Florida Criminal Law Opinions

LEXTER CABAN, Appellant, v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-279.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 20, 2009.

3.850 Appeal from the Circuit Court for Osceola County, Jon B. Morgan, Judge.

Ryan J. Sydejko, of Loren Rhoton, P.A., Tampa, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

Defendant, Lexter Caban ["Caban"], appeals the summary denial of his rule 3.850 motion for post-conviction relief. We find that one issue has merit and requires reversal.

On July 19, 1999, Caban was babysitting the two children, ages five and two, of his girlfriend while she was at work. A passerby found Caban outside the apartment, crying, and in search of help while cradling Jonathan, the two-year-old, and trying to rouse him. Caban said that he had put Jonathan in bed for a nap, and Jonathan had fallen off the bed. The passerby summoned her brother who performed CPR until paramedics arrived. Jonathan was transported to Osceola Regional Hospital. Dr. Kenneth Byerly noted that Jonathan had bruising over the right eyelid and was experiencing intermittent seizures. The right pupil was dilated, indicating to Dr. Byerly a right side intracranial injury. A CAT scan was performed and surgery was immediately performed to evacuate a large subdural hematoma. During the procedure, Jonathan went into cardiac arrest, and he was airlifted to the intensive care unit at Arnold Palmer Hospital. Three days later, Jonathan died.

Caban was charged with first-degree felony murder and aggravated child abuse. He was found guilty of those charges and was sentenced to natural life on the murder charge and a concurrent ten-year term of imprisonment on the aggravated child abuse conviction. His judgment and sentence were affirmed on appeal. See Caban v. State, 892 So. 2d 1204 (Fla. 5th DCA 2005).

On direct appeal, the main contention was that there was insufficient circumstantial evidence of guilt and the trial court should have granted Caban’s motion for judgment of acquittal. Caban contended that the child had sustained the fatal injury when he fell off the bed. The trial was essentially a contest between experts. Dr. Robert Gold, a pediatric ophthalmologist testified that, consistent with “shaken baby syndrome,” the child had hemorrhages in all layers of the central retina of each eye, with no sign of external ocular trauma. The doctor opined that he would not expect to see retinal hemorrhage result from a fall from a thirty-two-inch high bed on to a carpeted floor. Dr. John Tilelli, an intensive care physician, testified that the CAT scan showed subdural blood, which usually occurs as a result of a direct impact. Moreover, the doctor testified that the child had both a translational or impact injury and also a rotational injury, and the child’s history of falling off the bed was not consistent with the injuries or their severity. His opinion was that the child suffered shaken baby syndrome, or whiplash impact syndrome. The doctor explained that when a child is violently shaken, the head rocks to and fro, causing the child’s brain to twist and turn. The twisting and turning causes injury to the brain and subsequent swelling. Dr. Tilelli testified that in twenty years, he had never seen a child with as severe an injury from a fall off a bed. He testified that it was likely that the injuries resulted from child abuse. Dr. Gary Pearl also testified for the State as an expert. He testified that the child’s head injuries were consistent with shaken baby syndrome. Dr. Merle Reyes also opined that this was a case of shaken baby syndrome.¹

The defense called two expert witnesses. Dr. Ljubisa Dragovic testified that the child died of blunt force trauma to the head and not from shaking. Dr. Jonathon Plunkett, who is perhaps the most widely known “shaken baby syndrome” skeptic, testified that short distance falls can cause serious injury and death and that the child’s death was caused by a subdural hematoma. He thought it unlikely that the injury was caused by a roll off the bed, and found it more likely that the child was standing or jumping when he fell off the bed.

Following the verdict, Caban filed a motion for new trial. The trial judge expressed concern over improper impeachment of the defense experts through the testimony of the State’s experts:

Because this was a battle of the experts, it does concern me that there was an improper impeachment of the defense experts in the case. There is clear case law that says one expert cannot comment on the qualifications of another expert, and without objection, the state questioned their experts about the qualification of the defense experts.

The judge further observed the prejudice suffered by Caban as a result of the improper impeachment:

And I think anybody who sat through the trial could see almost the physical reaction of the jury when one of the state’s experts described the defense experts as simply folks who travel around the country and testify for defendants to try and get them off in serious cases. It’s almost as if the jurors just shut down and didn’t care what else the defense experts had to say.

Because defense counsel did not object to this improper testimony, the trial judge ruled the impeachment issue would have to be raised in a post-conviction proceeding.

In this rule 3.850 proceeding, Caban argues that defense counsel was ineffective for failing to object and to preserve for appellate review improper impeachment of Dr. Plunkett by the State’s expert witnesses. Caban first complains about Dr. Pearl, who had given direct testimony for the State supporting the theory of shaken baby syndrome, particularly the characteristic of retinal hemorrhage. Defense counsel cross-examined him by asking about his efforts to keep up with all medical journals, and asked if he was familiar with four studies, including Dr. Plunkett’s paper, which posit that short distance falls can cause subdural hemorrhages. Dr. Pearl testified that he had read three of the studies, including Dr. Plunkett’s paper, but expressed the view that their opinion was “a very small minority.” On re-direct examination, the prosecutor elicited testimony from Dr. Pearl that an ad hoc committee of the National Association of Medical Examiners ["NAME"] held a position in direct opposition to the positions of Dr. Plunkett, and that an article compiled by Dr. Mary Chase, of the ad hoc committee, also rejected Dr. Plunkett’s views. The article was not entered into evidence, however. There was no defense objection.

Defense counsel also failed to object when State expert witnesses, Drs. Tilelli, Reyes, and Alexander, attacked the credibility of Dr. Plunkett. Dr. John Tilelli testified that Dr. Plunkett’s opinion was not supported or substantiated by his data and that Dr. Plunkett’s interpretation of his data is incorrect. Dr. Reyes was asked on cross-examination whether she ever testified for the defense, and Dr. Reyes answered in the negative, but then volunteered that “people who will testify for the defense are paid.” Dr. Reyes was also asked whether particular experts were used by defense attorneys all over the country, and Dr. Reyes answered in the affirmative. Dr. Reyes also agreed with the prosecutor that if you “[want] to make a lot of money” you put your name on a defense attorney list, and that when these defense experts become known in their fields, their income substantially increases.

