text:
    Phrow Donnell BLACKWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5043.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Phrow Donnell Blackwell, pro se, Petitioner.

      Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the April 27, 2009, order which denied defendant’s motion for postconviction relief under grounds of newly discovered evidence filed on February 6, 2009. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, WEBSTER, and THOMAS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Paul JEFFRIES, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Florida Parole Commission, and Holley, Warden, Century Correctional Institution, Appellees.
    No. 1D10-0059.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Paul Jeffries, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

DISMISSED. See Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991) (dismissing appeal where the lower tribunal dismissed the complaint below without prejudice to file an amended complaint that corrects the defects and holding that if the petitioner is unwilling or unable to amend the complaint, the proper course is to so advise the lower tribunal and request entry of a final order of dismissal with prejudice which may be appealed).

WOLF, WEBSTER, and THOMAS, JJ., concur.


text:
    Keanard JEWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4064.
    District Court of Appeal of Florida, First District.
    March 29, 2010.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287, 290-91 (Fla.2003).

WOLF, LEWIS and MARSTILLER, JJ., concur.


text:
    Clint Martin STAGG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0747.
    District Court of Appeal of Florida, First District.
    March 30, 2010.
    Clint Martin Stagg, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, VAN NORTWICK, and CLARK, JJ., concur.


text:
    William R. DISHMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1195.
    District Court of Appeal of Florida, First District.
    March 30, 2010.
    William R. Dishman, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Robert KOENEMUND, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4443.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2010.

      A.R. Mancler, III, of Greenfelder, Man-der, Murphy, Dwyer & Morris, Dade City, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Broun v. State, 24 So.3d 671 (Fla. 5th DCA 2009).

ORFINGER, TORPY and EVANDER, JJ., concur.


text:
    Jose D. CAMPOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2882.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Jose D. Campos, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008), remeto denied, 11 So.3d 942 (Fla.2009).

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


author: TAYLOR, J.

text:
    Juan Jose FARIAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-406.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.

      Jonathan Jay Kirschner, of Jonathan Jay Kirschner, Esq. & Associates, LLC, Fort Pierce, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Defendant Juan Jose Farias appeals a final judgment of conviction and sentence for one count of lewd or lascivious molestation of a child under 12. He raises three issues on appeal: (1) whether the trial court committed reversible error in admitting photographic evidence; (2) whether the trial court erred in admitting child-victim hearsay testimony; and (3) whether the prosecutor engaged in prosecutorial misconduct that constituted fundamental error. We affirm as to the second and third issues, but reverse because of the erroneous admission of photographic evidence and remand for a new trial.

The state presented evidence at trial that the defendant inappropriately touched the seven-year-old victim while she was sleeping over at the home of her friend, the defendant’s daughter. According to the victim, the defendant slid his hand into her shorts and underwear and wiggled his finger around the lips of her vagina, then laughed. The next morning the victim, J.L., told her grandmother and mother about the incident. Later she wrote a letter memorializing her recollection of what happened, and several days later, spoke to Detective LaGrega of the Port St. Lucie Police Department about the incident.

Dr. Cariello, a physician at St. Lucie Medical Center’s emergency department, interviewed J.L. and examined her the day after the molestation. The examination did not reveal any evidence of tenderness, bleeding, swelling, redness, or discharge in the vaginal area, and showed her “hymen not intact.” An investigating officer took several photographs of the examination.

At trial, the state attempted several times to introduce into evidence the photographs taken of J.L.’s hospital examination. The state first sought admission of the photographs after the victim’s mother testified about the examination. Defendant objected, arguing that a predicate had not been established to show the relevancy of the photographs and that their admission would be unduly prejudicial, since the doctor would testify that he observed no evidence of external or internal injury. When the trial court questioned the state about the relevancy of the photographs, the state responded that a nurse who examined J.L. disagreed with the doctor’s opinion that there was no redness in the vaginal area and that the jurors could look at the photos and decide this matter for themselves. The state further argued that the photographs were relevant “to show the jury what [J.L.] went through as part of her examination.” The defendant maintained that the photographs were inflammatory and reminded the court that an order in limine previously entered by the court precluded any testimony about the nurse’s observations.

The court sustained the objection, finding that “what the victim went through” was not material to whether or not the defendant committed the crime. However, after the state continued with this line of argument, the court decided to reserve on its ruling.

Dr. Lustgarten, a urologist, testified about the results of the urinalysis performed during J.L.’s emergency room examination. The report revealed that J.L.’s urinalysis was abnormal. The presence of trace bacteria, five to ten red blood cells, and twenty to thirty white blood cells indicated infection. In his opinion, there was possibly an infection that could have come from trauma; healthy children usually do not have abnormal urinalyses. Dr. Lust-garten testified that manipulation, not necessarily internal, can cause abnormal results and explained that it is unlikely for a child to have an abnormal urinalysis without some kind of manipulation.

After Dr. Lustgarten’s testimony, the trial court, over the defendant’s objection, admitted one of the photographs of the vaginal examination. The photograph shows J.L. lying on a hospital bed with her knees bent and someone holding her legs apart to fully expose her vagina. The court determined that the photograph was relevant to show that someone would not falsely report a sexual assault and thereby subject herself to such an examination. Defense counsel objected “because [the victim] wouldn’t have known that that was part of the process when she made the complaint.” The court overruled the objection and admitted the photograph.

Defendant called Dr. Cariello, who testified that there did not appear to be recent injury to the hymen and explained, on cross-examination, that a hymen can be damaged in ways other than by molestation. He mentioned a child’s playing as a possibility and noted that each person’s body is different. Dr. Cariello also told the jury how he conducted the interview and physical exam. He did not use a rape kit; he just performed an external physical exam.

During cross-examination, the state showed Dr. Cariello the photograph at issue and asked him if it was a fair and accurate depiction of the victim’s vaginal examination. He replied that it was. The state then asked, “Now is this generally something that people who are getting this examination done, is this fun for them?” Dr. Cariello answered, “No ... it’s not a pleasant thing for anyone to do.” The state then published the photograph to the jury.

The jury found the defendant guilty of lewd or lascivious molestation. He was sentenced to fifteen years in prison, followed by ten years of sex offender probation.

Defendant argues that the trial court erred in admitting the photograph of the child’s examination because it was irrelevant to the issue of sexual abuse and served only to inflame the jury. The state responds, first, that the defendant failed to preserve this issue for appeal because he did not object when the state published the photograph during its cross-examination of Dr. Cariello. A contemporaneous objection must be made when evidence is offered for admission. Rodriguez v. State, 919 So.2d 1252, 1286 (Fla.2005). Here, the defendant objected each time the photograph was offered into evidence. Once the photograph was admitted, over his objection, Defendant did not need to repeat his objection before it was published to the jury. See LeRetilley v. Harris, 354 So.2d 1213, 1214 (Fla. 4th DCA 1978) (stating that “there is normally no need to object repeatedly every time the same error is made providing the court has ruled thereon.”).

On the merits, the state argues that the photograph was a fair and accurate depiction of the physical examination that was conducted soon after the child reported the incident and that it was relevant to refute the defendant’s claim that the child fabricated the story. The state further argues that any error in admitting the photograph was harmless beyond a reasonable doubt.

The admission of photographs is reviewed under the abuse of discretion standard. Welch v. State, 992 So.2d 206, 216 (Fla.2008). “The test for admissibility of photographic evidence is relevancy rather than necessity.” Id. (quoting Douglas v. State, 878 So.2d 1246, 1255 (Fla.2004)). For photographic evidence to be relevant, it must logically tend to prove or disprove a material fact. §§ 90.401-90.402, Fla. Stat. (2008). Even if the evidence is relevant, it may be inadmissible under the section 90.403 balancing test, if the “probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Further, the trial court may decline to admit photographs if it determines that the “gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jur[ors] and [distract] them from a fair and unimpassioned consideration of the evidence.” Welch, 992 So.2d at 216 (quoting Douglas, 878 So.2d at 1255) (alterations in original).

Here, the photograph had little or no relevance. Although the photograph illustrated Dr. Cariello’s testimony concerning the physical examination he performed on the victim, it did not tend to prove or disprove a material fact that was in dispute in this case. The doctor testified that the victim suffered no visible external injuries as a result of the alleged molestation, and no evidence to the contrary was presented at trial. Besides, a defendant can be guilty of lewd or lascivious molestation without causing any damage to the victim’s vagina. The only issue before the jury was whether the defendant molested J.L., and the photo showing no injuries had no relevance to this issue.

In any case, the state did not introduce the photograph to demonstrate the presence or absence of any physical injuries to the victim.. The state acknowledged that its purpose was to show the jury the embarrassing and uncomfortable medical procedures the victim had to endure after reporting the molestation. It explained that the child would not have lied about the incident and thus subjected herself to such an invasive examination. However, as the defendant pointed out, it is unlikely that a seven-year-old child would have known about this consequence of reporting the incident. We thus do not agree that the photograph was relevant to refute the defendant’s theory that the victim was untruthful about the incident.

We conclude that the trial court erred in admitting the photograph. The photograph had minimal probative value, and its potential for offending the jury’s sensibilities and evoking sympathy for the victim was substantial. See Saxon v. State, 225 So.2d 925, 927 (Fla. 4th DCA 1969) (holding that where photographs are irrelevant, and their only purpose for admission is to influence and prejudice the jury, it is eiror to admit them). Because we cannot say beyond a reasonable doubt that the improperly admitted photograph did not affect the jury’s verdict, we are unable to find the error harmless. See Ventura v. State, 29 So.3d 1086 (Fla.2010); Goodwin v. State, 751 So.2d 537 (Fla.1999).

