Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

MICHAEL J. ALLEN, JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-154

[March 30, 2011]

PER CURIAM.

Michael J. Allen, Jr., appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) Motion to Correct Illegal Sentence. In his motion, Allen alleged that, following his plea, he was awarded credit for 297 days time served in the Palm Beach County jail at the Gun Club and Stockade facilities and that it was apparent from the face of his “court and jail records” that he was entitled to credit for an additional 165 days of credit for time served between May 1, 2008 and August 6, 2009. The trial court summarily denied the motion, referencing a handwritten notation on the plea sheet to the effect that “defendant agrees credit is correct.” We reverse.Allen’s motion was facially sufficient. See Phillips v. State, 839 So. 2d 893, 894 (Fla. 4th DCA 2003); see also Warren v. State, 980 So. 2d 1204, 1205 (Fla. 4th DCA 2008). “An order denying a facially sufficient rule 3.800(a) motion should include not only ‘valid reasons for the denial by the trial court, but also attachments of portions of the record sufficient to support the denial.’” Macool v. State, 7 So. 3d 637, 637 (Fla. 5th DCA 2009) (quoting Brown v. State, 816 So. 2d 1142, 1143 (Fla. 5th DCA 2002)); see also Linder v. State, 36 Fla. L. Weekly D190 (Fla. 4th DCA Jan. 26, 2011). The trial court failed to attach the referenced plea sheet to the order of denial. And, even if the plea sheet had been attached, it would have b e e n insufficient to establish Allen knowingly and intelligently waived his entitlement to the additional credit. See Howard v. State, 40 So. 3d 46, 47 (Fla. 4th DCA 2010) (“A stipulation as to a specific amount of credit is not sufficient to demonstrate that a defendant knowingly a n d intelligently waived credit to which he

otherwise would b e entitled ‘ i n the absence of evidence that the defendant knew of his entitlement to additional credit and voluntarily relinquished that right.’”) (quoting Velasquez v. State, 11 So. 3d 979, 980 (Fla. 1st DCA 2009)); see also Giggetts v. State, 5 So. 3d 756, 757 (Fla. 1st DCA 2009).Reversed and Remanded.GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.* * *Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John J. Hoy, Judge; L.T. Case Nos. 2008CF006436AXX, 2008CF006444AXX, 2008CF006644AXX and 2008CF006646AXX.Michael J. Allen, Jr., Raiford, pro se.Pamela   J o   Bondi,   Attorney   General,   Tallahassee,   and  James   J.Carney, Assistant Attorney General, West Palm Beach, for appellee.Not final until disposition of timely filed motion for rehearing.

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

________________________________

Opinion filed March 30, 2011.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Highlands County; Peter F. Estrada,

Judge.

KELLY, Judge.

Albert Stevens, Jr., appeals from the order denying his motion for anextension of time to file his motion for postconviction relief under Florida Rule ofCriminal Procedure 3.850. Because the order is not a final, appealable order, we dismiss the appeal. Stevens shall have sixty days after the date this opinion becomes final to file his rule 3.850 motion. The trial court can then determine the issue of timeliness and dispose of the motion on the merits, if appropriate. See Manning v.

State, 28 So. 3d 971, 973 (Fla. 2d DCA 2010) (holding that “when a motion for extension to file a postconviction motion is denied, the defendant should not appeal that order, but should instead file the intended motion as soon as possible, alleging the grounds for the motion to the best of the defendant’s ability and further alleging the reason why the motion is untimely”; the trial court then has discretion to dispose of the motion on the issue of timeliness or on any other dispositive issue); see also Ham v.

State, 36 So. 3d 189, 190 (Fla. 2d DCA 2010) (noting that the trial court’s order denying a motion for extension of time erroneously advised Ham that he could appeal that order within thirty days).

Dismissed.

DAVIS and LaROSE, JJ., Concur.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

COREY JERMAINE POTTS,

Appellant, v.

STATE OF FLORIDA,

Appellee.

No. 4D09-4820

[ March 30, 2011 ]

TAYLOR, J.

Corey    Jermaine    Potts    appeals    his    conviction    a n d  sentence    forburglary of a dwelling. He argues that the trial court reversibly erred in allowing the fingerprint examiner to testify that his identification was verified by another examiner from a different police department, thereby bolstering his testimony. We agree and reverse for a new trial. We disagree, however, that the trial court erred in denying his motion for judgment of acquittal.At trial, Jacquemond Dieujuste testified that he left his home around 7:00 or 7:30 a.m. on November 10, 2008 and returned at about 10:15 a.m. after receiving a call from his sister that everything in the house was “tipped over.” He found the house in disarray. Bedrooms, which had been locked, were unlocked, and a plasma TV and new laptop were taken. Overall, about $14,000 to $15,000 in items were missing.Police who responded to the burglary examined the outside of the home and found a bedroom window which had been broken from the outside. Also, the lock had been pried off a sliding glass door in the kitchen. This was determined to be the actual point of entry into the home. A crime scene investigator was able to lift a fingerprint from the inside glass of the broken bedroom window. Its placement was consistent with someone reaching in and curling his fingers around the glass. The print was identified by the fingerprint examiner, Sergeant Thomas Tustin, as belonging to the defendant.

