author: LOGUE, J.

text:
    Pamela WESTBERRY, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D18-1469
    District Court of Appeal of Florida, Third District.
    Opinion filed July 27, 2018.
    Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for respondent.
    Before LAGOA, EMAS, and LOGUE, JJ.
   LOGUE, J.

Pamela Westberry petitions this court for a writ of habeas corpus to quash an alias capias, or bench warrant, issued for her arrest. Based on well-established precedent and the State's commendable confession of error, we grant the petition.

Westberry was arrested for possession of narcotics. Through counsel she filed a written waiver of her right to be present at pretrial conferences as authorized by Florida Rule of Criminal Procedure 3.180(a)(3). After the information was filed, she entered a plea of not guilty through counsel, which was accepted by the court. Later, when Westberry was not present at a hearing which the trial court had set to review plea negotiations, the trial court over objection issued an alias capias, concluding that Westberry was "noticed to appear" and that "no good cause has been provided for her failure to appear." Westberry then petitioned this court for a writ of habeas corpus.

The trial court erred because Westberry had properly waived her presence in court under Florida Rule of Criminal Procedure 3.180(a)(3). While, "if there is good reason to do so, a trial court may require the presence of the defendant in court even when the defendant has filed a written waiver," the trial court must clearly advise defense counsel and the defendant that the defendant's personal presence is required. Charlemagne v. Guevara, 183 So.3d 1261, 1263 (Fla. 3d DCA 2016) (citing Cruz v. State, 822 So.2d 595, 596 (Fla. 3d DCA 2002) ). Here, the record does not indicate that the trial court clearly advised Westberry that her presence was required. The State has so conceded.

Accordingly, we grant the petition for writ of habeas corpus and quash the alias capias. This decision shall take effect immediately, notwithstanding the filing of any post-opinion motions.


source: Caselaw Access Project

author: Gerber, C.J.

license: Public Domain

text:
    Donald BUHLER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D17-3324
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Scott Berry of Scott Berry Law, P.A., West Palm Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent.
   Gerber, C.J.

The defendant petitions for a writ of prohibition, following the circuit court's order denying the defendant's motion for discharge based on an alleged violation of the speedy trial rule, Florida Rule of Criminal Procedure 3.191. The circuit court reasoned that, following this court's disposition of the state's certiorari challenge to a pretrial evidentiary order, the circuit court had ninety days to bring the defendant to trial under rules 3.191(i)(4) and (m). The defendant argues that the court's ruling to extend speedy trial for ninety days following this court's disposition was erroneous because rule 3.191(m) did not apply. Case law from our supreme court, this court, and our sister courts have rejected such an argument. Therefore, we deny the defendant's petition.

Procedural History

On April 26, 2017, the defendant filed and served a demand for speedy trial pursuant to rule 3.191(b) ("(1) Except as otherwise provided by this rule, ... every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days, by filing with the court a separate pleading entitled 'Demand for Speedy Trial,' and serving a copy on the prosecuting authority.... (4) If the defendant has not been brought to trial within 50 days of the filing of the demand, the defendant shall have the right to the appropriate remedy as set forth in subdivision (p)."). Rule 3.191(b) would have required trial by June 15, 2017, not including the recapture period specified in rule 3.191(p)(3). The court set the defendant's case for trial on June 5, 2017.

On June 2, 2017, the circuit court entered an order sustaining the defendant's objection to the state's notice of intent to offer evidence under section 90.404(2), Florida Statutes (2016).

On June 5, 2017, the day set for trial, the state filed its "Motion to Stay Trial Proceedings, Extend Speedy Trial Limits and Continue the Case Pending Final Disposition of the Petition for Writ of Certiorari." In the motion, the state notified the court that the state would be filing a certiorari petition seeking this court's review of the circuit court's June 2 evidentiary order. The state argued it was entitled to an extension of the speedy trial limits under rules 3.191(i)(4) and (m). Rule 3.191(i)(4) provides:

(i) When Time May Be Extended. The periods of time established by this rule may be extended, provided the period of time sought to be extended has not expired at the time the extension was procured. An extension may be procured by:
...
(4) written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for appeals by the state , for DNA testing ordered on the defendant's behalf upon defendant's motion ... and for trial of other pending criminal charges against the accused ....

(emphasis added). Further, rule 3.191(m) provides:

(m) Effect of Mistrial; Appeal; Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from a reviewing court that makes possible a new trial for the defendant, whichever is last in time. If a defendant is not brought to trial within the prescribed time periods, the defendant shall be entitled to the appropriate remedy as set forth in subdivision (p).

(emphasis added).

On June 5, 2017, still the day set for trial, the court entered the following order:

ORDERED AND ADJUDGED the State's Motion is GRANTED pending final disposition of the Petition for Writ of Certiorari in the appellate court, and pursuant to Fla. R. Crim. P. 3.191(i)(4), Fla. R. Crim. P. 3.191, ... this Court's Order hereby tolls the speedy trial period pending a final ruling by the appellate court. The Court further orders that the Defendant be brought to trial within 90 days of the receipt of the mandate, order, or notice from the appellate court, pursuant to Fla. R. Crim. P. 3.191(m).

On September 25, 2017, this court denied the state's certiorari petition.

On October 10, 2017, the defendant filed and served his "Notice of Expiration of Speedy Trial Time" under rule 3.191(p)(2) ("At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled 'Notice of Expiration of Speedy Trial Time,' and serve a copy on the prosecuting authority.").

On October 11, 2017, the circuit court entered an order striking the defendant's notice of expiration. The circuit court reasoned that it correctly applied rule 3.191(m) in its June 5 order.

On October 30, 2017, the defendant filed his motion for discharge. The defendant's motion argued that the circuit court erroneously applied rule 3.191(m). According to the defendant, the phrase "appeal by the state," as used in rule 3.191(m), does not include petitions for extraordinary writs.

On October 30, 2017, the circuit court denied the defendant's motion for discharge without comment.

The defendant's instant petition for writ of prohibition followed.

Our Review

The defendant argues that the circuit court erroneously denied his motion for discharge based on the circuit court's alleged earlier misapplication of rule 3.191(m). According to the defendant, the phrase "appeal by the state," as used in rule 3.191(m), does not include petitions for extraordinary writs.

The state's response recognizes that rule 3.191(m)'s plain language uses the phrase "appeal by the state." However, the state argues that case law from our supreme court, this court, and our sister courts, have held that the phrase "appeal by the state" includes petitions for extraordinary writs, and that the ninety-day speedy trial extension provided in rule 3.191(m) applies whenever a trial has been delayed by an appeal, including petitions for extraordinary writs.

We agree with the state's argument. We will address the precedent from our supreme court, this court, and our sister courts, in turn.

In Nelson v. State , 414 So.2d 505 (Fla. 1982), our supreme court held that a trial court, after receiving a mandate from a district court, has the authority to extend speedy trial time under rule 3.191 when the state seeks certiorari review in the supreme court of the district court's decision. Id. at 506-07. In reaching its holding, our supreme court interpreted the phrase "appeals by the State," under rule 3.191, "to include all appellate applications made by the state," and found that "such an application may constitute an 'exceptional circumstance' " under rule 3.191, "depending on the facts and legal issues involved in a particular case." Id. at 508. In State v. Rohm , 645 So.2d 968 (Fla. 1994), our supreme court later held that "the 90-day speedy trial period provided in Florida Rule of Criminal Procedure 3.191(m) applies whenever a trial has been delayed by appeal." Id. at 968.

Our supreme court's precedent has guided this court's precedent. In Frazier v. State , 761 So.2d 337 (Fla. 4th DCA 1999), after the trial court extended the speedy trial time pending the outcome of the state's certiorari petition in the United States Supreme Court, the trial court denied the defendant's motion for discharge. Id. at 339. We affirmed. Id. at 340. After acknowledging our supreme court's holding in Nelson that the phrase "appeals by the state" in rule 3.191 includes "all appellate applications made by the state," including certiorari petitions, we concluded that the state was entitled under rule 3.191(m) to ninety days from the date of the trial court's receipt of the Supreme Court's mandate in which to bring the defendant to trial. Id. at 339-40.

Our supreme court's precedent also has been followed by our sister courts. In State v. Clarke , 834 So.2d 398 (Fla. 2d DCA 2003), the state, after receiving an adverse evidentiary decision on the morning of trial, moved to extend speedy trial to seek certiorari review in the appellate court. Id. at 399. The trial court denied the state's extension request. Id. When the defendant's speedy trial time period expired, the trial court granted the defendant's motion for discharge, and the state appealed. Id. Our sister court reversed, reasoning:

When the State requests an extension of speedy trial for the purpose of pursuing an interlocutory appeal of a trial court's ruling, "a trial court must grant this extension for the period necessary to complete the appellate proceedings, unless it makes a factual determination that the appeal is being taken for the purpose of delay, upon grounds which are frivolous and not fairly debatable." State v. Barnett, 366 So.2d 411, 416 (Fla. 1978). Additionally, the Florida Supreme Court has ruled that the language "for appeals by the state" contained in Florida Rule of Criminal Procedure 3.191(i)(4) includes "all appellate applications made by the state." Nelson v. State, 414 So.2d 505[,] 508 (Fla. 1982). Thus, the mandate of Barnett applies to petitions seeking certiorari review as well as to interlocutory appeals.

834 So.2d at 399-400 (footnote omitted); see also Wheeler v. Barron , 471 So.2d 146, 147 (Fla. 1st DCA 1985) ("We hold that where, as here, the speedy trial period is extended for a period covering the pendency of review by the supreme court, the 90-day extension in [ rule 3.191 ] becomes effective upon disposition of the cause by that court. Therefore, the state is permitted 90 days from the date of receipt by the trial court of the supreme court's mandate in which to bring petitioner to trial.").

