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German DE LOS RIOS, Appellant, v. STATE of Florida, Appellee. No. 4D08-3712

Wednesday, January 28th, 2009

District Court of Appeal of Florida, Fourth District.
German DE LOS RIOS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-3712.
Jan. 28, 2009.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael G. Kaplan & Michele Towbin Singer, Judges; L.T. Case Nos. 03-13787 CF10A & 03-16589 CF10A.
German De Los Rios, Immokalee, pro se.
No appearance for appellee.
PER CURIAM.
*1 German De Los Rios entered pleas (the record is not clear as to whether he pleaded guilty or no contest) in two 2003 prosecutions. In one, he pleaded to armed trafficking in cocaine and conspiracy to traffic in cocaine. In the other, he pleaded to armed burglary of a dwelling and attempted robbery. He was sentenced to two mandatory minimum terms in the two cases, to run concurrently, pursuant to section 775.087, Florida Statutes.
In this motion for post conviction relief, he argued that the mandatory minimum sentences were illegal because he did not actually possess a firearm during these offenses, and never stipulated that he did. Case law supports his challenge. See, e.g., Kenny v. State, 693 So.2d 1136 (Fla. 1st DCA 1997); Turpin v. State, 651 So.2d 176 (Fla. 1st DCA 1995). Since appellant’s claim is legally sufficient, we reverse and remand for further proceedings. If the trial court should summarily deny relief again, it shall attach portions of the record refuting appellant’s claim.
REVERSED and REMANDED for further proceedings consistent with this opinion.
HAZOURI, MAY and DAMOORGIAN, JJ., concur.

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Jeanson JACQUES, Appellant, v. STATE of Florida, Appellee. No. 4D08-3973

Wednesday, January 28th, 2009

District Court of Appeal of Florida, Fourth District.
Jeanson JACQUES, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-3973.
Jan. 28, 2009.
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Karen Miller, Judge; L.T. Case No.1999CF005097BXX.
Jeanson Jacques, Century, pro se.
No appearance required for appellee.
PER CURIAM.
*1 Jeanson Jacques appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. We affirm but for reasons other than those given in the state’s response which was adopted by the trial court as the basis for denial.
In 1999, Jacques, and a co-defendant, were charged with attempted first degree murder with a firearm. In May 2000, Jacques waived his right to jury trial and was convicted after a bench trial of the lesser offense of attempted second degree murder with a firearm. He was sentenced to fifteen years in prison with a three-year mandatory minimum term for possession of a firearm during the offense. § 775.087(2), Fla. Stat. (1997). In the instant motion Jacques argued that the three-year mandatory minimum term could not be imposed because the information charged both Jacques and the co-defendant with the offense and did not specifically allege that Jacques actually possessed a firearm. The trial court agreed with the state that this issue could not be raised in a rule 3.800(a) motion.
Contrary to the state’s argument, a claim that a mandatory minimum term could not be imposed can be raised in a rule 3.800(a) motion if the issue can be determined from the face of the record without the need for an evidentiary hearing. Fillmore v. State, 970 So.2d 452, 453 (Fla. 4th DCA 2007); Simms v. State, 949 So.2d 373, 375 (Fla. 4th DCA 2007).See also Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001) (finding that claim alleging an improper mandatory minimum sentence for possession of a firearm could be raised in rule 3.800(a) motion where the information charged that the co-defendant, not the movant, had possessed the firearm).
The claim in this case, however, is without merit, and we affirm. At the time of the bench trial in this case, the law provided that, even where the use of a firearm is uncontested, to impose the mandatory minimum, the jury must make a specific factual finding that defendant actually possessed a firearm. State v. Hargrove, 694 So.2d 729 (Fla.1997). In Galindez v. State, 955 So.2d 517 (Fla.2007), however, the Florida Supreme Court found that errors under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), can be harmless and that prior decisions suggesting otherwise, including Hargrove, had been superseded. Id. at 523 (noting that State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), was also superseded in this regard).
In this case, the evidence at the bench trial was that Jacques was the shooter and the co-defendant was the driver. The state did not proceed under a principal theory, and the victim identified Jacques, a person he had known before, as the person who shot him. At trial, no evidence was presented to suggest that Jacques was anyone other than the shooter. The trial court judge, as the finder of fact in this case, found Jacques guilty and imposed the mandatory minimum term for actual possession of a firearm.
*2 Because this was a bench trial, and the judge found Jacques guilty, the failure of the verdict to contain a more specific finding that Jacques actually possessed a firearm is harmless. Hargrove, like Apprendi and Overfelt, was based on the constitutional right to have a jury determine beyond a reasonable doubt facts used to enhance a sentence. By waiving the right to jury trial, and opting for a bench trial, Jacques waived the right to have the question of whether he actually possessed a firearm determined by a jury. See Jones v. Hulick, 449 F.3d 784, 791 (7th Cir.2006) (finding that Apprendi claim was without merit where defendant waived jury in opting for bench trial and judge found the facts necessary to support the sentence).See also Blakely v. Washington, 542 U.S. 296, 310 (2004) (explaining that a defendant can waive Apprendi rights and consent to judicial fact finding).
Although not expressly stated in the judge’s verdict, the judge found that the state had proven beyond a reasonable doubt that Jacques possessed a firearm and shot the victim. The judge’s failure to make an express finding can be harmless under Galindez, and such being the case, Jacques does not establish that he received an “illegal sentence,” i.e., “a kind of punishment that no judge under the entire body of sentencing statutes can possibly inflict under any set of factual circumstances .”  Carter v. State, 786 So.2d 1173, 1178 (Fla.2001).
WARNER, FARMER and HAZOURI, JJ., concur.

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Anthony Jerome CROMARTIE, Appellant, v. STATE of Florida, Appellee. No. 1D07-5944

