author: KAHN, J.

text:
    Johnny JAMES, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D00-1891, 01-1829.
    District Court of Appeal of Florida, First District.
    April 15, 2003.
    Rehearing Denied May 19, 2003.

      Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Johnny Allen James appeals his sentences for possession of a controlled substance within 1000 feet of a school and possession of a firearm by a convicted felon. His sole issue on appeal is whether the trial court erred by imposing a habitual felony offender (HFO) sentence for the firearm possession conviction upon resen-tencing pursuant to Criminal Rule 3.800(b). We affirm.

Three charges against appellant arose out of the execution of a search warrant on April 2, 1998: possession of a controlled substance with intent to sell within 1000 feet of a school (Count I), possession of a firearm by a convicted felon (Count II), and possession of drug paraphernalia (Count III). Appellant pled guilty to all three offenses and, as part of the plea, stipulated that he qualified as an HFO. After a failed substantial assistance agreement, the trial court sentenced appellant on April 17, 2000. At that time, based upon proof presented by the State, the court designated appellant an HFO. The State requested HFO sentencing on Count I, and advised the trial court that HFO treatment would not be available on any other counts. Without objection, appellant was sentenced to a thirty-year HFO sentence on Count I, and fifteen years on Count II under the Criminal Punishment Code (CPC), concurrent to Count I. For Count III, not relevant to this appeal, appellant received time served.

Appellant timely filed in the lower court a motion to correct sentencing error pursuant to Rule 3.800(b)(2). As amended, the motion urged that the sentence under Count I should be reduced to a guidelines sentence because cocaine possession did not qualify for HFO treatment, and the trial court could not impose the statutory maximum because the offense occurred before the effective date of the CPC. As to Count II, appellant argued that the sentence should be reduced to a guidelines sentence because this offense also predated the effective date of the CPC. Appellant asserted that the CPC sentence exceeded that authorized by law and, because the trial court did not initially sentence him as an HFO on Count II, that option was no longer available. The State conceded that the original sentences imposed were illegal, but argued appellant could still be subject to HFO sanctions on Count II. The trial court vacated both sentences and re-sentenced appellant to a guidelines sentence of fifty-eight months on Count I, and an HFO sentence of thirty years on Count II, concurrent to Count I.

Appellant now argues that, on re-sentencing for Count II, the trial court was bound to reduce the sentence to a guidelines sentence. Appellant’s argument is premised upon the assertion that the HFO sentence imposed on Count II violates the double jeopardy prohibition and his due process rights because he was not initially subjected to HFO treatment on that count.

We reject appellant’s argument and conclude that a trial court is not barred from accomplishing its original sentencing goals where a defendant successfully seeks to have a sentence overturned. This is true because there is no legitimate expectation of finality in a sentence a defendant seeks to overturn. See Harris v. State, 645 So.2d 386, 388 (Fla.1994); Herring v. State, 411 So.2d 966, 971 (Fla. 3d DCA 1982).

When a defendant is sentenced for multiple crimes arising from a single criminal episode, nothing prevents a trial judge from weighing all the crimes in determining the appropriate sentence; hence, the sentence for each count should not be viewed in isolation, but as part of a purposeful plan. Cf. Hodgdon v. State, 789 So.2d 958, 963 (Fla.2001) (finding that “allowing a defendant to receive credit against the entire sentence imposed on a probation violation permits a defendant’s sentences to be treated as an interrelated unit as they were when they were originally imposed”); Tripp v. State, 622 So.2d 941, 942 (Fla.1993) (finding that “both offenses were factors that were weighed in the original sentencing through the use of a single scoresheet and must continue to be treated in relation to each other, even after a portion of the sentence has been violated”). Here, when appellant successfully moved to have his sentences vacated on Counts I and II, the new sentences imposed effected the original goal of the trial court — a thirty-year HFO sentence for multiple crimes arising from a single criminal episode.

Where a defendant successfully appeals or collaterally attacks a conviction, a court is free to change the sentence, so long as it stays within the guidelines of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See Fasenmyer v. State, 457 So.2d 1361, 1365 (Fla.1984); Herring, 411 So.2d at 969-70. Pearce holds that due process rights may be infringed where a defendant’s resen-tence on remand is harsher than the original sentence. See Pearce, 395 U.S. at 723-26, 89 S.Ct. 2072. Underlying the Pearce reasoning is a concern for judicial vindictiveness toward a defendant who successfully had a conviction and sentence overturned. See id., 395 U.S. at 724-26, 89 S.Ct. 2072; see also Regueiro v. State, 619 So.2d 463, 464 (Fla. 4th DCA 1993). That concern, however, does not arise from the new sentence under review here. As a prerequisite to demonstrating that a sentence is vindictive, a defendant must show that the new sentence is actually more severe. See Thomas v. State, 638 So.2d 169, 170-71 (Fla. 1st DCA 1994). Here, appellant’s new sentence, viewed as an interrelated plan, is less severe than the initial sentence. Though appellant still received a thirty-year HFO sentence, the concurrent sentence was reduced from fifteen years to fifty-eight months.

Appellant’s new sentence does not offend the due process or double jeopardy clauses. The due process clause is “offended only if the enhancement punishes the defendant for the exercise of rights guaranteed him.” Herring, 411 So.2d at 970. The double jeopardy clause does not automatically preclude the imposition of any legal sentence after a successful appeal, irrespective of whether the new sentence is greater than the original. See Pearce, 395 U.S. at 725-26, 89 S.Ct. 2072. This is not a case where the defendant’s sentence was enhanced; instead, the trial court accomplished its original goal on re-sentencing, and appellant received a sanction no more severe than the original sentence.

Appellant’s sentences are AFFIRMED.

BOOTH and WOLF, JJ., concur.

       Rule 3.800 is the vehicle for correcting sentencing errors in the trial court, and preserving sentencing issues for appellate review. See Fla. R.Crim. P. 3.800, Court Commentary, 1996 Amendments. The State may only file a motion to correct sentencing errors if it will benefit the defendant or to correct a scrivener's error. See id. 3.800(b).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Silvio REYES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3576.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2003.
    Rehearing Denied May 16, 2003.
    Silvio Reyes, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(1).

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


author: WOLF, J.

text:
    KEMPER INSURANCE COMPANIES-TAMPA and Geico Corporation, Appellants, v. Dorothy MACLEOD, Appellee.
    No. 1D02-1696.
    District Court of Appeal of Florida, First District.
    April 16, 2003.
    Michael S. Waranch of Hurley, Rogner, Miller, Cox & Waranch, P.A., Orlando, for appellants.
    Susan W. Fox and Brendan M. Lee of MacFarlane Ferguson & McMullen, Tampa and Mark G. Capron of Smith, Fedde-ler, Smith & Miles, P.A., Lakeland, for appellee.
   WOLF, J.

We determine that the Judge of Compensation Claims (JCC) erred in admitting the testimony of the doctor who was not a medical advisor, independent medical examiner, or authorized treating provider. See Gallagher Bassett v. Laber, 722 So.2d 834 (Fla. 1st DCA 1998). However, we determine that this error was harmless in light of the JCC’s determination that the employer/carrier was precluded from challenging compensability pursuant to section 440.20(4), Florida Statutes (2001). See Franklin v. Northwest Airlines, 778 So.2d 418 (Fla. 1st DCA 2001).

Affirmed.

ERVIN and VAN NORTWICK, JJ., concur.


text:
    Adi CHABLI, Appellant, v. PRIME REALTY INVESTMENTS CORPORATION, Appellee.
    No. 3D02-1781.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Eyal I. Friedman, Miami, for appellant.
    Fowler White Burnett and June Galko-ski Hoffman, Miami, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

The order under review is reversed and remanded with instructions to grant appellant’s Motion to Quash Service of Process. As the appellee concedes, the substituted service of process was insufficient as a matter of law. See § 48.161, Fla. Stat. (2002); Hodges v. Noel, 675 So.2d 248 (Fla. 4th DCA 1996).


author: TORPY, J.

text:
    Melvin PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1456.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2003.
    Jeffrey L. Dees, Daytona Beach, for Appellant.
    Melvin Parker, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

TORPY, J.

We grant Appellant’s motion for rehearing, filed pursuant to rule 9.330(a), Florida Rules of Appellate Procedure, to the extent that he seeks a written opinion. Appellant was charged by indictment with nine separate counts that included, among other things, first degree murder, armed robbery with a firearm, attempted first degree murder and other similar offenses. Appellant was convicted as charged after jury trial, and the trial court sentenced Appellant to life imprisonment, without possibility of parole, on the first degree murder conviction and to concurrent sentences on the remaining counts. Appellant raises two points on appeal, each of which we find to be without merit. We affirm, therefore, the judgments and sentences.

At 11:30 a.m. on November 12, 2000, Appellant and several co-defendants accosted four victims who were standing near a street in Daytona Beach. Appellant and co-defendants robbed the victims at gunpoint and shot and killed one of the victims. Appellant was identified by the surviving victims as the one who had killed the other victim.

Two hours later, in DeLand, Appellant and his co-defendants accosted two victims who were walking down the street. They robbed the victims at gunpoint and fired two shots at one of the victims, but the bullets missed. One of the victims memorized the license tag number of the ear. Police traced the tag number, which led to Appellant. He was subsequently arrested and interrogated on two separate occasions after his arrest.