Dieujuste testified that he did not know the defendant. He did not give the defendant permission to be in his house on November 10, 2008 or at any other time, and there was no reason the defendant’s fingerprint should be in his house.Sergeant Tustin testified that his fingerprint examination revealed that the fingerprint lifted from the broken window belonged to the defendant. Over defense counsel’s objection, Sergeant Tustin testified that his findings had been verified by another examiner from a different agency. He added, “we wouldn’t be here if he didn’t verify it.” During closing argument, the state referred to Sergeant Tustin’s testimony about a second expert verifying his fingerprint identification.After the state rested, the defendant moved for a judgment of acquittal on the burglary count. He argued that the state failed to make a prima facie case that the defendant was the person who entered the residence to commit the theft. According to the defendant, the state did not prove when the fingerprint was left on the broken window or establish when the window was broken. The defendant renewed his motion after both sides rested.The jury found the defendant guilty of burglary of a dwelling. The trial court sentenced him to twelve years in prison with 129 days credit for time served.The defendant correctly argues that the trial court erred in permitting the fingerprint examiner to bolster his testimony by referring to the verification of his test results by another, non-testifying expert. See Telfort v. State, 978 So. 2d 225, 226–27 (Fla. 4th DCA 2008). In Telfort, the fingerprint examiner testified on direct about the level of certainty as to the fingerprint match to the defendant: “‘There is no doubt that this is Mr. Telfort’s fingerprint. In latent fingerprints, our department has provisions that another examiner must also view your work to verify the identification is actually one and the same. This print has been compared by two other examiners identifying Mr. Telfort’s left index finger.’” Id. at 226 (emphasis in original). We held it was error to allow this testimony over the defendant’s objection. Id. at 227. We reached the same result in Bunche v. State, 5 So. 3d 38 (Fla. 4th DCA 2009).We reject the state’s contention that the erroneous admission of Sergeant Tustin’s testimony regarding confirmation of his identification by a second examiner was harmless error because the defense did not object to the witness’s earlier reference to a second examiner. We disagree that this testimony was merely cumulative. The officer’s

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assertion that “we wouldn’t be here if he didn’t verify it” converted his earlier answer from a mere inference that a second identification was made to a certainty that it was.Further, during closing, the state compounded th e error by commenting o n Sergeant Tuskin’s testimony about verification b y a second person:[STATE]: But you know even Sergeant Tuskin talked about you know when [defense counsel] was questioning him about whether or not you know things happen when it comes to fingerprint identification, and the fact that it is left up to the person who’s examining them.First and foremost, he admitted that it happened. He admitted that he was familiar with that. But he also talked about the fact from questioning from [defense counsel] that there was a second party evaluation that takes place with a n y match. And h e also said o n [defense counsel’s] questioning that “we wouldn’t be here right now if that person disagreed.”We conclude, however, that the trial court did not err in denying the defendant’s motion for judgment of acquittal. The state presented evidence from the owner of the home that he did not know the defendant and that he never gave the defendant permission to enter his home. In addition, the state presented testimony that the defendant’s fingerprint was found on the inside of the broken bedroom window of the private residence, which provided sufficient evidence for the trial court to submit the case to the jury. See Walker v. State, 656 So. 2d 950 (Fla. 5th DCA 1995) (finding defendant’s fingerprint, found on windowsill of backyard window leading into bedroom, sufficient to support burglary conviction); Sorey v. State, 419 So. 2d 810 (Fla. 3d DCA 1982) (holding that evidence that the object on which defendant’s fingerprints were found was located in a place inaccessible to the public established the defendant’s identity as the perpetrator of the restaurant robbery and was legally sufficient for the defendant’s conviction); Roberts v. State, 268 So. 2d 578 (Fla. 3d DCA 1972) (holding that where rape occurred at victim’s house and defendant had never been there before, evidence that fingerprints and palm prints found at scene of crime matched defendant’s prints was sufficient to sustain defendant’s conviction of rape).Reversed And Remanded For New Trial.GROSS, C.J. and HAZOURI, J., concur.

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* * *Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jeffrey L. Colbath, Judge; L.T. Case No. 2008CF016820AMB.Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

PETER ROUSSONICOLOS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-3449

[March 30, 2011]

DAMOORGIAN, J.

Appellant, Peter Roussonicolos, appeals his judgment and sentence for organized scheme to defraud. Roussonicolos raises a number of points o n appeal in connection with the trial court’s rulings on evidentiary matters. One of the issues raised is whether the trial court incorrectly ruled that Roussonicolos’ co-defendant’s prior testimony exonerating Roussonicolos was inadmissible. We hold that the trial court reversibly erred in ruling that the prior testimony was inadmissible and remand for a new trial. We find no merit to Roussonicolos’ other points on appeal.Roussonicolos and his co-defendant, Seamus Limato, worked together in Roussonicolos’ business. At some point during their business relationship, Roussonicolos and Limato were charged with organized scheme to defraud over $20,000. The essence of the State’s case was that Roussonicolos and Limato were writing bad checks to themselves and each other, depositing them, and then withdrawing the funds before the payee bank discovered that the checks had been drawn on accounts that had insufficient funds. The trial was severed, and Roussonicolos’ theory of defense was that Limato acted alone, and without Roussonicolos’ knowledge or consent.In support of his defense, Roussonicolos attempted to introduce a transcript of his bond hearing containing Limato’s sworn testimony.¹

¹ Roussonicolos had been on probation. The charge, which is the subject of this appeal, resulted in his arrest on a violation of probation (VOP). At a status

According to Limato, he was serving as a middle man selling products for Roussonicolos’ business. Limato would arrange sales, a n d then purchase products from Roussonicolos to fill the orders. Roussonicolos, in turn, would pay commissions to Limato. Limato had written a number of bad checks to Roussonicolos, on the belief that his customers’ checks, which he deposited into his own account, were good. Roussonicolos had thereafter written checks to Limato for commissions earned on the sales and for consulting work. However, because Limato’s checks to Roussonicolos were bad, Roussonicolos had no money in his account to cover his checks to Limato. As a result, both Limato’s and Roussonicolos’ accounts h a d large deficiencies. Most importantly, Limato admitted that he was solely responsible for the bad checks and that Roussonicolos was unaware that the checks were drawn on accounts with insufficient funds.By the time Roussonicolos went to trial, Limato had invoked his Fifth Amendment right against self-incrimination and was unavailable to testify. When Roussonicolos attempted to introduce the transcript of Limato’s testimony, the State objected o n hearsay grounds. Roussonicolos responded that Limato’s testimony fell within the former testimony exception to the hearsay rule. The State countered that the prosecutor at the VOP status hearing had not had a full opportunity to cross-examine Limato. The trial court sustained the objection, in part relying upon the mistaken belief that the charges against Roussonicolos had not been filed at the time of the hearing.²The standard of review of a trial court’s ruling on the admission of evidence is abuse of discretion. However, the court’s exercise of its discretion is limited by the rules of evidence. Hudson v. State, 992 So. 2d 96, 107 (Fla. 2008).Section 90.804(2)(a), Florida Statutes (2007) provides that so long as the declarant is unavailable to testify, his/her testimony will not be excluded if it is:(a) Former testimony.–Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the

conference on the pending VOP, Roussonicolos’ counsel requested that Roussonicolos be released on his own recognizance pending his trial on the probation violation. It was at this hearing that Limato was called to testify.² On appeal, the State concedes that the charges had been filed one month prior to the bond hearing.