The defendant's reliance on a Third District case, State v. Barreiro , 460 So.2d 945 (Fla. 3d DCA 1984), is misplaced. In Barreiro , our sister court held that because rule 3.191"refers specifically to an 'appeal,' it is not applicable where the review is sought by way of a writ of certiorari." Id. at 947. Our sister court reached this holding even though it acknowledged our supreme court's holding in Nelson that the phrase "appeals" as used in rule 3.191 included all appellate applications. Id. Our sister court apparently chose to disregard Nelson , stating "there is no authority or logical requirement for bringing extraordinary reviews within the definition of [ rule 3.191 ] appeals." Id. While we appreciate the Barreiro court's reasoning, we must disagree with its choice to disregard Nelson . In any event, our sister court may have had a change of mind on this issue. In the more recently issued Johnson v. State , 984 So.2d 609 (Fla. 3d DCA 2008), the Third District issued a PCA citing the Second District's Clarke decision, which we cite above.

Conclusion

Based on the foregoing, we conclude that the circuit court correctly denied the defendant's motion for discharge. Following this court's disposition of the state's certiorari challenge to the pretrial evidentiary order, the circuit court correctly ruled that it had ninety days to bring the defendant to trial under rules 3.191(i)(4) and (m). Therefore, we deny the defendant's petition for writ of prohibition.

Petition denied.

Gross and Damoorgian, JJ., concur.


author: Kuntz, J.

text:
    Michael HASPEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3475
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Michael Haspel, Bowling Green, pro se.
    No appearance required for appellee.
   Kuntz, J.

Michael Haspel, proceeding pro se, appeals the court's denial of his motion for post-conviction relief. The underlying facts are discussed in our opinion affirming his convictions. See Haspel v. State , 164 So.3d 6 (Fla. 4th DCA 2014).

In his motion for post-conviction relief, Haspel raised four claims of ineffective assistance of counsel: (1) failure to call witnesses; (2) advising to reject plea offer; (3) failure to request lesser-included offense jury instruction; and (4) advising against testifying. Haspel also argued cumulative error. The court denied the motion, and the record shows that his claims lack merit. Haspel told the court he did not want to call any additional witnesses; the State did not make a plea offer; counsel did request the jury instruction; and Haspel told the trial court it was his decision not to testify. Thus, as to those five claims, we affirm.

That said, in his brief on appeal, Haspel states that he filed an amended motion raising supplemental claims. Based on this assertion, we ordered the State to show cause why the court's order should not be reversed to allow the court to address the two claims raised in his supplemental motion. In response, the State asserts Haspel fails to establish the supplemental motion and claims exist. But Haspel has now done so. In reply to the State's response, Haspel filed a copy of his supplemental motion which bears a stamp from the prison mail system of May 19, 2016, and his supplemental motion is considered filed on that date. Johnson v. State , 969 So.2d 402, 403 (Fla. 4th DCA 2007) ("[U]nder the 'mailbox rule,' a prisoner's pleading is deemed filed the date that it is placed in the hands of prison officials."); see also Earls v. State , 958 So.2d 1153, 1153 (Fla. 1st DCA 2007).

Of course, the filing of an amended motion must be authorized and timely. Florida Rule of Criminal Procedure 3.850(e) provides that a motion may be amended at any time before the court rules on the motion or orders the state to respond. Here, the circuit court did not order the State to respond to Haspel's original motion until May 24, 2016. So Haspel submitted his supplemental motion days before the court ordered the State to respond to his original motion. Thus, his supplemental motion was both authorized and timely.

The court's order is affirmed in part and reversed in part. We affirm the order to the extent that it denied the claims raised in Haspel's May 10, 2016, motion for post-conviction relief. The court's order, however, is reversed for failing to address the claims raised in Haspel's May 19, 2016, supplemental motion. The case is remanded for further proceedings limited to the issues raised in Haspel's May 19, 2016, supplemental motion.

Affirmed in part, reversed in part.

WARNER and LEVINE, JJ., concur.

      Our review of the record indicates the court was not aware the supplemental motion had been filed.


author: Per Curiam.

text:
    Worthy Moses MCCULLOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1166
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Antony P. Ryan, Director, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Worthy McCullough appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion following an evidentiary hearing. In his motion, McCullough alleged seven grounds for relief, but he appeals the trial court's denial of grounds two and five only. With respect to ground five, we affirm without comment.

In ground two, which was summarily denied prior to the evidentiary hearing, McCullough alleged that trial counsel was ineffective for failing to call McCullough's grandmother, Ruby Wright, as an alibi witness. He claimed that Ms. Wright would have testified that McCullough was at home with her when the crimes in this case were committed. He also alleged that she was available to testify at the time of his trial.

We conclude that McCullough stated a facially sufficient claim based on counsel's alleged failure to call a witness because he: (i) identified the witness; (ii) specified the content of her testimony; (iii) alleged that she was available to testify at trial; and (iv) sufficiently alleged that failure to call her to testify resulted in prejudice. Youmans v. State , 222 So.3d 1, 2 (Fla. 4th DCA 2017). With respect to prejudice, we note that "the mere existence of evidence of guilt is insufficient to conclusively rebut a claim of ineffectiveness in failing to present evidence of innocence in the form of known and available alibi witnesses." Jacobs v. State , 880 So.2d 548, 555 (Fla. 2004).

Accordingly, we affirm as to ground five and reverse as to ground two with instructions for the trial court to either attach records conclusively refuting McCullough's claim or, in the alternative, conduct an evidentiary hearing.

Affirmed in part; reversed and remanded in part.

Ciklin, Levine and Klingensmith, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Tyler KERSTING, Respondent.
    No. 4D18-291
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for petitioner.
    Michael D. Leader of Leader & Leader, P.A., Fort Lauderdale, for respondent.
   Per Curiam.

The State of Florida seeks certiorari review of a pretrial order that compels the non-testifying disabled victim in a pending DUI criminal case to undergo a neurological examination to ascertain his conscious awareness of the legal proceeding. Upon receipt of the results, the trial court will rule on the defendant's pending motion in limine, which seeks to exclude the victim from the courtroom during his trial. We grant the petition and quash the order compelling the exam. Smart v. Bock , 220 So.3d 1196, 1197 (Fla. 4th DCA 2017) (recognizing that certiorari review lies to review order compelling a mental health exam).

Article I, section 16(b) of the Florida Constitution provides that crime victims have the right to be present at all crucial stages of criminal proceedings "to the extent that these rights do not interfere with the constitutional rights of the accused." The Florida Constitution's language and the commentary currently state that the victim's rights are subordinate to the rights of the accused to the extent they would interfere with the accused's rights.

The trial court ordered the examination in its effort to balance the disabled victim's constitutional right to be present at trial with the defendant's constitutional right to a fair trial. To that end, the neurologist's role is to determine if the catastrophic injury that the victim suffered prevents him from understanding the judicial proceedings. The trial court indicated that the victim will be allowed to be present in the courtroom if he is "aware."

We grant the petition for two reasons. First, the exam infringes upon the victim's right to remain inviolate from an invasive examination not authorized or required by law. See Fla. Const., art. I, § 23. ("Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided therein."); State v. Smith , 260 So.2d 489, 491 (Fla. 1972) (holding that trial court could not compel a witness to be examined for visual acuity). As the Florida Supreme Court stated in Smith , "[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of an individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Smith , 260 So.2d at 491 (citation omitted).

Second, the record does not reflect that this is a case where the exam targets evidentiary or impeachment issues. See generally State v. Rhone , 566 So.2d 1367 (Fla. 4th DCA 1990) ; State v. Kuntsman , 643 So.2d 1172 (Fla. 3d DCA 1994). We note that, even in such cases, Florida appellate courts have closely guarded the victim's privacy interests. See State v. Farr , 558 So.2d 437, 438 (Fla. 4th DCA 1990) (quashing order requiring second examination of minor sex crime victim in the absence of extreme or compelling circumstances); Dinkins v. State , 244 So.2d 148, 150 (Fla. 4th DCA 1971) (upholding denial of motion to compel examination of sexual battery victim because exam was not essential to prevent miscarriage of justice); State v. Diamond , 553 So.2d 1185, 1194 (Fla. 1st DCA 1988) (quashing order for gynecological exam of child witness and citing Smith as a "firm warning" against the "spontaneous generation" of a criminal defense right to subject victims to physical examination).

We decline to consider the cases cited by the parties addressing civil suits wherein courts have considered excluding the plaintiff from trial. Those cases do not address the limited issue before this court: the propriety of the victim's neurological exam. Therefore, in granting this petition, we make no finding regarding the pending motion to exclude the victim from the courtroom.

To the extent the trial court seeks to balance the victim's constitutional right to be present at trial with the defendant's constitutional right to a fair trial, it will have to do so without subjecting the victim to the neurological examination.

Petition granted. Order quashed.

Gerber, C.J., Levine and Conner, JJ., concur.


author: May, J.

text:
    Jamin CHAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-1132
    District Court of Appeal of Florida, Fourth District.
    [May 16, 2018]
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   May, J.

On appeal from his sentence for attempted first degree murder and two counts of attempted robbery, the defendant argues the trial court erred in sentencing him as a prison releasee reoffender ("PRR") because the jury did not find that he was released from prison within three years prior to the present case. He also argues the trial court erred in failing to cite the applicable county ordinance in the cost order. We disagree with him on both issues and affirm.

Chapa v. State , 159 So.3d 361 (Fla. 4th DCA 2015), is dispositive on the PRR issue. There, we held that it is unnecessary for a jury to make the requisite findings for a PRR sentence. Id. at 362. Here, the trial court found: "beyond a preponderance, probably beyond clear and convincing evidence that he does qualify as a prison releasee reoffender having been released from the Department of Corrections on November 11, 2012, and the offense having occurred on July 17, 2014, within three years." This was sufficient to support the PRR sentence.

In his second issue, the defendant argues the court erred in imposing costs without referencing the applicable county ordinance supporting the imposition of a $65 assessment, pursuant to section 939.185, Florida Statutes (2016).