The prosecutor also elicited testimony concerning Dr. Plunkett by asking Dr. Alexander: “And the majority of opinion you indicated in the pediatric community, are you also aware of the opinion of the other associations in the medical community as far as his [Plunkett's] article and his testifying?” Dr. Alexander testified that “the National Association of Medical Examiners has a position paper on abusive head trauma, which basically is the same as the position paper the American Academy of Pediatrics has, and that’s really a huge variance with Dr. Plunkett.” Dr. Alexander further expressed the opinion that Dr. Plunkett’s conclusions were not generally accepted by the medical community, and that his data was “soft.” Dr. Alexander testified that Dr. Plunkett’s conclusions “are not accepted as even following from his own data.” Dr. Alexander further testified that he had heard of Dr. Plunkett because of his testifying for defense attorneys in cases of child abuse. Dr. Alexander also testified that in the last several years, the number of cases where he was called in had increased because the defense had retained experts like Dr. Plunkett.

Caban contends that an expert witness may not testify about the credibility of another witness and asserts that the attack upon Dr. Plunkett was exacerbated by inadmissible hearsay as to the opinions of NAME and Dr. Chase. He claims counsel was ineffective for failing to object.

Caban is correct that an expert may not comment on the credibility of other witnesses and that this was improper impeachment. See e.g., § 90.706, Fla. Stat. (2007); Sanchez v. Nerys, 954 So. 2d 630 (Fla. 3d DCA), rev. denied, 969 So. 2d 1014 (Fla. 2007); Linn v. Fossum, 946 So. 2d 1032 (Fla. 2006); Morgan v. State, 639 So. 2d 6, 12 (Fla. 1994); Carver v. Orange County, 444 So. 2d 452, 454 (Fla. 5th DCA 1983) (improper to impeach an expert witness by eliciting from another expert witness what he thinks of that expert).

A successor judge heard the post-conviction motion. He ruled that the prosecutor’s re-direct of Dr. Pearl was proper because the defense opened the door on cross-examination. The successor judge also denied relief on the basis that Dr. Tilelli and Dr. Alexander were merely commenting on the validity of the shaken baby syndrome theory and articles published in opposition to it, rather than the credibility of Dr. Plunkett personally, and that Dr. Reyes was appropriately responding to an attack on her own credibility based on never having testified for the defense. However, we conclude the State expert witnesses crossed the line in attacking Dr. Plunkett.

Questions that seek to elicit an opinion of the witness critical of the validity of the opinions by the opposing party’s expert are improper. See Carlton v. Bielling, 146 So. 2d 915 (Fla. 1st DCA 1962). An expert may properly explain his opinion on an issue in controversy by outlining the claimed deficiencies in the opposing expert’s methodology, so long as the expert does not attack the opposing expert’s ability, credibility, reputation or competence. See Network Publ’s, Inc. v. Bjorkman, 756 So. 2d 1028 (Fla. 5th DCA 2000). It is not improper to pose a question in a way to cause one expert to delineate the factors used in forming the opposing expert’s opinion and then do the same as to his own opinion, and compare the predicates upon which the two opinions are based. See Nowitzke v. State, 572 So. 2d 1346 (Fla. 1990); Mathis v. O’Reilly, 400 So. 2d 795 (Fla. 5th DCA 1981). Schwab v. Tolley, 345 So. 2d 747 (Fla. 4th DCA 1977); Ecker v. Nat’l Roofing, Inc., 201 So. 2d 586 (Fla. 3d DCA 1967). Dr. Plunkett can be questioned as to possible bias in testifying for the defense, or asked about contrary opinions in authoritative literature, but the place to do so is on cross-examination of Dr. Plunkett, not through disparagement by other experts.

The failure to object appears to have been prejudicial in this circumstantial evidence case where expert opinion testimony was crucial to both sides, as the judge who tried this case observed. An evidentiary hearing should be held on this rule 3.850 issue. We find no merit to the other issues raised in the motion.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA and MONACO, JJ., concur.

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Notes:

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LATONYA YOUNG, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-238.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 20, 2009.

Appeal from the Circuit Court for Orange County, Jenifer Davis, Judge.

James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

In this probation violation case, we affirm the lower court’s determination that Appellant violated her probation because she committed a new law violation, contrary to condition 5 of her probation. We remand this case, nevertheless, with instructions that the trial court reduce its oral pronouncement to a written order. See Patt v. State, 876 So. 2d 1278 (Fla. 5th DCA 2004) (affirming revocation of community control and remanding for entry of written order). There is insufficient evidence to support the trial court’s oral findings that Appellant violated other conditions of her probation, and therefore, the written order shall include only the condition 5 violation.

AFFIRMED AND REMANDED.

SAWAYA, TORPY and EVANDER, JJ., concur.

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THARIN R. HARVEY, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-1557.

Case No. 5D08-1677.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 20, 2009.

Appeal from the Circuit Court for Seminole County, O.H. Eaton, Jr., Judge.

James S. Purdy, Public Defender, and Meghan Ann Collins, 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.

Appellant, Tharin Harvey ["Harvey"], appeals the judgments and sentences imposed after he entered a plea of no contest to violation of probation, felony driving while license suspended (habitual) and giving a false name or identification, pursuant to a plea agreement.

Prior to the start of the sentencing hearing, Harvey’s counsel informed the court that Harvey wished to withdraw his plea and asked the court to appoint conflict-free counsel. The following exchange took place between Harvey’s lawyer and the court:

Defense Counsel: [Harvey] contacted me and I spoke to him as of yesterday and he’s informed me that he’d like to pursue withdrawing his plea.

The Court: Okay.

Defense Counsel: He believes there’s certain issues that he’d like to pursue as far as withdrawing his plea and —

The Court: Okay.

Defense Counsel: — obviously, I’m not in a situation to pursue those issues. I informed [Harvey] that would just put him back to square one facing the charges.

