Appeal from the Circuit Court for Highlands County, Peter F. Estrada, Judge.

Dennis David Bristol, pro se.

Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnes, Assistant Attorney General, Tampa, for Appellee.

DAVIS, Judge.

Dennis David Bristol, pro se, challenges the postconviction court’s denial of his Florida Rule of Criminal Procedure 3.850 motion in which he raised three claims of prosecutorial misconduct and four claims of ineffective assistance of trial counsel. The postconviction court summarily denied claims one through five and denied claims six and seven following an evidentiary hearing. We affirm the denial of claims one through three and five through seven without further discussion but reverse the summary denial of portions of claim four.

In claim four, Bristol argued that trial counsel was ineffective for failing to object to certain comments made by the prosecutor during closing argument. The postconviction court summarily denied this claim, concluding that the comments were not improper and that therefore counsel’s failure to object to them did not amount to deficient performance.

Bristol argues on appeal that the postconviction court erred in summarily denying his claim that the prosecutor improperly shifted the burden of proof by making the following statement during closing argument: “So I’m going to ask you, the judge will instruct you to do so. If you find the Defendant not guilty, what’s the evidence? If you believe the officers, then find him guilty of all charges. And read through the laws.”¹

We agree that this statement can be interpreted as shifting to Bristol the burden of presenting some evidence that would establish that he is not guilty of the charged offense. See Jackson v. State, 832 So. 2d 773, 778 (Fla. 4th DCA 2002) (”In the instant case, the comment ‘[w]hat evidence was presented in this case that makes you believe [Detective] Brimm was incorrect, not what evidence is before you’ appears. . . to be a comment that shifts the burden to appellant to present evidence to show Brimm was incorrect.” (first alteration in original)). Furthermore, although the postconviction court concluded that this statement does not shift the burden of proof, it did not cite any authority or include any record attachments to refute Bristol’s allegation that counsel was ineffective for failing to object to this comment. As such, we must reverse the postconviction court’s summary denial of this claim and remand for the court to either attach record documents that will conclusively refute this claim or conduct an evidentiary hearing.

Similarly, the postconviction court summarily denied Bristol’s claim that counsel was ineffective for failing to object to the prosecutor’s statement during closing argument that one of the officers involved in the melee that led to Bristol’s resisting with violence charge testified that he saw another officer get hit in the face. Specifically, the prosecutor said, “And he even told you with the branches he couldn’t see all of it, but did see the swing across, saw the closed fist, saw boom, saw the fist hit, something did this.” (Emphasis added.) In his rule 3.850 motion, Bristol alleged that the officer actually testified, “I never saw the fist connect with Detective Gonzalez’s face or head, but I saw his head jar backwards, and he fell to the ground.” Because the postconviction court denied this claim and failed to attach documents that conclusively refute Bristol’s claim that counsel was ineffective for failing to object to what he alleges was a misstatement of the testimony by the prosecutor, we also reverse the court’s summary denial of this claim and remand for the court to either attach record documents that will conclusively refute the claim or conduct an evidentiary hearing.

Affirmed in part and reversed in part.

KELLY and LaROSE, JJ., Concur.

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

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Notes:

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Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pinellas County, Richard A. Luce, Judge.

VILLANTI, Judge.

Danny K. Deck appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised thirteen grounds for relief. We affirm the postconviction court’s summary denial of grounds four, five, six, eight, twelve, and thirteen without comment. We also affirm the denial of ground ten but write to explain our reasoning. As to grounds one, two, three, seven, and eleven, we reverse and remand for further proceedings. This resolution renders ground nine of Deck’s motion, in which he alleged cumulative error, moot. See Marshall v. State, 854 So. 2d 1235, 1252 (Fla. 2003).

Although the postconviction court was correct that trial counsel has no obligation to advise a defendant about the collateral consequences of a guilty plea, see, e.g., State v. Partlow, 840 So. 2d 1040, 1042 (Fla. 2003), this finding does not address Deck’s actual claim, which was that trial counsel affirmatively misadvised him of the collateral consequences of his plea. This court has held that “[a]ffirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel.” Roberti v. State, 782 So. 2d 919, 920 (Fla. 2d DCA 2001). Thus, while counsel has no obligation to be proactive by voluntarily advising a defendant about the collateral consequences of a guilty plea, if counsel chooses to offer such advice, then the advice given must be accurate.

Here, Deck’s motion alleges that counsel affirmatively misadvised him concerning a collateral consequence of his guilty plea and that he would not have entered the plea but for counsel’s misadvice. Because these unrefuted allegations present a facially sufficient claim for relief, the postconviction court erred by summarily denying relief on this ground. Therefore, we reverse the summary denial of this ground and remand for the postconviction court to consider this claim on its merits.

However, the postconviction court applied the incorrect legal standard in analyzing this claim. Bradford v. State, 869 So. 2d 28, 29 (Fla. 2d DCA 2004), this court held that the proper standard to be applied when evaluating claims of newly discovered evidence in cases involving guilty pleas entered before trial is the “standard for withdrawal of pleas after sentencing, which requires the defendant to prove that withdrawal of his plea is necessary to correct a manifest injustice.” In that case, this court determined that the postconviction court had applied the incorrect standard in analyzing Bradford’s claim. Id. However, this court also determined that Bradford’s motion was facially insufficient under the correct standard because he did not allege that withdrawal of his plea was necessary to correct a manifest injustice. Id. Thus, this court affirmed the denial of his claim without prejudice to his right to file a timely, facially sufficient motion to withdraw his plea based on the newly discovered evidence. Id.

