author: Per Curiam. Makar, J., concurring in part and dissenting in part.

text:
    Timothy ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-5433
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes and Amanda Stokes, Assistant Attorneys General, Tallahassee, for Appellee.
   Per Curiam.

After a night out at a local club, Timothy Anderson's girlfriend left in her car with some friends. Anderson took off after them in his truck, driving erratically at times and eventually hitting his girlfriend's car. Anderson was convicted of aggravated assault with a deadly weapon. His sole argument on appeal is that the jury should have been instructed on the lesser-included offense of reckless driving. Because the trial court did not err by declining to give the requested instruction, we affirm.

Anderson's defense at trial was that while he was admittedly driving recklessly, he did not intentionally hit his girlfriend's car. He argues that he was entitled to a jury instruction on reckless driving as a lesser-included offense because he did not possess the intent necessary to be convicted of aggravated assault or simple assault, on which the jury was instructed. Since this issue involves a question of law based upon undisputed facts, our standard of review is de novo. Khianthalat v. State , 974 So.2d 359, 360-61 (Fla. 2008).

A permissive lesser-included offense exists when "the two offenses appear to be separate on the face of the statutes, but the facts alleged in the accusatory pleadings are such that the lesser included offense cannot help but be perpetrated once the greater offense has been." Sanders v. State , 944 So.2d 203, 206 (Fla. 2006) (alterations omitted) (quoting State v. Weller , 590 So.2d 923, 925 n.2 (Fla. 1991) ). Upon request, a trial judge is required to instruct the jury on a permissive lesser-included offense if two conditions are met: (1) the charging document alleges all the statutory elements of the lesser offense, and (2) there is some evidence presented at trial establishing each element of the requested lesser-included offense. State v. Knighton , 235 So.3d 312, 315 (Fla. 2018) (quoting Khianthalat, 974 So.2d at 361 ).

The offense of reckless driving involves driving a vehicle "in willful or wanton disregard for the safety of persons or property." § 316.192(1)(a), Fla. Stat. In this case, the information charging Anderson with aggravated assault with a deadly weapon alleged that he "did unlawfully and intentionally make an assault upon [his girlfriend] with a motor vehicle, a deadly weapon without intent to kill, contrary to Section 784.021(1)(a), Florida Statutes."

Noticeably absent from the information is an allegation that Anderson was driving the vehicle, an essential element of reckless driving. See State v. Lappin , 471 So.2d 182, 183 n.1 (Fla. 3d DCA 1985) (noting that first element of reckless driving is "1. driving a vehicle"). Anderson nevertheless contends that all the statutory elements of reckless driving are subsumed in the aggravated assault charge because it is not possible to commit aggravated assault with a motor vehicle without driving the vehicle. For support, he relies primarily on Piggott v. State , 140 So.3d 666, 669 (Fla. 4th DCA 2014), which held that reckless driving is a permissive lesser-included offense of aggravated battery with a deadly weapon when the weapon is a motor vehicle.

The information in Piggott charged the defendant with striking the victim "with a deadly weapon, to wit: a Kia Sephia four-door automobile." Id. The court concluded that the first condition of the test for a permissive lesser-included offense was met because the charging document alleged "all the statutory elements of reckless driving." On rehearing, and in response to the State's post-opinion argument that the information failed to include the element of driving, the court reasoned that "our interpretation of the information, when viewed at the time of the charge conference, cannot ignore the undisputed evidence that the defendant was driving the automobile which is alleged to have been the instrument of the alleged aggravated battery with a deadly weapon upon the victim." Id. at 671 n.1.

We disagree with the analysis of Piggott and conclude that the first condition of the test for a permissive lesser-included offense is not met in this case as the facts alleged in the information are not "such that the lesser included offense cannot help but be perpetrated once the greater offense has been." Anderson v. State , 70 So.3d 611, 613 (Fla. 1st DCA 2011) (alteration omitted) (quoting Williams v. State , 957 So.2d 595, 598 (Fla. 2007) ).

It is not enough that there was undisputed evidence at trial that Anderson was driving his truck at the time of the assault. The first step in the analysis asks only whether the charging document alleges all the statutory elements of the lesser offense, without consideration of the evidence presented at trial. See Wright v. State , 983 So.2d 6, 9 (Fla. 1st DCA 2007). Therefore, in Wright , we held that a defendant convicted of grand theft auto was not entitled to an instruction on the lesser charge of trespass in a conveyance. Id. The evidence showed the defendant committed the grand theft by driving off in a BMW, but the information did not specifically allege the defendant entered the vehicle, an essential element of trespass. Id. It did not matter that the State had proven entry; the information controlled. Id.

Our decision in Wright was no outlier. In Phillips v. State , 874 So.2d 705, 706 (Fla. 1st DCA 2004), the defendant was convicted of aggravated battery with a deadly weapon, after the evidence established that he stabbed two men with a knife. On appeal, the defendant insisted the trial court should have instructed the jury on the lesser offense of improper exhibition of a deadly weapon. Id. at 707. We rejected that contention, precisely because an element of the latter offense-that the defendant "exhibited his knife 'in a rude, careless, angry or threatening manner' "-was not charged in the information. Id. (quoting statute). Similarly, in Stewart v. State , 790 So.2d 440, 440 (Fla. 1st DCA 2000), a defendant convicted of armed robbery argued he was entitled to an instruction on resisting a merchant. Id. We rejected that argument because, again, "[t]he elements of such offense were not specifically alleged in the information." Id.

The requirement that the elements of the lesser offense be "specifically alleged in the information" means it is not enough that the element of driving could be inferred from Anderson's charging document because driving might be the most common manner in which an assault with a motor vehicle occurs. In State v. Von Deck , the Florida Supreme Court made clear that "Florida law is well settled that the elements of an offense cannot be established by mere inference." 607 So.2d 1388, 1389 (Fla. 1992). In Von Deck , the defendant was charged with attempted premeditated murder by shooting at the victim with a firearm. 607 So.2d at 1389. The issue was whether the State was entitled to a jury instruction on the lesser-included offense of aggravated assault where the information did not allege an essential element of the lesser offense, namely that the defendant's actions caused a well-founded fear in the victim that violence was imminent. Id. The State argued the missing element of "well-founded fear" could be inferred from the charging document because a shooting is likely to create such a fear. Id. Unpersuaded, the court explained, "While this may be true in some cases, it will not be true in all. It is possible to commit an attempted murder without also committing aggravated assault, such as where the victim remains unaware of the attempted murder until some time has elapsed after the commission." Id. The court concluded that aggravated assault was not a lesser-included offense of attempted murder as charged. Id. at 1389-90 ; see also Farley v. State , 740 So.2d 5, 7 (Fla. 1st DCA 1999) ("The State's argument that '[u]sing a knife to inflict bodily harm on someone is at the very least exhibiting the weapon in a rude, careless, angry or threatening manner' is an attempt to allege the required elements by inference. This is impermissible ...."); Andrews v. State , 679 So.2d 859, 859-60 (Fla. 1st DCA 1996).

Binding precedent therefore compels us to reject the argument that the trial court should have given the reckless driving instruction. And because we find no error, we need not address the separate issue of whether the jury's decision to convict on the greater offense would render harmless any error in denying a lesser-included instruction.

We affirm the judgment below and certify conflict with Piggott v. State , 140 So.3d 666 (Fla. 4th DCA 2014).

AFFIRMED; CONFLICT CERTIFIED .

Ray and Winsor, JJ., concur; MAKAR, J., concurring in part and dissenting in part.

Makar, J., concurring in part and dissenting in part.

I concur in certifying conflict with Piggott v. State , 140 So.3d 666, 669 (Fla. 4th DCA 2014), which holds that "reckless driving is a permissive lesser included offense of aggravated battery with a deadly weapon when the alleged deadly weapon is an automobile." Piggott sets forth the better approach in deciding whether a jury instruction on a lesser-included offense requested by a defendant should be given. Although a charging document is very important in providing notice of the charge alleged, as the Sixth Amendment requires, Piggott persuasively points out that what is even more important from the defense's perspective is the actual basis of a charge at the time of the charge conference, when predicate facts are conclusively framed and jury instructions approved. At that point, a lesser-included offense may have become obvious that was not at the outset.

This case provides a good example. Although the information charged Anderson with aggravated assault with a deadly weapon, i.e., his car, it did not explicitly say that he "drove" the car, leaving open other possibilities (such as locking the victim in the trunk and pushing the car into a lake); it became incontestable at the charge conference (and probably much sooner) that driving the car into the victim's vehicle was the charged conduct, thereby making reckless driving an obvious lesser-included offense for which a jury instruction was appropriate.

As Judge Gerber said in Piggott , the charged conduct must be considered in light of the "undisputed evidence" at the time of the charge conference:

While we recognize the possibility of a defendant being charged with battery for "slamming the hood or door of a car on the head of a victim" or the more remote possibility of "dropping a car from a crane onto a victim," our interpretation of the information, when viewed at the time of the charge conference, cannot ignore the undisputed evidence that the defendant was driving the automobile which is alleged to have been the instrument of the alleged aggravated battery with a deadly weapon upon the victim.

Piggott , 140 So.3d at 671 n.1. Simply put, trial judges should not be told to put on blinders at a charge conference, looking only at an information filed months or years earlier, when it has become obvious that a lesser-included instruction requested by the defendant is appropriate in light of a fact not then in dispute (here, that the car was driven, not dropped from the sky, used as a bludgeon, and so on). Unlike when the prosecution seeks to inject a new charge at trial as a lesser-included offense, which implicates notice and due process concerns, a defendant requesting a lesser-included offense instruction at trial acquiesces to the instruction and thereby obviates constitutional concerns to a great extent.

