Florida Criminal Law Opinions

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

Appeal from the Circuit Court for Collier County; Frederick R. Hardt, Judge.

Stephen M. Grogoza, Naples, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Jesus Eduardo Ramos appeals the order dismissing as untimely his motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.850. We conclude that the postconviction court erred by dismissing the motion because Ramos’s second postconviction counsel, Samuel Blanco, admitted that due to an illness and lack

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of office staff, Blanco failed to file the motion before the expiration of the deadline set forth in State v. Green, 944 So. 2d 208, 218 (Fla. 2006). We therefore reverse and remand.

I. Background

In 1992, Ramos pleaded no contest to charges of possession of a controlled substance and possession of drug paraphernalia. Adjudication was withheld, and he was sentenced to three years’ probation.

On July 13, 2009, Ramos filed his motion to withdraw plea, arguing that his plea was involuntarily entered because he was not advised of the deportation consequences pursuant to Florida Rule of Criminal Procedure 3.172(c)(8). In support of the timeliness of his motion, Ramos attached an affidavit from Blanco, dated November 17, 2008. In the affidavit, Blanco explained that he became ill in August 2008 but that he attempted to continue working on the case. Ultimately, however, due to his illness and the loss of both of his staff members, he determined he could no longer continue to represent Ramos. Blanco further explained that he returned the case file to Ramos and referred him to another attorney. Notably, Blanco stated:

[I]f not for my illness, and perhaps also lack of office staff, I believe I would have been able to assist Mr. Ramos to the timely completion of his case, barring unforeseen complications. Any lack of timeliness in Mr. Ramos’ case is directly attributable to my inability to advance his cause or prepare his case for referral out as a result of my compounded incapacity.

Ramos testified at the evidentiary hearing that he “thought” or “believed” that Blanco became ill in August 2008, but when asked whether Blanco failed to do any work on the case from August to December of 2008, Ramos responded: “The only thing

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that I know is that he just told me he couldn’t continue with the case, that he was very sorry… because he was sick and… he told me to go to [another attorney].” Ramos testified that Blanco returned the case file to him at the same time Blanco told Ramos he could no longer represent him, but there is no indication in the record exactly when this conversation took place.

In the order of dismissal, the postconviction court found that Ramos failed to present any evidence or testimony that he could not have ascertained the immigration consequences with the exercise of due diligence. The postconviction court also determined that the exception to the two-year window for filing a rule 3.850 motion¹ did not apply in this case because Blanco did not act negligently.

II. Analysis

In Green, the Florida Supreme Court held that

[a] motion seeking to withdraw a plea on grounds that the trial court did not advise the defendant of the possibility of deportation will be held to the same time constraints as other postconviction motions…. These claims must be brought within two years of the date that the judgment and sentence… bec[a]me final.

944 So. 2d at 218. The court further explained that if such a motion was untimely filed, the defendant would be required to allege and prove that “the fact that the plea subjected the defendant to deportation could not have been ascertained during the two-year period with the exercise of due diligence.” Id However, because the holding in Green reduced the time for filing such a motion, the court held that “in the interest of

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fairness, defendants whose cases are already final will have two years from the date of this opinion in which to file a motion comporting with the standards adopted today.“Id at 219.

Green was decided on October 26, 2006, thereby giving defendants whose judgments and sentences were already final—like Ramos—until October 26, 2008, to file a facially sufficient motion on those grounds. Although Ramos did not file his motion until July 13, 2009, almost nine months past the Green deadline, his failure to file a timely motion was directly attributable to Blanco. The trial court’s finding that Blanco did not act negligently is unsupported by the record. Blanco admitted that his illness and lack of office staff prevented him from fulfilling his responsibilities in Ramos’s case, including the timely filing of the motion to withdraw plea.

The record here is unclear as to the exact date on which Ramos learned that Blanco would be unable to continue representing him. However, because Blanco acknowledged the untimeliness issue and because his affidavit was signed November 17, 2008, there is at least a strong inference that the Green window had already expired when Ramos learned Blanco could not continue representing him. Accordingly, Ramos sufficiently proved that his counsel, through neglect, failed to timely file the motion to withdraw plea.

We also hold that the trial court erred by finding that Ramos was required to and failed to prove he could not have ascertained the deportation consequences with the exercise of due diligence. In Ventura v. State, 977 So. 2d 794, 797 (Fla. 2d DCA 2008), this court rejected the argument that a defendant whose case was already final prior to the issuance of the Green opinion had to meet the due diligence requirement.

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We held that such a requirement would be at odds with the fairness concerns espoused by the supreme court in Green. Ventura, 977 So. 2d at 797.

Although we are reversing and remanding for the postconviction court to consider Ramos’s motion on the merits, we note that in Green, the court discussed a further requirement for defendants that they must state how they will prove that the deportation warning was not given and that “[i]n the normal case, this will require the defendant to allege that a hearing transcript will demonstrate a violation of rule 3.172(c)(8).” 944 So. 2d at 218. The court stated that “[a]bsent conclusive evidence of a violation, the trial court has discretion to deny relief.” Id. We find this language important because here Ramos alleged in his motion that he has been notified that the transcript of his plea hearing is no longer available.

Despite the fact that Ramos may be hampered in his ability to prove the allegations in his motion due to the lack of a transcript, we are constrained by Green to reverse and remand for the postconviction court to fully consider Ramos’s motion on the merits.

Reversed and remanded.

WHATLEY and BLACK, JJ., Concur.

——–

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

Appeal from the Circuit Court for DeSoto County; James S. Parker, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Francisco Tello-Lugo appeals his judgments and sentences for three counts of lewd or lascivious battery on a child older than twelve but less than sixteen years of age. Tello-Lugo contends that the trial court erred in denying his motion for

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mistrial after the alternate juror was present during deliberations. We agree and reverse and remand for a new trial.