Reversed and Remanded for a neiu trial.

FARMER, J. and LEVENSON, JEFFREY R., Associate Judge., concur.

      . The trial court sustained the defendant's objection as to the entire group of photographs to avoid ''overkill,” but allowed the state to present the single photograph at issue.


author: GERBER, J.

text:
    Keith SOANES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-794.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Erik Courtney, Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

Keith Soanes (the “defendant”) appeals his conviction for robbery with a firearm and his sentence to life in prison as a violent career criminal. We affirm the conviction, but reverse the sentence and remand for resentencing.

We find no error in the trial court’s admission of a photo array where the photo was cropped to remove all indicia that the defendant was in jail attire. Baynham v. State, 937 So.2d 1195, 1196 (Fla. 4th DCA 2006). We also find no error in the state’s closing argument which the defendant claims effectively called him a “liar.” See Craig v. State, 510 So.2d 857, 865 (Fla.1987) (“When counsel refers to a ... defendant as being a ‘liar,’ and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence.”). We further find that the state’s closing argument did not ridicule the defendant’s theory of defense. See De Jesus v. State, 684 So.2d 875, 876 (Fla. 3d DCA 1996) (“We think that these comments ... were within the range of appropriate advocacy and therefore not erroneous, much less so beyond the pale as to vitiate the trial entirely and require a new one.”).

However, the trial court erred during sentencing when it stated that it did not think it had any discretion other than to sentence the defendant to life in prison as a violent career criminal. Section 775.084(3)(c)5., Florida Statutes (2008), provides that, if the court determines the defendant meets the criteria for imposing such a sanction, “the court must sentence the defendant as a violent career criminal, subject to imprisonment pursuant to this section unless the count finds that such sentence is not necessary for the protection of the public.” § 775.084(3)(c)5., Fla. Stat. (2008) (emphasis added); see also Harris v. State, 849 So.2d 449, 450 (Fla. 3d DCA 2003) (“We remand this matter for resentencing because ... the trial judge mistakenly believed he was compelled to impose a violent career criminal sentence once the qualifying offenses were established.”). We are not convinced by the state’s arguments that the defendant invited or waived the sentencing error. See Westgate Miami Beach, Ltd. v. Newpont Operating Corp., 16 So.3d 855, 858 (Fla. 3d DCA 2009) (“It appears that the lawyers and the trial court were all operating under the same misapprehension of the law. Thus, the invited error doctrine ... [does] not provide the relief the plaintiff now seeks.”).

Therefore, we reverse the sentence and remand for resentencing, at which the trial court shall determine whether a violent career criminal sentence is or is not necessary for the protection of the public. The possibility of a life sentence as a violent career criminal remains within the trial court’s discretion.

Affirmed in pant, reversed in pant, and remanded for resentencing.

TAYLOR and LEVINE, JJ., concur.


text:
    Angella FENDERSON, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 4D08-2894.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Rehearing Denied March 31, 2010.
    Douglas P. Johnson of Douglas P. Johnson & Associates, Davie, for appellant.
    Juan C. Montes and LaShawn Legair of Lidsky, Vaccaro, Montes & Martinez Attorneys at Law, P.A., Hialeah, for appellee.
   ON APPELLEE’S MOTION FOR CLARIFICATION/REHEARING

PER CURIAM.

We grant the appellee’s motion for clarification, deny the appellee’s motion for rehearing, and substitute the following for our January 27, 2010 opinion.

We reverse the final summary judgment in favor of the appellee on the appellant’s bad faith claim only, and remand to the circuit court for the entry of a final judgment dismissing the bad faith claim without prejudice for failing to file a sufficiently specific civil remedy notice complying with section 624.155(3)(a), Florida Statutes (2004). See Villa Maria Nursing & Rehab. Ctr., Inc. v. S. Broward Hosp. Dist., 8 So.3d 1167, 1171-72 (Fla. 4th DCA 2009) (dismissal should be without prejudice where plaintiff still has time to comply with statutory notice provision that is condition precedent to filing suit).

Reversed and remanded.

STEVENSON and GERBER, JJ., and BROWN, LUCY CHERNOW, Associate Judge, concur.


text:
    Galinis Ellrod NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4790.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2010.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Joseph v. State, 965 So.2d 357, 358 (Fla. 4th DCA 2007) (stating that “[t]here is no requirement that the state allege and prove that entry was made with the intent to commit a specific offense[.] ... [E]ven when it does so allege, so long as it also charges and proves ‘the essential element of intent to commit an offense,’ the specific allegation is considered surplusage.” (citation omitted)); Young v. State, 13 So.3d 537 (Fla. 3d DCA) (holding that “there is a crime of burglary with intent to commit the underlying offense of resisting without violence, which occurs ... when a person fleeing from a lawful attempted arrest enters a structure without permission in order to evade capture” (emphasis in original)), review denied, 22 So.3d 539 (2009).

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


author: WELLS, J.

text:
    Orientus WERNER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2755.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Orientus Werner, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS, and CORTIÑAS, JJ.
   WELLS, J.

Orientus Werner appeals from an order denying his August 3, 2009, Florida Rule of Criminal Procedure 3.800 motion to correct illegal sentence. Although it appears from the record before us that (1) the correction requested in the instant motion was previously requested in a motion filed on March 17, 2009, and (2) the State agreed to the requested correction with regard to Werner’s sentences on Counts 6 (armed home invasion) and 12 (burglary with assault or battery while armed) of the charges against him, the record does not disclose what, if any, relief was previously granted regarding this request. The order on appeal is, therefore, reversed and remanded either to accord the relief to which Werner is concededly entitled or for attachment of those portions of the record which demonstrate that such relief has already been granted. Mendoza v. State, 20 So.3d 986 (Fla. 3d DCA 2009); George v. State, 19 So.3d 428 (Fla. 3d DCA 2009); Taylor v. State, 19 So.3d 420 (Fla. 3d DCA 2009); Fernandez v. State, 18 So.3d 1200 (Fla. 3d DCA 2009).

Reversed and remanded.


author: PER CURIAM. COPE, J.

text:
    Randy MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-154.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Randy Martin, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before, COPE, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring).

The trial court’s order is in error in stating that the motion to correct illegal sentence dated December 4, 2009, raises the same issue as an earlier rule 3.800(a) motion filed by defendant-appellant Martin on November 14, 2009.

In the current motion the defendant’s claim is that the Department of Corrections has not provided him with proper credit for prison time (not jail time) served between his original sentencing date of January 9, 1990 and the August 4, 1995 resentencing. However, the resentencing was nunc pro tunc to January 9, 1990, and the Department of Corrections’ calculation attached to the defendant’s motion appears to me to be correct. If the defendant believes it is not correct, then the defendant must exhaust his administrative remedies through the inmate grievance procedure in the Department of Corrections. See Salazar v. State, 892 So.2d 545 (Fla. 3d DCA 2005).

Because the correct result was reached by the trial court, I join the affirmance.


text:
    Vincent CAPERS a/k/a Vincent Romel Capers, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-514.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Vincent Capers a/k/a Vincent Romel Capers, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

The defendant, Vincent Capers a/k/a Vincent Romel Capers, appeals the trial court’s order summarily denying his motion to correct illegal sentence as to amount of credit for time served under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the defendant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

The defendant has raised a facially sufficient claim for rule 3.800(a) relief that the trial court, by summarily denying the motion, has failed to conclusively refute. Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. On remand, if the trial court again enters an order denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting the defendant’s claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this Court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded for further proceedings.


text:
    Victor MONTESINO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2084.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Victor Montesino, in proper person.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and SALTER, JJ.
   PER CURIAM.

Based on the State’s proper concession, we reverse the order denying defendant’s Florida Rule of Criminal Procedure 3.800(a) motion. This cause is remanded to the trial court to determine whether the defendant was afforded appropriate credit for time served pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993), in the court’s June 2007 order, as delineated in the State’s response.

Reversed and remanded.


text:
    David McGLASHAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-992.
    District Court of Appeal of Florida, Fifth District.
    March 31, 2010.
    Wayne Henderson, St. Augustine, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

ON CONFESSION OF ERROR

Pursuant to the Respondent’s confession of error, the order denying motion to set bond is reversed and this cause is remanded for the trial court to hold a bond hearing and determine whether the Petitioner’s failure to appear was with knowledge and willful. See State v. Collie, 390 So.2d 441 (Fla. 5th DCA 1980). The trial court shall accommodate defendant’s counsel with hearing time prior to the upcoming holiday weekend.

PETITION GRANTED.

GRIFFIN, LAWSON and COHEN, JJ., concur.


text:
    Harvey Lee PARKES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4790.
    District Court of Appeal of Florida, First District.
    March 31, 2010.

      Harvey Lee Parkes, pro se, Appellant.
    Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse and remand the denial of ground one. We affirm the denial of ground two without further discussion.

In ground one of his motion, Appellant asserts that his consecutive minimum mandatory sentences for first-degree murder and robbery with a firearm are illegal because the crimes arose from a single criminal episode. The trial court denied the motion on the basis of Downs v. State, 616 So.2d 444 (Fla.1993). In Downs, the defendant was convicted of first-degree murder and aggravated assault for killing his wife and then threatening a witness to the murder. Id. at 445. He was sentenced to life imprisonment without the possibility of parole for 25 years on the murder charge. Id. He was sentenced to 5 years’ imprisonment on the aggravated assault charge, with a 3-year minimum mandatory for using a firearm during the commission of the aggravated assault. Id. The sentences, including the minimum mandatories, were imposed consecutively. Id. The issue presented was:

Whether a trial judge has discretion to stack minimum mandatory sentences in cases involving capital felonies together with non-capital felonies committed with use of a firearm, where the predicate offenses all occurred during the course of the same criminal episode?