The Court: Does he have any idea about what possible grounds he would have for withdrawing his plea?

Defense Counsel: Your Honor, I — I don’t know that there are any grounds. Obviously, the problem is I’m a bit limited in my ability to counsel — or, I’m not — I’m limited in my ability to counsel [Harvey] on that.

The Court: Well, I — I don’t know what you’re asking me to do.

Defense Counsel: Your Honor, I’m asking the Court to appoint the conflict free counsel so that [Harvey] can speak to them regarding his options regarding trying to withdraw his plea. I’ve informed [Harvey] of that — The Court: That just doesn’t make any sense to me. That would mean that any time anybody wants to enter a plea and they come to sentencing and get cold feet, they just say: Well, I want the Government to pay — pay me — pay for another lawyer to give me legal advice so that I can file a Motion that probably has no merit; why would I do that?

Defense Counsel: Your Honor, I — I just — It’s my understanding that it’s [sic] current case law that when somebody has that issue that we — we need to get them counsel.

. . . .

The trial court reiterated that Harvey had sworn at the plea hearing that he understood the plea agreement and that he wished to enter the plea. Accordingly, the trial court denied the request for conflict-free counsel and sentenced Harvey.

We understand the trial court’s frustration at the probable waste and futility that the appointment of conflict-free counsel entails in a case such as this. Nevertheless, when a defendant seeks to withdraw his plea prior to sentencing, based on dissatisfaction with counsel’s representation, and counsel agrees that he cannot effectively advise the defendant, there is a conflict and appointment of conflict-free counsel is necessary. See Rouse v. State, 990 So. 2d 1197 (Fla. 5th DCA 2008).

REVERSED and REMANDED.

PALMER, C.J. and SAWAYA, J., concur.

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JARRORD ROBERTS, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D08-1362.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 20, 2009.

Appeal from the Circuit Court for Marion County, Brian Lambert, Judge.

James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

COHEN, J.

Jarrord Roberts appeals the denial of his requested jury instruction on the independent act doctrine. Finding no error, we affirm.

Roberts was charged, as a codefendant, with the first-degree murder of Diana Miller, attempted first-degree murder of James Miller, robbery of Diana Miller and/or James Miller with a firearm, and kidnapping of Sheila Miller. The charges arose from events that transpired at the Villages in Marion County, Florida.

Sheila Miller was residing with her parents, James and Diana Miller, when she invited Renaldo McGirth¹ to visit her while she convalesced from an automobile accident that left her confined to a wheelchair. Sheila had not seen McGirth for almost two years, and the purpose of the visit was vague. McGirth was purportedly bringing her a gift, the nature of which appeared to be illicit. McGirth arrived with Roberts, his cousin, and Theodore Houston.² Mrs. Miller greeted McGirth and all three went inside.³

McGirth, Houston, and Sheila went into Sheila’s bedroom, while Roberts remained in the living room with Mrs. Miller. Once in the bedroom, McGirth produced a small handgun and instructed Houston to tape Sheila’s mouth and bind her hands with duct tape which the trio had purchased on the way to the Miller residence. Mrs. Miller was called into the room and pushed onto the bed, where either McGirth or Houston demanded money. When Mrs. Miller stated she only had $70 and rose to get the money, McGirth shot her in the chest. The wound was not fatal. Just prior to or just after Mrs. Miller was shot, Roberts gathered up the Millers’ wallets and car keys and handed them to McGirth. Mrs. Miller was then taken to the computer room in an unsuccessful attempt to order cell phones over the internet. Roberts brought Mr. Miller, who had been in the master bedroom, to Sheila’s bedroom. Mr. Miller was forced to lie on the floor, pinned by a foot on his head.

Once the couple’s credit cards and a personal identification number were obtained, Mrs. Miller was placed on the floor of Sheila’s bedroom at Mr. Miller’s feet. Roberts removed Sheila from the home and put her in the Millers’ van. Inside the home, McGirth shot both Mr. and Mrs. Miller in the head as they lay on the bedroom floor. Mr. Miller survived; however, Mrs. Miller was not as fortunate. Bleeding from his head wound, Mr. Miller was able to exit the bedroom window and struggled to a neighbor’s home, from where the sheriff’s office was summoned.

McGirth, Roberts, and Sheila, ostensibly the victim of a kidnapping, left in the van. Houston followed in a silver Ford, the vehicle in which the trio had arrived. Proceeding to an automated teller machine (“ATM”), they withdrew $500, which McGirth divided into thirds. They then drove to a K-Mart in Belleview, Florida, where they once again unsuccessfully tried to locate a particular type of cell phone. Leaving the silver Ford in the K-Mart parking lot, they travelled to a mall in Gainesville, Florida. Attempts to withdraw money at the mall ATMs and purchase items from stores were unsuccessful.

At the Miller home, law enforcement secured the scene and began tracing the use of the Millers’ credit cards. A BOLO was issued for the van. Still driving the van, Roberts, McGirth, Houston, and Sheila returned to Marion County, stopping at a convenience store to purchase snacks. Spotted by law enforcement, McGirth led the deputies on a high speed chase. The chase ended after the van was slowed by the use of stop sticks and disabled by the use of a PIT maneuver,⁴ which caused the van to roll. Houston was thrown from the van and pinned beneath it as it rolled; McGirth and Roberts exited the van and fled in opposite directions. Both were apprehended following a relatively short chase and with the assistance of canines. A search incident to Roberts’ arrest produced jewelry and medication from the Miller home, as well as Mr. Miller’s wallet. Roberts’ fingerprints were found on the Millers’ credit cards. A jury convicted Roberts of robbery with a firearm, and the lesser included charges of manslaughter and attempted manslaughter. He was acquitted of the kidnapping with a firearm charge relating to Sheila.

At trial, Roberts’ request for a jury instruction on the independent act doctrine was declined.⁵ Roberts contends this was error and that he was entitled to such an instruction because there was no evidence presented that there was a plan to rob or shoot anyone. He further contends that he did not know McGirth had a gun because it was hidden in McGirth’s backpack and he was not present when the shots were fired.