The record reflects that the trial court instructed the jurors to retire to the jury room to begin deliberations. The court then discharged the alternate juror. After approximately five minutes, the court received a note from the jury asking if the jurors could review a video recording that was played during the trial. The video equipment took around ten to fifteen minutes to set up. When the jurors entered the courtroom to watch the videotape, the court noted that the alternate juror was still present. The bailiff asked, “She wanted to stay, Judge, is she allowed?” The court informed the alternate that she had to stay in the courtroom and was not allowed to converse with the jurors.

Defense counsel moved for a mistrial, arguing that the alternate juror was in the jury room while the jury was deliberating. The alternate juror was asked if she had participated in the jury deliberations. She stated that the jurors had been “talking about everything that happened” and were “speculating and things like that.” She admitted that she had been “listening and talking.” The trial court denied the motion for mistrial.

Florida Rule of Criminal Procedure 3.280(a) provides that “an alternate juror who does not replace a principal juror shall be discharged at the same time the jury retires to consider its verdict.” This rule is mandatory, not permissive. Berry v. State, 298 So. 2d 491, 492 (Fla. 4th DCA 1974). Therefore, a defendant is entitled to a mistrial upon timely motion when an alternate juror is present during jury deliberations. Ludaway v. State, 632 So. 2d 732, 733 (Fla. 1st DCA 1994). This rule applies when the alternate juror is present after the jurors begin discussion of the case, and not when the

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alternate is “present only during the time the jury engages in organizational activity such as taking breaks, making phone calls, or electing the foreperson and the case is not discussed in his or her presence.” Bouey v. State, 762 So. 2d 537, 5

SECOND DISTRICT

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

Appeal from the Circuit Court for DeSoto County; James S. Parker, Judge.

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

Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellee.

KHOUZAM, Judge.

Francisco Tello-Lugo appeals his judgments and sentences for three counts of lewd or lascivious battery on a child older than twelve but less than sixteen years of age. Tello-Lugo contends that the trial court erred in denying his motion for

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mistrial after the alternate juror was present during deliberations. We agree and reverse and remand for a new trial.

The record reflects that the trial court instructed the jurors to retire to the jury room to begin deliberations. The court then discharged the alternate juror. After approximately five minutes, the court received a note from the jury asking if the jurors could review a video recording that was played during the trial. The video equipment took around ten to fifteen minutes to set up. When the jurors entered the courtroom to watch the videotape, the court noted that the alternate juror was still present. The bailiff asked, “She wanted to stay, Judge, is she allowed?” The court informed the alternate that she had to stay in the courtroom and was not allowed to converse with the jurors.

Defense counsel moved for a mistrial, arguing that the alternate juror was in the jury room while the jury was deliberating. The alternate juror was asked if she had participated in the jury deliberations. She stated that the jurors had been “talking about everything that happened” and were “speculating and things like that.” She admitted that she had been “listening and talking.” The trial court denied the motion for mistrial.

Florida Rule of Criminal Procedure 3.280(a) provides that “an alternate juror who does not replace a principal juror shall be discharged at the same time the jury retires to consider its verdict.” This rule is mandatory, not permissive. Berry v. State, 298 So. 2d 491, 492 (Fla. 4th DCA 1974). Therefore, a defendant is entitled to a mistrial upon timely motion when an alternate juror is present during jury deliberations. Ludaway v. State, 632 So. 2d 732, 733 (Fla. 1st DCA 1994). This rule applies when the alternate juror is present after the jurors begin discussion of the case, and not when the

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alternate is “present only during the time the jury engages in organizational activity such as taking breaks, making phone calls, or electing the foreperson and the case is not discussed in his or her presence.” Bouey v. State, 762 So. 2d 537, 540-41 (Fla. 5th DCA 2000) (finding that a harmless error analysis is appropriate if the alternate juror is present only during limited organizational activity).

Because the alternate juror admitted that she was present while the jurors were discussing the case, the trial court should have granted Tello-Lugo’s motion for a mistrial. Accordingly, we are compelled to reverse and remand for a new trial.

Reversed and remanded for a new trial.

WHATLEY and DAVIS, JJ., Concur.

40-41 (Fla. 5th DCA 2000) (finding that a harmless error analysis is appropriate if the alternate juror is present only during limited organizational activity).

Because the alternate juror admitted that she was present while the jurors were discussing the case, the trial court should have granted Tello-Lugo’s motion for a mistrial. Accordingly, we are compelled to reverse and remand for a new trial.

Reversed and remanded for a new trial.

WHATLEY and DAVIS, JJ., Concur.

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

Appeal from the Circuit Court for Pinellas County; Richard A. Luce, Judge.

James Marian Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

CRENSHAW, Judge.

Calvin Flournoy appeals his judgment and sentences and argues that the trial court erred by denying his unequivocal request to represent himself without conducting an inquiry pursuant to Faretta v. California, 422 U.S. 806 (1975). The State contends that any Faretta inquiry would be futile because Flournoy failed to

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demonstrate during the pendency of his trial that he had the ability to exercise the necessary restraint to represent himself. See, e.g., Indiana v. Edwards, 554 U.S. 164, 171 (2008) (recognizing Faretta and later cases “have made clear that the right of self-representation is not absolute”); see also Tennis v. State, 997 So. 2d 375, 378 (Fla. 2008) (acknowledging that in “certain instances a defendant may be precluded from exercising his or her right to proceed pro se after the trial court conducts a Faretta inquiry”). However, the seeming futility of a trial court’s Faretta inquiry “does not eliminate the requirement that a hearing be held to enable the trial court to make the appropriate determination of whether a defendant can represent himself.” Tennis, 997 So. 2d at 378-79. Flournoy’s request for self-representation was unequivocal; consequently, the trial court’s failure to hold a Faretta hearing resulted in per se reversible error, and our review is not amenable to a harmless error analysis. See Tennis, 997 So. 2d at 379; State v. Young, 626 So. 2d 655, 656-57 (Fla. 1993); Goldsmith v. State, 937 So. 2d 1253, 1257 (Fla. 2d DCA 2006). Accordingly, because the trial court failed to conduct any Faretta inquiry and because we are constrained by the language in Tennis, Young, and Goldsmith, we reverse Flournoy’s judgment and sentences and remand for further proceedings.

