author: PALMER, J.

text:
    R.T., SR., Father of K.T. a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-2130.
    District Court of Appeal of Florida, Fifth District.
    Feb. 8, 2010.
    Jeffrey Deen, Altamonte Springs and Mark A. Skipper, Orlando, of the Office of the Criminal Conflict and Civil Regional Counsel, for Appellant.
    Jeffrey Dana Gillen, West Palm Beach, for Appellee.
   PALMER, J.

R.T. (father) appeals the final order entered by the trial court which terminated the Department of Children and Families’ (DCF) protective supervision over his daughter and placed her in the permanent guardianship of her older half-brother. Although the record contains sufficient evidence to support the trial court’s ruling, we must reverse and remand for the entry of an order containing factual findings regarding the issue of reunification sufficient to comply with the statutory mandate set forth in section 39.6221 of the Florida Statutes.

Section 39.6221 of the Florida Statutes requires trial courts to set forth written findings to support any decision to order a child into a permanent guardianship arrangement. Among other things, the statute requires trial courts to explain why the parent is not fit to care for the child:

39.6221. Permanent guardianship of a dependent child
* * *
(2) In its written order establishing a permanent guardianship, the court shall:
(a) List the circumstances or reasons why the child’s parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact made in its order adjudicating the child dependent or by making separate findings of fact ...

§ 39.6221(2)(a), Fla. Stat. (2008). The father contends that reversal is required because the instant guardianship order fails to comply with this mandate. We agree.

In In re J.S., 18 So.3d 712 (Fla. 2d DCA 2009), the mother appealed an order placing her children into a permanent guardianship arrangement. In the order, the trial court made certain findings, including the finding that:

11. Reunification with the parents at this time would be contrary to the welfare and not in the best interest of the children. The parents are not fit to care for the children and reunification is not possible because of the circumstances from which the court previously based its finding that the children are dependent in the order of adjudication, and in addition: The parents have not worked their case plan. They have not resolved the issues of domestic violence, stable housing or financial stability.

Id. at 714. Before discussing the substantive issue raised on appeal, the Second District noted that, pursuant to section 39.6221 of the Florida Statutes, the trial court was required to support its conclusion that reunification with the mother was not possible by either referring to specific findings of fact made in its order adjudicating her children dependent or by making separate findings of fact. The Second District ruled that the trial court’s findings, as set forth in paragraph 11 of its order, failed to comply with this requirement because they “made only a general reference to the circumstances from which the court previously based its findings that the children are dependent.” Id. at 715.

Here, regarding the issue of reunification, the trial court’s guardianship order states:

Reunification with the father at this time would be contrary to the welfare and not in the best interests of the child. The father is not fit to care for the child and reunification is not possible because of the facts and circumstances upon which the Court previously based its finding that the child is dependent in the order of adjudication, and based on testimony heard by the Court during the Permanency Hearing.

This finding is legally insufficient. Similar to the situation presented in J.S., the instant guardianship order fails to comply with the statutory requirement for written findings because the order does not refer to specific findings of fact set forth in the trial court’s dependency order nor contain separate findings of fact regarding the issue of reunification.

REVERSED and REMANDED.

LAWSON and JACOBUS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leon Lavelle MORANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6250.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2010.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Leon Lavelle Morant, appeals his conviction of conspiracy to commit home-invasion robbery with a firearm, home-invasion robbery, and aggravated battery. The appellant raises three issues on appeal: (I) whether the trial court allowed Williams rule evidence to become a feature of the trial; (II) whether the trial court erred in denying a motion for judgment of acquittal on the charge of conspiracy to commit home-invasion robbery because the evidence did not establish a prima facie case or was not sufficient to sustain the conviction; and (III) whether the trial court committed fundamental error by instructing the jury on an uncharged act. The state raises one issue on cross-appeal: whether the defense counsel impermissibly argued facts not in evidence during closing argument. We affirm the issue raised on cross-appeal without discussion.

We reject the appellant’s Williams rule argument without discussion. We also reject without discussion the second issue raised by the appellant, regarding the evidence presented on the count of conspiracy to commit home-invasion robbery. However, we agree that the trial court erred in instructing the jury on an uncharged act and, therefore, we reverse and remand for a new trial the judgment of conspiracy to commit home-invasion robbery.

In contesting his conviction for conspiracy to commit a home-invasion robbery, the appellant argues that the trial court committed fundamental error because the jury instructions permitted the jury to convict the appellant of an uncharged act. The state properly concedes error on this point. The appellant was charged with conspiring with Brooke Rushton on or about January 23, 2007, to commit the crime of home-invasion robbery with a firearm. However, the jury was instructed that it could find the appellant guilty if the appellant conspired with Ms. Rushton “and/or another black male.” During opening statements, the prosecution informed the jury that the state would prove that the appellant conspired with Ms. Rushton “or another black male” to cause the home-invasion robbery. Through the testimony of the victim, evidence was presented at trial that during the night of January 23, 2007, the victim was awakened by the appellant and two other black males who had entered her bedroom and thereafter proceeded to commit the home-invasion robbery at issue in this case. The jury returned a general verdict of guilty for conspiracy to commit home-invasion robbery.

The appellant asserts that the trial court committed fundamental error by permitting the jury to convict the appellant for conspiring with “another black male” to cause home-invasion robbery. It is fundamental error when the jury is instructed that a defendant may be convicted for uncharged acts. See Trahan v. State, 913 So.2d 729, 729 (Fla. 5th DCA 2005) (agreeing that fundamental error exists “even if the uncharged crime involved an alternative factual theory for proving the charged offense”).

In Trahan, the Fifth District reversed a conviction for lewd and lascivious molestation where the information factually narrowed the charge by specifying that the offense was committed “by TOUCHING, RUBBING [the victim’s] VAGINAL AREA.” 913 So.2d at 729 (alterations in original). During that trial, the state presented evidence that the defendant touched the victim’s vagina once and her buttocks three times. The prosecution argued to the jury that it had proven the defendant touched the victim’s vagina or buttocks or both. Id. (emphasis added). The judge then instructed the jury, without objection, that the jury could convict the defendant if “he had touched the victim’s vagina or buttocks, or clothing covering either.” Id. The jury returned a general verdict of guilty. Id. at 729-30. Finding fundamental error, the Fifth District reversed the conviction and remanded for a new trial since the jury instructions permitted the jury to convict the defendant for a crime not charged in the information. Id.

Similarly, here, the appellant’s charge of conspiracy was factually narrowed in that it was alleged that he committed conspiracy with Ms. Rushton. Under these circumstances it was fundamental error to instruct the jury that they could find the appellant guilty of conspiring with Ms. Rushton “and/or another black male.” Accordingly, the judgment for conspiracy to commit home-invasion robbery with a firearm, is reversed and remanded for a new trial.

Appellant’s conviction is:

AFFIRMED in part and REVERSED and REMANDED in part.

WEBSTER, PADOVANO, and ROWE, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . “Jury instructions are ‘subject to the contemporaneous objection rule, and absent an objection at trial, can be raised on appeal only if fundamental error occurred.' " State v. Weaver, 957 So.2d 586, 588 (Fla.2007) (quoting Reed v. State, 837 So.2d 366, 370 (Fla.2002)). Because the appellant did not object at trial to the instructions now in dispute, "a claim of error based on the instruction may only be reviewed on appeal if it constitutes fundamental error.” Id.

      . For Count I, the Direct File specifically provided:
      WILLIAM P. CERVONE, STATE ATTORNEY for the Eighth Judicial Circuit, prosecuting for the State of Florida, under oath, alleges by information that LEON L. MOR-ANT, in Alachua County, Florida, on or about January 23, 2007, did then and there agree, conspire, combine, or confederate with Brooke Rushton to commit the crime of Home Invasion Robbery with a Firearm, contrary to Section 777.04 and 812.135 and 775.087, Florida Statutes.
      (emphasis added.)

      .The jury found "The defendant is guilty of Conspiracy to Commit Home Invasion Robbery With a Firearm, as charged in Count I of the Information.”

      . The opinion in Trahan provides the relevant part of the information as follows:
      In the County of Brevard, ... [Appellant] ... did intentionally touch in a lewd or lascivious manner the breasts, genitals, genital area or buttocks, or clothing covering them ... by TOUCHING, RUBBING [the victim’s] VAGINAL AREA....
      913 So.2d 729, 729 (alterations in original).


text:
    Christine CONNERS, Wife, Appellant, v. Shawn MULLINS, Husband, Appellee.
    No. 1D09-2292.
    District Court of Appeal of Florida, First District.
    Feb. 10, 2010.

      Allison M. Perry, Law Office of Allison M. Perry, P.A., Tampa, for Appellant.
    Shawn Mullins, pro se, Appellee.
   PER CURIAM.

Appellant, Christine Conners, appeals a Final Judgment of Dissolution of Marriage. We agree with appellant that the trial court, in ordering her to return to Tallahassee with the parties’ child, employed an incorrect legal standard. In evaluating the child’s best interests pursuant to section 61.13001(7), Florida Statutes, the trial court primarily focused on how it would have ruled on the issue of relocation had it been faced with the issue prior to appellant’s move to Albany, New York, which occurred while appellant was pregnant with the parties’ child. However, because the relocation had already occurred when appellee, Shawn Mullins, petitioned for relief, the pertinent question was not whether the trial court would have permitted the relocation in the first place but whether the actual relocation was in the child’s best interests pursuant to the factors set forth in section 61.13001(7). See generally In re B.T.G., 993 So.2d 1140, 1141 (Fla. 2d DCA 2008) (noting that neither party offered any testimony concerning the “impact of the relocation to the Seattle area [which had already occurred] on the children”); Shafer v. Shafer, 898 So.2d 1053, 1055 (Fla. 4th DCA 2005) (noting that the trial court weighed a number of factors in deciding that the child’s move to Orlando was not in the child’s best interests and that the court found that the father’s close relationship with his son would be affected if the son “continues to live in Orlando”).

