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Antonio STOKES, Appellant, v. STATE of Florida, Appellee. No. 1D07-5128

Wednesday, January 21st, 2009

District Court of Appeal of Florida, First District.
Antonio STOKES, Appellant,
v.
STATE of Florida, Appellee.
No. 1D07-5128.
Jan. 21, 2009.
An appeal from the Circuit Court for Leon County. Angela C. Dempsey, Judge.
Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
Bill McCollum, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
*1 We affirm the trial court’s order of revocation of community control and the judgments and sentences for sale of cocaine and battery. However, we remand this case for the trial court to enter a corrected order of revocation of probation and order of probation to remove any reference to felony drug offender probation and any reference to appellant’s admission to the violation allegations contained in the affidavit of violation. As entry of the corrected order is merely a ministerial act, appellant need not be present.
AFFIRMED and REMANDED for entry of corrected order.
KAHN, BENTON and BROWNING, JJ., concur.

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Andre HOWELL, Appellant, v. The STATE of Florida, Appellee. No. 3D07-1166

Wednesday, January 21st, 2009

District Court of Appeal of Florida, Third District.
Andre HOWELL, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D07-1166.
Jan. 21, 2009.
An Appeal from the Circuit Court for Miami-DadeCounty, Mark King Leban, Judge.
Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
Before RAMIREZ, WELLS and SUAREZ, JJ.
RAMIREZ, J.
*1 Andre Howell challenges his conviction on the basis of an error that occurred during jury selection. Because Howell’s reason for the peremptory challenge was based on how the juror was looking at him and the court did not observe this, under Dorsey v. State, 868 So.2d 1192 (Fla.2003), the stated reason was not supported by the record and was properly denied.
When Howell attempted to exercise a peremptory challenge of juror Maria Bermudez, the prosecutor requested a gender neutral reason. The trial court added that the juror was Hispanic. Defense counsel stated that their client expressed discomfort with the way the juror was looking at him. The judge said that he did not see that. As in Brown v. State, 33 Fla. L. Weekly D2741 (Fla. 3d DCA Nov. 26, 2008), that meant such nonverbal communication cannot support the strike, relying on Dorsey.In Dorsey, the Florida Supreme Court held that “a potential juror’s nonverbal behavior, the existence of which is disputed by opposing counsel and neither observed by the trial court nor otherwise supported by the record, is not a proper basis to sustain a peremptory challenge as genuinely race neutral.”Id. at 1202.Here, as in Dorsey, the defense relied on nonverbal conduct which neither the judge nor the prosecutor could confirm and is not supported by the record. Consequently, the proffered reason was not gender, or ethnically, neutral and the judge properly denied the challenge.
We therefore affirm.

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Engino JENKINS, Appellant, v. The STATE of Florida, Appellee. No. 3D07-1211

