Florida Criminal Law Opinions

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal from the Circuit Court for Pinellas County; Robert James Morris, Jr., Judge.

Rick A. Buchwalter of Law Office of Sonny Im, Tarpon Springs, for Appellant.

Bill McCollum, Attorney General, and Scott D. Makar, Solicitor General, and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee; and Yvette Acosta MacMillan, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.

ALTENBERND, Judge.

John H. Fessenden appeals an order dismissing with prejudice his petition seeking court certification that he is a wrongfully incarcerated person entitled to compensation under the Victims of Wrongful Incarceration Compensation Act (the Act). See §§ 961.01-.07, Fla. Stat. (2008). This appeal appears to be the first appeal of any

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claim made under this statute, which first became effective in July 2008. See ch. 2008-39, §§ 1, 9, at 714, 721, Laws of Fla.

As further explained below, Mr. Fessenden obtained a reversal of his judgments and sentences by this court on the ground that his questionable conduct did not constitute grand theft or a violation of Florida’s Racketeer Influenced and Corrupt Organizations (RICO) Act. We agree with the trial court that the Victims of Wrongful Incarceration Compensation Act, as written by the legislature, applies only to claims where orders vacating sentences have been entered based on “exonerating evidence.” § 961.03(1)(a). Because Mr. Fessenden obtained an order vacating his judgment and sentence based on the ruling of an appellate court as a matter of law, and not based on exonerating evidence of his actual innocence, we conclude that the Act, strictly construed, does not encompass his claim. Accordingly, we affirm the order on appeal.

I. The Underlying Criminal ProceedingMr. Fessenden and his codefendant, Charles Amos, were charged in an indictment and in a superseding information with violating Florida’s RICO Act and with multiple counts of grand theft. The factual circumstances behind these charges are described in some detail in the opinion of this court reversing Mr. Amos’s judgments and sentences. See Amos v. State, 711 So. 2d 1197 (Fla. 2d DCA 1998).

In a nutshell, Mr. Fessenden was an insurance agent who handled workers’ compensation insurance for his clients in the 1980s. He was charged and convicted of RICO violations and grand theft because he was assisting his clients in submitting false estimates of premium liability at the beginning of a policy year to the insurance company, which substantially reduced the premiums that the clients paid to

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the insurance companies. In cases where the insurance company sought an audit at the end of the policy year, he helped provide false payroll information to the auditor in an effort to avoid paying the premium increase that should have resulted from an accurate year-end audit.

This court’s opinion in Amos clearly reflects our concern that the conduct was morally improper. See id. at 1201 (citing § 626.9541, Fla. Stat. (Supp. 1986)) (recognizing that Amos’s practice of making false statements on insurance applications was “dishonest” and constituted a second-degree misdemeanor). We discussed statutes enacted after these events that may have criminalized the conduct. Id. at 1200. We concluded, however, that the conduct did not fit within the elements of grand theft or RICO. Id. at 1201. The issue was sufficiently close and of such importance that we certified a question to the supreme court as to whether the conduct constituted theft.¹ Id. at 1201-02. The supreme court declined to review the certified question. State v. Amos, 727 So. 2d 911 (Fla. 1998) (table decision).

Based on the reasoning in Amos, this court also reversed Mr. Fessenden’s judgments and sentences, certifying the same question as was certified in Amos. Fessenden v. State, 713 So. 2d 1093 (Fla. 2d DCA 1998). The supreme court declined to review the question in Mr. Fessenden’s case. State v. Fessenden, 734 So. 2d 1038 (Fla. 1999).

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From the limited record in this case, we cannot determine when or if Mr. Fessenden was in prison as a result of the judgments and sentences that this court reversed in 1998. It appears likely that he was incarcerated from November 1996 until mid-1998.

II. The General Procedures Applicable Under The Victims of Wrongful Incarceration Compensation ActThe Victims of Wrongful Incarceration Compensation Act was enacted in 2008. See ch. 2008-39, §§ 1, 9, at 714, 721, Laws of Fla. Obviously, the Act became effective about ten years after Mr. Fessenden’s judgments and sentences were vacated. The Act, however, specifies that if a person’s judgments and sentences were vacated prior to the effective date of the statute, the person could petition for compensation so long as the petition was filed by July 1, 2010. § 961.03(1)(b)(2). Thus, Mr. Fessenden’s petition is timely because he filed it on February 23, 2009.

The Act is the entire contents of chapter 961. It is administered by the Department of Legal Affairs, and the Chief Financial Officer of the State arranges any compensation awarded under the Act. § 961.06(3), (4). Before a person can apply to the Department for compensation, the person must first obtain a determination that he or she is a “wrongfully incarcerated person” under the statute. §§ 961.02(4),.03.²

An official determination that one is a “wrongfully incarcerated person” requires the person to return to the court where the judgment and sentence were vacated. The person files a petition in that court seeking a determination of this status. § 961.03(1). The prosecuting authority is required to respond to the petition and either

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certify that the person is “not ineligible” to be so classified or to contest the petition. § 961.03(2).

If the prosecutor does not contest the petition, based on the “evidence of actual innocence” and other evidence, the court is authorized to find by clear and convincing evidence that the person is eligible and to issue an order certifying this status to the Department. § 961.03(3). If the prosecutor contests the petition, the trial court can either dismiss the petition if the person is “ineligible under the provisions of [section] 961.04″ or it can transfer the matter to the Division of Administrative Hearings for a hearing to resolve the factual disputes. § 961.03(4). Once the hearing is concluded, the matter returns to the trial court to enter an order either granting or denying the determination that the person is a “wrongfully incarcerated person.” § 961.03(6), (7).

III. The Trial Court’s DismissalThe trial court in this case dismissed Mr. Fessenden’s petition, but it did not dismiss the petition pursuant to section 961.03(4)(a). That provision allows the court to dismiss the petition if the petitioner is ineligible under the provisions of section 961.04. Section 961.04 provides three grounds for exclusion from eligibility: (1) conviction of any prior felony in Florida or another state, (2) conviction of another felony while incarcerated, and (3) the existence of a concurrent sentence for a crime for which the petitioner was not wrongfully convicted. None of these exclusions applies to Mr. Fessenden. Thus, the trial court could not dismiss the petition under section 961.03(4)(a).

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The trial court dismissed the petition on the grounds that Mr. Fessenden was not, by definition, a “wrongfully incarcerated person” and that the petition could not be amended to state a claim. In essence, the trial court dismissed the petition for failure to state a cause of action. Although the statute does not provide for such a dismissal, we agree with the trial court that it had inherent authority to dismiss the petition on this ground.³ Thus, the dispositive issue in this case is whether the reversal of Mr. Fessenden’s judgments and convictions on appeal because the conduct proven at trial did not constitute the charged offense qualifies him as a “wrongfully incarcerated person.”