Appellant’s first issue on appeal is whether the trial court erred in denying his motion to suppress statements he made during two separate police interviews. Appellant contends that his statements containing confessions were not voluntary because they were induced by police promises of leniency. The record reveals, however, that, at best, police asserted that they would tell the judge and prosecutor that Appellant had cooperated. This type of statement does not render a confession involuntary. Maqueira v. State, 588 So.2d 221, 223 (Fla.1991); Nelson v. State, 688 So.2d 971 (Fla. 4th DCA 1997). Based upon our review of the record, therefore, we conclude that the lower court properly denied the motion to suppress.

Appellant’s second point is that the trial court abused its discretion in denying separate trials for the Daytona Beach incident and the DeLand incident. The lower court determined that the incidents in question were part of a “crime spree.” Furthermore, the lower court concluded that the incidents were finked by time and geography as well as the nature and manner of the crimes committed. We find no abuse of discretion on this record. See Hutchinson v. State, 731 So.2d 812 (Fla. 5th DCA 1999).

Based upon the foregoing, Appellant’s Motion for Rehearing is granted to the extent that he requests an opinion. The judgments and sentences are, nevertheless, affirmed.

GRIFFIN and PALMER, JJ., concur.


author: DAVIS, Judge.

text:
    Ferman BOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5458.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
   DAVIS, Judge.

Ferman Bowers appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In case number 90-4686, we affirm the trial court’s order denying relief. However, we reverse the trial court’s order denying relief as to case number 90-2557.

On March 14, 1990, Bowers pleaded guilty to burglary of a conveyance in case number 90-2557. The trial court sentenced Bowers to two years’ community control. On April 18, 1990, Bowers pleaded nolo contendere to possession of cocaine (count one) and possession of drug paraphernalia (count two) in case number 90-4686. The trial court sentenced Bowers to two years’ community control on count one and one year community control on count two to run concurrent to count one. Although the record is incomplete, the trial court must have violated Bowers’ community control in case 90-2557 because the record indicates that the trial court again placed Bowers on community control for two years in case number 90-2557 on April 18, 1990, ordering the community control to run concurrent with the community control in case number 90-4686. The judgment and sentences indicate that Bowers was sentenced as a subsequent felony offender in both cases. On October 9, 1990, the trial court found that Bowers violated his community control in both cases. In case number 90-2557, the trial court sentenced him as a subsequent felony offender to ten years in prison. In case number 90-4686, the trial court sentenced him as a subsequent felony offender to ten years in prison on count one and to one year in prison on count two to run consecutive to the sentence on count one. The trial court ordered the sentences in case number 90-4686 to run consecutive to the sentence in case number 90-2557.

Bowers claims that his original subsequent felony offender sentences of community control in both cases are illegal because he entered an open plea to all counts. Therefore, he claims his subsequent felony offender sentences upon violation of community control are also illegal. The record in case number 90-4686 refutes this claim. The plea form signed by Bowers in case number 90-4686 demonstrates that he was aware he was pleading no contest in exchange for a habitual offender sentence of community control. Therefore, his plea was negotiated, and his sentence is legal. See Pankhurst v. State, 796 So.2d 618 (Fla. 2d DCA 2001); Hampton v. State, 808 So.2d 813 (Fla. 2d DCA 2001), review denied, 819 So.2d 135 (Fla.2002).

As for case number 90-2557, the record does not demonstrate that Bowers entered a negotiated plea in exchange for a subsequent felony offender sentence of community control. The plea form in case number 90-2557 makes no mention of any type of habitual offender sentence. In addition, the record of the plea hearing is not available. Because the record cannot demonstrate that Bowers entered into a negotiated plea agreement with either the State or the trial court for his community control sentence in case number 90-2557, Bowers is entitled to resentencing under the guidelines. See Chaney v. State, 805 So.2d 1039 (Fla. 2d DCA 2002).

Furthermore, the doctrine of laches does not bar Bowers from raising this claim. Laches is sustainable in a criminal case where there has been both a lack of due diligence on the defendant’s part in bringing forth the claim and prejudice to the State. Wright v. State, 711 So.2d 66 (Fla. 3d DCA 1998). Bowers did not lack in due diligence in bringing forth this claim because the ground under which he seeks relief was not available until Pankhurst and its progeny were decided.

Bowers’ illegal sentence in case number 90-2557 has probably expired by now because it was a ten-year sentence imposed in 1990. However, he is entitled to have his illegal sentence corrected. A trial court can correct an illegal sentence at any time. Fla. R.Crim. P. 3.800(a). Bowers should have only served a maximum of five years on the burglary of a conveyance count, a third-degree felony, in case number 90-2557. See §§ 810.02(3), 775.082(3)(d), Fla. Stat. (1989). Any extra time he spent in prison on the illegal sentence is significant because Bowers’ sentences in case number 90-4686 were ordered to run consecutive to his sentence in case number 90-2557. Therefore, when his sentence in case number 90-2557 expired, he would have then begun to serve his sentence in case number 90-4686. Since the beginning date of his sentence in case number 90-4686 is contingent upon the expiration date of his sentence in case number 90-2557, he is entitled to receive credit for the extra time he spent in prison on the illegal sentence applied to his sentences in case number 90-4686.

Accordingly, we affirm the order of the trial court denying relief as to case number 90-4686. As to case number 90-2557, we reverse and remand for resentencing under the guidelines.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and CANADY, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Kerstin WILLIAMS, Appellant, v. Robert WILLIAMS, III, Appellee.
    No. 2D02-4712.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
    Jeanne Clougher, Seffner, for Appellant.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.
   ALTENBERND, Chief Judge.

Kerstin Williams, the former wife, appeals a postjudgment dissolution order denying her motion to dissolve an emergency order temporarily granting Robert Williams, III, the former husband, primary residential responsibility for their minor child. Because the hearing before the trial court did not include adequate consideration of the child’s best interests, we reverse the order denying the motion to dissolve and remand for an evidentiary hearing to determine whether the best interests of the child require that her temporary primary residence remain with the former husband pending a final hearing on his petition for modification of the final judgment.

A final judgment of dissolution of marriage in this case was entered on March 15, 2001. The judgment incorporated a marital settlement agreement that awarded the former wife primary residential responsibility for the minor child, with certain visitation to the former husband. Approximately one month after the entry of the final judgment, the former husband filed an emergency motion to obtain the minor child’s passport. The former husband alleged that the former wife, a dual citizen of Germany and the United States, intended to permanently relocate with the child to Germany. At a hearing on this motion, the former wife apparently swore under oath that she had no intentions of leaving Hillsborough County with the child, and therefore the motion was denied. Nevertheless, on June 9, 2001, the former wife and child left the country and proceeded to Germany, where they remained for over a year.

During that year, the former husband endeavored to obtain the return of the child by seeking relief from German and French courts and the Hillsborough County circuit court. In July 2002, the former husband sought and received from the circuit court an emergency ex parte order granting him temporary sole parental responsibility for the minor child and requiring law enforcement to assist him in obtaining custody of the child. The order provided no visitation for the former wife.

Later in July 2002, the former wife returned to Florida with the child, apparently due in large part to the former husband’s successful legal actions against her in Germany. The child was placed in the custody of the former husband based upon the ex parte order. The former husband filed a supplemental petition to modify the final judgment, requesting he be awarded permanent primary residence of the minor child. The former wife filed a motion to dissolve the ex parte order and to return the primary residence of the child to her. A hearing was scheduled for August 7, 2002, on this motion.

During the hearing, the evidence focused solely on the former wife’s removal of the child to Germany and whether that removal was in violation of the final judgment or an indication that she perjured herself during the prior proceedings regarding the child’s passport. The former wife attempted to provide other evidence regarding the best interests of the minor child, but the trial court denied this request. The trial court indicated that the hearing would address only the circumstances regarding the removal of the child from the state. The trial court ruled that the best interests of the child could be addressed at a later time, presumably upon a final hearing in the former husband’s supplemental petition to modify the final judgment.

At the conclusion of the hearing, the trial court entered an order denying the former wife’s motion to dissolve the ex parte order. The trial court ruled that the testimony of the former wife regarding her relocation to Germany was not credible. The trial court also ruled that the former wife had been accorded sufficient due process in the entry of the emergency ex parte order and in the hearing on her motion to dissolve. Thus, the court confirmed the emergency order granting the former husband temporary custody of the child. The court indicated that “[a]ll other matters in the [former wife’s] motion are reserved for future hearing on the merits.” Finally, the trial court granted the former wife “extensive visitation” and required that the former wife’s counsel hold the passports of the former wife and minor child in trust on behalf of the court.

On appeal, the former wife first asserts that the trial court erred in refusing to dissolve the ex parte order, arguing that she was denied due process in its entry. We find no violation of due process in the entry of the initial emergency ex parte order. A trial court may enter an emergency ex parte order temporarily modifying custody under certain circumstances, such as where “a child is threatened with physical harm or is about to be improperly removed from the state.” Wilson v. Roseberry, 669 So.2d 1152 (Fla. 5th DCA 1996) (citing Gielchinsky v. Gielchinsky, 662 So.2d 732, 733 (Fla. 4th DCA 1995)); see also Loudermilk v. Loudermilk, 693 So.2d 666 (Fla. 2d DCA 1997). Additionally, any alleged notice deficiency is rendered moot upon a timely hearing in which the opposing party is afforded an evidentiary hearing on the issues. Matin v. Hill, 801 So.2d 1003 (Fla. 4th DCA 2001).