Reversed and remanded.

CASANUEVA, C.J., and LaROSE, J., Concur.

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

Appeal from the Circuit Court for Hendry County; Christine Greider, Judge.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Joe Nathan Willingham challenges his convictions and sentences for aggravated battery with a firearm causing great bodily harm and shooting at, within, or into a vehicle. We affirm his convictions and sentences without further comment. We remand for the limited purpose of correcting a scrivener’s error which appears on the

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face of the written judgment. Although the record reflects that Willingham was convicted after a jury trial, the written judgment erroneously indicates that he entered a no contest plea. Accordingly, we remand for the trial court to correct this error. See Newson v. State, 867 So. 2d 603 (Fla. 2d DCA 2004).

ALTENBERND and NORTHCUTT, JJ., Concur.

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

Appeal from the Circuit Court for Pinellas County; Irene H. Sullivan, Judge.

Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.

J.S. Lucas Fleming of The Fleming Law Group, St. Petersburg, for Appellee.

WHATLEY, Judge.

The State of Florida appeals an order granting C.D.M.’s motion to suppress marijuana. C.D.M. was a passenger in a vehicle driven by C.C., which vehicle was stopped by Deputy Vinson for a traffic violation. The trial court granted C.D.M.’s motion to suppress the marijuana based on a finding that, although it was C.C. who asked C.D.M. to give him the marijuana that was in C.D.M.’s possession, C.C. was

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acting as an agent for Deputy Vinson when he did so. We conclude that the trial court erred in finding that C.C. was an agent of the police where Deputy Vinson did not ask C.C., or even know that he was planning, to tell C.D.M. to hand over the marijuana.

At the hearing on C.D.M.’s motion to suppress, Deputy Vinson testified that he stopped C.C.’s vehicle for a traffic violation. After asking C.C. for his driver’s license, Deputy Vinson asked C.C. to step out of the vehicle and told C.C. that he could smell marijuana coming from his person and coming from the vehicle. Deputy Vinson testified that he told C.C., “I believe that there might be marijuana inside, and if you’re willing, go ahead and voluntarily, you know, if you’re willing to voluntarily give it up, you know, go ahead and do so.” C.C. then walked back to his vehicle and told C.D.M., “Hey, give me it.” C.D.M. then gave the marijuana to C.C.

C.C. testified that when he was talking to Deputy Vinson outside of the car, Deputy Vinson asked him, “Where’s the weed?” C.C. told him that it was in the car. Deputy Vinson then asked C.C., “Will you go over there and get it?” C.C. testified that Deputy Vinson told him that he would let them off easy if he got the marijuana. C.C. testified that he felt he did not have a choice because Deputy Vinson told him to get the marijuana.

We conclude that Deputy Vinson’s interaction with C.C. did not transform C.C. into an agent of the police. To establish that C.C. was acting as an agent of the police, C.D.M. was required to show that Deputy Vinson was aware of and acquiesced in C.C.’s actions. See State v. Butler, 1 So. 3d 242, 246 (Fla. 1st DCA 2008) (“One seeking the exclusion of evidence as the fruit of an unreasonable search must demonstrate, first, that the government perpetrated the intrusion that led to the

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discovery of incriminating information.”). In State v. Iaccarino, 767 So. 2d 470, 475 (Fla. 2d DCA 2000), this court held that in determining whether an individual acts as an instrument of the police, the court must decide “(1) whether the government was aware of and acquiesced in the conduct; and (2) whether the individual intended to assist the police or further his own ends.” The necessary level of governmental participation involves some amount of knowledge and acquiescence in the search. United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981).

While a certain degree of governmental participation is necessary before a private citizen is transformed into an agent of the state, de minimis or incidental contacts between the citizen and law enforcement agents prior to or during the course of a search or seizure will not subject the search to fourth amendment scrutiny. The government must be involved either directly as a participant or indirectly as an encourager of the private citizen’s actions before we deem the citizen to be an instrument of the state.

Id at 791.

In the present case, Deputy Vinson testified that when he asked C.C. to get the marijuana from his vehicle, he had no idea where it was located and he was not attempting to gather evidence against C.D.M. We note that C.C. testified that when Deputy Vinson asked him where the marijuana was, C.C. told him that it was in the car, not that it was in C.D.M.’s possession. Therefore, as far as Deputy Vinson knew, the marijuana was in C.C.’s car. Even the trial court acknowledged that Deputy Vinson was probably not targeting C.D.M. when he asked C.C. for the marijuana, stating, “I do feel-and the officer may very well have been targeting [C.C.] as the potential defendant with the marijuana….” There was no evidence that Deputy Vinson knew that C.C. was

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going to ask C.D.M. for the marijuana, much less that he acquiesced in the conduct. See Iaccarino, 767 So. 2d at 475.

Further, according to the testimony of C.C., he was attempting to further his own needs when he asked C.D.M. for the marijuana. He testified that he asked C.D.M. for the marijuana because he thought they would get off easier if he gave it to the deputy. In fact, neither C.D.M. nor C.C. was arrested at the time and they were allowed to go home after the traffic stop.