Here, as in Bradford, the postconviction court analyzed Deck’s claim using the incorrect standard. However, unlike in Bradford, Deck in this case has stated a facially sufficient claim. Deck specifically alleged in his motion that he would not have pleaded guilty but would have proceeded to trial if the allegedly newly discovered evidence had been known to him at the time of his plea. Deck also specifically alleged that his involuntary plea constituted a manifest injustice. Furthermore, by asking that his convictions and sentences be vacated and that his case be remanded for trial, Deck has essentially moved for withdrawal of his plea in order to correct a manifest injustice. Thus, Deck’s claim is facially sufficient under the correct standard, and the record attachments to the postconviction court’s order do not conclusively refute his claim. Therefore, we reverse the postconviction court’s summary denial of this claim and remand for a consideration of the merits of the claim using the proper standard.

The postconviction court summarily denied this ground on the basis that Deck did not allege that a motion to suppress predicated on the allegedly involuntary waiver of his Miranda rights would have been granted. However, under existing case law, Deck was not required to allege that his motion to suppress would have been granted in order to state a facially sufficient claim of ineffective assistance. See, e.g., Snell v. State, 932 So. 2d 293, 293 (Fla. 2d DCA 2005); Spencer v. State, 889 So. 2d 868, 870 (Fla. 2d DCA 2004). Instead, “to show prejudice in a plea bargain case, [the defendant] must show only that without the misadvice of counsel, there was a reasonable probability he would not have pleaded guilty and would have chosen to go to trial.” Brown v. State, 967 So. 2d 440, 443 (Fla. 4th DCA 2007); see also Hill v. Lockhart, 474 U.S. 52, 59 (1985) (holding that in order to satisfy the “prejudice” requirement of Strickland v. Washington, 466 U.S. 668 (1984), in a case involving a plea, the defendant must allege and prove only that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial”).

Here, Deck’s motion alleges that had counsel not misinformed him about the possibility of filing a motion to suppress, he would not have accepted the State’s plea offer and would have insisted on going to trial. Because these unrefuted allegations present a facially sufficient claim for relief, the postconviction court erred by summarily denying relief on this ground. Accordingly, we reverse the postconviction court’s denial of this claim and remand for consideration of this claim on its merits.

Section 90.803(6)(c), Florida Statutes (2004), requires a party intending to offer a business record into evidence by means of a certification or declaration to serve written notice of its intent on every party and to make the evidence available for inspection sufficiently in advance of its use so that the opposing party has a fair opportunity to challenge its admissibility. It is undisputed that the State provided no such written notice of its intent to rely on the DOC’s release-date letter at sentencing, nor is there any record evidence of an opportunity for Deck’s counsel to inspect the letter sufficiently in advance of its use at sentencing to allow for a proper challenge to its admissibility.

However, Deck has failed to sufficiently allege any prejudice from trial counsel’s omission in this case. The purpose of section 90.803(6)(c) is to protect a party’s due process right to have notice of the evidence against him or her. See United States v. Bledsoe, 70 Fed. Appx. 370, 373 (7th Cir. 2003) (noting that the purpose of the federal counterpart to section 90.803(6)(c) is to provide the opposing party with notice of the evidence against him and an opportunity to challenge the accuracy and reliability of those records). It does not function as an exclusionary rule that would prohibit the use of such evidence in the absence of a due process violation. Cf. United States v. Newell, 239 F.3d 917, 921 (7th Cir. 2001) (holding that the failure to provide the notice required by the federal counterpart to section 90.803(6)(c) does not require exclusion of the evidence in the absence of prejudice). Here, Deck has not alleged how his due process rights were affected by trial counsel’s failure to object. Accordingly, we affirm the denial of this claim without prejudice to any right Deck may have to amend his motion on this ground. See Spera, 971 So. 2d at 755.

When the postconviction court denied Deck’s claim, it did not have the benefit of the supreme court’s recent decision in Yisrael v. State, 33 Fla. L. Weekly S131 (Fla. Feb. 21, 2008). In Yisrael, the supreme court resolved a split among the District Courts of Appeal concerning whether a release-date letter, standing alone, constituted either a business record that could be properly admitted under section 90.803(6) or a public record that could be properly admitted under section 90.803(8). In finding that a release-date letter did not fall within the business records exception, the supreme court noted that these letters are not usually made at or near the time of the defendant’s predicate-felony release date, that these letters are not kept in the course of the regularly conducted activity of the DOC, and that these letters are not made as a regular practice in the ordinary course of the DOC’s business, but rather are made solely at the request of prosecutors for purposes of prosecution. Id. at S132-S133. Further, the supreme court held that these letters do not fall within the public records exception because they do not record the activities of the DOC nor do they memorialize DOC activities. Id. at S133. Accordingly, the supreme court held that “release-date letters—standing alone—constitute inadmissible hearsay.” Id. at S131. However, these letters may be used as a means of authenticating an attached “Crime and Time Report.” Id. at S134.

In this case, it appears that the only document offered by the State to establish Deck’s release date on his predicate felony was the release-date letter. The State did not offer a Crime and Time Report or any other document to establish that Deck’s release date qualified him for sentencing as an HFO or a PRR. Although Deck’s sentencing predated the supreme court’s decision in Yisrael, the requirements of the business record exception and the public records exception have been unchanged since long before Deck’s sentencing. Accordingly, the postconviction court’s findings that the release-date letter was admissible as a business record and that trial counsel “had no reason to object” to its admission were both incorrect. Therefore, we reverse the summary denial of Deck’s motion on this ground and remand for the postconviction court to reevaluate this claim in light of Yisrael.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and CANADY, JJ., Concur.