The former wife also argues that the return hearing on this order, which addressed her motion to dissolve the order, was inadequate because the trial court erred in refusing to allow her to present other evidence regarding the child’s best interests. We agree. Once the former wife returned to the state of Florida with the child, any determination as to the continued primary residence of the child required a consideration of the child’s best interests. See § 61.13(2)(b), Fla. Stat. (2002) (requiring that court determine all matters relating to custody of minor child in accordance with best interests of child); cf. Hill v. Hill, 778 So.2d 967 (Fla.2001) (Pariente, J., concurring) (noting that when courts are dealing with matters affecting children, “paramount interest” should be welfare of the children); Krufal v. Jorgensen, 830 So.2d 228 (Fla. 4th DCA 2002) (noting that best interests of child is keystone of Florida’s jurisprudence regarding support and custody of children).

The parties and trial court recognized that the hearing on August 7, 2002, was actually a return hearing on the ex parte order. That ex parte order was entered on the former husband’s request for a postjudgment temporary modification of permanent custody. Thus, the burden remained on the former husband to prove that (1) a substantial change in the condition of one or both of the parties had occurred, which was of at least temporary duration, and (2) the best interests of the child would be promoted by the temporary change in custody, pending either a return to normalcy or a final hearing to modify permanent custody. See Kendall v. Kendall, 832 So.2d 878, 880 (Fla. 4th DCA 2002); Antonetti v. Amato, 544 So.2d 286, 287 (Fla. 1st DCA 1989).

The former husband argues that the trial court was not required to consider the best interests of the child pursuant to Bini v. Bini, 828 So.2d 470 (Fla. 5th DCA 2002). In Bini, the former wife relocated with the children to New Mexico despite a final judgment that required her to provide the former husband weekly visitation. 828 So.2d at 471. After a hearing, the trial court ordered the former wife to return the children to Florida. Id. Although the former wife initially complied by returning the children to Florida to reside with the former husband while she remained in New Mexico, she then obtained visitation with the children in New Mexico and again refused to return the children. Id. Thereafter, following a hearing in which both parties participated, the trial court awarded the former husband temporary custody of the children pending a further final hearing. Id. at 472-73.

In affirming this order, the Fifth District stated:

The instant case falls within the exception of a true emergency involving an improper removal of the children from the state. Hence, the normal burden on the party seeking custody to show a substantial change in circumstances and that the custody transfer is in the child’s best interests did not need to be met in this case.

Bini 828 So.2d at 473.

We find Bini distinguishable. In Bini, the former wife refused to return to the state of Florida and insisted on continuing to reside in New Mexico. As such, the emergency caused by her unlawful relocation had not been alleviated at the time the trial court temporarily modified permanent custody. In this case, however, the former wife had returned with the child to the jurisdiction of the court. The emergency was further alleviated by the trial court’s order placing the former wife’s and child’s passports in trust. The trial court awarded the former wife “extensive visitation” with the child, which indicates that it was not overly concerned that the former wife would again remove the child from Florida. Under these circumstances, the trial court was required to consider the best interests of the child in determining whether the former husband was entitled to a post-judgment temporary modification of permanent custody.

In light of the trial judge’s conclusion that the former wife had absconded with the child in violation of the final judgment and had deprived the child contact with the former husband for over a year, we fully understand why the trial judge believed that he had heard sufficient evidence to award the former husband temporary primary residence of the child. Section 61.13(3)(a), (j), Florida Statutes (2002), provides that the best interests of a child may be determined in part based upon “the parent who is more likely to allow the child frequent and continuing contact with the nonresidential parent” and “the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.” The former wife’s actions provided evidence sufficient to support a finding that these two factors did not weigh in her favor. However, section 61.13(3) requires the trial court to consider numerous other factors in determining the best interests of a child. The trial court was required to allow the former wife to present evidence regarding the remaining best interest factors in determining the proper temporary primary residence of the minor child pending a final hearing on the former husband’s supplemental petition for modification of the final judgment.

Because we affirm that portion of the order on appeal that held the entry of the initial emergency ex parte order was proper, we reverse the order on appeal only to the extent it denied the former wife’s motion to dissolve the emergency order without permitting her to present evidence regarding the child’s best interests. Under these circumstances, the emergency ex parte order remains in effect until a further hearing can be held on remand. The trial court must hold such a hearing within twenty days from the issuance of our mandate unless the parties agree to hold this hearing at a later time or to have it coincide with the final hearing on the former husband’s petition for modification. We affirm the remainder of the trial court’s order.

Affirmed in part, reversed in part, and remanded.

WHATLEY and COVINGTON, JJ., Concur.

      . We recognize that a hearing on temporary custody may be more abbreviated than a hearing on permanent custody. Nevertheless, the trial court must receive evidence sufficient to assure the best interests of the child on a temporary basis.


text:
    Anthony HARRIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4955.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
   DAVIS, Judge.

Anthony Harris Jr. appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Harris claims that his consecutive habitual felony and habitual violent felony offender sentences are illegal. He may have a valid claim based on Hale v. State, 630 So.2d 521 (Fla.1993), which precludes under all circumstances the imposition of consecutive sentences for crimes arising from a single criminal episode for habitual felony or habitual violent felony offenders. See State v. Hill, 660 So.2d 1384 (Fla.1995) (rejecting the claim that Hale only applies to minimum mandatory portions of enhanced habitual offender sentences). However, Harris does not allege that his crimes arose from a single criminal episode or that his claim can be determined without resort to extra-record facts. Therefore, his claim is facially insufficient. See Barron v. State, 827 So.2d 1063 (Fla. 2d DCA 2002); Steelman v. State, 801 So.2d 960 (Fla. 2d DCA 2001). We affirm without prejudice to whatever right Harris may have to file a facially sufficient Hale claim under rule 3.800(a).

Affirmed.

CASANUEVA and SILBERMAN, JJ., concur.


text:
    Ponce CATO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3487.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.

      Steven Herman of Steven Herman, P.A., Zephyrhills, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Ponce Cato seeks review of two judgments and sentences for possession of cocaine rendered after he entered a guilty plea to one charge and admitted to a resulting violation of probation. Counsel filed briefs asserting no meritorious argument pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree with counsel that no meritorious issues exist and affirm the convictions. However, we remand for entry of a proper order of revocation of probation.

We previously relinquished jurisdiction for the entry of a proper order of revocation of probation pursuant to Monroe v. State, 760 So.2d 289 (Fla. 2d DCA 2000), and Donley v. State, 557 So.2d 943 (Fla. 2d DCA 1990), because the record did not contain a written order of revocation of probation that specified the conditions of supervision that the trial court determined Cato violated. The trial court declined to enter such an order, apparently under the erroneous belief that the court complied with Monroe and Donley by including the following provision in the final judgment: “The Court found the Defendant in violation of specific conditions of probation/community control, see attached affidavit.” As we stated in Monroe and Donley, the trial court is required to enter a formal order of violation of probation that lists the specific conditions the court determined Cato violated. Merely attaching an affidavit of violation of probation alleging violations of various conditions of probation to the final judgment is insufficient to apprise this court of the basis for the revocation of probation. Accordingly, we remand for entry of a proper order of violation of probation.

Affirmed and remanded with directions.

ALTENBERND, C.J., and NORTHCUTT and STRINGER, JJ., Concur.


text:
    Christopher BOWERS, Appellant, v. Teresa A. PARRISH (Hightower), Appellee.
    No. 1D01-3810.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Appellant pro se.
    No appearance for Appellee.
   PER CURIAM.

The trial court correctly concluded that the total amount of damages appellant claimed in good faith from appellee in his complaint for conversion and civil theft fell below the statutory minimum amount necessary to invoke its jurisdiction. See § § 26.012(2)(a) & 34.01(l)(c)4, Fla. Stat. (1999). “Separate and distinct claims, even against the same defendant, cannot be aggregated in order to meet the jurisdictional threshold.” See Grunewald v. Warren, 655 So.2d 1227, 1230 (Fla. 1st DCA 1995) (citations omitted).

However, as we have held, “a better alternative to dismissal in the event that alleged damages are below the jurisdictional amount for the circuit court is a transfer of that action to the county court.” Aysisayh v. Ellis, 497 So.2d 1316, 1317 (Fla. 1st DCA 1986). Accordingly, we reverse the order of dismissal and remand for entry of an order transferring the action to the county court pursuant to rule 1.060(a), Florida Rules of Civil Procedure.

REVERSED and REMANDED, with directions.

ALLEN, C.J., WEBSTER and BROWNING, JJ., concur.


text:
    Cornelius DASHER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4568.
    District Court of Appeal of Florida, First District.
    May 6, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach record portions that conclusively refute the appellant’s claims that he would not have entered a plea if he had been aware that the state had to prove that he knew he was selling a controlled substance and that he would not have entered a plea if he had known that his counsel misadvised him about the amount of time he would receive if he entered a plea, we reverse and remand for the trial court to either support its summary denial with record excerpts conclusively establishing that the appellant is entitled to no relief or to conduct an evi-dentiary hearing on these claims. We otherwise affirm the trial court’s order.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

BOOTH, BENTON and POLSTON, JJ., concur.


text:
    Byron J. HOLIDAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4981.
    District Court of Appeal of Florida, First District.
    May 6, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order dismissing in part and denying in part his rule 3.800(a) motion. Because the trial court’s order was issued while the appellant’s direct appeal of judgment and sentence was pending, we reverse.