Limiting review solely to the information as originally drafted-and forcing trial judges to ignore subsequent indisputable factual developments-is a recipe for gamesmanship when defendants request instructions on lesser-included offenses. Because an information's content is exclusively controlled by the State, a game of "heads I win, tails you lose" can result if a Spartan information is drafted, alleging aggravated assault but leaving out whether the car was driven, thereby precluding a defendant from claiming a legitimate lesser-included offense based on the facts developed prior to trial; no suggestion is made that was the intent here, but that is the result. Had the State alleged in its information against Anderson that the assault upon the victim was by "driving with a motor vehicle," it could not now argue that the lesser-included offense of reckless driving was precluded. What an odd result: Anderson loses his right to the lesser-included offense instruction of reckless driving simply because the original information left out the word "driving"-even though everyone knew pre-trial that was the means of assault. Even odder is that in LaValley v. State , 633 So.2d 1126, 1127 (Fla. 5th DCA 1994), the State successfully sought the same instruction over the defendant's objection, the defendant was found guilty of the reckless driving charge, and the appellate court affirmed, saying "we believe that a charge that one committed an aggravated assault by intentionally driving her vehicle in a threatening manner subsumes the elements of reckless driving." These disparate results in the caselaw support the conflict certified.

Under the approach in Piggott and LaValley , anomalous situations are avoided; defendants cannot be disadvantaged via artful or inartful drafting of the information. It's hard to conclude what the majority rule is nationwide, see Russell G. Donaldson, Annotation, Lesser-related state offense instructions: modern status , 50 A.L.R.4th 1081 (1986), but the better view takes account of factual realities when defendants seek lesser-included jury instructions at the time jury instructions are approved. For this reason, Piggott and similar cases make more sense.

      The court relied on two cases for support: Wallace v. State , 688 So.2d 429, 430 (Fla. 3d DCA 1997) ("The allegation within the information that Wallace intentionally drove his car in such a way as to threaten the officers was 'sufficient to include the willful and wanton disregard for the safety of others' necessary to establish reckless driving."), and LaValley v. State , 633 So.2d 1126, 1127 (Fla. 5th DCA 1994) ("We believe that a charge that one committed an aggravated assault by intentionally driving her vehicle in a threatening manner subsumes the elements of reckless driving."). Both opinions contain language suggesting that the charging document in each of the cases alleged the element of driving. However, the opinion in LaValley also contains the wording of the charging document, which does not include that specific allegation.

      We reject Anderson's argument that it is not possible to commit aggravated assault with a motor vehicle without driving the vehicle. In an analogous case, Texas' highest court for criminal cases identified several other ways in which aggravated assault with a deadly weapon by use of a motor vehicle could occur, such as by "locking the victim in a hot car, slamming the victim's head against the car frame, rigging the car's gas tank to explode, placing the car in neutral and allowing it to run into the victim or a building, suffocating the victim in the trunk, or running the car in an enclosed area to cause carbon monoxide poisoning." Rice v. State , 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). In that case, the court held that reckless driving was not a lesser-included offense of aggravated assault with a deadly weapon, i.e., a motor vehicle, where the information failed to allege that the defendant was driving. Id. at 147.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Carderrial WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0167
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Carderrial Watson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant, Carderrial Watson, appeals an order denying his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

Watson was convicted of aggravated battery with a firearm and aggravated assault with a firearm. His convictions were affirmed on appeal, with the mandate issuing on March 18, 2015. See Watson v. State , 158 So. 3d 572 (Fla. 1st DCA 2015) (Table).

On February 28, 2017, Watson filed a rule 3.850 motion, arguing that his attorney was ineffective for failing to (1) argue that the victim's testimony did not support the element of fear of imminent violence, (2) object or seek suppression of ammunition found during a search of his home, (3) negotiate a plea deal, and (4) impeach a witness with prior inconsistent statements. On July 3, 2017, the trial court struck the motion as facially insufficient and provided an opportunity to amend, pursuant to rule 3.850(f)(2). On August 8, 2017, Watson filed a rule 3.850 motion, arguing that his attorney was ineffective for (1) falsely promising to get his charges dropped after a successful appeal, and (2) failing to seek suppression of prior inconsistent statements. It was not labelled as an amended motion. On November 28, 2017, the trial court summarily denied the August 8 motion, construing it as an amended rule 3.850 motion that remained facially insufficient after an opportunity to amend.

It is not clear whether the August 8 motion was intended to amend the original rule 3.850 motion in response to the trial court's order, or whether it was meant to be an unrelated rule 3.850 motion. If the August 8 motion was intended as an unrelated rule 3.850 motion, it was untimely pursuant to rule 3.850(b) because it was filed more than two years after the judgment became final. Accordingly, it should have been denied.

If Watson meant for the August 8 motion to amend the February 28 motion, pursuant to the court's July 3 order, the court was still correct in denying it. The first claim in the August 8 motion is untimely, as it is not an enlargement of an issue raised in his original, timely rule 3.850 motion, and it was first raised more than two years after his convictions and sentences became final. See Lanier v. State , 826 So.2d 460, 461 (Fla. 1st DCA 2002) ; Fla. R. Crim. P. 3.850(e) ("New claims for relief contained in an amendment need not be considered by the court unless the amendment is filed within the time frame specified in subdivision (b)."). Regarding the second claim in the August 8 motion, to the extent that it can be generously read as an enlargement of the fourth claim in the original motion, it remains facially insufficient after an opportunity to amend, and therefore was properly denied with prejudice. See Fla. R. Crim. P. 3.850(f)(2).

As to the claims raised in the February 28 motion that were not repeated in the August 8 motion, those claims were also properly denied. If Watson intended the August 8 motion to be an amended motion, it effectively abandoned any claims it failed to raise. See Rincon v. State , 996 So.2d 922, 923 (Fla. 4th DCA 2008). Conversely, if Watson meant for the August 8 motion to be an unrelated rule 3.850 motion, the February 28 claims would still be subject to denial due to his failure to raise them in an amended motion within the prescribed sixty-day time period. See Fla. R. Crim. P. 3.850(e) ("When the court has entered an order ... granting the defendant an opportunity to amend the motion, any amendment to the motion must be served within 60 days."); Fla. R. Crim. P. 3.850(f)(2) (providing that if a defendant is given an opportunity to amend a facially insufficient motion and he fails to file an amended motion within the time provided, the trial court may summarily deny the motion with prejudice).

AFFIRMED .

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


author: Ray, J.

text:
    Leon AKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4038
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Leon Akins, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley and Jason W. Rodriguez, Assistant Attorneys General, Tallahassee, for Appellee.
   Ray, J.

Leon Akins appeals the summary denial of his motion for postconviction relief, which raised multiple claims of ineffective assistance of trial counsel. We agree with the postconviction court's thorough assessment of all but one of his claims. For the reasons discussed below, we reverse the denial of ground two of the motion.

Akins was convicted of first-degree murder, attempted first-degree murder, grand theft, and arson of a vehicle. He was sentenced to life in prison and his convictions and sentences were affirmed on appeal. Akins v. State , 181 So.3d 486 (Fla. 1st DCA 2015).

Akins filed his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In ground two of his motion, Akins alleged that counsel was ineffective for failing to investigate his sanity at the time of the offense and his competency to stand trial. He notes that prior to trial, his attorney filed a motion requesting the appointment of a mental health expert to evaluate Akins and report on "certain mental health issues." Counsel stated in the motion that she and co-counsel had met with Akins in jail on several occasions and that he "evince[d] serious mental problems." The motion recited that Akins has a long history of criminal offenses and a history of drug abuse, he appears to have serious cognitive learning disabilities, he has been previously detained under the Baker Act, and he has difficulty recalling the events leading up to the charges against him such that "he may have been suffering from a mental illness that rendered him unable to know right from wrong at the time of the offense."

The trial court granted the motion and appointed a mental health expert to determine (a) whether Akins was sane at the time of the crime, (b) whether Akins was intellectually disabled, and (c) whether there were mental health mitigators under section 921.141, Florida Statutes. In his postconviction claim, Akins asserts that the mental health examination never took place and there was never a hearing or determination concerning his sanity or competency. He alleges he was prejudiced because he was incompetent to stand trial and would have been declared insane at the time the offense was committed.

A claim that counsel failed to investigate a defendant's mental health or seek a competency determination is cognizable in a rule 3.850 motion. Jackson v. State , 29 So.3d 1161, 1162 (Fla. 1st DCA 2010). Where no evidentiary hearing is held below, we must accept the defendant's factual allegations in the motion as true to the extent they are not refuted by the record. Peede v. State , 748 So.2d 253, 257 (Fla. 1999).

Here, we conclude that Akins's claim is facially sufficient as his motion demonstrates that his attorney had serious concerns regarding his sanity and competency, yet allegedly failed to follow through with the mental health evaluation authorized by the court. See Jackson , 29 So.3d at 1162 (holding that claim that counsel was ineffective for failing to investigate competency or request competency hearing was facially sufficient where defendant alleged he had a long history of mental illness, had not taken schizophrenia medications, and was suffering from delusions and hearing voices at time of plea); Williams v. State , 46 So.3d 118, 118-19 (Fla. 1st DCA 2010) (holding that claim that attorney was ineffective for failing to adequately investigate his mental health was facially sufficient where defendant alleged a history of mental health issues including severe depression and insomnia, for which he was taking multiple medications that affected his competency); cf. Coker v. State , 978 So.2d 809, 810 (Fla. 1st DCA 2008) (holding that defense counsel's failure to draft an order for mental evaluation of the defendant after obtaining the judge's oral authorization amounted to ineffective assistance of counsel). Because the limited record before us does not refute Akins's facially sufficient claim, we reverse the summary denial of ground two and remand for the postconviction court either to attach record excerpts that refute the claim or to hold an evidentiary hearing on the claim. We affirm the denial of the remaining claims.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

Rowe and Makar, JJ., concur.


author: B.L. Thomas, C.J.

text:
    Tyrone B. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-5105
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Tyrone B. Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Tyrone B. Johnson appeals an order denying his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons discussed below, we affirm.