Accordingly, we REVERSE the final judgment and REMAND the case for reconsideration on the relocation issue.

VAN NORTWICK and CLARK, JJ. and BERGER, WENDY, Associate Judge, concur.


author: FULMER, CAROLYN K., Senior Judge.

text:
    Predrag Pete LONCAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-880.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.

      James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, CAROLYN K., Senior Judge.

Predrag Loncar challenges an order modifying his probation with respect to his underlying convictions for extortion or threats and aggravated stalking. Because the modification violated the prohibition against double jeopardy by enhancing Loncar’s probation conditions absent a violation, we reverse and remand for the circuit court to reinstate Loncar’s previous probation order.

On April 21, 2006, Loncar entered into a negotiated plea in the underlying matter, was adjudicated guilty, and was sentenced to three years’ imprisonment followed by two years’ probation. Loncar’s probation order included special conditions that prohibited him from having contact with the victim and the victim’s family. The order also included special condition 51, which provided that “[defendant] cannot reside in State of Florida once released FSP unless victim is notified and [defendant] monitored in case of emergency.”

On December 12, 2007, the State filed an affidavit of violation of probation alleging that Loncar violated condition 51 by residing in Winter Haven, Florida. Loncar filed a motion to strike condition 51 as illegal or vague. He also filed a motion to modify his probation, alleging that his request to transfer his probation to Illinois had been refused by the State of Illinois. He asked that his probation be modified to mail-in status so that he could move to Illinois.

On January 22, 2008, the circuit court rendered an order modifying Loncar’s probation. The order provided that condition 51 was deleted and that Loncar’s probation was modified to include GPS monitoring by the Department of Corrections. The order also indicated that the State had withdrawn the affidavit of violation of probation.

On December 19, 2008, the State filed a motion to modify probation, seeking to prohibit Loncar from residing within twenty miles of the victim’s residence. The State asserted that Loncar was arranging to buy a home within two miles of the victim’s home and that even with GPS monitoring, that scenario was unacceptable. At the hearing, Loncar explained that his father had purchased the house in dispute. Loncar desired to live with his father for financial reasons. Neither Loncar nor his father was aware of the victim’s current address.

The circuit court questioned its authority to modify Loncar’s probation, observing that there was no outstanding affidavit of violation of probation. The State responded that “there really isn’t authority, but the State is asking.” The circuit court then considered the Florida Supreme Court’s decision in Lippman v. State, 633 So.2d 1061, 1064 (Fla.1994), which explains that absent proof of a violation, adding a condition that is more restrictive than those imposed by the initial probation order violates the double jeopardy protection against multiple punishments. The circuit court concluded that the State’s proposed modification of Loncar’s probation was less restrictive than the original condition requiring Loncar to reside outside of Florida. On that basis, the circuit court granted the State’s motion. We reverse because the circuit court misapplied Lippman and violated the prohibition against double jeopardy when it enhanced Loncar’s probation without finding that Loncar had violated his probation.

Section 948.03(2), Florida Statutes (2004), provides that a trial court “may rescind or modify at any time the terms and conditions theretofore imposed by it upon the probationer.” However, “absent a violation of probation or community control, it may not add new conditions or enhance the penalty.” Wesner v. State, 843 So.2d 1039, 1040 (Fla. 2d DCA 2003). “An enhancement of probation where there is no proof of a violation of probation is a violation of ‘the double jeopardy prohibition against multiple punishments for the same offense.’ ” Blair v. State, 805 So.2d 873, 877 (Fla. 2d DCA 2001) (quoting Lvppman, 633 So.2d at 1064). Further, “[u]nder Lippman, the test as to whether the modification of a condition of probation is an improper enhancement turns on whether the change is more restrictive than the original condition.” Id. (citing Lippman).

Here, the circuit court correctly observed that there was no outstanding affidavit of violation, and it properly looked to Lippman to assess whether the State’s requested modification constituted an enhancement of Loncar’s probation. However, it misapplied Lippman by comparing the State’s requested modification to condition 51 of Loncar’s original probation order. Once the circuit court rescinded condition 51 in its January 22, 2008, modification order, that condition was no longer part of Loncar’s probation. Therefore, the circuit court should have compared the State’s requested modification to Loncar’s current probation order as modified by the January 22, 2008, order which removed condition 51. See Green v. State, 638 So.2d 1006, 1006 (Fla. 4th DCA 1994) (analyzing the State’s request to modify the defendant’s probation to reporting status against the trial court’s prior order modifying defendant’s probation to administrative or nonreporting status; holding that the trial court could not modify the defendant’s probation to reporting status absent proof of a violation even though the State claimed the prior modification was in error).

At the time of the hearing on the State’s requested modification, Loncar’s probation required that he have no contact with the victim or the victim’s family and that he be subject to GPS monitoring by the Department of Corrections. These conditions would not have prevented Lon-car from residing with his father in the newly purchased home. However, the modification to prohibit him from residing within ten miles of the victim prevented him from residing with his father and, thus, was more restrictive than the probation conditions that were in effect. Because the circuit court did not find that Loncar had violated his probation, its modification of Loncar’s probation to include a more restrictive condition violated double jeopardy. See Lippman, 633 So.2d at 1064.

Accordingly, we reverse and remand for the circuit court to reinstate Loncar’s probation as modified on January 22, 2008.

Reversed and remanded.

WALLACE and MORRIS, JJ., Concur.

      . See U.S. Const, amend. V; art. I, § 9, Fla. Const.

      . The victim testified that she had moved since the original injunction was served on Loncar. She stated that she filed a change of address with the clerk’s office; however, Lon-car indicated that he did not receive notice of the change of address and the State presented no evidence to the contrary.

      . Although the State had requested that Lon-car be prohibited from residing within twenty miles of the victim, the trial court only prohibited him from residing within ten miles of the victim.


author: CASANUEVA, Chief Judge.

text:
    Rafael CASAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-216.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Chief Judge.

Rafael Casas appeals an order revoking his probation based on two violations: associating with individuals engaged in criminal activity (condition six) and using intoxicants to excess (condition seven). We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(A) and 9.140(b)(1)(D). We affirm the trial court’s finding of guilt as to a violation of condition seven. We reverse its finding of guilt as to a violation of condition six, the revocation of probation, and the sentence imposed, and we remand for further proceedings.

In 2005, Mr. Casas pleaded guilty to one count of failure of a sex offender to report and one count of failure of a sex offender to report to the Florida Department of Highway Safety and Motor Vehicles within forty-eight hours of a change of address. The trial court sentenced him to six months of community control followed by thirty-six months of probation.

Mr. Casas’s probation officer filed an affidavit of violation of community control in 2008, alleging two violations of his probation. Condition six states, “You will not associate with persons engaged in criminal activity.” Condition seven states, ‘You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed, or used.” Mr. Casas appeared for a violation of probation hearing on January 5, 2009.

Mr. Casas admitted violating condition seven, but he denied violating condition six. The transcript reads:

THE COURT: In addition to that, sir, you violated Condition Six by associating with persons engaged in criminal activity and as grounds for that belief, your officer states that on December 17th you admitted that you associated with your live-in girlfriend who uses marijuana in your presence; is that correct?
THE DEFENDANT: Not in my presence, sir.
THE COURT: Well, it says here that subject admitted that his girlfriend and other friends do smoke marijuana in his presence.
THE DEFENDANT: Not in my home....

Without providing the parties an opportunity to present evidence, the court found Mr. Casas in violation of both conditions six and seven and sentenced him to 46.8 months in Florida State Prison. Mr. Ca-sas did not contemporaneously object to the trial court’s finding of violation as to condition six, and he did not file a Florida Rule of Criminal Procedure 8.800(b) motion to correct his sentence. However, we may review this issue on appeal because “revoking probation based partly on a purported violation that was not proved or admitted constitutes fundamental error.” Odom v. State, 15 So.3d 672, 678 (Fla. 1st DCA 2009).

Trial courts cannot find a violation of probation where no evidence is presented and the defendant does not admit to the alleged violation. See Shiflett v. State, 779 So.2d 461, 462 (Fla. 2d DCA 2000); Carlyle v. State, 599 So.2d 240, 241 (Fla. 2d DCA 1992). Here, the transcript of the revocation of probation hearing demonstrates that Mr. Casas did not admit to violating condition six; accordingly, the trial court should have conducted an evi-dentiary hearing on that condition. See Fla. R.Crim. P. 3.790(b) (“If the [violation of probation or community control] is not admitted by the probationer or community controllee and if it is not dismissed, the court, as soon as practicable, shall give the probationer or community controllee an opportunity to be fully heard in person, by counsel, or both.”). Because the court erred in finding that Mr. Casas violated condition six without first holding an evi-dentiary hearing, we reverse the trial court’s finding of guilt on condition six.

