text:
    Todd SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-46.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.

      Todd Smith, in proper person.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Appellant, Todd Smith, .appeals from the trial court’s denial of his Motion to Correct Illegal Sentence. See Fla. R.Crim. P. 3.800(a). Based on the State’s proper confession of error, we reverse Appellant’s sentences on two' counts of robbery and one count of burglary and remand for re-sentencing.

Appellant was convicted on two counts of robbery with a pistol, one count of burglary without a firearm, and-two counts of kidnapping with a pistol for crimes committed on December 24, 1982. He was sentenced on October 31,1983 to ten years imprisonment for each of the robbery and burglary convictions, to be served concurrently, and life in prison for the two kidnapping convictions, to be served consecutive to the first robbery count.

Appellant argues that the guidelines under which he was sentenced for robbery and burglary, section 921.001, Florida Statutes (1983), were later declared unconstitutional until enacted by the legislature on July 1, 1984. See Smith v. State, 587 So.2d 982, 988 (Fla.1989). The State properly concedes that, for this reason, Appellant should be re-sentenced on those counts. We therefore reverse the denial of Appellant’s 3.800 motion on the robbery and burglary counts and remand for re-sentencing either to non-guideline, parole-eligible sentences, or, if Appellant elects, to sentences under the version of the sentencing statutes in effect at the time that Appellant makes, an effective election. See §§ 921.002-921.0027, Fla. Stat. (2003); Copeland v. State, 842 So.2d 1052 (Fla. 3d DCA 2003). See also Braggs v. State, 642 So.2d 129 (Fla. 3d DCA 1994); Fowler v. State, 641 So.2d 941 (Fla. 5th DCA 1994). Appellant has the right to be present at re-sentencing and to be represented by counsel. See Duhart v. State, 858 So.2d 1222 (Fla. 3d DCA 2003).

We find no merit in Appellant’s other claims and find that he was correctly sentenced to non-guideline sentences on the kidnapping convictions, which we affirm.

Affirmed in part, reversed in part, remanded for re-sentencing.

      . The legislature' replaced the ■ sentencing guidelines with the Criminal Punishment Code, effective 1998. Ch. 97-194, §§ 1/2, at 3674, Laws of Fla.

      . Appellant points out that he was sentenced to ten years imprisonment on the burglary count, a third degree felony punishable by no more than five years. See § 775.082(3)(d), Fla. Stat. (1981); § 810.02(3), Fla. Stat. (Supp.1982). The trial court must ensure, in re-sentencing, that Appellant's sentences do not exceed the statutory limitations.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jeffrey SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1009.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Jeffrey Smith, Orlando, pro se.
    No appearance required for appellee.
   PER CURIAM.

As we have held before, the Florida Sexual Predators Act does not deny procedural due process under the Florida Constitution. See e.g. White v. State, 866 So.2d 703 (Fla. 4th DCA 2003), Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003). Accordingly, we affirm the order denying relief and again certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

FARMER, C.J., STEVENSON and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    Jeffrey S. ROSS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D04-1296.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Rehearing Denied July 26, 2004.

      Jeffrey S. Ross, Coconut Creek, pro se.
    No response required for respondent.
   GROSS, J.

Jeffrey Ross petitions for a writ of cer-tiorari from an appellate decision of the circuit court that affirmed his conviction of exposure of sexual organs, contrary to section 800.03, Florida Statutes (2002). We deny the petition, finding no departure from the essential requirements of law.

To be convicted of violating section 800.03, the state must prove that the defendant’s public exposure of himself was “in a vulgar or indecent manner.” See Wonyetye v. State, 648 So.2d 797, 799 (Fla. 4th DCA 1994).

Ross was convicted after a bench trial. The state offered evidence that he went shopping at a Wal-Mart in extremely short shorts. A witness testified that Ross’s penis was exposed from the bottom of the shorts and that he kept pulling up on the shorts. The witness told Ross to “tuck it in.” The two argued about whether Ross was exposed and he did nothing to cover himself up.

Ross testified in his own defense. He maintained that he had never exposed himself to the witness. Ross said that the witness “kept smiling at me throughout the store. Then when we finally spoke, she was looking into my eyes and she kind of gave me a dirty look. And then she said, after hesitation, ‘You’re exposed.’ ” Ross said that the two of them argued in raised voices about whether he was exposed.

Ross donned the shorts to demonstrate to the trial judge that he would not be exposed. The judge noted for the record that Ross “did not have underpants on.”

Ross was convicted and the circuit court affirmed the conviction.

We are mindful of the limited scope of our certiorari review. “[C]ertiorari should not be used to grant a second appeal, but instead is limited to those instances where the lower court did not afford procedural due process or departed from the essential requirements of law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). “[T]he departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error. A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. (emphasis in original). The supreme court explained that “clearly established law” for purposes of certiorari review

can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law. Thus, in addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.

Id. at 890.

In the light most favorable to the state, the evidence was that Ross deliberately wore short shorts that were substantially sure to lead to the exposure of his penis. He enhanced the extent of his exposure by continually tugging up on the shorts. The trial judge, as the finder of fact, viewed Ross in the shorts and evaluated the credibility of the witnesses. Whether Ross acted in a “vulgar or indecent” manner under the statute was a question of fact. See W.R.H. v. State, 763 So.2d 1111, 1112 (Fla. 4th DCA 1999) (observing that the “determination of whether appellant’s ‘act was in fact lewd and lascivious’ is a question of fact and is based upon the circumstances of each individual case”) (citation omitted). Ross’s argument that the exposure was accidental and without lascivious intent are factual matters that the trial judge decided against him. The circuit court was required to uphold the trial judge’s factual finding if it was supported by competent, substantial evidence. The evidence supported the conviction. We find no departure from the essential requirements of law sufficient to warrant certiorari relief.