Monday, January 26th, 2009

District Court of Appeal of Florida, First District.
Anthony Jerome CROMARTIE, Appellant,
v.
STATE of Florida, Appellee.
No. 1D07-5944.
Jan. 26, 2009.
An appeal from the Circuit Court for Escambia County. W. Joel Boles, Judge.
Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
BENTON, J.
*1 Anthony Jerome Cromartie appeals his manslaughter conviction and resulting 15-year sentence as a prison releasee reoffender, assigning as grounds for reversal the trial court’s exclusion of evidence of the victim’s blood-alcohol level at the time the appellant hit him and the victim fell, which led, some days later, to the victim’s death. Mr. Cromartie argues on appeal, as he did below, that the excluded evidence was relevant to his theory of self-defense.FN1We agree that the evidence was relevant to his theory of self-defense, reverse for that reason, and remand for a new trial.
FN1. Mr. Cromartie argues alternatively that the blood-alcohol evidence was relevant to show that inebriation might have explained an unrelated fall that resulted in Mr. McGruder’s death. But there was no evidence at trial that the victim fell, except immediately after the appellant hit him.
The State moved in limine to exclude any evidence of the victim’s blood-alcohol level at the time of the affray.FN2Defense counsel argued evidence of the victim’s blood-alcohol level was relevant because the victim’s behavior, as related by Mr. Cromartie, was consistent with someone who had been drinking: “He had too much to drink and decided to harass [Mr. Cromartie] and he wouldn’t take no for an answer, [so] he pulled [Mr. Cromartie] and turned him around as if to hit him.”Over objection, the judge granted the motion in limine, however, reasoning: “I have not really heard anything from anybody … that he was acting in any particular way as if he were under the influence of alcohol….”
FN2. Defense counsel sought to introduce medical records which, according to defense counsel, documented the victim’s blood-alcohol level of .19 (grams of alcohol per 100 milliliters of blood) at the time he was admitted to the hospital. The state agreed the issue was preserved for appeal.
Mr. Cromartie and Carvin McGruder were involved in a physical altercation on the evening of December 30, 2005, outside of Ray’s Soul City in Pensacola. Jennifer Butler testified the victim fell to the pavement after the appellant hit him. According to Ms. Butler, a passenger in Mr. McGruder’s car, Mr. Cromartie stood outside the car quarreling with Mr. McGruder, who was in the driver’s seat, until Mr. McGruder stepped out of the car, shortly after which Mr. Cromartie punched him one time.
Deputy Hendershott testified that Mr. Cromartie reported the victim had placed two hands on him, attempting to spin him around the better to confront him, before he landed the blow. When Deputy Hendershott questioned Mr. Cromartie about the incident, he told him that “while he was at Ray’s Soul City establishment Mr. McGruder … [was] jerking or teasing for lack of a better term over his clothing attire” and that, once outside, Mr. McGruder “grabbed in a violent manner at which time he basically defended himself by taking his left hand and striking Mr. McGruder in the jaw area.”
Also in the State’s case, Dr. Andrea Minyard testified the autopsy she performed revealed a subdural hematoma on the right side of the victim’s brain. She testified that “[i]t would have to be a very strong, forceful punch” for a fist to cause the hematoma, and she said such a blow was an unlikely cause of the hematoma. Typically, Dr. Minyard testified, a single punch is not enough to cause death. She opined the most likely scenario was that the victim lost consciousness and fell to the pavement, sustaining the fatal injury when his head struck the pavement.
In the defense case, Mr. Cromartie admitted the single blow to which the State’s witness had testified. According to Mr. Cromartie, when he stepped outside the club that night, the victim was “grabbing” him and “snatching on [him] in a violent way.”He said he asked Mr. McGruder some three times to stop. Mr. Cromartie testified that “when I kept asking him, he went to throw me down and that’s when I hit him.”
*2 After this testimony, defense counsel asked the trial judge to reconsider his ruling excluding evidence of the victim’s blood-alcohol level, but the learned trial judge adhered to his prior ruling. This was error. “As a general rule, a trial court’s ruling on the admissibility of evidence will not be reversed, absent an abuse of discretion. However, a court’s discretion is limited by the evidence code and applicable case law. A court’s erroneous interpretation of these authorities is subject to de novo review .”McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006) (citations omitted).
“All relevant evidence is admissible, except as provided by law.Ӥ 90.402, Fla. Stat. (2005). “Relevant evidence is evidence tending to prove or disprove a material fact.Ӥ 90.401, Fla. Stat. (2005). “When a defendant has competent evidence to support his theory of defense, the trial court denies the defendant his due process rights guaranteed by the constitution when he is prohibited from presenting that defense to the jury.”Sluyter v. State, 941 So.2d 1178, 1181 (Fla. 2d DCA 2006) (citing Washington v. State, 737 So.2d 1208, 1221 (Fla. 1st DCA 1999)). The trial court abused its discretion by failing to reverse its earlier ruling in light of Mr. Cromartie’s testimony about Mr. McGruder’s aggression, which the jury might well have concluded did indicate the victim was “acting in a[ ] particular way as if he were under the influence of alcohol….”
Mr. Cromartie’s theory of defense was that Mr. McGruder was acting in an aggressive, threatening manner, under the influence of alcohol, and that he was only defending himself when he punched the victim a single time. Self-defense is a statutorily recognized theory of defense:
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony[.]
§ 776.012, Fla. Stat. (2005). The jury was properly instructed on the appellant’s theory of self-defense, but the jury was deprived of evidence that it might have found made the appellant’s version of events credible, even in the absence of corroborating witnesses.
Appellant was entitled to present evidence tending to prove that he acted in self-defense against a drunken aggressor. Sluyter, 941 So.2d at 1181 (citing Washington, 737 So.2d at 1221). Inebriation, the jury could reasonably have concluded, might have led to aggressiveness of the kind Mr. Cromartie recounted. Particularly because Mr. Cromartie’s testimony-and his statement to Deputy Hendershott-were not corroborated by other witnesses, evidence of the victim’s intoxication could have been critical in bolstering his theory of defense.
*3 The trial court “denie[d] [Mr. Cromartie] his due process rights guaranteed by the constitution when … [it] prohibited [him] from presenting [possibly critical evidence in support of his] defense to the jury.”Id.“A party is entitled to present evidence upon the facts that are relevant to his theory of the case, so long as that theory has support in the law.”Zamora v. State, 361 So.2d 776, 779 (Fla. 3d DCA 1978) (citing Steiger v. Mass. Cas. Ins. Co., 273 So.2d 4 (Fla. 3d DCA 1973)). Evidence that the victim was intoxicated would tend to show that Mr. Cromartie reasonably believed he faced a threat of great bodily harm and so acted reasonably in defending himself which, by all accounts, entailed no more than striking Mr. McGruder once with his fist.
Reversed and remanded.
DAVIS and PADOVANO, JJ., Concur.

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Justin Mertis BARBER, Appellant, v. STATE of Florida, Appellee. No. 5D06-3529