Appellant was charged with three counts of attempted second-degree murder (counts I-III), shooting into an occupied building (count IV), and possession of a firearm by a convicted felon (count V). The evidence introduced at trial reflected that on the night of the shooting, one of the victims, Michael Alford, attempted to fight Appellant over a dispute involving another victim, LaKendra Young. Appellant's friends intervened to stop the fight, and Appellant retreated to a friend's apartment and called the police. The police escorted him back downstairs to his car. Appellant started to drive out of the apartment complex in his car, and his friend, Rico Williams, followed in a separate car. Near the exit to the complex, he stopped his car and discovered that his tires had been slashed. He started making threatening remarks, suggesting that he intended to return.

Later that night, a car drove slowly into the complex, turned around, and passed by the place where Ms. Young, Mr. Alford, and Austin Price were standing outside. Two witnesses identified it as the same car that had followed Appellant out of the complex earlier in the night. The windows were rolled down, several shots were fired, and the car then sped away.

Ms. Young testified that she felt the wind of one bullet passing behind her before it struck a sliding glass door. Mr. Price testified that one of the bullets went over his head and struck a wall. Mr. Alford and Ms. Young were able to identify Appellant as the shooter. Another witness, Ira Davis, also saw the shooting and identified Appellant as the shooter. Evidence was presented that the vehicle involved in the shooting belonged to Rico Williams' girlfriend, Fariha Hoque. When authorities contacted Ms. Hoque about her vehicle, she initially concealed its whereabouts, saying it was in Miami.

Appellant was convicted as charged on counts I, III, and IV, and of the lesser included offense of aggravated assault on count II. He was sentenced to a total of life in prison and designated as an habitual violent felony offender on counts I and III. Count V was nolle prossed by the State. Appellant's convictions and sentences were affirmed by this court, without opinion. Johnson v. State , 166 So.3d 771 (Fla. 1st DCA 2015) (table).

Appellant then filed the instant rule 3.850 motion, raising eight grounds for relief. The lower court summarily denied the motion, and this timely appeal follows.

In Appellant's first ground, he raised two subclaims pertaining to counsel's alleged failure to investigate. In subclaim (a), Appellant argued that his attorney was ineffective for failing to depose the State's witnesses to prepare for cross-examination. He alleged that Mr. Davis, Ms. Young, and Mr. Alford had given less detailed statements to the police in response to the investigation into the dispute between Appellant and Mr. Alford than they did in connection with the investigation of the shooting. He asserted that other witnesses were unreliable or made statements that did not support the State's case. He claimed the outcome of the trial would have been different if counsel had impeached these witnesses, because such impeachment would have supported his alibi and misidentification defenses.

A claim of ineffective assistance of counsel is governed by Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove ineffective assistance, an appellant must allege 1) the specific acts or omissions of counsel which fell below a standard of reasonableness under prevailing professional norms and 2) that the appellant's case was prejudiced by these acts or omissions such that the outcome of the case would have been different. See id. at 690-92, 104 S.Ct. 2052. "[W]hen a failure to depose is alleged as part of an ineffective assistance of counsel claim, the appellant must specifically set forth the harm from the alleged omission, identifying 'a specific evidentiary matter to which the failure to depose witnesses would relate.' " Davis v. State , 928 So.2d 1089, 1117 (Fla. 2005) (quoting Brown v. State , 846 So.2d 1114, 1124 (Fla. 2003) ).

Here, even assuming that Appellant set forth a facially sufficient claim, he failed to establish prejudice. Mr. Alford, Ms. Young, Mr. Davis, and another witness, Shanice Bailey, all provided written statements to the police after the shooting. During the trial, defense counsel thoroughly cross-examined these witnesses and impeached them with their prior statements. Counsel also questioned Mr. Price about prior statements he made to the police. During closing arguments, defense counsel highlighted conflicts in their testimony, as well as the relationships among the witnesses and their possible motive for testifying falsely about Appellant's involvement in the shooting. Under these circumstances, this subclaim was properly denied.

In subclaim (b), Appellant argued that his attorney was ineffective for failing to spend adequate time consulting with him. He alleged that defense counsel failed to review all of the State's evidence and witness statements with him, did not forward discovery to him, and did not show him transcripts from the depositions of the State witnesses. He asserted that he was prejudiced by these omissions, because counsel allowed the defense witnesses' testimony to be refuted.

An ineffective assistance of counsel claim based upon a lack of consultation requires a defendant to demonstrate how he was prejudiced by the omission. See Jackson v. State , 801 So.2d 1024, 1025 n.1 (Fla. 5th DCA 2001). Here, Appellant failed to show that he was prejudiced. He suggested that the lack of consultation allowed the defense witnesses' testimony to be refuted, but did not explain how further consultation could have avoided that result.

Additionally, in Appellant's sworn motion, he alleged that his attorney visited him nine times, providing specific details about some visits: his attorney visited him for 20 minutes to make contact; for 30 minutes to discuss his alibi; a third time to discuss an alibi witness and depositions; and during a visit in December 2013, counsel conveyed that he had completed his investigation. Furthermore, insofar as Appellant argued that counsel failed to provide him with the deposition transcripts of State witnesses, he alleged in ground one, subclaim (a), that defense counsel did not depose the State's witnesses. Thus, Appellant's own allegations undermine his claim.

Regardless, given the evidence discussed above, there is no reasonable probability that further consultation with defense counsel would have changed the outcome of the trial. Appellant was involved in an altercation with two of the victims on the night of the offenses. After the altercation, he discovered that his tires had been slashed and was overheard making threatening remarks. Three eyewitnesses identified Appellant as the shooter. The State introduced evidence that the vehicle used in the shooting belonged to one of Appellant's friends. Two witnesses indicated that the same vehicle had been seen following Appellant out of the complex earlier that night. Under these circumstances, this subclaim was properly denied, as no prejudice occurred.

In Appellant's second ground, he raised three subclaims. In subclaim (a), he argued that his attorney was ineffective for failing to call Officer Knapp to testify. He alleged that Officer Knapp escorted him to his car after the altercation with the victims, and that Officer Knapp could have testified that he never yelled threatening remarks upon discovering that his tires were slashed.

This subclaim is conclusively refuted by the record. The evidence at trial established that the police did escort Appellant downstairs from his friend's apartment after the altercation; however, Appellant did not discover that his tires were slashed until he was driving out of the apartment complex. Further, Appellant testified at trial that Officer Knapp escorted him to his car, he drove away with Rico Williams following in a separate car, and that Mr. Williams honked to notify him that his tires were flat. Thus, at the time Appellant noticed and reacted to his slashed tires, Officer Knapp was no longer with him. Given this information, this subclaim was properly denied.

In subclaim (b), Appellant argued that his attorney was ineffective for failing to object, when the prosecutor asserted during closing arguments that Appellant made threatening remarks upon finding that his tires had been slashed. However, as discussed above, the State presented evidence that after Appellant discovered his tires had been slashed, he yelled threatening remarks. Under these circumstances, counsel cannot be deemed ineffective for failing to object, as the prosecutor's argument was a fair comment on the evidence. See Spann v. State , 985 So.2d 1059, 1068 (Fla. 2008) ("Because the prosecutor was making a fair comment based on the evidence presented at trial, counsel cannot be deemed ineffective for failing to object."); Hitchcock v. State , 991 So.2d 337, 361 (Fla. 2008) ("Counsel cannot be deemed ineffective for failing to make a meritless objection.").

In subclaim (c), Appellant argued that the prosecutor committed a Giglio violation by failing to correct false testimony that he yelled threatening remarks after discovering that his tires were slashed, and for emphasizing that testimony during closing arguments. Three different witnesses testified that Appellant yelled threats when he made that discovery. Given this information, this subclaim was properly denied. See Serrano v. State , 225 So.3d 737, 754 (Fla. 2017) (affirming the denial of a Giglio claim where the defendant failed to demonstrate that the witness' testimony was false).

In Appellant's third ground, he argued that his attorney was ineffective for failing to study cellphone tower transmissions and retain an expert who could testify about the range of cellphone towers. He alleged that the State introduced the testimony of Jeffrey Strohm to establish that Appellant's cellphone used the cellphone towers near the crime scene around the time of the shooting, rather than the towers near his girlfriend's house on the night of the shooting, asserting that this evidence undermined his alibi. He claimed that if counsel had been more prepared, he could have adequately cross-examined Mr. Strohm.

But a defendant does not establish that his attorney performed deficiently in failing to retain a defense expert, when defense counsel "rigorously challenged the state's expert." Crain v. State , 78 So.3d 1025, 1040 (Fla. 2011) (holding that the decision not to call a defense expert was a reasonable strategic decision where defense counsel is able to obtain significant concessions from the State's witnesses through cross-examination). Here, during Mr. Strohm's cross-examination, defense counsel elicited testimony that if the cellphone tower near an individual gets "bogged down," a different tower will pick up the call. Mr. Strohm agreed that that individual's cellphone records would then indicate that he was near the second tower, even though he was not. Mr. Strohm acknowledged that it was possible for Appellant to be at his girlfriend's house and have his call get picked up by the cellphone tower in the vicinity of the crime scene. Defense counsel emphasized this testimony during closing arguments, reiterating that the cellphone tower evidence did not actually establish Appellant's location at the time of the offenses. Given this information, counsel did not perform deficiently. Furthermore, given the evidence discussed above, even if defense counsel had investigated cellphone tower transmissions or consulted a defense expert, there is no reasonable probability that the outcome of the trial would have been different.