In response to the defendant's 3.800(b) motion, requesting a breakdown of the court costs, the trial court issued an order providing a detailed breakdown of the costs with citations to Florida Statutes for each assessment. One cost was $65 for "ADDITIONAL COSTS (BOCC)-PROGRAMS Mandatory with Ordinance ," pursuant to section 939.185(1)(a).

We have previously held that the trial court need not cite statutory authority for the imposition of costs. See Johnson v. State , 944 So.2d 474 (Fla. 4th DCA 2006), aff'd , 994 So.2d 960 (Fla. 2008). We now hold there is likewise no need to cite the ordinance for which court costs are imposed. That being said, the trial court cited the applicable statute. Section 939.185(1)(a) provides that the "board of county commissioners may adopt by ordinance an additional court cost, not to exceed $65, to be imposed by the court" after a person is found guilty of a felony.

We recognize that the First District has remanded a case for citation to the appropriate ordinance for costs under section 939.185. See Carter v. State , 173 So.3d 1048, 1051 (Fla. 1st DCA 2015). The Second District has also directed that future court orders include a reference to both the statute and any applicable ordinance. Ayoub v. State , 901 So.2d 311, 315 (Fla. 2d DCA 2005). And yet, another Second District opinion has affirmed the imposition of costs finding that reference to the statute was sufficient, and it was unnecessary to cite the local ordinance. See Stewart v. State , 906 So.2d 1128, 1129-30 (Fla. 2d DCA 2005).

Here, the trial court cited the statutory authority to impose the costs, but did not cite the specific ordinance. In line with Johnson , this was more than sufficient. We affirm.

Affirmed.

Taylor and Kuntz, JJ., concur.


author: Warner, J.

text:
    Anthony MOSCATIELLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3695
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    J. Rafael Rodriguez of the Law Offices of J. Rafael Rodriguez, Miami, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Warner, J.

This is an appeal from appellant's conviction for premeditated murder and conspiracy to commit first degree murder. Although appellant raises many issues, one requires reversal. The trial court allowed into evidence, over the objection of the defense, the testimony of a witness at a bond hearing for appellant, where the witness had died subsequent to the bond hearing. In his testimony, the witness related statements by John Gurino which amounted to an admission that Gurino was the shooter in the murder and that he "got the work from Moscatiello [appellant]." We conclude that this statement-that Gurino "got the work from Moscatiello," which featured prominently in both the opening and closing arguments of the State, was inadmissible hearsay. Because the State has not shown that it was harmless beyond a reasonable doubt, we must reverse.

The Murder

On February 6, 2001, Gus Boulis, a successful businessman, left his office in Broward County around 9 p.m. As he was heading south on Miami Road, a car stopped in front of him. Boulis stopped his vehicle, and another car pulled in behind Boulis so that he was boxed in. An innocent bystander was in a third car that stopped behind the first two cars. A red Jetta pulled up behind the bystander's car. While they were all stopped in a row, a black Mustang came from the opposite direction, and pulled up next to Boulis's vehicle. Someone in the Mustang fired several shots, killing Boulis. After the shooting, the bystander noticed that the red Jetta behind him drove off the road around him, and then took off. Later, he saw the red Jetta circling the block, perhaps looking for him. The bystander memorized the partial tag number of the temporary tag on the Mustang and, when he got home, called 911. Testimony revealed that both the Mustang and the Jetta were owned by Anthony "Little Tony" Ferrari, a co-defendant in this case.

The next day Dwayne Nicholson, an employee of Ferrari, called to report his knowledge about the murder. Eventually, he gave several statements implicating both Ferrari and Anthony "Big Tony" Moscatiello (appellant) in the murder. Thus, from 2001, the authorities knew of evidence connecting appellant to the murder. It took an additional four years for them to gather all the evidence and indict him, along with Ferrari and James Fiorillo, another employee of Ferrari, for the murder.

The State's theory of the case was that Moscatiello and Ferrari were hired by Adam Kidan to protect him from Boulis, from whom Kidan had purchased a business. For reasons somewhat unclear, Moscatiello determined that Boulis needed to be killed so that Moscatiello and Ferrari would not lose the protection payments from Kidan. The complicated story commences with the sale of the business from Boulis to Kidan. While there was some documentary evidence supporting meetings and payments, the direct testimony linking Moscatiello to the crime all came from witnesses each of whom received substantial benefits for their testimony.

The Prelude to the Murder

The victim, Gus Boulis, had become successful as the owner of Miami Subs sandwich shops before founding SunCruz Casinos, a fleet of gambling casino boats. Eventually, the Attorney General's office advised Boulis that he had to sell SunCruz because he wasn't an American citizen when he started the business. As a result, Boulis sold the business to Adam Kidan and Jack Abramoff. Boulis received $23 million in cash and was supposed to get another $20 million, which he never received. The business relationship between Boulis and Kidan soured. Kidan was afraid that Boulis might harm him in retaliation for lack of payment, so he reached out to his connections in New York, and asked Moscatiello to assist him. Kidan wanted the word out that he, Kidan, had "connections." Moscatiello introduced Kidan to Ferrari in Miami to provide security or protection. Ferrari bragged to people that he was John Gotti's nephew and head of the Gambino family in Florida. For this protection, Kidan entered into a deal with Moscatiello for Moscatiello to be a "consultant" supplying beverages and paper goods for the gambling casino boat. Through Ferrari's business in Miami, Ferrari would arrange for Kidan's protection. Kidan paid Moscatiello monthly for the protection.

In November 2000, Moscatiello flew to Miami. Ferrari brought along Dwayne Nicholson and several other bodyguards as security to pick up Moscatiello from the airport. Ferrari, Moscatiello, and Nicholson rode in one vehicle, while the rest of the security team rode in others. While they were driving to a hotel, Nicholson testified that Ferrari and Moscatiello discussed the fact that they did not want to pay Boulis the extra money he was owed on the sale of Sun Cruz. Ferrari responded that Nicholson would take care of Boulis. Moscatiello turned to Nicholson and said, "Now, you know what he means ... we need Gus killed. Are you able to do it?" Nicholson did not say anything, because he thought he would be killed if he didn't agree. Ferrari had previously asked him whether he would kill Boulis, and Nicholson had declined.

The next day, Ferrari and Nicholson picked up Moscatiello and drove to the SunCruz office to show Nicholson the office, the ships, and the vehicle that Boulis drove. Moscatiello said that Boulis had to be taken care of prior to an upcoming court date. After Moscatiello was dropped off, Nicholson again complained to Ferrari that he wasn't going to kill Boulis. Ferrari told him just to surveil Boulis, and he would figure out later what to do.

Meanwhile, Kidan became frustrated with his relationship with Ferrari and his protection service. While Kidan was out of the country, he terminated his relationship with Ferrari. That same day, Boulis was killed.

The Murder and its Aftermath

James Fiorillo was another assistant to Ferrari, who was more like a son to him. Fiorillo did multiple errands for Ferrari and other tasks. On the day of the murder, Fiorillo arrived at Ferrari's home in a black Mustang belonging to Ferrari, which Fiorillo frequently drove. He then switched vehicles with Ferrari. Ferrari drove away, and Ferrari's girlfriend followed in his red Jetta. Fiorillo also had access to several of Ferrari's phones.

Although the innocent bystander witnessed the murder, he could not identify anyone in any of the vehicles. The partial license number he obtained did match up to the black Mustang. Thus, no independent witness testified as to who was present at the scene. However, Fiorillo knew about the murder and what occurred.

Fiorillo went to Ferrari's home after the murder. Ferrari gave him a bag containing a gun, which Fiorillo disposed of. Fiorillo also drove the Mustang to a repair shop. The next day, Fiorillo met with Ferrari and Moscatiello at a hotel. Moscatiello told Fiorillo to drive to New York and to report the Mustang as stolen, which he did. In New York, Fiorillo met with Moscatiello. When Moscatiello asked for the details of the events leading up to the murder and the murder itself, Moscatiello became very angry. He told Fiorillo to stay in New York, and Ferrari's girlfriend allowed Fiorillo to stay with her for a week there, after which he stayed in a hotel. Fiorillo worked for Moscatiello for a while and then returned to Florida sometime in April. Ultimately, Fiorillo was arrested and charged with conspiracy to commit murder for which the State was seeking the death penalty, as the State originally believed that he was the shooter. He reached a plea deal in which he agreed to testify against Moscatiello and Ferrari in exchange for a six-year prison sentence.

When Kidan returned to Florida after the murder, he met Moscatiello in his hotel room and asked if he knew what happened. Moscatiello said, "Yes, it was very unfortunate, it wasn't supposed to happen that way." Moscatiello admitted that it was his decision. He explained that the plan was to kidnap Boulis, kill him, and bury his body on a farm where he would not be found for years. Kidan asked who was involved, and Moscatiello told him that the shooter came down from New York and went home on Amtrak. Fiorillo drove the car, and Ferrari was in another car. Kidan knew that a Mustang had been used in the murder and he knew Fiorillo had one, so he asked Moscatiello if that was the same car. Moscatiello told him it was the same Mustang. Kidan complained that that car should not have been used.

Kidan had made significant payments to both Moscatiello and Ferrari for protection. In June 2001, Kidan made a last payment, and then SunCruz went into bankruptcy. Later, Kidan was being investigated by the FBI in connection with the murder. In April 2004, Kidan met Moscatiello in New York and explained that he was being investigated by the government. He told Moscatiello that he thought someone was cooperating with the government. Kidan asked about the shooter, and Moscatiello told him that the shooter had died after he was shot in a deli in Boca Raton. Kidan googled the incident and discovered that the man who had been shot was named John Gurino.

Kidan was convicted of wire fraud in connection with the SunCruz purchase and sale and went to prison in 2006. He contacted law enforcement about cooperating in the Boulis murder investigation in 2006, and his original sentence of five years was cut to twenty-seven months. He testified against Moscatiello at the trial, giving details of the SunCruz sale and Moscatiello's activities.