Id. at 444-45. The supreme court answered in the affirmative, holding that the consecutive 25- and 3-year minimum mandatory sentences were proper. Id. The Downs court reasoned: “When the same crime is committed in a nonsimultaneous manner or when different crimes are committed in the same episode ... minimum mandatory sentences can be consecutive.” Id. at 445.

However, a few years later the Florida Supreme Court decided Boler v. State, 678 So.2d 319 (Fla.1996). In Boler, the defendant was convicted of first-degree felony murder and robbery (the underlying felony) for killing a convenience store clerk during an armed robbery. The defendant was sentenced to life imprisonment with a 25-year minimum mandatory for first-degree murder. Id. at 322. He was given a consecutive life sentence for the robbery, which included a 3-year minimum mandatory for the use of a firearm. Id. The main issue was whether a defendant could be convicted and sentenced for both felony murder and the underlying crime; the court held that such convictions and sentences were proper. Id. at 320-22. However, the court also addressed an additional sentencing issue: The defendant asserted that the minimum mandatory portions of the sentences could not be imposed consecutively. Id. at 322. The Boler majority held that the 3-year minimum mandatory sentence for the underlying robbery could not be imposed consecutively to the 25-year minimum mandatory for felony murder. Id. at 323. We conclude that Boler, rather than Downs, applies. See Hall v. State, 14 So.3d 1081 (Fla. 1st DCA 2009) (holding that Boler controls where a defendant is convicted of felony murder and the underlying crime involved the same victim, therefore, the trial court could not impose the 3-year minimum mandatory for possession of a firearm consecutively to the 25-year sentence for felony murder).

The State asserts that Boler and Hall are distinguishable because those defendants were charged and convicted of only felony murder, not premeditated murder. The State points out that in this case, Appellant was charged under a premeditated murder theory. However, although the State proceeded on a premeditated murder theory, it also proceeded on a felony murder theory. It is not clear if the jury found Appellant guilty under the felony murder or premeditated murder theory, as the verdict form merely suggests Appellant was “guilty as charged,” and Appellant was charged under both theories. Thus, this court cannot assume that Appellant was convicted under a premeditated murder theory. Cf. Traylor v. State, 785 So.2d 1179 (Fla.2000) (holding that a trial court could not reclassify attempted first-degree murder conviction to life felony based on use of a deadly weapon where verdict did not establish whether conviction was based on premeditation or felony murder theory, and where use of a weapon was an essential element of the underlying charge of armed robbery).

Because we find that this case is controlled by Boler, we reverse and remand for the trial court to either impose Appellant’s minimum mandatory sentences concurrently or to attach portions of the record conclusively refuting Appellant’s entitlement to relief. See Hall, 14 So.3d at 1082.

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

KAHN, DAVIS, and THOMAS, JJ., concur.


author: WEBSTER, J.

text:
    Solveig Edna HILL, Appellant, v. Douglas DAVIS, as Personal Representative of the Estate of Kristine E. Davis, deceased, Appellee.
    No. 1D09-4020.
    District Court of Appeal of Florida, First District.
    March 31, 2010.

      H. Guy Green, Marianna, and Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellant.
    Frank A. Baker, Marianna, and Steven Lenoff, Deerfield Beach, for Appellee.
   WEBSTER, J.

In this probate appeal, appellant seeks review of the trial court’s order denying her motions to disqualify appellee as the personal representative of the decedent’s estate. Appellant asserts that the trial court erred in concluding that appellee was qualified to serve as a nonresident personal representative pursuant to section 733.304(3), Florida Statutes (2007). We do not reach the merits of this claim because we conclude that appellant’s motions to disqualify appellee as personal representative were time barred pursuant to section 733.212(3), Florida Statutes (2007). For that reason, we affirm.

Following the decedent’s death in Florida, appellee, a resident of New York, filed a petition for administration which claimed that he was entitled to be appointed the personal representative of the decedent’s estate because he was the decedent’s stepson and was nominated representative in the decedent’s will. The trial court subsequently appointed appellee as personal representative and admitted the proffered will to probate. Appellee published the notice of administration and served a copy on appellant who was the decedent’s mother. Appellant then filed two motions to have appellee removed as personal representative on the ground he was not qualified to serve as a nonresident personal representative pursuant to section 733.304(3), Florida Statutes (2007), because appellee’s father had predeceased the decedent and was not the decedent’s spouse at the time of her death and, therefore, appellee was not a lineal descendent of a spouse of the decedent. Appellee responded by moving to strike appellant’s motions as untimely because they were not filed within three months after service of the notice of administration as required by section 733.212(3), Florida Statutes (2007). He also asserted that he was qualified to serve as personal representative because section 733.304(3) did not limit service by nonresidents to lineal descendants of a surviving spouse. The trial court denied appellant’s motions to disqualify upon concluding that appellee qualified as a nonresident personal representative pursuant to section 733.304(3). The court also found that appellant’s motions to disqualify were made more than three months after service of the notice of administration, but did not indicate whether this finding was a ground for its ruling. This appeal follows.

Section 733.212, Florida Statutes (2007), provides in pertinent part:

(3) Any interested person on whom a copy of the notice of administration is served must object to ... the qualifications of the personal representative ... by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is 3 months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.

The trial court specifically found that appellant’s motions to disqualify were made more than three months after service of the notice of administration (a finding that appellant does not dispute), but did not indicate whether this finding was a ground for its denial of the motions. In fact, the trial court could not have denied the motions as untimely because such a ruling would have been contrary to binding precedent of the Third District Court of Appeal in Angelus v. Pass, 868 So.2d 571 (Fla. 3d DCA 2004), which held that the three-month statute of limitations found in section 733.212(3) did not apply to bar a petition to remove the nonresident nephew-in-law of the decedent who misrepresented himself as the decedent’s nephew and was not qualified to serve as personal representative under section 733.304. The Third District explained:

The three-month statute of limitations period contained in Section 733.212(3) does not apply to bar Angelus’s petition because Pass was never legally qualified to serve as personal representative at any time. The legislature has enacted separate and distinct statutes dealing with the commencement of administration, and with the qualifications required of a personal representative. There is no time limit specified by the qualifications statutes. See §§ 733.304, 733.3101, Fla. Stat. (2003). We find no basis to engraft the three-month limitation of the commencing administration statute onto the explicit provisions of the qualifications statute nor upon [Florida Probate] Rule 5.310, particularly where the applicant was never otherwise legally qualified to serve. See In re Estate of Anderson, 583 So.2d 801 (Fla. 1st DCA 1991); Pontrello v. Estate of Kepler, 528 So.2d 441 (Fla. 2d DCA 1988).
To do so would render Rule 5.130 meaningless and would improperly shift the burden of discovery of an applicant’s misrepresentations to the court and interested parties. Such a result would be antithetical to the policy of requiring personal representatives to hold specific qualifications and to be held to the highest standards of honesty and truthfulness. Simply, Section 733.212(3) does not provide the trial court with discretion to allow a legally unqualified person the privilege to serve as personal representative. See In re Estate of Green-berg, 390 So.2d at 40; In re Estate of Montanez, 687 So.2d 943 (Fla. 3d DCA 1997).

Id. at 573. In the absence of any appellate decision to the contrary, the trial court was required to follow Angelus. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (stating that district court decisions bind all Florida trial courts in the absence of inter-district conflict).

However, we disagree with the sweeping holding in Angelus because it effectively renders part of section 733.212(3) meaningless. See State v. Goode, 830 So.2d 817, 824 (Fla.2002) (“[A] basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless”). The statute clearly states that interested persons such as appellant “must object to ... the qualifications of the personal representative” within three months of the service of the notice of administration or such an objection is “forever barred.” A claim that a nonresident is not qualified to serve as a personal representative pursuant to section 733.304 is an objection to “the qualifications of the personal representative” and should be subject to the clear and unambiguous provisions of section 733.212(3). Although section 733.212(3) and section 733.304 are found in separate parts of the Florida Probate Code, statutes which relate to the same or closely related subjects should be construed together. See Alachua County v. Powers, 351 So.2d 32, 40 (Fla.1977); Smith v. Crawford, 645 So.2d 513, 522 (Fla. 1st DCA 1994). Contrary to the Third District’s decision in Angelus, we find nothing in Florida Probate Rule 5.310 or sections 733.304 and 733.3101, Florida Statutes, which would preclude the application of the three-month statute of limitations period contained in section 733.212(3) to appellant’s claim that appellee was not qualified to serve as a nonresident personal representative pursuant to section 733.304 where the factual basis for the claim was known to appellant and could have been raised within the three-month period. This is not a situation where the factual basis for the claim of disqualification was concealed from appellant or arose after the three-month period had expired. Because appellant’s motions to disqualify appellee as personal representative were time barred under section 733.212(3), we affirm the trial court’s denial of the motions on that basis. We also certify conflict with Angelus. In light of this disposition, it is unnecessary for us to decide whether ap-pellee was qualified to serve as a nonresident personal representative pursuant to section 733.304(3).

AFFIRMED.