In Appellant's fourth ground, he argued that his attorney was ineffective for failing to make an adequate motion for judgment of acquittal, arguing that counsel should have argued that the State failed to disprove his alibi defense. This claim is cognizable pursuant to rule 3.850. See White v. State , 977 So.2d 680, 681 (Fla. 1st DCA 2008) (concluding that a defendant stated a meritorious claim of ineffective assistance of trial counsel where a timely motion for judgment of acquittal would have been granted). Nonetheless, this claim is meritless.

"In moving for a judgment of acquittal, a defendant 'admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.' " Beasley v. State , 774 So.2d 649, 657 (Fla. 2000) (quoting Lynch v. State , 293 So.2d 44, 45 (Fla. 1974) ). "A motion for judgment of acquittal should only be granted if there is no view of the evidence from which a jury could make a finding contrary to that of the moving party." Jeffries v. State , 797 So.2d 573, 580 (Fla. 2001). "Because conflicts in the evidence and the credibility of the witnesses have to be resolved by the jury, the granting of a motion for judgment of acquittal cannot be based on evidentiary conflict or witness credibility." Sapp v. State , 913 So.2d 1220, 1223 (Fla. 4th DCA 2005). We need not reiterate the evidence admitted at trial to conclude that this claim must fail here, as no motion for judgment of acquittal would have been correctly granted based on the evidence here.

In Appellant's fifth ground, he argued that his attorney was ineffective for failing to retain a ballistics expert to testify that there were two groups of shooters present that night exchanging fire. He also alleged that this expert could have opined as to whether the gun was fired at the victims or into the air.

Appellant failed to establish any deficiency or resulting prejudice. His defense was that he was not present during the shooting, not that he did not shoot directly at the victims or that the victims fired first. Furthermore, such testimony would run contrary to all of the eyewitness testimony introduced at trial, which established that a single shooter fired from a moving vehicle, and the bullets passed by two of the victims and struck the building behind them. Afterwards, one bullet was found lodged in a cabinet inside a witness' apartment. Under these facts, this ground was properly denied.

In Appellant's sixth ground, he argued that his attorney was ineffective for failing to file a motion for a new trial so that the trial court could re-weigh the evidence. He alleged that if this had occurred, he would have received a new trial.

Such a claim is only meritorious where the movant can show that a motion for new trial would have been granted, as otherwise there could be no prejudice. In other words, where there is not a "strong likelihood a new trial would have been ordered," such a claim for collateral relief must be denied. See Manley v. State , 605 So.2d 1327, 1328 (Fla. 2d DCA 1992). And this court has recognized that there is no per se entitlement to collateral relief, simply because defense counsel failed to file a motion for new trial without considering the underlying facts. Williams v. State, 553 So.2d 309 (Fla. 1st DCA 1989). Here, given the evidence discussed above, there is no likelihood that a motion for a new trial would have been granted, because the verdict was not contrary to the weight of the evidence, but in fact was entirely consistent with the weight of the evidence. In contrast, in Lamb v. State, 124 So.3d 953, 957 (Fla. 2d DCA 2013), the Second District granted collateral relief and a new trial where trial counsel misunderstood the grounds for obtaining relief by requesting a new trial rather than seeking a judgment of acquittal, and there could be no strategic reason in foregoing a motion for new trial to allow the trial court to reconsider the weight of the evidence, where the original trial court commented that the identification evidence was some of the "weakest" that judge had heard. Here, the identification evidence was overwhelming, and no reasonable judge would have exercised its discretion to grant a new trial. Thus, because any motion for new trial would have been properly denied, Appellant's trial counsel did not provide ineffective assistance of counsel. See Hill v. State, 839 So.2d 865, 867 (Fla. 4th DCA 2003). We thus reject Appellant's arguments on this issue.

In Appellant's seventh ground, he argued that his attorney was ineffective for failing to object to the omission of a jury instruction on the lesser-included offense of attempted manslaughter. However, "as a matter of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland ." Sanders v. State , 946 So.2d 953, 960 (Fla. 2006). Therefore, this claim was properly denied. See id.

In Appellant's eighth ground, he argued that his attorney was ineffective for failing to challenge the credibility of Mr. Alford, Ms. Young, Mr. Price, and Mr. Davis. He alleged that counsel could have impeached these witnesses with their prior inconsistent statements. He also asserted that counsel failed to provide him with the deposition transcripts of these witnesses to allow him to assist in his own defense.

Appellant has failed to show a deficiency or any resulting prejudice. As discussed in ground one, each of these witnesses was thoroughly cross-examined and impeached with prior inconsistent statements made to the police, and defense counsel highlighted the inconsistencies in their testimony during closing arguments. Insofar as Appellant argued that counsel did not provide him with deposition transcripts, as discussed above, he also alleged that counsel never deposed these witnesses. Under these circumstances, this ground was properly denied.

AFFIRMED .

Lewis and Makar, JJ., concur.

      Insofar as he raised an additional subclaim arguing that counsel was ineffective for failing to call Officer Knapp as a witness, this claim is addressed in ground two.

      Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (holding that a new trial was required where the State knowingly presented false testimony at trial and that evidence was material).


text:
    Arthur JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4862
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Arthur Johnson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Michael L. Schaub, Assistant Attorney General, Tallahassee for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the postconviction court's denial of his motion to amend his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Because Appellant's new claims do not relate back to the claims raised in his original timely filed motion, the amended motion is time barred, and we affirm the postconviction court's denial of his request to amend his motion. We reject Appellant's further attempt to raise a new argument for the first time on appeal.

Facts

Appellant entered a negotiated guilty plea to a charge of attempted first-degree murder, and the trial court sentenced Appellant to 29 years in state prison, with a mandatory minimum of 25 years. Appellant did not appeal, and his sentence became final. Appellant subsequently filed a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing, inter alia, that his trial counsel was ineffective for failing to seek suppression of Appellant's confession. The postconviction court ordered an evidentiary hearing on the ineffective assistance ground, and one week before the evidentiary hearing, Appellant filed a motion to amend his postconviction motion.

The pertinent ground in Appellant's initial motion alleged that his counsel should have moved to suppress his confession because it was given without a Miranda warning; Appellant moved to amend the motion to assert a claim that he may have received a Miranda warning, but because he was intoxicated when it was given, he did not knowingly, voluntarily, or intelligently waive his rights. The court ruled that, because Appellant's sentence became final on December 12, 2009, the two-year window to file claims for postconviction relief closed in December 2011, five years prior to Appellant's motion to amend.

Analysis

The standard of review for a trial court's determination regarding a motion to amend a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 is whether there was an abuse of discretion. Huff v. State , 762 So.2d 476, 481 (Fla. 2000) (citing McConn v. State , 708 So.2d 308, 310 (Fla. 2d DCA 1998) ).

"A trial court may properly deny an amended rule 3.850 motion as untimely when it raises new claims and is filed outside of the two-year time period."

Lanier v. State , 826 So.2d 460, 461 (Fla. 1st DCA 2002). "The two-year time period, however, does not preclude the enlargement of issues which were raised in a timely filed motion for postconviction relief." Id. When an amended motion "actually raises new issues of ineffective assistance of counsel that were not raised in the previous motion," the lower court does not err in denying a motion to amend. Huff , 762 So.2d at 481.

Appellant argues that his amendment was permitted outside the two-year window, because the amendment related to an existing claim that was timely filed, citing to Lanier . In Lanier , the appellant timely filed a rule 3.850 motion, and filed an amendment more than two years after his judgment and sentence became final. 826 So.2d at 461. The appellant's initial motion claimed ineffective assistance of counsel for failing to raise the issue of entrapment, and his amendment stated that counsel knew there were witnesses whose testimony could show police misconduct which induced the appellant to commit the crime. Id. This court held that, although the appellant's amendment was untimely to the extent that it attempted to raise an ineffective assistance claim based on a new claim of police misconduct, it related back to the extent that the amended motion provided new information to support the original, timely filed claim. Id. at 461-62.

Here, Appellant's motion to amend does not attempt to provide new information to support his original claim, but rather attempts to raise a new basis for ineffective assistance of counsel. Appellant's initial claim was that counsel was ineffective for failing to move to suppress a confession given without a Miranda warning, while his new claim is that he was intoxicated while the Miranda warning was given. The additional information that Appellant had been smoking and drinking at the time of detention does not enlarge the original claim that the Miranda warning was not given. Rather, it raises a new claim. Because Appellant's amended motion was filed after the two-year window had closed, and the motion raised new claims not raised in Appellant's original motion, the trial court did not abuse its discretion in denying the motion.

AFFIRMED .

Wolf and Ray, JJ., concur.


text:
    Joshua Antwan MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4629
    District Court of Appeal of Florida, First District.
    May 25, 2018
    Andy Thomas, Public Defender, Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges the sufficiency of the evidence admitted at trial which resulted in his convictions for armed robbery and attempted armed robbery. He does not challenge the sufficiency of the evidence of his conviction for aggravated fleeing and eluding, but that evidence is a significant part of the circumstantial evidence that formed the basis of the case at trial on the robbery charges. We hold that the State produced sufficient evidence to sustain the convictions, and thus, the trial court correctly denied Appellant's motion for judgment of acquittal.