Friday, January 23rd, 2009

District Court of Appeal of Florida, Fifth District.
Justin Mertis BARBER, Appellant,
v.
STATE of Florida, Appellee.
No. 5D06-3529.
Jan. 23, 2009.
Appeal from the Circuit Court for St. Johns County, Edward E. Hedstrom, Judge.
William Mallory Kent, of The Law Office of William Mallory Kent, Jacksonville, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.
SAWAYA, J.
*1 Justin Barber was convicted of first-degree murder with a firearm for the killing of his wife and sentenced to life in prison. He appeals the judgment and sentence, claiming that the trial court erred in denying his motion for judgment of acquittal because the evidence at trial, which was wholly circumstantial, did not exclude every reasonable hypothesis of innocence.
Late in the evening of April 17, 2002, Barber and his wife were celebrating a belated third wedding anniversary on a desolate strip of beach located between Ponte Vedra and St. Augustine. According to Barber’s version of events, he and his wife were accosted by an unknown assailant as they walked along the ocean, the assailant shot and killed his wife at the surf’s edge, and Barber dragged her body to the dune walkover before going for help. According to the State, Barber half-drowned his wife in the ocean, then dragged her to the end of the dune walkover, where he shot and killed her.
Barber was arrested and charged with first-degree murder. During the course of the investigation, the police discovered that a $2 million life insurance policy covering the lives of both Barber and his wife had been obtained the year before. A search of Barber’s computer revealed that in the months prior to the murder Barber had conducted a Google search of terms such as “trauma, cases, gunshot, right chest” and “Florida & divorce.” The police also discovered that Barber had several affairs during his marriage, and they located a witness who testified that she had an affair with Barber a few months prior to the murder. The investigation further revealed that although Barber had downloaded a large number of songs on his computer, sixteen were downloaded on the date of the murder. In particular, a song by Guns N’ Roses entitled “Used to Love Her (But I Had To Kill Her)” was downloaded that date, but deleted two weeks later.FN1
FN1. We note these facts because Barber also raises the issue that the trial court erred in denying his motions in limine directed at precluding the State from introducing evidence of (a) his extramarital affairs; (b) his computer search of the terms mentioned; and (c) the $2 million life insurance policy insuring the lives of Barber and his wife. Barber further claims that the trial court erred in denying his request to interview the jurors to determine whether they had been tainted by exposure to extensive media coverage and Court TV commentary about the case. As to these issues, we affirm without further discussion.
The trial commenced with Barber on notice that the State was seeking the death penalty. Much of the guilt phase of the trial consisted of forensic and medical evidence regarding blood and fluid discharge from the victim and other forensic evidence that we need not discuss in detail. At the conclusion of the State’s case, Barber moved for a judgment of acquittal, and he renewed that motion at the close of the evidentiary portion of the trial. That motion was denied, and the jury subsequently found Barber guilty of first-degree murder with a firearm.
In the penalty phase of the trial (the SpencerFN2 hearing), the State presented argument in support of the three statutory aggravators; Barber refused to offer mitigating evidence or submit argument. The jury, by a vote of eight to four, recommended that the death penalty be imposed. The trial court considered the evidence and the State’s arguments and found: (1) the murder was at least partially motivated by pecuniary gain (medium weight); and (2) the murder was committed in a cold, calculated, and premeditated manner (great weight). However, as to whether the crime was heinous, atrocious, and cruel (H.A.C.), the court found that the State did not prove this aggravator beyond a reasonable doubt because the State did not sufficiently prove that Barber attempted to drown his wife before he shot her. Specifically, the trial court found that Barber may have shot her at the water’s edge, causing her to fall into the water, and then dragged her to where her body was found by the police. Despite the jury’s recommendation, the trial court imposed a life sentence. Barber appeals, claiming that the trial court erred in denying his motion for judgment of acquittal.
FN2.Spencer v. State, 615 So.2d 688 (Fla.1993).
*2 Because this is a purely circumstantial evidence case, a special standard of review applies to our analysis. The Florida Supreme Court has consistently explained that special standard a number of times. In Troy v. State, 948 So.2d 635 (Fla.2006), cert. denied,127 S.Ct. 2981 (2007), the court reiterated:
In reviewing a motion for judgment of acquittal, a de novo standard of review applies. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002), cert. denied,539 U.S. 919 (2003). Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. See Pagan, 830 So.2d at 803 (citing Donaldson v. State, 722 So.2d 177 (Fla.1998); Terry v.. State, 668 So.2d 954, 964 (Fla.1996)). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. See Banks v. State, 732 So.2d 1065 (Fla.1999).“A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.”Orme v. State, 677 So.2d 258, 262 (Fla .1996).
“The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.”Darling v. State, 808 So.2d 145, 155 (Fla.) (quoting State v. Law, 559 So.2d 187, 188 (Fla.1989)), cert. denied,537 U.S. 848 (2002). In meeting its burden, the State is not required to “rebut conclusively, every possible variation of events” which could be inferred from the evidence, but must introduce competent evidence which is inconsistent with the defendant’s theory of events. Darling, 808 So.2d at 156 (quoting Law, 559 So.2d at 189). Once the State meets this threshold burden, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Id.
….
This Court does not have to determine that every reasonable hypothesis of innocence was excluded in this case. The sole determination we must make is whether there was competent, substantial evidence for the jury to make such a determination. See Darling, 808 So.2d at 156 (citing Law, 559 So.2d at 188-89).
Id. at 645-46 (quoting Johnston v. State, 863 So.2d 271, 283-84 (Fla.2003), cert. denied,541 U.S. 946 (2004); see also Huggins v. State, 889 So.2d 743 (Fla.2004), cert. denied,545 U.S. 1107 (2005). In Orme v. State, 677 So.2d 258, 262 (Fla.1996), cert. denied,519 U.S. 1079 (1997), the court further explained that
the sole function of the trial court on motion for directed verdict in a circumstantial-evidence case is to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the State and (b) the defense theory or theories. If there is such inconsistency, then the question is for the finder of fact to resolve. The trial court’s finding in this regard will be reversed on appeal only where unsupported by competent substantial evidence.
*3 Barber strenuously argues that his claim of error based on the trial court’s failure to grant the motion for judgment of acquittal is “sealed” by the court’s finding regarding the State’s failure to prove the H.A.C. aggravator. Specifically, Barber contends that the trial court’s finding established his theory of defense, which was that his wife was shot at the water’s edge by an unknown assailant and her body dragged to the spot where the police found it. We disagree.
The penalty phase proceedings are distinct from the guilt phase of a murder trial, and this distinction is clearly expressed in section 921.141(1), Florida Statutes (2002), which provides in pertinent part:
SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.-Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.082…. In the proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (5) and (6). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida. The state and the defendant or the defendant’s counsel shall be permitted to present argument for or against sentence of death.
The penalty phase is intended to determine the sentence to be imposed in a capital case after a verdict of guilt has been rendered; it is not intended to determine the guilt of the defendant. Unlike the guilt phase of a capital trial, the rules of evidence are relaxed in the penalty phase of the proceedings. The trial court’s finding as to one or more aggravators in the penalty phase is not intended to override the jury’s verdict in the guilt phase of the proceedings, and there is nothing to suggest that is what the trial court intended to do in the instant case.
We also note that the finding made by the trial court in support of its refusal to apply the H.A.C. aggravator has no relevance to the issue of the murderer’s identity, contrary to Barber’s argument. The trial court’s finding, that there was insufficient evidence to prove beyond a reasonable doubt that Barber attempted to drown his wife before he shot her, relates only to the manner of the killing. The manner in which the murder was accomplished is a critical consideration when determining the applicability of the H.A.C. aggravator, which applies where the victim was mentally or physically tortured by the murderer in an attempt to inflict a high degree of pain and suffering before the victim’s life is taken. Offord v. State, 959 So.2d 187 (Fla.2007); Hardwick v. State, 521 So.2d 1071, 1077 (Fla.), cert. denied,488 U.S. 871 (1988) (“The factor of heinous, atrocious and cruel arises from the means actually employed in the killing ….”); see also Belcher v. State, 851 So.2d 678, 683 (Fla.) (holding that the H.A .C. aggravator may be established where a victim is conscious for between 30 seconds and a minute before drowning and there is evidence of a struggle such as evinces an awareness of impending death), cert. denied,540 U.S. 1054 (2003); Walker v. State, 707 So.2d 300, 315 (Fla.1997) (holding that H.A.C. aggravator was appropriately found in drowning death, regardless of whether the victim was conscious when she was thrown into canal, because there was other evidence of a struggle). We therefore reject Barber’s argument that the finding regarding this aggravator applied to the issue whether the evidence was sufficient to rebut Barber’s hypothesis of innocence that someone else killed his wife.
*4 As to our de novo review of the record before us, we conclude that when viewed in the light most favorable to the State, the evidence the State introduced at trial is inconsistent with Barber’s theory of events. Because such an inconsistency was established, the trial court correctly let the jury decide whether the evidence excluded all reasonable hypotheses of innocence. The jury heard all of the testimony and considered all of the evidence presented in the guilt phase of the trial and determined that all reasonable hypotheses of innocence were excluded. Concluding that substantial, competent evidence exists in the record to support the jury’s verdict, we affirm Barber’s conviction and his sentence.
AFFIRMED.
PALMER, C.J., and GRIFFIN, J., concur.