Nicholson Contacts Law Enforcement and Investigation Commences

The day after the murder, Nicholson was watching the news and saw that Gus Boulis had been killed, and police were looking for a black Mustang. Nicholson knew that Fiorillo usually drove the Mustang. He was afraid that he might be killed next, so he called Crime Stoppers. He was put in touch with law enforcement, and gave a statement to Fort Lauderdale police on February 9, 2001.

Police asked Nicholson to call Ferrari by phone, which they attempted to record without success. Then police asked him to meet with Ferrari while wear a listening device hidden inside a beeper. When Nicholson met with Ferrari, Ferrari grabbed the beeper and asked about it. Nicholson told him his girlfriend had given it to him to keep track of him.

Thereafter, Nicholson tried to avoid Ferrari, although he was still owed money for his work for Ferrari. Around Memorial Day, another of Ferrari's assistants, Ben Potter, came by Nicholson's house to tell him that Ferrari wanted to speak to him. Nicholson, Fiorillo, and Potter drove to Ferrari's mother's house in Venice, Florida. On the way, Fiorillo asked Nicholson if he (Nicholson) was going to kill him (Fiorillo). Nicholson responded that he thought Fiorillo and Potter were going to kill him (Nicholson). At Ferrari's mother's home, Ferrari told Fiorillo that he was "running his mouth" too much, referring to Fiorillo's recent trip to New York.

Sometime after Memorial Day, Nicholson confronted Ferrari about money Ferrari still owed him for his services. Ferrari called Moscatiello about the money, and put the call on speaker phone. When Ferrari asked him about the money, Moscatiello answered, "F*ck those n****rs, just kill them." Nicholson never got his money.

Nicholson was never charged with any crime as a result of his interactions with Ferrari and Moscatiello. He received a six figure Crime Stopper's reward for his assistance. He also testified against Moscatiello.

The State's Other Evidence Connecting Moscatiello to the Murder

In 2007, several years after Moscatiello and Ferrari had been charged, Joseph Marley wrote a letter to the state attorney offering information regarding Moscatiello. Marley had been in custody in the county jail for over two years on a drug trafficking charge. His crimes could have resulted in a seventy-five year sentence. Looking for leniency, he negotiated a plea in exchange for his information and testimony, which allowed him to be sentenced to time served and to be released upon pleading to the charges.

Marley was a limousine driver in New York, and would hang out at clubs owned by John Gotti. He would see Moscatiello at those clubs. Marley used to work for Anthony and Michael Gurino, who were cousins of John Gurino, who became the suspected gunman in the Boulis murder. About six weeks after the Boulis murder, Marley ran into John Gurino at the Coconut Creek casino. Gurino kissed him and said he (Gurino) had a new nickname, "SunCruz Kid." At first Marley didn't know what he was talking about, and Gurino said "Don't you read the papers?" Then it dawned on Marley that he was referring to the murder of Gus Boulis, which he had seen reports of on television. Marley asked, "Was that you?" Gurino looked at him with a smirk, which Marley interpreted as a "yeah." And, Marley said, "What were you doing, shaking him down?" Gurino laughed and said, "Something like that. I got the work from Moscatiello." In 2003, John Gurino was himself murdered in a Boca Raton deli.

The State also read the testimony of Nick DiMaggio, who was in a federal witness protection program and unavailable. He had testified in prior proceedings involving the Boulis murder. DiMaggio was a lifetime criminal and had known Moscatiello his whole life. He also knew John Gurino, who was his best friend. In 2000 or 2001, Moscatiello had asked DiMaggio to stop by his house in New York. During their meeting, Moscatiello offered him $100,000 to go to Florida and kill Gus Boulis. Moscatiello explained that Boulis was making a lot of problems with a gambling business and a lot of money was at stake. DiMaggio was insulted because he was being asked to kill someone for money rather than for "principle." He left the meeting and told Gurino about the offer. Later, he became aware that Boulis was in fact killed when he received a news article about the murder, sent to him by Gurino. A few weeks later, DiMaggio spoke with Moscatiello in New York, and Moscatiello told him "he took care of it." However, Gurino never told DiMaggio that he had shot Boulis, and DiMaggio would have been shocked if he did, as Gurino lived by the same principles as DiMaggio. DiMaggio testified as part of a plea negotiation, which required him to testify in this case and others. For his testimony in various proceedings, including this one, the government did not charge him with multiple crimes, which included murders. He was held in custody for nearly seven years, but at sentencing, he received a sentence of only a year. He was released to the witness protection program.

Finally, Paul Brandreth, a convicted felon in federal prison for a drug crime and for second degree murder in a state prosecution, testified that he was approached by Ferrari to kill three people, including a black man (Nicholson) and a woman (Ferrari's girlfriend), both of whom lived in South Florida, and a person in a hotel in Yonkers (Fiorillo), for whom law enforcement was looking. Ferrari needed Brandreth to get to Fiorillo before the investigators did. Brandreth travelled to New York and stayed with Fiorillo, ostensibly for Fiorillo's protection. When Brandreth arrived, he was picked up at the airport by Moscatiello. Moscatiello said to him, "so you're the one, kid, huh? You're the one, nothing but a f*cking hat trick for you. Nothing but a Trifecta." Brandreth knew he was referring to the three people Brandreth was supposed to "whack." He asked Moscatiello for his money. Moscatiello replied, "What do you mean? I thought the other Tony took care of you." Brandreth told him he needed a "paintbrush" which was code for a gun. Moscatiello said that he didn't have a gun, but he had "a shotgun from a fed job he did one time." Moscatiello told him to wait for a phone call, but not to kill Fiorillo at the hotel because he owned the hotel. Brandreth stayed with Fiorillo, but never got a phone call or gun. He returned to Florida. In 2012, he was visited by two officers while he was in prison for murder and federal charges. In his state murder case, prosecutors agreed to have his state sentence terminate when his federal sentence terminated in exchange for his testimony in this case, significantly reducing his prison time.

The State rested, and Moscatiello did not call any witnesses. Nevertheless, the defense had extensively cross-examined the witnesses and impeached the witnesses in significant respects. Throughout the trial, the defense claimed that all of the witnesses were lying and making up stories to avoid their own prosecutions. The jury deliberated for two days and then found Moscatiello guilty of murder and conspiracy to commit murder. The court sentenced him to life imprisonment on the murder conviction and to thirty years concurrent on the conspiracy to commit first degree murder. He now appeals.

Moscatiello argues that the court erred in admitting the testimony of Joseph Marley, which had been given at a bond hearing, claiming that it was inadmissible hearsay and a violation of the Confrontation Clause. Marley, who was deceased by the time of trial, had earlier testified at a bond hearing regarding the conversation with John Gurino, who was also deceased by the time of trial. The trial court admitted the testimony under section 90.804(2)(a) and (c), Florida Statutes (2013), under the former testimony and statement against interest exceptions to the hearsay rule.

Evidentiary rulings are reviewed for abuse of discretion as limited by the rules of evidence. Nardone v. State , 798 So.2d 870, 874 (Fla. 4th DCA 2001). Whether evidence is hearsay or admissible under an exception to the hearsay rule is a question of law subject to de novo review. Browne v. State , 132 So.3d 312, 316 (Fla. 4th DCA 2014) ; Powell v. State , 99 So.3d 570, 573 (Fla. 1st DCA 2012).

Moscatiello claims that the testimony of Marley constituted hearsay within hearsay, as both Marley and Gurino were unavailable to testify. Section 90.805, Florida Statutes, allows the admission of hearsay statements within hearsay, as long as "each part of the combined statements conforms with an exception to the hearsay rule as provided in s. 90.803 or s. 90.804." We examine whether Marley's testimony can be allowed under the former testimony exception of section 90.804(2)(a), Florida Statutes (2013), and whether Gurino's statements are admissible as statements against interest under section 90.804(2)(c), Florida Statutes (2013).

Moscatiello concedes that testimony at a bond hearing may qualify as former testimony. See Petit v. State , 92 So.3d 906, 912-13 (Fla. 4th DCA 2012) ; Roussonicolos v. State , 59 So.3d 238, 241-43 (Fla. 4th DCA 2011). However, he claims that he did not have the same opportunity or motive to question Marley at the bond hearing as he would have at trial. We disagree.

Florida Rule of Evidence 90.804(2)(a), Florida Statutes (2013), permits the use of former testimony "if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." As we noted in Roussonicolos , at a bond hearing, "the purpose of the hearing [is] for the court to consider whether [the defendant] should be released and, if so, what conditions should be imposed pending his final [ ] trial." 59 So.3d at 242 ; see also Petit .

In this case, Moscatiello had requested an Arthur hearing seeking his release pending trial. See State v. Arthur , 390 So.2d 717 (Fla. 1980). One of the issues involved in such a hearing is that the State must prove that "the proof of guilt is evident or the presumption great." Id. at 717. Where the State presents evidence of the defendant's guilt, but the evidence is contradicted in material respects, the State has not met its burden. See State v. Perry , 605 So.2d 94, 99 (Fla. 3d DCA 1992). In order to secure release, the defendant has every incentive to cross-examine the witnesses to show conflicts and contradictions in the evidence. Id. at 97-98. Moscatiello had a "similar motive" at the bond hearing, as he would have at trial, to discredit the witness, and he had the opportunity to cross-examine the witness. That he may not have done so does not render the testimony inadmissible, as he was given the opportunity for effective cross-examination. See Petit , 92 So.3d at 912. Actually, the defense attorney did extensively cross-examine Marley and developed substantial discrediting information, including the fact that Marley had come forward to the prosecution to reduce his own charges. Therefore, the Arthur hearing satisfied the requirement of section 90.804(2)(a).

Further, we reject Moscatiello's contention that the trial court must also make a preliminary finding that the testimony is trustworthy before admitting it. No such requirement is contained within section 90.804(2)(a), unlike section 90.804(2)(c), where the admissibility of a statement against penal interest is conditioned on its trustworthiness. Where the witness can be challenged by cross-examination to ferret out inconsistencies and contradictions, the search for the truth has occurred.