Ross cites to Burks v. State, 766 So.2d 468 (Fla. 5th DCA 2000). As the fifth district described it, Burks was a case with “unique facts and circumstances.” Id. at 468. The defendant, hard of hearing and an alcoholic, lived deep in the woods in rural Florida. He felt “more secluded on his property than he actually was.” Id. at 469. The fifth district found the evidence insufficient to show that the defendant had a licentious design when he walked around his secluded property in the nude. “There [was] no evidence that [the defendant] knew [anyone] had earlier been ogling him.” Id. at 470. The secluded property in Burks is very different from a Wal-Mart, where an exposure was likely to be seen by shoppers. Here, the location of the exposure was another factor supporting the finding that it occurred in a vulgar or indecent manner.

WARNER and MAY, JJ., concur.


text:
    Brandon STALLINGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3062.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.

      James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Defendant below, Brandon Stallings [“Stallings”], contends on appeal that the trial court erred with respect to sentencing. We agree and reverse.

On June 9, 2003, Stallings was charged in a two-count information with escape and highway racing. He entered into a plea agreement in open court. During the plea colloquy, it was adduced that Stallings was eighteen years old. He told the judge that he was “sentenced with eight months and [he] did almost three years” in an Illinois juvenile detention facility.

The State presented the Criminal Punishment Code Seoresheet to the court. The “prior record” section of the score-sheet included the offenses of aggravated fleeing and eluding for 1.6 points, leaving the scene of an accident for .2 points, and DUI for .2 points, for a total of 2.0 points. His total sentence points were 42.2. The seoresheet provided: “If total sentence points are less than or equal to 44, the lowest permissible sentence is any non-state prison sanction.” [Emphasis added.] Counsel for Stallings objected to the scoring of the prior offenses on the ground that the offenses were committed more than five years ago when Stallings was only twelve years old. The court determined that it was not error to include the prior offenses because the time under the statute was “five years from the date that his parole ... was terminated.” The court adjudicated Stallings guilty and sentenced him to ten months’ imprisonment in the Brevard County jail on Count I and sixty days’ imprisonment in the Brevard County jail on Count II, to be served concurrently.

On appeal, Stallings repeats his objection to scoring the prior out-of-state juvenile convictions. He asserts that the trial court misapplied section 921.0011(5), Florida Statutes. The State acknowledges that the 2.0 points for out-of-state prior offenses were improperly scored on Stall-ings’ seoresheet, but urges that any error in the seoresheet was harmless because Stallings’ guidelines range for sentencing would not change.

If the 2.0 points for prior record were deleted from Stallings’ seoresheet, he would have 40.2 total points rather than 42.2 total points. The seoresheet provides that when the points are less than 44, which they would be in either instance, the lowest permissible sentence is any non-state prison sanction. Stallings did receive a non-state prison sentence; however, there was a significant range within which the judge could choose to sentence and the number of points logically might affect the judge’s selection within the range.

During the plea colloquy, the court informed Stallings that escape was a “pretty serious charge.” The court also told Stall-ings that he could have hurt or killed someone while driving 85 m.p.h. in a 45 m.p.h. zone. Finally, the court stated it was not going to give Stallings probation as Stallings requested, noting that almost three years in juvenile detention did not help him. There is, in short, no indication whether Stallings’ sentence would have been any different if the 2.0 points for prior record had not been included on the scoresheet. However, because criminal defendants should be sentenced using a correct scoresheet, and we cannot be sure that the lower score would not have affected the sentencing decision, we reverse and remand for the trial court to resentence Stallings using a corrected scoresheet. We are unwilling to say that any error in a score below 44 points would be harmless simply because the same sentencing range applies.

REVERSED and remanded.

GRIFFIN, PLEUS and PALMER, JJ., concur.


author: GRIFFIN, J.

text:
    William SINER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1043.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.
    William Siner, Perry, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Defendant William Siner [“Siner”] appeals the summary denial of his 3.850 motion for post-conviction relief. Siner entered nolo contendere pleas to attempted sexual battery and lewd and lascivious offenses, and was sentenced to a total of thirty-five years’ incarceration to be followed by ten years of probation. There was no direct appeal. Siner raises five grounds in his rule 3.850 motion. We see a problem with the summary denial of ground three only.

In ground three, Siner claims that counsel gave affirmative misadvice regarding gain time and parole, and misrepresented the length of time he would have to actually serve in prison. Siner claims that trial counsel told him he had reliable information that the laws relating to gain time and parole eligibility were going to be changed and that he would serve at most ten years of incarceration. Siner further alleges that trial counsel represented that because of prison overcrowding, parole was going to be reinstated, and due to his age and lack of criminal history, he would be an excellent candidate for parole. Siner also claims that counsel advised him to respond in the negative at the plea hearing if asked about any promises so as not to jeopardize the plea, maintaining that the parole commission would look favorably upon him for admitting his guilt.

Siner alleged that he is ineligible to receive gain time due to his' sex offender' status and that no bill has been introduced for the reinstatement of parole for any-inmates. Siner claims that he was sixty-one years of age when he entered his plea to thirty-five years and, had it not been for counsel’s assurances that he would be eligible for gain time or parole, he would not have entered the plea and would have gone to trial.

The trial court did not expressly respond to this ground in the order denying relief. After discussing several other grounds, the trial court merely stated that “the remaining allegations are either successive or without merit.” No documents showing that Siner had previously raised this issue were attached, however. Therefore, we asked for a response from the State, which acknowledged that such affirmative misadvice by counsel as to the eligibility for gain time is a basis for post-conviction relief. See O’Neal v. State, 860 So.2d 456 (Fla. 1st DCA 2003); Montgomery v. State, 615 So.2d 226 (Fla. 5th DCA 1993).