LEWIS and ROBERTS, JJ., concur.


author: MARSTILLER, J.

text:
    Kevin M. LeGRAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2022.
    District Court of Appeal of Florida, First District.
    March 31, 2010.

      Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Appellant, Kevin LeGrand, was found guilty by a jury of burglary of an occupied dwelling and sentenced as a prison releasee reoffender to fifteen years in prison, with credit for 323 days time served. He appeals his conviction and sentence arguing that the trial court abused its discretion by failing to conduct a Nelson inquiry and by dismissing his motion for postconviction relief for lack of jurisdiction. For the reasons below, we affirm.

Appellant filed a Motion for Nelson Inquiry approximately three months before trial claiming ineffective assistance of counsel. As grounds for the motion, Appellant stated that he felt he was not being “properly represented” by his appointed assistant public defender, that he had only met with the attorney three times in seven months, and that the attorney had not “thoroughly explained” the details of the case with him. The trial court summarily denied the motion finding that Appellant had not sufficiently raised incompetence of counsel as to warrant a hearing on his request to replace his attorney.

Immediately following trial, Appellant filed a pro se Motion for Postconvietion Relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant primarily claimed ineffective assistance of counsel, alleging that his assistant public defender failed to call an important alibi witness, failed to depose the victim, and failed to properly present a motion to suppress. Appellant also complained of the trial court’s failure to conduct a Nelson hearing. He further stated in his 3.850 motion, “I am filing Notice of Appeal, pending this motion.” Four days later, before the trial court disposed of the motion, Appellant’s trial counsel filed a notice of appeal. The trial court subsequently dismissed the 3.850 motion, reasoning that the court lacks jurisdiction to consider the motion while Appellant’s conviction and sentence are on appeal in this Court. The dismissal order permits Appellant to re-file the motion after this appeal becomes final.

When a defendant seeks to discharge court-appointed counsel before trial, claiming that counsel is ineffective, “the trial judge should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant.” Nelson v. State, 274 So.2d 256, 258-59 (Fla. 4th DCA 1973). However, “a Nelson hearing [is] unwarranted where a defendant presents general complaints about defense counsel’s trial strategy and no formal allegations of incompetence have been made.” Morrison v. State, 818 So.2d 432, 440 (Fla.2002) (citing Davis v. State, 703 So.2d 1055, 1058-59 (Fla.1997); Gudinas v. State, 693 So.2d 953, 962 n. 12 (Fla.1997); Branch v. State, 685 So.2d 1250, 1252 (Fla.1996)). Dissatisfaction with court-appointed counsel, and complaints about trial strategy or the amount of communication with counsel are insufficient to require a Nelson inquiry. See Sexton v. State, 775 So.2d 923, 931 (Fla.2000) (disagreement with attorney’s trial strategy and preparation insufficient to support claim of incompetence); Watts v. State, 593 So.2d 198, 203 (Fla.1992) (defendant’s dissatisfaction that counsel had not visited him in jail not grounds to inquire about counsel’s effectiveness); Tucker v. State, 754 So.2d 89, 93 (Fla. 2d DCA 2000) (defendant’s claim that counsel believed defendant was guilty did not require Nelson hearing); Dunn v. State, 730 So.2d 309, 312 (Fla. 4th DCA 1999) (dissatisfaction with counsel’s trial preparation, witness development, and lack of contact did not constitute clear allegations of ineffective assistance). Rather, to trigger such inquiry, a defendant must present the trial court with specific allegations suggesting counsel’s ineffectiveness. Cf. Haugabook v. State, 689 So.2d 1245, 1246 n. 1 (Fla. 4th DCA 1997) (Nelson inquiry would have been required where defendant alleged that counsel failed to adequately object to State’s peremptory exclusions of black jurors, but defendant’s motion to discharge counsel was untimely). Here, Appellant sought a Nelson inquiry because he felt he was not being “properly represented” by court-appointed counsel, who had neither met with him often enough nor sufficiently explained “the details of the case.” We consider these general complaints, insufficient to suggest ineffective assistance of defense counsel. As such, the trial was not required to conduct a Nelson hearing. Morrison, 818 So.2d at 440.

As to Appellant’s second issue on appeal, we find that Appellant abandoned his motion for postconviction relief when he filed his notice of appeal in this Court. See Carter v. State, 929 So.2d 1161, 1162 (Fla. 5th DCA 2006). Accordingly, trial court appropriately dismissed Appellant’s motion for lack of jurisdiction with leave to re-file after this appeal becomes final. See Hogarth v. State, 970 So.2d 880, 880 (Fla. 1st DCA 2007); Rivera v. State, 913 So.2d 769, 770 (Fla. 5th DCA 2005).

AFFIRMED.

WOLF and LEWIS, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: WOLF, J. WEBSTER, J.,

text:
    Adrian BRUNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1047.
    District Court of Appeal of Florida, First District.
    March 31, 2010.

      Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant seeks review of his conviction for trafficking in cocaine. Appellant raises seven issues on appeal. We determine one issue requires reversal. Specifically, under the unique facts of this case, we find the trial court erred in granting the State’s motion in limine precluding defense counsel from asking appellant whether he had ever been arrested. We also address two other issues to provide guidance to the trial court on remand.

Appellant was stopped while driving and after consenting to a search of his vehicle, the arresting officer found approximately 270 grams of cocaine in individually wrapped plastic baggies in the center console of his vehicle. The entire stop and search of the vehicle was videotaped by a camera mounted on the officer’s "windshield. On the videotape, the officer can be heard asking appellant if he had ever been arrested. At the time the question was asked, appellant was off camera, but the audio feed of the tape evidenced no audible response to the question. At trial, the State chose to play the entire video of the stop for the jury and presented it with a transcript of the taped conversation. The video and the transcript included the unanswered question regarding appellant’s prior arrest history.

Further, at trial the State admitted, over appellant’s objection, evidence establishing appellant was carrying $1000 in cash on his person at the time he was arrested. At the close of the State’s evidence, appellant announced his intention to testify. At this point, the State filed a motion in limine seeking to exclude any questioning regarding appellant’s lack of a prior arrest record. Appellant asserted he was entitled to clear up any confusion regarding whether he had been previously arrested because the State had created an ambiguity on the issue by playing the tape of the stop in its entirety. Disagreeing with appellant, the trial court granted the State’s motion in limine. In his testimony, appellant asserted he had no knowledge of the cocaine in his vehicle and that several individuals had access to his car in the days preceding the stop. The jury convicted appellant as charged.

The first issue we address is whether the State opened the door to otherwise inadmissible evidence when it chose to play the entire videotape recording of the traffic stop which ended with appellant’s arrest. We hold the contents of the videotape opened the door for appellant to present evidence regarding his lack of an arrest history. Thus, we conclude the trial court erred in barring this evidence, and because this error was not harmless, we reverse and remand for a new trial.

A trial court’s ruling on an evi-dentiary issue is reviewed under an abuse of discretion standard. Hudson v. State, 992 So.2d 96, 109 (Fla.2008). Ordinarily, evidence that appellant had never been arrested would be inadmissible in Florida. See Welch v. State, 940 So.2d 1244 (Fla. 2d DCA 2006); Wrobel v. State, 410 So.2d 950, 951 (Fla. 5th DCA 1982). However, “ ‘[a]s an evidentiary principle, the concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence previously admitted. The concept of ‘opening the door’ is ‘based on considerations of fairness and the truth-seeking function of a trial.’ ” Lawrence v. State, 846 So.2d 440, 452 (Fla.2003) (quoting Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000)). This principle is triggered when one party’s evidence presents “an incomplete picture” and fairness demands the opposing party be allowed to “follow up in order to claiify ... and make it complete.” Hudson, 992 So.2d at 110. See Crumbie v. State, 16 So.3d 893, 895 (Fla. 1st DCA 2009); Washington v. State, 758 So.2d 1148, 1155 (Fla. 4th DCA 2000); James v. State, 388 So.2d 35, 36 (Fla. 5th DCA 1980).

In this case, the State opened the door to evidence of appellant’s lack of arrest history when it played the entire videotape of the stop for the jury. The State, by planting the officer’s unanswered question in the minds of the jury, a question otherwise barred by the rules of evidence, created the misimpression appellant had been previously arrested. Benefited by this negative inference and anticipating appellant would try to rebut it, the State then moved in limine to exclude any evidence relating to the subject of appellant’s arrest history. The evidentiary principle of “opening the door” protects the goals of fairness and truth-seeking permeating a trial from being overcome by these kinds of adversarial games. The trial court eri'ed by not granting appellant an opportunity to “ ‘qualify, explain, or limit’ ” the incomplete picture depicted in the videotape and clarify for the jury whether he had been previously arrested. Lawrence, 846 So.2d at 452 (quoting Rodriguez, 753 So.2d at 42).

Further, the error was not harmless. The harmless error test places the “burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Appellant’s defense that he was unaware of the presence of the drugs in his vehicle rested solely on his credibility. Namely, if the jury had believed him, no matter how implausible his story in light of all other circumstantial evidence, he would have been acquitted. Thus, the State has not proven beyond a reasonable doubt the jury was not affected or influenced in reaching its guilty verdict by the insinuation appellant had been previously arrested. Therefore, we reverse.

Second, appellant asserts it was error to allow evidence establishing he was carrying over $1000 on his person at the time of his arrest as this evidence was irrelevant as to guilt. Florida case law establishes cash found on a defendant is irrelevant to prove a possession of contraband charge. See generally Jackson v. State, 570 So.2d 1388 (Fla. 1st DCA 1990); Buitrago v. State, 950 So.2d 531, 532 (Fla. 4th DCA 2007); Ferguson v. State, 697 So.2d 979 (Fla. 4th DCA 1997). However, while cash found on the person at the time of arrest may not be admissible to prove simple possession, it is relevant to prove the charge of trafficking.