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same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had a n opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.It is undisputed that by invoking his Fifth Amendment right against self-incrimination, Limato was unavailable to testify. Henyard v. State, 992 So. 2d 120, 126 n.3 (Fla. 2008). We therefore turn to whether the State had an opportunity and similar motive to develop Limato’s testimony on cross examination.In Garcia v. State, 816 So. 2d 554 (Fla. 2002), the Supreme Court applied the “similar motive” test where the defendant sought to introduce the prior testimony of his co-defendant who was unavailable to testify at the defendant’s own trial. Garcia and his co-defendant, who were charged with murder, had their trials severed. Id. at 557 n.2. The co-defendant was tried first, and he provided testimony at his own trial that tended to exonerate Garcia. Id. at 557. However, he invoked his Fifth Amendment right during Garcia’s trial and refused to testify. Id. at 564. Garcia attempted to admit the transcript of his co-defendant’s testimony, but the trial court denied the request. Id. On appeal, the Supreme Court reversed the trial court concluding that under the statute, an “identical” motive was not required, but merely a “similar” one. Id. The court considered the State’s motive at both trials to be similar. In both instances, the motive was “to discredit [the witness’s] testimony and show it to be not worthy of belief.” Id. at 565. The court went on to say[m]oreover, the failure to allow the jury to hear this testimony deprived the jury of important additional evidence that could have been critical to assessing Garcia’s guilt. Indeed, where Garcia’s alleged involvement in the crimes hangs on the testimony of one individual–Ribera–the jury was entitled to consider the testimony of the [co-defendant], who took the stand in his own trial and specifically testified that Garcia was not involved in these murders. In this case, to prevent the jury from hearing the prior recorded testimony of [the co-defendant], which the State subjected to cross-examination, is to apply the hearsay rule “mechanistically to defeat the ends of justice.” For all these reasons, the exclusion of [co-defendant’s] prior sworn testimony constituted error, which . . . was not harmless beyond a reasonable doubt.

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Id. at 555-56 (citation omitted).The State argues that Limato’s former testimony should be inadmissible because the scope of inquiry conducted at the bond hearing bore little resemblance to scope of the examination at trial.³ In support of its argument, the State relies on Nazworth v. State, 352 So. 2d 916 (Fla. 1st DCA 1977).In Nazworth, the court determined that previous testimony against a defendant was not admissible because it had been secured through threats, and because it was given at a bond hearing. The court went on to say that “[t]he extensive re-direct of [the witness] by the state after the limited cross-examination b y [defendant’s] counsel did not afford defendant an opportunity for proper cross that would have been available had [the witness] testified at trial.” Id. at 918. The State argues that it likewise lacked “an opportunity for proper cross that would have been available had [the witness] testified at trial.” We reject the application of Nazworth to this case.We do not read Section 90.804(2)(a) to require that, in order for prior testimony to b e admitted as a n exception to the hearsay rule, the opponent of the evidence must have the same motivation to examine the witness in both the prior proceeding and the one in which the prior testimony was being introduced. Nor, as the State suggests, must the scope of inquiry conducted at the bond hearing be the same as the scope of the examination at trial. Garcia, 816 So. 2d 554. To require such a high standard would render this hearsay exception useless.There appear to be no Florida cases addressing the applicability of section 90.804(2)(a) where the prior testimony was provided at a bond hearing. Roussonicolos cites to two Texas cases that address this issue. O’Neal v. Johnson, 54 F. Supp. 2d 695, 698 (S.D. Texas 1999); Ward v.

hearsay rule which is the subject of this appeal, relying instead on the Florida Supreme Court’s decision in Thompson v. State, 619 So. 2d 261 (Fla. 1993). Although Thompson was argued on constitutional grounds, the Supreme Court determined that Thompson’s confrontation rights under the Florida and United States Constitutions were not abridged so long as the party against whom the testimony is being offered had an opportunity at the prior proceeding to cross-examine the witness. Id. at 265 (citing Ohio v. Roberts, 448 U.S. 56, 100 (1980)).

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strikingly similar to the Florida statute section 90.802 at issue in this case, Texas Rule of Criminal Evidence 804(b)(1).⁴ Both statutes contain the “opportunity and similar motive” language which is the subject of our case.In Ward, the State sought to introduce the prior testimony of the victim, a minor, who at trial refused to testify about the criminal acts perpetrated upon her by the defendant. Ward, 910 S.W.2d at 2. Over the defendant’s objection, the State moved to introduce a transcript of the victim’s prior sworn testimony given at a bond revocation hearing. Id. The trial court allowed the transcript to be introduced. Id. On appeal, the defendant argued that it was improper to allow the introduction of the victim’s prior testimony from the bond hearing since the defendant would not have had a similar motive to develop the victim’s testimony at the bond hearing. Id. at 3. In concluding that the trial court correctly allowed the introduction of the victim’s prior testimony, the Texas Court of Appeals reasoned thatRule 804(b)(1) does not require that in order for prior testimony to be admitted as an exception to the hearsay rule the opponent of the evidence have had an identical motive to challenge the testimony at the prior proceeding as he now has at trial. It requires only that he have had a “similar” motive. “[N]either the form of the proceeding, the theory of the case, nor the nature of the relief sought need be the same.” (citation omitted). “[O]nly the particular issue as to which the testimony was first offered must be substantially similar to the issue upon which offered in the current action.” (citations omitted). As with opportunity, similar motive vel non must be determined on a case-by-case basis, according to the particular facts and circumstances.Id. at 3 (citations omitted).Similarly, in O’Neal the defendant attempted, over the State’s objection, to introduce the prior testimony at his bond reduction hearing