The trial court erred in ruling on the appellant’s motion for postconviction relief while the appellant’s case was the subject of a pending direct appeal. See Burch v. State, 721 So.2d 1198 (Fla. 1st DCA 1998). Instead, the trial court should have dismissed all claims for lack of jurisdiction or entered an order staying the motion until a mandate issued from the appellant’s direct appeal. See Cross v. State, 834 So.2d 961 (Fla. 4th DCA 2003).

Accordingly, the trial court’s order is reversed and the cause remanded to the trial court with instructions to dismiss the appellant’s motion for lack of jurisdiction or stay the motion until a mandate issues from the appellant’s direct appeal.

REVERSED AND REMANDED.

KAHN, VAN NORTWICK and BROWNING, JJ., concur.


text:
    Terrance D. GOODMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3738.
    District Court of Appeal of Florida, First District.
    May 6, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his third motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. Although this motion is successive, the appellant raises what we hold to be a facially sufficient claim based on newly discovered evidence in the form of an affidavit submitted by a previously unknown eyewitness who claims to have seen the actual perpetrator of the crime to which the appellant pled. The fact that a rule 3.850 motion is successive does not prevent a trial court from considering a facially sufficient claim of newly discovered evidence contained therein. See Porter v. State, 653 So.2d 374, 377 (Fla.1995).

Moreover, when an appellant who pleads guilty later seeks to withdraw that plea based upon a facially sufficient claim of newly discovered evidence, the trial court must support its denial of that claim with record attachments or it must hold an evidentiary hearing. See Veach v. State, 705 So.2d 135, 136 (Fla. 1st DCA 1998). See also, e.g., McLin v. State, 827 So.2d 948, 956 (Fla.2002). The trial court did neither. Rather, it merely denied the appellant’s motion as legally insufficient.

Accordingly, we reverse the trial court’s summary denial and remand this cause with instructions to the trial court to either refute the appellant’s claim of newly discovered evidence with record attachments, or to hold an evidentiary hearing. If an evidentiary hearing is ultimately required, the burden will be on the appellant to prove that the withdrawal of his plea is necessary to correct a ‘manifest injustice.’ See Veach, 705 So.2d at 136. See also Williams v. State, 316 So.2d 267 (Fla.1975).

REVERSED; REMANDED WITH INSTRUCTIONS.

ALLEN, C.J., BOOTH and BARFIELD, JJ., CONCUR.


text:
    AL ESTES BONDING, INC., Appellant, v. PINELLAS COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
    No. 2D02-2529.
    District Court of Appeal of Florida, Second District.
    May 7, 2003.
    Rehearing denied May 23, 2003.

      Joseph R. Fritz of Joseph R. Fritz, P.A., Tampa, for appellant.
    Susan H. Churuti, County Attorney, and Michael A. Zas, Senior Assistant County Attorney, Clearwater, for appellee.
   ALTENBERND, Chief Judge.

A1 Estes Bonding, Inc., appeals an order denying a motion to set aside or discharge bond estreature. We conclude that we have jurisdiction to review this order by common law certiorari and deny the petition for writ of certiorari.

In June 2001, Patrick Clark was arrested on charges of aggravated battery arising out of a domestic dispute. His bond was set at $15,000. A1 Estes Bonding acted as agent for a surety to post an appearance bond for Mr. Clark, and Mr. Clark was released. Although our record is limited, it is undisputed that Mr. Clark did not appear for trial on February 19, 2002. As a result, a notice of surety bond estreature was filed pursuant to section 903.26(l)(b), Florida Statutes (2002).

A1 Estes Bonding immediately attempted to locate Mr. Clark. In late February, they found him in federal custody in Vermont. Our record contains no information about the pending federal charges, but the parties agree that Mr. Clark was arrested by federal authorities after February 19, 2002. Efforts to obtain the release or transfer of Mr. Clark were unsuccessful, and he apparently remains in federal custody subject to a Florida detainer.

In March, A1 Estes Bonding filed a motion to discharge the bond estreature, explaining that Mr. Clark was now in federal custody and subject to detainer. A hearing was held on the motion on May 30, 2002. At the conclusion of the hearing, the trial court denied the motion. That same day, A1 Estes Bonding paid the $15,000 bond pursuant to section 903.26 in order to avoid the entry of a judgment against the surety under section 903.27, Florida Statutes (2002). In June 2002, the trial court entered a written order denying the motion to set aside or discharge the bond. A1 Estes Bonding appealed that order to this court.

Initially, we note that the source of our jurisdiction in this case is not entirely clear. Pinellas County maintains that we lack jurisdiction. In Chase v. Orange County, 511 So.2d 1101 (Fla. 5th DCA 1987), the Fifth District dismissed an appeal from an order denying a similar motion to set aside a bond estreature. The Fifth District reasoned that “all steps leading up to the entry of a judgment of forfeiture of a bail bond are interlocutory in nature” and thus nonappealable. Id. at 1102. We are troubled by this reasoning because if the surety pays its money to the clerk of court pursuant to section 903.26, no final judgment will be entered under section 903.27. In Chase, the bail bondsman had not paid the forfeiture and the Fifth District at least hinted that it would have permitted review if the money had been paid because the payment “has the same effect as a judgment.” Id. Because of these circumstances, we conclude that Chase is not controlling in this case. See also Schmidt v. Osceola County, 517 So.2d 79 (Fla. 5th DCA 1987) (relying on Chase to hold order denying motion to set aside bond estreature was nonfinal nonap-pealable); cf. Accredited Sur. & Cas. Co. v. Hagman, 467 So.2d 1065, 1066 (Fla. 4th DCA 1985) (holding order denying remission was appealable final order and noting that court had dismissed prior “appeal” of motion to vacate estreature without prejudice to filing motion for remission).

Although, as Chase noted, section 903.26(7) provides that “the payment by a surety of a forfeiture under the provisions of this law shall have the same effect on the bond as payment of a judgment,” this section does not state that payment is equivalent to the entry of a judgment. It does not transform an order denying a motion to set aside forfeiture into a final order.

This court has permitted an appeal from a final order that set aside an estreature, see Hillsborough County v. Roche Sur. & Cas. Co., 805 So.2d 937 (Fla. 2d DCA 2001), but that does not require this court to review an order denying such a motion. This court has also reviewed by direct appeal a case that seems on jurisdictional grounds to be indistinguishable from this case. See Dolly Bolding Bail Bonds v. State, 787 So.2d 73 (Fla. 2d DCA 2001). It does not appear that anyone raised a jurisdictional issue in Dolly Bolding.

In theory, a bail bondsman could refuse to pay the forfeiture and force judgment to be entered against the surety. We are hesitant to require such action as a prerequisite for appellate review because a judgment against the surety can have other consequences for the bail bondsman. See § 903.27, Fla. Stat. (2002). Accordingly, we conclude that an order denying a motion to set aside an estreature under section 903.26 may be reviewed by certio-rari if the bond has been paid; the bail bondsman is not forced to allow the issue to go to judgment against the surety under section 903.27 prior to seeking review. Cf. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (holding certiorari review is appropriate where order departs from essential requirements of law, causing material injury to petitioner and effectively leaving no adequate remedy on appeal).

Having determined that we can review this matter, we further conclude that the trial court properly denied the motion. There is no question that the appearance bond was breached when Mr. Clark failed to appear. Although bail bonds have a long common law history, the grounds for discharge are now purely statutory. See § 903.26(6). None of those grounds apply here. It may be that Mr. Clark is now in custody and no longer on the lam, but the bah bondsman cannot produce Mr. Clark to appear in state court. It is undisputed in this case that the federal government has no obligation to release Mr. Clark to the state authorities, much less to A1 Estes Bonding. This circumstance is not a statutory basis for discharge. Thus, the trial court did not depart from the essential requirements of the law, and we deny this petition for writ of certiorari. Any relief that the bail bondsmen may be entitled to in this situation must come from the legislature.

Upon review of this order as a petition for writ of certiorari, we deny the petition.

FULMER and CASANUEVA, JJ., Concur.

      . The statute actually uses the term "forfeiture” in this context. See § 903.26(1), Fla. Stat. (2002). The common law referred to "estreature” of a bond. See, e.g., Ex Parte Peacock, 25 Fla. 478, 6 So. 473, 475 (1889). Since the statutory codification of this process, it has become common to use the terms "forfeit” and "estreat” interchangeably when referring to criminal appearance bonds. See, e.g., Dolly Bolding Bail Bonds v. State, 787 So.2d 73, 73 (Fla. 2d DCA 2001); Bush v. Int’l Fid. Ins. Co., 834 So.2d 212, 213, 215 (Fla. 4th DCA 2002).

      . We note that Florida is not the only jurisdiction that has struggled with this jurisdictional issue. See E.H. Schopler, Annotation, Appeal-ability of Order Relating to Forfeiture of Bail, 78 A.L.R.2d 1180 (1961).


author: CASANUEVA, Judge.

text:
    Ana E. SCHOMBURG, Appellant, v. Andreas H.W. SCHOMBURG, Appellee.
    No. 2D02-3473.
    District Court of Appeal of Florida, Second District.
    May 7, 2003.
    Garry Pierrot of the Law Offices of Frederick C. Kramer, Marco Island, for Appellant.