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

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Notes:

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Appeal from the Circuit Court for Orange County, Bob Wattles, Judge.

Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellee.

PER CURIAM.

In this consolidated appeal, the State challenges the downward departure sentences imposed upon Appellee for possession of cocaine and grand theft. Appellee offers no argument, and the trial court provided no legal basis, for the departure sentence on the cocaine possession conviction. As for the grand theft conviction, the trial court departed on the basis that the need for restitution outweighs the need for incarceration. The only evidence before the court on this issue was a stipulation that the amount of restitution was $1300.00. This evidence was insufficient standing alone to support this finding. State v. Owens, 848 So. 2d 1199, 1202 (Fla. 1st DCA 2003). Accordingly, we reverse the sentences and remand for imposition of a guideline sentence.

REVERSED and REMANDED.

PALMER, C.J., TORPY and EVANDER, JJ., concur.

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Appeal from the Circuit Court for Brevard County, Charles M. Holcomb, Judge.

James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

LAWSON, J.

Anne Comeaux entered a plea to felony driving under the influence (”DUI“),¹ preserving one issue for appeal. She argues that the trial court erred in permitting the State to enhance her crime to a felony using a 1989 DUI conviction that resulted from an uncounseled plea. We disagree and affirm.

Under Hlad v. State, 585 So. 2d 928, 930 (Fla. 1991), a defendant’s prior DUI conviction resulting from an uncounseled plea can be used to enhance a later DUI offense if the prior conviction “does not actually result in the defendant’s imprisonment.”² Comeaux argues that her 1989 conviction resulted in imprisonment for one day, and could therefore not be used for enhancement under Hlad. The State argues that the 1989 conviction did not result in any imprisonment, and therefore could be used for enhancement under Hlad.

The sentence imposed in 1989 was a one-year probationary sentence. The court then awarded Comeaux one day of credit against her probationary term for the day she spent in jail upon her arrest and prior to entry of her plea. Comeaux’ argument is that by awarding “time served,” the court necessarily imposed a one-day jail sentence. She cites no authority for this position, but makes what she views as a compelling logical argument that “[g]iving credit for time served necessarily imposes a jail sentence, otherwise there would be no need to award credit for time served.”

Contrary to Comeaux’ argument, the reason to give time served under these circumstances is to avoid a punishment that exceeds the statutory maximum penalty for the crime. See Netherly v. State, 873 So. 2d 407, 410 (Fla. 2d DCA 2004) (holding that credit must be given against a probationary sentence for time “spent in jail” where failure to give the credit will result in a punishment longer than the statutory maximum permitted for the crime). Importantly, it was not Comeaux’ conviction in this case that “result[ed] in the defendant’s imprisonment,” Hlad, 585 So. 2d at 930, because the sentencing judge only imposed probation. Rather, her arrest resulted in her temporary confinement, which the sentencing judge had to give her credit for when he imposed the year of probation. But, simply crediting Comeaux with the day she spent in jail prior to her plea, against an imposed probationary sentence, did not transform a day of her probationary sentence into an incarcerative sentence.

AFFIRMED.

PLEUS and COHEN, JJ., concur.

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Notes:

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Case No. 2D07-1582.

District Court of Appeal of Florida, Second District.

Opinion filed July 18, 2008.

Appeal from the Circuit Court for Polk County, Donald G. Jacobsen, Judge.

James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Chief Judge.

A jury convicted Nathan Stephens of possession of cocaine, possession of paraphernalia, and loitering and prowling. He has appealed, seeking a new trial based on alleged prosecutorial misconduct in closing argument. He also contends that the evidence was insufficient to support the paraphernalia and the loitering convictions. We agree with Stephens’s argument concerning the loitering and prowling charge, and we reverse that conviction. We affirm on his other issues without further discussion.

A Lake Wales police officer was patrolling the city in the early morning hours when he noticed a man standing in a parking lot adjacent to a closed grocery store. As the officer drove by in his marked patrol car, the man moved into the shadows and ducked behind a parked car. The officer circled the parking lot and drove back toward the man through an alley. When the patrol car’s lights reached the man’s location, he stood up and discarded a small item. He then began to scratch lottery tickets. The officer stopped the man, who identified himself as Stephens. When asked why he was behind the grocery, Stephens replied that his uncle, Mr. Wilson, lived in an apartment attached to the business. Stephens then walked away. The officer retrieved the discarded item, a baggie containing cocaine. He then arrested Stephens and, in a search incident to the arrest, discovered the paraphernalia, a pocket knife with drug residue on the blade.

As mentioned above, we limit our discussion to Stephens’s conviction for loitering and prowling, § 856.021, Fla. Stat. (2005). To sustain a conviction for that crime, the State must prove two elements: “(1) the accused was loitering and prowling in a manner not usual for law abiding citizens, and (2) the loitering and prowling was under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property located in the vicinity.” C.H.S. v. State, 795 So. 2d 1087, 1090 (Fla. 2d DCA 2001). The State presented sufficient evidence of the first element. Stephens was in the parking lot of a closed business in the early morning hours, and when he saw the patrol car he moved into the shadows and crouched behind a car.