⁴ Rule 804(b)(1), Texas R. Crim. Evid. provides that the following are not excluded if the declarant is unavailable as a witness:(1) Former Testimony. . . . [T]estimony given as a witness at another hearing of the same or a different proceeding . . . if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”

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of an alibi witness who became unavailable to testify at defendant’s trial. O’Neal, 54 F. Supp. 2d at 695. The trial court sustained the State’s objection and the defendant was found guilty of the criminal charges. On a habeas petition before the United States District Court, the defendant argued that his Sixth Amendment right to compel the testimony of a material witness was violated when the trial court refused to permit the introduction of the prior testimony of defendant’s alibi witness who was unavailable for trial. Id. at 698. In granting the petition, the court reasoned:Rule 804(b)(1) of the Texas Rules of Criminal Evidence, just like its federal counterpart, provides that testimony given at a prior hearing is admissible if the declarant is unavailable and the party against whom the testimony is offered had an opportunity and a similar motive to develop the testimony by examination of the witness/declarant at the prior hearing. . .. [T]he state had cross-examined Williams at the prior hearing o n th e bo n d reduction and given the extreme exculpatory nature of her testimony, it certainly had the motive, whether acted upon or not, to fully develop her testimony. Indeed, her testimony, if true, established O’Neal’s innocence and was fatal to the prosecution.Id. (citations omitted). We find the decisions in Ward and O’Neal to be persuasive and adopt the reasoning of both courts.In the instant case, the purpose of the hearing was for the court to consider whether Roussonicolos should be released and, if so, what conditions should be imposed pending his final VOP trial. Therefore, the trial court necessarily would have been concerned with whether the State had a prima facie case in order to determine whether Roussonicolos was a flight risk. § 903.046(2)(b), Fla. Stat. (2007); Good v. Wille, 382 So. 2d 408, 410 (Fla. 4th DCA 1980) (holding that one of the factors to be considered in setting bail is “the character and strength of the evidence or probability of guilt”). Within this context, the State, in opposing Roussonicolos’ release, would have been motivated to proffer sufficient evidence to establish a prima facie case that Roussonicolos was guilty of the charge. The State had an opportunity to cross-examine Limato at the bond hearing. It also had a “similar motive” at both the trial and the bond hearing, specifically “to discredit [the witness’] testimony and show it to be not worthy of belief” given the exculpatory nature of Limato’s testimony. See Garcia, 816 So. 2d at 565; O’Neal, 54 F. Supp. 2d at 698-99.

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Under the circumstances of this case, we hold that the trial court erred in concluding that Limato’s testimony did not fall within section 90.804(2)(a).We next address whether the omission of Limato’s testimony was harmless. We conclude that it was not. The harmless error test “places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). The State presented substantial evidence of Roussonicolos’ guilt. This included extensive testimony b y bank personnel and pictures of Roussonicolos and Limato together while cashing some of the bad checks. Based on this evidence, the jury could have inferred that Roussonicolos and Limato were working together to commit bank fraud. However, in Limato’s testimony at the bond hearing, he took sole responsibility for the bad checks and overdrawn bank accounts. He claimed Roussonicolos had engaged in no wrongdoing, and he provided a n explanation for the evidence against Roussonicolos. Limato’s testimony was valuable not only because it tended to exonerate Roussonicolos at Limato’s own expense, but also because Limato, as Roussonicolos’ alleged principal, had unique knowledge of Roussonicolos’ role in the events.Accordingly, Roussonicolos’ conviction and sentence are reversed and the cause remanded for a new trial.Reversed and Remanded.MAY and LEVINE, JJ., concur.* * *Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; K a r e n M. Miller, Judge; L.T. Case No. 502008CF003181AXXXMB.Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.Pamela Jo. Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.Not final until disposition of timely filed motion for rehearing.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT                                JANUARY TERM 2011

GERALD BOYD,

Appellant,

v.                                          Case No.  5D10-4316

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed March 25, 2011

3.800 Appeal from the Circuit Court for Putnam County,

Terry Larue, Judge.

Gerald Boyd, East Palatka, pro se.

Pamela Jo Bondi, Attorney General,

Tallahassee, and Robin A. Compton,

Assistant Attorney General, Daytona Beach, for Appellee.

TORPY, J.,

In this rule 3.800 jail credit case, Appellant made a claim that he had been shorted two days of jail credit for the time he spent in the county jail between his arrest and sentencing. Appellant’s motion was straight-forward. He gave the date on which he had been arrested for the charges in Putnam County, and he claimed that he had been continuously incarcerated in the Putnam County jail on these charges from that date until the date on which he was sentenced. This motion was legally sufficient because it affirmatively alleged “where in the record the information [could] be located and explain[ed] how the record demonstrate[d] entitlement to relief.” Petscher v. State,

936 So. 2d 639, 639 (Fla. 5th DCA 2006) (Orfinger, J., concurring). The trial judge summarily denied the request, concluding that the “[c]ourt file does not show conclusively he was given the wrong number of day’s credit.” The trial judge offered no further explanation, nor did he attach records to negate the claim. We reverse.Once the movant makes a legally sufficient allegation that he did not receive the proper credit for time served, it is the trial court’s obligation to conclusively negate the claim by attaching the portion of the record to refute the claim. Cheatum v. State, 992

So. 2d 877 (Fla. 5th DCA 2008). This is because we only receive an abbreviated record in proceedings of this nature, and we are required by rule 9.141(b)(2)(D) to reverse any summary denial unless the record “shows conclusively that the appellant is entitled to no relief . . . .”Although we would ordinarily remand this case to the trial court to either grant the relief or provide the proper support for his decision to deny relief, in this case, the State has spared the court system any further burden by candidly conceding that an apparent mathematical error occurred, and that Appellant is entitled to the two additional days of jail credit.Accordingly, we remand this case with instructions to credit Appellant with two additional days.REVERSED AND REMANDED.MONACO, C.J., and LAWSON, J., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT                                       JANUARY TERM 2011

KEITH MICHAEL CASSISTA,

Appellant,

v.                                  Case No.  5D10-4059

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed  March 25, 2011

3.850 Appeal from the Circuit Court for Brevard County,

John Griesbaum, Judge.