      No appearance for Appellee.
   CASANUEVA, Judge.

Ana E. Schomburg appeals the final judgment dissolving her marriage to An-dreas H.W. Schomburg. She contends the trial court erred by making an unequal distribution of marital assets, by splitting the primary residential custody of the two minor children between the parents, by failing to make a child support determination, by failing to award her alimony or explain why she was not entitled to any, and by failing to award her attorney’s fees and costs. We affirm the equitable distribution scheme and residential custody award, finding no abuse of discretion. However, because the final judgment fails to address the issues of alimony and general attorney’s fees and costs, we reverse and direct the court to make those determinations.

The parties were married on June 3, 1977. Mrs. Schomburg petitioned for dissolution of marriage in July 2001, and Mr. Schomburg counterpetitioned shortly thereafter. At the time of the filings the parties had been married twenty-four years. Because of the long term of the marriage, there is an initial presumption that permanent alimony is proper. Additionally, the trial court is required to support its alimony decisions with factual findings. § 61.08(1), Fla. Stat. (2001); Milo v. Milo, 718 So.2d 343 (Fla. 2d DCA 1998) (holding that purpose for requiring findings of fact to support an alimony award is to assist appellate court in providing meaningful review); Perrin v. Perrin, 795 So.2d 1023 (Fla. 2d DCA 2001) (same). This is especially necessary in the current case to overcome the presumption in favor of alimony that arose from the long term of the marriage. Because the final judgment contains no mention of the alimony issue, we remand for further proceedings. Staton v. Staton, 710 So.2d 744, 745-46 (Fla. 2d DCA 1998).

The final judgment also did not address Mrs. Schomburg’s claim for attorney’s fees. We therefore remand with instructions that the trial court resolve this issue. Perrin, 795 So.2d at 1024 (holding that a trial court cannot decide the issue of attorney’s fees without findings as to one spouse’s ability to pay and the other’s need).

The final judgment reserved jurisdiction to decide child support. Because we must remand on the alimony and attorney’s fees issues, in the interest of judicial economy this issue should likewise be resolved on remand with appropriate findings in the final order to facilitate complete appellate review.

Affirmed in part, reversed in part, and remanded with instructions.

ALTENBERND, C.J., and FULMER, J., Concur.

      . The trial court reserved ruling on attorney's fees and costs related to an exchange of property the parties had been ordered to do but omitted any mention of fees and costs for the dissolution proceeding itself.


author: WHATLEY, Judge.

text:
    Bryan J. GLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3747.
    District Court of Appeal of Florida, Second District.
    May 7, 2003.
   WHATLEY, Judge.

Bryan J. Glover challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Glover failed to present a facially sufficient claim, we affirm the trial court’s order.

In his motion, Glover alleged that the three-year mandatory minimum term of imprisonment for trafficking in methylene-dioxymethamphetamine was illegally imposed. Glover based his claim on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found that “[a]s of April 29, 2002, the Florida Legislature cured the single subject rule violation by reenacting the provisions originally contained in Chapter 99-188. See Chapters 2002-208— 2002-212, Laws of Florida. In so doing, the Florida Legislature provided for the retroactive application of each reenactment to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

If Glover’s offense occurred within the Taylor window, he is entitled to be resen-tenced under the valid law in effect at the time of the offense. See Green, 839 So.2d 748. However, Glover failed to present a facially sufficient claim for relief under rule 3.800(a) since he failed to affirmatively allege that he committed the offense on a date within the Taylor window. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003). Therefore, we affirm the order of the trial court without prejudice to any right Glover might have to file a facially sufficient claim. See id.

Affirmed.

CASANUEVA and SALCINES, JJ, Concur.


author: NORTHCUTT, Judge.

text:
    William BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3859.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
   NORTHCUTT, Judge.

William Bailey challenges the summary denial of his motion seeking sundry forms of postconviction relief. We affirm without prejudice to any right Bailey has to file a motion for belated appeal with this court. We also affirm without prejudice to any right Bailey has to file a sworn, facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850.

On April 5, 2001, Bailey pleaded nolo contendere in case number 99-17749 to one count of trafficking in cannabis (50-2000 pounds), one count of conspiracy to traffic in cannabis (50-2000 pounds), and one count of possession of cannabis (less than 20 grams). He was sentenced to ten years in prison concurrent on each of the two trafficking counts with a three-year minimum mandatory on count one only. He was sentenced to time served on the possession count. The sentences were to be served concurrent with those imposed in case number 99-17774, which is not involved in this appeal.

On April 19, 2001, Bailey pleaded nolo contendere to one count of trafficking in cannabis (25-2000 pounds) in case number 01-3835. He was also charged with carrying a concealed weapon, but this charge appears to have been dropped. He was sentenced to ten years on the trafficking count, with a minimum mandatory of three years. The sentence was to be served concurrent to the sentences in case numbers 99-17774 and 99-17749.

Bailey filed a motion pursuant to rule 3.850 but entitled “Motion to Grant Belated Appeal.” The circuit court interpreted this as a motion for belated appeal, as well as a motion for postconviction relief and a motion to correct illegal sentence.

The circuit court dismissed the motion insofar as it sought a belated direct appeal because jurisdiction to entertain such a motion lies with the appellate courts rather than the trial courts. See Fla. R.App. P. 9.141(c)(2). We affirm without prejudice to any right Bailey has to file a motion for belated appeal in this court.

To the extent Bailey’s motion requested relief under rule 3.850, the circuit court determined that it was facially insufficient because Bailey did not set out the required contents and the oath was insufficient. The court further noted that most of the issues raised could or should have been raised on direct appeal. Accordingly, the court dismissed the motion without prejudice. We affirm without prejudice to any right Bailey has to file a sworn, facially sufficient motion pursuant to rule 3.850. See Freeman v. State, 629 So.2d 276 (Fla. 2d DCA 1993). Because it appears that the two-year time limit for Bailey to file a rule 3.850 motion has nearly expired during the pendency of this appeal, Bailey shall have thirty days from the date of the mandate following this opinion in which to file a corrected motion and memorandum of law. See Bernal v. State, 768 So.2d 467 (Fla. 2d DCA 2000).

In his last claim, Bailey argued that he should be resentenced on the trafficking counts in case numbers 01-3835 and 99-17749 based on our decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), which invalidated the legislative enactment that imposed the three-year mandatory minimum prison term for the trafficking offense. The circuit court treated this assertion as a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). It granted this aspect of Bailey’s motion and struck the three-year minimum mandatory provision from Bailey’s sentences in case numbers 99-17749 and 01-3835. We affirm the order in this regard.

Affirmed.

DAVIS and VILLANTI, JJ., Concur.


text:
    Rodney WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-4816.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Rodney Williams, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent^
   PER CURIAM.

DENIED. Fla. RApp. P. 9.141(c)(4)(A).

BROWNING, LEWIS and HAWKES, JJ., concur.


author: COVINGTON, Judge.

text:
    David SUGGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4403.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
   COVINGTON, Judge.

David Suggs appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of postconviction relief as to all claims contained in the motion except two that we believe warrant additional consideration. In his first claim for relief, Mr. Suggs alleges a colorable claim that his trial counsel was ineffective for lack of diligence in questioning a juror, Ms. Chaplin, during voir dire. See Monson v. State, 750 So.2d 722 (Fla. 1st DCA 2000); Lambrix v. State, 559 So.2d 1137, 1138 (Fla.1990). In his ninth claim for relief, Mr. Suggs alleges a colorable claim that his trial counsel was ineffective for failing to investigate or call two exculpatory witness. See Honors v. State, 752 So.2d 1234, 1235-36 (Fla. 2d DCA 2000); Gaskin v. State, 737 So.2d 509, 514-15 (Fla.1999). Because these two claims are facially sufficient and the record does not show “conclusively that the appellant is entitled to no relief, the order [is] reversed and the cause remanded for an evidentiary hearing,” Fla. R.App. P. 9.141(b)(2)(D), as to these issues. See also Waters v. State, 779 So.2d 625, 626 (Fla. 1st DCA 2001).

Affirmed in part, reversed in part, and remanded with instructions.

ALTENBERND, C.J., and KELLY, J., Concur.


author: STRINGER, Judge.

text:
    Mateliv M. ALEXIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4920.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
   STRINGER, Judge.

Mateliv M. Alexis challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, he sought to withdraw his 1997 no contest plea to sale of cocaine, possession of drug paraphernalia, and possession of cocaine, and his 2000 no contest plea to possession of cocaine and possession of drug paraphernalia. The basis of the motion was that the trial court did not inform him of the possibility of deportation as required by Florida Rule of Criminal Procedure 3.172(c)(8). The trial court summarily denied the motion, finding that Alexis was not entitled to relief because he signed preprinted plea forms in 1997 and 2000 that informed him of the possibility of deportation based on the pleas. This is incorrect. In Benelhocine v. State, 787 So.2d 38, 39-40 (Fla. 2d DCA), review denied, 796 So.2d 535 (Fla.2001), this court held that the fact that a preprinted plea form advises a person of the possibility of deportation is insufficient to satisfy rule 3.172(c)(8).

