.’” BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 937-38 (Fla. 2d DCA 2010) (quoting Settecasi v. Bd. of Pub. Instruction of Pinellas County, 156 So.2d 652, 654 (Fla. 2d DCA 1963)). Thus, the standard to establish entitlement to summary judgment requires the plaintiff to establish that “the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.” Id. at 938.

The trial court in the present case appears to have used the wrong standard in ruling on Bebb’s motion for summary judgment, as it asked Howell if he had filed any affidavits or anything that would create a material issue of fact. At the hearing on the motion for summary judgment, Howell noted issues of material fact that could be raised in an answer to the complaint. However, Bebb based its argument for summary judgment on the failure of Howell to file affidavits establishing genuine issues of material fact. On appeal, Bebb does not contend that it established to a certainty at the hearing that no answer which Howell might properly serve could present a genuine issue of fact. Accordingly, it was improper to enter summary judgment in favor of Bebb at this stage in the pleadings, and we reverse the judgment and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ„ Concur.