Finally, the fact that C.C. testified that he felt obligated to cooperate with Deputy Vinson did not transform him into an agent of the police. In Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971), the Supreme Court held that, even though a witness may have felt obliged to cooperate, “it is no[t] part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” In holding that the witness was not acting as an agent of the police in that case, even though she may have felt obliged to cooperate, the Court stated that the evidence could only be excluded if “some type of unconstitutional police conduct occurred.”]d. We conclude that Deputy Vinson’s conduct in asking C.C. if he was “willing to voluntarily give” up the marijuana was proper and in no way coercive. See State v. Martissa, 18 So. 3d 49, 52 (Fla. 2d DCA 2009) (“During a traffic stop an officer may ask if a person is in possession of a weapon or drugs.”).

Accordingly, we reverse the trial court order granting C.D.M.’s motion to suppress because C.C. was not acting as an agent of the police when he asked C.D.M. to give him the marijuana.

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Reversed and remanded.

WALLACE and LaROSE, JJ., Concur.

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

An appeal from the Circuit Court for Alachua County. Peter K. Sieg, Judge.

Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.

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

WEBSTER, J.

In this direct criminal appeal, appellant claims that (1) the trial court committed fundamental error when it instructed the jury on the lesser included offense of manslaughter by act in appellant’s prosecution for first-degree murder

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with a firearm where appellant was convicted of the lesser included offense of second-degree murder with a firearm; (2) appellant’s dual convictions for possession of a firearm by a violent career criminal and possession of a firearm by a convicted felon violated the constitutional prohibition against double jeopardy; (3) the trial court erred in denying appellant’s motion for judgment of acquittal on the charges of tampering with evidence because there was insufficient evidence that appellant had knowledge of an imminent or pending investigation; and (4) the trial court erred in imposing a mandatory life sentence for possession of a firearm by a violent career criminal. Because we agree that the trial court committed fundamental error in instructing the jury on the lesser included offense of manslaughter by act and that appellant’s dual convictions for possession of a firearm by a violent career criminal and possession of a firearm by a convicted felon violated double jeopardy, we reverse appellant’s convictions for second-degree murder with a firearm and possession of a firearm by a convicted felon. However, we affirm as to appellant’s last two claims.

Appellant was indicted for first-degree murder with a firearm, possession of a firearm by a violent career criminal, possession of a firearm by a convicted felon, and five counts of tampering with evidence. On the first-degree murder count, the jury was instructed on the lesser included offenses of second-degree murder and

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manslaughter by act. Without objection, the court gave the following standard jury instruction on manslaughter by act:

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt: One, [the victim] is dead; and two, the defendant intentionally caused the death of the victim.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have previously explained those terms.
In 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, only an intent to commit an act which caused death.

At the conclusion of the trial, the jury returned verdicts finding appellant guilty of the lesser included offense of second-degree murder with a firearm and guilty as charged of possession of a firearm by a violent career criminal, possession of a firearm by a convicted felon, and five counts of tampering with evidence.

At sentencing, the trial court adjudicated appellant guilty and imposed concurrent prison sentences of life for second-degree murder with a firearm, fifteen years with a three-year mandatory minimum for possession of a firearm by a convicted felon, and five years for each count of tampering with evidence followed by a life sentence for possession of a firearm by a violent career criminal. After filing this appeal, appellant filed a motion to correct a sentencing error which claimed that the trial court erred in imposing a mandatory life sentence for

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possession of a firearm by a violent career criminal. The trial court denied the motion.

First, appellant claims that the trial court committed fundamental error when it gave the standard jury instruction on the lesser included offense of manslaughter by act, which erroneously stated that the state had to prove that “the defendant intentionally caused the death of the victim.” In State v. Montgomery, 39 So. 3d 252 (Fla. 2010), our supreme court held that the trial court’s use of the standard jury instruction on manslaughter by act, which erroneously required a jury finding that the defendant intended to kill the victim, constituted fundamental error in a first-degree murder prosecution wherein the defendant was convicted of the lesser included offense of second-degree murder. In December 2008, the supreme court amended this instruction to provide: “In 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, only an intent to commit an act which caused death.” In re Standard Jury Instructions in Criminal Cases — Report No. 2007-10, 997 So. 2d 403, 404 (Fla. 2008). However, the instruction retained the erroneous language that the state had to prove that the defendant “intentionally caused the death” of the victim. Id. Recently, in Riesel v. State, 35 Fla. L. Weekly D2284 (Fla. 1st DCA Oct. 15, 2010), we held that, because this amended instruction still stated that intent to kill was an element of manslaughter, giving the instruction

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constituted fundamental error pursuant to Montgomery where the jury was not instructed on manslaughter by culpable negligence. Because appellant was convicted of second-degree murder (which was one step removed from the lesser included offense of manslaughter by act) and the jury was not instructed on manslaughter by culpable negligence, the trial court committed fundamental error in giving the erroneous standard jury instruction on manslaughter by act, requiring the reversal of appellant’s second-degree murder conviction pursuant to Montgomery and Riesel.

Second, appellant claims that his dual convictions for possession of a firearm by a violent career criminal pursuant to section 790.235, Florida Statutes (2007), and possession of a firearm by a convicted felon pursuant to section 790.23, Florida Statutes (2007), violated the constitutional prohibition against double jeopardy. The state correctly concedes error because the indictment did not charge separate acts of possession and the offense of possession of a firearm by a convicted felon was a lesser offense the elements of which were subsumed by the greater offense of possession of a firearm by a violent career criminal. See § 775.021(4)(b)3., Fla. Stat. (2007) (expressing the legislature’s intent that a defendant is to be convicted and sentenced for each criminal offense committed in the course of one criminal episode or transaction except for “[o]ffenses which are lesser offenses the statutory elements of which are subsumed by the greater

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offense”). See also Williams v. State, 776 So. 2d 358, 359 (Fla. 1st DCA 2001) (holding that the offense of carrying a concealed firearm by a convicted felon set out in section 790.23, Florida Statutes, is a lesser included offense of the offense of carrying a concealed firearm by a violent career criminal set out in section 790.235, Florida Statutes). Dual convictions in contravention of legislative intent are a violation of the constitutional prohibition against double jeopardy and constitute fundamental error that can be raised for the first time on appeal. Kilmartin v. State, 848 So. 2d 1222 (Fla. 1st DCA 2003). Accordingly, appellant’s conviction and sentence for possession of a firearm by a convicted felon must be vacated.