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Daniel BEAM, Appellant, v. STATE of Florida, Appellee. No. 5D07-1674

Friday, January 23rd, 2009

District Court of Appeal of Florida, Fifth District.
Daniel BEAM, Appellant,
v.
STATE of Florida, Appellee.
No. 5D07-1674.
Jan. 23, 2009.
Background: Defendant was convicted in a jury trial in the Circuit Court, Citrus County, William T. Swigert, J., of incest. Defendant appealed.
Holding: The District Court of Appeal, Sawaya, J., held that defendant could not be convicted of incest when victim was 18 years of age and was adopted by defendant, uncle.
Affirmed in part, reversed in part, and remanded.
West Headnotes
Incest 207 0
207 Incest
Defendant could not be convicted of incest when victim was 18 years of age and was adopted by defendant, uncle; defendant could not be convicted of incest with victim by virtue of being her “uncle-in-law” because relations by affinity were not included within purview of incest statute, and fact that defendant adopted victim did not alter biological fact that she was not related to him by consanguinity. West’s F.S.A. § 826.04.
Appeal from the Circuit Court for Citrus County, William T. Swigert, Judge.
Charles P. Vaughn, Inverness, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
SAWAYA, J.
*1 The issue we address is whether a defendant may be convicted of the crime of incest as proscribed by section 826.04, Florida Statutes, when the victim was 18 years of age and was adopted by the defendant. This issue is raised by Daniel Beam, who appeals the judgment and sentence imposed following the jury verdict finding him guilty as charged of incest. We note that Beam also appeals his conviction and sentence for the crime of sexual battery upon a person over the age of twelve by use of threats of retaliation as charged in Count X of the information. We affirm the judgment and sentence as to that conviction without further discussion.FN1
Because we must resolve a legal issue, it is not necessary to discuss in detail the evidence presented during the trial. Suffice it to say that the evidence clearly established that the victim was adopted when she was four years old by her aunt and uncle. Beam is both the victim’s adoptive father and her uncle by marriage to her maternal aunt. The State attempted to prove that Beam began sexually molesting the victim when she was about ten years old and that the abuse, which consisted primarily of fondling and oral sex, escalated over the victim’s teenage years. Shortly after the victim turned 18 years of age, Beam had sexual intercourse with her, which led to his conviction for incest as charged in Count XI. The victim completed an abuse report that was promptly relayed to the police, and Beam was subsequently arrested.
At trial, following the close of the State’s case, Beam moved for judgment of acquittal. That motion was denied, and the jury returned its verdict finding Beam guilty of incest in violation of section 826.04. Beam argues, as he did in his motion for judgment of acquittal, that he cannot be convicted of incest as a matter of law because the victim was over 18 years of age and was not related to him by consanguinity.
Our analysis begins with an iteration of the undisputed fact that the victim is Beam’s adopted daughter and his niece by his marriage to her biological mother’s sister. In other words, the fact that the victim is not related to Beam by consanguinity was not disputed at trial. The fact that the victim was over the age of 18 at the time of the offense was also undisputed. Although Beam has consistently proclaimed his innocence, he has also consistently argued that even if he did have intercourse with the victim, he cannot be convicted of incest because the victim was 18 and not a blood relative.
With those critical facts established and Beam’s argument clearly stated, our analysis turns to interpreting the provisions of section 826.04, Florida Statutes (2006), which defines the crime of incest as follows:
Whoever knowingly marries or has sexual intercourse with a person to whom he or she is related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece, commits incest, which constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. “Sexual intercourse” is the penetration of the female sex organ by the male sex organ, however slight; emission of semen is not required.
*2 Because statutory interpretation is a legal matter, the standard of review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) ( “The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”).
At the outset, it can be readily determined from the plain language of the statute that the first part of Beam’s argument, that he cannot be convicted of incest because the victim was 18 years of age, is without merit. No age or consent requirements are contained in the statute. See McCaskill v. State, 55 Fla. 117, 45 So. 843, 845 (Fla.1908) (explaining that the age, consent, or lack of consent of a party to incest does not negate the crime).
As to the second part of Beam’s argument-that he cannot be convicted of incest because he was not related to the victim by consanguinity-we believe that section 826.04 requires that both parties to the intercourse be related by consanguinity, whether lineal or collateral. The term “consanguinity” means related by blood; its antonym is “affinity,” which means related by marriage. See Rothery v. State, 757 So.2d 1256, 1259 (Fla. 5th DCA 2000) (“Family relationships are of two types: those of consanguinity (blood) and affinity (marriage).”). “ ‘[L]ineal consanguinity is that [blood relationship] which subsists between persons of whom one is descended in a direct line from the other, as between son, father, grandfather, and so upwards in the direct ascending line; or between son, grandson, great-grandson, and so downwards in the direct descending line.’ “  In re Estate of Angeleri, 575 So.2d 794, 794 n. 1 (Fla. 2d DCA 1990) (quoting Black’s Law Dictionary 275 (5th ed.1979)). Collateral consanguinity is that relationship “ ‘which subsists between persons who have the same ancestors, but who do not descend (or ascend) one from the other [such as uncle and niece].’ “  Id.(quoting Black’s ).
Precedent from the courts supports the conclusion we reach. In Huckaby v. State, 343 So.2d 29 (Fla.1977), the court, after holding that rape and incest were separate and independent crimes, addressed the issue whether incest was a lesser included offense of rape. The court noted that under the general rule applicable at that time, the jury should be instructed on all lesser offenses that were covered by the accusatory pleading and supported by the evidence. The court specifically held that Huckaby’s case did not fall within the purview of this rule because the indictment “[did] not allege the critical element of the crime of incest-requisite consanguinity between the defendant and his victims.”Id. at 32.Hence, the court clearly held that consanguinity was a critical element of the crime of incest.
Earlier, the supreme court in Capps v. State, 87 Fla. 388, 100 So. 172 (Fla.1924), recognized that “the gist of the offense of incest in this State is sexual intercourse between blood relations and that such intercourse between persons related by affinity is not condemned in this State.”Id. at 173.There, the court also addressed the sufficiency of an indictment that did not specifically include the term “consanguinity” in charging incest. However, unlike the accusatory pleading in Huckaby, the indictment in Capps alleged that the offending parties were related as uncle and niece. Concluding that the indictment in Capps was not defective, the court explained:
*3 The relation of parent and child or uncle and niece is a relation by consanguinity; one lineal the other collateral. So a man’s niece is related to him in that degree of consanguinity within which marriage with her is prohibited by [statute]. The word niece or uncle defines a relationship by consanguinity within a certain degree according to the civil, common or canon law, as certainly as the word father or daughter defines a relationship by consanguinity within a certain degree.