Appellant cites both Lowder v. State, 589 So.2d 933 (Fla. 3d DCA 1991), and Garcia v. State, 655 So.2d 194 (Fla. 3d DCA 1995), for the proposition that the underlying evidence is inadmissible, yet neither of those cases mandates reversal here. In Loivder, the objection was not to the cash itself being admissible, but to the State’s attempt to call an officer to testify in his expert opinion that there existed a relationship between the defendant’s possession of $1900 in cash and his dealing in narcotics. 589 So.2d at 935-36. In Loivder, the court expressed concerns that this type of testimony’s probative value was outweighed by its prejudicial effect. Id. However, the Loivder court expressly noted that testimony concerning cash found on the defendant would be admissible, stating:

the defendant’s possession of cash was nonexpert evidence the jury was free to consider, along with the other competent evidence such as the amount, condition, sources, and given reasons for carrying the currency, in a common-sense resolution of the disputed issue.

Id. at 936.

Further, while Garcia generally asserts the $880 found on the defendant in a trafficking case was not “relevant to any portion of the case,” 655 So.2d at 195, the opinion does not provide the facts of that case or elaborate as to why the cash would be irrelevant. In addition, the Garcia court cited Lowder for support, erroneously concluding Lowder stood for the proposition that an “inference of criminal activity does not arise from possession of a relatively small amount of cash.” Id. As noted above, Lowder does not stand for this proposition.

The Fifth District, also citing Lowder; has held cash on an individual’s person can be relevant in a trafficking case. Brown v. State, 766 So.2d 485 (Fla. 5th DCA 2000). We agree.

In asserting possession of cash is irrelevant when a trafficking charge is based on possession alone, appellant places too heavy an emphasis on the possession element of his underlying charge and overlooks the broader purpose and reasoning of the trafficking statute. The language of the trafficking statute establishes its purpose is to provide stricter penalties for those who distribute large quantities of drugs. § 893.135(l)(b), Fla. Stat. (2008). Under the statute, the State may charge an individual in possession of large amounts of drugs with trafficking even though he or she has not been caught red-handed in the sale or distribution of those drugs. This is so because the possession of large amounts of cocaine infers the intent to sell or distribute at some point. The term “traffic” itself means to “trade or deal in.” Black’s Law Dictionary, 1502 (7th ed. 1999). Thus, unlike mere possession cases, the cash is relevant to this trafficking charge.

Accordingly, appellant’s possession of $1000 cash at the time of his arrest does tend to prove appellant had or was intending to engage in distribution or sale of the large amounts of cocaine in his possession and we affirm the trial court’s holding on the matter. See Mosely v. State, 1 So.3d 261 (Fla. 4th DCA 2009) (noting cash found on defendant was irrelevant in a simple possession case because appellant was not charged with trafficking).

Finally, while reversal renders appellant’s written sentence and judgment invalid, we write to address an error in the judgment. Specifically, the written sentence included the following relevant provision: “X the defendant’s Drivers License shall be suspended for 2 years.” A trial court may not direct that a defendant’s license be suspended. See Parker v. State, 655 So.2d 1308, 1308 (Fla. 1st DCA 1995) (holding, per section 322.055, Florida Statutes, a trial court only has the authority to direct the Department of Highway Safety and Motor Vehicles to suspend a defendant’s license, but may not revoke the license itself); Crawford v. State, 651 So.2d 731 (Fla. 4th DCA 1995) (holding the same). For the foregoing reasons, we reverse appellant’s conviction and sentence and remand for further proceedings.

THOMAS, J., concurs; WEBSTER, J., concurs with opinion.

WEBSTER, J.,

concurring.

I agree completely with the analyses employed, and the results reached, in Judge Wolfs opinion. I write only to draw attention to what appears to be a trend in criminal prosecutions — the desire by prosecuting attorneys to obtain a conviction at any cost, regardless of the means necessary to do so.

It is apparent from the transcript of the trial that the prosecutor deliberately sought to plant in the minds of the jury the impression that appellant had previously been arrested, even though the prosecutor knew that was not the case. Rather than assisting the trial court to do the legally correct thing, the prosecutor convinced the trial court to commit the error because of which we are constrained to reverse appellant’s conviction. Had the prosecutor, instead, agreed either not to play that portion of the videotape to the jury or to permit appellant to testify that he had not, in fact, previously been arrested, this case would not have to be retried.

The type of gamesmanship in which the prosecutor engaged is antithetical to his duty as an officer of the court. It is, in addition, antithetical to his responsibility as a prosecutor. In our system of justice, procuring convictions is not the principal responsibility of prosecuting attorneys; rather, their principal responsibility is to ensure that justice is done, regardless of the outcome in any particular case. See, e.g., Newton v. State, 178 So.2d 341, 344 (Fla. 2d DCA 1965). In this sense, prosecuting attorneys are the holders of a great public trust. They are charged with defending and preserving the constitutions of this state and of the United States, including that portion of each which affords to one accused of a crime the right to due process of law — that the game is played according to the rules, so to speak. Unfortunately, because the prosecutor here lost sight of these principles, we are constrained to reverse appellant’s conviction, and to remand the case for a new trial.

       Due to the heightened use of videotaping by law enforcement during traffic stops and the State's reliance on such footage as evidence for prosecutions, the State should be diligent in its efforts to carefully screen tapes prior to trial to avoid causing evidentiary issues similar to the one in the instant case.


text:
    SANDVIK, INC. & Sentry Claims Service, Appellants, v. Joseph DECOURSEY, Appellee.
    No. 1D09-4896.
    District Court of Appeal of Florida, First District.
    March 31, 2010.

      Anna M. Jemjemian of Pallo, Marks, Hernandez, Gechijian & DeMan, P.A., Daytona Beach, for Appellants.
    Sharon H. Proctor, Lake Saint Louis, MO, and Lance F. Avera of Avera & Smith, LLP, Gainesville, for Appellee.
   PER CURIAM.

In this worker’s compensation appeal, the Employer/Carrier (“E/C”) challenges an order of the Judge of Compensation Claims (“JCC”) awarding the Claimant temporary partial disability (“TPD”) benefits, granting the Claimant’s request for attorney’s fees and costs, and denying the E/C’s claim for costs. We affirm the award of TPD benefits without further discussion. For the reasons briefly set forth below, we also find no abuse of dis-ci-etion by the JCC in denying the E/C’s claim for costs. See Hillsborough County Sheriff’s Ofc. v. Hilsman, 23 So.3d 743, 745 (Fla. 1st DCA 2009) (JCC’s decision to deny costs generally reviewed for abuse of discretion).

The Claimant in this case sought TPD benefits from December 17, 2008, through April 4, 2009. The JCC granted the claim for all but five days of that period — December 17, 2008, through December 22, 2008 — because the evidence showed the Claimant voluntarily reduced his income during that time. The E/C argues that because it prevailed on its affirmative defense as to those five days, it is entitled to an award of costs under section 440.34(3), Florida Statutes. We disagree.

Pursuant to the parties’ pretrial stipulation, the only issue before the JCC was the Claimant’s entitlement to TPD benefits. The E/C’s affirmative defenses were that during the entire three-and-a-half month period at issue, the Claimant voluntarily limited his income by refusing light duty employment within his physical restrictions and failed to look for any other employment. At trial, the E/C had the burden of proving its affirmative defenses. See, e.g., Myers v. Hillsborough County Sch. Bd., 911 So.2d 851, 852 (Fla. 1st DCA 2005). Except for proving the Claimant voluntarily limited his income for the five-day period from December 17, 2008, through December 22, 2008, the E/C failed to meet its burden. Indeed, the E/C wholly failed to prove that the Claimant did not seek appropriate employment during the claimed period. Under these circumstances, we cannot say the JCC abused her discretion in denying the E/C’s claim for prevailing party costs under section 440.34, Florida Statutes.

AFFIRMED.

WOLF, LEWIS, and MARSTILLER, JJ., concur.


text:
    Alphonso EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3805.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2010.
    Alphonso Edwards, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Alphonso Edwards appeals the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) regarding Sumter County Circuit Court case number 94-220. A recitation of the tortured procedural history of this matter, and its entanglement with Edwards’s other convictions in Sumter County Circuit Court case number 96-309, would serve no useful purpose except to confuse the reader, as it has confused us. Suffice it to say that Edwards contends it was error to classify him as an habitual offender for his conviction of possession of cocaine (count II) in case number 94-220. Edwards’s convictions occurred prior to the enactment of the Criminal Appeal Reform Act of 1996 and the revisions to rule 3.800.

Edwards is correct that an offender cannot be classified as an habitual offender for the offense of possession of a controlled substance. See § 775.084(l)(a)(3), Fla. Stat. (1996). The court labeled this issue as successive, but it is not clear that Edwards has previously litigated this precise issue in case number 94-220. Accordingly, we remand this matter to the trial court to either attach portions of the record refuting Edwards’s claim or strike the habitual offender classification as to the possession charge. We find no merit in Edwards’s other claim of error.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN, ORFINGER and COHEN, JJ., concur.


text:
    William THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-4390.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2010.
    William Thomas, Chipley, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

William Thomas seeks a belated appeal of his judgment and sentence entered in Marion County case number 2007-CF-004798-A-W. Thomas asserts that he timely requested his trial counsel to file an appeal and his trial counsel failed to do so. Thomas’ counsel recalls that Thomas did not request an appeal. Since there were disputed facts, this Court appointed a Commissioner to make findings and a recommendation regarding Thomas’ entitlement to a belated appeal.