Third, appellant claims that the trial court erred in denying his motion for judgment of acquittal on the charges of tampering with evidence because there was insufficient evidence that appellant had knowledge of an imminent or pending investigation. The state correctly responds that this claim is not preserved for appeal because appellant never raised this specific argument in his motion for judgment of acquittal. See Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (holding that “in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below”). However, our supreme court has recognized that “an argument that the evidence is totally insufficient as a matter of law to establish the commission of a

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crime need not be preserved” because it “meets the requirements of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.” F.B. v. State, 852 So. 2d 226, 230-31 (Fla. 2003). Because appellant has failed to show that the evidence was totally insufficient as a matter of law to establish the commission of a crime, we conclude that there was no fundamental error in this case.

Finally, appellant claims that the trial court erred in imposing a mandatory life sentence for possession of a firearm by a violent career criminal pursuant to section 775.084(4)(d)1., Florida Statutes (2007), which requires that violent career criminals be sentenced to life for first-degree felonies, because sentencing should be controlled by section 790.235, Florida Statutes (2007), which provides in pertinent part:

(1) Any person who meets the violent career criminal criteria under s. 775.084(1)(d), regardless of whether such person is or has previously been sentenced as a violent career criminal, who owns or has in his or her care, custody, possession, or control any firearm, ammunition, or electric weapon or device, or carries a concealed weapon, including a tear gas gun or chemical weapon or device, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. A person convicted of a violation of this section shall be sentenced to a mandatory minimum of 15 years’ imprisonment; however, if the person would be sentenced to a longer term of imprisonment under s. 775.084(4)(d), the person must be sentenced under that provision.

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Otherwise, appellant claims that section 775.084(4)(d)1. would nullify section 790.235(1) by always requiring a life sentence. This claim is without merit. A trial court is required to impose a life sentence pursuant to section 775.084(4)(d)1. unless it finds that a violent career criminal sentence is not necessary for the protection of the public pursuant to section 775.084(4)(e), in which case the trial court has the discretion to impose a prison sentence of up to thirty years with a mandatory minimum of fifteen years pursuant to section 790.235(1). Pope v. State, 884 So. 2d 328, 329 (Fla. 2d DCA 2004). Because the trial court did not find that a violent career criminal sentence was not necessary for the protection of the public, appellant was properly sentenced to life in prison pursuant to section 775.084(4)(d)1. We also reject appellant’s claim that the trial court erred in sentencing appellant without a scoresheet since the Criminal Punishment Code did not apply pursuant to section 775.084(4)(h).

In conclusion, we reverse appellant’s conviction for second-degree murder with a firearm and remand for a new trial. We also reverse and remand with directions that the trial court vacate appellant’s conviction and sentence for possession of a firearm by a convicted felon. In all other respects, we affirm.

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

WOLF and KAHN, JJ., CONCUR.

FIRST DISTRICT, STATE OF FLORIDA

Opinion filed November 22, 2010.

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

An appeal from the Circuit Court for Duval County. Michael R. Weatherby, Judge.

Nancy A. Daniels, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Christine A. Guard, Assistant Attorney General, Tallahassee, for Appellee.

BENTON, C.J.

Jones was convicted at trial of attempted murder in the second degree, attempted armed robbery, and possession of a firearm by a convicted felon. He was also found in contempt for directing an obscene outburst at the trial judge. We

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affirm the murder, robbery, and firearm possession convictions. But we reverse the contempt conviction.

At trial, Detective Long, an evidence technician for the Jacksonville Sheriff’s Office, testified in the state’s case that she had collected and processed evidence taken from the defendant’s house. On cross-examination, defense counsel asked whether she had performed a gunshot residue test on any of the clothing collected there, and she answered that she had not. On redirect examination, the prosecutor asked no questions concerning gunshot residue tests. The trial court then excused the jury, and the following occurred:

THE COURT:… Detective Long, last time I heard anything about a gunshot residue test it was the test to see if there was blowback on somebody’s hand?
THE WITNESS: That’s correct.
THE COURT: You ever done a GSR on a piece of cloth?
THE WITNESS: No, sir, never.
THE COURT: Ever heard of anybody doing that?
THE WITNESS: No, sir, never.
THE COURT: Better correct that, gentlemen, or you can, [addressing defense counsel], because if you don’t I will.
MR. GARRO [an assistant state's attorney]: Okay, judge.
THE COURT: You’re not going to let this jury think that there’s something wrong because they didn’t take a nonexistent test.

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MR. CARTER [defense counsel]: Nonexistent test?
THE COURT: There is no such thing as taking a gunshot residue test of a piece of cloth.
MR. URRA [another state's attorney]: Your Honor, I’ll have Mr. Garro ask the question. Mr. Garro can follow up.
THE COURT: I mean — maybe somebody’s hand but a piece of cloth, clothing? It doesn’t work that way.
MR. CARTER: Okay. I will be happy to clarify.
….
THE COURT:… The jury has returned. Mr. Garro.

BY MR. GARRO:

Q Detective Long, have you ever processed a piece of clothing for gunshot residue?
A No.
Q Does such a test exist on clothing?
A No, it does not.

The prosecution had no further questions of Detective Long. Mr. Carter, the defense lawyer who had himself offered, outside the jury’s presence, “to clarify,” had no further questions for her, either. On appeal, counsel argues that the trial court was mistaken in the view that examining clothing for gunshot residue was a “nonexistent test,” see, e.g., State v. Davis, 929 A. 2d 278 (Conn. 2007); Camm v.