The “independent act” doctrine applies “when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, `which fall outside of, and are foreign to, the common design of the original collaboration.’” Ray v. State, 755 So. 2d 605, 609 (Fla. 2000) (quoting Dell v. State, 661 So. 2d 1305, 1306 (Fla. 3d DCA 1990)). Under this limited exception, a codefendant is not punished for the independent act of a cofelon who exceeds the scope of the original criminal plan. Id. However, when the codefendant was a willing participant in the underlying felony and the murder was committed to further the original criminal plan, the codefendant is not entitled to an independent act instruction. See id.; Lovette v. State, 636 So. 2d 1304, 1306 (Fla. 1994).

In Ray, the defendant and his cousin planned and committed an armed robbery of a liquor store. After fleeing the scene of the robbery, they encountered mechanical trouble with their getaway vehicle requiring them to pull off the road to fix the problem. A deputy arrived on the scene and a gun battle ensued resulting in the deputy’s death. At trial, Ray’s request for an “independent act” jury instruction was denied. The supreme court affirmed the denial, holding that Ray and his co-felon were not entitled to an independent act instruction because they were “participants in the robbery and the murder resulted in forces they set in motion.” Id. at 609. The supreme court also found there was no evidence to support giving the instruction because the death occurred while they were fleeing the crime scene. Id.

In Lovette, Lovette and his codefendant, Thomas Wyatt, escaped from a prison road gang in North Carolina. As they worked their way south, they stole cars, firearms and committed robberies. Arriving in Vero Beach, they committed an armed robbery of a Domino’s pizza store. While Lovette held the store manager at gunpoint until the store’s safe was opened, Wyatt took the other employees to the rear of the store. Lovette stated he thought Wyatt was going to lock the employees in a closet, but instead Wyatt shot and killed them. Apparently based on this belief, Lovette denied culpability for the employees’ murders and requested an independent act jury instruction. The supreme court held the instruction was properly denied, stating:

Although Lovette did not fire the shots that killed the victims, he was a willing participant in the armed robbery of the store. These killings lessened the immediate detection of the robbery and apprehension of the perpetrators and, thus, furthered the robbery. There is a causal connection between the robbery and the homicides, and both Lovette and Wyatt are guilty of felony murder. The evidence, therefore, did not support an independent act theory as to the murders, and the court did not err in refusing to instruct the jury on such theory.

Id. at 1307; see also Williams v. State, 987 So. 2d 1 (Fla. 2008); Mills v. State, 875 So. 2d 823 (Fla. 2d DCA 2004).

In Cannon v. State, 34 Fla. L. Weekly D136 (Fla. 1st DCA Jan. 12, 2009), the defendant planned a robbery and enlisted the help of her 13-year old cousin, Terrell Powell. Powell stole a gun and money to purchase ammunition. Cannon subsequently purchased the ammunition with the stolen money. The plan called for Powell to rob Aaron Wilson at his home. After waiting outside Aaron Wilson’s home, Powell observed a car park behind the home, its occupant exit the vehicle and enter the home. When that individual left the house to sit on the back steps, Powell approached and shot the victim when he swung a pipe at him. Powell then took the victim’s wallet and returned to Cannon’s home. The victim was Moses Wilson, Aaron Wilson’s brother.

At trial, Cannon requested an independent act jury instruction because the murder of Moses Wilson was outside the scope of the plan to rob Aaron Wilson. Powell testified that the robbery plan never contemplated a murder and the only reason he shot Moses Wilson was because Moses had swung a pipe at him. In affirming the denial of the jury instruction the court stated, “Moreover, a shooting during an armed robbery is a foreseeable event,” citing Washington v. State, 873 So. 2d 1268 (Fla. 4th DCA 2004), and Perez v. State, 711 So. 2d 1215 (Fla. 3d DCA 1998).

These cases indicate that an independent act instruction is inappropriate when the unrebutted evidence shows the defendant knowingly participated in the underlying criminal enterprise when the murder occurred or knew that firearms or deadly weapons would be used.⁶ In contrast, cases reversing for the failure to give the independent act instruction typically are devoid of one or the other.

Barfield v. State, 762 So. 2d 564 (Fla. 5th DCA 2000), three defendants planned to steal an ATM outside a convenience store. While two of the defendants loaded the ATM into their jeep, Zantiz went into the store brandishing a gun and committed a robbery. The Barfield brothers were unaware of Zantiz’s plan to commit a robbery or that he had a firearm. In reversing for failing to give the independent act instruction, this court discussed the inherent tension between the principal and independent act instructions. Id. at 566-67. Under the principal theory, one who helps another commit or attempt to commit a crime is responsible for all of the acts of her fellow codefendant if she had a conscious intent the criminal act be done and performed some act, by word or deed, that was intended to aid in inciting, causing, encouraging, assisting, or advising the other person to either commit or attempt to commit the crime. The independent act theory allows, under narrow circumstances, a limit to that broad scope of culpability. See also Flemmings v. State, 838 So. 2d 639 (Fla. 5th DCA 2003) (independent act instruction should have been given where evidence indicated Flemmings did not know of the robbery plan); McGee v. State, 792 So. 2d 624 (Fla. 4th DCA 2001) (reversing for failing to give an independent act instruction where defendant’s unrebutted statement was that he drove codefendant to victim’s house solely to buy him marijuana and he did not know of codefendant’s plan to rob or that he was armed).

In applying these principles to the case at bar, we conclude the trial judge properly declined to give the independent act instruction. There was ample evidence that Roberts knew of and participated in the robbery of the Millers. He was present when the duct tape was purchased and knew McGirth not only was armed but shot Mrs. Miller. Roberts participated in stealing property from the Miller residence after Mrs. Miller was shot, assisted in moving Mr. Miller into Sheila’s bedroom, put Sheila in the van and, at the time of his arrest, was in possession of Mr. Miller’s wallet and medication. Furthermore, Mrs. Miller’s murder and the attempted murder of Mr. Miller undoubtedly lessened the immediate detection of the robbery. As in Lovette, Roberts was a willing participant in the robbery and the murders were in furtherance of that plan. Roberts was not entitled to an independent act instruction because there simply was no evidence to support it.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.

