text:
    L.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-436
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before LAGOA, LOGUE and LUCK, JJ.
   PER CURIAM.

Affirmed. See F.T. v. State, 146 So.3d 1270, 1272-73 & n.4 (Fla. 3d DCA 2014) ("If a person steals a shirt from a store and the price stated on the tag affixed to the shirt is $100, the content of that price tag is not hearsay because it is not coming in to prove the truth of the matter asserted but only to establish what the tag "says." Its independent relevance is only as a result of the statutory language of the definition of "value," which is simply the price affixed to the retail item at the time it was stolen.... [W]e do not agree that a business records foundation must be laid before a witness is permitted to testify to her contemporaneous observation of the contents of the price tag affixed to the stolen item of retail merchandise.").


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Anthony JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2831
    District Court of Appeal of Florida, Third District.
    Opinion filed August 15, 2018
    Anthony Jones, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Smith v. State, 213 So.3d 722, 736 (Fla. 2017) ("In reviewing the trial court's decision on a newly discovered evidence claim following an evidentiary hearing, where the court's findings are supported by competent, substantial evidence, this Court will not substitute its judgment for that of the trial court on questions of fact, credibility of the witnesses, or the weight given to the evidence by the trial court.").


text:
    Anthony Patrick BARATTA, Appellant, v. Tatiana COSTA-MARTINEZ, Appellee.
    No. 3D18-1598
    District Court of Appeal of Florida, Third District.
    Opinion filed August 22, 2018.
    Anthony Patrick Baratta, in proper person.
    Tatiana Costa-Martinez, in proper person.
    Mandel Law Group, P.A., Palmetto Bay, and Roberta G. Mandel, former counsel for appellee.
    Before SUAREZ, SALTER, and LINDSEY, JJ.
   PER CURIAM.

Respondent/Father Anthony Patrick Baratta appeals the Pick-Up Order and Break Order entered on August 3, 2018. The pick-up order was entered upon the Motion for Order of Commitment to Take Respondent/Father into Custody and for Writ of Bodily Attachment filed by the Mandel Law Group on July 31, 2018. This motion was accompanied by an affidavit from attorney, Roberta G. Mandel, Esq., attesting that Baratta had failed to comply with the trial court's July 25, 2016 order to pay approximately $21,000 in attorney's fees to the Mandel Law Group, P.A. The Mandel Law Group formerly represented the Petitioner/Mother Tatiana Costa-Martinez.

We reverse the pick-up order because, upon the filing of the motion for order of commitment and accompanying affidavit, no show cause order was issued and because there was no compliance with Florida Rule of Criminal Procedure 3.840, applicable to indirect criminal contempt proceedings. See Maher v. Junior, 198 So.3d 949 (Fla. 3d DCA 2016) ; Anton v. Anton, 106 So.3d 34 (Fla. 3d DCA 2013) ; De Castro v. De Castro, 957 So.2d 1258 (Fla. 3d DCA 2007) ; Decoro v. State, 771 So.2d 627 (Fla. 3d DCA 2000) ; Baker v. Green, 732 So.2d 6 (Fla. 4th DCA 1999).

We therefore reverse the trial court's finding of indirect criminal contempt without prejudice.

Reversed.


author: Per Curiam.

text:
    Miguel AVILA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2233
    District Court of Appeal of Florida, First District.
    August 22, 2018
    Miguel Avila, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Lewis, Roberts, and M.K. Thomas, JJ., concur.


text:
    Renaldo Dimitri REEVES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2856
    District Court of Appeal of Florida, First District.
    August 22, 2018
    Renaldo Dimitri Reeves, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Jarvis L. LEWIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2442
    District Court of Appeal of Florida, First District.
    August 22, 2018
    Jarvis L. Lewis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.141(c)(5)(A).

Lewis, Roberts, and M.K. Thomas, JJ., concur.


text:
    David Wayne TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2677
    District Court of Appeal of Florida, First District.
    August 22, 2018
    David Wayne Turner, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED. See Fla. R. App. P. 9.141(c)(5)(A).

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    Chavis WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2320
    District Court of Appeal of Florida, First District.
    August 22, 2018
    Chavis Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.141(c)(5)(A).

Roberts, Kelsey, and Winsor, JJ., concur.


text:
    WESTMOUNT FINANCIAL LIMITED PARTNERSHIP, a Nevada Limited Partnership, Petitioner, v. COURTNEY PROPERTY, LLC, a Florida limited liability company, Florence D. Doran, John Doran, Doran Holdings I, LLC, a Florida limited liability company, St. Lucie Capital, LLC, a Florida limited liability company, and Timothy Doran, Respondents.
    No. 4D18-0311
    District Court of Appeal of Florida, Fourth District.
    August 22, 2018
    Nichole J. Segal and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Richard K. Slinkman of Slinkman, Slinkman & Wynne, P.A., Jupiter, for petitioner.
    Nathan E. Nason of Nason, Yeager, Gerson, White & Lioce, P.A., Palm Beach Gardens, for respondent Timothy Doran.
   Per Curiam.