IV. The Definition of “Wrongfully Incarcerated Person” in Section 961.02(4) must Be Read in Conjunction with the Provisions in Section 961.03(1)(a).On initial examination, it does appear that Mr. Fessenden is arguably a “wrongfully incarcerated person” as that term is defined in section 961.02(4). That definition states:

“Wrongfully incarcerated person” means a person whose felony conviction and sentence have been vacated by a court of competent jurisdiction and, with respect to whom pursuant to the requirements of s. 961.03, the original sentencing court has issued its order finding that the person neither committed the act nor the offense that served as the basis for the conviction and incarceration and that the person did not aid, abet, or act as an accomplice or accessory to a person who committed the act or offense.

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§ 961.02(4). Mr. Fessenden clearly has had his conviction and sentence vacated by a court of competent jurisdiction. Although he committed certain acts, this court on appeal declared that he had not committed the offense that served as the basis of the conviction. See Fessenden, 713 So. 2d at 1093 (citing Amos, 711 So. 2d 1197). Because we determined that the acts were not criminal, at least under the charged offenses, it would not seem that he could aid or abet Mr. Amos or any other person in those offenses. As it stands, the acts he committed are not criminal acts.

The definition of “wrongfully incarcerated person,” however, includes a requirement that the trial court have issued its order under section 961.03. Section 961.03(1)(a) explains that in order to meet the definition of “wrongfully incarcerated person,” the petitioner must establish that the conviction and sentence were vacated by an order “based upon exonerating evidence.” The petition itself must “[s]tate that verifiable and substantial evidence of actual innocence exists and state with particularity the nature and significance of the verifiable and substantial evidence of actual innocence.” § 961.03(1)(a)(1).

In his petition, Mr. Fessenden described this court’s opinion reversing his judgment and sentence as the verifiable and substantial evidence of actual innocence. It is certainly true that the trial court vacated his judgments and sentences in order to comply with our mandate. However, we conclude that our legal opinion in this context is not “exonerating evidence” establishing a defendant’s actual innocence for purposes of this Act.

It is perhaps worth noting that this court can reverse a criminal judgment and sentence employing at least four different rationales. First, we can reverse and

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remand for new trial when a procedural error renders the judgment and sentence faulty. See, e.g., Fasenmyer v. State, 383 So. 2d 706, 708 (Fla. 1st DCA 1980) (reversing based on trial court’s failure to hold a Richardson⁴ inquiry after discovery violations by the State). Second, we can reverse when the State charged a defendant with a crime that it had probable cause to believe the defendant committed but for which it did not have the necessary proof at the time of trial. Third, we can reverse when a crime has actually occurred but the State failed to prove that the defendant committed the crime. Fourth, as in this case, we can reverse because the State proved its intended case but the proof did not, as a matter of law, constitute a crime. See, e.g., Merritt v. State, 712 So. 2d 384, 385 (Fla. 1998) (reversing conviction for nonexistent crime of attempted battery of a law enforcement officer); see also B.B.P. v. State, 841 So. 2d 687, 688 (Fla. 2d DCA 2003) (reversing conviction for nonexistent crime of possession of stolen property).

It seems obvious to this court that the first described reversal cannot be proof of actual innocence. Likewise, we doubt that any of these bases for reversal, without more evidence, are sufficient to constitute evidence of actual innocence. In this case, however, we are considering only the final ground, which admittedly comes closest to being evidence of actual innocence.

When an appellate court reverses a judgment and sentence for lack of evidence, it does not make any determination that the defendant is actually innocent; it merely determines that the State did not provide evidence that could support a verdict of guilt beyond a reasonable doubt. There is a substantial difference in our system of

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justice between the concept of “not guilty” and that of “actual innocence.” The Bill Analysis and Fiscal Impact Statement prepared by the staff of the Judiciary Committee demonstrates that the Victims of Wrongful Incarceration Compensation Act was prompted by cases in which DNA evidence had exonerated defendants. See Fla. S. Bill Analysis & Fiscal Impact Statement of Mar. 26, 2008, § 2 for Bill CS/SB 756, p. 2 (“In Florida, at least nine people have been exonerated or released from incarceration since 2000, as a result of post-conviction DNA testing.”). The legislature was concerned about compensating persons who were actually innocent, but not necessarily about paying people who had been found not guilty.

Mr. Fessenden, it would seem, does not fall cleanly into either the group of people who are “not guilty” or those who are “actually innocent.” In this case, there is no question that Mr. Fessenden “committed the act” that “served as the basis for the conviction and incarceration.” See § 961.02(4). The error in Mr. Fessenden’s criminal case was not one of fact, but of law. The acts he committed that served as the basis of the conviction were not acts that legally constituted the crime. The grand jury, the prosecutor, and the trial court, perhaps misled by their sense that Mr. Fessenden’s actions were immoral, erred in their respective legal analyses of the factual circumstances underlying the conviction.

The language of this statute does not apply to a person who is acquitted on a motion for judgment of acquittal at the end of the State’s case; it requires that the trial court have entered a judgment and conviction. Thus, no remedy is provided based on the trial court’s legal ruling even if the defendant spent many months in jail awaiting trial. This decision by the legislature causes this court to doubt that the legislature

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intended a different outcome when the legal ruling emanates from the district court. On the other hand, our decisions are often made after the defendant has spent more than a year in prison.

Although not a complete waiver of sovereign immunity, the Victims of Wrongful Incarceration Compensation Act is in the nature of a statute waiving sovereign immunity. But cf. § 961.06(7) (“Any payment made under [the Act] does not constitute a waiver of any defense of sovereign immunity.”). The Act does not authorize a lawsuit against the State, but it creates a streamlined claims process that is similar in practice and outcome to a lawsuit. The Act sets aside questions of wrongdoing or negligence on the part of a state actor and creates an avenue for relief against the State by a person who has been wrongfully incarcerated.

It is well established that provisions for bringing suit against the State under article X, section 13, of the Florida Constitution must be strictly construed. “When a statute purports to authorize a waiver [of sovereign immunity], the statutory language must be clear and unequivocal; such statutes should be strictly construed.” McPhee v. Dade Cnty., 362 So. 2d 74, 79 (Fla. 3d DCA 1978); see also Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So. 2d 459, 472 (Fla. 2005) (“In interpreting… legislative waivers of sovereign immunity, this Court has stated that it must strictly construe the waiver.”). Waivers of sovereign immunity are strictly construed “as a protection of the public against profligate encroachments on the public treasury.” Spangler v. Fla. State Turnpike Auth., 106 So. 2d 421, 424 (Fla. 1958). We conclude that these policies are applicable to the Act and that it should be strictly construed in favor of the State. Under such a strict construction, an order vacating a conviction and

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sentence based on the legal ruling of this court is not an order “based upon exonerating evidence,” as required by section 961.03(1)(a).

Morally, Mr. Fessenden’s conduct may have been offensive, but it was not a crime. Prisons are not constructed to house people guilty of moral improprieties, and a public policy that would compensate people like Mr. Fessenden might arguably be in order. If the legislature wishes to adopt that policy, it is free to do so, but we cannot conclude that it adopted such a policy with the language currently contained in chapter 961.