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Notes:

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STATE OF FLORIDA, Appellant,
v.
S.S., Appellee.

Case No. 2D07-6066.

District Court of Appeal of Florida, Second District.

Opinion filed March 20, 2009.

Appeal from the Circuit Court for Pasco County, Linda H. Babb, Judge.

Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellant.

James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.

LaROSE, Judge.

The State argues that the trial court erred in failing to impose a mandatory six-month driver’s license suspension on S.S., a juvenile. We agree and reverse.

S.S. pleaded no contest in several cases, including one involving possession of marijuana. See § 893.13(6)(b), Fla. Stat. (2007). The trial court withheld adjudication and placed S.S. on probation. The State asked the trial court to impose the mandatory license suspension. See § 322.056(1), Fla. Stat. (2007). The trial court refused to do so, implying that the sanction was not required when adjudication was withheld.

Section 322.056(1) mandates suspension when a no contest plea is entered, adjudication is withheld, and the underlying offense is one enumerated under the statute—as is section 893.13. See State v. C.C.S., 779 So. 2d 465 (Fla. 2d DCA 2000); State v. R.D.H., 779 So. 2d 465 (Fla. 2d DCA 2000); State v. J.V.W., 739 So. 2d 173 (Fla. 2d DCA 1999).

S.S. concedes that suspension is mandatory but argues that we should have dismissed the State’s appeal. We disagree. The State filed a premature notice of appeal after the trial court’s oral pronouncement of judgment but before rendition of a written judgment. Florida Rule of Appellate Procedure 9.110(l) allows a premature notice of appeal to vest jurisdiction in the appellate court when a final order is rendered before dismissal of the appeal or when the appellate court, in its discretion, permits rendition of a final order. See also State v. Blaney, 722 So. 2d 220, 221-22 (Fla. 5th DCA 1998) (explaining that a notice of appeal filed after oral pronouncement of judgment, but before judgment is reduced to writing and entered, should not be dismissed on ground it is premature; rather, the notice of appeal prematurely filed should exist in a state of limbo until judgment is rendered, at which time the notice matures and vests jurisdiction in the appellate court). In this case, we exercised our discretion and permitted the rendering of the judgment.

Reversed and remanded with instructions to impose the mandatory license suspension.

CASANUEVA and DAVIS, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

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JUAN MALDONADO MORALES, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-4352

District Court of Appeal of Florida, Second District.

Opinion filed March 20, 2009.

Appeal from the Circuit Court for Hillsborough County; Nick Nazaretian, Acting Circuit Judge.

James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Robert J. Krauss, Assistant Attorney General, Tampa, for Appellee.

WHATLEY, Judge.

This is an appeal pursuant to Anders v. California, 386 U.S. 738 (1988), of Morales’s conviction of aggravated assault on a law enforcement officer and his sentences for two misdemeanors. After his motion for postconviction relief was granted in part, Morales entered a plea of guilty to the felony in exchange for a sentence of fifteen years’ imprisonment, but he did not enter a plea to the misdemeanors. In a motion to correct illegal sentence filed with regard to the felony, Morales pointed out that no action had been taken on the misdemeanors. In response, the trial court sentenced him to concurrent terms of 364 days in county jail on the two counts. Morales filed a second motion to correct illegal sentence asserting that it was improper to sentence him without his having entered a plea to the charges or having been found guilty of them. The State then nol prossed the charges, so the trial court denied the second motion as moot.

A trial court may only sentence a defendant who has been adjudicated guilty, and Morales had not been adjudicated at the time the court sentenced him. See Fla. R. Crim. P. 3.700(a) (“Sentence defined. The term sentence means the pronouncement by the court of the penalty imposed on a defendant for the offense of which the defendant has been adjudged guilty.” (Emphasis supplied).) Accordingly, we reverse Morales’s sentences for the two misdemeanors and remand to the trial court with directions that it vacate those sentences nunc pro tunc to April 22, 2008, the day before the State nol prossed the charges.¹

Reversed and remanded with directions.

NORTHCUTT, C.J., and LaROSE, J., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

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JARVIS McBRIDE, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D07-1244.

District Court of Appeal of Florida, Second District.

Opinion filed March 20, 2009.

Appeal from the Circuit Court for Lee County; Jack R. Schoonover, Associate Senior Judge.

James Marion Moorman, Public Defender, and Gonzalo Alberto Gayoso, Special Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

JAMES R. CASE, Associate Senior Judge.

Jarvis McBride seeks review of his judgment and sentence for manslaughter and providing a false name, but his issues on appeal relate solely to the manslaughter conviction. McBride argues that the trial court abused its discretion in giving a principals jury instruction and in denying his motion for judgment of acquittal. We reverse based on the second argument.

On April 13, 2005, at approximately 9 p.m., Annie Hicks heard gunshots coming from the neighboring duplex. Hicks’ grandson, Cornelius Hicks, lived in the neighboring duplex next to a man named Gregory Hart. Hicks phoned her grandson, who rushed to his duplex in his car. When Cornelius Hicks arrived, approximately ten minutes later, he found Hart lying dead on the floor at Hart’s doorstep.

Domingo Gaspar and Enrique Villagomez, who were across the street at the time, also heard the shots. The pair reported seeing two men running from the scene of the crime just after the shots rang out. The witnesses described one man as wearing a red shirt and having dreadlocks and described the other man as wearing a white shirt and having short hair. They reported that the man in the white shirt fell to the ground and got back up as he ran away.

The police who responded to the scene found a set of car keys where the witnesses reported the white-shirted man fell, and the police located a vehicle to which the keys belonged. As the police were examining the vehicle, a locksmith approached the vehicle in his van. Behind the locksmith’s van was a car occupied by two men fitting the witnesses’ descriptions and two other people. The police stopped the car and detained its occupants. Records showed that Natasha McBride, one of the occupants of the car that was stopped, was the owner of the vehicle to which the keys belonged.