Westmount Financial Limited Partnership ("Westmount") appeals a non-final order denying its motion to dismiss a counterclaim pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(A). The basis of Westmount's motion to dismiss was that the claims raised in the counterclaim were nearly identical to the claims pending in a separately filed lawsuit in New Jersey. As the order denying the motion to dismiss does not "concern venue"

as contemplated under Rule 9.130(a)(3)(A), we do not have jurisdiction as to that order on direct appeal. Nonetheless, because exposure to a potential inconsistent ruling on the same issue by a different court can constitute irreparable harm, we treat the appeal as a petition for writ of certiorari. See Inphynet Contracting Servs., Inc. v. Matthews , 196 So.3d 449, 462-63 (Fla. 4th DCA 2016) ; REWJB Gas Invs. v. Land O'Sun Realty, Ltd. , 645 So.2d 1055, 1056 (Fla. 4th DCA 1994). For the reasons discussed below, we deny certiorari without prejudice to Westmount seeking a stay or severance of the counterclaim.

This case arose from a 2006 loan by Westmount to Courtney Property, LLC. As part of the loan transaction, several parties, including respondent Timothy Doran ("Doran"), executed guarantees for the loan. Following an alleged default on the loan, Westmount sued Courtney Property, LLC and the various guarantors in Florida. At the time the Florida lawsuit was filed, Westmount and Doran were already embroiled in a separate lawsuit in New Jersey concerning other dealings between the parties. Specifically, Doran and several other plaintiffs sued Westmount and its principal for, amongst other things, breach of fiduciary duty, fraud, tortious interference, and conspiracy. Notwithstanding the pending New Jersey lawsuit, Doran filed a counterclaim in the Florida lawsuit comprised of counts nearly identical to the ones pled in the New Jersey lawsuit. In response, Westmount moved to dismiss the counterclaim based on the principle of priority. Following a brief hearing, the trial court denied the motion to dismiss without any explanation.

We deny certiorari relief due to the posture of this case. Although it is abundantly clear that the counts listed in Doran's counterclaim are nearly identical to the counts listed in the New Jersey lawsuit and that exposure to a potential inconsistent ruling on the same issues by a different court can constitute irreparable harm, Westmount did not seek the proper remedy. The proper remedy in such a circumstance would be to either stay or sever the counterclaim. See, e.g. , Inphynet , 196 So.3d at 463 ; REWJB , 645 So.2d at 1056-57. Accordingly, it cannot be said that the trial court departed from the essential requirements of the law in denying Westmount's motion to dismiss and we therefore deny the petition for writ of certiorari. Because it is not clear from the record whether the trial court considered a stay of the counterclaim as an alternative to dismissal, we deny the petition without prejudice to Westmount seeking a stay or severance of the counterclaim in the trial court.

Damoorgian, Conner and Klingensmith, JJ., concur.


text:
    David GUZMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2528
    District Court of Appeal of Florida, Second District.
    Opinion filed August 24, 2018.
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm David Guzman's convictions and sentences without prejudice to any right Guzman may have to file a petition alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141 as related to Martin v. State, 43 Fla. L. Weekly D1016, --- So.3d ----, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018), the review of which has been stayed in SC18-789 pending the resolution of the conflict decision in Love v. State, 247 So.3d 609 (Fla. 3d DCA 2018), review granted, SC18-747, 2018 WL 3147946 (Fla. June 26, 2018).

Affirmed.

LaROSE, C.J., and BLACK and SALARIO, JJ., Concur.


text:
    Taurezs Leigh BULLOCK, DOC# T70725, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2954
    District Court of Appeal of Florida, Second District.
    Opinion filed August 24, 2018
    Howard L. Dimmig, II, Public Defender, and Kimberly Nolen Hopkins, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm without prejudice to any right Mr. Bullock may have to file a petition alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141 as related to Martin v. State, 43 Fla. L. Weekly D1016, --- So.3d ----, 2018 WL 2074171 (Fla. 2d DCA May 4, 2018), the review of which has been stayed in SC18-789 pending the resolution of the conflict decision in Love v. State, 247 So.3d 609 (Fla. 3d DCA 2018), review granted, SC18-747, 2018 WL 3147946 (Fla. June 26, 2018).

Affirmed.