The State failed to prove the second element. Stephens’s mere presence in the parking lot was insufficient to raise an immediate concern for the safety of persons or property. See Bowser v. State, 937 So. 2d 1270, 1271 (Fla. 2d DCA 2006) (”The possibly suspicious circumstances of four people looking into cars in a dark parking lot was not sufficient to raise justifiable alarm of an immediate threat.”); R.D.W. v. State, 659 So. 2d 1193 (Fla. 2d DCA 1995) (holding that boys wearing jackets on a warm night, hiding their bikes and jackets in the bushes, and scanning vehicles and people in a parking lot did not constitute an imminent threat to public safety). Stephens spoke with the officer, identified himself, and explained why he was near the closed business. Cf. C.H.S., 795 So. 2d at 1090 (stating that alarm is presumed when a person flees, conceals himself, or refuses to identify himself).

That the officer subsequently discovered evidence of other crimes does not alter our analysis. The offense of loitering and prowling must be complete before any police action occurs. Bowser, 937 So. 2d at 1272. Thus the fact that the search incident to Stephens’s arrest for the drug crime disclosed that he had a small knife in his pocket did not prove the second element of loitering and prowling. See E.C. v. State, 724 So. 2d 1243, 1245 (Fla. 4th DCA 1999) (recognizing that officer’s discovery of a twelve-inch screwdriver in a pat-down search gave after-the-fact support to a suspicion of imminent criminal activity, but it could not support a loitering and prowling conviction because that offense must be completed before any police action). Nor did Stephens’s act of discarding cocaine support the second element of the crime because drug possession does not pose a threat to persons or property. See C.H.S., 795 So. 2d at 1088.

We reverse Stephens’s conviction for loitering and prowling and remand to the circuit court with instructions to discharge him on that charge. Because our reversal does not affect the sentence that Stephens is serving, he need not be present for the proceeding.

Affirmed in part, reversed in part, and remanded.

FULMER and CANADY, JJ., Concur.

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

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

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

Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.

NORTHCUTT, Chief Judge.

BY ORDER OF THE COURT:

We withdraw our previously issued opinion dated February 6, 2008, and substitute the attached opinion.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

We previously reversed Herman Hampton’s conviction and sentence for robbery. See Hampton v. State, 975 So. 2d 544 (Fla. 2d DCA 2008) (opinion withdrawn from bound volume). Thereafter, however, we withdrew our mandate, and we now affirm and remand with directions. How this turnabout came to pass warrants discussion.

Hampton’s appellate counsel complained that the trial court had found him incompetent to stand trial but then allowed him to waive his right to a jury trial and actually started the bench trial before determining that Hampton had regained his competency. The record on appeal supported this assertion. It contained a written pretrial order finding Hampton incompetent to stand trial but no order finding that he had become competent prior to his waiver of his right to trial by jury and the commencement of his bench trial. We were compelled to reverse and remand for a new trial. We received no motion for rehearing, and our mandate was timely issued.

On remand, however, the trial judge announced that he would not retry Hampton in compliance with our mandate. The judge served on this court a “Response to Mandate,” apparently filed in the circuit court, in which he maintained that he had indeed found Hampton restored to competency prior to the pertinent proceedings. The judge recounted that he did so orally, without a written order, “as is the practice in this circuit.” He attached an appendix containing materials from the circuit court case file. He also submitted a hearing transcript, produced by the court reporter two days after the release of our opinion, reflecting his pretrial ruling that Hampton had regained his competency. The judge further observed that there was a scrivener’s error in the circuit court case progress record, which indicated that Hampton was found incompetent at the particular hearing when, in fact, he had been found competent. He opined that “this appellate litigation would have not been necessary had appellate counsel for the parties taken the time to communicate with trial counsel for the parties, or had they taken the time to review the circuit court file.” The judge concluded by asking us to rescind our directive:

This court suggests and requests that the District Court vacate its opinion and Mandate, and substitute them with a different opinion and Mandate, taking the complete and correct record of these correctly described proceedings in the Circuit Court into consideration.

Thereafter, this court received neither a motion to recall mandate from the State nor a motion to enforce mandate from Hampton. Finally, on our own motion we recalled the mandate to avoid the expiration of the term of court. See State Farm Mut. Ins. Co. v. Judges of Dist. Court of Appeal, Fifth Dist., 405 So. 2d 980, 982 (Fla. 1981) (observing that an appellate court’s power to recall its mandate is limited to the term in which it was issued). We ordered the State to supplement the record and to respond to the trial judge’s assertions. We have received the supplemental record. It demonstrates that the trial judge orally found Hampton to be competent before he waived his right to a jury trial, and the State has asked us to reconsider our reversal in this case.

Before addressing the State’s request, we must note our disapproval of the trial judge’s “Response to Mandate,” which we strike as unauthorized. We deeply respect the judge as an accomplished, experienced, and skilled jurist. We also acknowledge his understandable frustration at being directed to retry a case on the basis of a perceived error that did not occur, and we are confident that he was well-motivated. Still, the judge’s filing in this court was misguided in several respects, foremost among them being his supposition that he was empowered to disregard our mandate. To the contrary, “having received a clear directive from the district court of appeal exercising appellate jurisdiction over the matter before him, the circuit judge was legally obliged to follow it; indeed, he was powerless to do otherwise.” McGlade v. State, 941 So. 2d 1185, 1189 (Fla. 2d DCA 2006). In his “Response to Mandate” the judge outlined his intention to call the prosecutor and defense counsel into his courtroom, advise them that he would not empanel a jury or conduct a new trial, and direct defense counsel to appeal. In such an event, we would have quickly quashed the judge’s action. See id.¹

Our second criticism of the “Response to Mandate” is that it was submitted to us at all. Certainly, the trial judge appropriately could advise the parties of his concerns about the accuracy of the record on which this court based its decision and its directive to conduct a new trial. But it was for the parties to seek appropriate relief. It is not within a trial judge’s purview to advocate in this court for a particular disposition of a case. Obviously, the judge has no standing to do so, and any such advocacy in this court would be incompatible both with the judge’s obligation to abide by our mandate and with his duty to serve as an independent and impartial arbiter of the dispute between the parties before him.