Wednesday, January 21st, 2009

District Court of Appeal of Florida, Third District.
Engino JENKINS, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D07-1211.
Jan. 21, 2009.
An Appeal from the Circuit Court for Miami-DadeCounty, William Thomas, Judge.
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 RAMIREZ, SHEPHERD, and SALTER, JJ.
SHEPHERD, J.
*1 Engino Jenkins appeals a jury verdict finding him guilty of possession of crack cocaine with intent to sell within 1000 feet of a school in violation of section 893.13(1)(c)1, Florida Statutes (2006). The substance was not recovered during the police “takedown.” The only evidence the substance was crack cocaine was the testimony of Detective Raymond Robertson, who observed the transaction with the assistance of eight-power binoculars at distance of forty-five to fifty feet. Officer Robinson could not identify the substance; he could say only the transaction he saw was consistent with “thousands” of similarly illegal “hand-to-hand transactions” he had seen throughout his career.
Section 893.13(1)(c) provides in pertinent part:
[I]t is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance in, on, or within 1,000 feet of the real property comprising a child care facility … or a public or private elementary, middle, or secondary school….
To satisfy the elements of the offense of possession of cocaine with intent to sell within 1000 feet of a school, the State must establish that (1) the appellant sold, manufactured, delivered, or possessed; (2) a controlled substance; (3) within 1000 feet; (4) of a school or child care facility. Although the officer testified he had a clear view of the transaction, he did not testify he saw the substance or could identify it other than by custom.
Because this case arrives here on appeal from a denial of a motion for judgment of acquittal at the close of the State’s case, the question before us is whether the evidence presented by the State was legally sufficient at this stage of the proceeding to support the charge. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). This being the same question that was before the trial court when ruling on the motion initially, we effectively review the trial court decision de novo. Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001). Applying this standard, it is our task, therefore, to determine simply whether-construing the evidence in a light most favorable to the State-the State presented competent substantial evidence to establish each element of the crime. See State v. Burrows, 940 So.2d 1259, 1262 (Fla. 1st DCA 2006).
The controlling question in this case is whether the State presented competent, substantial evidence concerning the second element of the crime, the nature of the substance involved in the transaction. This element can be proven through circumstantial proof, which may include:
evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence[.]
*2 United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.1976).
The evidence in this case reflects that-acting on a tip from other detectives that narcotics were being sold at a place called the Hampton House, located in a high crime area-members of a Miami-Dade Police Department narcotics team deployed to the location. Detective Robertson, whose specialty is surveillance and buys, served as the “eyeball” for the team. Detective Robertson described this transaction as a typical “two-hand” transaction by which crack cocaine (as distinguished from other forms of cocaine) is, for some reason, frequently delivered. In this case, Detective Robertson observed a white Ford Explorer approach the appellant. An individual stepped out of the vehicle and handed the appellant cash. A third individual at the scene left and then returned with the alleged crack cocaine. That individual gave the substance to the appellant, who in turn handed it to the driver of the Explorer, who exited the scene. Detective Robertson then signaled the “takedown” team to arrest the appellant. A search of the appellant produced $153 from one of his pockets. Detective Robertson testified he had watched similar transactions occur for a couple of hours before executing the “takedown” in this case. The record is unclear whether the appellant was a participant in any of the earlier transactions. FN1
FN1. The State agreed that evidence of prior transactions would not be admitted into evidence at trial.
Although the transaction in this case occurred in broad daylight and Detective Robinson had an unobstructed view of the appellant, he was not near enough to the transaction to describe or identify the substance exchanged, even with the aid of the eight-power binoculars with which he was furnished. The totality of the proof offered to meet the element that the substance exchanged was a controlled substance was the following:
Q. Officer, why did you believe it was a drug transaction that occurred?
A. I’ve seen lots of them, and I saw that it was going to be crack cocaine because, for some reason, a lot of times when they do sales of crack cocaine powder, they’ll hand over crack cocaine, [for] some reason the buyers open their hand and the sellers will drop it in and count it, and I had a clear view with binoculars when he was dropping it in their hand.
Seeking to sustain the conviction in this case, the State argues Detective Robertson’s description of the familiar manner in which the transaction occurred was sufficient for the jury to infer the substance was crack cocaine. In support of this argument, the State seeks to invoke a “special standard of review,” more usually intoned by defendants, where convictions result from circumstantial evidence. As explained in State v. Law, 559 So.2d 187, 188 (1989):
[This] special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence. Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.
*3 (emphasis added) (citations omitted). However, where one or more of the elements of the crime are proven by direct evidence, this heightened standard of review is not applicable. Burrows, 940 So.2d at 1262.FN2In this case, there is direct evidence supporting three of the four elements of the crime. Detective Robertson observed the delivery of the substance. Another detective identified the existence of the nearby school and testified as to the distance from the crime scene to the front door of the school. There was simply no evidence of the nature of the substance.
FN2. For a comprehensive review of the law in this area as it has been applied in Florida, including the reasons for applying a heightened standard where convictions are based upon wholly circumstantial evidence, see Jones v. State, 466 So.2d 301, 326 (Fla. 3d DCA 1985), approved485 So.2d 1283 (Fla.1986).
It is apodictic that the State ultimately must prove each element of the alleged crime to the satisfaction of the jury and beyond a reasonable doubt.In re Standard Jury Instructions-Criminal Cases (99-1), 765 So.2d 692, 700-01 (Fla.2000); see also Archer v. State, 673 So.2d 17, 20 (Fla.1996); Dallas v. State, 79 So. 690 (Fla.1918). In so doing, the State also is required during its case in chief to present a prima facie case of guilt through the offer of competent substantial evidence on each element of the crime sought to be proven, State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999); Burrows, 940 So.2d at 1262 (citing Williams, 742 So.2d at 510)), failing which the accused is entitled to a judgment of acquittal at the close of the State’s case. See, e.g., Casselman v. State, 761 So.2d 482, 484 (Fla. 5th DCA 2000) (reversing upward departure sentence based upon the felony offense of possession of cocaine where sole testimony of the nature of the substance was the officer’s testimony that he “thought” the substance, which was not recovered from the scene, looked like several rocks of crack cocaine); Jordan v. State, 560 So.2d 315, 318 (Fla. 1st DCA 1990) (quoting Hodges v. State, 176 So.2d 91, 93 (Fla.1965) (reversing conviction for soliciting the purchase of cocaine on school property “ ‘when the corpus delicti, that is, that the crime charged had been committed, could be established only by the confession or admission’ ”)); see also United States v. Baggett, 890 F.2d 1095, 1096 (10th Cir.1989) (holding evidence to support possession of controlled substances charge against defendant insufficient where government put forth no drug evidence at trial and no testimonial evidence defendant “actually possessed heroin on the day in question”); United States v. Shelton, No. 7:05-M-00164, 2005 WL 1801669, at *4 (W.D.Va. July 27, 2005) (finding evidence insufficient to support identification of controlled substance where substance not subjected to chemical analysis or produced at trial, and officer identification at scene not vetted with sufficient testimony of officer’s experiential background); People v. Beam, 866 N.Y.S.2d 564, 566 (N.Y.Crim.Ct.2008) (holding evidence insufficient to support charge of tampering with physical evidence where officer saw defendant holding “what appeared to be a marijuana cigarette” and defendant promptly discarded the item, which was not recovered). The State failed in this case as to the second element of the offense.
*4 For the foregoing reasons, we reverse the order denying the motion for judgment of acquittal at the close of the State’s case and remand the case to the trial court with direction to enter judgment of acquittal for the appellant.