LaROSE, C.J., and BLACK and SALARIO, JJ., Concur.


author: BLACK, Judge.

text:
    Brianna C. MENDOZA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2761
    District Court of Appeal of Florida, Second District.
    Opinion filed August 24, 2018.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeffrey H. Siegal, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Brianna Mendoza seeks correction of the order finding her in violation of her probation. She does not challenge the finding that she violated probation or the resulting sentence, and we affirm both without comment. But because the revocation order should reflect the oral pronouncement, we remand for the trial court to strike the revocation order and enter a corrected revocation order reflecting two condition 5 violations and conforming to the oral pronouncement in all other respects. See Reed v. State, 127 So.3d 817, 819 (Fla. 2d DCA 2013).

Affirmed; remanded with instructions.

LaROSE, C.J. and SALARIO, J., concur.


author: Osterhaus, J.

text:
    Darafael MCKIRE, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5158
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Andy Thomas, Public Defender, and Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Daniel R. Krumbholz, Assistant Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   Osterhaus, J.

Darafael McKire challenges his convictions for possession with intent to sell cocaine and possession of more than 20 grams of marijuana. We conclude that the State proved Mr. McKire possessed the cocaine found next to where he was sitting in the vehicle and affirm on that count. We agree with Mr. McKire, however, that the State failed to prove that he actually or constructively possessed the marijuana found on the gas station's property.

I.

In the course of investigating a shootout between cars that had fled a Columbia County gas station on U.S. Highway 90, law enforcement officers found illegal drugs. They found, among other things, a cocktail shaker cup stuffed with marijuana lying next to a fence at the gas station's property line.

At about the same time in another part of town, law enforcement officers stopped a car with three occupants that had been part of the shootout. Mr. McKire emerged from the back seat of the car bleeding profusely from a gunshot wound. He was transported to the hospital. Then, a search of the vehicle uncovered cocaine in a bag with traces of what appeared to be blood in the backseat pocket adjacent to where Mr. McKire was sitting.

The State subsequently charged Mr. McKire with drug crimes arising not only from cocaine found in the car and at the shootout scene, but also arising from the marijuana found on the ground at the store. At trial, the State's case tied Mr. McKire to the marijuana based on a security video. The grainy video showed a car pull up to the gas pumps and wait a few minutes until another car arrived. A passenger from the second car exited and engaged with occupants of the first car, where Mr. McKire sat. The video shows Mr. McKire then dart from his car and run towards U.S. Highway 90, dropping two unidentifiable objects on the pavement as he ran. An occupant of the second car retrieved one of the things that Mr. McKire dropped and got back in his car before it drove away. By that time, Mr. McKire reappeared in the video and began shooting at the departing car. Mr. McKire then re-entered the back seat of the first car and it also drove away.

After the close of the State's case, Mr. McKire moved for a judgment of acquittal.

He argued that there was insufficient proof connecting him to the marijuana found on the ground at the gas station. The trial court denied his motion. And Mr. McKire was ultimately found guilty of possessing the marijuana and sentenced to five years in prison, concurrent with longer sentences he received on other charges.

II.

We review the denial of a motion for judgment of acquittal de novo. Taylor v. State , 13 So.3d 77, 78 (Fla. 1st DCA 2009). In this review, "we consider the evidence and all reasonable inferences in a light most favorable to the State as the non-moving party." Id.

To convict Mr. McKire for possessing marijuana, the State had the burden of proving that he either actually or constructively possessed it. See Smith v. State , 175 So.3d 900, 902-03 (Fla. 1st DCA 2015). Actual possession is established if the contraband is found on the defendant's person or is "within his 'ready reach' and under his control." Id. at 903. Constructive possession is proven by showing that "Appellant knew of the presence of the contraband on or about [the] premises and had the ability to maintain dominion and control over it." Taylor v. State , 13 So.3d 77, 80 (Fla. 1st DCA 2009).

The State hinged its marijuana possession case against Mr. McKire on evidence from the gas station's security video. The video showed Mr. McKire running and dropping things near the gas pumps during the shootout. Mr. McKire dropped these things in the same general area where officers later found marijuana.

But there are problems with basing Mr. McKire's marijuana conviction on the video evidence. First, while the video shows Mr. McKire running from the gas station and dropping two objects (one of which is retrieved by someone else in the video), it doesn't show what he dropped. It is plausible that one of the things Mr. McKire dropped was a shaker cup. But it is not clear from the video. Beyond the iffy video evidence, nothing else connects Mr. McKire to the marijuana-filled shaker cup: no one testified that he owned or possessed such a cup; nothing indicated that the cup only appeared after Mr. McKire's visit to the gas station; and no physical evidence connected him to the cup or contents of the cup. Under these circumstances, about all that is left to tie Mr. McKire to the cup is that they both were at the gas station around the same time. But this isn't sufficient to support a possession conviction. See Lindsey v. State , 793 So.2d 1165, 1167 (Fla. 1st DCA 2001) ("When the contraband is found in a public place, more than mere proximity to the defendant must be shown to sustain a conviction.").