At the plea hearing, Siner answered in the negative when the court asked if anyone had threatened or coerced him to do anything regarding the plea agreement. However, Siner was not asked if his attorney or anyone else had made any promises regarding gain time, parole eligibility, or the actual amount of time that he might serve in prison. In State v. Leroux, 689 So.2d 235 (Fla.1996), a defendant claimed that counsel gave erroneous advice concerning the time he would actually serve in prison and his eligibility for gain time. The plea colloquy in that case involved a question as to whether, anything had been promised to defendant to induce the plea, and defendant answered in the negative. The supreme court held, however, that defendant’s negative response to the ques-tibh of whether anything had been promised to him to induce the plea did not conclusively refute the claim of counsel’s misadvice, and held that an evidentiary hearing would be necessary. Id. at 238. During the plea colloquy in this case, the court referred to a written plea form that was signed by Siner, but that written plea was not attached to the order denying relief.

We accordingly reverse and remand for an evidentiary hearing on this issue. In doing so, we do not imply a view of the legal merits of Siner’s claim. There is a qualitative difference between an attorney’s misadvice about the law applicable to a given plea or sentence and a lawyer’s expression of opinion as to possible future changes in the law. The legal sufficiency of Siner’s claim will await a determination by the trial court as to exactly what, if anything, Siner’s counsel told him about the length of time he would serve.

REVERSED and REMANDED.

PLEUS and MONACO, JJ., concur.


author: WALLACE, Judge.

text:
    Sharon A. SHAPPELL, Appellant, v. GUARDIANSHIP OF Stanley A. NAYBAR, Appellee.
    No. 2D03-3745.
    District Court of Appeal of Florida, Second District.
    June 25, 2004.

      Theodore “Ted” E. Karatinos of Prugh, Holliday, Deem & Karatinos, P.L., Tampa, for Appellant.
    No appearance for Appellee.
   WALLACE, Judge.

Sharon A. Shappell (the Guardian) appeals the circuit court’s order that denied her entitlement to compensation for services rendered on behalf of Stanley A. Naybar (the Ward). Because the circuit court’s order was entered without notice and an opportunity for the Guardian to be heard, we reverse the order and remand for reconsideration of the Guardian’s petitions for compensation and expenses.

The Guardian was appointed as emergency temporary guardian of the Ward on September 9, 1998, and as plenary guardian of the person and property of the Ward on October 15, 1998. In February 2001, the Guardian filed a petition requesting compensation for services rendered on the Ward’s behalf from August 26, 1998, through October 81, 2000. This petition was still pending when the Ward died on June 17, 2001. After the Ward’s death, the Guardian filed a second petition requesting compensation for services rendered from November 1, 2000, through August 6, 2001.

On June 3, 2003, almost two years after the Ward’s death, the circuit court entered an order denying both of the Guardian’s petitions in their entirety. Insofar as the record reveals, no interested party objected either to the Guardian’s entitlement to compensation for her services or to the amount of the fees she had requested. The Guardian has appealed the circuit court’s order.

The circuit court did not conduct a hearing prior to the entry of the order under review. Although an administration proceeding has been opened for the Ward’s estate and a personal representative appointed, the personal representative has not submitted a brief to this court.

The Guardian argues that the entry of the order denying her entitlement to compensation for her services without notice and a hearing violated her right to due process of law. Article I, section 9, of the Florida Constitution guarantees the right to due process of law. In Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483, 487 (1935) (citations omitted), the Supreme Court of Florida said:

In observing due process of law, the opportunity to be heard must be full and fair, not merely colorable or illusive. Fair notice and a reasonable opportunity to be heard shall be given interested parties before a judgment or decree is rendered. Due process of law means a course of legal proceedings according to those rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights.

The right to due process of law must be respected in guardianship proceedings. See Essenson v. Lutheran Servs. Fla., Inc. (In re Guardianship of King), 862 So.2d 869, 870-71 (Fla. 2d DCA 2003); McGilton v. Millman, 868 So.2d 1259, 1261-62 (Fla. 4th DCA 2004).

Generally speaking, a guardian is entitled to a reasonable fee for services rendered. Lucom v. Atl. Nat’l Bank of W. Palm Beach, 97 So.2d 478, 480 (Fla.1957); Schacter v. Guardianship of Schacter, 756 So.2d 1075, 1076 (Fla. 4th DCA 2000) (citing section 744.108(1), Florida Statutes (1999), which has remained unchanged at all times relevant to this case). We recognize that the circuit courts of this state frequently dispose of uncontested petitions for compensation and expenses in guardianship matters informally without conducting a hearing. See generally Edward A. Shipe, Fees and Other Costs in Guardianship Proceedings, in Florida Guardianship Practice § 28.5 (Fla. Bar CLE 4th ed.2002). However, just as due process of law requires notice to interested parties and an opportunity to be heard before the court rules on a 'contested petition for fees in an estate administration, Maxcy v. Brett (In re Estate of Maxcy), 280 So.2d 10, 11 (Fla. 2d DCA 1973), Breed v. Nye (In re Estate of Nye), 263 So.2d 252, 253 (Fla. 2d DCA 1972), these requirements of due process apply equally to a contested petition for fees in a guardianship proceeding. Additionally, even in-the absence of a challenge by an interested party to a guardian’s petition for fees, the circuit court should not reduce the amount of compensation requested by the guardian without first providing .the guardian with an opportunity to be heard on the petition. See Valentini v. State (In re Guardianship of Sitter), 779 So.2d 346 (Fla. 2d DCA 2000); Schacter, 756 So.2d 1075. In this case, without notice and an opportunity to be heard on the merits of the petition, the circuit court denied the Guardian any compensation. This violated the Guardian’s right to due process of law.

Accordingly, the order is reversed and this case is remanded to the circuit court for reconsideration of the Guardian’s petitions after notice to interested parties and a hearing. On remand, if the circuit court once again determines to deny any compensation and reimbursement of expenses to the Guardian or to award less than the amount requested in the petitions, its order shall include a recital of the findings of fact and conclusions of law upon which the order is based.

Reversed and remanded.

KELLY and CANADY, JJ., Concur.


author: WOLF, C J.

text:
    John KIEDROWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2554.
    District Court of Appeal of Florida, First District.
    June 29, 2004.