Keith Michael Cassista, Bristol, pro se.

Pamela    Jo    Bondi,    Attorney    General,

Tallahassee, and Lori N. Hagan, Assistant

Attorney   General,   Daytona   Beach,   for

Appellee.

ORFINGER, J.

Keith Cassista appeals the summary denial of his motion for postconviction relief filed  under  Florida  Rule  of  Criminal  Procedure  3.850.   He  alleges  that  the  trial  court improperly  sentenced  him  as  a  Prison  Releasee  Reoffender  (“PRR”)  under  section775.082(9)(a)1.,  Florida  Statutes  (2006),  because  he  had  not  been  “released  from  a state  correctional  facility”  within  three  years  prior  to  the  date  that  he  committed  theoffense  in  the  instant  case.   The  trial  court  denied  the  motion,  relying  on  Cassista’s agreement to a PRR sentence. We reverse with instructions to attach the records that refute Cassista’s claim or to hold an evidentiary hearing.

Cassista pled guilty to burglary of a dwelling and possession of a firearm by a convicted felon. Cassista was sentenced in accordance with a plea agreement, which provided that he would, among other things, serve fifteen years in prison as a PRR on the burglary charge. In his rule 3.850 motion, Cassista contends that his counsel was ineffective for failing to argue that he did not qualify as a PRR. In support, Cassista alleges that in May 1999, he was arrested for burglary of a dwelling, two counts of grand theft and two counts of burglary of a conveyance, and sentenced in May 2001, to thirty-six months in the Department of Corrections (DOC) followed by two years of probation. On August 19, 2003, he was released from DOC and began his probation, but absconded. In October 2005, he was sentenced for violating his probation to thirty-eight months in the DOC with forty-two months jail credit. He claims that he was transported from the St. Lucie County Jail to DOC, but was turned away because no commitment order was sent with him. On November 2, 2005, he was released from the St. Lucie County Jail, and on November 30, 2007, he committed the instant offenses. Cassista argues that because he was effectively sentenced to time served in October 2005 and DOC refused to accept him, he was last released from a state correctional facility inAugust 2003, more than three years prior to the offenses at issue here.Under rule 3.850, a defendant is entitled to an evidentiary hearing unless the record conclusively refutes the defendant’s claims. Harich v. State, 484 So. 2d 1239, 1240 (Fla. 1986). All well-pled allegations must be treated as true, unless rebutted conclusively by the record. Tompkins v. State, 872 So. 2d 230, 238 (Fla. 2003).

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Further, “an illegal sentence cannot be imposed even as part of a negotiated plea agreement.” Wheeler v. State, 864 So. 2d 492, 492 (Fla. 5th DCA 2004).

To qualify as a PRR, the defendant must have committed or attempted to commit certain enumerated felonies “within 3 years after being released from a state correctional facility operated by the Department of Corrections . . . .” § 775.082(9)(a)1., Fla. Stat. (2006) (emphasis added). Cassista contends that the word

“release” in the statute does not include being released from a temporary confinement that happens to be in a state prison. Cassista finds support for his position in Brinson v.

State, 851 So. 2d 815 (Fla. 2d DCA 2003), where the court held that the word “release” can be “defined to mean only actual release from a State prison sentence” and not the physical release from a state prison facility. See also Girtman v. State, 617 So. 2d 1168 (Fla. 5th DCA 1993) (holding that temporary custodial detention pending resolution by parole commission of parole violation charge did not constitute release from “other commitment” as used in habitual offender statute).The plain language of the PRR statute requires the trial court to determine if Cassista was “released from a state correctional facility” within three years prior to committing the offense for which he was sentenced in this case. When a statue is clear and unambiguous, the courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Koile v.

State, 934 So. 2d 1226, 1230-31 (Fla. 2006). When the statute’s language conveys a clear and definite meaning, statutory interpretation is not used. Instead, the statute must be given its plain and obvious meaning. McKenzie Check Advance of Fla., LLC v. Betts, 928 So. 2d 1204, 1208 (Fla. 2006). And, when the language of a statute is

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susceptible of differing constructions, the language must be construed most favorably tothe defendant.  § 775.021(1), Fla. Stat. (2006); Thomas v. State, 741 So. 2d 1246, 1246(Fla. 2d DCA 1999).In most cases, it is a simple matter to determine when an individual is releasedfrom a state correctional facility. However, offenders are sometimes only temporarily detained. Unless those detentions “ripen” into reimprisonment, they are excluded from consideration for PRR purposes. See Brinson, 851 So. 2d 815; Girtman, 617 So. 2d1168.  That is what Cassista alleges occurred here.¹Given the incomplete record before us, we cannot determine when Cassista was released from a state correctional facility. Accordingly, we reverse the order denying Cassista’s rule 3.850 postconviction motion and remand the matter for further consideration. In the event that Cassista does not qualify as a PRR, the State should have the option of withdrawing from the plea agreement and taking him to trial on all of the original charges as the PRR designation was part of an agreed-upon plea. SeeWilliams v. State, 650 So. 2d 1054, 1055 (Fla. 1st DCA 1995); Jolly v. State, 392 So. 2d54, 56 (Fla. 5th DCA 1981).REVERSED and REMANDED.

SAWAYA and COHEN, JJ., concur.

¹ On occasion, an offender’s sentence expiration date might be relevant if for example, the offender, while committed to a state correctional facility, is temporarily transported to a hospital for treatment, or to a county jail to face unrelated charges. If that offender’s state prison sentence expires while he or she is temporarily residing in a hospital or county jail, we would have no difficulty in concluding that the offender was constructively in a state prison facility when his sentence expired for PRR purposes.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT                        JANUARY TERM 2011

ADAM JEROME DURR,

Appellant,

v.                                      Case No.  5D10-3837

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed  March 25, 2011

3.850 Appeal from Circuit Court for Putnam County, Terry Larue, Judge.

Adam Durr, Lake City, pro se.

Pamela    Jo    Bondi,    Attorney    General,

Tallahassee,     and     Ann     M.     Phillips,

Assistant         Attorney    General,    Daytona

Beach, for Appellee.

PER CURIAM.