Further, we must also reverse the revocation of probation and the sentence imposed because it is not clear whether the trial court would have revoked Mr. Casas’s probation based solely upon the remaining violation of condition seven. E.g., Robinson v. State, 907 So.2d 1284, 1287 (Fla. 2d DCA 2005) (“[B]ecause we cannot determine whether the court would have revoked Mr. Robinson’s probation based solely on his violations of conditions 3 and 9, we reverse and remand with instructions.”); Anthony v. State, 854 So.2d 744, 748 (Fla. 2d DCA 2003) (“Because it is unclear from the record whether the trial court would have revoked Anthony’s community control based solely upon the three violations of condition 12, we reverse ... [and] remand.... ”); Astore v. State, 618 So.2d 790, 792 (Fla. 2d DCA 1993) (“[W]e reverse the order of revocation and remand this matter for the trial court to reconsider whether, in the absence of two of the three violations, the revocation of Astore’s probation and the imposition of a nine year prison sentence are warranted.”). Mr. Casas admitted he violated condition seven by overindulging in alcohol in his own home on the night of his engagement to his fiancée. It does not appear that Mr. Casas violated any criminal law or placed any other person in danger by drinking in his own home that evening. The record suggests that he was within approximately three months of completing his forty-two months of supervision, that he held a full time job, that he was supporting his children, and that he had completed all other terms and conditions of his probation. We cannot conclusively say that the trial court would have revoked probation and imposed a significant prison term of 46.8 months based solely upon Mr. Casas’s relatively harmless lapse in judgment on the night of his engagement.

We offer one additional thought on remand. When questioned about his girlfriend’s drug use, Mr. Casas twice denied that she smoked marijuana in his presence (“Not in my presence, sir.... Not in my home.”). The only indication within this limited record that Mr. Casas violated condition six of his probation came from the affidavit of violation prepared by Mr. Ca-sas’s probation officer. Though hearsay evidence is admissible to prove a violation in a probation revocation hearing, it may not independently support a finding of violation. Russell v. State, 982 So.2d 642, 646 (Fla.2008) (citing Cuciak v. State, 410 So.2d 916, 918 (Fla.1982)). If the State fails to present nonhearsay evidence on remand, a finding of violation of condition six would be erroneous. Additionally, without an evidentiary link between Mr. Casas and his fiancée’s independent conduct — outside of their home and outside of his presence — a finding of violation of condition six could not stand.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

KELLY and KHOUZAM, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Dennis STARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3913.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

In several motions pursuant to Florida Rule of Criminal Procedure 3.800, Dennis Stark challenged the legality of the sentences imposed following his burglary convictions. The postconviction court granted Stark’s motions and resentenced him. But the new sentence was, again, illegal. Therefore, we reverse and remand for re-sentencing.

Stark entered open guilty pleas to several charges, including two separate charges of burglary of a dwelling. He challenges only the sentences imposed for the burglaries. At sentencing, the court orally announced that Stark would be sentenced for these crimes as both a prison releasee reoffender and a habitual felony offender. For each of the burglaries, the court orally imposed a fifteen-year minimum mandatory PRR prison term and a concurrent thirty-year HFO term, the last fifteen years of the latter to be suspended and served on probation.

For some reason the original sentencing documents omitted the PRR and HFO designations. Stark, however, filed a rule 3.800(a) motion asserting that the orally pronounced sentences were illegal under the Prison Releasee Reoffender Punishment Act (PRRPA) because the incarcera-tive portions of the concurrent HFO sentences did not exceed the PRR terms. See § 775.082(9)(c), Fla. Stat. (2002); Grant v. State, 770 So.2d 655, 659 (Fla.2000) (holding that imposing equal, concurrent incar-cerative terms as a PRR and a HFO violates the PRRPA); Johnson v. State, 927 So.2d 251, 252 (Fla. 2d DCA 2006) (stating that HFO term of thirty years’ imprisonment, suspended after fifteen years, to be served concurrently with a fifteen-year PRR term violated the PRRPA); Michel v. State, 935 So.2d 1228, 1230 (Fla. 5th DCA 2006).

When considering Stark’s motion, the postconviction court recognized that both the orally pronounced sentences and the sentences as written were problematic. The sentences as orally pronounced were illegal because they included equal concurrent PRR and HFO incarcerations. The written sentences were erroneous because they did not comport with the orally pronounced sentences, and they were illegal because, without the omitted HFO sentencing enhancements, the thirty-year terms exceeded the maximum permissible sentences for second-degree felonies. See § 775.082(3)(c) (stating that the maximum sentence for a second-degree felony is fifteen years’ imprisonment); Williams v. State, 744 So.2d 1156 (Fla. 2d DCA 1999) (holding that if a discrepancy exists between the oral pronouncement of sentence and the written sentencing documents, the documents must be corrected to conform to the oral imposition of sentence).

To correct these problems, the court resentenced Stark only as a HFO on one of the burglaries and imposed a thirty-year sentence, to be suspended after fifteen years. On the other, separate burglary conviction, the court resentenced Stark only as a PRR, to the minimum mandatory term of fifteen years’ imprisonment. Stark filed a rule 3.800(b) motion challenging the resentencing because he had not been present. The court again granted Stark’s motion and held yet another resen-tencing hearing.

At the second resentencing hearing Stark’s counsel argued that the court’s new sentencing scheme was illegal because the State had sought PRR enhancement as to both charges. He pointed out that when the State invoked the PRR statute and proved that Stark qualified as a PRR, a PRR sentence became mandatory. Thus, Stark claimed, the court had no discretion to forgo sentencing him as a PRR on one of the burglary charges, as the court had attempted to do at the first resentencing hearing. The postconviction court apparently agreed with this argument because it returned to the original sentencing scheme, imposing fifteen-year PRR and thirty-year HFO sentences on both burglary counts. However, in order to avoid the problem with the original sentencing arrangement, the court lengthened the incarcerative terms of the HFO sentences. It ordered the HFO sentences suspended after fifteen years and one month, such that the HFO incarcerations exceeded the PRR sentences.

Stark then filed yet another motion to correct sentencing error, arguing that by extending the incarcerative portions of the HFO sentences, the court had impermissi-bly increased his sentences after he had begun serving them. The court denied that motion, and this appeal followed.

As the State concedes, Stark is correct. Increasing a sentence after the defendant has begun serving it violates the constitutional prohibition against double jeopardy. See Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003); Pate v. State, 908 So.2d 613, 614 (Fla. 2d DCA 2005). Accordingly, we reverse the sentences imposed at the second resentencing and remand for another resentencing.

The parties’ only dispute in this appeal centers on the postconviction court’s re-sentencing options on remand. Because the court may not increase the incarcera-tive portions of the HFO sentences beyond the fifteen years already imposed, Stark maintains that its only recourse is to strike the HFO sentences altogether. This is because the court is unable to impose HFO incarcerations that exceed the PRR terms which, he points out, are mandatory. See State v. Garcia, 923 So.2d 1186, 1187-88 (Fla. 3d DCA 2006).

But the proposition that a court may not forgo PRR sentencing when the State has invoked the Act and proved its applicability, while generally true, is not absolute. The PRRPA was designed to increase, not decrease, the potential punishments of those who qualify under the Act’s terms. “If a defendant is eligible for a harsher sentence ‘pursuant to [the habitual offender statute] or any other provision of law’ the court may, in its discretion, impose the harsher sentence.” State v. Cotton, 769 So.2d 345, 354 (Fla.2000) (quoting § 775.082(9)(c)). That purpose would not be served by limiting the court’s ability “to opt out of the PRR designation when it recognized, post-sentencing via a defendant’s 3.800(b) motion ... that choosing to maintain the PRR designation could result in a lesser sentence.” Phillips v. State, 834 So.2d 272, 275 (Fla. 5th DCA 2002).

This court has held that PRR sentences and HFO sentences may be legally imposed for separate offenses. James v. State, 17 So.3d 753, 754 (Fla. 2d DCA 2009); Tolbert v. State, 827 So.2d 278 (Fla. 2d DCA 2002). Stark’s two burglary offenses were not part of the same criminal episode and were separate crimes. It is apparent, then, that the court’s first attempt to restructure Stark’s sentences, imposing a fifteen-year PRR sentence for one of the burglaries and a thirty-year HFO sentence suspended after fifteen years for the other, was permissible. A court may restructure erroneous sentences to come close to, but not to exceed, the original sentencing intent. Suarez v. State, 974 So.2d 451, 453 (Fla. 3d DCA 2008); see also Blackshear v. State, 531 So.2d 956 (Fla.1988).

We offer no opinion on what new sentences should be imposed on remand. The court may choose to strike Stark’s HFO sentences, see Michel, 935 So.2d at 1230, or it may reimpose the sentence structure devised at the first resentencing, or it may fashion another sentencing scheme altogether so long as the new sentences do not exceed Stark’s original sentences.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.

      . Stark’s scoresheet reflected a lowest permissible sentence of 107.2 months' imprisonment. Therefore, his maximum guidelines’ sentence for each burglary would have been fifteen years' imprisonment, the statutory maximum for a second-degree felony.


author: KHOUZAM, Judge.

text:
    Jamel Lee BELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1810.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.

      Jackson S. Flyte, Regional Counsel, Second District, and Kimberly Nolen Hopkins, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Jamel Lee Bell appeals his convictions for first-degree murder, attempted robbery with a firearm, and robbery. We affirm Bell’s convictions for robbery and first-degree murder. We reverse Bell’s conviction for attempted robbery with a firearm, and we remand with directions.

This case involves two separate incidents and two different victims. In regard to the incident that led to Bell’s conviction for robbery, the victim survived and testified against Bell at trial. We affirm Bell’s conviction for robbery without further comment.

In regard to the incident that led to Bell’s conviction for first-degree murder, the State presented alternative theories of premeditation and felony murder. In this case, the latter theory required the State to establish, among other things, that Bell committed an attempted robbery with a firearm upon the victim who did not survive.