Secondly, there is a location discrepancy. The things Mr. McKire dropped at the station didn't appear to fall in the grass strip next to the fence, where the officers found the marijuana. While the video doesn't clearly show the fence, the items Mr. McKire dropped appear to fall on the pavement (where the investigating officers found other objects connected to the shootout). Again here, the video evidence shows only that Mr. McKire dropped something in the general vicinity of where officers later found marijuana.

We understand the State's argument based on Ball v. State , 758 So.2d 1239 (Fla. 5th DCA 2000), that Mr. McKire's proximity to the marijuana is sufficient to establish its case. But the facts in Ball were different. There, an officer found crack cocaine in a bottle behind a newspaper box, immediately next to where the defendant was standing, and just after witnessing him suddenly hide his hand behind the box. Id. at 1240. The direct evidence and proximity of the defendant to the contraband when it was found mattered significantly. The district court affirmed because the circumstances showed that the defendant knew where the cocaine was and retained the ability to control it. Id. at 1241.

Here, however, Mr. McKire wasn't sufficiently connected with the contraband. He wasn't found with, near, or making moves toward the marijuana. Under these facts, his earlier proximity to the area where officers later found the contraband is insufficient to establish possession. Lindsey , 793 So.2d at 1167.

III.

For these reasons, we reverse Mr. McKire's conviction on the count II marijuana possession charge and remand for the trial court to enter a judgment of acquittal on this count. The judgment and sentence are otherwise affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED .

WolF and Winsor, JJ., concur.


text:
    Luther WOODS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-2798
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Luther Woods, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied on the merits.

Wolf, Winokur, and Jay, JJ., concur.


text:
    Timothy CUSTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0388
    District Court of Appeal of Florida, First District.
    August 24, 2018
    Timothy Custer, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wolf, Winokur, and Jay, JJ., concur.


text:
    Jean Pierre KHOUEIRI, Appellant, v. Inge NESS, Appellee.
    No. 3D18-648
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Michael H. Merino, P.A., and Michael H. Merino (Davie); Nicoleau | Law, and Michael D. Nicoleau, for appellant.
    Rubenstein Law, P.A., and Eric Rubenstein and Meranda Reifschneider, for appellee.
    Before SUAREZ, EMAS and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Lewis v. Fifth Third Mort'g Co., 38 So.3d 157 (Fla. 3d DCA 2010).


text:
    Roger CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1388
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, FERNANDEZ and LUCK, JJ.
   PER CURIAM.

Affirmed. See Rooks v. State, 224 So.3d 272 (Fla. 3d DCA 2017).


text:
    Richard GOLDBERG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1360
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Carlos J. Martinez, Public Defender, and Stephen Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before SCALES, LUCK and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Barron v. State, 217 So.3d 1088, 1091 (Fla. 3d DCA 2017).


text:
    Isaac J. HARVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4021
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

We affirm Appellant's judgment and sentence but remand for correction of a scrivener's error. The Order of Revocation of Probation indicates the trial court found Appellant guilty of each of the alleged violations of probation. However, at the evidentiary hearing, the trial court orally pronounced Appellant was found guilty of willfully violating his probation by violating Condition 5, committing a new law violation, Condition 3, changing residence without permission, and Condition 15, failing to remain confined to his approved residence. The trial court found Appellant not-guilty of violating his probation for failing to pay cost of supervision, nor failing to complete community service. Thus, we affirm the convictions and sentences, but remand to the trial court for correction of the scrivener's error. See Cook v. State , 947 So.2d 1207 (Fla. 1st DCA 2007) ; Craig v. State , 245 So.3d 1015 (Fla. 1st DCA 2018). Appellant's presence at such correction is unnecessary.

AFFIRMED and REMANDED .

B.L. Thomas, C.J., and Rowe and M.K. Thomas, JJ., concur.


text:
    Antonio FONG, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1188
    District Court of Appeal of Florida, Third District.
    Opinion filed August 29, 2018
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before EMAS, FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).


text:
    Jairo Lainez PADILLA, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0818
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Candice K. Brower, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Gainesville, and Melissa Ford, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant, and Jairo Lainez Padilla, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this Anders appeal, we affirm the judgment and sentence. However, the written sentence contains a scrivener's error. We remand for the trial court to correct the written sentence to reflect that it imposed a public defender application fee. The box for that fee remains unchecked despite the fee being orally imposed and the money included in the total amount in the judgment and sentence. See Washington v. State , 37 So.3d 376 (Fla. 1st DCA 2010) (affirming Anders appeal but remanding for correction of scrivener's error).

AFFIRMED and REMANDED with instructions.

Wolf, Bilbrey, and Kelsey, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Christie SPIKES, Appellant, v. Shane FONVILLE, Appellee.
    No. 1D17-4860
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Curtis W. Brannon of Curtis W. Brannon, P.A., Crestview, for Appellant.
    No Appearance for Appellee.
   Per Curiam.