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Paul LUXAMA, Appellant, v. STATE of Florida, Appellee. No. 4D07-2711

Wednesday, January 21st, 2009

District Court of Appeal of Florida, Fourth District.
Paul LUXAMA, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-2711.
Jan. 21, 2009.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Joel T. Lazarus, Judge; L.T. Case No. 05-2281.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
*1 We affirm appellant’s convictions and sentences for second-degree murder, attempted first-degree murder with a firearm, shooting into an occupied vehicle with a firearm, carjacking while in possession of a firearm, and two counts of aggravated assault with a firearm. He claims that the court fundamentally erred in instructing the jury on the forcible felony exception to the justifiable use of deadly force. See Martinez v. State, 981 So.2d 449 (Fla.2008). We conclude that the instruction does not constitute fundamental error. Farmer v. State, 975 So.2d 1275 (Fla. 4th DCA 2008).
As a second point, Luxama contends that the court erred in summarily denying his renewed motion to discharge his counsel without an evidentiary hearing. However, Luxama had twice before moved to discharge counsel, and twice the court held a hearing on the same issue and denied the motion. When a new judge assumed the case, Luxama’s counsel “certified” conflict because Luxama had filed a bar complaint against her. She informed the court of the prior hearings and denial of the motion to discharge which had been based upon the bar complaint. The successor judge also denied the motion after what appears to be a thorough review of the prior proceedings on the issue. “A trial court’s ruling denying a motion to discharge counsel will not be reversed absent an abuse of discretion.”Soto v. State, 751 So.2d 633, 636 (Fla. 4th DCA 1999). The trial court did not abuse its discretion in denying the motion when two prior hearings had been held on the issue, and neither counsel nor Luxama presented any new information to the court that would affect the result.
Affirmed.
MAY and DAMOORGIAN, JJ., concur.

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STATE of Florida, Appellant, v. William F. McCARTNEY, III, Appellee. No. 4D07-5071

Wednesday, January 21st, 2009

District Court of Appeal of Florida, Fourth District.
STATE of Florida, Appellant,
v.
William F. McCARTNEY, III, Appellee.
No. 4D07-5071.
Jan. 21, 2009.
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Dan Vaughn, Judge; L.T. Case No.2005-508A.
Bill McCollum, Attorney General, Tallahassee and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellee.
PER CURIAM.
*1 Defendant was charged with first-degree murder as a result of a death caused by an overdose of methadone which was sold to the victim by defendant. The trial court granted defendant’s motion to dismiss, because methadone is not a drug enumerated under the statute which was the basis of the charge, and the state appeals. We affirm.
The charge was first-degree felony murder under 782.04(1)(a)3, Florida Statutes, which provides:
(1)(a) The unlawful killing of a human being:
* * *
3. Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.
Defendant moved to dismiss arguing that methadone was not a Schedule I drug set out in section 893.03(1). The state acknowledged that methadone is not a Schedule I drug, but argued that it is a “synthetic of opium” under section 782.04(1)(a)3.
The trial court conducted an evidentiary hearing in which defendant presented the testimony of Dr. Rich Bateh, a clinical laboratory consultant in chemistry and toxicology. He was of the opinion that methadone is not an opium, a synthetic salt, compound or salt, compound derivative or preparation of opium. Nor is methadone a natural salt, compound, derivative or preparation of opium. Dr. Bateh classified methadone as an opioid, which means that it acts on the human body in a manner similar to opium or opium derivatives.
Dr. Gunther Hochhaus, a professor of pharmaceutics at University of Florida, testified on behalf of the state. He agreed that methadone is an opioid, which has a chemical structure entirely different from opiates such as morphine or heroin. He acknowledged that the College of Pharmacy at the University of Florida had produced a letter stating that methadone was a synthetic opium or a derivative of opium, but he concluded that the letter was scientifically incorrect. In his opinion there was no such thing as a synthetic of opium, because it is not feasible to synthesize opium.
In spite of the testimony of its own expert, the state argues that methadone is synthetic opium. We cannot agree. Although it is unnecessary to our conclusion, we would note that the legislature included methadone in the same statute, but rather than include it as a Schedule I substance under which appellee was charged, it included it as a Schedule II substance under section 893.03(2)(b)14.
Affirmed.
GROSS, C.J., POLEN and STEVENSON, JJ., concur.