Id. The court therefore concluded that the indictment was sufficient and not impermissibly vague, noting that “the words uncle and niece are generally understood to mean blood relationship.”Id.
More recently, the court in Hull v. State, 686 So.2d 676 (Fla. 3d DCA 1996), review denied,695 So.2d 701 (Fla.1997), observed: “The relationship of uncle-in-law and niece-in-law is clearly not alone sufficient … to implicate the incest statute, section 826.04, Florida Statutes (1995) (requiring relationship of ‘uncle’ and ‘niece’).”Id. at 677 n. 2. Applying similar reasoning, the court in Carnes v. State, 725 So.2d 417 (Fla. 2d DCA 1999), concluded:
[T]he term “sister” in section 826.094 includes a half-sister. The obvious purpose of the incest statute is to address the evil of sexual intercourse between persons who are related to each other within specific degrees. A person’s half-sister is as close a relative as an aunt or niece, both of which fall under the protection of the incest statute.
Id. at 418.Moreover, in Slaughter v. State, 538 So.2d 509, 512 (Fla. 1st DCA 1989), the court explained that the incest statute addresses “the violation of generally accepted societal standards involving marriage and sexual intercourse between persons related within the specified degrees. Society’s interests in prohibiting incest include the prevention of pregnancies which may involve a high risk of abnormal or defective offspring.”
In Hendry v. State, 571 So.2d 94 (Fla. 2d DCA 1990), the only Florida case addressing incest and adoption, the court held that the adoption statute, section 63.172, cannot erase the biological fact of lineal consanguinity and, therefore, a man can be convicted of incest for having sex with his biological daughter even though the daughter had been adopted by a third party prior to the intercourse.
We note that the Florida courts have historically defined the crime of incest with reference to marriage statutes, which prohibited marriage within certain degrees of consanguinity. As early as 1908, the Florida Supreme Court explained that “[i]ncest is sexual intercourse between persons so nearly related to each other that marriage between them would be unlawful.”McCaskill, 45 So. at 843. The statutes in effect at that time, quoted by the court in McCaskill, were similar to the provisions currently in effect:
The statutes of this state provide that: “Persons within the degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void who intermarry or commit adultery or fornication with each other, shall be punished by imprisonment in the state prison not exceeding twenty years, or in the county jail not exceeding one year.”“A man may not marry any woman to whom he is related by lineal consanguinity, nor his sister, nor his aunt, nor his niece. A woman may not marry any man to whom she is related by lineal consanguinity, nor her brother, nor her uncle, nor her nephew.”Sections 2601 and 2602 Rev. Stats. of 1892, sections 3524 and 3525 Gen. Stats, of 1906.
*4 Id. at 844.We further note that the laws enacted in other states have defined the crime of incest with reference to the statute defining the degrees of consanguinity within which marriage was prohibited. See, e.g.,S.D. Codified Laws § 22-22A-2 (2008) (defining incest as being between persons related “within degrees of consanguinity within which marriages are, by the laws of this state, declared void….”). Therefore, section 741.21, Florida’s current statute defining and prohibiting incestuous marriage, is relevant to our interpretation of section 826.04. Section 741.21, Florida Statutes (2006), provides: “A man may not marry any woman to whom he is related by lineal consanguinity, nor his sister, nor his aunt, nor his niece. A woman may not marry any man to whom she is related by lineal consanguinity, nor her brother, nor her uncle, nor her nephew.”From the plain language of sections 741.21 and 826.04, it is clear that the legal definition of incest is limited to persons who are related either by lineal consanguinity or collateral consanguinity. It does not extend to persons who are related by affinity or adoption, but not biologically by blood.
We are not alone in our conclusion. Numerous decisions rendered by courts in other states hold that incest does not encompass conduct between persons related only by adoption. See, e.g., People v. Kaiser, 51 P. 703, 703 (Cal.1897) (“The word ‘daughter’ means, and is generally understood to mean, ‘an immediate female descendant,’ and not an adopted daughter, a step-daughter, or a daughter in law.”); State v. Lee, 196 Miss. 311, 17 So.2d 277 (Miss.1944) (defendant could not be convicted of incest with an adopted daughter); State v. Rogers, 260 N.C. 406, 133 S.E.2d 1, 3 (N.C.1963) (recognizing that the statutory crime of incest is not applicable to a sexual relationship between a man and his adopted daughter); State v. Youst, 74 Ohio App. 381, 59 N.E.2d 167 (Ohio Ct.App.1943) (statutory crime of incest is not applicable to a sexual relationship between a man and his adopted daughter); State v. Bale, 512 N.W.2d 164, 166 (S.D.1994) (holding that sexual penetration between an adoptive parent and child is not incest; explaining that “[t]he legislature could have easily prohibited sexual relations between relatives by affinity and by adoption, but did not do so.”).FN2
We conclude that Beam cannot be convicted of incest with the victim by virtue of his being her “uncle-in-law” because relations by affinity are not included within the purview of incest as proscribed in section 826.04. The fact that Beam adopted the victim does not alter the biological fact that she was not related to him by consanguinity. Based on the foregoing, the judgment and sentence as to Count XI must be vacated. The judgment and sentence as to Count X is affirmed.
AFFIRMED in part; REVERSED in part; REMANDED.
PALMER, C.J. and TORPY, J., concur.
FN1. Beam was charged with several crimes against the victim in a multi-count information. The jury acquitted Beam on Counts I through IX. Count X alleged that Beam committed sexual battery upon a person over the age of 12 by use of threats of retaliation, and Count XI alleged that Beam committed incest. The jury found Beam guilty of the crimes alleged in those two counts, and Beam was sentenced to 20 years’ imprisonment followed by five years’ probation on Count X, concurrent with five years’ imprisonment followed by five years’ probation on Count XI.
FN2. The State’s reliance on the Connecticut Supreme Court’s decision in State v. George B., 258 Conn. 779, 785 A.2d 573 (Conn.2001), is misplaced. The State urges that the court’s holding in George B. that incest encompasses adopted as well as blood relatives is persuasive because the Connecticut adoption statute is similar to section 63.172, Florida Statutes, which provides in relevant part:
(1) A judgment of adoption, whether entered by a court of this state, another state, or of any other place, has the following effect:
….
(c) Except for rights of inheritance, it creates the relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a blood descendant of the petitioner born within wedlock. This relationship shall be created for all purposes, including applicability of statutes, documents, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly exclude an adopted person from their operation or effect.
§ 63.172(1)(c), Fla. Stat. (2006). While the State is correct that the two adoption statutes are similar, the State overlooks the fact that Florida’s incest statute is significantly different from the Connecticut statute on the same subject. Critically, in Connecticut, incest is not limited strictly to blood relations, but extends to certain specified step-relations; for example, a man may not marry or have intercourse with his stepmother or stepdaughter, and a woman may not marry or have intercourse with her stepfather or stepson. SeeConn. Gen.Stat. §§ 46b-21, 53a-72a (2008).