Appellant, the mother, challenges the portions of the trial court's order that legally changed the surname of the parties' minor child and allocated the dependency tax exemption to the parties in alternating years. Appellant contends there was no evidence to support the trial court's decision to change the minor child's name, and the trial court was without authority to allocate the tax exemption directly. We affirm the portion of the trial court's order changing the minor child's name without further discussion, but we agree that the trial court exceeded its authority when it directly allocated the dependency tax exemption and reverse accordingly.

A trial court has the authority to adjust a total minimum child support award based upon the impact of an IRS dependency tax exemption by ordering a parent to execute a waiver of the exemption, contingent upon the parent paying child support being current in their support payments. § 61.30(11)(a)8., Fla. Stat. However, the court does not have the authority to make the allocation of the tax exemption directly; rather, in accordance with the statute, the trial court is only permitted to order a party to execute a waiver of the exemption. El-Hajji v. El-Hajji , 67 So.3d 256, 259 (Fla. 2d DCA 2010) ; Geddies v. Geddies , 43 So.3d 888, 889 (Fla. 1st DCA 2010).

Here, the record demonstrates that the trial court did not abuse its discretion in ordering the dependency exemption to alternate between the parties. However, the trial court erred when it failed to structure the transfer of the dependency exemptions in accordance with the language of section 61.30(11)(a)8. Accordingly, we affirm the portion of the trial court's order awarding the exemption to both parties, but remand for the trial court to order appellant to waive the exemption for odd years, on the condition that appellee is current on his child support payments. In all other respects, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED .

Wolf, Jay, and Winsor, JJ., concur.


text:
    William LITZ, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2360
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    William Litz, Polk City, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the February 9, 2017 order denying Petitioner's pro se motion for postconviction relief, filed in Case No. 2012-CF-003114-A in the Judicial Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, LAMBERT and EISNAUGLE, JJ., concur.


text:
    Devante SIRMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-2840
    District Court of Appeal of Florida, First District.
    August 30, 2018
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jason Rodriguez, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED . Perez v. State , 980 So.2d 1126, 1133 (Fla. 3d DCA) (On Rehearing Granted), review denied , 994 So.2d 305 (Fla. 2008), cert. denied , 556 U.S. 1132, 129 S.Ct. 1618, 173 L.Ed.2d 1003 (2009).

Wolf, Bilbrey, and Kelsey, JJ., concur.


text:
    Eduardo SANTIAGO, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1479
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    F. Wesley Blankner, Jr., Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

Eduardo Santiago, Jr. appeals the order summarily denying his Florida Rule of Criminal Procedure 3.850 motion to set aside his judgment and sentence, which contained several unnumbered claims. One of Appellant's claims is that he was prejudiced by the affirmative misadvice of counsel, who supposedly told Appellant that he could not be sentenced to a prison term longer than his codefendants received, namely eighteen months. However, following his open plea to the court, Appellant was sentenced to ten years in prison. The records attached to the order do not conclusively refute the claim of affirmative misadvice. See Byron v. State , 241 So.3d 271, 271-72 (Fla. 5th DCA 2018) ; Lamkin v. State , 215 So.3d 640, 641 (Fla. 5th DCA 2017).

Accordingly, we reverse the denial of the affirmative misadvice claim with instructions for the postconviction court to either conduct an evidentiary hearing or attach records that conclusively refute that claim. After careful consideration, we affirm the summary denial of the remaining claims.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

EVANDER and EDWARDS, JJ., concur.

LAMBERT, J., concurring and concurring specially.

LAMBERT, J., concurring and concurring specially.

I concur with the majority opinion because Santiago's allegation that his counsel "misadvised" him that he could not be sentenced to a prison term longer than the eighteen months received by his codefendants was not conclusively refuted by the record attachments to the denial order under review. See Peede v. State , 748 So.2d 253, 257 (Fla. 1999) ("To uphold the trial court's summary denial of claims raised in a 3.850 motion, the claims must be either facially invalid or conclusively refuted by the record."). Where, as here, a rule 3.850 motion is summarily denied without an evidentiary hearing, an appellate court must accept as true the defendant's factual allegations that are not conclusively refuted by the record. Ciambrone v. State , 128 So.3d 227, 230 (Fla. 2d DCA 2013) (citing Peede , 748 So. 2d at 257 ).

That being said, I make the following two observations. First, the instant claim arguably could have been avoided if Santiago had been asked during his plea colloquy whether his attorney or anyone else had advised or promised him that he would receive a certain sentence from the court in exchange for his open plea. If Santiago had answered "No," then any future postconviction claim, such as the one here, based upon an alleged promise or misadvice by counsel about the length of the sentence would be meritless. See Polk v. State , 56 So.3d 804, 808 (Fla. 2d DCA 2011) (recognizing that "a defendant should be estopped to receive an evidentiary hearing on a postconviction claim when the basis of the claim is that he lied under oath at the relevant hearing"). Stated differently, a defendant's sworn answers given during a plea colloquy mean something and cannot be conveniently disavowed in a later postconviction proceeding. Conversely, if Santiago had answered "Yes," then the court could have made further inquiry and clarified for Santiago that it was not so limited in its sentencing options, and Santiago could then have decided whether to still tender an open plea.