Affirmed.

WALLACE, J., and FULMER, CAROLYN K., SENIOR JUDGE, Concur.

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^1. The author of this opinion was also a member of the panel that reviewed Mr. Fessenden’s and Charles Amos’s direct criminal appeals in 1998. See Amos, 711 So. 2d at 1202; Fessenden, 713 So. 2d 1093 (Fla. 2d DCA 1998). This is the result of a random assignment and not a selection that was intentional on the part of this court. See Second District Court of Appeal, Internal Operating Procedures, Office of the Clerk, § 3.4 at 9-10 (Jan. 18, 2005), http: //www.2dca.org/Clerk/Notices/Internal%20Operating%20Procedure%2010-26-07.pdf.

^2.The exact language of the statute is more complex than the simplified explanation provided in this opinion. Those complexities are not essential to our ruling, and we do not intend by our simplification to alter the language of the statute.

^3.Mr. Fessenden also argues that the trial court was required to certify his status to the Department because the prosecuting authority did not file its response within the thirty days described in the statute. We disagree. The prosecuting authority in this context is not a party who can be “defaulted.” If the prosecuting authority declined to respond, Mr. Fessenden was certainly entitled to an order from the court compelling that authority to respond, but the State’s delay did not entitle Mr. Fessenden to receive an order certifying his status to the Department.

^4. Richardson v. State, 246 So. 2d 771 (Fla. 1971).
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Anthony K. Black, Judge.

Bryan A. Stevenson and Marc R. Shapiro of Equal Justice Initiative of Alabama, Montgomery, Alabama; and Brittney Horstman of Kubiliun & Associates, P.A., Miami, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Ian Manuel appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In that motion, he raised only a single issue—that his two sentences of life in prison without the possibility

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of parole constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution because he was a juvenile when he committed the nonhomicide offenses at issue. The postconviction court properly denied Mr. Manuel’s motion based on the law in effect when it made its ruling. However, while this case was pending on appeal, the United States Supreme Court granted certiorari to review Graham v. State, 982 So. 2d 43 (Fla. 1st DCA 2008). See Graham v. Florida, 129 S. Ct. 2157 (2009). Like here, the sole issue in that case was whether a sentence of life without the possibility of parole imposed on a juvenile offender for a nonhomicide crime constituted cruel and unusual punishment under the Eighth Amendment. We stayed review of Mr. Manuel’s case pending the Supreme Court’s decision in Graham, and now based on the decision in Graham v. Florida, 130 S. Ct. 2011 (2010), ¹ we must vacate Mr. Manuel’s sentences and remand for resentencing.

The record in this case is somewhat limited. However, it does reveal that Mr. Manuel was charged with one count of robbery with a firearm, one count of attempted robbery with a firearm, and two counts of attempted first-degree murder with a firearm for events that occurred on July 27, 1990. Mr. Manuel pleaded guilty as charged to these offenses in an open plea to the court. When he committed these offenses, Mr. Manuel was only thirteen years old.

Mr. Manuel’s robbery with a firearm conviction was a first-degree felony punishable by life, see § 812.13(2)(a), Fla. Stat. (1989), which subjected Mr. Manuel to sentencing for “a term of imprisonment not exceeding 30 years or, when specifically

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provided by statute, by imprisonment for a term of years not exceeding life imprisonment,” § 775.082(3)(b), Fla. Stat. (1989). The trial court chose to sentence Mr. Manuel to a term of “natural life” for this offense.

Mr. Manuel’s two attempted murder convictions were each life felonies. See §§ 775.087(1)(a), 777.04(4)(a), Fla. Stat. (1989); § 782.04(1)(a), Fla. Stat. (Supp. 1990). These life felonies were punishable by “a term of imprisonment for life or by a term of imprisonment not exceeding 40 years.” § 775.082(3)(a). On the first attempted murder conviction, the trial court sentenced Mr. Manuel to a term of “natural life.” On the second attempted murder conviction, the trial court sentenced Mr. Manuel to a concurrent term of forty years in prison.²

Under the sentencing guidelines in effect at the time Mr. Manuel committed his crimes, a sentence of “natural life” rendered Mr. Manuel ineligible for parole. See Wemett v. State, 567 So. 2d 882, 884 (Fla. 1990); Dolan v. State, 618 So. 2d 271, 272 (Fla. 2d DCA 1993) (noting that defendants convicted of a noncapital felony committed on or after October 1, 1983, are subject to “true life sentences” without eligibility for parole); Saint-Fleur v. State, 840 So. 2d 261, 262 (Fla. 3d DCA 2002) (noting that sentence of natural life under the same sentencing guidelines under which Mr. Manuel was sentenced “is for a term of natural life without the possibility of parole”). In addition, Mr. Manuel was not eligible for either gain time or conditional release. See §§ 921.001(11), 944.275(2)(a), 947.1405, Fla. Stat. (1989). Accordingly, Mr. Manuel’s two sentences of “natural life” were, in fact, just that.

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In his current motion for postconviction relief, Mr. Manuel relied on the Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005), to argue that his sentences of life in prison with no possibility of parole were in violation of the Eighth Amendment. In Roper, the Supreme Court held that death sentences imposed on juvenile offenders were prohibited by the Eighth Amendment. Id. at 568. Mr. Manuel argued that his sentence of life without the possibility of parole, which he termed a “death in prison” sentence, was unconstitutional under the reasoning, if not the holding, of Roper. Mr. Manuel also contended that Roper constituted a fundamental shift in constitutional law that rendered his rule 3.850 motion timely since his motion was filed within two years of the Roper decision. The problem with this argument is that the Roper decision, on its facts, did not apply to Mr. Manuel because Mr. Manuel was not sentenced to death. Thus, the postconviction court correctly denied Mr. Manuel relief under the law in effect at the time of that court’s ruling.

However, while Mr. Manuel’s appeal of that ruling was pending, the Supreme Court granted review in Graham. In Graham, the Supreme Court directly addressed the constitutionality of imposing a life-without-parole sentence on a juvenile who commits a nonhomicide offense. After a thorough review of state practice throughout the United States and an analysis of the purposes of imprisonment, the Supreme Court held that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” Graham, 130 S. Ct. at 2030. In thereby extending the reasoning of the Roper decision to juveniles sentenced to life in prison without the possibility of parole for nonhomicide offenses, the Court stated,

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This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood,” those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime.

Id. (quoting Roper, 543 U.S. at 574). In so holding, the Graham Court extended the “death is different” rationale to a discrete subset of noncapital crimes, i.e., “life without parole for juvenile nonhomicide offenders is different,” and the Court established a bright-line rule excluding life-without-parole sentences for juveniles who commit nonhomicide offenses, regardless of how heinous the underlying crime. Accordingly, in keeping with this new bright-line rule, Mr. Manuel’s sentences of “natural life” are unconstitutional as a violation of the Eighth Amendment to the United States Constitution because those sentences do not allow for the possibility of parole.