      John Kiedrowski, pro se, for appellant.
    Charlie Crist, Attorney General; Robert R. Wheeler and Sherri T. Rollison, Assistants Attorney General, Tallahassee, for appellee.
   ON MOTION FOR REHEARING

WOLF, C J.

Appellee’s motion for rehearing is denied. This court’s opinion dated April 28, 2004, however, is hereby withdrawn and substituted with the following corrected opinion.

Appellant challenges the order entered by the trial court granting partial relief on his motion to correct an illegal sentence based on Hale v. State, 680 So.2d 521 (Fla.1993), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). The issue before us is whether imposition of a non-habitual felony offender sentence following a habitual felony offender (HFO) sentence which has been enhanced to the statutory maximum, where both counts arise out of a single criminal episode, violates the dictates of Hale. We find that under the facts of this case it does, and we vacate the sentence.

Appellant pled guilty to aggravated assault and grand theft auto. According to the plea agreement, the court sentenced him as a habitual felony offender as to both offenses. He was sentenced to 10 years for the first offense and 2 years for the second offense, with the sentences to run consecutively.

Appellant filed a Motion for Correction of Illegal Sentence pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, arguing that under Hale his sentences should have run concurrently, not consecutively, because they stemmed from the same incident involving the same victims. The trial court granted defendant’s motion to correct an illegal sentence pursuant to Hale, finding that appellant’s offenses were committed in a single criminal episode. An Amended Order on Defendant’s Motion to Correct Illegal Sentence was entered, striking the habitual felony offender designation as to one count, but continuing to run the sentences as to each count consecutively. As a result, the terms of imprisonment and probation combined continue to be 12 years.

In Hale the supreme court held that sentences for multiple crimes arising from a single criminal episode cannot be both enhanced under the habitual felony offender statute and imposed consecutively. Id. at 524-525. The dictates of Hale have been expanded by subsequent case law.

In a number of cases, including Benjamin v. State, 667 So.2d 437 (Fla. 2d DCA 1996), the Second District has held that imposition of a sentence of probation as a habitual offender, following a period of incarceration as a habitual offender, “was improper under the dictates of Hale v. State.” In Fuller v. State, 867 So.2d 469, 29 Fla. L. Weekly D364 (Fla. 5th DCA Feb.6, 2004), the Fifth District was dealing with an issue which is similar to the one presented to us in this case. In that case a trial judge confronted with a motion to correct an illegal sentence simply removed the habitual offender designation from a probationary sentence which was imposed consecutive to a period of incarceration as a habitual offender. In Fuller the Fifth District held that the sentence as modified still violated the dictates of Hale, but noted conflict with our case of Davis v. State, 710 So.2d 1051 (Fla. 1st DCA 1998).

In Davis, we found that a term of probation on one count following a term of imprisonment- as a habitual offender on another count was not erroneous because the defendant-was not declared to be a habitual offender as to the second count. Davis, 710 So.2d at 1051-1052. The State argues that we should follow Davis. However, Davis is silent as to whether the combined sentence- of imprisonment and probation exceeded the statutory maximum allowed under the habitual felony offender statute. In the instant case the combined sentences do exceed the statutory maximum. We find this to be a critical distinction.

Both the aggravated assault and grand theft auto crimes were third degree felonies. §§ 784.021(2) and 812.014(2)(c)(6), Fla. Stat. (1997). Therefore, the maximum sentence appellant could receive on each count without any enhancement would be 5 years, or a total of 10 years if run consecutively. § 775.082(3)(d), Fla. Stat. (1997). Pursuant to the habitual felony offender statute, appellant’s sentences could have been enhanced “[i]n the case of a felony of the third degree, for a term of years not exceeding 10, and such offender shall not be eligible for release for 5 years.” § 775.084(4)(b)(3), Fla. Stat. (1997). Thus, the mandatory minimum under the habitual felony offender statute is 5 years for each offense; the maximum sentence is 10 years for each offense, which must run concurrently under Hale.

By enhancing only one count and running it consecutively to the second count, appellant was sentenced to 12 years. This sentence exceeds the statutory maximum if both sentences had been enhanced under section 775.084 and run concurrently, or if neither had been enhanced and run consecutively. As such the appellant’s sentence violates Hale. Although appellant was not sentenced to the mandatory minimum of 5 years for the second offense, as explained in State v. Hill, 660 So.2d 1384 (Fla.1995), the requirement that sentences run consecutively is not limited to only the minimum mandatory portion of. a total sentence:

The State argues that Hale and its predecessors, Palmer v. State, 438 So.2d 1 (Fla.1983), and Daniels v. State, 595 So.2d 952 (Fla.1992), stand only for the rule that the minimum mandatory portion of an enhanced habitual offender sentence may not be imposed consecutively to any other enhanced minimum mandatory sentence arising from the same criminal episode.
To date, the legislature has not enacted legislation modifying the statute upon which the holding in those cases was based. Until it does so, we find that a trial court is without authority to- enhance sentences from multiple crimes committed during a single criminal episode by both sentencing a defendant as a habitual offender and ordering that the sentences be served consecutively.

Id. at 1385-1386 (italics in original, bold emphasis added); see also Pangburn v. State, 661 So.2d 1182 (Fla.1995) (holding HFO mandatory minimum sentence for robbery must run concurrently with sentences imposed for non-HFO first degree murder convictions); Parks v. State, 701 So.2d 653, 654 (Fla. 4th DCA 1997) (holding fifteen year HFO mandatory minimum sentences on the three robbery convictions were required to run concurrently with the twenty-five year non-HFO mandatory minimum on the murder sentence).

Here appellant was sentenced as an habitual felony offender, and his sentences for the multiple crimes committed during a single criminal episode were to be served consecutively. Although these cases may be distinguished by the fact that the non-HFO sentences were neither enhanced nor involved other minimum mandatory statutes, the fact that appellant’s sentence exceeds the 10-year total sentence he could have received as an habitual felony offender violates the reasoning and the spirit of Hale. We find that Davis is not controlling, and therefore, we vacate the sentence and remand for resentencing.