The statements of Gurino, to which Marley testified, are also hearsay, and Moscatiello claims they did not fall within the statement against interest exception to the rule. The trial court found that they qualified as statements against penal interest, and thus, would have been admissible under section 90.804(2)(c). That rule allows the admission of certain statements of a declarant when the declarant is unavailable, as Gurino was because of his death. These include:

(c) Statement against interest.-A statement which, at the time of its making, ... tended to subject the declarant to liability or to render invalid a claim by the declarant against another, so that a person in the declarant's position would not have made the statement unless he or she believed it to be true.

In Brooks v. State , 787 So.2d 765 (Fla. 2001), our supreme court considered this rule in connection with a non-testifying co-defendant's confession which also inculpated the defendant. In discussing the rule, the court said:

"The reliability of these statements [against penal interest] flows from the fact that they are against the interest of the declarant at the time when they are made [as well as the presumption that a] person does not make statements which will subject him or her to civil or criminal sanctions unless they are true." Charles W. Ehrhardt, Florida Evidence § 804.4 (2000 ed.); see also Williamson v. United States , 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed. 2d 476 (1994)....

Id. at 774 (first bracket added; second bracket in original). The court then provided the following guidance: "Therefore, assuming the other requirements of section 90.804(2)(c) are met, it follows that a nontestifying codefendant or accomplice's confession or inculpatory statement which also implicates the defendant should only be admitted if it 'sensibly and fairly can be redacted to include only those statements which are solely self-inculpatory.' Franqui v. State , 699 So.2d 1332, 1339 (Fla. 1997)." Id. at 775. In other words, only those self-inculpatory portions of a declarant's statement meet the requirements of section 90.804(2)(b). Thus, those portions which are non-self-inculpatory are not admissible pursuant to this section. See Williamson , 512 U.S. at 599-600, 114 S.Ct. 2431 (holding that a similar federal rule applies narrowly only to those declarations or remarks in a confession that are individually self-inculpatory).

Following Brooks, several courts have held that non-self-inculpatory statements within a witness's narrative are inadmissible as statements against interest, where they implicate another in the crime. The court in Antunes-Salgado v. State , 987 So.2d 222, 226 (Fla. 2d DCA 2008), held "while [the appellant's] codefendants' statements were partially self-inculpatory, the State also presented those portions of the statements that implicated Antunes-Salgado and that shifted the majority of the guilt to him. These portions of the statements were inadmissible under section 90.804(2)(c) and Lilly [v. Virginia , 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed. 2d 117 (1999) ] and Williamson ...."

In Perez v. State , 980 So.2d 1126, 1132 (Fla. 3d DCA 2008), a nontestifying declarant (Laurencio) admitted to a friend (Martin) that he had committed the robbery in question, and "The Fish" accompanied him. The Fish was a person associated with the defendant, Perez, and was a material link in State's case against Perez. Id. at 1129. Relying on Williamson and Brooks , the court agreed that the first part of the statement that Laurencio had committed the robbery was admissible as a statement against interest but the statement about the Fish being involved was not:

The collateral statement by Laurencio to Martin about "The Fish" was not made against the declarant's penal interest because it was not inculpatory as to Laurencio. The statement that "The Fish" participated in the robbery was hearsay and does not fall within an exception to the rule. Therefore, Laurencio's statement concerning "The Fish's" involvement in the robbery should have been excluded from evidence before the jury and the defendant's objection should have been sustained.

Id. at 1133 ; accord State v. Crofoot , 97 So.3d 866, 868 (Fla. 1st DCA 2012).

On the other hand, our court has decided two cases which held statements admissible in similar factual circumstances, but did not discuss whether portions which were non-self-inculpatory should be redacted. In Machado v. State , 787 So.2d 112 (Fla. 4th DCA 2001), the State charged Machado and Olivera with robbery and murder, which involved four assailants, including Machado's uncle, Enrique, who was killed at the scene of the murder. Id. at 113. Enrique's son testified for the prosecution and related a conversation that Olivera had with him at his father's funeral, in which Olivera bragged that the police could not catch him. Id. In a later conversation with the son, Olivera explained that four men (Olivera, Enrique, the defendant Machado, and a fourth man) had ambushed the victim and the victim had shot at them. Id. On appeal, defendant Machado argued that Enrique's son's testimony, repeating Olivera's statements, was inadmissible hearsay. Id. The court rejected that argument, finding that a non-testifying accomplice's statement against penal interest was admissible as a hearsay exception, if the circumstances showed trustworthiness. Id. at 113-14. Because Olivera's statement, made in a personal setting, described how Enrique died and how Olivera had evaded arrest, without showing any intent to shift blame, it was trustworthy. Id. at 114. "A non-testifying accomplice's statement against penal interest is admissible as a hearsay exception if corroborating circumstances show the statement has 'particularized guarantees of trustworthiness.' " Id. at 113, quoting Lilly v. Virginia , 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed. 2d 117 (1999). The opinion in Machado did not discuss whether any portion of the statement that was non-self-inculpatory should have been redacted, as not meeting the requirements of the section 90.804(2)(c) exception. That portion of the statement implicating Machado also appears to have been inextricably intertwined with the explanation of the crime. Also, Machado was also decided before our supreme court issued Brooks .

We considered a factually similar case in Brown v. State , 69 So.3d 316 (Fla. 4th DCA 2011). There, the defendant Brown was charged with robbery and murder. Id. at 317. The trial court allowed a witness to testify, over objection, to a conversation he had with one of Brown's codefendants. Id. at 317-18. The witness was talking to the co-defendant in the neighborhood when the co-defendant implicated himself as well as defendant Brown and the other co-defendant in the crimes. Id. at 317. The co-defendant explained to the witness that they had robbed the victims and then shot them after they did not comply with directions. Id. The objection to the statements appeared to center around their trustworthiness, as both the trial court and our court relied on Machado in concluding that the statements were trustworthy because, among other reasons, the co-defendant had not attempted to shift blame and the statement was made to a friend, not to authorities. We distinguished Brooks on the ground that it was factually dissimilar. Id. at 320. In Brooks , the non-testifying co-defendant's statement on the whole tended to shift blame and was made to authorities, making it self-serving and lacking in trustworthiness. Id. It does not appear from the Brown opinion that any argument was made that those portions of the statement which were non-self-inculpatory should have or could have been redacted.

Because the argument was not made in Machado and Brown that the statement should be redacted to eliminate those portions which are not statements against interest, we apply Brooks . Where the State is seeking to admit the out of court statements of co-defendants or accomplices pursuant to the requirements of section 90.804(2)(c), and some of the statements also implicate the defendant, they should not be admitted where they "sensibly and fairly can be redacted to include only those statements which are solely self-inculpatory." Brooks , 787 So.2d at 775 (citing Franqui , 699 So.2d at 1339 ).

The statements in Machado and Brown appear to be so intertwined with the statement against penal interest of the co-defendant that they may not have been able to be redacted. In this case, however, we conclude that they can be, and should have been, redacted. Marley's testimony that Gurino called himself the "SunCruz kid" was admissible as a statement against penal interest. But Gurino's statement that "I got the work from Moscatiello" implicated another defendant, and was not solely self-inculpatory. It did not satisfy the requirements of section 90.804(2)(c) or the requirements of Brooks . It could have been omitted and still "sensibly and fairly" provided the information from Gurino as to his participation in the crime without implicating Moscatiello. The trial court erred in admitting this statement at trial.

State v. DiGuilio , 491 So.2d 1129 (Fla. 1986) requires that the State must carry the burden of showing that an error is harmless beyond a reasonable doubt. DiGuilio cites with approval to Chief Justice Traynor's observations regarding harmless error:

Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution's case may have played a substantial part in the jury's deliberation and thus contributed to the actual verdict reached, for the jury may have reached its verdict because of the error without considering other reasons untainted by error that would have supported the same result.

Id. at 1136, citing People v. Ross , 67 Cal. 2d 64, 429 P.2d 606, 621, 60 Cal.Rptr. 254, 269 (1967) (Traynor, J., dissenting).

It is hard to avoid the conclusion that the inadmissible statement implicating Moscatiello constituted "a substantial part of the prosecution's case." The State placed great emphasis on Gurino's statement to Marley. The prosecutor made it the last point in opening statement and the first statement in closing argument. In fact, the prosecutor's closing argument began: "I got the work from Moscatiello." The prosecutor spent the first several minutes of closing argument discussing these statements from Marley, and stating, "It identifies Mr. Moscatiello as the person who brings Mr. Gurino in." While other witnesses also tied Moscatiello to Gurino, none were quite as direct as Marley's statement about what Gurino had told him. And most of the key witnesses in the case had made deals with the State for their testimony, thus impacting their credibility. Many of them had made those deals after Moscatiello had been indicted, and at a time when the State had developed Fiorillo as the shooter. The defense made much of the lack of credibility of the witnesses and the shifting theories of the State. The jury requested a readback of Marley's testimony, although it later withdrew the request, but it highlights the significance of that testimony to the jurors. They deliberated for nearly two days before reaching their verdict.

Given the substantial issues of credibility of all of the major witnesses in the case, we cannot say that the State has shown beyond a reasonable doubt that the error in admitting Gurino's statement was harmless. See Shiver v. State , 900 So.2d 615, 618 (Fla. 1st DCA 2005) (finding the erroneous admission of an affidavit was not harmless error where the State made it a feature of closing argument). We are mindful that there is plenty of evidence of Moscatiello's guilt. But our supreme court has consistently stated that overwhelming evidence is not the test, particularly where the erroneously admitted evidence becomes a focal point of the trial. See State v. Lee, 531 So.2d 133 (Fla. 1988). We are constrained by these rulings.

As to the remaining issues raised, we affirm. But, because we cannot conclude that the error in admitting Gurino's statement regarding Moscatiello is harmless under DiGuilio , we reverse for a new trial.