In its supplemental briefing, the State contends that Graham does not apply to Mr. Manuel because his convictions for attempted murder should be considered homicide offenses, not nonhomicide offenses. We disagree. The Florida Supreme Court has stated that under the definition of homicide, “[i]t is necessary for the act to result in the death of a human being.” Tipton v. State, 97 So. 2d 277, 281 (Fla. 1957). And as the Graham Court explained,” ‘[l]ife is over for the victim of the murderer, ‘ but for the victim of even a very serious nonhomicide crime, ‘life… is not over and normally is not beyond repair.’ ” Graham, 130 S. Ct. at 2027 (quoting Coker v. Georgia, 433 U.S. 584, 598 (1977) (plurality opinion)). The Coker decision, relied upon in Graham, also stated that while other very serious crimes may be “deserving of serious punishment;… in terms of moral depravity and of the injury to the person and

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to the public, [they do] not compare with murder, which does involve the unjustified taking of human life.” 433 U.S. at 598 (plurality opinion). Hence, simple logic dictates that attempted murder is a nonhomicide offense because death, by definition, has not occurred.

We do not discount the seriousness of the offenses committed by Mr. Manuel. However, his actions did not result in the death of a human being. Thus, we are compelled to conclude that Mr. Manuel’s attempted murder conviction is a “nonhomicide” offense under both Tipton and Graham. Accordingly, Graham‘s holding forbidding a sentence of life without parole for a juvenile nonhomicide offender applies to Mr. Manuel and requires us to vacate his life-without-parole sentences.

For these reasons, we vacate Mr. Manuel’s sentences of natural life for his conviction for robbery with a firearm and attempted first-degree murder with a firearm pursuant to Graham, and we remand for resentencing as to those two convictions.³ On remand, the trial court may resentence Mr. Manuel to any legal sentence available to it at the time of the commission of Mr. Manuel’s offenses.⁴

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Sentences vacated and remanded for further proceedings in accordance with this opinion.

ALTENBERND and KHOUZAM, JJ., Concur.

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^1. We requested supplemental briefing from the parties on the effect of the Graham decision on Mr. Manuel’s sentences. We commend counsel for both parties for their excellent presentations.

^2.The attempted robbery with a firearm conviction was a second-degree felony punishable by up to fifteen years in prison. Mr. Manuel has fully served this sentence and did not challenge it in his postconviction motion.

^3.We note that Mr. Manuel’s sentence of forty years in prison on the second conviction for attempted murder with a firearm is unaffected by the Graham decision. Graham held only that sentences of life without the possibility of parole imposed on juveniles for nonhomicide offenses are unconstitutional—not that lengthy prison sentences imposed on juveniles for a term of years less than life are unconstitutional. Graham, 130 S. Ct. at 2030 (noting that the Eighth Amendment does not “foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life”). Therefore, Mr. Manuel is not entitled to be resentenced on the attempted murder conviction that currently carries a sentence of a term of forty years.

^4.Although Mr. Manuel’s sentencing guidelines scoresheet is not in the record, it is possible that his scoresheet carried a recommended sentence of life due to the seriousness of his offenses. How the trial court is to handle that issue, and whether Graham effectively creates a valid basis for a downward departure sentence, are not questions we must resolve today.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal from the Circuit Court for Hillsborough County; Daniel L. Perry, Judge.

James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Seyed R. Miran seeks review of the amended judgment and sentence imposed upon remand after this court reversed the revocation of his probation. Because the trial court rendered the amended judgment and sentence after it had lost

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jurisdiction to so do, we must reverse and remand for reentry of the judgment and sentence.

The timeline in this case is critical. On May 5, 2005, the trial court found Miran guilty of one count of second-degree grand theft. The court withheld adjudication, sentenced Miran to fifteen years’ probation, and imposed $30,000 in restitution to be paid as a condition of probation. The trial court subsequently revoked Miran’s probation on August 22, 2007, based on a finding that he left the state without permission. The court adjudicated him guilty and sentenced him to five years in prison.

By opinion dated January 7, 2009, this court reversed the revocation of Miran’s probation, finding that it was based solely on hearsay evidence. Miran v. State, 997 So. 2d 526 (Fla. 2d DCA 2009). The effect of this court’s opinion should have been to reinstate Miran’s original withhold of adjudication and sentence of fifteen years’ probation with payment of restitution as a condition of probation. However, on remand, the trial court reinstated the probationary sentence but refused to set aside the adjudication of guilt despite Miran’s argument that reinstatement of the withhold of adjudication was required by this court’s mandate.

Miran appealed this new judgment and sentence on March 17, 2009. On October 5, 2009, Miran filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error, alleging again that this court’s mandate required that the adjudication of guilt be set aside and the withhold of adjudication reinstated. Based on the date this motion was filed, the trial court had until December 4, 2009, to rule on it.

On December 1, 2009, the trial court entered an order requiring the State to file a response to Miran’s motion and extending its own jurisdiction to rule on the

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pending rule 3.800(b)(2) motion until January 8, 2010. This extension of time was a proper exercise of the trial court’s discretion. See Davis v. State, 887 So. 2d 1286, 1288 (Fla. 2004); McGuire v. State, 779 So. 2d 571, 572 (Fla. 2d DCA 2001). The State responded, and at a hearing on January 8, 2010, the trial court orally granted Miran’s rule 3.800(b)(2) motion; however, no written order or amended judgment and sentence were contemporaneously entered.

Almost a month later, this court received a notice from the circuit court clerk indicating that she could not file the supplemental record required by rule 3.800(b)(2) because no written order or amended judgment and sentence had been rendered. On February 3, 2010, this court ordered the trial court to “arrange for entry of a written order on the 3.800(b)(2) motion and corrected associated documents within 15 days, or the motion will be deemed denied.” (Emphasis added.) Thus, by this court’s order, the trial court had jurisdiction until Thursday, February 18, 2010, to enter both a written order and an amended judgment and sentence or Miran’s motion would be deemed denied despite the earlier oral ruling granting the motion.

On February 10, 2010, the trial court rendered a written order granting Miran’s rule 3.800(b)(2) motion. On February 15, the trial court rendered an amended order granting the motion and ordering the clerk to prepare the amended judgment and sentencing documents. However, the amended judgment and sentence were not actually rendered until March 1, 2010, eleven days after the grant of extended jurisdiction from this court had expired and without any request from the trial court for an extension of time in which to comply with this court’s order.

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In this appeal, both parties admit that the amended judgment and sentence reflect the proper reinstatement of Miran’s original sentence. However, the amended judgment and sentence were rendered at a time when the trial court no longer had jurisdiction pursuant to this court’s February 3, 2010, order. When a trial court enters an order on a rule 3.800(b)(2) motion outside of the time permitted for ruling on such a motion, the order is deemed a nullity and must be stricken. See, e.g., Mapp v. State, 18 So. 3d 33, 37 (Fla. 2d DCA 2009) (striking out-of-time order purporting to rule on a pending rule 3.800(b)(2) motion); Whitmore v. State, 910 So. 2d 308, 308 (Fla. 2d DCA 2005) (noting that order granting relief on rule 3.800(b)(2) motion was a nullity when it was entered two days after the permissible time period). Since the amended judgment and sentence in this case were entered outside of the time permitted by this court, they are a nullity and must be stricken.