Second, assuming that the postconviction court on remand sets an evidentiary hearing on this one claim, the burden will then be on Santiago at the hearing to present evidence necessary to prove his allegation that his counsel provided ineffective assistance by misadvising him that his maximum prison exposure was no more than the eighteen months received by his codefendants. I am unaware of any legal basis providing that the trial court could not impose a prison sentence greater than eighteen months. Moreover, my review of the record attachment to the present denial order suggests, albeit not conclusively, that no such "advice" was given to Santiago by his counsel. Nevertheless, it is for the trial court to consider the testimony of Santiago, his trial counsel, and, for that matter, any other witness at the evidentiary hearing and make credibility determinations and findings of fact regarding counsel's alleged misadvice. See Shere v. State , 742 So.2d 215, 218 n.8 (Fla. 1999) (stating that the role of the trial court in a postconviction motion evidentiary hearing is to make credibility determinations and findings of fact). Assuming that Santiago's trial counsel provides the likely testimony at the evidentiary hearing that he did not advise Santiago that he could not receive a prison sentence in excess of eighteen months, the court is certainly free to find counsel's testimony more credible than the conflicting testimony from Santiago and thereafter deny the motion. See Moore v. State , 458 So.2d 61, 61 (Fla. 3d DCA 1984) (recognizing that at a rule 3.850 evidentiary hearing, the trial court is entitled to reject the defendant's testimony in favor of the conflicting testimony of trial counsel).


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    Paul Frederick MAGEE, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-839
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Paul Frederick Magee appeals the final order entered by the post-conviction court summarily denying his motion seeking post-conviction relief, filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. The motion raised four grounds for relief, and all were denied by the post-conviction court. On appeal, Magee challenges the summary denial of the first and third grounds, arguing they were facially sufficient and warranted an evidentiary hearing. We affirm as to the court's denial of the first ground; however, we reverse as to the denial of the third ground. On remand, the post-conviction court must either conduct an evidentiary hearing or attach portions of the record which conclusively refute Magee's ineffective assistance of counsel claim raised in ground three. See Nelson v. State, 73 So.3d 77, 84 (Fla. 2011).

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER, LAMBERT and EDWARDS, JJ., concur.


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    Johnkevious T. WALKER, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-2264
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    Johnkevious T. Walker, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the June 29, 2017 judgment and sentence rendered in Case No. 2016-CF-044728-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, TORPY and EVANDER, JJ., concur.


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    Mark Christopher ROBERTS, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-95
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 31, 2018
    James S. Purdy, Public Defender, and Sean Kevin Gravel, Assistant Public Defender, Daytona Beach, for Appellant.
    Mark Christopher Roberts, Raiford, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm the judgment and sentences. However, the order of probation contains a scrivener's error. Concerning count two, the trial court orally pronounced a sentence of 36 months in prison, followed by 24 months of probation. The written sentence reflects that sentence, but the order of probation states, "[t]he court hereby stays and withholds the imposition of sentence as to count ... two and places the defendant on probation for a period of twenty-four (24) months."

Accordingly, we remand for the trial court to correct this scrivener's error in the order of probation. See King v. State, 201 So.3d 206 (Fla. 1st DCA 2016) (affirming an Anders appeal but remanding for the trial court to correct a scrivener's error).

AFFIRMED and REMANDED with instructions.

PALMER, EDWARDS and EISNAUGLE, JJ., concur.

      Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)


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    Scottie Bernard JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3166
    District Court of Appeal of Florida, First District.
    August 31, 2018
    Bruce A. Miller, Public Defender, and Julie Comerford Wells, Assistant Public Defender, Milton, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for belated appeal is denied on the merits.

Wolf, Winokur, and Jay, JJ., concur.


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    Susana VARGA, etc., Appellant, v. EDGEFIELD HOLDINGS, LLC, Appellee.
    No. 3D18-850
    District Court of Appeal of Florida, Third District.
    Opinion filed September 05, 2018
    Jeffrey R. Roth, P.A., and Jeffrey R. Roth, for appellant.
    Andre Law Firm P.A., and Tony Andre, for appellee.
    Before ROTHENBERG, C.J., and SALTER and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Civ. P. 1.060(a) ; Ben-David v. Educ. Res. Inst., Inc., 974 So.2d 1138, 1140 (Fla. 3d DCA 2008) (reversing the entry of the final judgment because the $15,000 jurisdictional threshold to confer subject matter jurisdiction on the circuit court was not met, and transferring the case to the county court pursuant to Florida Rule of Civil Procedure 1.060(a) ).