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Marianela KRASNOW, Appellant, v. STATE of Florida, Appellee. No. 4D08-3243

Wednesday, January 21st, 2009

District Court of Appeal of Florida, Fourth District.
Marianela KRASNOW, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-3243.
Jan. 21, 2009.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard I. Wennet, Judge; L.T. Case No. 2006CF017419AXX.
Patrick J. Curry, Fort Lauderdale, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
*1 Marianela Krasnow filed a rule 3.850 motion seeking postconviction relief. Krasnow alleged that her plea to grand theft was involuntary because she was not properly advised by trial counsel of the option of participating in the pretrial intervention program. She alleges that this is significant because of her immigration status and the potential consequences. We find her allegations sufficient, see Julien v. State, 917 So.2d 213 (Fla. 4th DCA 2005), and reverse and remand with directions to hold an evidentiary hearing or to attach portions of the record which conclusively demonstrate that Krasnow is not entitled to relief.
Reversed and Remanded.
POLEN, HAZOURI and MAY, JJ., concur.

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C.C.N., Appellant, v. STATE of Florida, Appellee. No. 2D08-639

Wednesday, January 21st, 2009

District Court of Appeal of Florida, Second District.
C.C.N., Appellant,
v.
STATE of Florida, Appellee.
No. 2D08-639.
Jan. 21, 2009.
Appeal from the Circuit Court for Pinellas County; Raymond O. Gross, Judge.
James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
STRINGER, Judge.
*1 C.C.N. appeals an order of restitution following a guilty plea to burglary of a conveyance. The restitution hearing was held without C.C.N.’s presence or waiver thereof, and restitution was ordered in the amount of $948.09. The State properly concedes error, and we reverse and remand for a new restitution hearing.
On November 13, 2007, C.C.N. pleaded guilty to burglary of a conveyance and was sentenced to one year’s probation. A restitution hearing was held on December 18, 2007, but C.C.N. was not present. Defense counsel requested a continuance but stated that he was prepared to go forward without C.C.N.’s presence. The court refused to grant a continuance and proceeded to hear testimony from the victim and accept documentation regarding the amount of damage done to the victim’s vehicle. The court ordered restitution in the amount of $948.09.
It is well settled that a defendant has the constitutional right to be present at a restitution hearing. M.W.G. v. State, 945 So.2d 597 (Fla. 2d DCA 2006); T.A.S. v. State, 892 So.2d 1233 (Fla. 2d DCA 2005). A defendant may waive this right and exercise constructive presence through counsel, but the court must conduct the proper inquiry before the proceedings commence to “determine that the defendant’s waiver of the right to be present is knowing, intelligent, and voluntary.”M.W.G., 945 So.2d at 600.
When a defendant is absent from the restitution proceedings, the State must present competent, substantial evidence proving an effective waiver and unsworn statements that the defendant had notice of the hearing are not sufficient to prove waiver. J.B. v. State, 646 So.2d 808 (Fla. 1st DCA 1994).“It is error for a trial court to conduct a restitution hearing in the defendant’s absence without a showing that the absence is voluntary.”T.A.S., 892 So.2d at 1234.
In this case, the trial court failed to conduct an inquiry and made no findings as to whether C.C.N. had voluntarily waived his right to be present. The State offered no evidence to show that C.C.N. was given actual notice of the hearing, and though a probation officer stated C.C.N. knew about the hearing, this statement was not sworn testimony and was made at the end of the hearing.
On this record, the State rightly concedes that it failed to prove C.C.N. knowingly and voluntarily waived his right to be present at the restitution hearing. Accordingly, we reverse and remand for a new restitution hearing at which C.C.N. is present or has effectively waived that right.
Reversed and remanded.
FULMER and WALLACE, JJ., Concur.