Gross and Taylor, JJ., concur.

      John Gotti was the boss of the Gambino crime family in New York.

      This was later confirmed, through testimony at trial, from the man who shot Gurino at the deli.

      In Lilly , however, the Court dealt with a challenge to such a statement as violating the Confrontation Clause, not whether it is was admissible as a statement against interest. Thus, the test from Lilly requiring a guarantee of trustworthiness was for those purposes. Here, the statements of Gurino were not testimonial, and thus, the Confrontation Clause did not apply.


text:
    Ross Jay LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-767
    District Court of Appeal of Florida, Fourth District.
    [May 30, 2018]
    Ross Jay Lawson, Lowell, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Fitzpatrick v. State , 868 So.2d 615 (Fla. 2d DCA), rev. denied , 891 So.2d 550 (Fla. 2004).

Warner, Damoorgian and Levine, JJ., concur.


text:
    Jorge C. GARRIDO, Appellant, v. Patricia A. GARRIDO n/k/a Patricia Martinez, Appellee.
    No. 4D17-2140
    District Court of Appeal of Florida, Fourth District.
    [June 6, 2018]
    Troy William Klein, West Palm Beach, for appellant.
    No brief filed for appellee.
   Gerber, C.J.

The former husband appeals from the circuit court's final judgment upon the former wife's motion for attorney's fees. The former husband raises multiple grounds, only one of which has merit. We agree with the former husband that the circuit court erred when it failed to calculate the "lodestar" for the attorney's fees award. As we stated in Nagl v. Navarro , 187 So.3d 359 (Fla. 4th DCA 2016) :

An award of attorney's fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. The lodestar method is an appropriate starting point in domestic relations cases. In using the lodestar method, the trial court should first determine the number of hours reasonably expended on the litigation, and then determine the reasonable hourly rate for the services. Fla. Patient's Comp. Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985).
As the reviewing court, we should be able to discern from the face of the trial court's orders whether the trial court made such determinations. Where there is nothing in the trial court's order that allows the appellate court to discern whether ... the Rowe factors were considered in determining a reasonable attorney's fee, a fee award simply taking the amount charged by the attorney and determining it to be reasonable is improper ....

Id. at 361 (other internal citations, quotation marks, and brackets omitted).

Based on the foregoing, we reverse the final judgment and remand for the circuit court to make the appropriate findings as to the reasonableness of the hours expended and the hourly rate. On the other grounds which the former husband raises, we affirm without further discussion.

Affirmed in part, reversed in part, and remanded.

Gross and Conner, JJ., concur.


text:
    Joshua LUCAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-3747
    District Court of Appeal of Florida, Fourth District.
    [June 27, 2018]
    Joshua Lucas, Bonifay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph D. Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant Joshua Lucas appeals an order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Lucas claims that 1) the oral pronouncement of his sentence conflicts with the charging document; 2) the trial court erred in preparing only one scoresheet for six pending cases; and 3) the trial court erred by scoring prior convictions under the additional offense heading. We affirm on issues 2 and 3 without further comment. As to the first issue, the State concedes that the disposition order should be corrected to reflect that appellant was charged with burglary of an unoccupied dwelling under section 810.02(3)(b), Florida Statutes.

We affirm the order denying appellant's motion to correct illegal sentence but remand with directions that the scrivener's error be corrected in the disposition order. Appellant's presence is not required for this correction. See Sweeney v. State , 138 So.3d 1095 (Fla. 4th DCA 2014).

Affirmed; remanded to correct scrivener's error in appellant's sentencing .

Gerber, C.J., Damoorgian and Kuntz, JJ., concur.


text:
    Jack STEIN, Appellant, v. Burton J. DEFREN, Myles Schack, Richard Goodwin, John Charles, and Riverwalk of the Palm Beaches Homeowners Association Inc., Appellees.
    No. 4D17-3761
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Jack Stein, West Palm Beach, pro se.
    Ashley N. Landrum and Karen M. Nissen of Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for appellees Riverwalk of the Palm Beaches Homeowners Association Inc., and John Charles.
   Per Curiam.

The appellant, Jack Stein ("Stein"), appeals the trial court's order dismissing his third-party complaint against the appellees, John Charles and Riverwalk of the Palm Beaches Homeowners Association, Inc., as a sanction for fraud on the court. Stein argues six purported errors by the trial court as a basis for reversal. Five of the asserted errors revolve around arguments that the trial court improperly weighed evidence, improperly conducted the sanction hearing, or applied the facts incorrectly in reaching legal conclusions. Because Stein has not provided us with a transcript of the proceedings and many of the assertions of facts in his brief, which he contends are favorable to his position, do not support his arguments, we affirm the trial court as to those five issues without discussion. However, we find merit in his sixth argument that the trial court erred by failing to make findings of fact in its order granting dismissal as a sanction. As we recently held in Chacha v. Transp. USA, Inc. , 78 So.3d 727 (Fla. 4th DCA 2012) :

An order granting a dismissal or default for fraud on the court must include express written findings demonstrating that the trial court has carefully balanced the equities and supporting the conclusion that the moving party has proven, clearly and convincingly, that the non-moving party implemented a deliberate scheme calculated to subvert the judicial process.

Id. at 731 ; see also Smith v. Brinks, Inc. , 133 So.3d 1176, 1177 (Fla. 4th DCA 2014).

Therefore, we reverse the final order granting dismissal and remand for the trial court to make express written findings. We make no comment on whether reconsideration of the ultimate ruling is warranted or not.

Affirmed in part, reversed in part, and remanded.

Gerber, C.J., Gross and Conner, JJ., concur.


author: Damoorgian, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Jan GROSSMAN, as Personal Representative of the Estate of Laura Grossman, deceased, Appellee.
    No. 4D13-3949
    District Court of Appeal of Florida, Fourth District.
    [July 11, 2018]
    Eric L. Lundt, Gordon James III and Robert C. Weill of Sedgwick LLP, Fort Lauderdale, and Jason T. Burnette of Jones Day, Atlanta, Georgia, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Scott P. Schlesinger and Jonathan R. Gdanski of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellee.
    ON REMAND FROM THE SUPREME COURT OF FLORIDA
   Damoorgian, J.

This matter is before us on remand from the Supreme Court of Florida. In a decision rendered on January 4, 2017, we reversed the final judgment and remanded with instructions for the trial court to reduce the plaintiff's damages by the percentage of fault that the jury attributed to Mrs. Grossman based on our then-binding precedent in R.J. Reynolds Tobacco Co. v. Schoeff , 178 So.3d 487, 488 (Fla. 4th DCA 2015). The Florida Supreme Court thereafter quashed our Schoeff decision and held that "the comparative fault statute does not apply to Engle progeny cases in which the jury finds for the plaintiff on the intentional tort claims." Schoeff v. R.J. Reynolds Tobacco Co. , 232 So.3d 294, 304 (Fla. 2017). As a result, our decision in the instant case was also quashed. In accordance with the supreme court's mandate, we affirm the final judgment and remand for reinstatement of the entire amount of damages found by the jury.

Affirmed and remanded with instructions.

Conner, J., and Moyle, Paul O., Associate Judge, concur.


text:
    Paul F. HANNAN and Amy Hannan, Appellants, v. ONEWEST BANK, FSB, Appellee.
    No. 4D17-506
    District Court of Appeal of Florida, Fourth District.
    [July 5, 2018]
    Michael Vater, Kyle M. Costello and Kendrick Almaguer of The Ticktin Law Group, PLLC, Deerfield Beach, for appellants.
    David Rosenberg, Cynthia L. Comras and Jarrett Cooper of Robertson, Anschutz & Schneid, P.L., Boca Raton, for appellee.
   Per Curiam.

Affirmed. Kelly v. Bankunited, FSB, 159 So.3d 403, 405 (Fla. 4th DCA 2015).

Warner, May and Forst, JJ., concur.


text:
    Phillip S. WRIGHT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D18-430
    District Court of Appeal of Florida, Fourth District.
    [July 11, 2018]
    Phillip S. Wright, Jr., Bushnell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed . Fla. R. Crim. P. 3.850(b). Affirmance is without prejudice to appellant filing a petition for writ of mandamus in this Court to seek a ruling on his petition for writ of habeas corpus, which has been pending below since January 7, 2016.

May, Conner and Forst, JJ., concur.


author: BLACK, Judge.

text:
    Jay LARSON, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-336
    District Court of Appeal of Florida, Second District.
    Opinion filed April 20, 2018 Rehearing Denied June 4, 2018
    Jay Larson, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Vickers Rook, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Jay Larson appeals from the order denying his motions for postconviction relief. We reverse the denial as to one issue, affirm as to the remaining issues, and remand with instructions to permit Larson to withdraw his plea.

Larson filed a timely motion for postconviction relief in three 2012 cases which were resolved via a negotiated plea agreement that required the sentences in those cases to be served concurrently. In the initial motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, Larson raised three claims of ineffective assistance of trial counsel. He filed two subsequent motions during the pendency of the first motion, supplementing the initial motion and raising claims related to those presented in the initial motion. See Fla. R. Crim. P. 3.850(e) ; Pritchett v. State, 884 So.2d 417, 418 (Fla. 2d DCA 2004). As relevant to our decision, the second subsequent motion raised the issue of counsel's failure to advise Larson that unless his 2012 sentences were ordered to be served concurrently with the sentences in his 2001 and 2003 cases-which Larson was serving on conditional release when he was arrested, charged, and convicted in the 2012 cases-the 2012 sentences would be served consecutively to the 2001 and 2003 sentences as required by section 921.16, Florida Statutes (2012). Larson argued that had he known his 2012 sentences would run consecutively to his sentences in the prior cases, he would not have entered the plea. He argued both that he was affirmatively misadvised that the sentences would be concurrent and that counsel failed to advise him of a direct consequence of his plea-that his new sentences would be served consecutively to his existing sentences on the prior cases unless otherwise ordered by the trial court.