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State, 908 N.E.2d 215 (Ind. 2009); and that the learned trial judge would have done well not to require counsel, apparently well qualified to try the case without coaching, to ask the witness certain questions on this mistaken premise.

While it is “permissible for a trial judge to ask questions deemed necessary to clear up uncertainties[, the trial judge should not] depart[] from a position of neutrality.” Sparks v. State, 740 So. 2d 33, 36 (Fla. 1st DCA 1999) (quoting J.F. v. State, 718 So. 2d 251 (Fla. 4th DCA 1998)). “When required by the interests of justice, the court may interrogate witnesses, whether called by the court or by a party.” § 90.615(2), Fla. Stat. (2010). But a trial judge should not suggest a line of questioning to trial counsel. See Evans v. State, 831 So. 2d 808, 811-12 (Fla. 4th DCA 2002) (reversing because the trial judge suggested that the prosecution inquire into the immigration status of the defendant); Lee v. State, 789 So. 2d 1105, 1107 (Fla. 4th DCA 2001) (reversing because the trial judge suggested questions to the prosecutor about identifying marks on the defendant after “the prosecutor had indicated that direct examination of the witness was concluded, [and] the trial court sua sponte called a sidebar”). “[T]he trial judge serves as the neutral arbiter in the proceedings and must not enter the fray by giving ‘tips’ to either side.” Chastine v. Broome, 629 So. 2d 293, 295 (Fla. 4th DCA 1993).

No objection was lodged when the trial judge offered the “tips” below, however, nor was any motion to disqualify ever stated. See McKenzie v. State, 29

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So. 3d 272, 279 (Fla. 2010) (“McKenzie neither objected to the trial court’s [acting in a way allegedly evincing a lack of neutrality] nor did he file a motion to disqualify the trial court based upon this allegedly improper conduct. Therefore, the instant challenge is unpreserved and procedurally barred for appellate consideration.”); Love v. State, 569 So. 2d 807, 810 (Fla. 1st DCA 1990). There has been no showing that the trial court’s conduct “constitute[d] error that reaches down into the validity of the trial such that a guilty verdict… could not have been obtained without the assistance of the… error.” Wade v. State, 41 So. 3d 857, 868 (Fla. 2010). See Brooks v. State, 762 So. 2d 879, 898-99 (Fla. 2000); McDonald v. State, 743 So. 2d 501, 505 (Fla. 1999). However ill-advised, the trial judge’s suggestions or directives in the present case, outside the jury’s presence, are not fundamental error, and do not require reversal of the murder, robbery or firearm possession convictions.

At a hearing after the trial, the trial judge told Mr. Jones’ mother that she could not participate in a discussion that arose. Mr. Jones responded by using obscene language in addressing the judge, and the judge held him in contempt. The “contempt proceeding” amounted in essence to: “Sir, I hereby adjudge you to be guilty of contempt of this Court, and I sentence you to a term of 180 days in county jail, and that will be consecutive to whatever sentence I give you on the case.”

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Direct criminal contempt may be punished summarily, but failure to adhere strictly to the prescribed procedure constitutes error that has been held to be fundamental and reversible. Florida Rule of Criminal Procedure 3.830 requires the following:

(1) The judge must see or hear the conduct constituting the contempt.
(2) The judge shall state the facts upon which the contempt is based.
(3) The judge shall inquire of the defendant whether he has any cause to show why he should not be adjudged guilty of contempt and sentenced.
(4) The defendant must be given the opportunity to present evidence of excusing or mitigating circumstances
(5) The judge must sign the judgment and it must be entered into the record.
(6) The judge must pronounce the sentence in open court.

The trial court failed to comply with paragraphs (2), (3) and (4) of Rule 3.830: Subsection (2) requires that the factual basis be recited; subsection (3) requires that the judge inquire whether the putative contemnor can show cause why judgment and sentence should not be pronounced; and subsection (4) requires that the judge inquire whether there are excusing or mitigating circumstances.

The failure to observe the requirements of Rule 3.830 mandates reversal. See J.A.H. v. State, 20 So. 3d 425, 427 (Fla. 1st DCA 2009) (reversing a contempt

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judgment where the trial court “failed to follow steps two, three and four”); Searcy v. State, 971 So. 2d 1008, 1014 (Fla. 3d DCA 2008); Montoya v. State, 695 So. 2d 873, 874 (Fla. 3d DCA 1997) (reversing a contempt judgment entered for “disrespecting the court” because it did not contain a more detailed recital of the facts upon which the contempt was based); Fisher v. State, 638 So. 2d 196, 196-97 (Fla. 5th DCA 1994) (“we reverse the judgment holding Fisher in direct criminal contempt… because it failed to include in its judgment ‘a recital of those facts on which adjudication of guilt is based prior to the adjudication of guilt…’, which is mandated by the rule”); Peters v. State, 626 So. 2d 1048, 1050 (Fla. 4th DCA 1993); Porter v. Williams, 392 So. 2d 59, 60 (Fla. 5th DCA 1981). “Failure to follow the procedural steps of rule 3.830 constitutes fundamental error that requires reversal of the contempt judgment. See Hutcheson v. State, 903 So. 2d 1060, 1062 (Fla. 5th DCA 2005).” J.A.H., 20 So. 3d at 427. The judgment of and sentence for contempt are therefore reversed.

Affirmed in part and reversed in part.

HAWKES, J., CONCURS; LEWIS, J., CONCURS IN RESULT ONLY.

Appeal from the Circuit Court for Orange County, A. Thomas Mihok, Judge.

James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

PALMER, J.

Brandon Allen Harris (defendant) appeals his judgment and sentence for burglary of a dwelling.¹ Determining that the defendant’s burglary conviction is not supported by competent, substantial evidence, we reverse. All other judgments and sentences are affirmed.