PADOVANO and POLSTON, JJ., concur.

      . A count of aggravated assault was nol pressed as part of the plea agreement.


text:
    Thomas J. MARTIN, Appellant, v. Richard T. WILCOX, Allan A. Funkhouser, and Martha W. Funkhouser, his wife, and Earl L. Landrum and Melissa L. Landrum, his wife, Appellees.
    No. 1D03-2291.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Michael J. Korn, Korn & Zehmer, P. A., Jacksonville, for Appellant.
    Clyde W. Davis, Esquire, Fernandina Beach, for Appellees.
   PER CURIAM.

The appellant appeals the April 28, 2003 order of the trial court denying his motion for rehearing and upholding the previous order that enforced the settlement agreement (“Settlement Agreement”) entered into between the parties. The appellant contends that the trial court erred by not substantively considering his motion as a timely collateral attack authorized by the order approving the Settlement Agreement. We agree, and therefore, reverse and remand for consideration of appellant’s motion on the merits.

The appellees/plaintiffs filed a complaint against the appellant/defendant on October 11, 2001, alleging that he had violated an agreement to provide an easement on his property, and seeking declaratory relief, injunctive relief, and money damages. The defendant’s answer asserted in part that he had not been paid in full for the easement. The parties entered into the Settlement Agreement in April 2002.

On October 31, 2002, the plaintiffs filed a “Motion to Enforce Settlement Agreement.” On December 2, 2002, the court entered an order that substituted attorneys for the defendant, and on December 3, 2002, the defendant’s new counsel made an ore tenus motion for a continuance of the hearing. The trial court denied the motion for continuance, and ruled on December 9, 2002:

The Motion of the Plaintiffs is granted in part. The Court recognizes that a settlement agreement has been filed in this cause which appears to be disposi-tive on its face and which appears to have been entered into by both parties and counsel for the parties. The Court also recognizes that there are circumstances under which such an agreement might be invalidated or set aside. At present, there is no such motion pending before the Court for adjudication.
WHEREFORE, it is ORDERED and ADJUDGED that:
1.The Settlement Agreement filed by the parties with the Court is hereby approved, by the Court subject to the right of the Defendant to file such appropriate motions as he may see fit to attack that Settlement Agreement. The Defendant is given a period of sixty (60) days from the date hereof within which to file such motions, failing which, the Settlement Agreement shall stand as approved without further leave or modification or collateral attack by the Defendant. During such sixty (60) day period, however, the Defendant is required to remove all obstructions from the easement depicted on the Settlement Agreement and is restrained and enjoined from interference in the use of such easement by the Plaintiffs;
2. At the end of the aforesaid sixty (60) day period, if there is no pending motion before the Court, the parties are required to execute the documents as set forth in the Settlement Agreement or, this Order and such other orders as may be entered, shall effectuate the same;
3. This Court retains jurisdiction over the parties and the subject matter herein for purposes of enforcement and adjudication of such other matters as may arise.

(Emphasis added).

On January 31, 2003, within the sixty-day time period, the defendant filed a motion entitled “Motion for a Rehearing on Motion to Enforce Settlement Agreement.” This motion challenged the enforceability of the Settlement Agreement and alleged that the defendant’s counsel had only been retained the day before the December 3, 2002 hearing and was not familiar with the facts of the case. The motion also alleged that the defendant was not adequately informed of the items contained in the Settlement Agreement, that the map attached to the Settlement Agreement was not shown to the defendant, and that the defendant’s attorney had evidence that showed that the defendant’s understanding of the Settlement Agreement and map was not consistent with the map attached to the Settlement Agreement filed with the court. Even though the defendant filed his motion within the sixty-day window, the successor trial judge ruled that the motion for rehearing was not timely filed and could not serve to extend the time period provided by the December 9, 2002 order. The court entered its order on April 28, 2003, upholding the previous order approving the Settlement Agreement.

It is apparent on the face of the December 9, 2002 order that the trial court’s final approval of the Settlement Agreement only became effective if there was no challenging motion filed within sixty days. Because the defendant filed a challenging motion within the sixty-day time period, the trial court’s approval of the Settlement Agreement did not become effective. Accordingly, we reverse and remand for the trial court to consider the merits of appellant’s motion attacking the Settlement Agreement.

REVERSED and REMANDED with instructions.

BOOTH, POLSTON and HAWKES, JJ., concur.

      . Because we construe the trial court's December 9, 2002 order in this manner, we reject appellant’s alternative argument that the order violates Fla. R. Civ. P. 1.540(b).


text:
    Eddie JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1577.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Eddie Jones, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This appeal is hereby dismissed. See Jones v. State, 858 So.2d 1263 (Fla. 1st DCA 2003).

KAHN, DAVIS and PADOVANO, JJ., concur.


text:
    MONTGOMERY INSURANCE and Admiral Farragut Academy, Appellants, v. Evelyn DEYO, Appellee.
    No. 1D03-3856.
    District Court of Appeal of Florida, First District.
    June 29, 2004.

      Gregory D. White and Andrea K. Ed-dings of Hurley, Rogner, Miller, Cox, War-anch & Westcott, P.A., Winter Park, for Appellants.
    Robert W. Schoenfelder, St. Petersburg, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the employer and carrier seek review of a final order directing them to reimburse the claimant for the cost of a new “handicap-accommodated” van. Based upon Caron v. Systematic Air Services, 576 So.2d 372 (Fla. 1st DCA 1991), we reject the employer’s and carrier’s argument that the issue of entitlement to such an award is barred by res judicata. However, because the claimant failed clearly to establish her entitlement to reimbursement for a new “handicap-accommodated” van as opposed to the 24-hour-a-day convenient alternative transportation for the claimant and her caregiver offered by the employer and carrier, we are constrained to reverse the award of reimbursement for the van based upon our decision in Kraft Dairy Group v. Cohen, 645 So.2d 1072 (Fla. 1st DCA 1994). The pertinent facts are indistinguishable from those in Kraft. Accordingly, as in Kraft, we must reverse.