The evidence was insufficient to establish a prima facie case of guilt for attempted robbery with a firearm. Thus, we must reverse Bell’s conviction for attempted robbery with a firearm. Notwithstanding our reversal of the underlying felony, however, reversal of Bell’s conviction for first-degree murder is not warranted. The jury returned a general verdict of guilt for first-degree murder, and the evidence was sufficient to establish premeditation. Accordingly, we affirm Bell’s conviction for first-degree murder. See San Martin v. State, 717 So.2d 462, 470 (Fla.1998) (explaining that a general guilty verdict cannot be upheld if the conviction may have rested on an unconstitutional ground or a legally inadequate theory, but that “reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient”); see also Davis v. State, 922 So.2d 438 (Fla. 5th DCA 2006) (affirming conviction based on premeditated murder theory).

Bell’s convictions for robbery and first-degree murder are affirmed. His conviction for attempted robbery with a firearm is reversed and the matter is remanded to the trial court with directions to vacate the judgment and sentence for this offense. Because Bell’s sentences for these offenses are being served concurrently, our reversal of the attempted robbery with a firearm conviction will not affect Bell’s sentences and he need not be present for resentencing.

Affirmed in part; reversed in part; and remanded with directions.

CASANUEVA, C.J., and KELLY, J., Concur.


text:
    Lee Vernon JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2123.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2010.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Lee Johnson pleaded guilty to two charges of lewd and lascivious molestation. The court sentenced him to two consecutive terms of fifteen years’ imprisonment but did not impose any probation. The court also imposed conditions requiring that Johnson have no contact with the victims of his crimes, that he have no contact with anyone under the age of 18, and that he pay the cost, if any, of the victims’ counseling while he was imprisoned. We strike the condition prohibiting contact with anyone under the age of 18 and affirm the two other conditions.

Section 921.244(1), Florida Statutes (2008), authorizes a court to prohibit an offender convicted of lewd and lascivious crimes from having contact with his victims. Section 775.089(2)(a), Florida Statutes (2008), permits restitution for a victim’s psychological care. We treat the condition requiring Johnson to pay for counseling as an order reserving jurisdiction to award such restitution. Because the court has not held a hearing and has not determined an amount to be paid, Johnson’s challenge is premature. See Robbins v. State, 641 So.2d 939, 941 (Fla. 5th DCA 1994).

Thus, two of the imposed conditions are statutorily authorized. We find no authority for the third condition, prohibiting contact with anyone under the age of 18. Accordingly we strike that condition.

Affirmed in part; stricken in part.

VILLANTI and LaROSE, JJ., Concur.

      . As a practical matter, this condition was likely unnecessary. For Johnson to see the victims, they would have to visit him in prison.


author: GROSS, C.J.

text:
    Mark BARROW, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3420.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.

      Frederick R. Susaneck of Levine & Sus-aneck, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

We reverse for a new trial because the trial judge abused his discretion by responding to the jury’s question about the availability of transcripts in the negative, without advising the jury about the potential for read backs of witnesses’ testimony, ignoring the request of both the state and defense. We also note that the trial judge’s apparent adoption of an ad hoc rule prohibiting read backs amounted to a failure to exercise the discretion granted to trial judges in this area.

Mark Barrow was convicted of the first degree murder of Rae Meichelle Tener, whose body was never found. No witness observed the murder, nor did any witness observe any violence between Barrow and Tener on the night she disappeared.

By way of background, appellant lived in a trailer park with his girlfriend, Peggy LaSalle, and her two daughters. The victim and her 13 year old son, Zack Tener, lived in the same trailer park. Importantly, the victim had a history of disappearing for days at a time, leaving her young son alone.

On the night the victim was last seen, appellant hosted a drinking party in his trailer. Some of the partygoers testified at trial, not always consistently, their memories perhaps clouded by alcohol and drugs. From their testimony, this version of the party emerged.

Shannon Rasmussen and her boyfriend Mark Jones were part of a group that included the victim’s son, Zack. The group was hanging out at appellant’s trailer playing a drinking game and “doing weed.” At some point, Zack passed out on a couch. The victim came to appellant’s trailer around 11:00 p.m. and she and appellant took Zack home to the victim’s trailer. After a while, appellant and the victim returned to appellant’s trailer. Both appeared to be “buzzed.” Jones and Rasmussen left once the victim asked them to leave appellant’s trailer.

When Zack awoke in the morning, his mother was not home. Zack walked to appellant’s trailer and saw two packs of his mother’s “cherry cigars” and a lighter on the ground. He looked in appellant’s trailer and saw him asleep on the couch. He picked up his mother’s cigars and lighter and went home. On cross-examination, Zack said the cigars were not “messed up” and he had not seen any blood where he found them.

A few days after the victim was last seen, her mother went to the victim’s trailer and found all of her daughter’s belongings. The victim’s car was in her driveway. Her driver’s license and money were in pants on the floor of the bedroom.

When the state called Peggy LaSalle to the stand, appellant objected on the ground that the state had not established a corpus delicti. The trial court overruled the objection.

Peggy testified that she had known the victim since eighth grade. Peggy was not at the party in her trailer on the day the victim was last seen because appellant had driven her to a drug rehabilitation facility to cope with a Xanax overdose. The next day, Peggy called someone to wake appellant so he could pick her up. When he arrived, appellant was not acting “normal.” He seemed angry, and there was a stench in the van that had not been there the day before. Peggy asked appellant what was wrong. He started crying and punching the steering wheel. At home, he explained that the house was trashed because he had hosted a party.

Several days later, after detectives interviewed appellant about the victim, Peggy asked him where she might be. Appellant did not answer. Peggy found the victim’s car keys in the van and gave them to appellant.

Some time later, in a room she was cleaning, Peggy smelled the stench she had first smelled in the van, only stronger. The odor emanated from a brown paper bag containing a pair of jeans covered in blood. Peggy confronted appellant with this discovery.

Ultimately, appellant told Peggy he had killed the victim. He said that, after the victim made sexual advances to him, he physically threw her out of the trailer. She hit her head and was bleeding. When the victim threatened to call the police, appellant “snapped,” because he did not want to go to jail again. He picked her up and hit her head on a rock. Then he put her body in a black trash bag, put the bag on the passenger seat in his van, and drove her to water. Once there, he hit her with a sledge hammer, looped a “plastic thing” around her neck, put his foot on the victim’s shoulder, and broke her neck. He then picked up her body and threw it into the water. According to Peggy, appellant stripped on the way home and threw his clothes out the window. Appellant told Peggy that the passenger seat was covered with blood before he came to pick her up, so he wiped it up with a big towel.

Peggy related appellant’s story to an ex-boyfriend, who told the police. The police came to interview Peggy the next day. In this same time period, the trailer was severely damaged by hurricanes.

On cross-examination, Peggy agreed that she would have been upset if she had found out that appellant was with the victim. She had previously filed a domestic violence complaint against appellant, in which she claimed that he had thrown her out of the trailer, causing her to hit her head on a rock. Peggy’s testimony was not consistent with the statements she gave the police. For example, she could not explain how appellant could have been covered with blood and yet stop at a gas station and pay for gas in cash, which would require a trip inside.

Various state witnesses testified concerning forensic evidence removed from appellant’s van. In the back of the van, a technician found a cell phone box containing a phone that had blood in the screw areas. Six areas of the van seats and doors initially tested positive for blood. No blood was detected in the foam cushions of the seats. DNA was detected in three locations — including blood from the cell phone and from the left side of the passenger seat. All of the DNA came from the same donor. The police took samples from appellant, Zack, and the victim’s mother; appellant was excluded as being the donor. The test could not exclude Zack as the biological child of the DNA donor, or the mother as the biological parent. The state offered expert testimony that the blood in the van came from the victim. No fingerprints were recovered.

Appellant gave two recorded statements to the police, which were both played at trial. In the first statement, he told the detectives that he did not like the victim, because she gave Peggy Xanax. He also stated that he had never had a sexual relationship with the victim because she was “a whore.” Appellant said that on the night the victim disappeared, she came to his trailer looking for Peggy and was there for two minutes. He had been to the victim’s trailer one time about a week and a half before. He asserted that Zack was lying if he said appellant had gone to the victim’s trailer on the night she was last seen.

After the detective talked with Peggy a second time, he conducted a second interview with appellant, which was played for the jury over his corpus delicti objection. On the tape, appellant described the party at his trailer and said it ended about 1:30 a.m.; he then had another beer and went to bed. The victim was not at the party, although she came to the trailer twice, once to get Zack and once for Peggy. After appellant told her Peggy was in rehab, she left. He was unsure about the time, however, because he was drunk. Appellant denied having a conversation with Peggy about the victim, whom he did not like because she did drugs and was a “slut.” He agreed that the victim had come on to him three times before, but said she had not tried anything that night. She left by herself. He said the victim had been in the van at some point before that night when she and Peggy had gone to the store with him.

Ten minutes into its deliberations, the jury sent out a question asking for “all the transcripts of the witnesses’ testimonies, Zack, Shannon, Peggy, Mark Jones, Mark Barrow.” The trial judge told the lawyers that he received that question in every trial. The trial judge observed that because there were no transcripts, his response would be that “there are no transcripts.” The prosecutor suggested that the trial judge tell the jury that they could request read backs. Instead, the trial judge responded, “No, I don’t do read backs.”

Then, noting that the defense attorney was giving him “that Courthouse common law look,” the trial judge discussed case law, with citations, supporting the proposition that the jury was not entitled to a read back because the issue was within the broad discretion of the trial court. The trial judge ruled that he would not tell the jury about read backs, saying that for the jury

to ask within the first ten minutes to have the entire trial read back to them, that’s impractical, can’t be done. They took copious notes. That’s why I let them have notes. They should rely on their own recollection. So, I am not going to put in there that they can ask for read backs. I am just going to write ... that there are no transcripts, please rely on your own recollection of the proceedings.