Facts

At trial, one victim testified that after eating dinner with friends at a restaurant on January 24, 2013, one of her friends wanted to show her a car she had rented, a white Chevrolet Impala, parked outside the restaurant. While the two women stood by the car, a man approached and asked if the car belonged to them. The man then demanded the women's purses and keys; when they refused, the man said he wasn't kidding, and produced a handgun. The victim testified that the man was about 5'10? tall, wearing a long, dark bluish-grey "nicer type hoodie jacket," baggy blue jeans, and athletic shoes. She testified the gun was a silver snub-nosed gun with a black handle, and that the gun recovered from Appellant's possession and admitted into evidence was very similar to the gun she saw the night of the robbery.

The victim further testified that the man approached her friend, and attempted to grab her friend's purse. She testified that the man grabbed her friend's purse, who then dropped her keys, and the man grabbed the keys and drove away in the Impala with the purse. She then ran into the restaurant and used the phone to call 911, telling the 911 operator that she and her friend had been robbed at gunpoint by a male wearing a blue "letterman" jacket. The victims did resist the robbery.

Jerrod Robertson testified that he had known Appellant for two to eight months before the crimes, and he identified Appellant at trial. Robertson testified that Appellant frequently wore a blue letterman jacket with his name on it, on top of a hooded plaid-striped jacket. Robertson testified that on January 25, 2013, he was at his brother's house when Appellant arrived in a white Impala with one other person. Robertson testified that he got in the car to go to the beach with Appellant, and when he asked Appellant where he got the car, Appellant said "Don't worry about it" and "None of your business." Robertson testified that he assumed the car was a rental, because it had a "no smoking" sticker inside of it. Robertson testified that Appellant picked up a man named Julius Williams, who rode in the Impala with Robertson and Appellant.

Robertson testified that every time he saw Appellant, Appellant had carried a firearm. Robertson described Appellant's firearm as a silver or chrome revolver with a black handle, and testified that Appellant had the gun with him that day.

Robertson testified that while Appellant was driving to an uncle's house to pick up some money, Appellant ran a red light and struck a station wagon, damaging the front bumper of the Impala. Appellant then stopped at a store and removed the front bumper that was hanging off of the car. When they drove into a residential subdivision, a police car pulled up behind and began following them. When Appellant pulled out of the subdivision, the police car turned on its lights and sirens, and Appellant accelerated to flee the police car, driving through another red light and fleeing from the police car at 90-100 miles per hour.

Robertson said Appellant pulled into what he presumed was Appellant's mother's neighborhood, and he and Appellant both jumped out of the car. The Impala then rolled into a retention pond.

Robertson said he jumped out of the car, because he was sure the car was stolen, as the police had no other reason to pursue the car. Robertson testified that he fled behind a house, jumped a fence and was running on a highway when police apprehended him. After looking at a still shot of the restaurant's video footage of the robbery, Robertson identified Appellant as the robber, because the robber was wearing the same letterman jacket that he had always seen Appellant wear, and which had a name printed on the chest.

Officer Tamara Hardin of the Jacksonville Sheriff's Office testified that on January 26, 2013, she was flagged down by a citizen who saw a hit and run. Officer Hardin observed a white four-door vehicle with front-end damage at a gas station. Hardin testified that she called the car's tag number into dispatch and began following it, but waited to activate her lights and siren until other police units arrived. The tag number of the vehicle with front-end damage came back as a vehicle involved in a carjacking. When another officer came to assist her, Officer Hardin turned on her lights and siren to initiate a traffic stop; the car did not stop, but pulled out of the subdivision they were in, and ran around several cars to make a left turn into traffic against a red light. Hardin was at this point able to identify the car as a Chevy Impala. Hardin said she pursued the car into a subdivision, and found the vehicle stopped next to a pond. One male, later identified as Julius Williams, was standing next to the car and was immediately detained.

Officer Hardin testified that a resident of the subdivision said she saw someone jump her fence, and officers "set up a perimeter" around the rear area of the subdivision. Hardin testified that officers eventually detained the other two people who had fled from the Impala.

The testimony of Kurt Zamor, formerly of the Jacksonville Sheriff's Office, was perpetuated, and a video of his testimony was played at trial. Zamor testified that he went to the subdivision where Appellant was eventually detained in response to a call from Officer Hardin, and when he arrived, the Impala was already heading into the retention pond. He saw someone later identified as Appellant walking on the sidewalk about 800-1,000 feet from the retention pond, and he rolled down his car window and asked to speak to Appellant. Zamor asked if he could pat Appellant down, and while patting him down, Zamor felt a hard object which he believed to be a weapon; he handcuffed Appellant and took a gun from Appellant, which was the same gun introduced into evidence. Zamor arrested Appellant for possession of a concealed firearm without a license.

After the State rested, Appellant moved for judgment of acquittal. Appellant argued that the State failed to prove identity on the charges of armed robbery and attempted armed robbery, as one of the two alleged victims did not testify at trial and the witness who testified she was a victim of the robbery could not identify the man who robbed her. The trial court denied the motion. The jury found Appellant guilty of armed robbery, attempted armed robbery, and fleeing or attempting to elude law enforcement.

Analysis

In Florida, appellate courts must apply a "special standard of review" regarding criminal convictions based solely on circumstantial evidence of the defendant's identity. Knight v. State, 186 So.3d 1005, 1009-10. (Fla. 2016) ( Knight II ). In Knight II, the supreme court rejected the view that the special standard of review should be reconsidered and abandoned:

This Court has described the circumstantial evidence standard as follows: "[w]here the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt[,] a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence." Jaramillo v. State, 417 So.2d 257, 257 (Fla. 1982). The standard applies upon appellate review, id., and when a trial judge rules on a motion for judgment of acquittal, State v. Law, 559 So.2d 187, 188 (Fla. 1989). In the instant opinion, the Fifth District engaged in a lengthy discussion about why this Court should reconsider use of this standard in Florida. Knight, 107 So.3d at 455-62. However, we find that discussion and the rationale raised by the State to be unpersuasive. Accordingly, we uphold the continued use of the standard in Florida. Having done so, we next address the certified conflict issue by clarifying when the standard applies.

Id. Justice Canady concurred in result, stating:

As Judge [now Justice] Lawson cogently explains, the special standard of review is both confusing and misleading. See Knight v. State, 107 So.3d 449, 456-61 (Fla. 5th DCA 2013). It is a striking and inexplicable anomaly that we have rejected the reasonable-hypothesis-of-innocence jury instruction but have nonetheless retained the special standard of review. I agree with Judge Lawson that this anomaly in our jurisprudence should be corrected by eliminating the special standard of review.

Id. at 1013.

This unique standard of review was rejected by the United States Supreme Court sixty-four years ago in Holland v. United States :

The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt. There is some support for this type of instruction in the lower court decisions, but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.
Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.

348 U.S. 121, 139-40, 75 S.Ct. 127, 99 L.Ed. 150 (1954) (emphasis added; citations omitted).

In Knight v. State , 107 So.3d 449, 456-58 (Fla. 5th DCA 2013) ( Knight I ), the Fifth District noted that most states now have rejected the special rule, as have all federal courts since 1982. And in Florida, no special jury instruction is given to require juries to apply more strict scrutiny to circumstantial evidence, as both Justice Canady and the Fifth District noted in Knight I, observing that Florida was only one of three states to take the "somewhat discordant" view that a special appellate standard of review applies to circumstantial criminal convictions, but a jury cannot be instructed to apply a different evaluation of circumstantial evidence. Id. at 456-57.

We are bound to apply the special standard as required by Knight II. And in applying that standard here, we hold that the State presented sufficient evidence to the jury to affirm the judgment of guilt.

In State v. Law, the supreme court, in reversing this court in a case where it held the circumstantial evidence was not sufficient, stated:

Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.

559 So.2d 187, 188 (Fla. 1989) (citations omitted; emphasis added). In addition to this guidance, we know we must view all the evidence in a light most favorable to the verdict, guilt, and draw every reasonable inference in favor of the state, the prevailing party. Lynch v. State, 293 So.2d 44, 45 (Fla. 1974).

Applying these rules here, cognizant that the testimony of the witness identifying Appellant's image from the crime videography could lead us to reject the "special standard of review," but assuming arguendo that the special standard of review applicable to circumstantial criminal convictions must be utilized, we conclude that the following provides "substantial, competent evidence to support the jury verdict," as delineated by Law :

1. The victim's stolen rental car was driven by Appellant, soon after the robbery, who led the police on a high-speed chase;

2. The Appellant drove the stolen car into his mother's neighborhood;

3. The gun removed from Appellant's possession was the gun used during the crime; and

4. Appellant was identified by witness Robertson, who was a passenger in the stolen car, as the person in the robbery video.

Section 812.13(1), Florida Statutes, defines robbery as follows:

"Robbery" means the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Section 812.13(2)(a) adds an element for armed robbery: "If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable ... as provided in s. 775.082, s. 775.083, or s. 775.084." "[T]o prove attempted armed robbery, the State must show: (1) the formation of an intent to commit the crime of robbery; (2) the commission of some physical act in furtherance of the robbery; and (3) the use of a firearm." Franqui v. State, 699 So.2d 1312, 1317 (Fla. 1997). "In the context of attempted armed robbery, 'intent may be proved by considering the conduct of the accused and his colleagues before, during, and after the alleged attempt along with any other relevant circumstances.' " Grant v. State , 138 So.3d 1079, 1083 (Fla. 4th DCA 2014) (quoting Franqui , 699 So.2d at 1317 ). Here, the security footage from the restaurant showed a man grabbing at and eventually taking a purse and car from two women at gunpoint, thus establishing that the man in the video committed all the elements of robbery and attempted robbery.