Finally, we do not join the trial judge’s criticism of appellate counsel for not having “taken the time to communicate with trial counsel” or “taken the time to review the circuit court file.” This court is acutely aware of the overwhelming workload shouldered by the assistant attorneys general and appellate public defenders who appear before us. With woefully inadequate resources, they are duty-bound to prosecute and defend countless criminal appeals from five judicial circuits comprising fourteen counties. Day in and out, they employ their considerable professional skills performing valuable service to their respective clients and to the cause of justice. In this case they were furnished with a record on appeal that offered no hint of the trial judge’s finding that Hampton had regained his competency before waiving his right to a jury trial. Indeed, the record on appeal included the circuit court case progress record that reported to the contrary and thus corroborated the appellate record. It is true, as the trial judge believed, that this imbroglio might have been avoided if appellate counsel had consulted the trial attorneys involved in the case below. But under the circumstances, it is not surprising that they did not. In short, neither the record on appeal nor the circuit court case file offered any reason to believe that the trial judge had made a pretrial finding that Hampton’s competency was restored.

On the other hand, the record certainly would have been accurate if the pretrial determination that Hampton was competent had been memorialized in a written order. Florida Rule of Criminal Procedure 3.212(c)(7) directs that if a trial court concludes that a heretofore incompetent defendant has become competent to stand trial, “it shall enter its order so finding and shall proceed.” (Emphasis supplied.) For many years, this court and others have interpreted versions of the rule employing essentially the same language as requiring the entry of a written order. Marshall v. State, 351 So. 2d 88 (Fla. 2d DCA 1977); see also Corbitt v. State, 744 So. 2d 1130 (Fla. 2d DCA 1999) (stating that when defendant has been adjudicated incompetent, applicable rule requires court to enter written order finding defendant restored to competency); White v. State, 548 So. 2d 765 (Fla. 1st DCA 1989); Samson v. State, 853 So. 2d 1116 (Fla. 4th DCA 2003); Molina v. State, 946 So. 2d 1103 (Fla. 5th DCA 2006).

All of that said, we now revisit our determination to reverse Hampton’s conviction and remand for a new trial. Notwithstanding our disapproval of the trial judge’s ill-advised approach to this unusual situation, we share his desire to reach a just and correct result. We cannot in good conscience reaffirm our previous decision, knowing as we do that it was founded on a materially inaccurate record and that ordering a retrial under these circumstances would amount to a gratuitous consumption of scant judicial resources.²

Where, as here, a court has orally found a defendant competent but erroneously failed to enter the required written order, we have affirmed with directions to enter the order nunc pro tunc. See, e.g., Corbitt, 744 So. 2d 1130. Therefore, we withdraw our February 6, 2008, opinion in this case. We affirm the conviction and sentence under review, and we remand for entry of the appropriate written order nunc pro tunc.

Affirmed with directions.

GALLEN, THOMAS M., ASSOCIATE SENIOR JUDGE, Concurs. SALCINES, J., Concurs in result only with opinion.

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Notes:

1. In the meantime, Hampton’s speedy trial period would have been running. See Fla. R. Crim. P. 3.191(m) (providing that a person who is to be tried again must be brought to trial within 90 days after the trial court has received the appellate mandate). Thus, the trial judge’s determination to defy our mandate that he retry Hampton because he felt that Hampton’s initial conviction should have been affirmed might well have jeopardized the State’s ability to obtain any conviction in this case.

2. Although highly unusual, our action is not unprecedented. See T.J.A. v. State, 31 Fla. L. Weekly D1124 (Fla. 2d DCA Apr. 21, 2006) (reversing because absence of adjudicatory hearing transcript precluded court from reviewing Anders case), opinion withdrawn and superseded upon denial of rehearing, 939 So. 2d 237 (Fla. 2d DCA 2006) (affirming after pertinent transcripts belatedly furnished).

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SALCINES, Judge, Concurring in result only.

I concur in result only. While I do not disagree that a trial court must honor an appellate court’s mandate, I would not be so quick to criticize a trial judge for alerting the attorneys of record to the fact that our decision was based on an incomplete and incorrect record.

The trial judge’s “Response to Mandate” was not directed as an affront to our authority. In fact, it was not even filed in our court—it was styled in the circuit court case and filed in the circuit court. A courtesy copy was sent to our clerk. It was directed to the attorneys for the State and the defendant, including the appellate attorneys, suggesting that they bring this matter to the appellate court’s attention for further review. Based on the record before this court, it appears the trial judge took no further action on his response.

The trial judge provided a correct procedural chronology, medical reports, and transcripts (not previously provided by any of the appellate counsel even after we asked them to supplement the record). He informed the trial and appellate attorneys that the transcripts of the proceeding demonstrated that he had “performed correctly in the first instance.” Since the trial judge felt that the appellate lawyers had not taken appropriate measures to present a correct record, I interpret his closing paragraph as a suggestion to the trial and appellate attorneys of record to present the matter to our court for our reconsideration in light of the fact that our opinion was based on an incomplete and incorrect record. The response was, in effect, a “Notice to Counsel.”