The burglary count filed against the defendant alleged that he and a co-defendant remained in a dwelling with the intent to commit or intent to attempt to commit

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a forcible felony, in violation of section 810.02(1)(b)2.c. of the Florida Statutes (2007). Section 810.02(1)(b)2.c. of the Florida Statutes states:

810.02 Burglary
* * *[1](b) For offenses committed after July 1, 2001, “burglary” means:
2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:
c. To commit or attempt to commit a forcible felony, as defined in s.776.08.

The facts supporting the State’s charges against the defendant are undisputed. The defendant and his co-defendant knocked on an apartment door and then pushed their way inside. The defendant possessed a BB gun. The defendants ordered all seven occupants of the apartment to get on the floor, face down. The defendant struck one victim in the face with the BB gun. The defendants robbed the victims of a small amount of money and then fled the scene.

At the close of the State’s case, the defendant moved for judgment of acquittal on the burglary count, arguing that the State failed to prove a licensed or invited entry as required under section 810.02(1)(b)2.c. The trial court denied the motion. The jury thereafter found the defendant guilty as charged.

The defendant contends that the trial court erred by denying his motion for entry of a judgment of acquittal because the State presented no evidence that the defendant was licensed or invited to enter the premises occupied by the victims. The defendant contends that the statutory language “[n]othwithstanding a licensed or invited entry”, required the State to prove that the defendant entered the premises with the consent of the occupants. We conclude that the plain language of section 810.02(1)(b)2.c., the legislative intent behind the enactment of the 2001 amendment to section 810.02, the

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case law following the 2001 legislative amendment, and the standard jury instruction for a remaining in burglary charge support the defendant’s argument.

First, the plain language of the section 810.02(1)(b)2.c. requires the State to prove a licensed or invited entry because it is an element of the offense. Black’s Law Dictionary defines “notwithstanding” as meaning “despite” or “in spite of.” Thus, the statute states that an individual commits a remaining in burglary when, despite a licensed or invited entry, he/she remains in a dwelling to commit or attempt to commit a forcible felony.

Second, the legislative intent behind the enactment of the 2001 amendment to section 810.02 indicates that a licensed or invited entry is an element of a remaining in burglary. In that regard, section 810.02 was amended by the legislature in 2001 following the Supreme Court’s ruling in Delgado v. State, 776 So. 2d 233 (Fla. 2000). In Delgado, the Court held that the “remaining in” language of the burglary statute was only applicable when there was consensual entry by the accused and the “remaining in” was done surreptitiously. Id. at 240-41. In amending the burglary statute, the Legislature stated, in pertinent part, as follows:

810.015. Legislative findings and intent; burglary
* * *(1) The Legislature finds that the case of Delgado v. State, 776 So. 2d 233 (Fla. 2000), was decided contrary to legislative intent and the case law of this state relating to burglary prior to Delgado v. State. The Legislature finds that in order for a burglary to occur, it is not necessary for the licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously.

§ 810.015 Fla. Stat. (2007)(emphasis added). The legislative intent indicates that a remaining in burglary is only committed where entry is licensed or invited and,

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accordingly, the State must prove such licensed or invited entry to obtain a remaining in burglary conviction.

Third, case law supports the defendant’s argument that a remaining in burglary can only be established where the accused’s entry is licensed or invited. In Ray v. State, 933 So. 2d 716, 717 (Fla. 4th DCA 2006), Ray entered the victim’s open garage without consent or license and left on his bicycle after the victim discovered his presence. The victim found his circular saw near where Ray’s bicycle had been. A jury convicted Ray of burglary of a dwelling. Ray argued on appeal that, among other things, the trial court erred by giving a remaining in instruction on his burglary charge. The Fourth District held that the instruction was given in error, as the trial court should have only given the first portion of the amended instruction pertaining to section 810.02(b)(1)(stating that burglary is defined as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter”). The court explained that any instruction regarding remaining in was improper because it was clear that Ray did not have permission to enter the garage and, therefore, there was no issue about his surreptitiously remaining in the garage. The only means by which he could be convicted of burglary was if he entered the garage with the intent to commit the offense because Ray entered without consent. The Fourth District reversed and remanded Ray’s conviction because the remaining in instruction allowed the jury to convict Ray of burglary even if he did not enter the garage with the intent to commit a crime. See also Davis v. State, 892 So. 2d 518, 518 (Fla. 1st DCA 2004)(holding that the trial court erred by including a remaining in instruction because the facts could not support a

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surreptitious remaining and the defendant could only be convicted if he intended to commit theft or robbery when he entered the structure).

Lastly, the standard jury instruction for a remaining in burglary is instructive and consistent with the language of section 810.02(1)(b)2.c. The standard jury instruction provides:

Give this statement of the elements if the charge is unlawfully remaining: To prove the charge of Burglary, the State must prove the following two elements beyond a reasonable doubt:
(Defendant) had permission or consent to enter a [structure] [conveyance] owned by or in the possession of (person alleged). (Defendant) after entering the [structure] [conveyance] remained therein Give a, b, or c as applicable.
c. with the fully-formed conscious intent to commit or attempt to commit the offense of (forcible felony alleged).

Fla. Std. Jury Instr. (Crim.) 13.1.

Accordingly, because the defendant’s conviction for burglary is not supported by competent, substantial evidence indicating that the defendant was licensed or invited to enter the premise occupied by the victims, the defendant’s judgment and sentence for burglary must be reversed and this case remanded so that they can be vacated by the trial court.

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA and ORFINGER, JJ., concur.

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3.850 Appeal from the Circuit Court for Volusia County, Margaret W. Hudson, Judge.

Matthew M. Simmons, Sneads, pro se.

Bill McCollum, Attorney General, Tallahassee and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

PALMER, J.