The Commissioner recommends that this Court deny the petition for writ of habeas corpus belated appeal because Thomas did not make a timely request to his counsel to take a direct appeal and at no time did trial counsel agree to initiate an appeal.

PETITION DENIED.

MONACO, C.J., PALMER and COHEN, JJ., concur.


text:
    Douglas FERNANDEZ, Appellant, v. Angie CRESPO f/k/a Angie Fernandez, Appellee.
    No. 3D09-2924.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Douglas Fernandez, in proper person.
    Alfaro & Fernandez and Elbert Alfaro, for appellee.
    Before COPE, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed.

COPE, J.

(concurring).

The appellant argues that the trial court’s order regarding visitation was based on a misunderstanding of the facts. That may be so, but the transcript of the hearing indicates that the appellant did not clearly make this point at the hearing below. For that reason, I join in affirming the trial court’s order.


author: SUAREZ, J.

text:
    K.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-926.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

K.C., a juvenile, appeals from the trial court’s denial of his motion to suppress. We affirm.

K.C. was arrested on suspicion of loitering and prowling, and was later charged by delinquency petition with burglary of an unoccupied dwelling and grand theft. A post-Miranda search of KC.’s backpack revealed items stolen from a house earlier that morning. On motion to suppress, the defense argued that there was no probable cause to arrest K.C. for loitering or prowling. At the hearing on the motion to suppress, the arresting officer testified that because K.C. was found jumping a fence and running from a backyard that was not his, in a high crime area that was currently under intense police scrutiny, K.C.’s flight was suspicious enough to warrant stopping him. The officer testified that he also stopped K.C. because he appeared to be a juvenile and should have been in school at that time of day. See, e.g. § 984.13(l)(b), Fla. Stat. (2008); L.R.D. v. State, 876 So.2d 598 (Fla. 5th DCA 2004).

The trial court denied KC.’s motion to suppress. K.C. pleaded nolo and he received a withhold of adjudication on the second degree felony charge of burglary unoccupied, and was put on one year probation, with a curfew and community service, among other requirements. He appeals from the denial of his motion to suppress.

At the motion to suppress, the state relied heavily on Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), in which the Supreme Court held that unprovoked flight in a high-crime area constitutes grounds for a “reasonable, articulable suspicion that criminal activity is afoot,” for purposes of a Terry stop. Flight, in itself, is insufficient to support a reasonable suspicion of criminal activity. S.G.K. v. State, 657 So.2d 1246, 1247 (Fla. 1st DCA 1995). Flight, however, is merely one factor of many that contributes to an officer’s reasonable suspicion of criminal activity. See Parker v. State, 18 So.3d 555 (Fla. 1st DCA 2008) (citations omitted). To determine whether an officer had a reasonable suspicion of criminal activity, the court must consider the totality of the circumstances. State v. Outler, 20 So.3d 421 (Fla. 3d DCA 2009).

The evidence shows that K.C. was observed jumping over a fence from a backyard that was not his, and the townhouse later turned out to be the one that had been burglarized earlier. The record also shows that the purpose of the saturation patrol in the neighborhood was in response to the number of house burglaries recently reported. Furthermore, the neighborhood security guard had reported to the responding police that juveniles were seen loitering and looking into backyards. See Parker v. State, 18 So.3d at 558 (holding that there must be additional factors which, when combined with flight, give rise to a reasonable suspicion that criminal activity is afoot). We find that the totality of these circumstances gave the officer reasonable suspicion to stop K.C. We affirm the trial court’s denial of K.C.’s motion to suppress.

Affirmed.


text:
    Robert JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-823.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the judgment and sentence entered upon the revocation of probation because of the second-degree murder conviction we have affirmed in Case No. 3D08-826. The order of revocation, however, is amended by deletion of the mistaken reference to a violation of condition 3a and the correction of the substantive law violation to reflect the offense of second degree murder with a deadly weapon.

Affirmed as amended.


text:
    Robert JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-826.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Finding no error, we affirm the conviction and sentence for second-degree murder.

Affirmed.


text:
    G.O., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and Guardian Ad Litem Program, Appellees.
    No. 4D09-4683.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2010.
    James Williams, West Palm Beach, for appellant.
    Jeffrey D. Gillen, West Palm Beach, for appellee, Department of Children and Families.
    Hillary Kambour, Tavares, for appellee, Guardian Ad Litem Program.
   PER CURIAM.

The Department of Children and Families’ Children’s Legal Services has fried a voluntary dismissal of its cross-appeal and a concession of error on the direct appeal. The guardian ad litem has indicated it will not file a brief based upon the concession of error. We therefore reverse the order on appeal and remand the case to the trial court for further proceedings.

Reversed and remanded.

HAZOURI, MAY and GERBER, JJ„ concur.


text:
    CDR CRÉANCES, S.A., Appellant, v. MACSON EXPRESS, S.A., et al., Appellees.
    No. 3D09-164.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Lydecker, Lee, Berga & DeZayas and Carlos L. DeZayas, for appellant.
    Petros & Elegant, and William L. Pet-ros, Justin B. Elegant and Serena A. Witter, Coral Gables, for appellees.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Morton v. Ansin, 129 So.2d 177, 182 (Fla. 3d DCA 1961).


text:
    Russell TRENT, Appellant, v. CHARLOTTE SANITATION and CNA Claims Plus, Appellees.
    No. 1D09-5110.
    District Court of Appeal of Florida, First District.
    April 7, 2010.
    Bill B. Berke, Cape Coral, and Bill McCabe, Longwood, for Appellant.
    Michael E. McCabe of Miller, Kagan, Rodriguez & Silver, P.L., North Fort Myers, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant raises four points alleging error. We affirm the first three points without further comment; however, we reverse the fourth point, concerning the judge of compensation (JCC’s) award of costs to the employer/carrier (E/C).

Following a final hearing on Claimant’s petitions for benefits, the JCC ruled in favor of the E/C on all issues, and awarded the E/C costs payable by Claimant pursuant to section 440.34(3), Florida Statutes. On appeal, the E/C properly concedes the award of prevailing party costs was error because Claimant’s date of accident predates the October 1, 2003, version of section 440.34(3), which permits such an award. See Kaloustian v. Tampa Armature Works, Inc., 5 So.3d 753 (Fla. 1st DCA 2009) (holding the JCC reversibly erred in applying the post October 1, 2003, version of section 440.34(3) to a claim with a pre-October 1, 2003, date of accident). Consequently, that portion of the JCC’s order awarding the E/C prevailing party is reversed. In all other respects, the JCC’s order is affirmed.

AFFIRMED in part and REVERSED in part.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    Michael D. KEITH, Appellant, v. FLORIDA DEPARTMENT OF REVENUE o/b/o Yolanda D. HARVEY, Appellee.
    No. 1D09-4329.
    District Court of Appeal of Florida, First District.
    April 7, 2010.
    Michael D. Keith, pro se, Appellant.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Michael D. Keith appeals an order of the Florida Department of Revenue, Child Support Enforcement Program, which directs Mr. Keith’s employer to deduct certain amounts from his earnings to pay child support. Counsel for appellee has filed a concession of error, admitting that there was an error in the calculation of the child support guidelines and therefore the final order of administrative support is not supported by competent substantial evidence.

In light of this concession, we quash the order on appeal and remand to the agency for further proceedings, if warranted, and entry of an amended order.

REVERSED.

BENTON, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Jeffery CLAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6153.
    District Court of Appeal of Florida, First District.
    April 7, 2010.
    Nancy A. Daniels, Public Defender and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

AFFIRMED. Thompson v. State, 731 So.2d 819 (Fla. 5th DCA 1999), rev. denied, 773 So.2d 58 (Fla.2000) (table); see also State v. McCormick, 719 So.2d 1220, 1222 (Fla. 5th DCA 1998) (distinguishing State v. Mozo, 655 So.2d 1115 (Fla.1995), and holding that “the ‘interception’ of a cellular call occurs both at the location of the tapped telephone and at the site where law enforcement authorities hear and record the call”), rev. denied mb nom, Mitchell v. State, 732 So.2d 327 (Fla.1999) (table).

HAWKES, C.J., WETHERELL and ROWE, JJ., concur.


text:
    Barbara BATIE, Appellant, v. Billy Franklin BATIE, Sr., dba Batie Tree Service and Goodman Construction Company, Appellees.
    No. 1D09-2878.
    District Court of Appeal of Florida, First District.
    April 7, 2010.
    Jana Ranieri Cortina, Gainesville, for Appellant.
    Robert E. O’Quinn, Jr., of Cole, Scott & Kissane, P.A., Jacksonville, and Scott A. Cole and Alejandro Perez of Cole, Scott & Kissane, P.A., Miami, for Appellee Billy Franklin Batie, Sr. d/b/a Batie Tree Service.
   PER CURIAM.