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Gregory HYNES, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. No. 5D07-2361

Friday, January 23rd, 2009

District Court of Appeal of Florida, Fifth District.
Gregory HYNES, Appellant/Cross-Appellee,
v.
STATE of Florida, Appellee/Cross-Appellant.
No. 5D07-2361.
Jan. 23, 2009.
Appeal from the Circuit Court for Brevard County, George Maxwell III, Judge.
James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant/Cross-Appellee.
Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.
Greg Riley Morton, Tallahassee, Amicus Curiae for Animal Legal Defense Fund.
PER CURIAM.
*1 AFFIRMED; CROSS-APPEAL DISMISSED. See Exposito v. State, 891 So.2d 525 (Fla.2004).
TORPY, J., and PLEUS, R., Senior Judge, concur.
GRIFFIN, J., concurs specially with opinion.GRIFFIN, J., concurring specially.
As the result of the supreme court of Florida’s decision in Exposito v. State, 891 So.2d 525 (Fla.2004), there is no doubt that this court lacks jurisdiction to review the trial court’s decision to reject the jury’s verdict and to reduce the conviction of this defendant from felony cruelty to animals to a misdemeanor.FN1The Legislature’s failure to fill this jurisdictional gap by providing for review of a trial court’s decision to acquit the defendant of the offense of which the jury found him guilty and instead convict the defendant of a lesser offense is frustrating in this case, because in my view, the trial court’s decision is dangerously wrong.
This case unfolded when a maintenance employee at an apartment complex in Brevard County found a Rottweiler, which he knew to be defendant’s, loose on the grounds. The animal had evidently jumped out of a second story window. The dog’s glands were swollen and it appeared as though it might be nursing puppies. After many unsuccessful attempts to reach the defendant at his listed place of employment, the maintenance worker entered the apartment.
In the apartment were found the bloated body of a dead dog in a cage, two dead turtles, a dead lizard and a dead bird. One bird was found barely alive, as was one skinny, “dried out” snake. Also found alive, confined by a gate in the kitchen was an emaciated Australian Shepherd dog, stomach sunken in and surrounded by urine and feces. There was no evidence of food or water anywhere. This dog, whose name was Pepsi, was lying down on its side and appeared unable to get up. It had to be carried from the apartment.
The defendant was charged with felony animal cruelty. The animal cruelty statute, section 828.12, Florida Statutes (2007) provides as follows:
Cruelty to animals
(1) A person who unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or by a fine of not more than $5,000, or both.
(2) A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty of a felony of the third degree, punishable as provided in s. 775.082 or by a fine of not more than $10,000, or both.
At trial, the veterinarian who examined Pepsi when she was first removed from the defendant’s apartment testified that she was malnourished and dehydrated. He found no other cause for her condition other than that she needed food and water. An expert on the Australian Shepherd breed who examined Pepsi soon after she was taken to the local Humane Society testified that Pepsi had no muscle tone and little or no fat on its torso. She was not able to detect any food in its stomach. Photographs of the animals were introduced into evidence.
*2 Incredibly, the defendant confessed to animal control officers, but the jury never heard the confession because the trial court ruled that the State had failed to establish the corpus delicti of the crime. When questioned by animal control, the defendant first claimed he had paid someone to care for the animals, but when he could not identify this person, he changed his story, next claiming he was financially unable to provide food for the dogs. When it was pointed out to him that a bag of dog food was found in his bedroom, he finally said that he was using starvation as a “training technique.”  FN2
The trial court appeared first to rule that no corpus delicti for the crime had been established because there was no evidence of any “act”, only an omission to feed. Eventually, the State was able to convince the trial court that, because of the definitions for chapter 828, “omissions” and “neglect,” as well as “acts,” were equally proscribed. See § 828.02, Fla. Stat. (2007). The trial court then decided that there was no proof of corpus delicti because there was no veterinary testimony that the dogs suffered pain due to the withholding of food. This fact required no such expert testimony, however. The veterinary testimony that the dog was malnourished, dehydrated, too weak to stand and without muscle mass were sufficient. In a case such as this, the animal’s pain or suffering due to starvation is a matter of common sense and ordinary experience, just as in Bartlett v. State, 929 So.2d 1125 (Fla. 4th DCA 2006), where it was not necessary, in order to sustain a felony conviction under this statute, for a veterinarian to testify that a possum shot multiple times with a BB gun was suffering and had to be euthanized.
At the close of evidence, there was an extensive hearing on the motion for judgment of acquittal, at which the judge again expressed dismay that the “commits an act” language of sub-section two could include the withholding of food, or neglect. The judge then articulated an additional concern about the construction of the two subsections. He observed that the misdemeanor specifically referred to depriving an animal of necessary sustenance or shelter and expressed doubt that, given this specific reference to deprivation of sustenance in the misdemeanor section of the statute, that the felony could be committed by depriving the animal of sustenance. Notwithstanding these expressed doubts, the trial court correctly denied the motion and instructed the jury on both the felony and misdemeanor counts. Even without hearing the defendant’s admission that he was deliberately using starvation of the dogs as a “training technique,” the jury convicted the defendant on both felony counts.
After the verdict, citing Florida Rule of Criminal Procedure 3.620, the trial court announced that the felony counts under sub-section two of section 828.12 could not be sustained by the evidence and instead convicted defendant of misdemeanor counts under subsection one. At sentencing, he explained:
*3 THE COURT: And it goes right back to the question I asked in trial early on and it came up in argument in the JOA, the first time we crossed the bridge about omissions, commissions, and then the statutory construction problem that I’ve had from the beginning with this case. I think if the legislature wishes to address this as a felony, they need to address the statute and re-they need to address the statute. All right. Thank you.
Despite the trial court’s expressed difficulty with the construction of this statute, the statutory scheme is clear. If a person does the acts described in subsection one, he has committed a misdemeanor. If, however, the person intentionally commits an act which results in a cruel death or in excessive or repeated pain or suffering, a felony is committed. In other words, it is a misdemeanor to fail to feed a dog under the described circumstances; it is a felony to starve a dog to death, or deprive it of sustenance to the point where, like Pepsi, it has no muscle mass and is too weak even to stand. FN3
If I could get my hands on this case, I would vote to reverse.
FN1. Interestingly, the trial judge was aware of the fact that his decision was not reviewable and took the unusual step of providing the parties with the controlling case law at the end of the sentencing hearing.
FN2. Bird food was also found in the apartment.
FN3. I concede that there is no evidence of what caused the death of the unnamed dog in the cage other than the defendant’s own admission.