However, Alexis is not entitled to relief at this time because his motion is facially insufficient. In Peart v. State, 756 So.2d 42, 46 (Fla.2000), the Florida Supreme Court held that defendants shall have two years to file pleadings alleging a rule 3.172(c)(8) violation as measured from when the defendant has or should have knowledge of the threat of deportation. Alexis does not allege in his motion when he had notice of the threat of deportation. We therefore affirm the decision of the trial court without prejudice to Alexis’ filing a facially sufficient 3.850 motion.

Affirmed.

ALTENBERND, C.J., and KELLY, J., Concur.


author: KELLY, Judge.

text:
    Maurice A. CARSWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5461.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
   KELLY, Judge.

Maurice Carswell appeals the order summarily denying his timely motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Carswell raises six grounds of ineffective assistance of counsel in his motion, only one of which has merit.

In February 2000, Carswell pleaded no contest to second-degree murder and was sentenced to a guidelines sentence of twenty-one years’ incarceration. In his motion, Carswell alleges that his counsel was ineffective for failing to advise him that based upon his age on the date of the offense and at sentencing, he was eligible to be classified as a youthful offender. He contends that a presentence investigation was never completed and that had his attorney advised him of his eligibility to be sentenced under the Youthful Offender Act, he would never have entered a plea. In denying this ground, the trial court found that Carswell failed to demonstrate prejudice. The court stated:

Defendant entered a plea to a negotiated disposition of twenty-one years in the Department of Corrections, which is fifteen years more than the six years of incarceration allowed under the youthful offender statute. Defendant cannot say that the outcome of this case would have likely been different, but for counsel’s alleged omission. This claim is denied.

“Defense counsel must inform a defendant of ‘all pertinent matters bearing on the choice of which plea to enter ... and the likely results.’ Fla. R.Crim. P. 3.171(c)(2)(B).” Walker v. State, 642 So.2d 56, 57 (Fla. 2d DCA 1994). We cannot conclude from this record whether Cars-well’s allegations regarding his attorney’s failure to advise him that he was eligible for sentencing as a youthful offender are true. However, we believe this claim is facially sufficient entitling him to an evi-dentiary hearing. See Sanders v. State, 432 So.2d 752 (Fla. 2d DCA 1983); State v. Brown, 525 So.2d 454 (Fla. 1st DCA 1988); Lucas v. State, 461 So.2d 260 (Fla. 1st DCA 1984).

We affirm the trial court’s summary denial of the other claims raised by Carswell in his motion without discussion.

Affirmed in part; reversed in part; remanded for an evidentiary hearing.

FULMER and DAVIS, JJ., Concur.


text:
    Richard WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-608.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
   CASANUEVA, Judge.

Richard Williams challenges the order of the trial court dismissing his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Mr. Williams failed to present a facially sufficient claim, we affirm the trial court’s order without prejudice.

In his motion, Mr. Williams alleged that the three-year mandatory minimum term of imprisonment for trafficking in methamphetamine was illegally imposed. He based his claim on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of the mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In ruling on the motion, the trial court found that we had certified the question presented in Taylor to the supreme court, “which has neither answered the certified question nor denied jurisdiction of the case,” and that it would be “both proper under the circumstances and a prudent use of judicial resources” to dismiss Mr. Williams’s motion without prejudice to refiling it, pending resolution of the issue by the supreme court. Because the State on May 29, 2002, voluntarily dismissed its appeal in the supreme court, see 821 So.2d 302, the issue is no longer pending there. Moreover, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions. Therefore, at the present time, Taylor is the law in this district.

If Mr. Williams’s offense occurred within the Taylor window, he is entitled to be resentenced under the valid law in effect at the time of the offense. See Green, 839 So.2d 748. However, he failed to present a facially sufficient claim for relief under rule 3.800(a) since he failed to affirmatively allege that he committed the offense on a date within the Taylor window. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003). We therefore affirm the order of the trial court without prejudice to any right Mr. Williams might have to file a facially sufficient claim. Id.

Affirmed.

ALTENBERND, C.J., and COVINGTON, J., Concur.


text:
    Samantha HALLMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2694.
    District Court of Appeal of Florida, First District.
    May 9, 2003.
    Nancy Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Haying reviewed the entire record, we agree that no reversible error occurred. We affirm Appellant’s revocation of probation and imposition of judgment and sentence. However, because the trial court failed to enter a written order of revocation, we remand for the trial court to enter such an order. Cozart v. State, 823 So.2d 234 (Fla. 1st DCA 2002).

AFFIRMED.

ALLEN, C.J., and BOOTH and BARFIELD, JJ., concur.


text:
    STATE of Florida, Appellant, v. Elvin RODRIGUEZ, Appellee.
    No. 5D02-2043.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Harris v. State, 790 So.2d 1246 (Fla. 5th DCA 2001).

SHARP, W., PETERSON and ORFINGER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Robert KIRBY, Appellee.
    No. 5D02-2395.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beách, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Tyrrell, 807 So.2d 122 (Fla. 5th DCA 2002).

SHARP, W., PETERSON and PALMER, JJ., concur.


text:
    Isaac MANNING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2917.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and ORFINGER, JJ., concur.


text:
    Eric F. LAGREE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3625.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Eric F. Lagree, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., GRIFFIN and TORPY, JJ., concur.


text:
    Walter GREATHOUSE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1121.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    Walter Greathouse, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. State v. Barnes, 595 So.2d 22 (Fla.1992); Barnhill v. State, 788 So.2d 313, 315 (Fla. 5th DCA 2001).

SHARP, W., GRIFFIN and MONACO, JJ., concur.


text:
    Luis VIZCAINO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1231.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    Luis Vizcaino, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002).

GRIFFIN, PLEUS and MONACO, JJ., concur.


text:
    Michael SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1364.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    Michael Sanders, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. Blakley v. State, 746 So.2d 1182 (Fla. 4th DCA 1999).

THOMPSON, C.J., PETERSON and ORFINGER, JJ., concur.


text:
    Miguel MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1366.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    Miguel A. Morales, Pro se.
    No Appearance for Appellee.
   PER CURIAM.

See Yates v. State, 823 So.2d 273, 274 (Fla. 5th DCA 2002).

AFFIRMED.

GRIFFIN, PLEUS and TORPY, JJ., concur.


text:
    Thomas ANTINARELLI, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1365.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2003.
    Thomas Antinarelli, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Section 775.084(4)(a), Fla. Stat (2001).

PETERSON, SAWAYA and MONACO, JJ., concur.


author: VILLANTI, Judge.

text:
    T.K., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5745.
    District Court of Appeal of Florida, Second District.
    May 14, 2003.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

T.K. challenges his adjudication of delinquency for battery in circuit court case number 01-1980 and for food tampering and culpable negligence in circuit court case number 01-6464. We reverse T.K’s adjudication on the battery charge but affirm his adjudications for food tampering and culpable negligence.

On February 26, 2001, T.K. was taken into custody on a battery charge after he allegedly kicked his mother in the face. At that time, the State did not pursue the charges. On June 29, 2001, T.K. was taken into custody on the food tampering and culpable negligence charges after he allegedly put sewing pins into ice cubes that he knew his mother would be putting in her beverage. The State filed its delinquency petition against T.K. on the food tampering and culpable negligence charges on July 30, 2001. The State did not file a petition for delinquency on the battery charge until September 7, 2001. After an adjudicatory hearing held October 18, 2001, the trial court adjudicated T.K. delinquent in both cases and sentenced him to a high-risk residential program. In this appeal, T.K. asserts that his adjudications should be reversed because the State failed to comply with the speedy trial requirements of Florida Rule of Juvenile Procedure 8.090.

Rule 8.090 states in pertinent part:

(a) Time. If a petition has been filed alleging a child to have committed a delinquent act, the child shall be brought to an adjudicatory hearing without demand within 90 days of the earlier of the following:
(1) The date the child was taken into custody.
(2) The date the petition was filed.
(b) Dismissal. If an adjudicatory hearing has not commenced within 90 days, upon motion timely filed with the court and served upon the prosecuting attorney, the respondent shall be entitled to the appropriate remedy as set forth in subdivision (m).

Subdivision (m) allows the child to file a motion for discharge after the expiration of the ninety-day period and requires the court to hold a hearing on the motion within five days.

In this case, it is undisputed that T.K. did not file a motion for discharge in either case at any time before the adjudicatory hearing. However, as the State properly concedes, such a motion is not necessary to avoid the battery charge. In P.S. v. State, 658 So.2d 92, 94 (Fla.1995), the supreme court held that the State simply may not file a petition against a juvenile after the speedy trial period provided in rule 8.090(a)(1) has expired as to the specific charges at issue. See also D.A.J. v. State, 754 So.2d 817, 819 (Fla. 2d DCA 2000) (reversing conviction and remanding for discharge because the State failed to file the petition for delinquency until after the ninety-day speedy trial period had expired); State v. T.W., 679 So.2d 69, 70 (Fla. 4th DCA 1996) (affirming dismissal of charges because the petition was filed one day after the speedy trial period had expired). No written motion for discharge is necessary to preserve this error. D.A.J., 754 So.2d at 819.