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    Idalmis S. OLIVERA, Appellant, v. PUBLIX SUPER MARKETS, INC., Appellee.
    No. 3D18-784
    District Court of Appeal of Florida, Third District.
    Opinion filed September 5, 2018
    Idalmis S. Olivera, in proper person.
    Weiss Serota Helfman Cole & Bierman, P.L., and Edward G. Guedes, Coral Gables and Richard B. Rosengarten, for appellee.
    Before SUAREZ, SCALES and LUCK, JJ.
   PER CURIAM.

Affirmed. See Walker v. Winn-Dixie Stores, Inc., 160 So.3d 909, 912-13 (Fla. 1st DCA 2014) ; Gaidymowicz v. Winn-Dixie Stores, Inc., 371 So.2d 212, 214 (Fla. 3d DCA 1979).


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    Christopher Lamont ALTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0843
    District Court of Appeal of Florida, First District.
    September 5, 2018
    Andy Thomas, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

In this appeal pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we affirm the revocation of Appellant's probation and the resulting sentence, but remand for the trial court to enter a corrected written order specifying that the Appellant only admitted violating the conditions of probation as alleged in grounds I through X of the fourth amended affidavit of violation of probation. See Margolis v. State , 148 So.3d 532, 532 (Fla. 2d DCA 2014) (affirming revocation of probation and resulting sentence, but remanding for entry of corrected revocation order of listing only the conditions of probation to which the defendant admitted); Narvaez v. State , 674 So.2d 868, 869 (Fla. 2d DCA 1996) (noting that written order of revocation must comport with oral pronouncement, and remanding with instructions to strike from the order violations neither admitted to nor found by the court). Appellant need not be present for this correction.

AFFIRMED but REMANDED for correction.

B.L. Thomas, C.J., and Osterhaus and Bilbrey, JJ., concur.


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    Miguel SIERRA, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0838
    District Court of Appeal of Florida, First District.
    September 5, 2018
    Miguel Sierra, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

AFFIRMED .

Bilbrey and Osterhaus, JJ., concur; B.L. Thomas, C.J., concurs with opinion.

B.L. Thomas, C.J., concurs.

This court has never addressed the merits of Appellant's case. Because the public deserves a written opinion in cases in which a criminal defendant is convicted of a serious violent crime, receives a sentence of life imprisonment and claims that his or her sentence is legally invalid, I provide the following explanation of my views in this case.

In January 2004, Appellant unlawfully entered the victim's home and waited for her to arrive. When the victim entered her home, she saw two feet sticking out from behind a kitchen door. Thinking it must be someone she knew, the victim instinctively and momentarily relaxed, before seeing a man covered in a blanket, except for his shoes, standing in her kitchen. The man, Appellant, then forcibly covered the victim with the blanket, threw her on the kitchen floor, and tried to cover the victim's face so she could not see her assailant. The victim fought off Appellant's attempts to cover her face with the blanket.

Appellant then choked the victim to force her to cease resistance. Appellant choked the victim so hard she briefly blacked out.

Appellant then pulled the victim from the kitchen floor and forced her to walk down into her dining room, all the while promising "not to hurt" her. When the victim again resisted, Appellant threw the victim on the floor of her hallway and again violent choked her. (As the victim testified to these events, she repeatedly cried during the trial.)

Appellant then again pulled the victim from the floor. The victim testified that she tried "to make him stop having control" over her. Appellant then pushed the victim toward her guest bedroom. The victim testified that she went into shock, "because I know what he's going to do. And so I tried to think of something." The victim testified that she told Appellant she had to use the bathroom. She then told Appellant that she had just begun her menstrual cycle and said to Appellant "you don't want to do this."

As Appellant forced the victim into her guest bedroom, she saw "how the bed was arranged," and "I knew [Appellant] was going to rape me." When questioned how she knew this, the victim testified that Appellant had tied the victim's dog leashes to the footboard of the bed and placed Vaseline next to the bed. Appellant threw the victim onto the bed, where she struggled again to escape. The two fell on the floor, and Appellant looked at the victim as if she had caused the fall, motivating her to deny that she caused Appellant to fall off the bed. She told him this to stop him from hurting her.

Appellant then pressed his bodyweight against the victim's chest on the bed and tied up her hands to the bed. As she continued to resist, Appellant repeatedly struck the victim in the face. He hit her so hard, she was temporarily blinded.

The victim then stopped resisting, because "it hurt so bad [and] I was so afraid of what he would do if I didn't stop." Appellant tied up both the victim's hands to the bed's foot board. Appellant then disrobed the victim and removed a sanitary napkin from the victim's body. He then performed oral sex on the victim. Appellant then told the victim to close her eyes and he committed forcible sexual intercourse with the victim. Thinking this terrifying ordeal was over, Appellant then started the process over again. Appellant then placed a knife near the victim while he committed additional sexual batteries against the victim. The victim testified that when she saw the knife, she thought Appellant was going to "either kill me or hurt me. I was scared to death." The ordeal lasted two hours.