ON ORDER TO SHOW CAUSE Appellant, Adam Jerome Durr, was tried and convicted of armed robbery with a firearm or deadly weapon and armed burglary of a dwelling.   Durr v. State, 773 So. 2d644 (Fla. 5th DCA 2000). Since his judgment and sentence became final, Durr has submitted twelve pro se postconviction filings. After affirming the denial of Durr’s most

recent pro se rule 3.850 postconviction motion, we issued a Spencer show cause order

directing Durr to demonstrate why he should not be barred from filing further pro se challenges to his convictions and sentences in this case. State v. Spencer, 751 So. 2d

47 (Fla. 1999). After carefully considering Durr’s response, we find it unpersuasive. We conclude that Durr is abusing the judicial process and should be barred from further pro se filings.

Therefore, we now prohibit Adam Jerome Durr from filing with this court any more pro se pleadings concerning Putnam County, Seventh Judicial Circuit Court case number 99-1558-CF-53. The clerk of this court is directed not to accept any further pro se filings from Durr 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.”).Future   pro    se filings   PROHIBITED;   Certified   Opinion   FORWARDED   toDepartment of Corrections.GRIFFIN, COHEN and PALMER, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT                         JANUARY TERM 2011

SHERIFF OF SEMINOLE

COUNTY, FLORIDA,

Appellant,

v.                                         Case No.  5D10-2940

STEVEN OLIVER,

Appellee.

________________________________/

Opinion filed March 25, 2011

Appeal from the Circuit Court for Seminole County, Michael J. Rudisill, Judge.

April Kirsheman, Sanford, Thomas W.

Poulton and Colin S. Baker of DeBevoise

& Poulton, P.A., Winter Park,

for Appellant.

No Appearance for Appellee.

TORPY, J.

The Seminole County Sheriff appeals the trial court’s order finding no probable cause   following   a   preliminary   adversary   hearing   under   the   Florida   Contraband Forfeiture Act.  We affirm.Appellee  committed  numerous  grand  thefts  by  embezzling  money  from  his employer,  a  charitable  organization.    He  accomplished  the  crimes  by  stealing  his employer’s  checks  and,  using  the  electronic  signature  of  another  employee,  naming himself as payee. He then deposited the checks into his bank account and used the proceeds to buy numerous items of personal property, such as computer equipment, a gun and photography accessories. When caught, he confessed to the crimes and admitted that the items of personal property were the ill gotten gains of his crimes.Appellant sought to forfeit the items pursuant to the Florida Contraband Forfeiture Act. §§ 932.701-.706, Fla. Stat. (2009). The trial court concluded that the items were not subject to forfeiture and denied probable cause to proceed after a preliminary adversary hearing pursuant to section 932.703(2)(c). That section directs the trial court to determine if the property “was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act.” Appellant contends that this property was used in contravention of the Act because the items meet the statutory definition of “contraband articles,” the possession of which is unlawful under section 932.702(2).The Act defines “contraband article,” in pertinent part as:Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.§ 932.701(2)(a)5., Fla. Stat. (2009) (emphasis added). Appellant first contends that the stolen checks, as negotiable instruments, are “contraband articles” under this definition and that the seized items of personal property are the proceeds from the use of these contraband articles. This argument overlooks that, by definition, for negotiable

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instruments to be forfeitable as contraband articles, they must be “used as instrumentalities in the commission of a felony.” Here, the checks belonged to the victim and were the targets of the thefts. The crimes were complete when the targeted items were misappropriated, making them the fruits of the crimes, rather than instruments used to accomplish the crimes. Therefore, the checks themselves were not “contraband articles,” as defined. See In re Forfeiture of 1979 Mercedes, 4-Door, VIN

No.  11603312085778,  TAG  No.  WHJ  371,  484  So.  2d  642,  644  (Fla.  4th  DCA  1986)(defining instrumentality as a means by which something is accomplished). The same would be the case if a thief stole a weapon, tool, money or any other item expressly enumerated in the statutory definition of “contraband article.” In such a case, because the stolen items are simply the fruits of the crime of theft, they are not “used as instruments” of the same theft.¹Alternatively,  Appellant  contends  that,  even  if  the  checks  were  not  themselves“contraband articles,” the property could nevertheless be forfeited as the traceable proceeds of a felony. This argument ignores the statutory language that limits the type of proceeds subject to forfeiture to those “obtained as a result of a violation of the Florida Contraband Forfeiture Act.” The violations of the Act are listed in section 932.702. The only violation relevant here is the prohibition against possession of any

“contraband article.”  See § 932.702(2), Fla. Stat. (2009); see also § 932.703(1)(c), Fla.Stat. (2009).  Because the checks were not “contraband articles,” the proceeds from the

¹ We do not address today the circumstance where the fruit of one crime is used as an instrument to commit a separate crime against a different victim.

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possession of the checks cannot be considered proceeds obtained from a “violation ofthe Act.”²Even  if  the  checks  or  proceeds  here  could  meet  the  technical  definition  of“contraband  articles,”  thereby  permitting  Appellant  to  satisfy  the  statutory  probablecause standard, because Appellant was fully aware at the outset that the items were thetraceable proceeds of a theft from an innocent  owner, it is difficult to understand how

the  .  .  .  use  .  .  .  of  contraband  articles  for  criminal  purposes  while  protecting  theproprietary  interests  of  innocent  owners .  .  .  .”  §  932.704(1),  Fla.  Stat.  (2009)(emphasis   added).      To   prevail   at   trial,   the   seizing   agency   must   prove   by   apreponderance of the evidence that the “owner either knew, or should have known . . .that the property was being employed or was likely to be employed in criminal activity.”§ 932.703(6)(a), Fla. Stat. (2009).   Under the facts of this case, Appellant clearly couldnot meet this standard.AFFIRMED.GRIFFIN and ORFINGER, JJ., concur.

² The classic example of the application of this aspect of the definition is when illegal drugs are sold. The Act includes illegal drugs in the definition of “contraband article” (albeit under a different definitional section). § 932.701(2)(a)1., Fla. Stat. (2009).