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Wally D. SPANGLER, Appellant, v. STATE of Florida, Appellee. No. 5D08-893

Friday, January 16th, 2009

District Court of Appeal of Florida, Fifth District.
Wally D. SPANGLER, Appellant,
v.
STATE of Florida, Appellee.
No. 5D08-893.
Jan. 16, 2009.
Appeal from the Circuit Court for Seminole County, Debra S. Nelson, Judge.
James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
GRIFFIN, J.
*1 Wally D. Spangler [“Spangler”] appeals his judgment of conviction and sentence for possession of cocaine. We reverse.
According to the evidence at trial, on September 11, 2007, law enforcement officers Jason Shor [“Shor”] and Sean Coyle [“Coyle”] were in the area of Sanford’s Redding Gardens community after having conducted surveillance for drug complaints. Shor and Coyle observed a vehicle pull behind apartments in Redding Gardens and park in an area inaccessible to the public. Shor and Coyle approached the observed vehicle, accompanied by a drug detection K-9.
Shor saw two occupants in the vehicle, who were later identified to be Spangler, on the driver’s side, and Shannon Graham [“Graham”], on the passenger’s side. Shor observed Spangler concealing something and approached the driver’s side window to ask if there were any drugs or contraband in the vehicle. Meanwhile, Coyle ran the K-9 around the vehicle, and the dog alerted to the odor of drugs near the open window on the passenger’s side of the vehicle.
After the K-9′s alert, Shor asked Spangler and Graham to exit the vehicle. As Spangler exited the vehicle, Shor spotted what appeared to be a piece of crack cocaine on the seat underneath Spangler’s leg. Coyle then spotted and retrieved what appeared to be another piece of crack cocaine on the floorboard. A field test conducted by Coyle confirmed that the substances were crack cocaine. Shor retrieved a crack pipe underneath the seat on the passenger’s side of the vehicle, after which he spoke with Graham. Shor testified that he arrested Spangler, but chose to release Graham “due to her honesty.”
The State charged Spangler by information with one count of possession of cocaine. At trial, during the direct examination of Shor, the State undertook a line of questioning to bolster the credibility of the testifying officers:
Q. And do you have any interest in this case?
A. No.
Q. Do you get any kind of bonuses, incentives if you make a certain-
….
Q. If you make a number of arrests?
A. No, I don’t.
Q. And do you get any bonuses, incentives if the defendant is found guilty today?
A. No.
Q. Do you get disciplined of any negative action whatsoever if he’s found not guilty?
A. No.
Q. And after you make-are you familiar with the channels your cases go through after you make an arrest?
A. Yes.
Q. And do you have any say in whether or not the State charges your cases?
A. No.
Q. Do you get-have you ever had the State not charge any of your cases?
A. Yes.
Q. And do you get penalized in any way, shape, or form-
….
Q. So you don’t get penalized in any way, shape, or form if the State chooses not to go forward on any of your cases?
A. No.
Defense counsel objected repeatedly to such questions, but the objections were overruled.
The admissibility of evidence is within the discretion of the trial court; however, “[t]he trial court’s discretion is limited by the rules of evidence.”Johnston v. State, 863 So.2d 271, 278 (Fla.2003). Spangler urges on appeal that the trial court erred by overruling his objections to the State’s questioning of Shor and Coyle on their interest, bonuses, discipline, and incentives in relation to the outcome of the case because these questions were relevant only to bolster the credibility of Shor’s and Coyle’s testimony. The State says that its line of questioning did not constitute bolstering, but rather “established the evidence for the jury to consider in regards to weighing the evidence.”
*2 In Whitted v. State, 362 So.2d 668, 673 (Fla.1978), the Florida Supreme Court said that “the good character of a witness may not be supported unless it has been impeached by [e]vidence.”Here, the objectionable line of questioning occurred during the direct examinations of Shor and Coyle, before Spangler had the opportunity for impeachment.
In Simpson v. State, 824 So.2d 280, 282 (Fla. 4th DCA 2002), the Fourth District Court of Appeal found that the trial court erred by permitting the State to bolster the testimony of two law enforcement officers by asking them “whether they received bonuses or salary incentives for arrests or the number of guns they seized” when the officers’ testimony had not yet been impeached. The line of questioning at issue here is similar. It was error to allow it to proceed over objection.
We agree with Spangler that the error was not harmless because the State’s case was constructed entirely on the testimony of the two officers and because the State reinforced the impermissible bolstering by focusing on it during its closing argument. See Livingston v. State, 682 So.2d 591, 592 (Fla. 2d DCA 1996). This error requires a reversal for a new trial.FN1
FN1. Graham did not testify during trial, but Shor testified, during both direct and cross-examination, that he had released Graham due to her “honesty.” Based on that testimony, defense counsel attempted to introduce certified copies of Graham’s criminal conviction history, but the trial court would not allow it. Given our disposition on the main issue, we do not need to decide whether this was an abuse of discretion.
REVERSED and REMANDED.
TORPY, J., and PLEUS, R., Senior Judge, concur.