Here, T.K. was arrested on the battery charge on February 26, 2001. The ninety-day speedy trial period expired on May 26, 2001. However, the State did not file its petition for delinquency on this charge until September 7, 2001. At that point, the State had violated T.K.’s speedy trial rights, and it was without jurisdiction to file the petition. Accordingly, we reverse T.K’s adjudication for battery and remand for discharge in circuit court case number 01-1980.

The same cannot be said for the charges of food tampering and culpable negligence. As to those charges, while the State’s petition was timely filed, the adjudicatory hearing was not held until almost three weeks after the ninety-day speedy trial period expired. Therefore, the State violated T.K.’s speedy trial rights on these charges. However, because the State had timely filed its petition, T.K. was required to file a written motion for discharge in order to obtain relief. See Fla. R. Juv. P. 8.090(b) (stating that a juvenile is entitled to the remedies set forth in subsection (m) “upon motion timely filed with the court” if the hearing has not been held within ninety days); Fla. R. Juv. P. 8.090(m)(2) (requiring the juvenile to file a motion for discharge in order to be entitled to the remedies for the State’s failure to bring the juvenile to hearing). See also D.A.J., 754 So.2d at 819. Here, T.K. filed no such motion. In the absence of a written motion for discharge, this issue is not preserved for review. Accordingly, we affirm T.K’s adjudications for food tampering and culpable negligence.

Affirmed in part, reversed in part, and remanded for discharge in circuit court case number 01-1980.

WHATLEY and SILBERMAN, JJ., concur.

      . Counsel for T.K. initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon an order from this court, the parties submitted supplemental briefing on the issue addressed in this opinion.

      . We note that had T.K. filed such a motion, the State would have been entitled to take advantage of the ten-day "window of recapture” provided by rule 8.090(m)(3).


author: FULMER, Judge.

text:
    Thearon SAMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3679.
    District Court of Appeal of Florida, Second District.
    May 14, 2003.
   FULMER, Judge.

Thearon Sampson challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Sampson raised six grounds in his motion. In grounds five and six, Sampson claimed that his sentence was illegal. We affirm, without comment, that portion of the trial court’s order denying these grounds. We also affirm the trial court’s denial of ground three of the motion since the claim of trial court error raised therein should have been brought on direct appeal and is not cognizable in a postconviction motion. However, we reverse the trial court’s order as to grounds one, two, and four of Sampson’s motion and remand to the trial court to consider these claims.

Sampson was convicted after jury trial of aggravated assault on a law enforcement officer in trial court case number 97-4986. His judgment and sentence were affirmed on direct appeal. Sampson v. State, 743 So.2d 1092 (Fla. 2d DCA 1999) (table decision). Sampson timely filed the rule 3.850 motion, the denial of which is presently under review. In grounds one, two, and four, Sampson raised claims of ineffective assistance of counsel. The trial court denied these claims, along with the claim raised in ground three, on the basis that they were successive since Sampson had previously filed a rule 3.850 motion in the same trial court case on December 28, 1999, which was denied by the order of the trial court rendered February 10, 2000. However, as correctly stated by Sampson in his motion for rehearing, the December 1999 rule 3.850 motion was filed in trial court case number 97-19044 and not in trial court case number 97-4986.

In the December 1999 rule 3.850 motion, Sampson alleged that his plea in case number 97-19044 was not voluntarily entered. In the present case, as noted above, Sampson was convicted after jury trial and did not enter a plea. In its February 10, 2000, order denying the December 1999 motion, the trial court stated: “Although Defendant’s Motion was filed in both case numbers 97-4986 and 97-19044, his claims are applicable only to case number 97-19044 and are without merit.” Thus, the trial court previously ruled that the December 1999 rule 3.850 motion raised no claims in regard to case number 97-4986.

Accordingly, we reverse that portion of the trial court’s order denying grounds one, two, and four of Sampson’s motion as successive. On remand, the trial court shall address the claims of ineffective assistance of trial counsel raised in those grounds.

Affirmed in part, reversed in part, and remanded.

SALCINES and STRINGER, JJ., concur.

      . Rather than utilizing the mailbox rule, the trial court determined the date of filing based on the date stamp of the clerk of the circuit court.

      . Although the style of the trial court’s February 10, 1999, order lists trial court cases 97-4986 and 97-19044, the December 1999 rule 3.850 motion that is part of our record lists only case number 97-19044 in the style of the motion but does contain a reference in the body of the motion to case number 97-4986, even though it raises no claims in regard to that case.


text:
    Gary PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-278.
    District Court of Appeal of Florida, Second District.
    May 14, 2003.
   NORTHCUTT, Judge.

Gary Perkins challenges the circuit court’s order partially dismissing and partially denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and to correct illegal sentences under rule 3.800(a). We reverse in part.

In August 1998, Perkins was charged with two counts of armed burglary, one count of burglary, and one count of possessing burglary tools. He and the State reached a plea agreement under which the State reduced the armed burglary charges to burglaries. Perkins pleaded guilty to all counts, reserving his right to appeal the denial of his challenge to the Prison Re-leasee Reoffender Act on constitutional grounds. In accordance with the agreement, Perkins was sentenced to fifteen years’ imprisonment as a prison releasee reoffender and as a habitual felony offender on the three burglary counts and to ten years’ imprisonment as a habitual felony offender on the possession of burglary tools count, all concurrent.

In December 1999, this court affirmed Perkins’s convictions without an opinion. Therefore, the Southern Second Reporter reported the decision in a table captioned “Florida Decisions Without Published Opinions.” Perkins v. State, 748 So.2d 274 (Fla. 2d DCA 1999) (Table). In fact, our decision was in the form of a “citation PCA,” that is, we issued a per curiam affirmance citing our November 1999 decision in Grant v. State, 745 So.2d 519 (Fla. 2d DCA 1999), in which we had determined that the PRR Act was constitutional. In December 1999 the appellant in Grant filed a notice to invoke the Florida Supreme Court’s discretionary review jurisdiction. Perkins, too, sought review in the supreme court. We issued our mandate in his case on January 21, 2000.

In April 2000 the supreme court granted review in Grant, Grant v. State, 761 So.2d 329 (Fla.2000) (Table), and in November 2000 it approved our decision in that case to the extent it held that the PRR Act was constitutional. Grant v. State, 770 So.2d 655 (Fla.2000). The supreme court later declined to accept jurisdiction in Perkins’s case, by order dated March 25, 2002. On October 10, 2002, Perkins filed the motion at issue here.

The circuit court dismissed the motion insofar as it sought relief under rule 3.850, observing that it was untimely because Perkins filed the motion more than two years after this court issued its mandate on January 21, 2000. We disagree. Motions under rule 3.850 must be filed within two years “after the judgment and sentence become final in a noncapital case[.]” Fla. R.Crim. P. 3.850(b). If the judgment or sentence are appealed, they become final for these purposes upon issuance of a mandate by the district court of appeal. Beaty v. State, 701 So.2d 856 (Fla.1997). However, if the supreme court has jurisdiction to review the district court’s decision and the defendant seeks review in that court, the judgment and sentence become final upon the conclusion of proceedings in the supreme court. Huff v. State, 569 So.2d 1247 (Fla.1990); Beaty, 701 So.2d 856.

The supreme court generally does not have jurisdiction to review decisions issued without opinions. But it may review a “citation PCA” if the citation is to a decision that either is pending review in or has been reversed by the supreme court. Jollie v. State, 405 So.2d 418 (Fla.1981). Perkins sought review in the supreme court based on our citation to Grant, which was pending review in that court. Therefore, the supreme court had jurisdiction to entertain Perkins’s petition for review, and his judgment and sentence did not become final for purposes of rule 3.850 until the supreme court declined to review his case on March 25, 2002. For this reason, Perkins’s October 10, 2002, request for relief under rule 3.850 was timely. We reverse the dismissal of Perkins’s 3.850 claims. On remand, the circuit court shall consider these claims on the merits, i.e., it shall determine whether they are facially sufficient and proceed accordingly.

In his motion Perkins also maintained that his PRR sentences on the burglary counts were illegal because the PRR Act does not apply to burglaries of unoccupied dwellings. State v. Huggins, 802 So.2d 276 (Fla.2001). On this point the circuit court examined the record and determined that, indeed, it reflected only that the residence involved in count three was occupied at the time of the burglary. Announcing its intention to strike the PRR sentences from counts one and two, the court offered the State an opportunity to withdraw from the plea agreement. The State declined in light of the fact that the PRR designation remained as to count three. Therefore, the court granted Perkins’s motion in part by striking the PRR sentences imposed in counts one and two and denied the motion otherwise.

Perkins contends the circuit court erred by looking beyond the information to determine whether the burglary charged in count three was of an occupied dwelling. To the contrary, the court properly followed the procedure we outlined in Caddo v. State, 806 So.2d 520 (Fla. 2d DCA 2001). Accordingly, we affirm on this point.

It has not escaped our notice that the sentence for count three is contrary to the supreme court’s holding that equal concurrent HFO and PRR sentences may not be imposed for the same offense. Grant, 770 So.2d at 659. Our decision is without prejudice to Perkins’s right to raise this question by filing a proper motion in the circuit court.

Affirmed in part, reversed in part, and remanded with directions.

WHATLEY and SALCINES, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Justo MAYO, Appellant, v. CAPITAL ASSURANCE COMPANY, INC., Appellee.
    No. 3D02-2650.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.