Thus, where illegal drugs are exchanged for money, the money constitutes proceeds under the Act because it is obtained as a result of a violation of the Act – the possession of the contraband article.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT                                             JANUARY TERM 2011

J.L., A CHILD,

Appellant,

v.                                                     Case No.  5D10-1907

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed March 25, 2011

Appeal from the Circuit Court for Osceola County,

N. James Turner, Judge. Charles N. Prather, Sr., Judge

James   S.   Purdy,   Public   Defender,   and

Rebecca    M.    Becker,    Assistant    Public

Defender, Daytona Beach, for Appellant.

Pamela    Jo    Bondi,    Attorney    General,

Tallahassee,   and   Rebecca   Roark   Wall,

Assistant     Attorney     General,     Daytona

Beach, for Appellee.

EVANDER, J.

J.L. was found guilty, after an adjudicatory hearing, of burglary of a dwelling and petit theft.  He appeals the trial court’s denial of his motion for judgment of dismissal asto the burglary count only.¹ Specifically, J.L. contends that the State failed to prove that

¹ Fla. R. Juv. P. 8.110.  Adjudicatory Hearings* * *

the yard from which the victim’s personal property was taken was sufficiently enclosed so as to constitute curtilage of the victim’s house. We agree. The evidence established that J.L. stole a go-cart, a four-wheeler, and a skateboard from the victim’s yard. These items were leaning against the side of the victim’s residence. The entire extent of the testimony regarding the “enclosure” of the victim’s yard came from the victim’s mother. She testified that there was a fence “in the back” and a fence “between . . . my house and my neighbor’s house.” There was no testimony as to the distance of these fences from the house, whether the two fences connected to each other, or even whether there was a fence on the side of the house from which the victim’s personal property was taken.To prove the offense of burglary of a dwelling, the State was required to prove that J.L. entered a “dwelling” with the intent to commit an offense therein.

(k)   810.02(1)(b)1., Fla. Stat. (2009).  “Dwelling” is defined to mean: building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof. 810.011(2), Fla. Stat. (2009) (emphasis added). There was no contention or evidence that J.L. entered the house in which the victim resided. The issue was whether J.L. entered the building’s curtilage. Motion for Judgment of Dismissal. If at the close of the evidence for the petitioner, the court is of the opinion that the evidence is insufficient to establish a prima facie case of guilt against the child, it may, or on the motion of the state attorney or the child, shall enter an order dismissing the petition for insufficiency of the evidence.

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The Florida statutes do not provide a definition for the word “curtilage.” However, in State v. Hamilton, 660 So. 2d 1038 (Fla. 1995), the Florida Supreme Court determined that there must be “some form of an enclosure” in order for the area surrounding a residence to be considered part of the curtilage as referenced in the burglary statute. Hamilton, 660 So. 2d at 1044. Subsequently, in Martinez v. State, 700 So. 2d 142 (Fla. 5th DCA 1997), this court relied on Hamilton in concluding that an unattached garage located at the south end of the victim’s property was not a part of the residence’s curtilage, notwithstanding that the victim’s yard had fences on its north and east borders. It is difficult to distinguish Martinez from the instant case.The fact that the stolen personal property was leaning against the victim’s residence does not require a different result. The stolen items clearly were not attached to, nor a part of, the victim’s house. In Hamilton, our supreme court opined that the

Legislature did not intend the burglary statute to be applied to an individual who, without the homeowner’s consent, enters an open yard with the intent to take a piece of fruit from a tree located in the yard. To accept the State’s suggestion that curtilage necessarily includes an item that touches (but is not attached) to the house would mean that a burglary of a dwelling would occur if an individual took a fruit from a tree in an open yard when the fruit happened to be touching the house. We similarly conclude that the Legislature did not intend the burglary statute to be so applied.While the State’s evidence was insufficient to prove a burglary, it was (as J.L. acknowledges) sufficient to prove the lesser included offense of trespass.² Section 924.34, Florida Statutes (2009), provides that when an appellate court determines that

² § 810.09(1)(a)2., Fla. Stat. (2009).

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the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment but direct the trial court to enter judgment for the lesser included offense. See also I.T. v. State, 694 So. 2d 720, 724 (Fla. 1997).

Accordingly, we reverse the judgment for burglary of a dwelling and remand with instructions to enter judgment on the offense of trespass.REVERSED and REMANDED.

PALMER and COHEN, JJ., concur.

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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT                                                      JANUARY TERM 2011

DAVID VEGA,

Appellant,

v.                                           Case No.  5D09-2598

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed  March 25, 2011

Appeal from the Circuit Court for Putnam County,

Terry J. LaRue, Judge.

James   S.   Purdy,   Public   Defender,   and

Nancy  Ryan,  Assistant  Public  Defender,

Daytona Beach, for Appellant.

Pamela    Jo    Bondi,    Attorney    General,

Tallahassee,    and    Douglas    T.    Squire,

Assistant     Attorney     General,     Daytona

Beach, for Appellee.

COHEN, J.

David  Vega  appeals  his  convictions  for  possession  of  cannabis,  trafficking  in MDMA (commonly known as ecstasy), possession of cocaine, and obstructing a police officer without violence.   Vega represented himself at trial.   Because the inquiry under Faretta v. California, 422 U.S. 806 (1975), was inadequate, we are compelled to reversefor a new trial.