The defense attorney then asked the trial judge to instruct the jury that they have a right to ask the court for a read back. The trial court denied the request and sent the jury a note saying

There are no transcripts available for your review. Please rely on the evidence presented during the proceedings.

Hours later, the jury found appellant guilty of first degree murder.

A major question presented in this case is the obligation of a trial judge in a criminal case when faced with a deliberating jury’s request to see transcripts.

Florida Rule of Criminal Procedure 3.410 concerns a jury’s request for “any testimony” to be “read to them”:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read to them. The instructions shall be given and the testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

Rule B.410 gives a trial judge “wide latitude in the area of the reading of testimony to the jury.” ' Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). The Florida Supreme Court has recognized that “courts have found no abuse of discretion even where the trial judge has, without much consideration, entirely rejected the jury’s request for a read back.” Francis v. State, 808 So.2d 110, 130 (Fla.2001) (citing McKee v. State, 712 So.2d 837, 838 (Fla. 2d DCA 1998)).

However, several Florida cases have found an abuse of judicial discretion when a trial court responds to a jury question about trial testimony or transcripts without letting the jurors know that they may ask for testimony to be read back to them.

The leading case is Roper v. State, 608 So.2d 533 (Fla. 5th DCA 1992). This case involved sexual abuse of a minor. The deliberating jury “asked to ‘see’ the victim’s cross-examination testimony.” Id. at 533. After conferring with the attorneys, the trial judge told the jury that no transcript was available to them, so there was no way that the jury could “see” the victim’s cross examination. Id. at 533-34. The judge told the jury to “rely upon your collective recollections and remembrances as to what each of the witnesses testified to in order to render your verdict.” Id. at 534.

On appeal, the state argued “that if the jury does not ask that the testimony be read back, but only requests to see a transcript, the court does not abuse its discretion by simply instructing the jury to rely upon their recollections.” Id. at 535. The fifth district rejected this argument, writing that the judge’s response to the jury’s question “may well have led the jury to conclude that their only recourse was to rely upon their ‘collective recollections and remembrances’ as to the cross-examination of the minor.” Id. In analysis equally applicable to this case, the fifth district concluded in Roper that

the trial judge here narrowly focused upon the word “see” (as distinguished from “hear”) in the jury’s request and deftly side-stepped the problem. As we see it, he employed a semantic shell game effectively negating an option allowed the jury under Rule 3.410. At the very least, the trial judge should have apprised the jury that a method was available to have the cross-examination, or specific portions of it, read to them. Then, if the jury requested it, the trial court could have weighed that request in light of any applicable considerations.

Id. at 535. This court cited Roper with approval in Volk v. State, 754 So.2d 82 (Fla. 4th DCA 2000). In a case similar to Roper, we found an abuse of discretion where a trial judge responded to a jury question about witness testimony without letting the jury know that a read back of testimony was possible. The jury in Avila v. State, 781 So.2d 413, 414 (Fla. 4th DCA 2001), stated “that it needed to review the timing of specific events set forth by the testimonies of four named alibi witnesses.” The trial judge told the jury that although the court reporter took “down the trial in shorthand notes,” there were “no printed transcripts” to “submit back to you.” Id. at 415.

We held that the trial judge abused his discretion by failing to tell the jury about the potential availability of a read back:

While the trial court has the discretion to deny a jury’s request to read back testimony, it may not mislead the jury into thinking that a readback is prohibited. In this case, the jury clearly sought a readback of specific testimony. The trial court, however, without mentioning that a method of readback was available, informed the jury that there were no transcripts and that the jury members should rely upon their collective recollection. Because such a statement may have confused the jury as to whether a readback of testimony was permissible, we conclude that the trial court abused its discretion.

Id. at 415-16 (citations omitted); see also Rigdon v. State, 621 So.2d 475, 479 (Fla. 4th DCA 1993) (finding reversible error in instruction that any request for a read back would be refused, “because the trial judge’s comments may reasonably have conveyed to the jurors that to ask for ... rereading of testimony would be futile or was prohibited”).

This case falls within the ambit of Roper and Avila. The jury requested to see “transcripts.” Both the prosecutor and the defense attorney asked that the trial judge tell the jury that it could request read backs. The trial judge refused and told the jury that no transcripts were available for their review. As in Roper, the judge’s instruction “effectively negated] an option allowed the jury under Rule 3.410.” 608 So.2d at 535. Especially when asked to do so by both the state and the defense, the court should have apprised the jury that a method of read back was available. Id.; Avila, 781 So.2d at 415.

We acknowledge that in a recent, similar case, the third district has reached a different result. In Hazuri v. State, 23 So.3d 857, 857 (Fla. 3d DCA 2009), a deliberating jury asked if they could “get transcripts from the trial.” Defense counsel asked the trial judge to tell the jury that they could have portions of the trial read back to them. Id. The trial judge sent the jury a note telling them that there were no transcripts available and that they would have to rely on their collective recollection of the evidence. Id. The Hazuri majority opinion found no error in the judge’s note, which was “legally accurate;” the court held that “[u]pon giving such an answer, the trial court was under no obligation — as defense counsel suggested — to inform the jurors that a ‘readback’ of trial testimony may be available upon request.” Id. at 859.

We certify conflict with Hazuri. We believe that Roper and Avila are more in harmony with Florida’s view of a jury’s role in a criminal trial. Florida law encourages a jury to make a considered, careful evaluation of detailed evidence. As the Supreme Court has written, the “jury has a perfect right to return to the court room at any time and ask questions that are calculated to shed light on the controversy or that will in any way assist it or the court in developing the truth of the controversy.” Sutton v. State, 51 So.2d 725, 726 (Fla.1951). Part of a trial judge’s role is to forthrightly make the jury aware of those tools available under the rules of criminal procedure that will assist the jury in arriving at its decision. The judge’s role is to facilitate careful deliberation. Deference should be accorded to a jury’s request to more closely examine the trial testimony. See LaMonte v. State, 145 So.2d 889, 892 (Fla. 2d DCA 1962).

As a second area of concern, we note that the lawyers’ request that the jury be advised of the availability of read backs may have been fruitless, in light of the judge’s stated policy: “I don’t do read backs.” It is an abuse of discretion for a trial judge to refuse to exercise discretion, to rely on an inflexible rule for a decision that the law places in the judge’s discretion. As Justice Thompson wrote in his concurrence to Barber v. State, 5 Fla. 199, 206 (Fla.1853), the trial court’s “discretion is not an arbitrary exercise of the will and pleasure of the Judge, but it is a sound legal discretion, to be exercised according to the exigency of the case, upon a consideration of the attending circumstances.” See Massey v. State, 50 Fla. 109, 112, 39 So. 790 (Fla.1905) (refusal to exercise discretion, “without any good reason for so doing,” deprives party of a substantial right); Boykin v. Garrison, 658 So.2d 1090, 1090 (Fla. 4th DCA 1995) (where the court wrote that “[t]he law is well settled that a trial court must exercise its discretion where discretion has been provided; a refusal to so exercise is error.”); see also Albert v. Miami Transit Co., 154 Fla. 186, 17 So.2d 89, 90 (1944) (discussing the limits of judicial discretion); Fla. Fire & Cas. Ins. Co. v. Hart, 73 Fla. 970, 975-77, 75 So. 528 (Fla.1917) (trial court deprives a party of a substantial right when it refuses to exercise its discretion on motion for new trial); Steinmann v. State, 839 So.2d 832 (Fla. 4th DCA 2003) (where court wrote that “[i]t is error for the trial court to refuse or fail to exercise its discretion.” (citations omitted)).

We do not find the error in the trial court’s response to the jury’s question to be harmless. The decision in this case turned on the details. The jury asked for transcripts of the testimony of key witnesses who had first-hand knowledge of the events the night the victim disappeared, as well as the testimony of Peggy, who testified about appellant’s confession, and the statements appellant gave to the police. The witnesses from the party in appellant’s trailer were drunk or high on the night in question and their testimony varied on key points.

Peggy herself was not a strong witness. Her testimony conflicted with her earlier version of Barrow’s confession, and she told the jury that she did not care, because the details did not matter. She had multiple reasons to be angry with appellant. She had recanted an accusation that appellant had attacked her in exactly the same manner she said he confessed to attacking the victim—by throwing her out of the trailer onto a rock. The fact that Zack did not see any blood when he found the cherry cigars casts doubt on Peggy’s testimony that appellant had killed the victim by smashing her head on a rock in the same general area where the cherry cigars were found.

To conclude that an error is harmless, we must find “beyond a reasonable doubt” that the error “did not affect the jury’s verdict.” State v. Powell, 998 So.2d 531, 542 (Fla.2008) (citation omitted). Given the details, we cannot say that the inability of the jury to more closely examine the conflicting evidence did not affect its verdict.

On a remaining issue, we agree with the trial court that the state established the corpus delicti in this case so that Peggy’s testimony of appellant’s confession was properly admitted.

“To admit a defendant’s confession, the state must prove the corpus delicti either by direct or circumstantial evidence.... [P]roof beyond a reasonable doubt is not mandatory.” Meyers v. State, 704 So.2d 1368, 1369-70 (Fla.1997) (citations omitted). The phrase “corpus de-licti”

refers to proof independent of a confession that the crime charged was in fact committed. Bassett v. State, 449 So.2d 803, 807 (Fla.1984). In order to prove corpus delicti in a homicide case, the state must establish: (1) the fact of death; (2) the criminal agency of another person as the cause thereof; and (3) the identity of the deceased person. Id. Regarding the second element — the criminal agency of another — the proof need not show that the defendant committed the crime.