      Feinstein & Sorota and Alan Sorota, Miami, for appellant.
    Hightower, Weiser & Pozo and Michelle N. Shupe, for appellee.
    Before SCHWARTZ, C.J. and FLETCHER, J., and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

The judgment under review is affirmed for two reasons. First, there was no substantive error in directing a verdict in favor of the appellee uninsured motorist carrier, standing in the shoes of the driver of a “phantom” vehicle who successfully swerved in time to avoid an unlawfully parked truck, into which the plaintiff appellant subsequently crashed. Simply stated, there was no evidence that the phantom was guilty of any causal negligence whatever. See Jefferies v. Amery Leasing, Inc., 698 So.2d 368 (Fla. 5th DCA 1997); Tozier v. Jarvis, 469 So.2d 884 (Fla. 4th DCA 1985). Compare McCloud v. Swanson, 681 So.2d 898 (Fla. 4th DCA 1996)(jury issue presented on liability of forward driver to following driver only because preceding driver actually struck rear vehicle).

Second, even if the contrary were true, there was no cognizable harm because the owner of the forward truck, who was held 100% responsible for the accident by the jury, was fully insured for the amount of the verdict. Thus, UM coverage was unavailable and the insurer not liable in any event. See Bruno v. Travelers Ins. Co., 386 So.2d 251 (Fla. 3d DCA 1980); Dickey v. Grange Mut. Cas. Co., 370 So.2d 1234 (Fla. 2d DCA 1979); see also Allstate Ins. Co. v. Silow, 714 So.2d 647 (Fla. 4th DCA 1998); State Farm Mut. Auto. Ins. Co. v. Marko, 695 So.2d 874 (Fla. 2d DCA 1997).

Affirmed.


author: COPE, J.

text:
    BARRY UNIVERSITY, INC., Appellant, v. FIREMAN’S FUND INSURANCE COMPANY OF WISCONSIN, Appellee.
    No. 3D02-995.
    District Court of Appeal of Florida, Third District.
    May 14, 2003.

      Bilzin Sumberg Dunn Baena Price & Axelrod and Mitchell Widom and Raquel M. Gonzalez, San Diego, CA, for appellant.
    Hinshaw & Culbertson and Andrew E. Grigsby, Miami; Caron, Constants & Wilson and Alfred Constants III, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.

       Chief Judge Schwartz did not hear oral argument, but participated in the decision.

   COPE, J.

Barry University, Inc. appeals an adverse declaratory judgment on insurance coverage. We affirm.

In four separate lawsuits, former students sued Barry University following the withdrawal of accreditation for the physical therapy program in which they were enrolled. While there are minor differences between the complaints, all allege that in 1994, Barry University achieved probationary accreditation for its new physical therapy program but the written report by the accreditation organization raised a number of concerns. The complaints allege that in its recruitment materials, Barry did not disclose that the accreditation status was probationary. In May of 1996, there was another accreditation report that raised serious questions about the quality of the physical therapy program and the accreditation status.

The plaintiffs began their studies in the fall of 1996 with an anticipated graduation date of June 1999. They say that they were not informed of any of the foregoing information. According to the complaints, the University told the students there was no problem with accreditation and the students should not be concerned about it.

The accreditation organization withdrew accreditation effective October 30, 1996. The students were advised of this but were told that the University was seeking reconsideration and that existing students would be considered graduates of an accredited program for purposes of taking the licensing examination. It is alleged that Barry did not act diligently on the reconsideration. The accreditation organization refused reconsideration and the withdrawal of accreditation came final in August of 1997.

As a result, the plaintiffs became ineligible to sit for the licensing examination. This required them to enroll in other physical therapy programs in order to be permitted to take the licensing examination.

The students filed suit against the University. They alleged breach of contract, fraud in the inducement, and violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”).

The University is covered by a commercial general liability policy issued by appel-lee Fireman’s Fund Insurance Company of Wisconsin. The University requested that Fireman’s Fund defend the cases and indemnify the University. It refused to do so.

The University filed this action for a declaratory judgment. The trial court entered judgment in favor of Fireman’s Fund, and the University has appealed.

We agree with Judge Genden’s analysis, which states in part:

2. [T]he former students seek damages for inter alia, mental distress, anxiety disorders, post-traumatic stress disorder and depression, as a result of BARRY’s physical therapy program having lost its accreditation. In support of its motion [for summary judgment], BARRY asserts that the material allegations in the former students’ claims trigger FIREMAN’S duty to defend, based both on Florida law and on the terms of the insurance contract. All counts of the complaints, with the exception of breach of contract counts in the Aguilera, Turner and Amelkin complaints, allege intentional torts, which are excluded from coverage.
3. The operative language of the commercial general liability policy provides that the insurance “applies to bodily injury ... only if the bodily injury ... is caused by an occurrence that takes place in the coverage territory ...” The policy defines “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In addition, the policy states that coverage is excluded for “bodily injury ... expected or intended from the standpoint of the insured ...” Commercial General Liability Coverage Form CGOO 01 10 98 at 1,12.
4. Based on the policy definition of “occurrence,” and the specific exclusion of coverage for “bodily injury ... expected or intended from the standpoint of the insured,” BARRY asserts that not only does the policy cover accidental events, but also it covers bodily injury that is not expected or intended by the insured.
5. Under Florida law, an insurer’s duty to defend an insured in an action, whether groundless or not, must be measured by the allegations of the complaint. Castro v. Allstate Insurance Co., 724 So.2d 133, 135 (Fla. 3d DCA 1998). If the complaint, fairly read, alleges facts which create potential coverage under the policy, the insurer must defend the lawsuit. Illinois Insurance Exchange v. Scottsdale Insurance Co., 679 So.2d 355, 357 (Fla. 3d DCA 1996); Fun Spree Vacations, Inc. v. Orion Insurance Company, 659 So.2d 419, 421 (Fla. 3d DCA 1995).
6. BARRY argues that FIREMAN’S duty to defend is mandated by State Farm Fire & Casualty Co. v. CTC Development Corp., 720 So.2d 1072, 1076 (Fla.1998), wherein the Florida Supreme Court held that “where the term 'accident’ in a liability policy is not defined, the term, being susceptible to varying interpretations, encompasses not only ‘accidental events,’ but also injuries or damages neither expected nor intended from the standpoint of the insured.” The Court finds that CTC Development Corp. is factually distinguishable from the case at bar. In CTC, the owner of a construction company called upon its insurance company to provide a defense, under a contractor’s policy, for the mistaken construction of a home. The owner of the company admitted that he constructed the house knowing that it violated the applicable setback. However, he asserted that he was under the mistaken impression that his request for variance had been approved. In contrast, in the case at bar, the former student plaintiffs have alleged that BARRY’S conduct was intentional, not mistaken. Therefore, the court finds as a matter of law that no fair reading of the complaint alleges facts which create coverage under the subject policy of insurance with FIREMAN’S.

We agree with Judge Genden that the material allegations involve intentional conduct on the part of the University which cannot fairly be regarded as an “accident” within the meaning of the CTC Development case.

The University points out, however, that in two of the complaints, the following allegation is contained: the University “knew or recklessly disregarded facts that should have put it on notice that its Master of Science, Physical Therapy Program would not receive full accreditation.” R. 374, 382. The University argues that under our cases, “recklessly” means negligent or at least non-intentional. We disagree with the University’s interpretation.

The University relies on SM Brickell Ltd. Partnership v. St. Paul Fire & Marine Ins. Co., 786 So.2d 1204 (Fla. 3d DCA 2001). In that case we held that a claim of negligent defamation was covered by the commercial general liability policy, but the claim of intentional wrongdoing was not. Id. at 1205-06. While there was an allegation of reckless conduct, id. at 1205 n. 1., our holding was that the negligence claim fell within the terms of the insurance policy.

The University relies on Castro v. Allstate Insurance Co., 724 So.2d 133 (Fla. 3d DCA 1998). In that case a police officer engaged in horseplay by tickling a co-officer’s ear with the antenna of his han-dheld radio. The recipient turned around quickly and unexpectedly, which forced the antenna into his ear canal and ruptured the eardrum. The question in that case was whether this incident was an “occurrence” within the meaning of a homeowner’s policy “because there was no coverage for bodily injury which is ‘expected or intended’ by the insured.” Id. at 134. We concluded that there was coverage because “the evidence is clear that Rodriguez, while intending to touch Castro, intended no harm.” Id. The opinion said the complaint had alleged “that it was not an intentional act but Rodriguez’s reckless disregard that caused Castro’s injuries.” Id. at 135.

The University reads this case to say that if the complaint alleges reckless conduct, it follows that there must be coverage. We do not think that is a fair reading of Castro. The factual allegations must be examined. Under the facts of Castro the harm was not expected or intended. Use of the term “reckless” was not dispositive.

The University relies on Sunshine Birds and Supplies, Inc. v. U.S. Fidelity and Guar. Co., 696 So.2d 907, 910-11 (Fla. 3d DCA 1997). The question in that case was whether coverage had “been triggered by the allegations of the underlying complaints.” Id. at 910. Since the Sunshine Birds complaint alleged negligence among other things, id. at 911 n. 7, there was coverage.

For the stated reasons, the declaratory judgment is affirmed.

      . The University also had an educator's legal liability insurance policy with another company, which has acknowledged coverage.