REVERSED.

WEBSTER, VAN NORTWICK and POLSTON, JJ., concur.


text:
    Gary BURKE, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 1D03-4685.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Appellant, pro se.
    Kim Fluharty, General Counsel, Florida Parole Commission; Rosa Carson, Acting General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of May 6, 2004, the Court has determined that the appellant’s motion for rehearing of the trial court’s order entered on August 8, 2003, was not timely served, see Fla. R. Civ. P. 1.530(b), and did not delay rendition of the final order. See Fla. R.App. P. 9.020(h). Therefore, the notice of appeal filed October 27, 2003 is untimely and the appeal is hereby dismissed for lack of jurisdiction.

WEBSTER, VAN NORTWICK and POLSTON, JJ., concur.


text:
    Jose SANTIAGO, Appellant, v. DIVERSIFIED WATERPROOFING & COATING and Claims Center, Appellees.
    No. 1D04-1030.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Albert Marroquin of Richard E. Zaldi-var, P.A., Miami, for appellant.
    H. George Kagan of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, for appellees.
   PER CURIAM.

On February 3, 2004, the Judge of Compensation Claims issued an order which granted, without comment, the employer/carrier’s motion to compel the claimant’s attendance at deposition and/or to dismiss the claim. Claimant filed a notice of appeal on March 3, 2004. In response to this court’s order to show cause on jurisdiction, appellant states that the order was final in that it dismissed his claim for benefits.

It further appears, however, that the Judge of Compensation Claims entered an amended order on March 4, 2004, which clarified that the motion to compel was granted but that “claimant’s petitions for benefits are not dismissed.” In light of this amended order, it can be seen that neither a final order nor an appealable non-final order has been entered.

Technically, claimant’s notice of appeal divested the Judge of Compensation Claims of jurisdiction to enter the order of March 4. However, we relinquish jurisdiction, nunc pro tunc, to permit entry of the March 4 order and accordingly find that no appealable order is before us. This appeal is therefore dismissed for lack of jurisdiction.

DISMISSED.

WEBSTER, VAN NORTWICK, and POLSTON, JJ., concur.


text:
    D.R.B., Jr., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4557.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General; Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

D.R.B., Jr., a child, appeals from his adjudication of delinquency and commitment to the Department of Juvenile Justice. Because the trial court erred in departing from the Department’s commitment recommendation, we reverse.

A trial court’s decision to depart from the Department’s commitment recommendation for reasons not considered by the Department must be supported by competent, substantial record evidence, and the trial court’s reasons* must reference the characteristics' of the restrictiveness level in relation to the needs of the child. A.C.N. v. State, 727 So.2d 368, 370 (Fla. 1st DCA 1999). Where the trial court’s departure is based on evidence or factors considered by the Department, the trial court must explain why such evidence led the court to reach a different conclusion than the Department. E.S.B. v. State, 822 So.2d 579, 581 (Fla. 1st DCA 2002). In this case, reversal is warranted because the trial court failed to refer to the needs of the child or explain why factors considered by the Department led the trial court to a different conclusion.

Accordingly, we affirm the adjudication of delinquency, but reverse the trial court’s disposition and remand the cause for further proceedings consistent herewith.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

BOOTH, WEBSTER and DAVIS, JJ., concur.


text:
    Paul WRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0007.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Paul Wright, pro se, petitioner.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

By petition for writ of mandamus, Paul Wright seeks an order compelling the Gulf County Circuit Court to rule on a motion to correct illegal sentence he filed in October 2002. While we recognize that the delay in ruling is at least partially attributable to the state’s failure to respond to orders directing it to address the merits of petitioner’s claim, the circuit court is nonetheless obligated to rule on the matter before it in a reasonable time. Accordingly, we grant the petition for writ of mandamus, and direct the circuit court to promptly enter an order disposing of the pending motion to correct illegal sentence.

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    Corey D. HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1260.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2004.

      Jeremy R. Wilson and A. Michael Bross of Bross, Bross, Thomas, DeCaprio, Mays & Wilson, LC, Merritt Island, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.140(b)(2)(A)(ii); Leonard v. State, 760 So.2d 114 (Fla.2000); Chambers v. State, 840 So.2d 335 (Fla. 1st DCA 2003); Winther v. State, 812 So.2d 527 (Fla. 4th DCA 2002).

PLEUS, MONACO and TORPY, JJ., concur.


text:
    Jerome Lebaron MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2349.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 373 So.2d 898 (Fla.1979).

PLEUS, ORFINGER and MONACO, JJ., concur.


text:
    Cynthia D. HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3578.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2004.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Vernon L. MERCER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1758.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2004.
    Vernon L. Mercer, Lake City, pro se.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See generally Griffin v. Sistuenck, 816 So.2d 600 (Fla.2002); Jones v. State, 838 So.2d 659 (Fla. 5th DCA 2003) and Alterisio v. State, 704 So.2d 164 (Fla. 5th DCA 1997).

PETERSON, GRIFFIN and ORFINGER, JJ., concur.


author: PER CURIAM. SHEPHERD, J.

text:
    The STATE of Florida, Appellant, v. Tony Bernard GILLIS, Appellee.
    No. 3D03-1546.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Charles J. Crist, Jr., Attorney General, and Steven Berger, Assistant Attorney General for appellant.
    Bennett H. Brummer, Public Defender, and Harvey Sepler, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., GERSTEN, and SHEPHERD, JJ.
   PER CURIAM.

The State appeals the dismissal of a criminal information, based upon the States failure to comply with numerous motions to compel discovery, and failure to produce a critical witness at a Richardson hearing. We affirm.

The State filed an information on December 10, 2002, charging Tony Gillis (“defendant”), with burglary, grand theft and criminal mischief. On December 12, 2002, the defendant invoked reciprocal discovery. The State did not comply.

On January 13, 2003, the court granted a defense motion to compel discovery. Again, the State did not comply.

On March 5, 2003, the court granted a second defense motion to compel discovery. The State again failed to comply.