The police brought one of the eyewitnesses to the area where the suspects were stopped, and the witness said the man with the red shirt and dreadlocks looked like the same man he had seen running from the scene of the shooting. The man with the white shirt gave the name “Raymond Moore” but was later identified as Jarvis McBride, the son of Natasha McBride. Shoe impressions found near Natasha McBride’s vehicle were consistent with the shoes McBride was wearing. Natasha McBride testified that her son had asked her to accompany him to the vehicle, and the locksmith confirmed that he told someone on the telephone that he needed the owner’s consent to make new keys for the vehicle.

Detective Matthew Sellers questioned McBride, and McBride admitted that he had been at the scene of the shooting. Detective Sellers testified regarding McBride’s statements as follows:

Q. Let me ask you, specifically, what did Jarvis McBride tell you about being at Gregory Hart’s residence; and, specifically, at the front door where the shooting occurred?

A. Uh, later during the interview, uh, he admitted to being at Greg’s house. And when he was asked, “Did Greg have a gun at the door?” he said, “Yes.”

Uh, when he was asked who shot first? His reply was, he did, referring to Greg.

Q. All right. And what, if anything, did he tell you about whether he was sorry over the incident?

A. We asked him if he was sorry what happened—for what happened, and he said, “Yes.”

Q. All right. And did he say anything about wanting to take it back, if he could?

A. Yes. Uh, yes, he did.

The police did not recover the gun used to shoot Hart, and the test for gunshot residue on McBride’s hands was negative. The police did recover a firearm lying near Hart’s body, but it was not the weapon that had been used to shoot Hart. Hart’s goddaughter testified that Hart sold marijuana from his home and would always approach the door with a weapon.

The State charged McBride with second-degree murder with a firearm and providing a false name. At trial, the State acknowledged that it could not prove that McBride fired the gun that shot Hart. Instead, the State proceeded on the theory that McBride was a principal in the killing. After the State presented its case, McBride moved for a judgment of acquittal, arguing that the evidence did not establish that he was a principal in the killing. The jury found McBride guilty as charged for providing a false name and found McBride guilty of the lesser-included offense of manslaughter. The court sentenced McBride to 364 days in prison for providing a false name and thirteen years in prison for manslaughter. The court awarded McBride 672 days of credit for time served.

On appeal, McBride argues that the trial court erred in denying his motion for judgment of acquittal. We review the denial of a motion for judgment of acquittal de novo. State v. Shearod, 992 So. 2d 900, 903 (Fla. 2d DCA 2008). A judgment of acquittal should be granted “where `the evidence is insufficient to warrant a conviction.’ ” Id. (quoting Fla. R. Crim. P. 3.380). The trial court should not grant a motion for judgment of acquittal “[u]nless `there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law.’” Id. (quoting Williams v. State, 967 So. 2d 735, 755 (Fla. 2007)).

In order to convict a defendant as a principal, the State must prove that (1) the defendant intended for the offense to be committed and that (2) the defendant assisted in the commission of the offense. Acord v. State, 841 So. 2d 587, 589 (Fla. 2d DCA 2003). “Mere presence at the scene, knowledge of the crime, and flight are insufficient to justify a conviction.” A.B.G. v. State, 586 So. 2d 445, 447 (Fla. 1st DCA 1991).

The State’s evidence established that McBride witnessed the shooting and ran from the scene of the crime. However, the State failed to present any evidence regarding the circumstances of the shooting or the reason for McBride’s visit to Hart’s apartment. There was no evidence that McBride fired a gun, and gunshot residue was not found on his hands. Even assuming that the person with the red shirt and dreadlocks was the shooter, there was no evidence that McBride intended for the crime to be committed or committed an act in furtherance thereof. While McBride said he was sorry for what had happened and wished he could take it back, he never admitted that he was actually involved in the shooting.

The facts of this case are analogous to those J.L.W. v. State, 642 So. 2d 1198 (Fla. 2d DCA 1994). In J.L.W., a police officer received a radio transmission concerning a robbery and drove the victim to a stopped Ford Taurus. J.L.W. was inside the Taurus, and a search of the vehicle revealed a handgun. J.L.W. admitted that he had possessed the gun at some point prior to the robbery but denied any involvement in the robbery. J.L.W. claimed he had stayed inside the car during the robbery.

This court reversed J.L.W.’s conviction for attempted armed robbery based on its determination that the evidence was insufficient to show that he was a principal. The court concluded that the State had established nothing more than J.L.W.’s “mere presence in the car when the offense was committed,” which was “not the same as participation with criminal intent.” Id. at 1199. The court also noted that there was no evidence J.L.W. possessed the gun on the day of the robbery or gave the gun to a participant.

As in J.L.W., the State’s evidence in this case established nothing more than McBride’s mere presence when the offense was committed. The State failed to present any evidence that established McBride’s intent that the victim be shot or that he committed an act in furtherance of the shooting. In fact, the State failed to establish any facts at all to establish “participation with criminal intent.”

While it is true that the defendant in J.L.W. did not flee the scene of the crime, McBride’s act of doing so does not in itself give rise to a presumption of his intent or participation in the crime. See J.H. v. State, 370 So. 2d 1219 (Fla. 3d DCA 1979). In J.H., the defendant and another male named Mack approached a female who was sitting on a bus bench. Id. at 1219. Mack sat on the bench next to the female, and the defendant stood behind the bench. Mack struggled with the victim and grabbed her purse. Then Mack and the defendant fled the scene together. The Third District held that the evidence did not support the defendant’s adjudication as a principal in the robbery. Id. at 1220. The court explained that there was no direct evidence of the defendant’s intent to participate in the crime and that the circumstantial evidence merely established that the defendant was present at the scene and fled after the crime had been committed.

Because the State has not presented evidence that McBride intended for the shooting to be committed and assisted in the commission of the shooting, the trial court erred in denying McBride’s motion for judgment of acquittal. We therefore reverse the manslaughter conviction on this basis. Our resolution of this issue renders McBride’s challenge to the jury instructions moot. McBride’s conviction for providing a false name is affirmed.

Affirmed in part, reversed in part, and remanded.