At the postconviction hearing, Larson testified that on multiple occasions he advised counsel that he was serving his 2001 and 2003 sentences on conditional release. Further, Larson testified that because counsel knew that Larson was serving his existing sentences on conditional release, it was incumbent upon counsel to advise him of any direct consequences of his plea agreement in the 2012 cases. Larson contended that he was entitled to know prior to entering his plea if his sentences in the 2012 cases would be served consecutively to the sentences in his prior cases.

As to the affirmative misadvice claim, however, Larson testified that he could not say that he specifically confirmed with counsel that his sentences in the 2012 cases would run concurrently with his existing sentences but that because "concurrent means concurrent," he entered his plea believing that all of his sentences would be served concurrently.

Larson then explained that in 2013, about a year into his prison term, he received notice of a new release date. He then inquired with the Department of Corrections (DOC) as to why his release date had been pushed back, extending his time in prison. The DOC advised Larson that because the trial court had not specified that his 2012 sentences were to be served concurrently with his 2001 and 2003 sentences the sentences would be served consecutively, citing section 921.16.

Larson's trial counsel also testified at the hearing. Counsel denied being informed that Larson was serving his prior sentences on conditional release. He testified that if Larson had advised him that he was on conditional release, counsel would have included that information in his notes. Counsel testified that he was not specifically asked by Larson whether the sentences in his 2012 cases would run concurrently with the sentences on his prior cases. Counsel stated that they discussed only the 2012 cases at the plea hearing. Counsel also testified that at the time of Larson's plea counsel had not been aware that the sentencing court could have ordered that the 2012 sentences were to be served concurrently with the sentences which Larson had been serving on conditional release. Larson's conditional release status was not mentioned by counsel, the prosecutor, Larson, or the court on the record at the plea hearing.

As pertinent to our resolution of this appeal, in its order denying Larson's motions, the postconviction court found that Larson did not advise counsel that he was on conditional release at the time the 2012 cases were at issue and that counsel had advised Larson only that the 2012 sentences would run concurrently. The court therefore found that there was no misadvice and that counsel did not perform deficiently. These findings are supported by competent substantial evidence. See State v. Hatton, 143 So.3d 1006, 1007 (Fla. 2d DCA 2014).

However, Larson's second subsequent motion also raised the issue of counsel's failure to advise him of the direct consequences of his plea. Despite citing counsel's testimony that he had not known at the time of Larson's plea that there was a means by which the sentencing court could have imposed Larson's 2012 sentences to run concurrently with his 2001 and 2003 sentences-and therefore could not have advised Larson of the possibility-the postconviction court denied the motion. Implicitly then, because the court determined that counsel was not ineffective for advising Larson only as to the 2012 cases, the court found that the structuring of Larson's 2012 sentences with his existing sentences was a collateral rather than direct consequence of Larson's plea.

On appeal, Larson raises multiple issues but we need address only one: Larson's contention that the postconviction court erred in denying his second subsequent motion because the structuring of Larson's 2012 sentences with his existing sentences is a direct consequence of his plea, which he must be advised of in order for his plea to be voluntary. Larson argues, in part, that the application of the mandatory language of section 921.16(1), in the absence of a determination by the trial court, to establish the structure of his sentences-whether they are to be served concurrently or consecutively-has a definite and immediate effect on his plea in this case. Thus, in considering Larson's claim, we must determine whether the imposition of consecutive sentences for offenses not charged in the same information is-in the absence of a judicial determination and therefore based on statute-a direct consequence. We conclude that it is.

Preliminarily, we note that this issue is cognizable in a rule 3.850 motion. See, e.g., Platt v. State, 664 So.2d 307, 308 (Fla. 2d DCA 1995) (affirming denial of rule 3.800(a) motion without prejudice to the filing of a rule 3.850 motion raising the issue of consecutive sentencing to a control-release violation which resulted in a longer sentence than discussed at the probation violation plea hearing); Widemond v. State, 27 So.3d 162, 163 (Fla. 1st DCA 2010) (reversing summary denial of claim that "counsel was ineffective for failing to present to the court case law standing for the proposition that the trial court could impose his sentence concurrently" with an existing sentence); Wilson v. State, 873 So.2d 419, 420-21 (Fla. 3d DCA 2004) (remanding for clarification and stating that if the court ordered Wilson's 2001 sentence to run consecutively to his 1994 sentence, Wilson would be allowed the opportunity to withdraw his plea pursuant to rule 3.850 as involuntarily entered). And, as this court has stated, although the claim may be couched in terms of ineffective assistance of counsel, the issue is truly whether the plea was entered involuntarily. See Knight v. State, 611 So.2d 602, 602 (Fla. 2d DCA 1993).

Turning to the merits, the Florida Supreme Court has stated that "[t]he voluntariness of a plea depends on whether the defendant is aware of the direct consequences of the plea and those consequences listed in Florida Rule of Criminal Procedure 3.172(c)." State v. Partlow, 840 So.2d 1040, 1042 (Fla. 2003). A "direct consequence" of a plea is one which results in "a definite, immediate and largely automatic effect on the range of the defendant's punishment." Major v. State, 814 So.2d 424, 431 (Fla. 2002). Rule 3.172(c) requires the trial court to determine that the defendant understands "[t]he complete terms of any plea agreement, including specifically all obligations the defendant will incur as a result." Fla. R. Crim. P. 3.172(c)(7).

The "[f]ailure to advise a defendant of the direct consequences of entering a plea 'prohibits [him or her] from rendering a truly voluntary and knowledgeable waiver of the constitutional rights inherent in the plea arrangement.' "

State v. Yeomans, 172 So.3d 1006, 1009 (Fla. 1st DCA 2015) (second alteration in original) (quoting State v. Green, 421 So.2d 508, 509 (Fla. 1982) ). Further, a trial judge is obligated "to ensure that the defendant understands the direct consequences of his plea," including "those consequences of the sentence which the trial court can impose." State v. Ginebra, 511 So.2d 960, 961 (Fla. 1987), superseded on other grounds by In re Amendments to Fla. Rules of Crim. Pro., 536 So.2d 992 (Fla. 1988), as recognized in State v. De Abreu, 613 So.2d 453 (Fla. 1993).

It is not disputed that Larson was on conditional release when he pleaded to and was sentenced on the 2012 charges.

Conditional release is a post-prison supervision program where an inmate is placed on community supervision for a period of time equal to the amount of gain time the prisoner earned while in prison. See § 947.1405, Fla. Stat. (2008) ; Logan v. State, 964 So.2d 209 (Fla. 5th DCA 2007). The Florida Parole Commission oversees the program, and retains jurisdiction over the defendant until his or her conditional release supervision terminates. Gillard v. State, 827 So.2d 316, 317 (Fla. 1st DCA 2002). During that time, upon violation of any of the terms and conditions of release, the Commission may revoke the conditional release. § 947.141(4), Fla. Stat. (2010) ("[T]he [Commission] panel may revoke conditional release ... and thereby return the releasee to prison to serve the sentence imposed ....").

Crump v. State, 137 So.3d 1148, 1149-50 (Fla. 3d DCA 2014).

Conditional release is part of an existing sentence. See Scantling v. State, 711 So.2d 524, 525 (Fla. 1998). Therefore, "[u]pon violation of conditional release, a defendant is not resentenced; rather the Parole Commission makes an administrative determination regarding conditional release, which leaves the original sentence undisturbed." Shorter v. State, 113 So.3d 940, 941 (Fla. 5th DCA 2013) (citing Fla. Admin. Code R. 23-23.011, concerning the procedure for the revocation of conditional release); see also Chandler v. State, 1 So.3d 284, 286 n.1 (Fla. 2d DCA 2009) ("If a defendant violates a condition of his or her release before the expiration of his or her full, pronounced prison term, gain time and release are revoked and the defendant may be reincarcerated for the balance of his or her sentence." (emphasis added) ); accord Logan v. State, 964 So.2d 209, 210 (Fla. 5th DCA 2007). "[P]unishment for a control-release violation is not an as-yet undetermined sentence, and therefore a court can order a new sentence to run consecutive[ly] to such punishment." Scantling, 711 So.2d at 525-26. Likewise, the court can order a new sentence to run concurrently with the punishment for a control-release violation. Shorter, 113 So.3d at 941 ("[T]he defendant is already subject to a sentence, [and] a court can order a new sentence to run consecutively or concurrently to such a sentence."); see also Bruce v. State, 679 So.2d 45, 46 (Fla. 3d DCA 1996) ("[T]he legislature has vested the trial court with discretion in criminal cases to impose either concurrent or consecutive sentences in independent cases." (citing § 921.16(1), Fla. Stat. (1993) ) ).

The decision to revoke conditional release is an administrative determination and, as such, is collateral to the plea. See Scantling, 711 So.2d at 526 ("An as-yet undetermined action of the Parole Commission is not a sentence. Rather, the Commission's action is an administration determination as to how an inmate's control-release violation affects his status within the context of the sentence he has already received."). However, "[e]ven where no decision has been made on the control[-]release violation by the time of sentencing, the trial court still has the discretion to run the [new] sentence either concurrently or consecutively to" the existing sentence. McCarthur v. State, 766 So.2d 292, 293 (Fla. 4th DCA 2000) ; accord Widemond, 27 So.3d at 163 ; see also Richardson v. State, 947 So.2d 1219, 1220 (Fla. 1st DCA 2007) ("[A] trial court may order a sentence to run concurrently or consecutively to a pending control-release violation." (citing Scantling, 711 So.2d at 525-26 ) ). And it is the structure of the sentences that constitutes the alleged direct consequence here.

In the absence of a directive from the trial court that sentences in otherwise independent cases are to be served concurrently, the statute requires that those sentences "shall be served consecutively." § 921.16(1) (emphasis added). That is, "[s]entences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently." Id. (emphasis added). Therefore, where the trial court does not impose the structure of a new sentence in relation to existing sentences, the requirement of section 921.16(1) that the sentences be served consecutively automatically applies to the new sentence.