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Steven Randall RUIZ, Appellant, v. STATE of Florida, Appellee. No. 2D07-4700

Friday, January 16th, 2009

District Court of Appeal of Florida, Second District.
Steven Randall RUIZ, Appellant,
v.
STATE of Florida, Appellee.
No. 2D07-4700.
Jan. 16, 2009.
Appeal pursuant to Fla. R.App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Anthony K. Black, Judge.
STRINGER, Judge.
*1 Steven Ruiz seeks review of an order denying his “Motion for reconsideration of order denying motion for post-conviction relief and motion for court appointed attorney.”The motion was summarily denied as untimely pursuant to Florida Rule of Criminal Procedure 3.850(g). We reverse and remand for further proceedings to determine whether Ruiz’s time to file a postconviction motion was tolled and, if so, whether Ruiz’s motion states grounds for relief.
Ruiz entered a plea to charges of organized scheme to defraud, conspiracy to commit racketeering, and racketeering and was sentenced on September 8, 1998, to eleven years’ imprisonment. Ruiz was transferred in December 1998 to Colorado to serve his sentence pursuant to a protective custody agreement. No direct appeal was filed.
On September 5, 2006, Ruiz filed a rule 3.850 motion for postconviction relief and motion for court-appointed counsel. Ruiz’s motion asserted an ineffective assistance of counsel claim for failing to properly advise him regarding gain time eligibility and alleged a single subject rule violation regarding the statute under which he was convicted. On February 6, 2007, the motion was summarily denied as untimely because it was filed outside the two-year time limitation contained in rule 3.850(b). The motion for court-appointed counsel was also denied.
On August 30, 2007, Ruiz filed a motion for reconsideration of the order denying motion for postconviction relief and motion for court-appointed attorney. In this motion, Ruiz stated he was incarcerated outside of Florida, had no attorney, and had no access to Florida legal materials. Thus, Ruiz argued, the time to file a 3 .850 motion should have been tolled pursuant to Demps v. State, 696 So.2d 1296 (Fla. 3d DCA 1997). Ruiz realleged his claim of ineffective assistance of counsel, asserted his sentence was illegal or incorrect based on the gain time issue, and reasserted his request for counsel. Finally, Ruiz argued he should be allowed to withdraw his plea based on misadvice regarding his gain time eligibility.
On September 17, 2007, Ruiz’s motion for reconsideration was denied as untimely pursuant to rule 3.850(g). Ruiz filed a pro se notice of appeal, and his motion for appointment of counsel on appeal was granted by the lower court.
Florida’s “ ‘fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.’ “  Demps, 696 So.2d at 1297 (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)). The court stated in Demps that a defendant who “is housed in an out-of-state facility without either legal reference materials of the state of conviction or reasonable alternative means of access” is deprived of access to Florida courts in violation of his constitutional rights. Id. at 1298.The court held that the two-year time period provided for in rule 3.850 was tolled for the time in which the defendant was deprived of access to the Florida courts. Id. at 1299.
*2 This court adopted the Demps holding in Ramsey v. State, 965 So.2d 854 (Fla. 2d DCA 2007). In Ramsey, the postconviction court dismissed as untimely Ramsey’s rule 3.850 motion and subsequent motion for reconsideration without considering Ramsey’s allegations that the two-year time limit was tolled while he was incarcerated out of state, lacked access to Florida legal materials, and lacked representation by counsel. Id. We reversed and remanded, directing that the court hold further proceedings on the timeliness issue if necessary and directing that the court consider the motion on its merits if it was determined to be timely. Id. at 856.
As in Demps and Ramsey, it appears from Ruiz’s motion that the time for filing his rule 3.850 motion was tolled due to his continuous out-of-state incarceration. The court thus erred by summarily denying the motion without consideration of this argument, and we reverse and remand for further proceedings. Should the court determine Ruiz’s time to file a motion was in fact tolled, the court shall treat Ruiz’s motion for reconsideration as a second rule 3.850 motion and review it on the merits.
In light of the postconviction court’s order finding it was constitutionally necessary to appoint Ruiz counsel in this appeal and in light of his continued out-of-state incarceration, we direct the court to appoint counsel to assist Ruiz in any remand proceedings. See Bynum v. State, 932 So.2d 361, 362 (Fla. 2d DCA 2006).
Reversed and remanded with directions.
DAVIS and LaROSE, JJ., Concur.