Id. at 1369 (footnote omitted).

Here, the state established the corpus delicti based on State v. Lindsey, 738 So.2d 974, 977 (Fla. 5th DCA 1999). That case held that the corpus delicti of murder was established by evidence that (1) the victims’ continued absences without contacting family or friends were out of character for them and (2) the victims’ belongings left at their residences indicated that their absence was neither voluntary nor planned. Id. Similarly in Crain v. State, 894 So.2d 59, 72 (Fla.2004), the corpus delicti was established by evidence that a young child was last seen alive in the presence of Crain, that her blood was found on his clothing, that scratch marks were found on him, and that he had bleached his bathroom in the middle of the night and exhibited other unusual behavior the next morning.

In this case, the victim had not taken any of her belongings with her, including her identification and money. Three years had elapsed from the time the victim was last seen to the time of trial. She was last seen with appellant, and her blood was found in his van. Barrow’s story changed, and it was contradicted by the testimony of witnesses. Such evidence was sufficient to establish a corpus delicti. Even though this is a weaker case than Lindsey and Crain, in that the victim had a history of disappearing for periods of time, corpus delicti need not be proved beyond a reasonable doubt. See Davis v. State, 582 So.2d 695, 700 (Fla. 1st DCA 1991) (“[T]he foundational evidence necessary to prove corpus delicti need not eliminate possible noncriminal explanations of a victim’s disappearance.”).

We find no fundamental error in the state’s closing argument.

Reversed and remanded for a new trial.

TAYLOR and HAZOURI, JJ., concur.

      . Omitting the case citations, this is what the judge said:
      The question of whether a request for read back of testimony by the jury should be granted is within a broad discretion of the trial court. Just to give you some examples ... in ... McKee versus State ... the Court [held] that the trial judge who failed to read back the testimony of the victim, who upon the request of the jury, but instead told the jurors to rely on their own memory, did abuse his broad discretion. Courts have consistently found in denial of a jury’s request for a read back when doing so would not be practical. Miller versus State ... finding no abuse of discretion where the court reporter did not have her notes with her. DeCastro versus State ... no abuse of discretion where it was not practical because the testimony was extensive and the Court Reporter was tired. Francis v. State ... The trial court informed the jury that the testimony requested to be read back would take three hours. The Supreme Court noted, however, that the trial judge made it abundantly clear to the jury that the ultimate decision was theirs. Also, there was extensive discussion between the attorneys and the Court about how to handle the jury’s request.

      . We agree with the comments of Judge Cope in his dissenting opinion in Hazuri:

      The majority opinion finds dispositive the fact that the jury note asked for transcripts. According to the majority, since no transcripts were in existence, it follows that the question could be answered with a simple "no.”
      The majority opinion overlooks the fact that jurors are composed of lay persons. If they knew the technical details of the law, then they would have written a better note. But the substance of the question was whether the jury could review the testimony. Defense counsel quite properly said that under rule 3.410, a jury may request to have "testimony read to them,” and the court may so order. Hazuri v. State, 23 So.3d 857, 861 (Fla. 3d DCA 2009) (Cope, J., dissenting) (emphasis in original) (footnote omitted).

      . The best discussion we have found of judicial discretion is contained in Albert v. Miami Transit Co., 154 Fla. 186, 17 So.2d 89, 90 (1944) (citation omitted):
      Judicial discretion is not an unleashed power by which a judge may set at naught the rights of parties to a cause and define them as suits his will or the will of others who may seek to influence his judgment. Judicial discretion is a discretion guarded by the legal and moral conventions that mold the acceptable concept of right and justice. If this is not true, then judicial discretion, like equity, will depend on the length of the judge's foot, the state of his temper, the intensity of his prejudice, or perhaps his zeal to reward or punish a litigant. It takes more than a wool-sack and a judicial robe to dehumanize human characteristics that are rehumanized each biennium.


text:
    Kenneth JACKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-329.
    District Court of Appeal of Florida, Fourth District.
    Feb. 10, 2010.

      Kenneth Jackman, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kenneth Jackman appeals the trial court’s order summarily denying his motion for post conviction relief. We reverse and remand.

In his post conviction motion, Defendant alleged that at the time he entered his plea, he was under the influence of illegal substances and suffering from mental defects, which impaired his ability to understand the consequences of his plea. He argued that counsel should have investigated his competency to proceed, as an evaluation would have revealed he was incompetent to stand trial, based on his history of mental illness and an evaluation that occurred several years after the plea. He also argued that counsel was ineffective in allowing him to plead when he was mentally incompetent, due to his psychiatric disorders and the influence of illegal drugs. As a result, he was deprived of a fair trial. However, he did not state in the motion that his defense counsel at the time of the plea was aware of his mental and drug abuse problems, nor did he attach documents corroborating his alleged condition.

The trial court denied the motion based on the state’s response. No portions of the record were attached to the response or to the order of denial. Essentially, the state took the position that the motion was legally insufficient in that Defendant failed to allege that he ever gave trial counsel a reason to believe that he was not competent to enter a plea. Patton v. State, 784 So.2d 380, 392 (Fla.2000); Nixon v. State, 932 So.2d 1009, 1020 (Fla.2006). Additionally, the state attempted to refute Defendant’s allegations by reference to portions of the record, which the trial court should have attached if they were necessary to refute Defendant’s allegations, Fla. R.Crim. P. 3.850(d), and by referring to the perceptions of the assistant state attorney who filed the response below regarding conversations with Defendant around the time of the plea, which probably would have to be adduced during an evidentiary hearing.

In his brief filed with this court, Defendant argues that if his motion was insufficient, he should have been allowed to amend it with facts and records that would warrant relief, citing Spera v. State, 971 So.2d 754 (Fla.2007). In response to this court’s order to show cause, the state agrees that, as it was not apparent that the defects in the motion could not be corrected, Defendant should be given a reasonable time to amend his motion; furthermore, if the motion is denied on the merits, then the plea form and a transcript of the plea colloquy should be attached.

We agree and accordingly reverse, and direct the trial court on remand to permit Defendant a limited period of time in which to allege the same grounds in a facially sufficient motion, pursuant to Spera.

Reversed and Remanded.

FARMER, DAMOORGIAN and CIKLIN, JJ., concur.


author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Michael Byron EDENFIELD, Appellee/Cross-Appellant.
    No. 2D08-5910.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee/Cross-Appellant.
   VILLANTI, Judge.

The State appeals the trial court’s order suppressing statements made by Michael Byron Edenfield to a deputy sheriff. Because Edenfield was in jail when he made the incriminating statements, the trial court concluded that he was automatically entitled, without exception, to be read Miranda warnings before any conversations with a law enforcement officer could occur. Because the trial court’s order relies on this incorrect legal assumption and lacks critical factual findings, we reverse and remand for further proceedings.

Although “[a]n appellate court reviewing a ruling on a motion to suppress presumes that a trial court’s findings of fact are correct and reverses those findings only if they are not supported by competent, substantial evidence[,]” the trial court’s application of the law to the historical facts is subject to de novo review. Cuervo v. State, 967 So.2d 155, 160 (Fla.2007).

In this case, Deputy Michael Frentón and another officer visited Edenfield’s home to conduct a “wellness check” on Edenfield’s grandmother. While conducting the check, they noticed several potted marijuana plants in plain view in front of the residence. Although the wellness check proved satisfactory, Deputy Frentón questioned Edenfield about the plants. Edenfield denied they belonged to him. The plants were then seized, but Edenfield was not arrested at that time. Law enforcement had further contact with Eden-field in the weeks following the initial visit, in the course of following up on his grandmother’s well-being. The investigation into the marijuana plants continued, and Edenfield was eventually arrested and charged with manufacture and possession of cannabis and possession of paraphernalia. Edenfield remained in jail following his arrest because he apparently could not make bond.

After being in jail for approximately one month, Edenfield requested to speak to a law enforcement officer concerning items allegedly stolen from his home during his absence. Deputy Frentón responded to Edenfield’s jail visit request. When the deputy arrived at the jail, Edenfield asked to go to a private room. Deputy Frentón obliged by bringing him to an attorney meeting room. Once in the room, Eden-field did not ask to have an attorney present. Instead, Edenfield indicated that he would give the deputy information about drug activity in exchange for favorable treatment on his pending charges, and he began providing names of people allegedly involved in such activities. Deputy Fren-ton made no promises of favorable treatment and simply said that he would pass the information on to a narcotics officer. Toward the end of their conversation, Edenfield made incriminating statements concerning his ownership of the marijuana plants in question.

Thereafter, Edenfield filed a motion to suppress the incriminating statements, which the trial court granted after an evi-dentiary hearing. However, in issuing its order suppressing Edenfield’s incriminating statements, the trial court did not address key factual points of dispute, such as how the conversation turned from Edenfield’s stolen property claim and the identity of suspected drug dealers to the charges pending against Edenfield, who initiated the conversation related to the pending criminal charges, or why the current criminal charges became part of the discussion. Notably, the trial court granted suppression of the statements based upon this record only because it found that “Miranda rights were never read and Defendant never waived his right to counsel” and, hence, “[i]t cannot be established that the Defendant made any statements and/or admissions freely, knowingly or voluntarily.” The court’s conclusion was erroneous because it was based upon an incorrect presumption that Miranda warnings are required any time law enforcement receives incriminating statements from a prisoner during a conversation, regardless of the circumstances surrounding that conversation. However, whether Miranda warnings are required depends upon whether a custodial interrogation takes place. Unfortunately, here the trial court failed to make any findings of fact in this regard and the record does not otherwise provide an answer.