We recognize that this court has, as a matter of practice, allowed a trial court to enter an out-of-time written order on a rule 3.800(b)(2) motion when the motion was orally granted during the proper time period. We have done this in recognition of the fact that entering the written order is simply a ministerial act that memorializes the prior timely oral ruling. Cf.Henry v. State, 42 So. 3d 317, 318-19 (Fla. 2d DCA 2010) (finding trial court had jurisdiction to enter written order of restitution after notice of appeal was filed when the court had orally imposed restitution before the notice of appeal was filed).

However, unlike in those cases, the problem in this case is not that the trial court failed to perform a ministerial act within a reasonable time after making an oral ruling. Instead, the problem is the trial court failed to comply with this court’s order

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within the time specifically provided by this court. In this court’s February 3 order, we relinquished jurisdiction to the trial court for fifteen days and directed the trial court to take certain actions within that time. Once those fifteen days elapsed with no request from the trial court for an extension of time, the trial court no longer had jurisdiction to act, and it had no authority to grant itself a de facto extension of time to enter the written amended judgment and sentence. Therefore, the amended judgment and sentence in this case are a nullity, having been rendered at a time when the trial court had no jurisdiction.

Accordingly, we reverse the amended judgment and sentence and remand for entry of a new judgment and sentence at a time when the trial court has jurisdiction. Miran need not be present. See Smith v. State, 870 So. 2d 61, 62 (Fla. 2d DCA 2003); Windisch v. State, 709 So. 2d 606, 607 (Fla. 2d DCA 1998).

Reversed and remanded for further proceedings in accordance with this opinion.

DAVIS and MORRIS, JJ., Concur.

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge.

Carlos J. Martinez, Public Defender, and J. Rafael Rodriguez, Specially Appointed Public Defender, for appellant.

Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.

Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.

PER CURIAM.

Mark David Ivey (“the defendant”) appeals his conviction and sentence for vehicular homicide, DUI manslaughter, and leaving the scene of a fatal accident. We reverse in part, and affirm in part.

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While on the interstate, the defendant struck a vehicle and continued driving. After the impact, the other vehicle hit a retaining wall, killing the driver. Florida Highway Patrol investigated, determined that the defendant was drunk, and arrested him.

The State charged and tried the defendant on one count each of vehicular homicide, DUI manslaughter, and leaving the scene of a fatal accident. The jury returned a verdict of guilty to all charges. The trial court adjudicated the defendant on all three counts, but sentenced him only on the DUI manslaughter to 22 years in prison, followed by 5 years probation. The defendant appealed.

On appeal, the defendant asserts that the constitutional prohibition against double jeopardy bars his conviction on all three counts based on a single death. On the other hand, the State contends that adjudicating the defendant on all three counts while sentencing him only on one does not violate the double jeopardy clause.

Both the federal and Florida constitutions protect against being put in jeopardy for the same offense twice. U.S. Const. amend. V; Art. I, § 9, Fla. Const. The double jeopardy clause prohibits both being tried twice and receiving more than a single punishment for the same crime. Robinson v. State, 901 So. 2d 1027, 1028 (Fla. 4th DCA 2005). Thus, withholding the sentence on one of the two convictions does not ameliorate a double jeopardy violation. See Bolding v. State,

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28 So. 3d 956 (Fla. 1st DCA 2010); Rodriguez v. State, 875 So. 2d 642 (Fla. 2d DCA 2004).

There is no constitutional prohibition, however, against multiple punishments for different offenses arising from the same criminal episode where the Legislature authorizes separate punishments. Hayes v. State, 803 So. 2d 695, 699 (Fla. 2001). Absent a clear statement of legislative intent to authorize separate punishments, Florida courts use the Blockburger test to determine when multiple convictions are prohibited. Blockburger v. U.S., 284 U.S. 299 (1932); Carawan v. State, 515 So. 2d 161, 165 (Fla. 1987); Houser v. State, 474 So. 2d 1193, 1196 (Fla. 1985).

The Legislature codified the Blockburger test in section 775.021(4), Florida Statutes (1983), and amended it in 1988, to add subsection (b) which states:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Here, the controversy centers on exception (b)2.

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The State contends that the Florida Supreme Court’s recent decision in Valdes v. State, 3 So. 3d 1067 (Fla. 2009), makes exception (b)2 applicable only where the two crimes charged are found in the same statute. The defendant, on the other hand, asserts that Valdes did not invalidate long-standing precedent that a single death cannot give rise to two convictions. We agree with the defendant’s assertion.

Prior to Valdes, it was well settled that dual homicide convictions arising from a single death violated double jeopardy. See Houser, 474 So. 2d at 1193; Rodriguez, 875 So. 2d at 642; Galiana v. State, 868 So. 2d 1218 (Fla. 3d DCA 2004). Factually, Houser is identical to this case in that it involved convictions for both DUI (then DWI) manslaughter and vehicular homicide for a single death, and the Court ruled that the defendant could not be punished for both. The Court reasoned that the Legislature never intended to punish a single death under two different criminal homicide statutes. 474 So. 2d at 1106.

In contrast, Valdes involved convictions for both shooting from a vehicle and shooting into an occupied vehicle arising from a singular shooting incident that did not result in death. Thus, the Valdes court did not determine the double jeopardy consequences of dual homicide convictions arising from a single death. Moreover, after the Legislature amended section 775.021(4), the Florida Supreme Court did not overrule Houser. Chapman v. State, 625 So. 2d 838, 839 (Fla. 1993)

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(“Especially, we do not read the amendment as an overruling of Houser and its holding that a single death cannot support convictions of both DUI manslaughter and vehicular homicide.”). Therefore, we conclude that Valdes did not overrule the well-settled principle that a single death cannot give rise to dual homicide convictions.

Turning to this case, the jury convicted the defendant of vehicular homicide, under section 782.071, Florida Statutes (2005), and DUI manslaughter, under section 316.193(3)(c)3b, Florida Statutes (2005). Although the defendant’s criminal charges stem from two separate statutes, as stated in Houser and its progeny, we are convinced the Legislature did not intend to punish the single death here by two separate homicide convictions. Accordingly, the defendant’s convictions for both vehicular homicide and DUI manslaughter cannot stand as they violate double jeopardy.