On March 14, 2003, the court granted a third defense motion to compel discovery and ordered the State to comply within five days. The State once again did not comply.

On March 28, 2003, the court granted the State a continuance for trial, after being assured that the State would provide defense counsel with the oft requested discovery. No discovery came forth.

On May 9, 2003, the court granted a fourth motion to compel discovery and ordered the State to comply within five days as the speedy trial period was about to expire. On May 14, 2003, defense counsel filed a notice of expiration of the speedy trial period.

On May 19, 2003, the State finally provided the defense with partial discovery. As a result of this partial discovery, albeit very late, the defense discovered viable defense information. The partial discovery revealed there were two separate sets of footprints at the crime scene.

Immediately, the defense requested a Richardson hearing alleging that they were prejudiced in their defense preparation because the exculpatory evidence went to the heart of their defense. At the Richardson hearing, the State could not articulate any efforts the State had taken to compare the footprints found at the scene with those of the defendant.

Exhibiting exceptional equanimity, the court reset the Richardson hearing for 9:00 a.m. the following morning and ordered the State to have their witnesses present, specifically the crime scene technician. The court informed the State that if all their witnesses were not present, the court would dismiss the information.

The next morning, the court called the case at 10:35 a.m. The State failed to produce the crime scene technician for the hearing and did not provide any reason for her absence. Thereafter, the court dismissed the information finding that the States series of acts were willful violations that substantially prejudiced the defendant.

Florida Rule of Criminal Procedure, 3.220(n)(l) provides:

[I]f at any time during the course of the proceedings, it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may order the party to comply with the discovery or inspection of materials not previously disclosed or produced, grant a continuance, grant a mistrial, prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed, or enter such other order as it deems just under the circumstances.

While dismissal of an action for failing to obey a court’s pre-trial order is an appropriate sanction, it is a drastic remedy which should only be used sparingly and in extreme situations. See State v. Del Guadio, 445 So.2d 605 (Fla. 3d DCA 1984).

We determine the States actions in this case fall into the narrow category where this extreme sanction is appropriate. See State v. White, 792 So.2d 606 (Fla. 4th DCA 2001)(dismissal appropriate sanction for states failure to secure victims participation), State v. Alfonso, 478 So.2d 1119 (Fla. 4th DCA 1985)(dismissal appropriate sanction for repeated discovery violations).

Here, the State failed to comply with the initial discovery request and four motions to compel discovery. The States actions in failing to provide this requested discovery compromised the defendants identification defense. It was crucial to the defendant to show that the footprints found at the scene did not match his. The State blatantly ignored numerous court orders thus delaying the administration of justice. See Morales v. Perez, 445 So.2d 393 (Fla. 3d DCA 1984)(default judgment appropriate sanction where party failed to comply with numerous discovery orders), State v. Hilliard, 409 So.2d 211 (Fla. 4th DCA 1982)(court did not abuse its. discretion in dismissing information for numerous discovery violations); Singh v. Tolz, 380 So.2d 1326 (Fla. 4th DCA 1980)(administration of justice cannot be achieved if there is a conscious disregard of a courts order). Under these circumstances, it was within the trial courts discretion to dismiss the information and thus we affirm the order below.

Affirmed.

SCHWARTZ, C.J., and GERSTEN, J., concur.

SHEPHERD, J.

(dissenting).

I respectfully dissent.

Although the trial court had reason to be frustrated with the conduct of the State in this case, nevertheless I am of the opinion that dismissal was premature, and would remand- this case for the completion of the Richardson hearing.

It has long been the law in this state that upon learning of a potential discovery violation, the trial court has an obligation to conduct a Richardson hearing to examine the possible harm or prejudice to the defendant. Richardson v. State, 246 So.2d 771 (Fla.1971); Evans v. State, 721 So.2d 1208 (Fla. 3d DCA 1998). In its discretion, and only after an adequate inquiry has been made into all of the surrounding circumstances, the trial court may dismiss the case. Richardson, 246 So.2d at 775. Richardson outlined the minimum framework of the.courts inquiry. Namely, the court must consider whether the States violation was inadvertent or willful; whether the -violation was trivial or substantial; and finally, whether the violation affected the defendants ability to properly prepare for trial. Id.; See also Wilson v. State, 789 So.2d 1127, 1129 (Fla. 2d DCA 2001) (outlining Richardson test). Indeed, when faced with a possible discovery violation, the court must conduct a Richardson hearing even when not requested by the defense. Evans v. State, 721 So.2d 1208, 1209-10 (Fla. 3d DCA 1998).

Applying these principles, I am of the view that it was premature to dismiss the .information. Contrary to the suggestion in the majority opinion, the State did not completely ignore the discovery orders of the trial court. Rather, it appears that the prosecutor did make efforts to obtain the necessary discovery in response to the discovery orders and provided it all — albeit in piecemeal fashion. As to the last item produced, the crime scene photos that included the controversial boot prints, the prosecutor sought to explain that her failure to obtain them was due to miscommu-nieation among multiple parties rather than willful conduct that would demand dismissal of the information. Indeed, it is clear from the record of previous hearings that defense counsel knew certain of the photos contained a boot print, and merely asked for their production. Moreover, at these earlier proceedings, defense counsel rebuffed prosecution offers of depositions of State witnesses made in an attempt to avoid precisely the claims of prejudice that later arose. Thus, it is not at all clear to me that absent a completed Richardson hearing, the defense is entitled to a dismissal of the entire case.

Of course, the actual precipitating cause of the dismissal was the failure of the crime scene technician to be present in court on May 20, 2003, pursuant to the courts oral order of the prior day. However, the court should have at least heard argument as to why the technician failed to appear before it ascribed her absence as willful on the part of the State. Instead, the court invited and summarily granted a motion to dismiss by the defendant within seconds of the time the hearing began. Moreover, the court made no effort to determine whether there were any procedures or sanctions short of dismissal that would vitiate any prejudice to the defendant or affront to the court.