It is well established that Miranda warnings apply only to custodial interrogations. Rigterink v. State, 2 So.3d 221, 242 (Fla.2009) (“The dictates of Miranda apply exclusively to ‘in-custody interrogation.’” (quoting Miranda v. Arizona, 384 U.S. 436, 441-42, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966))); see also Traylor v. State, 596 So.2d 957, 966 (Fla.1992) (noting that the protection against self-incrimination under article I, section 9 of the Florida Constitution applies “only to statements obtained while in custody and through interrogation; they do not apply to volunteered statements initiated by the suspect or statements that are obtained in noncustodial settings or through means other than interrogation” (footnotes omitted)). Therefore, in instances where a defendant challenges the lack of Miranda warnings, the preliminary factual issues to be decided by the trial court are (1) whether the defendant was in custody and (2) whether he was interrogated.

For purposes of Miranda, “[a] person is in custody if a reasonable person placed in the same position would believe that his or her freedom of action was curtailed to a degree associated with actual arrest.” Ramirez v. State, 739 So.2d 568, 573 (Fla.1999) (citing Traylor, 596 So.2d at 966 n. 16). Furthermore, the term “custodial interrogation” refers to “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602 (emphasis added); see also Traylor, 596 So.2d at 966 n. 17 (“Interrogation takes place ... when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response.”); State v. Busciglio, 976 So.2d 15, 19 (Fla. 2d DCA 2008).

In this case, Edenfield obviously initiated a conversation with law enforcement about his allegedly stolen property and the identities of people involved in drug activity, but the trial court did not address who initiated the ensuing discussions regarding the pending charges, which led to Edenfield’s incriminating statements. The trial court only noted that a factual dispute on this issue existed, but it apparently considered the resolution of this dispute unnecessary to its ruling and, therefore, did not decide whose version of those facts should be believed— Deputy Frenton’s or Edenfield’s. On a motion to suppress, the circuit court is responsible for weighing the evidence and making factual findings concerning the credibility of witnesses. Dillow v. State, 884 So.2d 508, 510 (Fla. 2d DCA 2004); Brown v. State, 852 So.2d 60, 61 (Fla. 4th DCA 1977). In this case, the trial court erred in not doing so because the determination of this factual dispute is the linchpin to a correct legal decision on Edenfield’s motion to suppress.

In addition to having no findings of fact on the important issues discussed above, the trial court’s order implies that Miranda warnings are required any time law enforcement has a conversation with an inmate. The fact that a person is in jail, in and of itself, does not dispense with the necessity of the trial court making findings of fact regarding both prongs of the protection against self-incrimination, i.e., whether, for purposes of Miranda, the defendant is in custody and an interrogation took place. Under certain circumstances a trial court could find that even an inmate is free to terminate a conversation with law enforcement and return to his jail cell at any point during their conversation. A trial court could also find that an inmate volunteered incriminating information. Here, the trial court erred in not considering these issues. Despite the trial court’s assumption to the contrary, we can find no case law mandating a per se ministration of Miranda warnings outside the context of a custodial interrogation as that term is defined by controlling precedent.

In closing, we note that if the defense pursues further suppression proceedings on remand, there are numerous cases which the parties and trial court can consider in properly evaluating whether Edenfield’s statements were obtained in violation of Miranda. See, e.g., Ahedo v. State, 842 So.2d 868 (Fla. 2d DCA 2003) (holding that defendant knowingly and voluntarily waived right against self-incrimination when he requested to speak to the officer who originally read him his rights and then made incriminating statements to the officer); Larson v. State, 753 So.2d 733, 734-35 (Fla. 2d DCA 2000) (finding that defendant was subject to interrogation for purposes of Miranda where the police officer made “statements that were reasonably likely to elicit an incriminating response”); Serrano v. State, 15 So.3d 629 (Fla. 1st DCA 2009) (affirming denial of motion to suppress where the defendant requested a meeting with a police officer after his arrest, offered to provide information in exchange for a haircut, and there was no evidence of coercion); State v. Lebron, 979 So.2d 1093, 1094 (Fla. 3d DCA 2008) (holding that officer interrogated defendant when he told the defendant, “I hope you know what kind of trouble you are in” while defendant was seated in police cafeteria because the officer’s statement referred to the underlying crime for which the defendant was in custody and invited a response about that crime); Harnanan v. State, 780 So.2d 183 (Fla. 5th DCA 2001) (holding that defendant was not subjected to custodial interrogation where he initiated conversation with police officer thereby waiving his Fifth Amendment rights). See generally State v. Hunt, 14 So.3d 1035, 1038-39 (Fla. 2d DCA 2009) (discussing standard for reviewing allegations of Miranda violations where the defendant reinitiates communications with police officers after being read Miranda warnings and after initially invoking his right to remain silent).

Accordingly, we reverse the order granting suppression and remand for further proceedings in accordance with this opinion.

WALLACE and LaROSE, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The record contains discrepancies as to the deputy's last name. He is referenced to as both "Frenti” and "Frentón.” Because the trial court and the parties on appeal referred to the deputy as "Frentón,” we use that name in this opinion.

      . The method by which Edenfield requested to speak to an officer is unclear. He initially testífied at the hearing on the motion to suppress that he had filled out a request to see a police officer. However, he later testified that he requested to see a police officer by calling "Crime Stoppers.” The record on appeal does not contain a written request to see a police officer.

      .In the past, Edenfield had helped law enforcement find a person who had an outstanding warrant.

      . The record on appeal suggests that Eden-field was read Miranda warnings by a different police officer prior to the events which led to this appeal. However, this issue was not developed below and is not before this court.


author: MORRIS, Judge.

text:
    Jesus SAUZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2915.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.
    Lee Adam Cohen of Cohen & Best, P.A., Lakeland, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   MORRIS, Judge.

Jesus Sauz appeals his judgments and sentences for lewd battery and resisting an officer without violence. Sauz raises several issues on appeal, but we find merit only in his argument that the trial court erred by denying his motion for judgment of acquittal as to the resisting an officer without violence charge.

I. Facts

Sauz was charged with lewd battery after he had sex with a thirteen-year-old girl. The resisting an officer without violence charge arose after Sauz lied about his identity to Detective Sherry Doty, the detective investigating the lewd battery. At the time Detective Doty went to Sauz’s home to talk to him, she was dressed in plain clothes, although she was wearing her badge and identified herself as an officer. She admitted that she did not have a warrant to arrest Sauz and did not go to his home with the intent to detain him. Rather, Detective Doty testified that she went there merely to see if he would cooperate with the investigation.

When Detective Doty arrived, there were several men at the location; Detective Doty did not have a photograph of Sauz and did not know his identity. Detective Doty did not tell the men why she was looking for Sauz. However, when Detective Doty began questioning the men, Sauz provided a false name, Jesus Martinez, and a false date of birth. Sauz also told Detective Doty that Sauz was in Texas. Detective Doty left the home at that time. Detective Doty testified that Sauz’s provision of the false name and the false date of birth slowed her investigation.

Eventually, Detective Doty was able to contact Sauz on his cell phone and arranged for him to come in to speak with her. Thereafter, Sauz was charged with and convicted of the crimes. On the lewd battery charge, he was sentenced to 94.6 months in prison as a sex offender. On the resisting an officer without violence charge, he was sentenced to time served.

II. Analysis

On appeal, Sauz contends that the trial court erred by denying his motion for judgment of acquittal on the resisting an officer without violence charge. He contends that the evidence was insufficient to prove the commission of this crime because he was not under arrest or being lawfully detained at the time he provided the false information and that, therefore, he was not resisting the lawful execution of a legal duty.

We review the denial of the motion for judgment of acquittal under the de novo standard of review. See Jackson v. State, 18 So.3d 1016, 1025 (Fla.2009). In doing so, we view the evidence in the light most favorable to the State. See id.

The elements of resisting an officer are as follows: (1) the officer must be engaged in the lawful execution of a legal duty and (2) the defendant’s actions constitute obstruction or resistance of that lawful duty. See § 843.02, Fla. Stat. (2005); Fournier v. State, 731 So.2d 75, 76 (Fla. 2d DCA 1999). “[A] suspect can commit the offense of obstructing a police officer without violence by providing false information to a police officer during a valid arrest or Terry[ ] stop....” St. James v. State, 903 So.2d 1003, 1004 (Fla. 2d DCA 2005) (citing D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995)); see also Fournier, 731 So.2d at 76. However, “ ‘[t]his rule ... does not obligate a person to give his or her correct identity to an officer unless that person is legally detained.’” St. James, 903 So.2d at 1004 (alteration in original) (quoting D.G., 661 So.2d at 76); see also Fournier, 731 So.2d at 76.

In this case, Detective Doty was engaged in the lawful execution of a legal duty because she was investigating the lewd battery. See V.L. v. State, 790 So.2d 1140, 1142 (Fla. 5th DCA 2001); Francis v. State, 736 So.2d 97, 99 n. 1 (Fla. 4th DCA 1999). However, pursuant to this court’s holding in St. James, Sauz was not lawfully detained and, therefore, his provision of the false name and date of birth did not constitute the crime of resisting an officer without violence.