FULMER and VILLANTI, JJ., Concur.

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OSCAR RAY BOLIN, JR., Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 2D05-5365.

District Court of Appeal of Florida, Second District.

Opinion filed March 20, 2009.

Appeal from the Circuit Court for Hillsborough County; Barbara Fleischer, Judge.

James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT,. Chief Judge.

Oscar Ray Bolin, Jr., challenges his conviction for second-degree murder on two bases. We affirm the denial of Bolin’s motion to inspect grand jury testimony without further comment. Nevertheless, we must reverse for a new trial because the trial court did not properly instruct the jury on a lesser included offense.

One morning in January 1986 a jogger discovered the body of a young woman, Natalie Holley, near a Tampa roadside. She had been stabbed at least eight times. On August 1, 1990, a grand jury indicted Bolin for first-degree murder, robbery with a weapon, and kidnapping in connection with Ms. Holley’s death. Bolin was twice tried and convicted of those charges, but his convictions were overturned by the Florida Supreme Court. Bolin v. State, 796 So. 2d 511 (Fla. 2001); Bolin v. State, 642 So. 2d 540 (Fla. 1994).

Before this third trial, the State entered a nolle prosequi on the kidnapping and robbery charges and proceeded only on the charge of first-degree premeditated murder. § 782.04(1)(a)(1), Fla. Stat. (1985). At the ensuing trial, the court instructed the jury on first-degree premeditated murder and the lesser included offenses of second-degree murder and manslaughter. The jury convicted Bolin of second-degree murder.

Bolin challenges the manslaughter instruction given by the court. Manslaughter is a necessarily lesser included offense of premeditated first-degree murder. See Rayl v. State, 891 So. 2d 1052, 1055 (Fla. 2d DCA 2004). Courts are required to instruct the jurors on necessarily lesser included offenses. State v. Wimberly, 498 So. 2d 929, 932 (Fla. 1986).

Unlike the instruction on a permissive lesser included offense, the instruction on a necessarily lesser included offense must be given regardless of the facts of the case. Roberts v. State, 694 So. 2d 825, 826 (Fla. 2d DCA 1997). Still, the standard instruction for manslaughter requires the court to tailor the instruction to the case. As set forth in both the manslaughter statute, § 782.07, and in the standard jury instruction, the crime can be committed in three ways: by act, by procurement, or by culpable negligence. Thus, at the time of Ms. Holley’s death, the Florida Standard Jury Instruction on manslaughter read as follows:

MANSLAUGHTER F.S. 782.07

Before you can find the defendant guilty of manslaughter, the state must prove the following elements beyond a reasonable doubt.

Elements 1. (Victim) is dead.

2. The death was caused by the

(a) act of (defendant).

(b) procurement of (defendant).

(c) culpable negligence of (defendant).

(Emphases supplied.) The instructions directed the court to “[g]ive 2(a), (b) or (c) depending upon allegations and proof.” (emphasis supplied.) See Fla. Bar re: Standard Jury Instructions Criminal Cases, 477 So. 2d 985, 922 (Fla. 1985).

Florida law distinguishes between voluntary manslaughter, which is committed by act or procurement, and involuntary manslaughter, committed by culpable negligence. Whereas voluntary manslaughter is a crime of intent, involuntary manslaughter is not. See Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983). Thus, in 1986, when Ms. Holley was killed, it was clear that when the charged crime involved intent, as does premeditated first-degree murder, the lesser included offense instruction would have to include voluntary manslaughter. See id. Moreover, in Bolin’s case a voluntary manslaughter instruction was also supported by the fact that the victim had suffered multiple wounds, a fact that also precluded the possibility that the victim’s death was caused by negligence.

Given both the allegations of the indictment and the proof at Bolin’s trial, the court was required to instruct the jury on manslaughter by act. It did not. Instead, the court instructed the jury that it could find Bolin guilty of manslaughter if it determined, among other things, “that the death of Natalie Holley was caused by the culpable negligence of Oscar Ray Bolin.” (Emphasis supplied.) The court then defined culpable negligence for the jurors. Bolin raised no objection to this instruction.

Bolin asserts the court committed fundamental error when it failed to instruct the jurors on manslaughter by act, the only type of voluntary manslaughter that could apply in this case.¹ Reed v. State, 837 So. 2d 366, 370 (Fla. 2002) (citing Castor v. State, 365 So. 2d 701 (Fla. 1978) for the proposition that “[i]nstructions . . . are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred”). The failure to give a complete instruction on manslaughter is fundamental error when a defendant is convicted of a greater offense that is not more than one step removed, such as second-degree murder. State v. Lucas, 645 So. 2d 425, 427 (Fla. 1994).² Although Bolin was charged with premeditated first-degree murder, the jury convicted him of second-degree murder. The court’s failure to properly instruct the jury on voluntary manslaughter, a crime one step removed from the crime for which the jury convicted Bolin, was fundamental and per se reversible error. See Lucas, 645 So. 2d at 427; State v. Abreau, 363 So. 2d 1063 (Fla. 1978); Cox v. State, 618 So. 2d 291 (Fla. 2d DCA 1993).

The error was compounded by the court’s instruction on culpable negligence manslaughter, which was misleading in the context of Bolin’s trial. The definition of culpable negligence that the court read to the jurors states: “Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.” In re Standard Jury Instructions, 477 So. 2d at 922 (emphasis supplied).³ In the absence of an instruction on manslaughter by act, the jurors essentially were told that they could convict Bolin of manslaughter only if they found he acted “without any conscious intention to harm.” Given the extent of Ms. Holley’s wounds, no evidence at trial supported that possibility.

Fundamental error occurs when a jury instruction contains an incorrect definition of a disputed element of a crime. See McCain v. State, 995 So. 2d 1029, 1034 (Fla. 2d DCA 2008) (citing Reed, 837 So. 2d 366). Here, the disputed issues were whether Bolin was the perpetrator and, if so, whether he acted with premeditation. Negligence simply was not at issue in this case.