Here, the failure of both the trial court and counsel to recognize the ramifications of section 921.16(1) on the structure of Larson's new sentences with his existing sentences resulted in a definite, immediate, and automatic effect: the sentences must be served consecutively, and the new sentences cannot begin to run until the existing sentences-whatever their length-have been served. See Odegaard v. State, 137 So.3d 505, 508 (Fla. 2d DCA 2014) (reversing a postconviction order where neither the court nor counsel advised the defendant that he faced the possibility of consecutive sentences in separate cases-his new offense and his community control violation-stating "[u]nquestionably, a plea cannot be knowing and voluntary if the defendant does not understand all direct consequences of the plea, including those that affect the range of punishment"). And although the length of those consecutive sentences may not be definite where the conditional-release violation is pending, that the sentences shall be served consecutively-that the new sentences cannot begin being served until the existing sentences have been completed-is definite and automatic in the absence of the trial court's exercise of discretion. Because only the court may impose sentences, the structure of the sentence is determined by the trial court or-as in this case-by operation of statute, and it is a direct consequence of the plea. Cf. Reyna v. State, 18 So.3d 1131, 1133 (Fla. 2d DCA 2009) ("Credit for time served, or jail credit, is a direct consequence of a plea because it affects the range of punishment-in this case, the length of Mr. Reyna's incarceration-in a definite manner, immediately and automatically upon imposition of a sentence."); Colon v. State, 199 So.3d 960, 962 (Fla. 4th DCA 2016) ("The application of jail credit to the sentences as they were structured was a direct consequence of the plea, and appellant claims he had no notice that the DOC would calculate his sentence on the basis of the lesser charge."); Gusow v. State, 6 So.3d 699, 701 (Fla. 4th DCA 2009) ("The sentence the defendant might receive if he violated his probation was collateral to the plea-it was not 'definite, immediate,' and 'largely automatic.' ").

We note that in Crump, the Third District affirmed the denial of a rule 3.850 motion where Crump argued that the intent of his plea agreement in a 2010 case had been thwarted by a post-plea forfeiture of his gain time in a 1995 case for which he had been on conditional release when charged with the 2010 crimes. 137 So.3d at 1149. When Crump began serving his 2010 sentences, he was advised by the DOC that all of his gain time in the 1995 case had been forfeited. The Crump court concluded that "[w]here a longer imprisonment results from a forfeiture of gain time awarded in a separate case not considered by the court sentencing after a plea in a different case, the defendant cannot claim the forfeiture breaches the plea agreement." Id. at 1150-51. The court reasoned, "the [DOC] has sole discretion in awarding or revoking an inmate's gain time, and the courts have no authority to countermand the [DOC]'s forfeiture of gain time." Id. at 1151. The Third District affirmed the order of denial without prejudice to Crump's ability to challenge the forfeiture in the appropriate administrative proceedings. Id. The Crump decision does not address pending conditional-release violations, Scantling, or section 921.16. This may be because the DOC advised Crump that his gain time had been forfeited rather than that his sentences were required to be served consecutively pursuant to section 921.16. Here, the DOC advised Larson that by operation of law his sentences in the 2012 cases would be served consecutively to the 2001 and 2003 sentences. The DOC made no reference to gain time. And while it is true that the DOC has sole discretion in awarding or revoking gain time, the issue before this court is not the conditional-release violation or any revocation of gain time. Rather, the issue before this court is the voluntariness of the plea in the 2012 cases where Larson was not made aware of the definite, immediate, and automatic effects of section 921.16 on Larson's sentence.

Accordingly, we reverse the order denying Larson's motions for postconviction relief inasmuch as it incorrectly determined that the application of section 921.16(1) to the structure of Larson's sentences was not a direct consequence of his plea. Our reversal of the postconviction order on this ground renders it unnecessary for us to address Larson's additional arguments on appeal. However, we must address the procedure on remand.

Unlike the cases of Horton v. State, 976 So.2d 686, 686 (Fla. 2d DCA 2008), and Bruce, 679 So.2d at 46, it is not clear that the trial court would have imposed concurrent sentences had it been aware that Larson was serving his existing sentences on conditional release. Nor is it clear that the concurrent sentences would have been a condition of the plea agreement. As such, we cannot simply reverse and remand for correction of the sentences.

Because the failure to advise Larson of a direct consequence of his plea rendered his plea involuntary, the relief to which Larson is entitled is the ability to withdraw his plea. See Yeomans, 172 So.3d at 1009. Larson is not entitled to be resentenced. See Carter v. State, 67 So.3d 242, 244 (Fla. 2d DCA 2010).

If Larson elects on remand to withdraw his plea he will be facing a significantly longer prison term than that which he is currently serving, and the State is under no obligation to offer another plea agreement. We note, however, that the State could agree that Larson may serve his new sentences concurrently with his existing sentences and that the court may resentence Larson accordingly. See Carter, 67 So.3d at 244.

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

CASANUEVA and BADALAMENTI, JJ., Concur.

      We note that Larson's prior cases were discussed at the plea hearing as they formed the basis for his designation as a prison releasee reoffender. Larson's penitentiary packet was introduced at the plea hearing and sentencing, and it indicates that Larson was on conditional release in 2011.

      Additionally, counsel's lack of knowledge that Larson was still serving the 2001 and 2003 sentences resulted in counsel's failure "to consider the impact of the prior sentences on the latter sentences, namely that [Larson's] plea of guilty would result in consecutive sentences." See Tate v. State, 758 So.2d 1188, 1189 (Fla. 3d DCA 2000). Consideration of the prior sentences on the latter sentences would have required counsel's "legal analysis of the consequences of the plea"; the "failure to fully advise [Larson] of those consequences was 'a substantial and serious deficiency measurably below that of competent counsel.' " See id. (quoting Castro v. State, 419 So.2d 796, 798 (Fla. 3d DCA 1982) ).

      We note that the case relied upon in the Crump decision for its holding does not address control or conditional release. 137 So.3d at 1150-51 (citing State v. Jackson, 842 So.2d 1040 (Fla. 3d DCA 2003) ).

      In the context of a rule 3.850 motion raising this issue, at least one court has held that "[b]ecause the trial court could not have made a decision on whether [the defendant's] sentence should run concurrently or consecutively absent knowledge of the true status of his prior sentence ..., we remand for a determination as to whether the [sentence] in this case is to run concurrent with or consecutive to the [prior sentence]." Wilson, 873 So.2d at 420-21. While we understand the rationale behind such remand instruction, we do not believe it is consistent with postconviction case law.

      The plea forms in Larson's 2012 cases indicate that Larson qualified as a prison releasee reoffender, a violent career criminal, and a habitual felony offender.


author: Roberts, J.

text:
    Carl DUBOIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4032
    District Court of Appeal of Florida, First District.
    April 25, 2018 Rehearing Denied July 9, 2018
    Andy Thomas, Public Defender, and Megan Lynne Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Roberts, J.

Carl Garett Dubois appeals his judgement and sentence for burglary with a firearm, arguing the trial court erred in denying his motion for judgment of acquittal on that charge because the State did not disprove that he had consent to enter the home. We disagree and affirm.

The State charged the appellant with burglary with a firearm based on the allegation that he entered a vacant home, while the homeowner was away on business, and stole several firearms from a locked compartment in the bedroom. The appellant knew the homeowner because the appellant had dated the homeowner's sister. The sister would frequently stay at the home, and the appellant had visited her at the home before. The State introduced evidence from the homeowner that the appellant and the sister had ended their relationship before the burglary occurred. The victim's sister offered contradictory testimony that she was still dating the appellant at the time of the burglary.

The appellant moved for a judgment of acquittal, arguing that he had consent to enter the home based on his relationship with the sister. He argued that the State failed to meet its burden of proving that the homeowner explicitly withdrew consent for the appellant to enter. On appeal, he argues that the trial court erred in denying his motion for judgment of acquittal. We find no error and affirm.

A trial court's denial of a motion for judgment of acquittal is reviewed de novo to ensure the evidence is legally sufficient to sustain a conviction. Kemp v. State , 166 So.3d 213, 216 (Fla. 1st DCA 2015). This Court must consider the evidence and all reasonable inferences from the evidence in a light most favorable to the State. Id.

Consent to enter is an affirmative defense to burglary. D.R. v. State , 734 So.2d 455, 456, 459 (Fla. 1st DCA 1999). The appellant argues that he met his initial burden to establish the affirmative defense of consent, after which the burden shifted to the State to disprove the defense beyond a reasonable doubt. Id. This argument fails for several reasons. First, any implied consent to enter that the appellant did have was limited in scope to times when his girlfriend, the homeowner's sister, was present. State v. Sawko , 624 So.2d 751, 752 (Fla. 5th DCA 1993) (holding that a license or invitation to enter for a particular purpose does not provide blanket consent to enter a dwelling). There was no indication that the girlfriend was in the home at the time of the burglary. Second, the State presented evidence that the appellant was no longer in a relationship with the homeowner's sister, which further undermined the viability of the appellant's already limited consent to enter. We disagree that the homeowner was obligated to expressly revoke consent here. The evidence supports a finding that consent was implicitly revoked based on the questionable status of his relationship and the fact that the homeowner's sister was not in the home when the burglary took place. Jones v. State , 790 So.2d 1194, 1198 (Fla. 1st DCA 2001) (holding that consent can be implicitly revoked based on evidence).

Even if the appellant had a limited, implied consent to enter the home, he failed to prove consent as an affirmative defense under the facts of this case. The trial court properly denied the motion for judgment of acquittal on the burglary charge because it was the role of the jury to weigh the evidence surrounding the appellant's consent to enter the home in this case. See Bryant v. State , 102 So.3d 704, 707 (Fla. 1st DCA 2012) (determining the credibility of evidence regarding consent is an issue of fact for the jury).

AFFIRMED .

Lewis and Bilbrey, JJ., concur.