Vega was somehow able to convince a judge to give him six continuances in a case devoid of any real complexity. Initially appointed a public defender, Vega moved to discharge his attorney at a scheduled hearing, not because of competency issues, but because he wanted to hire a private attorney. Vega did not request the right to represent himself. The trial court, rightfully frustrated with the numerous delays in the case, granted the motion, rather than deny or defer ruling until Vega actually hired private counsel. In so doing, the trial court made it clear that no more continuances would be granted: “If your attorney comes in here, Mr. Vega, and says to me, Judge,

I’m already set for trial in federal court in Timbuktu on April 20th and I can’t come here for this trial, that’s too bad.”Apparently dubious as to Vega’s intent or ability to secure counsel, the trial court set a status hearing ten days before the scheduled trial. Because private counsel had not filed a notice of appearance, the trial court informed Vega that if counsel did not appear for trial, he was on his own. Seemingly prescient, the trial court conducted a Faretta inquiry.The Faretta inquiry, while not particularly lengthy, revealed that Vega read, wrote, and understood English; he attended a technical school before being arrested; and he had never had a mental illness and was in “good mental health.” The trial court briefly explained how a trial was conducted, and that Vega could present evidence, call and cross-examine witnesses. The trial court advised Vega that it would be in his best interest to have an attorney represent him but Vega indicated that he had researched the evidence code while in jail. The trial court found that he had the “mental ability, you have the educational background from a non-lawyer’s — at least from a non-lawyer’s

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point of view, you are — you are competent to represent yourself in this case if we have to go forward on that basis.” The trial court ended the hearing by informing Vega of his trial date and that jury selection would begin the Monday prior.Jury selection commenced and Vega did not have counsel.¹ The remainder of the trial was scheduled two days later. After the jury was selected, Vega requested the public defender be reappointed. Vega claimed that he entrusted a third party to hire an attorney for him, but that person instead stole his money, leaving him unable to secure private counsel. The public defender who previously represented Vega informed the trial court that he, personally, could not represent Vega due to other obligations, and did not believe any other public defender could be prepared to give effective assistance on such short notice. Concerned with appointing a public defender who would be required to try the case with only two days’ preparation, the trial court took Vega’s motion under advisement, simultaneously considering it a motion for continuance. After setting forth the facts above, the trial court denied Vega’s motion for reappointment of the public defender.Vega was tried before a jury and convicted of all four counts. Vega subsequently filed a timely notice of appeal, challenging only the denial of the reappointment of the public defender.Vega’s attack on the trial court’s Faretta inquiry can best be characterized as asserting that the trial court did not follow the model colloquy in Amendment to Florida Rule of Criminal Procedure 3.111(d)(2)-(3), 719 So. 2d 873 (Fla. 1998). Specifically,

¹ The failure to renew the offer of counsel is not raised as an issue on appeal. It is clear that the trial court had reached the end of its patience with Vega and had no intention of reoffering the services of the public defender.

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Vega asserts the Faretta inquiry was inadequate because he was not informed of the potential sentence he could face, was not informed of the potential limitations in legal resources, was not informed that he would have to abide by the relevant rules of procedure and evidence, and was not told that his access to the state attorney would be reduced compared to an attorney.The  State  argues  that  a  Faretta inquiry  did  not  need  to  be  conducted  becauseVega continuously asserted that he was going to retain a private attorney and never unequivocally indicated that he wanted to represent himself, quoting Blake v. State, 972

So. 2d 839, 846 (Fla. 2007). As a result, the State asserts the trial court could only have abused its discretion in refusing to reappoint the public defender and grant a continuance if Vega could not proceed pro se. Because Vega had conducted some legal research, had some college education, and knew it was in his best interest to retain an attorney, the State concludes the trial court did not abuse its discretion. This argument was rejected in State v. Young, 626 So. 2d 655 (Fla. 1993).In Young, the trial court refused to appoint new counsel and refused to grant an “eleventh-hour” continuance when the defendant refused the services of his third appointed counsel. This resulted in the defendant having to represent himself at trial, with only the aid of stand-by counsel. The supreme court held that while a trial court may “presume that an abuse of the right to assistance of counsel can be interpreted as a request by a defendant to exercise the right of self-representation, a defendant may not be presumed to have waived the separate right of assistance of counsel absent a Faretta inquiry.” Id. at 657. Consequently, and contrary to the State’s assertion, the

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issue is not whether Vega could proceed pro se, but whether the Faretta inquiry was adequate.

There are no magic words when conducting a Faretta inquiry. See Edenfield v. State, 45 So. 3d 26, 30 (Fla. 1st DCA 2010). Accordingly, trial courts are not bound to follow the model Faretta colloquy suggested by the supreme court. Id. Rather, an adequate Faretta inquiry requires ensuring that the defendant knowingly and intelligently waives his right to counsel. See Fla. R. Crim. P. 3.111(d)(2). This requires advising the “defendant of the disadvantages and dangers of self-representation.” Id.

Explaining the potential penalty in the event of a conviction is an important factor in emphasizing the dangers of self-representation.² However, the failure to inform a defendant of the potential penalties, standing alone, is not necessarily fatal. See Potts v. State, 698 So. 2d 315 (Fla. 4th DCA 1997).The trial court’s Faretta inquiry revealed that Vega was a competent, literate adult with some college education. It also revealed that Vega was unfamiliar with the trial process, but that he had completed some research on the evidence code. Although the trial court advised Vega that it was in his “best interest to have an attorney represent you . . . because an attorney knows the procedure and has been trained in the evidence,” it did not inform him of the maximum penalty he faced, or of the pitfalls or dangers that accompany self-representation, or that he would have to abide by the relevant rules of procedure and evidence code. Other than indicating that an attorney is trained in the evidentiary and procedural rules, the trial court did not inform Vega of the various advantages of having counsel.

² See Segal v. State, 920 So. 2d 1279, 1281 n.1 (Fla. 4th DCA 2006).

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Viewed in its totality, the inquiry can be characterized as ensuring that Vega was competent, literate, and generally explaining the trial process. This is inadequate. A defendant cannot make an intelligent, knowing waiver of his right to counsel without being informed of the dangers and disadvantages of self-representation. See Faretta,

422 U.S. at 835; Reeves v. State, 987 So. 2d 103 (Fla. 5th DCA 2008); Burton v. State, 596 So. 2d 1184 (Fla. 1st DCA 1992).We acknowledge the plausibility of the State’s suggestion that Vega was attempting to delay the proceedings and abuse the system. Although the trial court indicated a concern that Vega’s numerous continuances were an attempt to delay the proceedings, it did not make any finding to this effect in either its supplemental order denying Vega’s motion to reappoint the public defender, or at the April 13, 2009 hearing. Even if such a finding were made, this still would not excuse the trial court from conducting an adequate Faretta inquiry. See Young, 626 So. 2d at 657.REVERSED and REMANDED FOR NEW TRIAL.LAWSON, J., concursSAWAYA, J., dissents without opinion.

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