The jury also convicted the defendant of leaving the scene of a fatal accident under section 316.027(1)(b), Florida Statutes (2005). There is no double jeopardy prohibition against convictions for both DUI manslaughter and leaving the scene of a fatal accident. See Kelly v. State, 987 So. 2d 1237 (Fla. 2d DCA 2008). Here, however, the defendant’s DUI manslaughter conviction was enhanced from a second-degree felony to a first-degree felony because he left the scene of the fatal accident. Therefore, a separate conviction for leaving the scene of a fatal accident

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constitutes a double penalty, and violates double jeopardy. See Cleveland v. State, 587 So. 2d 1145 (Fla. 1991).

Accordingly, we vacate the convictions for vehicular homicide and leaving the scene of a fatal accident, and affirm the DUI manslaughter conviction and sentence.

Affirmed in part, reversed in part.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINEDAppeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Pat Siracusa, Judge.

DAVIS, Judge.

Gary E. Cochran challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Cochran raised numerous claims of ineffective assistance of counsel in the motion. We affirm without comment the summary denial of all but one claim.¹

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Cochran was indicted for first-degree murder. The State sought the death penalty; however, Cochran entered a negotiated plea to the charge in exchange for a sentence of life imprisonment. In the first ground of his rule 3.850 motion, Cochran alleged that if his counsel had filed and adequately pursued a motion to determine mental retardation as a bar to execution pursuant to Florida Rule of Criminal Procedure 3.203(d), the trial court would have found him ineligible for execution. He therefore alleges that his plea was involuntary; he would not have pleaded to the charge but would have proceeded to trial but for the possibility of facing the death penalty. This constitutes a facially sufficient claim for relief. See Davis v. State, 15 So. 3d 770, 773 (Fla. 2d DCA 2009) (concluding that a claim of ineffective assistance of counsel for failing to investigate a defense that alleges both a deficient performance and that the defendant would not have entered the plea absent counsel’s failure states a facially sufficient claim that requires record evidence or an evidentiary hearing to refute).

The postconviction court summarily denied this claim, finding that trial counsel had thoroughly investigated Cochran’s mental health. The attachments to the postconviction court’s order include only motions and orders regarding the appointment and payment of experts. These documents indicate that trial counsel investigated Cochran’s alleged mental retardation. However, they give no indication as to the experts’ opinion regarding his mental status. Thus, the attachments do not refute Cochran’s claim that his plea was involuntary. We therefore reverse the denial of this claim and remand to the postconviction court for further proceedings. Should the postconviction court again summarily deny this claim, it shall attach those portions of

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the trial court record that conclusively refute the claim; otherwise it shall conduct an evidentiary hearing on the issue.

Affirmed in part, reversed in part, and remanded.

VILLANTI and LaROSE, JJ., Concur.

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^1. We also affirm without comment the postconviction court’s denial of Cochran’s motion to appoint counsel and motion for leave to amend.
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NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

An appeal from the Circuit Court for Suwannee County. David W. Fina, Judge.

Nancy A. Daniels, Public Defender, and Nada M. Carey, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.

WEBSTER, J.

In this direct criminal appeal, appellant claims that the trial court committed reversible error in denying his motions (1) to suppress his statements to two Jehovah’s Witnesses based on the clergy communications privilege; (2) to suppress

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his statements to a jailer, a map drawn by him, and all evidence recovered based on the map; (3) for judgment of acquittal on the charge of first-degree murder because there was insufficient evidence of premeditation; and (4) for judgment of acquittal on the charge of tampering with evidence because there was insufficient evidence of a pending or imminent investigation. We affirm the denial of appellant’s motion for judgment of acquittal as to both charges without further discussion. For the reasons that follow, we also affirm the denial of appellant’s motion to suppress.

I.
A.On November 7, 2007, the victim, appellant’s 79-year-old mother, was reported missing after she failed to keep her scheduled appointments as a real estate agent. Appellant, who lived with the victim, told the sheriff that his mother left with a man in a dark-colored pickup truck. Deputies searched the immediate area and gained access to the victim’s truck, which contained the victim’s driver’s license, credit cards, cell phone, business cards, appointment book and money. The following day, law enforcement from several agencies and volunteer searchers with dogs began searching the victim’s 22-acre property and the surrounding area. At approximately noon, appellant agreed to talk with two investigators at the sheriff’s office about the possible whereabouts of the victim. Appellant specifically was told that he was not under arrest. Eventually, appellant conceded

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that he made up the story about the victim leaving with a man in a pickup truck. After three hours of questioning, appellant said that he wanted a lawyer, and the interview ended. Appellant was arrested on an unrelated charge of possession of a firearm by a convicted felon, and was held in the county jail on that charge.

On November 11, 2007, while he was still in custody on the firearm charge, appellant motioned for two elders of the Jehovah’s Witnesses, Joseph Westbrook and Michael Prentice, to come over to his holding cell. After receiving permission, Westbrook and Prentice entered the cell, and Prentice asked appellant what was wrong. Appellant told them that his mother had been killed, “they were trying to pin it on him,” and he “messed up” by disposing of the body. Appellant explained that he had been drinking for days and, when he came home after working on his tractor, he found his mother lying in a pool of blood with no pulse. When appellant said that he did not want to talk about it anymore, Prentice quoted scripture about the resurrection. According to Westbrook, appellant did not indicate that he was seeking spiritual counseling and guidance and did not want to talk about the Bible or pray. Westbrook and Prentice left appellant’s cell and told Deputy Law what appellant had said. Law told them that appellant’s mother was missing and presumed dead, that they could not find the body and that, if appellant was talking, they should go back and talk to him. They went back, and Westbrook told appellant to “tell them where the body is because then the forensic evidence

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should be able to clear you and show your innocence.” Appellant was quiet for a while and then said that he needed to talk to a lawyer. Westbrook brought up the resurrection again, asked appellant if he wanted to see his mother again, and referred to the Bible where Jesus said, “All of those in memorial tombs would come out.” Westbrook noted that appellant seemed receptive to this message. Westbrook asked if appellant wanted his mother to have a decent burial, and urged him to “tell them where she’s buried.” Appellant responded that his mother was not buried, but was “on top of the ground” on the farm, in bones or in pieces. Appellant again said that he wanted to talk to a lawyer. The two elders then left and were asked to write a statement about what appellant had said. On the issue of confidentiality, Westbrook explained that Jehovah’s Witnesses believed that if they had knowledge of a crime and did not disclose it, they would be “a sharer in that.”

Shortly after he spoke to the Jehovah’s Witnesses elders, appellant motioned for one of the jailers, Officer Golub, to come to his cell. Appellant asked Golub his name and said, “It was an accident.” Golub asked, “What was an accident?” Appellant responded, “Mother.” Appellant went on talking, saying that he was “F’ed up,” that her bones were in a field and the rest was in the flower beds, that it was an accident, that he did not mean for it to happen, and that he burned her and spread her out in the field. Appellant described the location of the field, but Golub could not understand the field’s location and placed a pen and paper on appellant’s

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bed. Appellant drew a map, and Golub called the sheriff. Golub acknowledged that he was aware that appellant was in jail on a firearm charge, that appellant had been questioned about his mother’s disappearance, and that a massive search for her body was being conducted while appellant was in jail. The map drawn by appellant was taken to the sheriff, who took a cadaver dog to the area, where the dog alerted to bones on the surface. According to the sheriff, the area would have been searched even without a map, and the bones were in plain view and would have been found eventually.