As also held in Lynch, when evidence adequately supports two conflicting theories, it is the appellate court's duty to review the record in the light most favorable to the prevailing theory. Johnson v. State , 660 So.2d 637, 642 (Fla. 1995). "The testimony of a single witness, even if uncorroborated and contradicted by other State witnesses, is sufficient to sustain a conviction." I.R. v. State , 385 So.2d 686, 688 (Fla. 3d DCA 1980).

Here, there is ample circumstantial evidence that excludes any reasonable hypothesis of innocence, that is, that Appellant was not the perpetrator. In fact, the "hypothesis" that Appellant is not the perpetrator is quite unreasonable. Adding all the facts together, and all reasonable interferences drawn therefrom, we hold the evidence is sufficient as a matter of law to uphold Appellant's convictions and the judgment below.

Thus, the judgment is AFFIRMED .

Jay and M.K. Thomas, JJ., concur.

      Zamor was on leave without pay from the United Nations, where he worked as a police advisor, due to pending federal criminal charges for selling firearms without a license.


author: ROTHENBERG, C.J.

text:
    Ronald THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-348
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    Carlos J. Martinez, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and SALTER and FERNANDEZ, JJ.
   ROTHENBERG, C.J.

The sole issue raised in this direct appeal is whether the trial court abused its discretion by admitting what has been characterized by the appellant, Ronald Thompson ("the defendant"), as an anonymous 911 call at his trial, at which he was convicted of strong arm robbery and battery. Because the 911 call was not anonymous and was admissible as a spontaneous statement and an excited utterance, we affirm.

The evidence is as follows. Mr. and Mrs. Benson were vacationing in Miami and were at a restaurant seated at an outdoor table facing the sidewalk on Ocean Drive. When Mrs. Benson left the table to use the restroom, she left her purse on the table with her husband. Shortly thereafter, a woman and the defendant approached Mr. Benson. The woman asked Mr. Benson for a lighter and after he twice told her that he did not smoke and did not have a lighter, the woman grabbed Mrs. Benson's purse and ran off. When Mr. Benson tried to pursue her, the defendant grabbed Mr. Benson by the shirt and pulled him off his chair in order to keep him from pursuing the woman. Mr. Benson broke free and began chasing the woman while the defendant chased Mr. Benson.

During the chase, the woman screamed: "Help, this man is trying to rob me, and steal my purse," and the defendant followed up with his own misdirection: "Help, this guy is trying to rob my wife, trying to steal her purse." Mr. Benson caught up to the woman and pulled his wife's purse from the woman's hands as the woman tried to kick him and as the defendant grabbed Mr. Benson and repeatedly punched him in the back. Security officers tackled both men and the woman fled. Law enforcement arrived shortly thereafter, and they were also able to apprehend the woman. After conducting their investigation, the police arrested the woman and the defendant.

During the defendant's trial, the trial court admitted, over defense objection, the 911 call that was placed at 1:41 a.m. from the crime scene as an excited utterance and/or a spontaneous statement. The substance of the call is as follows:

CALLER: I'm calling for [sic] address 1052 Ocean Drive.
OPERATOR: 1052 Ocean Drive. You need rescue or police?
CALLER: Police, please.
OPERATOR: What's the problem sir?
CALLER: Ugh ... We had a gentleman who just walked by; tried to steal the purse of a lady and we caught him. And the lady is here to (unintelligible).
OPERATOR: Okay, hold on one second.
CALLER: [shouting to someone at the scene] Donald, watch him please, thank you bro.
OPERATOR: Hold on. Okay, what is your name sir?
CALLER: Anthony.
OPERATOR: Your phone number please.
CALLER: [specific phone number given].
OPERATOR: Is he a white male, black male?
CALLER: Black male.
OPERATOR: Black male, and what was he wearing, what kind of shirt, what kind of pants?
CALLER: He is wearing blue jeans with a gray T-shirt.
OPERATOR: Is he violent?
CALLER: Doesn't seem to be, but [unintelligible] security is holding him right now.
OPERATOR: Okay, I'll get someone there.
CALLER: Thank you.

ANALYSIS

We review a trial court's decision to admit evidence under an abuse of discretion standard, Williams v. State, 967 So.2d 735, 747-48 (Fla. 2007), and "[d]iscretion 'is abused only where no reasonable man would take the view adopted by the trial court.' " Nolte v. State, 726 So.2d 307, 309 (Fla. 2d DCA 1998) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) ).

A hearsay statement (an out-of-court statement offered to prove the truth of the matter asserted) is admissible, regardless of the availability of the declarant, if the statement was either a spontaneous statement under section 90.803(1) or an excited utterance under section 90.803(2), Florida Statutes (2016). In this case, the trial court found that both of these exceptions to the hearsay rule applied. We agree.

A. Spontaneous statement, § 90.803(1)

Section 90.803(1) allows for the introduction of a hearsay statement that qualifies as a spontaneous statement, which the statute defines as follows:

(1) Spontaneous Statement.-A spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter , except when such statement is made under circumstances that indicate its lack of trustworthiness.

(emphasis added). Under this exception to the hearsay rule, the declarant must make the statement while the event he/she is describing is actually taking place or immediately thereafter, and the event being described need not be a startling event.

Deparvine v. State, 995 So.2d 351, 369 (Fla. 2008). The only requirements are that the declarant must be describing or explaining the event and that the circumstances do not indicate a lack of trustworthiness.

The 911 call introduced in this case was placed immediately after the robbery, which included the chase down Ocean Drive and the battery of Mr. Benson by the defendant after Mr. Benson was able to retrieve his wife's purse from the woman who snatched it. A review of the record and the call reflects that security officers had just tackled the defendant and were securing him when the call was made. Screaming and other signs of a commotion can be heard throughout the call, and the caller actually interrupts the call to yell to another individual to "watch" the defendant.

There are no circumstances indicating that the statements made by the caller were untrustworthy. First, contrary to the argument made on appeal, the caller was not anonymous. He provided his name and his phone number. Second, the statement was recorded while it was being made. Third, the timing and content of the call reflect spontaneity with little or no time for reflection. Lastly, the purpose of the call was to obtain the assistance of the police. All of these factors militate against the likelihood of conscious misrepresentation by the declarant. See J.M. v. State, 665 So.2d 1135, 1137 (Fla. 5th DCA 1996) (holding that "the spontaneity of the statement negatives the likelihood of conscious misrepresentation by the declarant and provides the necessary circumstantial guarantee of trustworthiness to justify the introduction of the evidence") (quoting Charles W. Ehrhardt, Florida Evidence, § 803.1, at 612 (1995) ).

B. Excited utterance, § 90.803(2)

Another exception to the hearsay rule is an excited utterance pursuant to section 90.803(2), which provides as follows: "(2) Excited Utterance.-A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." (emphasis added). Thus, to qualify as an excited utterance the statement must be made (1) "regarding an event startling enough to cause nervous excitement;" (2) "before there was time to contrive or misrepresent;" and (3) "while the person was under the stress or excitement caused by the event." Henyard v. State, 689 So.2d 239, 251 (Fla. 1996).

In Hudson v. State, 992 So.2d 96, 107 (Fla. 2008), the Florida Supreme Court reiterated that "[i]f the statement occurs while the exciting event is still in progress, courts have little difficulty finding that the excitement prompted the statement." (internal citations and quotation marks omitted) (alteration in original), and that the excited utterance need not be contemporaneous with the event. Id. However, the statement must be made while the declarant is under the stress of the startling event without time for reflection. Id. (citing Hutchinson v. State, 882 So.2d 943, 951 (Fla. 2004) ). Lastly, the Hudson Court held that the fact that the declarant's voice does not sound excited is not determinative of whether the statement meets the requirements of section 90.803(2) as an excited utterance. Id. at 108. "[E]xcitement' for purposes of an utterance is not a matter that is determined exclusively by tone of voice. Some people remain calm of voice when under stress; others can be excited of voice when fully capable of misrepresentation." Hudson, 992 So.2d at 108 (quoting Tucker v. State, 884 So.2d 168, 175 (Fla. 2d DCA 2004) ).

In the instant case, there is no dispute that a startling event had just taken place, thereby satisfying the first element articulated by the Florida Supreme Court in Henyard, 689 So.2d at 251. The second element, that the utterance or statement was made before there was time for reflection, was also met. The declarant, who identified himself as Anthony, placed the 911 call immediately after the defendant had been tackled by Mr. Benson and restrained by security and while Anthony was telling another individual to "watch" the defendant. Thus, the startling event was actually on-going, and therefore, there was no time for reflection. The content of the call also demonstrates that there was no time for reflection.

Thus, based on the record evidence and consideration of the surrounding circumstances, we find no abuse of discretion for the admission of the 911 call as an excited utterance.

CONCLUSION

Because we find no abuse of discretion for the admission of the 911 call in this case as either a spontaneous statement pursuant to section 90.803(1) and/or an excited utterance pursuant to section 90.803(2), we affirm the judgment and sentence on review.

Affirmed.


author: LAGOA, J.

text:
    J.A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2381
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before LAGOA, EMAS, and LUCK, JJ.
   LAGOA, J.

J.A., a juvenile, appeals his withhold of adjudication of delinquency. J.A. argues that the State failed to prove the value of the truck's damaged windshield, and therefore, this Court should reduce the finding of delinquency under Count 2 of the petition from first-degree criminal mischief to second-degree criminal mischief. We find J.A.'s arguments without merit and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of July 5th, 2016, Edy Iglesias ("Iglesias") was driving home in a truck owned by his employer when J.A. and another juvenile threw rocks at the truck, which damaged the truck's windshield in two places. The following day, Iglesias called a company to repair the truck's windshield.