Appellant, Barbara Batie, appeals a final judgment, arguing that the trial court erred in entering summary judgment in favor of Appellee, Billy Franklin Batie, Sr. d/b/a Batie Ti-ee Service, on the basis that Appellant was estopped from bringing the lawsuit at issue. We agree that the trial court erred because Appellant’s position in her first lawsuit against Appellee Batie, while inconsistent with the position taken in her current lawsuit, was not successfully maintained. See Grauer v. Occidental Life Ins. Co. of Cal., 363 So.2d 583, 585 (Fla. 1st DCA 1978) (explaining that in order for a party to be equitably estopped from maintaining a position inconsistent with a prior position, the prior position must have been successfully maintained). Cf. Denmark v. Michael, 737 So.2d 595, 595-96 (Fla. 1st DCA 1999) (affirming the final summary judgment on estoppel grounds because the appellant successfully maintained the position that title to the property at issue was held by the appellee in the prior litigation); Lambert v. Nationwide Mut. Fire Ins. Co., 456 So.2d 517, 519-20 (Fla. 1st DCA 1984) (holding that the appellant was precluded from taking a position that was inconsistent from one he had previously taken because he successfully secured payment as a result of his allegations in the first case).

Accordingly, the final judgment is REVERSED and the case is REMANDED for further proceedings.

KAHN, DAVIS, and THOMAS, JJ., concur.


author: KAHN, J.

text:
    Stephen P. SKINNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2359.
    District Court of Appeal of Florida, First District.
    April 7, 2010.

      David M. Robbins and Susan Z. Cohen, of Epstein & Robbins, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General; and Thomas D. Winokur and Ian M. Cotner, Assistant Attorneys General, Tallahassee, for Respondent.
   KAHN, J.

The petitioner, Stephen P. Skinner, seeks a writ of certiorari to review a decision of the circuit court, sitting in its appellate capacity. The circuit court affirmed petitioner’s county court judgment of guilt for driving under the influence (DUI). Because the circuit court departed from the essential requirements of law, we grant the writ and quash the circuit court’s decision.

FACTUAL & PROCEDURAL BACKGROUND

In the county court, petitioner moved to suppress critical evidence on the grounds the initial detention and arrest were unlawful, so that any evidence obtained during and after the detention and arrest— including any testimony that petitioner had operated a motor vehicle involved in the two-vehicle crash under investigation— should be suppressed. See Curry v. State, 576 So.2d 890, 892 (Fla. 2d DCA 1991) (stating that evidence inextricably related, to an illegal detention must be suppressed), aff'd, 621 So.2d 410 (Fla.1993). At the suppression hearing, Trooper James Brooker testified he had answered a dispatch reporting a traffic collision. By the time Brooker got to the crash site, one victim from the other vehicle was already on the way to the hospital. Brooker observed two remaining “civilians,” the petitioner and another man, Charles. Both men were standing outside one of the vehicles, leaning against the passenger side. Brooker did not see either man inside a vehicle. The hearing transcript does not disclose the presence of any other non-law enforcement persons at the scene while Brooker was on-site.

In response to a series of questions from the prosecutor, Brooker testified “Mr. Skinner’s vehicle,” a four-wheel-drive pickup truck, made a left turn on a green light. Defense counsel objected to this line of questions because the State had not laid a predicate indicating the source of the information. The trial judge “clarified” the State’s intended question as “What did you observe when you arrived at the scene?” and sustained the objection. After additional questioning of Brooker by the State, defense counsel objected on the ground the witness’ characterization of the truck as petitioner’s vehicle was based solely on privileged information.

When asked what he had observed when he first contacted “the victim”. — whom, from the context of the questioning, we take as the petitioner — Brooker testified petitioner was leaning against the vehicle, with a strong odor of alcohol on his breath, bloodshot eyes, and slurred speech. Brooker conducted a traffic crash investigation and had petitioner remain at the scene. Petitioner averted direct eye contact and looked down while the trooper questioned him. Brooker had to ask several times what happened before petitioner responded. On the basis of his observations and investigation, Brooker arrested petitioner for DUI with damage to a person or property and took him to the county jail for testing.

The State asked whether Trooper Brooker had interviewed Charles, and Brooker answered affirmatively. When the prosecutor asked whether Brooker had identified petitioner as the driver, defense counsel immediately objected based on the lack of foundation regarding the source of this information during the investigation. After extensive argument of counsel, the county court sustained the objection based on the “accident or crash report” privilege in section 316.066(7), Florida Statutes (2007), and instructed the prosecutor to proceed to the next question. The State not only failed to challenge this ruling; it never proffered on the record what testimony, if any, the trooper would have given on this critical issue.

At the close of evidence, defense counsel relied on the accident report privilege to argue that, absent any admissible evidence that petitioner was the driver, Brooker lacked a legal basis to detain and arrest him for DUI. The prosecutor suggested petitioner’s proximity to the vehicle and indicators of impairment constituted circumstantial evidence he “was involved in the accident.” Concluding from the record that no competent substantial evidence demonstrated petitioner was driving or in actual physical control of the vehicle, the county court granted the motion to suppress. As shown below this order should have ended the matter, but did not.

The State moved for rehearing alleging the prosecution had presented evidence the trooper interviewed “the Defendant’s passenger,” who purportedly witnessed the accident and “identified the Defendant as the driver of the vehicle.” At a hearing several weeks later, the prosecutor mistakenly recalled and stated that in the earlier proceeding, the unobjectionable testimony of Brooker established he had interviewed Charles — the purported passenger and the only other eyewitness who remained at the crash site — whose “statement” identified petitioner as the driver. The attorneys agreed the State had not subpoenaed or called Charles to testify at the suppression hearing. At a subsequent hearing, one of the prosecutors said “I’m going on the assumption that the officer said this witness told me the defendant was driving, because I do not have a transcript.” The county court announced it would consider the trooper’s testimony “as to the statement of identification of the defendant, Mr. Skinner,” as the driver as coming from a declarant whose privilege against self-incrimination was not violated. Accepting the State’s recollection that Charles had made such a statement, and rejecting defense counsel’s consistent argument that no competent substantial evidence showed who was the driver, the judge granted rehearing, reversed his prior ruling, and denied the motion to suppress. Skinner entered a plea of no contest to the DUI charge, specifically reserving his right to appeal the dispositive suppression issue.

In the circuit court appeal, petitioner argued that no evidence in the record established either probable cause or even a reasonable suspicion petitioner was the driver or was in actual physical control of a vehicle involved in the accident. In its answer brief, the State pointed to Brook-er’s testimony, once again relying upon Charles’ alleged statements, and also on the trooper’s observation of the petitioner and Charles leaning against the pickup truck.

The circuit court affirmed the county court’s ultimate ruling. In support of af-firmance, the circuit court relied on Brook-er’s recall of petitioner (and Charles) standing beside one of the vehicles, and the purported statement of “a person involved in the crash” that petitioner was the driver. Petitioner now invokes our discretionary certiorari jurisdiction pursuant to article Y, section 4(b)(3) of the Florida Constitution; and rules 9.030(b)(2)(B) and 9.100(a), Florida Rules of Appellate Procedure, to challenge the circuit court’s final appellate order. See Wood v. State, 775 So.2d 999, 1000 (Fla. 1st DCA 2000).

ANALYSIS

On certiorari review of the circuit court’s appellate order, we determine only whether the circuit court afforded procedural due process and applied the correct law. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995); Dep’t of Highway Safety & Motor Vehicles v. Trimble, 821 So.2d 1084, 1086 (Fla. 1st DCA 2002). Stated otherwise, the standard of review is whether the circuit court departed from the essential requirements of law — that is, violated a clearly established principle of law resulting in a miscarriage of justice. See Heggs, 658 So.2d at 529; Combs v. State, 436 So.2d 93, 96 (Fla.1983). We look for “something more than a simple legal error;” the Florida Supreme Court has described our task as examining “the seriousness of the error” and using our discretion sparingly, according to the standards set out in Combs and Heggs. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000).

Before detaining someone during a DUI investigation, an investigator such as Trooper Brooker must have a reasonable suspicion the detainee — here, Mr. Skinner — committed the offense. See § 901.151(2), Fla. Stat. (2007); State v. Taylor, 648 So.2d 701, 703 (Fla.1995). An arrest for DUI must be supported by probable cause. See § 901.151(4); Popple v. State, 626 So.2d 185, 186 (Fla.1993). Here, defense counsel cited the accident report privilege to argue the prosecution had not presented any admissible evidence to prove petitioner drove a vehicle involved in the crash. When the county court asked the State at the initial hearing what specific evidence it had presented (other than petitioner’s privileged statements) to establish he was a driver, the prosecutor relied on 1) Brooker’s testimony that he had observed petitioner and Charles standing outside leaning against the side of the vehicle and that petitioner smelled of alcohol and demonstrated other indicators of impairment, and 2) the State’s “belief’ the vehicle belonged to the petitioner. Argument of counsel does not constitute competent substantial evidence. See McLeod v. McLeod, 989 So.2d 1255, 1256 (Fla. 1st DCA 2008). Given the State’s bare-bones response, the county court granted the amended motion to suppress because the State had presented no evidence to prove that petitioner had been the driver. The record supports this ruling.

On rehearing, the prosecutor correctly stated the trooper testified he interviewed Charles. The prosecutor also claimed, however, that Brooker testified the passenger had identified Skinner as the driver. The written transcript reveals that after the State established Brooker had interviewed Charles, the prosecutor indeed asked Brooker whether he had identified petitioner as the driver. Defense counsel immediately objected based on the lack of a foundation regarding the source of that information. Ultimately, the court sustained the objection and instructed the prosecutor to move on. Brooker never answered the question whether Charles had identified petitioner as the driver. After argument on rehearing, the county court concluded it could allow a “civilian witness” like Charles to testify whether petitioner was driving. That ruling, however, meant nothing if Charles’ purported statement to Brooker never came in as evidence. Despite Charles’ failure to provide such information, the court reversed its ruling and denied the motion to suppress.