Thanks to the alert trial judge we now have reached the correct and just result. It was the trial judge who, upon reading our first opinion, retrieved the missing transcript. It was he who discovered that the “in court” deputy clerk had correctly entered the court’s finding, which was based on a stipulated agreement between the parties, that the defendant was “competent” to stand trial. It was he who discovered that a scrivener’s error had occurred when the subsequent computer entry was made in the progress docket by an “after court” clerk, and this subsequent entry incorrectly reflected that the defendant had been found “incompetent” to stand trial. It was only through the efforts of the trial judge that the complete record was ultimately provided to this court by the State.

It appears that, but for the trial judge’s action, we would not have reached the just and correct result that we now reach. But for the trial judge’s efforts, our original reversal would have stood and with it a “gratuitous consumption of scant judicial resources” would have certainly followed. When all is said and done, the end result is that we now acknowledge that the trial judge made the correct decision in the first place.

Hopefully, the circumstances of this case are very rare. In this unique situation, I believe the trial court’s well-intended, albeit novel, action served to achieve the correct result, promoting the credibility of the judiciary and not undermining it.

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

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An appeal from the Circuit Court for Duval County. L.P. Haddock, Judge.

Gerry L. Parker, pro se, Appellant.

Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

The Appellant challenges the postconviction court’s summary denial of his rule 3.850 postconviction motion. Because the Appellant’s third claim that his written judgment does not comport with the oral pronouncement is facially sufficient, we reverse. All other issues are affirmed without further discussion.

The Appellant claims his sentence is illegal because the sentencing judge did not orally pronounce that the sentence was a habitual felony offender sentence; however, the written judgment contains the imposition of a habitual felony offender sentence. The trial court failed to address the Appellant’s claim because the rule 3.850 motion was summarily denied as untimely. However, this Court may construe the claim as if it were filed under rule 3.800(a). See Valdes v. State, 765 So. 2d 774, 777 (Fla. 1st DCA 2000). As the State concedes, the trial court should have treated the third claim as though it were filed pursuant to rule 3.800(a). We accordingly reverse the postconviction court’s summary denial of the Appellant’s third claim and remand for the postconviction court to attach appropriate record portions refuting the claim, or grant relief.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

DAVIS, PADOVANO, and ROBERTS, JJ., CONCUR.

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

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An Appeal from the Circuit Court for Monroe County, Luis M. Garcia, Judge, Lower Tribunal No. 07-19; 07-21; 07-22; 07-24; 07-25; 07-26.

Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellant.

Hershoff, Lupino & Yagel and Jessica B. Reilly (Tavernier), for appellee.

Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.

SALTER, J.

The State appeals a trial court order granting Jeffrey Thompson’s motion to suppress his confession. Because we find the order suppressing the confession supported by competent, substantial evidence, and that the order contains proper legal conclusions,¹ we affirm.

The Arrest

The victim of an armed robbery at a convenience store in the Florida Keys contacted police shortly after the crime occurred. Police learned from the victim that a white male with facial hair driving a certain type of vehicle was the robber. A short time later, police pulled over someone who fit both the suspect’s physical description and his choice of transportation—Thompson.

Thompson was removed from his vehicle, handcuffed, and put into the backseat of a police car. He gave police consent to search his vehicle for evidence of the recent robbery. This search proved futile when nothing incriminating was discovered. During the investigation, Thompson was read his Miranda² warnings. He denied any involvement in the robbery, but admitted to drinking two beers earlier in the evening.

Sergeant Agins of the Monroe County Sheriff’s Office arrived on the scene. He testified that he talked to Thompson about the robbery after again reading the Miranda warnings. During this discussion, Sergeant Agins smelled alcohol on Thompson’s breath. The sergeant conducted field sobriety exercises, and Thompson was then arrested for driving under the influence (”DUI“).³ Thompson was transported to the DUI intake room at the Sheriff’s station. A video camera recorded what happened next.

While in the DUI intake room, Thompson refused to submit to a mandatory breathalyzer test.⁴ Immediately after refusing, Thompson invoked his right to counsel under Miranda. In fact, Thompson invoked the right numerous times while seated a few feet away from Sergeant Agins. Sergeant Agins did not question Thompson further about the robbery or DUI on the videotape. Other officers were not informed that Thompson had invoked his right to counsel, and Thompson spent that night in the Plantation Key Jail.

Approximately twelve hours later, two robbery detectives arrived at the jail. They escorted Thompson across the street to the Sheriff’s office. There, another video was recorded. It shows Thompson signing a waiver of his Miranda rights and confessing to the previous night’s robbery and other crimes. The trial court suppressed this confession, and the State now appeals.

The Invocation of the Right to Counsel

The State contends that the trial court erred because non-testimonial, physical evidence, like a breathalyzer test result, does not implicate Miranda’s protection against self-incrimination—no “interrogation” is taking place.⁵ The State thus argues that Thompson made an anticipatory and ineffective invocation of his right to counsel, because he was not being interrogated. We agree that non-testimonial evidence, in isolation, does not implicate Miranda’s protection. In the context of this case, however, the breathalyzer test was not the dispositive circumstance. The initial traffic stop and questioning identified the alleged robbery as the focus of the officers’ interest.