Similar fundamental error occurred Reed v. State, 531 So. 2d 358 (Fla. 5th DCA 1998). Reed was charged with and convicted of second-degree murder. The trial court instructed the jury only on the lesser included offense of manslaughter by intentional act, although the evidence could have supported the lesser included offense of culpable negligence manslaughter. The Fifth District reversed, stating that an “instruction [must] be sufficiently complete and accurate so that it does not mislead the jury and negate the defendant’s theory of defense.” Id. at 360. We agree, and we likewise reverse Bolin’s conviction for second-degree murder and remand for a new trial.

Because Bolin will be tried once again, we briefly address the ever-evolving Florida Standard Jury Instructions on manslaughter. We previously have set forth the 1985 instructions applicable at the time the crime was committed. On appeal, Bolin contends the court should have given the revised manslaughter instructions approved in 1994. These would have instructed the jurors that the State must prove that Bolin “intentionally caused the death” of Ms. Holley and that “[i]n order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.” See Standard Jury Instructions in Criminal Cases (93-1), 636 So. 2d 502, 506 (Fla. 1994). A sidebar to the instruction notes that the clarification of an “intentional act” is to be given “only if 2(a) alleged and proved, and manslaughter is being defined as a lesser included offense of first degree premeditated murder.”⁴ Id.

The 1994 instruction is merely a refinement of the instruction in effect when the charged crime occurred. Further, it more accurately describes the offense, the statutory definition of which has not changed since 1986. Therefore, we agree with Bolin that the more accurate instruction should be given at his retrial. Cf. Carpenter v. State, 785 So. 2d 1182, 1198 n.1 (Fla. 2001) (remarking that defendant had not argued on appeal whether the new or the old jury instruction should have been given); Larman v. State, 724 So. 2d 1230, 1232 (Fla. 5th DCA 1999) (noting that the defendant was not prejudiced when the court gave a more refined, more accurate instruction that was enacted four months after the crime was committed).

We further note that the placement of the language clarifying intentional act manslaughter was moved in the 2006 amendment to the manslaughter instruction. In re Standard Jury Instructions in Criminal Cases-No. 2006-1, 946 So. 2d 1061 (Fla. 2006). But the language of the instruction is the same as in the 1994 instruction that Bolin advocates.

Finally, when the court instructed the jury on manslaughter at the trial below, it failed to repeat the instruction on justifiable and excusable homicide, which it had previously given in connection with the first-degree murder charge. On retrial, the court must also read this definition in connection with the lesser included manslaughter instruction. See Pignataro v. State, 834 So. 2d 965 (Fla. 2d DCA 2003); see also Beckham v. State, 884 So. 2d 969 (Fla. 1st DCA 2004).

Affirmed in part, reversed in part, and remanded.

FULMER and SILBERMAN, JJ., Concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

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Notes:

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HENRY BLANTON, Appellant,
v.
STATE OF FLORIDA, Appellee.

Case No. 5D05-3786.

District Court of Appeal of Florida, Fifth District.

Opinion filed March 20, 2009.

Appeal from the Circuit Court for Lake County, G. Richard Singeltary, Judge.

James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

In view of the decision by the Florida Supreme Court Martinez v. State, 981 So. 2d 449 (Fla. 2008), we have vacated and withdrawn our prior mandate issued in this cause, and have reconsidered the merits. In light of Martinez, we now conclude that the giving of the forcible felony instruction was not fundamental error under the facts of this case, and as it was unobjected to in the present case, we find no error in that regard.

Our ruling on the double jeopardy violation described in the original opinion of this court¹ will still require a reversal of the sentence and a remand for a new sentence. Mr. Blanton cannot be convicted of both an aggravated battery with a firearm and the related firearm possession offense.

Finally, while we continue to hold that it was error to allow the State to call and examine Mr. Blanton’s confidential mental health expert because Mr. Blanton had not waived the privilege associated with communications with that expert, our review of the limited testimony actually elicited from the expert leads us to conclude that the error was harmless beyond a reasonable doubt.

Accordingly, we reverse the judgment and sentence and remand this matter to the trial court for the imposition of a new sentence based on either the aggravated battery with a firearm offense or the firearm possession offense, but not both.

REVERSED and REMANDED with INSTRUCTIONS.

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

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Notes:

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ALEXANDER PERKINS, Petitioner,
v.
STATE OF FLORIDA, Respondent.

No. SC06-2336.

Supreme Court of Florida.

March 19, 2009.

Application for Review of the Decision of the District Court of Appeal — Direct Conflict of Decisions, Fourth District — Case No. 4D05-712, (Palm Beach County).

Carey Haughwout, Public Defender, Marcy K. Allen and Margaret Good-Earnest, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Petitioner.

Bill McCollum, Attorney General, Tallahassee, Florida, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, Florida, for Respondent.

PER CURIAM.

We have for review Perkins v. State, 939 So. 2d 1113 (Fla. 4th DCA 2006), in which the Fourth District Court of Appeal relied upon its decision Yisrael v. State, 938 So. 2d 546 (Fla. 4th DCA 2006) (en banc), disapproved in part, 993 So. 2d 952 (Fla. 2008). When the Fourth District’s decision in Perkins became final, Yisrael was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So. 2d 418, 420 (Fla. 1981).

We stayed proceedings in this case pending our disposition of Yisrael, in which we: (1) approved the decision of the First District Gray v. State, 910 So. 2d 867 (Fla. 1st DCA 2005), and (2) disapproved the reasoning and rule of law articulated by the Fourth District in its underlying decision, but ultimately approved the result reached by that court on other grounds. See Yisrael v. State, 993 So. 2d 952, 960-61 (Fla. 2008). We subsequently issued an order directing the State to show cause why we should not accept jurisdiction, summarily quash the decision under review, and remand for reconsideration in light of our decision in Yisrael. The State agrees that this case should be remanded for review pursuant to this Court’s decision in Yisrael.

Accordingly, we grant the petition for review, quash, and remand to the Fourth District Court of Appeal for reconsideration upon application of our decision in Yisrael.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, CANADY, and POLSTON, JJ., concur.

LABARGA, J., recused.

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