Matthew M. Simmons (defendant) appeals the trial court’s summary denial of his motion for post-conviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Determining that the defendant was entitled to receive an evidentiary hearing as to ground one of his motion, we reverse in part.

In ground one of his motion, the defendant stated that his trial counsel was ineffective for failing to inform him, prior to the entry of his plea, that the trial court could sentence him as a prison releasee reoffender (PRR). The defendant asserted further that he would not have entered his plea if he had known that he faced PRR sentencing.

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The trial court denied the claim for relief because, at the sentencing hearing, the defendant informed the trial court that he was aware that if he were sentenced as a PRR he would have to serve day for day. Specifically, the defendant stated the following:

I’ve been sitting here for a month having time to think about it, and I would like to get one more shot. Fifteen years is a long time. I’ve got to do that day for day under PRR. I can’t get out for 15 solid years, maybe-maybe I could change in that time, maybe something will come my way….

However, the issue presented in this case is whether defense counsel advised the defendant prior to the plea that he was eligible for PRR sentencing and would be required to serve his sentence day for day. Even if the defendant was aware of PRR sentencing issues at the time of sentencing, that fact does not conclusively refute the claim that he was unaware of his PRR eligibility and its consequences prior to entering his plea. The written plea forms indicate that the defendant was informed of the maximum and minimum penalties for the charges against him, including enhanced sentencing laws for which the State had given defense counsel notice. However, the transcript of the plea hearing is silent regarding PRR sanctions, and the written plea forms do not specifically mention PRR sanctions.

In Ortiz v. State, 882 So. 2d 1057 (Fla. 4th DCA 2004), the defendant sought rule 3.850 relief, claiming that his defense counsel failed to advise him that he could be sentenced as a PRR upon conviction and, therefore, he refused to accept a more favorable plea offer. Although the trial court summarily denied the defendant’s rule 3.850 motion, the Fourth District reversed, concluding that the defendant’s claim was legally sufficient and required a hearing. We agree with this ruling. See also Barnhill v.

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State, 828 So. 2d 405 (Fla. 5th DCA 2002)(holding that defendant was entitled to receive an evidentiary hearing where he alleged that counsel did not inform him that PRR sentencing required him to serve his entire sentence without the benefit of receiving gain time).

Accordingly, the trial court’s order summarily denying the defendant’s claim for post-conviction relief is reversed as to ground one, and the case is remanded for an evidentiary hearing thereon. We affirm the trial court’s summary denial of the other grounds of defendant’s motion.

AFFIRMED in part, REVERSED in part, and REMANDED.

ORFINGER and EVANDER, JJ., concur.

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

Appeal from the Circuit Court for Hillsborough County; William Fuente, Judge.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.

LaROSE, Judge.

Louis Bryant, Jr., appeals his convictions and sentences for delivery of cocaine and possession of cocaine. We find no merit in Mr. Bryant’s argument that the

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trial court should have excluded evidence relating to the twenty-dollar bill used to buy cocaine. We write, however, to address a scrivener’s error in the judgment and the trial court’s imposition of certain costs and fines.

Mr. Bryant argues, and the State concedes, that the written judgment erroneously describes count I as delivery of cocaine within 1000 feet of a church. We agree and remand for correction of this scrivener’s error. See Dennis v. State, 917 So. 2d 288, 288-89 (Fla. 1st DCA 2005).

Mr. Bryant challenges two fines and two costs imposed by the trial court. He filed a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b)(2) to preserve these issues. The trial court did not rule on the motion within sixty days; thus, it is deemed denied. Fla. R. Crim. P. 3.800(b)(2)(B); Watts v. State, 973 So. 2d 1271, 1272 (Fla. 2d DCA 2008). We strike the fines but affirm the costs.

The written judgment includes a $500 fine pursuant to section 775.083(1), Florida Statutes (2007). Fines under this section are discretionary and must be pronounced orally at sentencing. Dadds v. State, 946 So. 2d 1129, 1130 (Fla. 2d DCA 2006). We strike the $500 fine because the trial court failed to pronounce it orally. See Perdue v. State, 17 So. 3d 1283, 1283 (Fla. 2d DCA 2009); Masengale v. State, 969 So. 2d 1218, 1219 (Fla. 2d DCA 2007).

The written judgment also includes an additional five percent surcharge on the $500 fine in the amount of $25, pursuant to section 938.04, Florida Statutes (2007). Because the $500 fine was not properly imposed, the $25 surcharge must also be stricken. See Perdue, 17 So. 3d at 1283; Masengale, 969 So. 2d at 1219; Dadds, 946 So. 2d at 1130.

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Mr. Bryant challenges a $50 crime prevention cost imposed pursuant to section 775.083(2).¹ He argues that this cost is discretionary and must be pronounced orally. However, the statute provides that the court “shall” assess this cost. Id. Therefore, it is a mandatory cost that the trial court need not pronounce orally. See Anderson v. State, 739 So. 2d 601 (Fla. 2d DCA 1997) (stating that trial court need not orally pronounce mandatory costs). We affirm the crime prevention court cost.

Finally, Mr. Bryant contests the imposition of a $150 prosecution cost pursuant to section 938.27. He claims that the State neither requested nor documented the cost item.² Mr. Bryant did not object at the sentencing hearing when the trial court orally pronounced the prosecution cost. Thus, he has not preserved this issue for our review. See Rivera v. State, 34 So. 3d 207, 209 (Fla. 2d DCA 2010) (holding rule 3.800(b)(2) motion will not preserve imposition of prosecution costs for review where the

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trial court orally pronounces them); Norman v. State, 676 So. 2d 7, 9 (Fla. 4th DCA 1996). We affirm the imposition of the prosecution cost.

We affirm Mr. Bryant’s convictions and sentences but remand for entry of a corrected judgment and sentence as addressed in this opinion.

Affirmed and remanded.

CASANUEVA, C.J., and CRENSHAW, J., Concur.

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