As the trial court correctly found, Miranda rights are not investigation-specific; once invoked, they apply to subsequent custodial interrogations even if those interrogations are unrelated to the offense for which the suspect is in custody. See Arizona v. Roberson, 486 U.S. 675, 684 (1988) (holding that a suspect’s request for counsel indicates an unwillingness to answer without an attorney present any questions police may pose, and this unwillingness is not investigation-specific). Finally, prolonged police custody of a suspect after that suspect requests counsel creates a presumption that any subsequent waiver of Miranda rights is the result of police coercion. Id. at 686.

Thompson’s numerous invocations of his right to consult an attorney came after he refused a breath test. The trial court’s order is correct on this point. Thus, we find that Thompson was not invoking his right to counsel in order to obtain advice on whether to breathe into the machine.

When Thompson invoked his right to counsel several times in the DUI intake room, he could no longer be questioned, as the trial court found, “on any matter.” We can only assume that Thompson’s unwillingness to answer police questions continued during his twelve-hour stay in jail. The fact that police reinitiated contact, and not Thompson, creates a presumption of coercion in Thompson’s subsequent waiver, and this presumption does not dissipate with a later reading of Miranda. See id. We therefore find that the trial court was correct in suppressing Thompson’s confession.

Conclusion

Because the trial court’s order suppressing Thompson’s confession is based on competent, substantial evidence, we affirm. Our ruling here is limited, as was Thompson’s motion, to the propriety of his confession. We decline to address any issues surrounding Thompson’s DUI arrest other than those mentioned in this opinion.

Affirmed.

Not final until disposition of timely filed motion for rehearing.

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Notes:

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An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Reemberto Diaz, Judge, Lower Tribunal No. 00-29975

Julio Baez, in proper person.

Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.

Before GERSTEN, C.J., and SHEPHERD and LAGOA, JJ.

LAGOA, Judge.

Appellant Julio Baez (”Baez”) appeals from the trial court’s order denying his Motion to Strike the State’s Motion to Declare Defendant a Sexual Predator Offender pursuant to section 755.21, Florida Statutes (2007). Because we find that this is a non-final, non-appealable order, we dismiss the appeal for lack of jurisdiction.

Baez pled guilty to four counts of sexual battery on a minor by an adult and pled guilty to two counts of lewd and lascivious molestation on a child under twelve. Prior to the sentencing hearing, the State filed a motion to declare defendant a sexual predator offender pursuant to section 775.21, Florida Statutes (2007). The trial court sentenced Baez to ten years in state prison, and also declared Baez a sexual predator pursuant to section 775.21. Subsequent to his sentencing, Baez filed his Motion to Strike. In addition to requesting that the trial court strike the State’s motion, Baez requested, in the alternative, that the trial court convert the proceedings to a civil matter pursuant to Florida Rule of Civil Procedure 1.540, or grant him leave to file a Rule 3.850 motion in order to challenge the guilty plea. The trial court denied Baez’s motion and this appeal followed.

Because the order on appeal does not fall within any of the enumerated categories of appealable non-final orders found in Florida Rule of Appellate Procedure 9.130 or 9.140(b), we dismiss the appeal for lack of jurisdiction.

Not final until disposition of timely filed motion for rehearing.

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Appeal from the Circuit Court for Lee County, Thomas S. Reese, Judge.

James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.

WALLACE, Judge.

Aaron Linnon appeals his conviction for attempted second-degree murder and his sentence to a mandatory minimum term of twenty-five years in the state prison. We affirm Mr. Linnon’s conviction. However, because the trial court erred in amending the sentence to add the mandatory minimum term during the pendency of Mr. Linnon’s appeal and after he had begun serving the sentence originally imposed, we reverse the amended sentence and remand with instructions to strike the twenty-five-year mandatory minimum term.

Mr. Linnon was before the trial court for sentencing on February 14, 2007. According to the sentencing transcript, the trial court sentenced Mr. Linnon “in accordance with the 10-20-Life statute” to “25 years less credit for time served.” However, the trial court’s oral pronouncement of sentence did not include the imposition of the mandatory minimum term. After the trial court had completed the oral pronouncement of sentence, the prosecutor asked the trial court to order that Mr. Linnon and his family have no contact with the victim and one of the State’s trial witnesses. But the prosecutor made no objection to the trial court’s omission to apply the mandatory minimum term to Mr. Linnon’s twenty-five-year sentence in accordance with the provisions of section 775.087(2)(a)(3). Mr. Linnon’s written sentence was consistent with the trial court’s oral pronouncement. On March 7, 2007, Mr. Linnon filed his notice of appeal.

On March 16, 2007, approximately one month after the sentencing hearing, the State filed a “motion to correct and/or clarify sentence.” In its motion, the State observed that section 775.087(2)(a)(3) required that Mr. Linnon be sentenced to a mandatory minimum term of twenty-five years, but the court minutes, the written sentence, and the transcript of the sentencing hearing did not reflect that the required mandatory minimum sentence had been imposed. The State concluded its motion by requesting the trial court to correct Mr. Linnon’s sentence “to reflect the minimum/mandatory sentence required by the statute.”

On March 26, 2007, the trial court conducted a hearing on the State’s motion. Noting that the omission to impose the mandatory minimum sentence at the earlier sentencing hearing was the result of an oversight, the trial court concluded that it “ha[d] jurisdiction to correct an illegal sentence.” The trial court granted the State’s motion and ruled that it would “correct the record” to indicate that Mr. Linnon’s twenty-five-year term of imprisonment was a mandatory minimum sentence. On the same day, the trial court entered an amended judgment and sentence indicating that Mr. Linnon’s sentence was subject to the mandatory minimum provisions of section 775.087(2)(a)(3).