B.On March 28, 2008, appellant was indicted for first-degree murder, abuse of a dead human body and tampering with evidence. Prior to trial, appellant filed a motion to suppress (1) his statements to the two elders of the Jehovah’s Witnesses based on the clergy communications privilege; (2) his statements to Officer Golub after he invoked his right to an attorney; (3) the map drawn by him; and (4) all evidence recovered based on the map. After holding a hearing, the trial court denied the motion to suppress, concluding that appellant’s statements to the Jehovah’s Witnesses elders were not subject to the clergy communications privilege because (1) appellant’s conduct demonstrated that he was not seeking spiritual counsel from the elders, but was merely trying to get someone to listen to his side, and (2) the elders did not qualify as members of the clergy. The court also

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concluded that the statements initiated by appellant to Officer Golub, while appellant was in custody on an unrelated offense, were not subject to suppression and that the victim’s remains inevitably would have been discovered.

At the conclusion of appellant’s trial, the jury returned a verdict finding appellant guilty on all three counts as charged. Appellant was sentenced to life in prison without parole on the murder count, followed by concurrent sentences of fifteen and five years in prison on the remaining counts. This appeal follows.

II.
A.Appellant claims that the trial court committed reversible error in denying his motion to suppress his statements to the Jehovah’s Witnesses elders based on the clergy communications privilege. Pursuant to section 90.505(2), Florida Statutes (2007), “[a] person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.” For the clergy communications privilege to apply, four requirements must be satisfied: (1) the communication must be made to a “member of the clergy,” as defined in the statute; (2) the statement must be “made… for the purpose of seeking spiritual counsel and advice”; (3) the information must be received “in the usual course of [the clergy member's] practice or discipline”; and (4) the communication must be

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“made privately,” and “not intended for further disclosure except to other persons present in furtherance of the communication.” § 90.505(1)(b), Fla. Stat. (2007); Nussbaumer v. State, 882 So. 2d 1067, 1074 (Fla. 2d DCA 2004).

The trial court found that appellant’s statements to the elders failed to satisfy the first two requirements. On appeal, the state concedes that one could “reasonably believe” that Jehovah’s Witnesses elders qualify as members of the clergy. Assuming for the sake of argument that the elders were members of the clergy, we agree with the trial court that appellant’s statements to the elders were not made “for the purpose of seeking spiritual counsel and advice.” When reviewing the trial court’s denial of a motion to suppress, we must interpret the evidence and all reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). According to elder Westbrook, appellant did not indicate that he was seeking spiritual counseling and guidance and did not want to talk about the Bible or pray. The trial court could conclude that appellant’s words and actions indicated that he was not seeking spiritual advice or counseling, but was trying to explain his side of the story.

Although not addressed by the trial court or the parties on appeal, we also believe that the evidence failed to establish that appellant’s communications were either “made privately” or “not intended for further disclosure except to persons

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present in furtherance of the communication.” First, the conversations took place in a jail holding cell, which is not usually considered a place for private communications. Furthermore, it is clear from elder Westbrook’s testimony that he did not consider the conversations with appellant to be confidential, and there was no testimony that Westbrook told appellant that the conversations would be confidential. In fact, the exchange between appellant and the elders resembled an interrogation, with the elders repeatedly encouraging appellant to tell the authorities where his mother’s body was buried and appellant repeatedly telling them that he needed to talk to a lawyer. Accordingly, we conclude that the trial court correctly found that appellant’s statements to the elders were not subject to the clergy communications privilege.

B.Appellant also claims that the trial court committed reversible error in denying his motion to suppress his statements to Officer Golub, the map he drew for Golub, and all evidence recovered based on the map. Appellant asserts that, because he had previously invoked his Fifth Amendment right to counsel pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Officer Golub could not “interrogate” him at the jail, even if appellant initiated the contact, unless appellant knowingly and intelligently waived his right to counsel which, at a minimum, required appellant to be advised of his Miranda rights. See Davis v. State, 698 So. 2d 1182,

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1189 (Fla. 1997) (holding that a police officer who interviewed the defendant in jail after reinitiation of contact by the defendant, who had initially invoked his right to counsel, was required to first administer Miranda warnings). However, “[i]t is well established that Miranda warnings apply only to custodial interrogations.” State v. Edenfield, 27 So. 3d 222, 224 (Fla. 2d DCA 2010). The fact that a person makes incriminating statements to a law enforcement officer in jail does not entitle that person to Miranda warnings outside the context of a custodial interrogation. Id. at 225.

Here, appellant initiated the contact with Officer Golub and said, “It was an accident.” Golub responded, “What was an accident?” Appellant then made the incriminating statements about what he did with his mother’s body. Contrary to appellant’s assertion, Officer Golub did not interrogate appellant when he asked, “What was an accident?” First, it was appellant rather than Golub who initiated the questioning. Id. at 224 (noting that the term “custodial interrogation” refers to “questioning initiated by law enforcement” after a person has been taken into custody) (quoting Miranda, 384 U.S. at 444). Moreover, Golub, as a jailer, was responsible for the security and well-being of the jail’s inmates and could justifiably ask appellant what he meant by “an accident,” which could have referred to any number of things completely unrelated to appellant’s mother. Under the circumstances, a reasonable person could not conclude that Golub’s

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inquiry in response to appellant’s oblique statement was designed to lead to an incriminating response. See Ramirez v. State, 739 So. 2d 568, 573 (Fla. 1999) (“‘Interrogation takes place… when a person is subjected to express questions, or other words or actions, by a state agent, that a reasonable person would conclude are designed to lead to an incriminating response’”) (quoting Traylor v. State, 596 So. 2d 957, 966 n. 17 (Fla. 1992)). Therefore, appellant’s statements to Golub were not subject to suppression under Miranda.

The state concedes that Officer Golub should have known that his action in giving appellant a pen and paper on which to draw a map at the end of appellant’s statement would result in an incriminating response. However, we agree with the state that the admission of the map was harmless because appellant had already made a statement to Golub about the location of his mother’s remains and the evidence recovered based on the map was admissible under the inevitable discovery doctrine. See Nix v. Williams, 467 U.S. 431 (1984) (holding that evidence obtained as the result of unconstitutional police conduct may still be admissible provided that the evidence ultimately would have been discovered by lawful means). The victim’s remains, which were scattered in a field on her property, would have been discovered eventually based on appellant’s statement to Golub and the fact that the victim’s property was being combed by search teams

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with specially trained dogs. Accordingly, we affirm the trial court’s denial of appellant’s motion to suppress.

III.For the reasons expressed, appellant’s convictions and sentences are affirmed.

AFFIRMED.

LEWIS and MARSTILLER, JJ., CONCUR.