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Kevin E. THOMAS, Appellant, v. STATE of Florida, Appellee. No. 2D07-5896

Friday, January 16th, 2009

District Court of Appeal of Florida, Second District.
Kevin E. THOMAS, Appellant,
v.
STATE of Florida, Appellee.
No. 2D07-5896.
Jan. 16, 2009.
Appeal pursuant to Fla. R.App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Mark R. Wolfe, Judge.
VILLANTI, Judge.
*1 Kevin Thomas appeals from the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. The postconviction court denied Thomas’s motion as untimely. Because the motion was not untimely under rule 3.853 or section 925.11, Florida Statutes (2007), we reverse and remand for consideration on the merits.
Thomas was convicted after a jury trial of multiple charges of sexual battery with a firearm, kidnapping with a firearm, burglary of a dwelling with assault with a deadly weapon, robbery with a firearm, grand theft motor vehicle, grand theft firearm, and conspiracy to commit armed burglary arising from events that occurred on April 20, 1992. He was subsequently sentenced to multiple consecutive lengthy sentences. On direct appeal, this court affirmed Thomas’s convictions and sentences without opinion. Thomas v. State, 645 So.2d 473 (Fla. 2d DCA 1994) (table decision).
On November 14, 2005, Thomas filed a motion pursuant to rule 3.853 seeking postconviction DNA testing of various evidence. Thomas filed the motion solely as to the two sexual battery convictions, and he alleged that DNA testing would establish that he was not the one who sexually battered the victims.
On October 25, 2006, the postconviction court dismissed Thomas’s November 14 motion as facially insufficient. The postconviction court found that Thomas’s motion failed to include a statement of the facts and location of the evidence to be tested as required by rule 3.853(b)(1) and failed to include a statement that identification was a genuinely disputed issue at trial as required by rule 3.853(b)(4). In its order dismissing Thomas’s November 14 motion, the postconviction court “granted” Thomas thirty days in which to file a facially sufficient motion. Thomas did not file a facially sufficient motion within thirty days of the postconviction court’s October 25 order; however, the postconviction court never entered any further ruling on Thomas’s November 14 motion.
Subsequently on August 22, 2007, Thomas filed an amended motion for postconviction DNA testing under rule 3.853. In the amended motion, Thomas admitted that he filed a previous rule 3.853 motion and that the previous motion was dismissed as facially insufficient. Thomas also admitted that he was given thirty days to file a facially sufficient motion and that he failed to do so within that time frame. Thomas asserted that his amended motion should nevertheless be considered on its merits because neither rule 3.853 nor section 925.11 place any time limits on seeking postconviction DNA testing.
However, the postconviction court denied Thomas’s amended motion as untimely, presumably because Thomas failed to amend his original motion within the thirty-day time limit imposed by the court and not because of any time limit imposed by any rule or statute. The postconviction court provided no legal basis for its apparent belief that the thirty-day time limit it had imposed on Thomas superseded the unlimited time allowed Thomas by section 925.11 and rule 3.853. The postconviction court noted only that Thomas had provided no explanation for his “lengthy delay” in filing the amended motion and that filing the amended motion nine months after the thirty-day deadline imposed by the earlier order rendered it untimely. Thomas now appeals this ruling.
*2 As Thomas correctly points out, neither section 925.11 nor rule 3 .853 provide any time limit for filing motions seeking postconviction DNA testing. When initially enacted, section 925.11 provided a deadline of two years after a judgment and sentence became final or October 1, 2001, whichever was later. SeeCh.2001-97, § 1, Laws of Fla. The statute was subsequently amended in 2004 to extend the deadline to four years after a judgment and sentence became final or October 1, 2005, whichever was later. SeeCh.2004-67, § 1, Laws of Fla. Finally, in 2006, the legislature removed the deadline for seeking postconviction DNA testing altogether. SeeCh.2006-292, § 1, Laws of Fla. Thus, the statute now provides as follows:
A petition for postsentencing DNA testing under paragraph (a) may be filed or considered at any time following the date that the judgment and sentence in the case becomes final.
§ 925.11(1)(b), Fla. Stat. (2007). Rule 3.853(d) similarly provides that motions for postconviction DNA testing may be “filed or considered at any time.”Thus, it is clear that Thomas’s amended motion filed in August 2007 was not untimely under either the rule or the statute and should not have been denied on that basis.
In fact, it does not appear that the postconviction court denied Thomas’s amended motion as untimely under either the statute or the rule. Instead, it appears that the postconviction court denied Thomas’s amended motion as untimely because he did not file the amended motion within thirty days of the order dismissing his initial motion. However, Thomas’s failure to file his amended motion within this time frame does not render his amended motion untimely for three reasons.