No competent substantial evidence proved petitioner was the driver. Accordingly, the county court initially ruled correctly by granting the motion. Given the lack of any additional evidence after that ruling, the county court erred in ultimately denying the motion to suppress. The record conclusively demonstrates that in reversing its ruling on the amended motion to suppress, the county court relied on the mistaken belief Brooker had presented admissible testimony to show that Charles identified the petitioner as the driver. This misapprehension of the evidence persisted in the appeal to the circuit court. “Rulings based on purely factual questions are clothed with a presumption of correctness, but must be supported by substantial competent evidence.” State v. Garcia, 866 So.2d 124, 126 (Fla. 4th DCA 2004). Because the county court received no admissible evidence petitioner was the driver, it erred in denying the motion to suppress. See N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 1003 (Fla. 1st DCA 2003); Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999). Upon appellate review, the circuit court failed to comply with the venerable legal requirement that competent substantial evidence support each of the trial court’s findings of fact — here, the finding petitioner was the driver — and thus departed from the essential requirements of law by affirming the judgment against petitioner. See Weiss v. State, 965 So.2d 842, 843 (Fla. 4th DCA 2007) (stating the standard of review of the circuit court sitting in its appellate capacity is whether competent substantial evidence supports the county court’s ruling); Sunby v. State, 845 So.2d 1006 (Fla. 5th DCA 2003). We GRANT the petition, QUASH the decision of the circuit court, and direct that petitioner be discharged.

BENTON and ROBERTS, JJ., concur.


text:
    Sidney LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2376.
    District Court of Appeal of Florida, First District.
    April 7, 2010.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Sidney Lewis (“Appellant”) appeals his conviction and sentence for felony battery. He argues the trial court failed to conduct an adequate inquiry to determine whether his waiver of court-appointed counsel was knowing, voluntary, and intelligent, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He also argues the court erred when it failed to renew the offer of counsel prior to sentencing. We find the trial court satisfied Faretta and therefore did not abuse its discretion by permitting Appellant to represent himself at trial. See Aguirre-Jarquin v. State, 9 So.3d 593, 602 (Fla.2009). However, Florida Rule of Criminal Procedure 3.111(d)(5) required the court to inquire further or renew the offer of counsel at the sentencing phase. Failure to do so constitutes reversible error. Travis v. State, 969 So.2d 532, 533 (Fla. 1st DCA 2007).

Accordingly, we AFFIRM the conviction, VACATE the sentence, and REMAND for resentencing.

DAVIS, BENTON, and MARSTILLER, JJ., concur.


text:
    D.M., Mother of K.P., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D09-3608.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2010.
    Nickole E. Frederick, Orlando, for Appellant.
    Karla Perkins, of DCF, Miami, for Ap-pellee.
   PER CURIAM.

D.M. [“Mother”] appeals a final order terminating her parental rights to K.P. Mother asserts that the trial court failed to comply with section 39.803, Florida Statutes (2009), and the Department of Children and Families [“DCF”] failed to offer competent proof to support the trial court’s findings. DCF offered testimony of a case worker that the mother never identified the father and that DCF had made a request to determine whether anyone had registered with the Putative Father Registry, but no response or certificate had yet been received. This may have been considered a formality under the circumstances of the case and it may turn out to be a formality, but it is a formality that must be observed. Otherwise, there is a risk of unnecessary judicial labor and delay in permanent placement of the child. Cf. In the Interest of E.D., 884 So.2d 291 (Fla. 2d DCA 2004).

REVERSED and REMANDED.

GRIFFIN, PALMER and JACOBUS, JJ., concur.


text:
    Andrew STRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2193.
    District Court of Appeal of Florida, Second District.
    April 9, 2010.
   PER CURIAM.

We affirm the order denying return of the property. We note, however, that the legal proceeding that justified delay of the return of this property is now concluded. Thus, our affirmance is without prejudice to Mr. Stringer’s right now to seek return of the $884 that was seized from him during an arrest that resulted in a violation of probation, but did not result in any new conviction. The transcript of the hearing on the violation of probation contains evidence that $300 was wired to Mr. Stringer by his girlfriend prior to this arrest and that this money was intended to be used for a specific lawful purpose.

Affirmed.

ALTENBERND, WHATLEY, and SILBERMAN, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Junior RAYMOND, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5400.
    District Court of Appeal of Florida, Second District.
    April 9, 2010.

      Junior Raymond, pro se.
   ALTENBERND, Judge.

Junior Raymond appeals the denial of his petition for writ of mandamus. He petitioned the trial court, asking it to compel his former attorney, the Office of Criminal Conflict and Civil Regional Counsel, to respond to his request for copies of his criminal records and to provide documents in accordance with our opinion in Potts v. State, 869 So.2d 1223 (Fla. 2d DCA 2004). The trial court denied the petition without obtaining any response from the regional counsel. We reverse the order and remand for further proceedings in which the court shall obtain a response from Mr. Raymond’s former attorney.

Mr. Raymond is serving a sentence of two years, eleven months, and fifteen days in prison for an aggravated battery that occurred in 2008. He was sentenced in April 2009 and did not appeal his judgment and sentence. Thus, given the limited record in this appeal, this court has virtually no information about the case in the trial court.

Mr. Raymond’s petition for mandamus attaches a copy of the letter he sent to his former attorney. The letter asks for a wide array of material. It is likely that the former attorney does not have copies of some of the material requested and that some of the requested items do not exist. It is also likely that Mr. Raymond is not entitled to some of the information unless he arranges to reimburse his former attorney for the cost of these documents. Mr. Raymond’s letter expressly asks that he receive “tangible papers obtained from or belonging to defendant.” The petition alleges that his former attorney did not respond in any manner to his letter.

The trial court denied the petition for mandamus without obtaining any response from Mr. Raymond’s former attorney. Although the order adequately explains the law concerning such production of documents to Mr. Raymond, the trial court essentially concluded that it could determine that the petition was without merit from a review of the court file. We are not convinced that this can be done in this case for two reasons.

First, because Mr. Raymond asked his former attorney to return the papers belonging to him, there is no way for the trial court to know whether counsel has such papers from a review of the court file. We do not conclude that the law requires Mr. Raymond to identify those documents with specificity in his petition for writ of mandamus. This is especially true in the context of an attorney who did not respond to the former client’s request in any manner.

Second, Mr. Raymond’s letter asked for these documents pursuant to the holding in Potts. In Potts, we explained:

“Mandamus is the appropriate remedy since it is used to compel an official to perform lawful duties. A court-appointed lawyer is an ‘official.’ ” Pearce v. Sheffey, 647 So.2d 333, 333 (Fla. 2d DCA 1994). Thus, Potts is entitled to relief regarding his personal property and transcripts prepared on his behalf at public expense. Apart from such items, Hileman cannot be required to provide other documents that are in the case file to Potts without adequate compensation. See Thompson [v. Unterberger], 577 So.2d [684] at 686 [(Fla. 2d DCA 1991)]; see also Sanford v. Black, 782 So.2d 548, 549 n. 2 (Fla. 5th DCA 2001) (noting that the client must compensate his specially-appointed public defender for a copy of a lab report that was the attorney’s work product).

Potts, 869 So.2d at 1225.

Although Mr. Raymond may not have the financial wherewithal to purchase copies of the documents in the possession of his former attorney, there is no way for him to obtain these records unless the court-appointed attorney responds to the correspondence, informing him of the documents available and the cost of reproducing them. In this context, when the defendant files a petition for mandamus, the trial court should order a response from the attorney to determine what, if anything, must be provided to the defendant and likewise to determine what is available if the defendant wishes to purchase a copy.

Accordingly, we reverse and remand for further proceedings.

VILLANTI and WALLACE, JJ., Concur.

      . Although this proceeding is technically a direct appeal, we have used the procedures applicable for review of orders summarily denying postconviction motions because these procedures provide more timely and efficient review of this type of mandamus proceeding.


author: CRENSHAW, Judge.

text:
    Michael Shane FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-95.
    District Court of Appeal of Florida, Second District.
    April 9, 2010.
    Michael Shane Franklin, pro se.
   CRENSHAW, Judge.

Michael Shane Franklin appeals the order striking without prejudice his motion to withdraw plea, filed pursuant to Florida Rule of Criminal Procedure 3.170(i). We reverse and remand for further proceedings because Franklin’s motion should have been treated as a motion for postcon-viction relief under Florida Rule of Criminal Procedure 8.850.

Franklin was sentenced on May 23, 2008. He filed the instant motion, styled as a motion to withdraw plea, on October 15, 2009. The motion was untimely under rule 3.170(i), which requires filing within thirty days after sentencing. The court declined to treat the motion as if it had been filed under rule 3.850, finding that it did not contain an oath as required by that rule. However, not only did Franklin’s motion include a proper oath, it was filed within two years after sentencing, as required by rule 3.850, and raised claims that would be appropriate in a rule 3.850 motion. Because Franklin’s motion met the procedural requirements of rule 3.850, the court should have treated it as a motion for postconviction relief. See Houghtaling v. State, 670 So.2d 1019, 1019 (Fla. 2d DCA 1996). Accordingly, we reverse and re-mancl for the circuit court to treat Franklin’s motion as if it had been filed under rule 3.850.

Reversed and remanded for further proceedings.

ALTENBERND and KHOUZAM, JJ., Concur.