An appeal from the Circuit Court for Columbia County. Paul S. Bryan, Judge.

Mark F. Sweitzer, pro se, Appellant.

Bill McCollum, Attorney General, Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.

OPINION ON MOTION FOR REHEARINGPER CURIAM.

This cause is before us on Appellant’s motion for rehearing. We deny the motion for rehearing, but withdraw our former opinion of August 25, 2010, and substitute this corrected opinion in its place.

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We affirm the trial court’s partial denial of Appellant’s Florida Rule of Criminal Procedure 3.800(a) motion requesting jail credit for time served while out on bond, but under some restrictions of his freedom, during the time his case was pending. We find Appellant’s appeal to be frivolous, and write to refer Appellant to the Department of Corrections for disciplinary procedures in accordance with section 944.279, Florida Statutes (2008). This opinion constitutes the written findings required under that section.

Judicial Inquiry and FindingsAppellant pled guilty to two counts of sexual battery by a person in familial or custodial authority, three counts of lewd or lascivious exhibition in the presence of a child, and two counts of lewd or lascivious molestation of a child. While the charges were pending, Appellant spent 35 days in jail, and an unspecified amount of time released on bond, during which he was required to wear a Global Positioning Satellite (GPS) monitor. After sentencing, Appellant filed a motion under Florida Rule of Criminal Procedure 3.800(a), essentially claiming that he should have received jail credit for the time spent on out bond with GPS monitoring because it was like being incarcerated. The court correctly denied Appellant’s argument, citing Young v. State, 697 So. 2d at 75, 77 (Fla. 1997), and Toomajan v. State, 785 So. 2d 1275, 1276 (Fla. 5th DCA 2001), for the holding that time spent on community control does not, by law, entitle him to credit for

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time served in jail. On appeal, Appellant merely reargues that the restrictions placed upon him while out on bond should count as time incarcerated.

A court may “at any time” determine whether a collateral criminal proceeding is filed in good faith. See § 944.279(1), Fla. Stat. (2008). The statute equates a lack of “good faith” with a determination that the collateral action was “frivolous.” Seeid.; § 944.28(2)(a), Fla. Stat. (authorizing the Department of Corrections to forfeit gain-time when an inmate files a “frivolous suit, action, claim, proceeding, or appeal”).

Appellant’s appeal is frivolous because the trial court clearly and unambiguously explained, in denying Appellant’s rule 3.800(a) motion, that credit would not be awarded for time spent while out on bond. This appeal could not have been filed in good faith because the law is well settled in this area. Time spent on community control is expressly prohibited from being credited towards a prison sentence. § 948.06(3), Fla. Stat. (2008) (“No part of the time that the defendant is… in community control shall be considered as any part of the time that he or she shall be sentenced to serve.”); see State v. Cregan, 908 So. 2d 387, 391 (Fla. 2005); Young, 678 So. 2d at 77; Walton v. State, 989 So. 2d 729 (Fla. 4th DCA 2008). Therefore, it follows that a person who remains free while on pretrial release, despite some restrictions, is not entitled to credit this time towards his prison sentence. We do not address whether the trial court should have imposed

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sanctions under section 944.279, Florida Statutes, but note that under the plain terms of the law, any court is authorized to report a frivolous or malicious collateral criminal proceeding to the Department of Corrections for disciplinary proceedings.

We hold that Appellant’s appeal of the trial court’s order denying relief in this collateral criminal proceeding is frivolous. We direct the clerk of this court to forward a certified copy of this opinion to the appropriate correctional institution for the imposition of disciplinary proceedings against Appellant, in accordance with section 944.279, Florida Statutes (2004).

AFFIRMED. Certified Opinion FORWARDED to the Department of Corrections.

THOMAS, ROBERTS, and MARSTILLER, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

An appeal from the Circuit Court for Leon County. Jonathan E. Sjostrom, Judge.

Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellant.

Barbara Hobbs, Tallahassee, for Appellee.

PER CURIAM.

The State appeals the trial court’s order granting Appellee’s motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

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Lester Hackley was originally sentenced as a prison releasee reoffender (PRR) after committing a burglary of a conveyance with an assault. The trial court granted the rule 3.800(a) motion and resentenced Mr. Hackley without the PRR designation¹ because the Florida Supreme Court has determined that burglary of a conveyance with a battery, which is a greater offense than burglary of a conveyance with an assault, does not qualify for PRR sentencing. See State v. Hearns, 961 So. 2d 211, 213 (Fla. 2007); butseeShaw v. State, 26 So. 3d 51, 53 (Fla. 5th DCA 2009) (“[W]e recognize the irony that a defendant who commits a battery during the commission of a felony does not qualify as a PRR under the statute, but a defendant who commits an assault does.”).

A basic tenet of statutory construction compels a court to interpret a statute so as to avoid a construction that would result in unreasonable, harsh, or absurd consequences. SeeThompson v. State, 695 So. 2d 691, 693 (Fla. 1997). Thus, to avoid the absurd consequence of encouraging a defendant who has already committed burglary with an assault to put the victim in physical danger by committing a battery to avoid the possibility of PRR sentencing, we affirm the trial court’s order. To the extent this decision conflicts with the Fifth District’s decision in Shaw, we certify conflict.

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AFFIRMED.

BENTON, PADOVANO, and CLARK, JJ., CONCUR.

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^1. At resentencing, as a result of an apparent oversight, the trial court checked the line designating the appellant as a “prison releasee reoffender.” It is apparent from the trial court’s order and the reduced sentence that the trial court did not intend to re-sentence the appellant as a PRR.
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3.850 Appeal form the Circuit Court for Orange County, Richard F. Conrad, Judge.

Howard Dale Snipes, Daytona Beach, pro se.

No Appearance for Appellee.

PER CURIAM.

ON ORDER TO SHOW CAUSEAppellant, Howard Dale Snipes, appeals the denial of his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. After reviewing his filings on appeal, we issued a Spencer¹ show cause order directing Snipes to demonstrate why he should not be barred from filing further pro se challenges to his convictions and sentences in this case. Having

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considered Snipes’ response and finding it to be unpersuasive, we conclude that he is abusing the judicial process and should be barred from further pro se filings.

Therefore, we now prohibit Howard Dale Snipes from filing with this Court any more pro se pleadings concerning Orange County, Ninth Judicial Circuit Court case number 04-CF-9832. The Clerk of this Court is directed not to accept any further pro se filings from Snipes concerning this case. Any additional pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of the Florida Bar. See Johnson v. State, 652 So. 2d 980, 980 (Fla. 5th DCA 1995) (prohibiting petitioner from filing further pro se pleadings with this Court after thirteen challenges to conviction and sentence); Isley v. State, 652 So. 2d 409, 411 (Fla. 5th DCA 1995) (“Enough is enough.”). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2010); Simpkins v. State, 909 So. 2d 427, 428 (Fla. 5th DCA 2005).

AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.

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

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^1. State v. Spencer, 751 So. 2d 47 (Fla. 1999).
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