The State charged J.A. with two counts: throwing a deadly missile (Count 1) and first-degree misdemeanor criminal mischief (Count 2). At trial, Iglesias testified that a company he contacted repaired the windshield and that he paid the total cost of repair of $272.72, which included the cost of the windshield and labor expended. Defense counsel objected to Iglesias's testimony as "hearsay and inferential hearsay."

After the State rested, defense counsel moved for a judgment of dismissal and argued that the State failed to prove the fair market value of the windshield and its repair. The trial court denied the motion for judgment of dismissal and found that the State proved damages and the value of the damaged property. The trial court entered an order withholding adjudication of delinquency as well as an order of restitution for $272.72, and placed J.A. on probation. This timely appeal followed.

II. ANALYSIS

On appeal, J.A. argues that the State did not present sufficient evidence to prove the value of the damage to the property. We disagree. In a criminal mischief case, the amount of damage is an essential element of the crime of felony criminal mischief and the crime of first-degree misdemeanor criminal mischief.

See Marrero v. State, 71 So.3d 881, 887 (Fla. 2011) ; B.J.M. v. State, 185 So.3d 692, 693 (Fla. 5th DCA 2016). For first-degree misdemeanor criminal mischief, the State must prove that the defendant's criminal mischief resulted in damage to property greater than $200 but less than $1000. See § 806.13(1)(b)2., Fla. Stat. (2016). "Absent proof of the amount of damage, an act of criminal mischief, as defined by the criminal mischief statute, is a misdemeanor of the second degree." Marrero, 71 So.3d at 887 (emphasis in original). Additionally, for an order of restitution, evidence demonstrating the amount of loss "must be established through more than mere speculation; it must be based on competent evidence." Glaubius v. State, 688 So.2d 913, 916 (Fla. 1997).

At trial, the State presented Iglesias's own testimony regarding the amount he paid for the repair. The State did not introduce Iglesias's actual repair bill showing the cost of replacing the windshield, any estimates that Iglesias may have received for the repair, or any other documentary evidence (e.g., a cancelled check or a credit card bill) establishing the cost of the repair.

In a similar case, C.H. v. State, 199 So.3d 447 (Fla. 3d DCA 2016), this Court found that the victim's testimony that he paid $500 as his insurance deductible to repair his car sufficiently established that amount of damage and therefore supported an adjudication for first-degree misdemeanor criminal mischief. Id. at 448. As in C.H., the owner's testimony here was not inadmissible hearsay as it did not involve an out-of-court statement, but rather an act in which the owner was a participant. See also L.D.G. v. State, 960 So.2d 767, 767-68 (Fla. 4th DCA 2007) (finding that the victim's testimony that she paid $1250-consisting of her $500 deductible and insurer's payment of $750-to repair car door was not inadmissible hearsay and was sufficient to establish damage in excess of $1000 for purposes of felony criminal mischief). Based on our prior conclusion in C.H. and our sister court's conclusion in L.D.G., we find that the State presented competent, substantial evidence of the actual cost of repair to the damaged windshield.

J.A. argues, however, that the State was also required to prove the fair market value of the truck, the windshield, and the repair. J.A. bases his argument on R.C.R. v. State, 916 So.2d 49 (Fla. 4th DCA 2005). In R.C.R., the record established that the victim had purchased a vehicle for $500 as "junked," without an engine or wheels, placed on blocks, and with the idea of restoring the vehicle. The evidence in R.C.R. also established that the vehicle's prior owner had not expected to get anything for the truck. At trial, the victim "estimated, without supporting documentation, that repairs [as a result of the criminal mischief] were close to $2,700.00 ...." Id. at 49. Relying on case law relating to the crime of theft, the court in R.C.R. concluded that the State had to prove damages by the value of what was lost; thus, where the cost of repair exceeded the value of the vehicle, the value of the vehicle (in that case, $500) would set the damages for purposes of determining whether the crime qualified as felony, first-degree misdemeanor, or second-degree misdemeanor criminal mischief. Id.

We find R.C.R. inapplicable for a number of reasons. First, while it is true that the definition of "value" in Florida's theft statutes includes the concept of market value, the Florida Supreme Court in Marrero, 71 So.3d at 887-890, disapproved of importing the definition of "value" from Florida's theft statute into the criminal mischief statute. Indeed, the harm resulting from a theft (i.e., dispossession) is different in kind from the harm resulting from criminal mischief (i.e., damage or defacement).

Second, the Fourth District Court of Appeal subsequently refused to apply its own holding in R.C.R. in the broad manner urged on us by J.A. In L.D.G. v. State, 960 So.2d 767 (Fla. 4th DCA 2007), the owner of a vehicle testified regarding the actual cost to repair the car door damaged by the juvenile repeatedly kicking and beating the door of the vehicle. Id. at 767. The Fourth District rejected the juvenile's argument that the owner's testimony was insufficient under R.C.R. Instead, the Fourth District concluded that its "decision in R.C.R. stands for the proposition that repair costs cannot be used to establish the amount of the damage element in a charge of criminal mischief to the extent that the repair costs exceed the fair market value of the damaged property." Id. at 768. Contrasting the junked car on blocks in R.C.R. with the vehicle used by the victim as her personal van in L.D.G., the Fourth District found R.C.R. to be "simply inapposite to this case." Id. For the same reason, even if R.C.R.'s use of fair market value had continuing validity after Marrero, we find it inapplicable to the facts before us here.

Accordingly, for the reasons discussed, we affirm the trial court's order withholding adjudication of guilt.

Affirmed.

      J.A. does not appeal the trial court's finding regarding Count 1 of the petition. Accordingly, the trial court's order finding J.A. delinquent on Count 1 of the petition is affirmed.

      This Court concluded in C.H. that the $1000 threshold for felony criminal mischief had not been met because the State did not introduce any evidence regarding amounts paid in addition to the victim's deductible.

      Because the State proved the amount of damage based on what was actually paid, and not based on estimates to repair, we find the conclusions of B.J.M. and B.L.N. v. State, 722 So.2d 860 (Fla. 1st DCA 1998), inapplicable.

      We note that if R.C.R. retains vitality post-Marrero, the argument that the cost of repair cannot be the proper measure of damage when it exceeds the fair market value of the damaged property would appear to be a defense to be asserted once the State has established a prima facie case of criminal mischief.


author: PER CURIAM.

text:
    D.M., Mother of J.C.D. and A.W.D., Children, Appellant, v. M.D., Father, Appellee.
    Case No. 5D18-473
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 30, 2018
    Jonathan R. Simon, Orlando Legal, Orlando, for Appellant.
    M.D., Coleman, pro se.
   PER CURIAM.

D.M. appeals a final order denying her petition to terminate the parental rights of M.D., the biological father of their two children, in conjunction with a proceeding for a stepparent adoption under chapter 63, Florida Statutes (2015). D.M. argues that the trial court erred in failing to set forth specific findings of fact to support its conclusion that M.D. had not abandoned his children. She also contends that competent, substantial evidence supports terminating M.D.'s parental rights. We affirm.

D.M.'s petition sought to terminate M.D.'s parental rights based on his ninety-seven-month term of incarceration in prison followed by ten years of sex offender probation. D.M. alleged that M.D.'s term of incarceration constituted a significant portion of the children's minority. Alternatively, she contended that continuing the parental relationship with M.D. would be harmful to the children and, for this reason, termination of M.D.'s parental rights would be in the best interests of the children. See § 63.089(4)(b)1. & 3., Fla. Stat. (2015).

Following an evidentiary hearing, the trial court denied D.M.'s petition. As D.M. correctly observes, the trial court's order does not include written findings addressing the criteria set forth in section 63.089(4), as required by section 63.089(5). However, the failure to make the required findings can constitute harmless error when, as here, our review is not hampered by their absence. See Williams v. Williams, 923 So.2d 606, 608 (Fla. 2d DCA 2006). After considering all the evidence and the credibility of the witnesses, the trial court concluded that M.D. had not abandoned his children. The trial court's order comes to this Court with a presumption of correctness. Sunset Realty Corp. v. McDaniel, 165 So.2d 782, 783 (Fla. 2d DCA 1964). When, as here, there is competent, substantial evidence to support the trial judge's conclusion, it will be affirmed. See Bertman v. Solomon, 166 So.2d 499, 502 (Fla. 3d DCA 1964). We cannot reweigh the evidence. Disston v. Hanson, 116 So.3d 612, 613 (Fla. 5th DCA 2013).

AFFIRMED.

COHEN, C.J., ORFINGER and EISNAUGLE, JJ., concur.

      The trial court's order erroneously referred to section 39.806(1), Florida Statutes (2015), to interpret "abandonment" instead of section 63.089(4). However, the error was harmless, as there is no significant difference in the analysis under either statute. Compare § 63.089(4)(b), Fla. Stat. (2015), with § 39.806(1)(d), Fla. Stat. (2015).


text:
    William DORTON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-649
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    Gary Schwartz, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

William Dorton appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

Dorton was charged with attempted felony murder. He was found not guilty by reason of insanity and committed to the custody of the Department of Children and Families. He subsequently filed a motion for postconviction relief, alleging ineffective assistance of counsel. The trial court considered the matter on the merits and denied the motion.

Rule 3.850(a) plainly applies only to "claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere." Because Dorton was found not guilty by reason of insanity, he has no claim for relief under rule 3.850.

AFFIRMED.