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Vadhani WILLIAMS, Appellant, v. STATE of Florida, Appellee. No. 5D08-2061

Friday, January 23rd, 2009

District Court of Appeal of Florida, Fifth District.
Vadhani WILLIAMS, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-2061.
Jan. 23, 2009.
Appeal from the Circuit Court for Lake County, G. Richard Singeltary, Judge.
James S. Purdy, Public Defender, And DavidS. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellee.
LAWSON, J.
*1 Vadhani S. Williams appeals from his convictions and sentences on charges of attempted second degree murder and aggravated assault with a firearm, entered following a jury trial. The only issue on appeal is whether the trial court erred by prohibiting Williams’ counsel from questioning the victim regarding a pending battery charge. We agree that the trial court committed the error, but find it to have been harmless beyond a reasonable doubt, and affirm.
“ ‘[W]hen charges are pending against a prosecution witness at the time he testifies, the defense is entitled to bring this fact to the jury’s attention to show bias, motive or self-interest.’ “  Larkins v. State, 655 So.2d 95, 99 (Fla.1995) (quoting Torres-Arboledo v. State, 524 So.2d 403, 408 (Fla.1988), cert. denied,488 U.S. 901 (1988)); see also, Breedlove v. State, 580 So.2d 605, 607-608 (Fla.1991). The trial judge’s contrary ruling seems to have been based upon a misimpression that the prosecution witness could only be impeached with questions about his pending criminal charge if he had already discussed the possibility of receiving favorable treatment in his case in exchange for his testimony at Williams’ trial. The rule is not so limited. Rather, “[t]o explore more subtle motivations, a defendant may cross-examine to bring out a witness’s hope to obtain favorable treatment from the state.”  Williams v. State, 912 So.2d 66, 68 (Fla. 4th DCA 2005).
Although the trial court erred in precluding the defense from questioning the victim regarding his pending battery charge, we find no reasonable probability that the additional impeachment in this case would have affected the verdict. See State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). First, the victim’s trial testimony was consistent with his pre-trial statement to law enforcement-which preceded the facts giving rise to his pending battery charge by a number of months. Additionally, Williams shot the victim in a crowded area outside a club. In addition to the victim’s testimony, the State presented trial testimony from six eye witnesses. The testimony of all six witnesses was consistent with the victim’s testimony and with other corroborating evidence. Several of these witnesses further testified that they pursued Williams after seeing him shoot the victim and flee. Together, they blocked Williams’ entry into a car, disarmed him and held him until law enforcement arrived and arrested him at the scene. Because we find the error to have been harmless beyond a reasonable doubt, we affirm. Id.
AFFIRMED.
GRIFFIN and COHEN, JJ., concur.

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David A. CANADA, Appellant, v. STATE of Florida, Appellee. No. 5D08-3155

Friday, January 23rd, 2009

District Court of Appeal of Florida, Fifth District.
David A. CANADA, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-3155.
Jan. 23, 2009.
3.800 Appeal from the Circuit Court for Brevard County, John M. Harris, Judge.
David A. Canada, Perry, pro se.
Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
LAWSON, J.
*1 David A. Canada appeals the summary denial of his rule 3.800(a) FN1 motion to correct sentence. Canada’s motion alleged that he was improperly denied jail credit when sentenced to prison for violating the terms of his community control and that his entitlement to jail credit is apparent on the face of the record. In denying Canada’s motion, the trial judge attached documents showing only that Canada waived credit for any prior prison time as part of his plea agreement. Because the record attachments do not show that Canada also waived jail credit, we reverse.
FN1.Fla. R.Crim. P. 3.800(a).
Canada was originally sentenced to three years in prison, followed by eighteen months of probation, on a charge of failure to redeliver leased property. Upon his release, Canada violated the terms of his probation and was then given another chance at community supervision and placed on community control. When Canada violated the terms of his community control, he entered a plea pursuant to which he agreed to a new term of one year and one day in state prison, with no credit against this sentence for time served on his earlier three-year prison sentence on this charge. On this record, it appears that the plea agreement was silent as to jail credit. The record also reflects that Canada did spend time in jail after his release from prison, while awaiting the disposition on his probation and community control violations.
To the extent that Canada is seeking credit for time that he spent in jail prior to his original three-year prison sentence, that time would have already been credited against the prior prison term and thereby subsumed within that prison sentence. By waiving any credit for time served on his prior three-year prison sentence, Canada necessarily also waived the jail time previously credited against that sentence. The same, however, is not true of the time that Canada served in jail after his prior release from prison, while awaiting disposition of his community supervision violations.
Entitlement to jail credit is a statutory right. See§ 921.161(1), Fla. Stat. (2008). “Although a defendant can waive jail credit as a condition of a plea, the waiver must be knowing and affirmatively appear as a condition of the plea agreement.”Hill v. State, 985 So.2d 1216, 1217 (Fla. 5th DCA 2008) (citations omitted). On remand, the trial court should either award Canada credit against his new prison sentence for the time he served in jail after release from his original prison sentence, or include as an attachment to any denial order documents which demonstrate Canada’s clear intent to waive credit for the jail time served while awaiting disposition of his community supervision violations. See Cheatum v. State, 992 So.2d 877 (Fla. 5th DCA 2008).
REVERSED AND REMANDED WITH DIRECTIONS.
SAWAYA, J., and PLEUS, R., Senior Judge, concur.

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Nelson RIVERA, Appellant, v. STATE of Florida, Appellee. No. 2D08-974