In St. James, an officer was investigating the theft of a bicycle and when he arrived on scene, there was a group of men standing nearby. 903 So.2d at 1004. Although the officer asked the men whether they had seen St. James, he [the officer] did not explain why he was looking for St. James or even that he was conducting an investigation. Id. Even though the officer had probable cause to arrest St. James at that time, the officer did not convey that information to the group of men and there was no showing that St. James knew the officer intended to detain him. Id. St. James denied knowing anyone by that name. Id. Despite the fact that St. James provided patently false information to the officer, this court determined that such conduct did not amount to obstruction because St. James was not legally detained at the time. Id.

In this case, while Sauz provided patently false information to Detective Doty, he did so at a time when he was not lawfully detained or subject to a Terry stop. Much like the facts of St. James, Detective Doty testified that she was investigating the lewd battery and merely went to Sauz’s home to see if he would cooperate with the investigation. Detective Doty further admitted that she did not intend to detain Sauz and did not explain why she was there. In addition, there is no indication that Sauz thought he was being detained by Detective Doty.

Although the State asks this court to consider receding from St. James, we decline to do so. Instead, we apply St. James and hold that the State failed to provide sufficient evidence that Sauz committed the crime of resisting an officer without violence and further that the trial court erred by denying Sauz’s motion for judgment of acquittal. We therefore reverse Sauz’s conviction for resisting an officer without violence and remand for proceedings in conformance with this opinion.

Affirmed in part, reversed in part, and remanded.

DAVIS and WALLACE, JJ., Concur.

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

      . Because we are reversing this conviction on the basis that Sauz’s conduct did not amount to resisting an officer without violence, it is unnecessary to address Sauz's other argument that the State failed to prove the date on which the offense occurred.


author: WHATLEY, Judge.

text:
    George W. DANEKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3211.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.

      George W. Daneker, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

George W. Daneker challenges a final order that summarily denied his second motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

In 2003, Daneker pleaded no contest in cases 02-CF-9355, 02-CF-9476 and 02-CF-15443 to burglary of a structure, attempted burglary of a structure, trespass to a construction site, grand theft, driving while license suspended, resisting arrest with violence, and dealing in stolen property. On April 4, 2003, Daneker was sentenced. The written sentence reflected a term of ten years in prison on the dealing in stolen property count and five years on the remaining charges, to run concurrently. The judgment and sentence were affirmed on direct appeal. Daneker v. State, 871 So.2d 221 (Fla. 2d DCA 2004).

On May 13, 2004, Daneker filed his first motion to correct an illegal sentence pursuant to rule 3.800(a), claiming the written sentence did not conform to the oral pronouncement of sentence. Daneker’s motion was granted and the postconviction court amended the written sentence, consistent with the oral pronouncement, to reflect sentences of ten years for burglary of a structure and five years on the remaining charges, to run concurrently.

Daneker subsequently filed the current motion to correct an illegal sentence, claiming the amended sentence violates double jeopardy and is otherwise illegal. Because the postconviction court correctly found no violation of double jeopardy, we do not address that claim. Daneker’s alternative claim, that the ten-year sentence for burglary of a structure is illegal, was not addressed by the postconviction court.

As the State concedes, the sentence for burglary of a structure must be reversed. Daneker was convicted of burglary of an unoccupied structure, a third-degree felony, which carries a maximum penalty of five years in prison, pursuant to section 775.082(3)(d), Florida Statutes (2002). The permissible sentencing range, calculated on Daneker’s scoresheet, was between 30.45 months and the statutory maximum of five years. See § 921.0024(2), Fla. Stat. (2002).

Accordingly, we reverse and remand •with instructions to enter a second amended sentence reflecting a sentence within the permissible range for burglary of a structure in case 02-CF-9355 and concurrent five-year sentences on all other charges, with all other conditions of the amended sentence to remain in effect.

Reversed and remanded.

SILBERMAN and LaROSE, JJ., Concur.


text:
    Tony ROSA, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-6018.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.
    Maria Rodriguez, Safety Harbor, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Tony Rosa appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged ineffective assistance of counsel. We affirm the denial on all grounds except grounds one and six. On those two grounds we reverse and remand for further proceedings.

Rosa was convicted of second-degree murder. This court affirmed his judgment and sentence on direct appeal. See Rosa v. State, 853 So.2d 422 (Fla. 2d DCA 2003) (table decision).

Rosa subsequently filed a motion for postconviction relief. In ground one of his motion, Rosa alleged that his counsel was ineffective by failing to depose several witnesses before they testified at trial. The postconviction court summarily dismissed this claim because Rosa failed to allege with particularity what these witnesses would have said had they been deposed or how their deposition testimony would have been different from their trial testimony. The court also concluded that Rosa had failed to articulate any prejudice resulting from counsel’s failure to depose these witnesses. The postconviction court correctly concluded that Rosa’s allegations were facially insufficient and dismissed this claim. See Jones v. State, 845 So.2d 55, 65 (Fla.2003) (“To be entitled to an evidentiary hearing on a claim of ineffective assistance, the defendant must allege specific facts that are not conclusively rebutted by the record and which demonstrate a deficiency in performance that prejudiced the defendant.”). However, under Spera v. State, 971 So.2d 754, 761 (Fla.2007), the postconviction court should have given Rosa an opportunity to amend his motion to state a facially sufficient claim. See, e.g., Philip v. State, 14 So.3d 1243, 1243-44 (Fla. 2d DCA 2009); Monroe v. State, 13 So.3d 1083, 1084 (Fla. 2d DCA 2009); Griggs v. State, 995 So.2d 994, 995 (Fla. 1st DCA 2008). Accordingly, we reverse the dismissal of ground one and remand for the court to strike the claim with leave for Rosa to amend within a reasonable period of time not to exceed thirty days. See Philip, 14 So.3d at 1244.

In ground six, Rosa alleged that counsel was ineffective for failing to call codefendant William Marr to testify at trial because Marr could have provided exculpatory evidence. The postconviction court summarily dismissed this claim because Rosa failed to allege the substance of any specific testimony that Marr would have offered had he been called to testify at trial and because Rosa failed to allege how he had been prejudiced by counsel’s failure to call Marr at trial. We find no error in the postconviction court’s dismissal. See Mens v. State, 968 So.2d 706, 711 (Fla. 2d DCA 2007) (identifying elements which a defendant must assert to state a facially sufficient claim of ineffective assistance for failure to call a witness at trial). However, under Spera, the postconviction court should have given Rosa an opportunity to amend his motion to state a facially sufficient claim. Accordingly, we reverse the dismissal of ground six and remand for the court to strike this claim with leave for Rosa to amend, if he can do so in good faith, within a reasonable period of time not to exceed thirty days. See Philip, 14 So.3d at 1244.

If Rosa amends these claims, the post-conviction court may again summarily deny them if they are once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.

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

WALLACE and CRENSHAW, JJ., Concur.


text:
    Jerry L. SHEPPARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4771.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2010.
    James Marion Moorman, Public Defender, and Robert Augustus Harper, III, Special Assistant Public Defender, Bartow, for Appellant.

      Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right that Sheppard may have to file an appropriate motion for postconviction relief.

ALTENBERND, VILLANTI, and WALLACE, JJ., Concur.


author: KELLY, Judge.

text:
    Leah MUSE, Appellant, v. Joshua B. MUSE, o/b/o Mikelah MUSE and Joshua Muse, II, Appellee.
    No. 2D08-3372.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2010.
    Mark A. Sessums of Sessums & Ses-sums, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   KELLY, Judge.

Leah Muse appeals from a final judgment of injunction for protection against domestic violence "with minor children. The injunction was entered pursuant to section 741.30, Florida Statutes (2008), which states:

(6)(a) Upon notice and hearing, when it appears to the court that the petitioner is either the victim of domestic violence as defined by s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the court may grant such relief as the court deems proper, including an injunction.

Accordingly, before an injunction may be entered, the court must have before it evidence that would give it “reasonable cause to believe” the minor children are “in imminent danger of becoming a victim of domestic violence.” See Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005); Giallanza v. Giallanza, 787 So.2d 162, 165 (Fla. 2d DCA 2001). Domestic violence is defined in section 741.28(2), Florida Statutes (2008), as certain violent or harmful criminal acts between family or household members.

The record before the trial court was devoid of any evidence that would have permitted the requisite finding. Joshua Muse did not present any sworn testimony or evidence, and the unsworn assertions that provided the basis for his motion can only be characterized as his subjective fear that “something bad might happen” to his children because of Leah Muse’s alleged relationships with third parties. His subjective fear is insufficient to warrant the entry of an injunction under section 741.30. See Oettmeier v. Oettmeier, 960 So.2d 902, 903 (Fla. 2d DCA 2007) (holding that petitioner’s subjective fear was not enough to meet the standard required in section 741.30(l)(a)). Accordingly, we reverse the final judgment of injunction.

Reversed.

CASANUEVA, C.J., and CRENSHAW, J., Concur.


text:
    Anthony HARTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5267.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 2010.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Anthony Hartley was convicted of: count one, felony battery with great bodily harm and count two, burglary of a conveyance with a battery. He contends that we should reverse his conviction for count two because the trial court denied his request for a jury instruction on burglary, a necessarily lesser-included offense of burglary of a conveyance with a battery. The State concedes the error.

When requested, trial courts are required to instruct juries on necessarily lesser-included offenses of the charged offense. State v. Abreau, 363 So.2d 1063 (Fla.1978); Miller v. State, 870 So.2d 15 (Fla. 2d DCA 2003). Simple burglary is a necessarily lesser-included offense of burglary with a battery. Because the jury did not have the opportunity to consider whether Mr. Hartley was guilty of the lesser offense of burglary, we affirm his conviction for count one, but reverse his judgment and sentence for count two and remand for a new trial.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, C.J., and CRENSHAW, J., Concur.