First, because Thomas’s November 14 motion was not denied on the merits, he was legally entitled to file a second motion attempting to allege sufficient grounds for relief until the time limit for filing new motions had expired. Cf. Spera v. State, 971 So.2d 754, 758-59 (Fla.2007) (holding that a trial court may not summarily dismiss a timely but successive motion for postconviction relief under rule 3.850 if that motion raises issues that were summarily dismissed based on legal insufficiency); Mancebo v. State, 931 So.2d 928, 929 (Fla. 3d DCA 2006) (“Because there was no denial on the merits and the 3.850 time limit had not expired, the defendant was allowed to file a second Rule 3.850 motion in an attempt to allege legally sufficient claims.”).
Here, Thomas’s November 14 motion was dismissed as being legally insufficient. There was no denial on the merits. Therefore, Thomas was allowed to file a second rule 3.853 motion in an attempt to allege legally sufficient claims any time before the time limit for filing under rule 3.853 had “expired.” Because rule 3.853 does not have a time limit, Thomas’s amended motion could not have been untimely as a matter of law.
Second, a postconviction court may not arbitrarily shorten the time allowed for filing a facially sufficient rule 3.853 motion in contravention of the plain language of section 925.11 and rule 3.853. In removing the time limit for filing rule 3.853 motions and opening the availability of the motion to all convicted persons, not just those who went to trial, the legislature codified a policy that DNA testing be “a means by which to challenge convictions when there is a ‘credible concern that an injustice may have occurred and DNA testing may resolve the issue.’ “  Zollman v. State, 820 So.2d 1059, 1062 (Fla. 2d DCA 2002) (quoting In re Amendment to Fla. Rules of Criminal Procedure Creating Rule 3.853 (DNA Testing), 807 So.2d 633, 636 (Fla.2001) (Anstead, J., concurring)). Permitting a postconviction court to impose an arbitrary time limit on a defendant to file an amended motion would not foster this policy.
*3 Unlike the situation under rule 3.850 in which a postconviction court may, in its discretion, grant a defendant a limited time in which to amend a motion after the two-year time for filing has expired, allowing a postconviction court to set a deadline for filing an amended motion under rule 3.853 could only reduce the time the defendant has to seek relief, not expand it. While a postconviction court may have the discretion to expand the time a defendant has to seek postconviction relief, it does not have the discretion to reduce the time to something less than that provided for by the legislature. Enforcing an arbitrary deadline for filing an amended motion set by the postconviction court would undercut the purpose of the statute and rule and result in some defendants having less time to seek DNA testing than others. This inequitable result cannot be sustained even if the postconviction court specifically advises the defendant that failing to file an amended motion within the court-imposed time frame will result in the defendant being forever barred from seeking postconviction DNA testing.
We recognize that in Bain v. State, 963 So.2d 913, 914 (Fla. 2d DCA 2007), this court stated that Bain’s amended rule 3.853 motion could not be dismissed as untimely because “the postconviction court set no filing deadline” for the amended motion. However, that statement was dicta, and the primary holding was that Bain’s motion could not be denied because “no time limit applies to rule 3.853 motions for postconviction DNA testing filed on or after October 1, 2005.”Id. Because the postconviction court in Bain had not set a filing deadline for the amended motion, the effect of any filing deadline that might have been set was not actually considered or ruled upon by this court. Therefore, the dicta in Bain does not control the resolution of this case, in which the postconviction court purported to set just such a deadline in contravention of section 925.11 and rule 3.853.
Third, contrary to the postconviction court’s ruling, Thomas had no obligation to justify his delay in filing the amended motion. In Glenn v. State, 954 So.2d 732 (Fla. 1st DCA 2007), the First District rejected the State’s argument that a defendant who had waited seven years to seek postconviction DNA testing had an obligation to allege facts to justify his delay. In doing so, the First District noted that “nothing in rule 3.853 or section 925.11, Florida Statutes (2006), places this type of burden on the defendant .”Id. at 734.The court also noted that “in light of the strict pleading requirements found in rule 3.853, this type of burden cannot be inferred.”Id.
Here, the postconviction court also attempted to place just such a burden on Thomas to justify the nine-month delay in filing his amended motion. However, as noted in Glenn, neither the rule nor the statute requires Thomas to justify his delay, and neither the postconviction court nor this court should require a defendant to do so.
*4 Because section 925.11 and rule 3.853 do not place any time limits on a defendant’s right to seek postconviction DNA testing, the postconviction court could not legally deny Thomas’s amended motion as untimely. Therefore, we reverse the summary denial and remand for reconsideration of Thomas’s motion on the merits.
Reversed and remanded for further proceedings.
KELLY and KHOUZAM, JJ., Concur.

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