Friday, January 23rd, 2009

District Court of Appeal of Florida, Second District.
Nelson RIVERA, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-974.
Jan. 23, 2009.
Appeal pursuant to Fla. R.App. P. 9.141(b)(2) from the Circuit Court for Lee County; Thomas S. Reese, Judge.
WALLACE, Judge.
*1 Nelson Rivera challenges the final order that denied his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. In his postconviction motion, Mr. Rivera asserted two claims for relief based on ineffective assistance of counsel. The postconviction court summarily denied both claims. We affirm without comment the postconviction court’s denial of claim one, but we reverse the postconviction court’s denial of claim two and remand for further proceedings.
Mr. Rivera pleaded nolo contendere to unlawful sexual activity with a minor, a violation of section 794.05(1), Florida Statutes (2002). After his plea hearing but before his scheduled sentencing hearing, Mr. Rivera was arrested on an outstanding warrant from Pennsylvania for a crime that allegedly occurred a month before his plea hearing. Mr. Rivera was adjudicated guilty of unlawful sexual activity with a minor and sentenced to ten years’ imprisonment.
In claim two, Mr. Rivera alleged that his trial counsel provided ineffective assistance because counsel did not present mitigating evidence during his sentencing hearing. Mr. Rivera’s claim addressed two kinds of mitigating evidence: (1) the minor victim’s willing participation in the sexual activity and (2) the circumstances of his arrest between the time of the plea hearing and the scheduled sentencing hearing. In response to Mr. Rivera’s claim, the State acknowledged that Mr. Rivera’s trial counsel could have presented evidence of the victim’s consent to the sexual activity for mitigation purposes.FN1In addition, the State conceded that an evidentiary hearing was necessary as to claim two because the court reporter present at Mr. Rivera’s sentencing hearing subsequently moved to Mississippi and, as a result of Hurricane Katrina, lost all of the records of Mr. Rivera’s sentencing hearing.
FN1. In his postconviction motion, Mr. Rivera did not allege directly that the victim had consented to the sexual activity. Instead, he claimed that she “had lied about her age leading [Mr. Rivera] to believe that he was not committing a criminal act.”In its response to the postconviction motion, the State reasonably interpreted Mr. Rivera’s allegation as a claim that the victim was a willing participant in the sexual activity. The trial court could have considered evidence that the victim was a willing participant in the sexual activity for mitigation purposes in accordance with State v. Rife, 789 So.2d 288 (Fla.2001). Of course, neither the victim’s misrepresentation of her age nor Mr. Rivera’s bona fide belief that she was at least eighteen years of age would have been a defense to the crime with which he was charged. § 794.021; see Feliciano v. State, 937 So.2d 818, 819 (Fla. 1st DCA 2006); Hodge v. State, 866 So.2d 1270, 1272-73 (Fla. 4th DCA 2004).
Nevertheless, the postconviction court denied claim two as it relates to counsel’s alleged failure to present evidence that the victim had consented to the sexual activity, finding that the record conclusively refuted Mr. Rivera’s claim. The postconviction court noted that Mr. Rivera mentioned during the plea hearing that the victim had lied about her age, but “the [c]ourt was never considering a downward departure and once [Mr. Rivera] was arrested on unrelated charges while awaiting sentencing, ‘all deals were off.’ “ However, the transcript of the plea hearing does not conclusively indicate that the circuit court would not have considered a downward departure. In fact, sentencing issues were not discussed. The transcript of the plea hearing also indicates that Mr. Rivera entered an open plea and that no plea agreement or negotiated sentence existed. Thus the record attachments are insufficient to conclusively refute Mr. Rivera’s claim.
Accordingly, we reverse the order summarily denying Mr. Rivera’s motion and remand for the postconviction court to reconsider this claim. Unless the record conclusively refutes Mr. Rivera’s claim, the postconviction court shall conduct an evidentiary hearing. If the postconviction court again summarily denies Mr. Rivera’s claim, it must attach portions of the record that conclusively refute this claim. See Chandler v. State, 843 So.2d 1046, 1047 (Fla. 2d DCA 2003).
*2 We note that the postconviction court did not rule on Mr. Rivera’s claim that his trial counsel was ineffective for failing to explain the circumstances of his arrest. Therefore, we also remand this case to allow the postconviction court to address this issue that was not the subject of a ruling. See Calzada v. State, 934 So.2d 541, 542 (Fla. 3d DCA 2006).
Affirmed in part, reversed in part, and remanded with instructions.
CASANUEVA and KHOUZAM, JJ., Concur.

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Shombie S. HARRIS, Appellant, v. STATE of Florida, Appellee. No. 2D08-571

Friday, January 23rd, 2009

District Court of Appeal of Florida, Second District.
Shombie S. HARRIS, Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-571.
Jan. 23, 2009.
Appeal from the Circuit Court for Hillsborough County; Ronald N. Ficarrotta and Manuel Lopez, Judges.
Daniel L. Castillo, Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
WHATLEY, Judge.
*1 Harris appeals his judgments and sentences for possession of cocaine, possession of marijuana, and possession of paraphernalia, arguing that the trial court erred in denying his motion to suppress. We agree and reverse.
Harris was driving his pickup truck in a lawful manner. Two law enforcement officers were behind Harris in separate vehicles and both officers attempted to obtain the tag number from Harris’s vehicle. Their testimony, which is supported by the evidence, was that a trailer hitch partially blocked the tag and they could not read the letters on the tag from a distance of thirty to fifty feet. The officers stopped Harris’s vehicle based on the obscured tag. After the stop, the officers smelled an odor of fresh marijuana coming from inside the vehicle. Thereafter, marijuana was found in Harris’s pocket and cocaine was found in the glove box of the truck.
Harris asserts the trial court erred in denying his motion to suppress because he was improperly stopped for violating section 316.605, Florida Statutes (2006). The relevant portion of the statute reads as follows:
[A]ll letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear or front.
§ 316.605(1) (emphasis added).
The only language in the statute that would apply to the case at bar is the phrase, “other obscuring matter.” However, we conclude the doctrine of ejusdem generis causes this language to apply only to matter on the tag itself. Pursuant to the “ ‘ejusdem generis’ canon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.”Black’s Law Dictionary 514 (6th ed.1990). Here, a plain reading of the language in the statute shows that the license plate must be free from obscuring matter, be it grease, grime, or some other material placed over the plate. However, it would not include a trailer hitch that is properly attached to the truck’s bumper.
We are not unmindful that Florida now has a variety of different license plates of various colors and design. Some of these place letters in the middle of the tag, where the trailer hitch was located in this case, and some place a symbol, such as an orange, in the middle of the tag where a trailer hitch might not obscure letters or numerals.
Although there are no cases on point in Florida, in State v. Ronau, 2002 WL 31743012 (Ohio Ct.App.2002), the court held that the trial court did not err in finding that the stop of a truck was improperly based on the fact that the trailer hitch was blocking a portion of the license plate. We recognize that Ronau appears to be the minority position. See People v. White, 93 Cal.App. 4th 1022, 1026 (Cal.Ct.App.2001) (holding that license plate that is partially obstructed from view by a trailer hitch violates law, which provides that plates must be maintained in a condition so as to be clearly legible, and such violation provided officer with a lawful basis to stop vehicle); State v. Hill, 34 P.3d 139, 147 (N.M.Ct.App.2001) (where law required plate to be “maintained free from foreign material and in a condition to be clearly legible,” truck’s plate was in violation of law where truck’s trailer hitch obscured plate’s renewal sticker); State v. Smail, 2000 WL 1468543 (Ohio Ct.App.2000) (concluding that pursuant to law, which provided that “license plates … shall not be covered by any material that obstructs their visibility,” the middle numbers of a license plate were not in “plain view” and stop of truck was lawful where license was obstructed by a ball hitch).
*2 We align ourselves with the minority view and conclude that Harris’s vehicle was improperly stopped pursuant to section 316.605. Accordingly, we reverse Harris’s judgments and sentences.
Reversed and remanded.
STRINGER, J., and WILLIAMS, CHARLES E., Associate Judge, Concur.

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