ORFINGER, EVANDER and EISNAUGLE, JJ., concur.


text:
    DEPARTMENT OF REVENUE O/B/O Sakeena A. GAINES, Appellant, v. Quinn A. CURTIS, Appellee.
    Case No. 5D17-3278
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 1, 2018
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Appellant, Department of Revenue.
    No Appearance for Appellee.
   PER CURIAM.

The Department of Revenue (Department) appeals the denial of its petition to enforce an administrative support order that required Quinn A. Curtis (Father) to pay child support to the Department for the benefit of his son, Q.A.C. The trial court denied the petition because Sakeena A. Gaines (Mother) was not present at the hearing. The Department argues that because this is a Title IV-D child support case, it serves as Mother's attorney in fact and, further, that Mother's testimony was not required to enforce the existing administrative support order. We agree and reverse.

In Title IV-D of the Social Security Act, Congress required states choosing to participate in the Temporary Assistance for Needy Families (TANF) federal welfare block grant to provide assistance to custodial parents, whether the parent is receiving TANF assistance or not, in obtaining and enforcing child support orders against noncustodial parents. 42 U.S.C. §§ 651 - 669 (2017) ; § 409.2563(1)(f), Fla. Stat. (2017) ; Dep't of Rev. v. McLeod, 96 So.3d 443, 446 (Fla. 1st DCA 2012). Florida opted into TANF and designated the Department to provide assistance to custodial parents in obtaining and enforcing child support orders. § 409.2557(1), Fla. Stat. (2017) ; McLeod, 96 So.3d at 446 (citing § 409.2557(1), Fla. Stat. (2012) ). A child support case becomes a Title IV-D case for which the Department has enforcement responsibilities in two situations: (1) "when either party or the child is receiving public assistance" or (2) "when the obligor has failed to make support payments and [the Department] is called upon by the custodial parent to assist in enforcing a child support order." McLeod, 96 So.3d at 448. This case involves the second situation. As such, the Department has the authority to enforce and collect Title IV-D support obligations and then disburse them to the custodial parent. §§ 409.2557(2), 409.2558(1) Fla. Stat. (2017).

The Department is considered a party to the enforcement action "only for those purposes allowed under Title IV-D of the Social Security Act," and the Department's attorney is the attorney of record "solely for the purposes of support enforcement as authorized under Title IV-D." § 409.2564(5), Fla. Stat. (2017) (footnotes omitted). Although the Department's attorney represents the agency and not the custodial parent, see § 409.2564(5), Fla. Stat. (2017), a recipient of public assistance, whether financial or in the form of assistance in obtaining or enforcing the support order, "appoints the department as her or his attorney in fact to act in her or his name, place, and stead to perform specific acts relating to the ... enforcement of support obligations, including, but not limited to ... [p]ursuing civil and criminal enforcement of support obligations ...." § 409.2561(2)(b)4., Fla. Stat. (2017).

In this case, the petitioner was the Department acting on Mother's behalf to enforce the administrative order. Mother was not listed as a party. The Department collects the child support payments directly from Father for disbursement to Mother. §§ 409.2557(2), 409.2558(1), Fla. Stat. (2017). While the statute is clear that the Department's attorney represents only the agency and not Mother, this is not material because the Department is Mother's attorney in fact for purposes of enforcing the administrative child support order. §§ 409.2561(2)(b), 409.2564(5), Fla. Stat. (2017) ; see also Fla. Fam. L. R. P. 12.040(c)(2) (requiring notice to custodial parent in Title IV-D support cases that Department's attorney represents only Department and "may only address issues concerning determination of paternity, and establishment, modification, and enforcement of support obligations").

Indeed, all the Department was seeking here was an order from the circuit court enforcing the administrative support order. See § 409.2563(10)(b), Fla. Stat. (2017). At most, all that was required for this order was evidence that Father was not paying the child support and the administrative support order. See id. As the Department collected the child support directly from Father, Mother would not have been able to testify concerning Father's nonpayment of the child support. Thus, while Mother's testimony would have been necessary to establish or modify the child support award, see Johns v. Richards, 717 So.2d 1103, 1105 (Fla. 4th DCA 1998) (citing Finley v. Scott, 707 So.2d 1112, 1118 (Fla. 1998) ), there was no need for her testimony in the enforcement action. Therefore, because Mother was not a party to the petition and her testimony was not required to enforce the administrative child support order, we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

EVANDER, BERGER and WALLIS, JJ., concur.


text:
    James Earl DUNN, DOC# 234394, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1580
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, 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 the revocation of Mr. Dunn's community control without comment. We write only to note that the revocation order erroneously indicates that Mr. Dunn violated condition fifteen of his community control. As the substance of the revocation order and the rest of the record makes clear, Mr. Dunn was actually found to be in violation of condition seventeen. We therefore remand this case for the trial court to render a corrected revocation order. See Turner v. State, 873 So.2d 480, 481 (Fla. 2d DCA 2004) ; Greer v. State, 831 So.2d 1261, 1262 (Fla. 2d DCA 2002).

Affirmed; remanded to correct scrivener's error.

VILLANTI, KHOUZAM, and SALARIO, JJ., Concur.


author: Wolf, J.

text:
    Robert Louis ROBERSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D17-1795 1D17-1796 1D17-1797
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Andy Thomas, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Wolf, J.

This appeal stems from a mandatory resentencing of appellant required by Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The trial court vacated appellant's life sentences and resentenced him to life in prison in accordance with section 921.1401, Florida Statutes. Appellant raises three issues on appeal: (I) whether the trial court erred in weighing and failing to weigh several factors before resentencing appellant to life in prison; (II) whether the trial court erred in denying appellant's request for a jury finding under section 921.1401 ; and (III) whether section 921.1401 is facially unconstitutional.

We determine appellant failed to demonstrate that the trial court erred in considering the factors in section 921.1401 and affirm as to Issue I without further discussion.

As to Issues II and III, appellant complains that section 921.1401 requires the judge, not the jury, to consider certain factors in determining whether to impose a life sentence. He contends that this statute is directly analogous to Florida's former capital sentencing statute, which required a judge to find mitigating or aggravating factors that would warrant the death penalty. This capital punishment statute was declared unconstitutional under the Sixth Amendment because a jury, not a judge, must to find each fact necessary to impose a death sentence. Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) (citing Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ). Appellant thus argues that the trial court erred in denying his request for a jury to make findings as to the sentencing factors set forth in section 921.1401.

We rejected these arguments in Copeland v. State , 240 So.3d 58, 59 (Fla. 1st DCA 2018), for the reasons expressed in Beckman v. State , 230 So.3d 77, 94 (Fla. 3d DCA 2017).

Accordingly, the judgment and sentence are AFFIRMED .

Bilbrey and Kelsey, JJ., concur.


text:
    Jose M. TORRES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-1134
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 12, 2018 Rehearing Denied July 19, 2018
    Jose M. Torres, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Brooks v. State , 969 So.2d 238, 243 (Fla. 2007) (holding that when a sentencing scoresheet error is raised in a motion filed under Florida Rule of Criminal Procedure 3.800(a), if the trial court could have imposed the same sentence using a correct scoresheet, the defendant is not entitled to relief because any error in the scoresheet was harmless).

WALLIS, LAMBERT, and EISNAUGLE, JJ., concur.


author: VILLANTI, Judge.

text:
    Jose Reyes RAMOS, a/k/a Jose Alejandro Reyes Ramos, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-83
    District Court of Appeal of Florida, Second District.
    Opinion filed June 29, 2018
    Howard L. Dimmig, II, Public Defender, and Caroline Joan Picart, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Affirmed without prejudice to any right Jose Reyes Ramos may have to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 to address his claims of ineffective assistance of trial counsel.

KELLY and LUCAS, JJ., Concur.


text:
    Daniel K. MAXWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0340
    District Court of Appeal of Florida, First District.
    July 9, 2018
    Daniel K. Maxwell, pro se, Appellant; Daren L. Shippy of the Office of Candice K. Brower, Criminal Conflict & Civil Regional Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Upon consideration of Appellant's response to the Court's order of June 4, 2018, the Court has determined that the appeal is untimely. Accordingly, the appeal is dismissed. Any request for belated appeal must be filed pursuant to Florida Rule of Appellate Procedure 9.141(c).

Roberts, Wetherell, and Osterhaus, JJ., concur.


text:
    FLORIDA CITIZENS ALLIANCE, INC., a Florida not for profit corporation, Douglas Lewis, Brantley Oakey, and Eric Konuk, Appellants, v. The SCHOOL BOARD OF COLLIER COUNTY, Appellee.
    Case No. 2D17-2916
    District Court of Appeal of Florida, Second District.
    Opinion filed July 6, 2018.
    Brantley Oakey, Naples; and Steven J. Bracci of Steven J. Bracci, P.A., Naples for Appellants.
    Christopher D. Donovan and James D. Fox of Roetzel & Andress, LPA, Naples, for Appellee.
   PER CURIAM.

Dismissed as moot. See Lund v. Dep't of Health, 708 So.2d 645, 646 (Fla. 1st DCA 1998) ("The general rule in Florida is that a case on appeal becomes moot when a change in circumstances occurs before an appellate court's decision, thereby making it impossible for the court to provide effectual relief."); see also Freni v. Collier County, 573 So.2d 1054, 1054 (Fla. 2d DCA 1991) ("The appellants sought to enjoin a referendum scheduled to be held on the issue of whether the Board of County Commissioners ... should levy a tourist development tax .... [T]he trial court denied the appellants' motion for a temporary injunction [and t]his appeal ensued .... The referendum was held as scheduled ... and resulted in a favorable vote. Therefore, the issue of whether the court erred in denying the motion for temporary injunction is moot.").

Dismissed.

SILBERMAN, SLEET, and ROTHSTEIN-YOUAKIM, JJ., Concur.