On appeal, Mr. Linnon raises two points concerning his conviction for attempted second-degree murder. These points are without merit and do not warrant further mention. Accordingly, we limit our discussion to Mr. Linnon’s challenge to the trial court’s decision to amend his sentence to reflect the mandatory minimum requirement of section 775.087(2)(a)(3). We conclude that the trial court erred in amending Mr. Linnon’s sentence to include the mandatory minimum requirement for three reasons: (1) the trial court lacked jurisdiction to resentence Mr. Linnon during the pendency of his appeal, (2) the trial court could not grant the State’s motion to correct sentence because the motion was unauthorized, and (3) the principles of double jeopardy barred the trial court from adding the mandatory minimum term. We will discuss these reasons below.

B. The Effect of the Notice of Appeal

The trial court granted the State’s motion to correct sentence and resentenced Mr. Linnon after he had filed his notice of appeal. A trial court loses jurisdiction to resentence a defendant after the defendant files a notice of appeal. Knapp v. State, 741 So. 2d 1150, 1151 (Fla. 2d DCA 1999). Consequently, the trial court lost jurisdiction over Mr. Linnon when he filed his notice of appeal on March 7, 2007. Thus Mr. Linnon’s amended sentence must be vacated because the trial court lacked jurisdiction to impose it. Id. at 1152.

C. The Unauthorized Motion

The trial court erred in granting the State’s motion under Florida Rule of Criminal Procedure 3.800 because the motion was unauthorized. As Mr. Linnon points out, the motion did not identify the specific subdivision of the rule on which the State relied as its authority for filing the motion. Rule 3.800 prohibits a party from filing a motion under subdivision (a) “during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal.” Fla. R. Crim. P. 3.800(a). Because the record indicates that the State’s motion was filed during the time allowed for filing a motion under rule 3.800(b)(1) and that an appeal was pending, the State’s motion was unauthorized under rule 3.800(a). See King v. State, 891 So. 2d 1067, 1068 (Fla. 2d DCA 2004).

The State is authorized to file a motion to correct sentencing error under rule 3.800(b) “only if the correction of the sentencing error would benefit the defendant or to correct a scrivener’s error.” Fla. R. Crim. P. 3.800(b); see King, 891 So. 2d at 1068. As Delemos v. State, 969 So. 2d 544, 550 (Fla. 2d DCA 2007), the addition of the mandatory minimum term did not benefit Mr. Linnon. To the contrary, the original sentence imposed on Mr. Linnon did not include the mandatory minimum term. The trial court’s omission to apply the mandatory minimum term in its oral pronouncement of sentence is not a scrivener’s error that would permit a resentencing to increase Mr. Linnon’s sentence. See id. at 551. Consequently, the State’s motion was unauthorized under rule 3.800(b).

Finally, rule 3.800(c) does not provide any support for the State’s position. Under the third subdivision of the rule, a trial court has discretion to give the defendant a more favorable incarcerative sentence. Delemos, 969 So. 2d at 549. The power to modify a sentence under rule 3.800(c) does not authorize a trial court to increase a defendant’s sentence. See Sterling v. State, 682 So. 2d 694, 695 (Fla. 5th DCA 1996).¹

D. Double Jeopardy

Mr. Linnon next argues that the prohibition against double jeopardy precluded the trial court from adding the mandatory minimum term to his original sentence, citing this court’s decision in Delemos. In Delemos, this court said:

[D]ouble jeopardy bars an increase in a sentence once it is imposed and the defendant begins serving it, at least in the absence of a proper appeal, “even if the original sentence was illegal or otherwise erroneous and the correction conforms to applicable law or to the court’s and parties’ intentions at sentencing.” Pate v. State, 908 So. 2d 613, 614 (Fla. 2d DCA 2005). Under those circumstances, the State is compelled to object and appeal the sentence or the sentence stands as originally imposed. See also Oliver v. State, 727 So. 2d 271, 272 (Fla. 4th DCA 1999) (holding that a rule 3.800(a) motion cannot serve as a substitute for the state filing a proper appeal of a sentence imposed in error).

969 So. 2d at 550; see Ashley v. State, 850 So. 2d 1265, 1267 (Fla. 2003) (stating that once a sentence has been imposed and the defendant has begun to serve the sentence, the defendant’s sentence may not be increased without violating double jeopardy principles); Knapp, 741 So. 2d at 1152 (same).

Mr. Linnon was resentenced on March 26, 2007, after he had begun serving the original sentence imposed on February 14, 2007. See Ashley, 850 So. 2d at 1266-67 (finding that the defendant had begun to serve his sentence when he was resentenced three days after the original sentencing proceeding). The prosecutor’s only response to the trial court’s oral pronouncement of sentence was to request a no-contact order. Because the State never objected to the oral pronouncement of sentence that omitted the mandatory minimum term, the sentence must stand as originally imposed.

Judgment affirmed, sentence reversed in part, and case remanded with instructions.

WHATLEY and STRINGER, JJ., Concur.

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

—————

Notes:

1. The court’s opinion in Sterling refers to subdivision (b) of rule 3.800. Subdivision (b) was subsequently redesignated as subdivision (c) in the amendments to rule 3.800 that became effective July 1, 1996. See Amendments to Fla. Rule of App. P. 9.020(g) & Fla. Rule of Crim. P. 3.800, 675 So. 2d 1374, 1375 (Fla. 1996).

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