Appellant then stole some of the victim's belongings and the victim's car. He was quickly apprehended not far from the victim's home.

At trial, the State presented evidence that demonstrated Appellant's DNA was found on the victim's body. Appellant's fingerprints were also identified in the victim's home. The victim's face was injured and battered from Appellant's violence against her.

Appellant testified that the victim consented to the sex and made false accusations against him, because she had owed him money for drugs and he asked for the money after the consensual sex. He also testified that he never struck the victim in her face, and she did not receive those injuries during the consensual sex. He claimed the victim's belongings found in his possession were "collateral" for the drug debt.

The jury found Appellant guilty of all charges: 1) kidnapping to facilitate a felony; 2) sexual battery; 3) sexual battery with a deadly weapon; 4) sexual battery with a deadly weapon; 5) burglary of a dwelling while armed; 6) grand theft; and 7) sexual battery with a deadly weapon. The trial court sentenced Appellant to life imprisonment on counts one, three, four and seven; 15 years in prison on count two; 30 years in prison on count five; and 5 years in prison on count six. All sentences were imposed concurrently, except the sentence for count five, burglary while armed, was imposed consecutively to the sentences imposed concurrently to each other. This Court affirmed Appellant's conviction and sentence without opinion in Sierra v. State , 919 So.2d 441 (Fla. 1st DCA 2005).

Appellant filed his first collateral motion under Florida Rule of Criminal Procedure 3.850, asserting twenty claims, which the trial court denied. This court affirmed the denial of relief in ten claims but reversed to allow Appellant to amend ten insufficient claims. Sierra v. State, 993 So.2d 1064 (Fla. 1st DCA 2008). On remand, Appellant raised only three claims, which were denied by the trial court, and this Court affirmed, without opinion. Sierra v. State, 53 So.3d 1031 (Fla. 1st DCA 2011). Appellant then filed another collateral claim, which the trial court denied and this Court affirmed, again without written opinion. Sierra v. State, 86 So.3d 1122 (Fla. 1st DCA 2012).

Appellant now files yet another collateral claim under rule 3.850, asserting that his conviction for kidnapping to facilitate a felony was a violation of due process, "because the movement and confinement of the victim was inconsequential or inherent in the sexual battery offense." He also asserts that his multiple convictions for sexual battery violated double jeopardy and due process. He also asserts that clearing the courtroom was a violation of his right to a public trial, despite his agreement to the procedure.

All of Appellant's claims are time barred. Florida Rule of Criminal Procedure 3.850 requires all collateral claims filed under that rule to be filed within two years after a defendant's convictions become final, and this time period expired just under ten years ago, as mandate issued on this Court's decision affirming Appellant's convictions and sentences on January 12, 2006, and the instant motion was filed on January 4, 2018. His claim that the closed-courtroom procedure was a "manifest injustice" does not constitute grounds to avoid the time limitations under rule 3.850(b). Fla. R. Crim. P. 3.850(b)(1)-(3) ; Cuffy v. State, 190 So.3d 86, 87 (Fla. 4th DCA 2015).

Furthermore, Appellant's claims are patently meritless, and his substantive due process argument, which he claims may be raised outside rule 3.850's two-year window, must fail. See Haliburton v. State, 7 So.3d 601, 607 (Fla. 4th DCA 2009). Thus, I agree that the trial court's order denying relief should be affirmed.


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    Felix RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1790
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Felix Rivera, in proper person.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before LAGOA, FERNANDEZ and LUCK, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D). As the state properly concedes, because the record now before us fails to make the required showing, we reverse the order and remand for the trial court to attach record excerpts conclusively showing that the appellant is not entitled to any relief, or an evidentiary hearing.

Reversed and remanded for further proceedings.


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    Freddie MORALES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1622
    District Court of Appeal of Florida, Third District.
    Opinion filed September 12, 2018
    Freddie Morales, in proper person.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before LAGOA, FERNANDEZ and LUCK, JJ.
    ON CONFESSION OF ERROR
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

As the state properly concedes, because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


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    Charles W. LEWIS, Petitioner, v. Skye N. CLIBURN, Respondent.
    No. 1D18-2162
    District Court of Appeal of Florida, First District.
    September 12, 2018
    David A. Carroll, Pensacola, for Petitioner.
    Stephanie N. Greaves of Tonya C. Petermann, P.A., Ft. Walton Beach, for Respondent.
   Per Curiam.

The petition for writ of prohibition is denied on the merits.

Wolf, Kelsey, and Jay, JJ., concur.