In this case, the defendant filed his notice that the speedy trial period under Fla. R.Crim. P. 3.191(a) had expired on May 15, 2003. Thus, the State had fifteen days under the so-called recapture window, i.e., until May 30, 2003, to try its case against the defendant. Armas v. State, 811 So.2d 775 (Fla. 3d DCA 2002); Fla. R.Crim. P. 3.040, 3.191(p)(3) (2004). When the court dismissed the case against the defendant on May 20, 2003, there were ten days left within the recapture window during which appellee could have mitigated, if not completely resolved, any alleged prejudice from learning of the second set of footprints the day before. The defendant still had time to examine the photographs, compare the prints with the boots taken from the defendant at the time of his arrest, or to seek expert advice. At a minimum, the ultimate sanction could have been delayed until it was clear that the defendant was prejudiced by State discovery misconduct.

As the majority recognizes, dismissal represents the most severe form of sanction and is a last resort when no viable alternative exists. State v. Del Gaudio, 445 So.2d 605, 608 (Fla. 3d DCA 1984), rev. denied, 453 So.2d 45 (Fla.1984). The reasoning behind this principle is that the courts interest in punishing the State must be balanced against the even greater public interest in insuring that persons accused of crimes be brought to trial. Del Gaudio, 445 So.2d at 608. Even exclusion of a witness, much less dismissal, is an extreme sanction not to be imposed when other reasonable alternatives are available. Taylor v. State, 643 So.2d 1122, 1123 (Fla. 3d DCA 1994). See also State v. Farley, 788 So.2d 338, 340 (Fla. 5th DCA 2001) (before excluding testimony, the court must consider less alternative sanctions). The civil cases upon which the majority relies involving dismissal as a sanction for discovery violations (see Morales v. Perez, 445 So.2d 393 (Fla. 3d DCA 1984), and Singh v. Tolz, 380 So.2d 1326 (Fla. 4th DCA 1980)) do not have a public interest component and do not appreciate this unusual facet of a criminal case.

While the State may have been close to the line here, my belief is that the trial court acted prematurely in administering the ultimate penalty. If, as suggested by the State, the boot-print photos were “of no value,” then the failure of the crime scene technician to appear may have been of no moment.

Accordingly, I dissent from the extreme sanction of dismissal and would reverse and remand for a full Richardson hearing.

      . While certainly not binding on the defense, the prosecution indicated at the aborted Richardson hearing that it had concluded that the prints were of "no value," meaning apparently that they were of insufficient definition from which to draw any conclusions relevant to the prosecution or defense of the case. The prosecutor also stated that, to the best of her knowledge, the State had done no comparison or analysis using the photos.


text:
    Terry MOORE, Petitioner, v. James CROSBY, Secretary, Florida Department of Corrections, Respondent.
    No. 1D04-2323.
    District Court of Appeal of Florida, First District.
    June 30, 2004.
    Terry Moore, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied as proeedurally barred. See Suggs v. State, 681 So.2d 870 (Fla. 5th DCA 1996).

KAHN, DAVIS and PADOVANO, JJ., concur.


text:
    Ruben HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1811.
    District Court of Appeal of Florida, First District.
    June 30, 2004.
    Ruben Haynes, pro se, appellant.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Having considered appellant’s response filed May 7, 2004, this appeal is hereby dismissed for lack of jurisdiction. See Adams v. State, 801 So.2d 145 (Fla. 1st DCA 2001).

KAHN, DAVIS and PADOVANO, JJ., concur.


text:
    Justin S. HORNE, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D04-0780.
    District Court of Appeal of Florida, First District.
    June 30, 2004.
    Justin S. Horne, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The order of dismissal is reversed on authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). The case is remanded to the Circuit Court for Leon County for further proceedings.

REVERSED and REMANDED.

WEBSTER, VAN NORTWICK, and POLSTON, JJ., concur.


text:
    Leon Marquies WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0468.
    District Court of Appeal of Florida, First District.
    June 30, 2004.
    Appellant, pro se.
    Charlie Crist, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated March 23, 2004, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on January 21, 2004, appealing the Order on the appellant’s postconviction motion, entered on December 11, 2003, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App.9.110(b).

DISMISSED.

ALLEN, PADOVANO and LEWIS, JJ., concur.


text:
    Anthony GAUTIERI, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2195.
    District Court of Appeal of Florida, First District.
    June 30, 2004.
    Anthony Gautieri, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED. Curry v. State, 846 So.2d 1189 (Fla. 5th DCA 2003).

ERVIN, BENTON and LEWIS, JJ., concur.


text:
    Enrique MONTENEGRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3115.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Enrique Montenegro, in proper person.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

Enrique Montenegro appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, following an evidentiary hearing. As the trial courts rulings are supported by competent substantial evidence, we affirm the order denying relief. See Machin v. State, 867 So.2d 514 (Fla. 3d DCA 2004); Williams v. State, 808 So.2d 267, 267 (Fla. 3d DCA 2002); Butler v. State, 807 So.2d 88, 89 (Fla. 3d DCA 2001), review denied, 828 So.2d 384 (Fla.2002).

Affirmed.'


author: FARMER, C.J.

text:
    AGRO DISTRIBUTION, LLC, and Art B. Zola, Appellants, v. Lorraine ROWE, as guardian of Jacqueline Rowe, Appellee.
    No. 4D03-580.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.

      Henry G. Gyden, Sylvia H. Walbolt and Michael K. Winston of Carlton Fields, P.A., St. Petersburg, for appellants.
    Philip M. Burlington of Philip M. Burlington, P.A. and Steven W. Halvorson of Steven W. Halvorson, P.A., West Palm Beach, for appellee.
   FARMER, C.J.

In this personal injury case, the trial court overruled the defendant’s attempted peremptory strike of a juror. Plaintiff had objected to the attempted strike, arguing that the juror was the only member of her race who would be serving on the jury. During voir dire examination, the juror related that she was the principal of a public school for mentally retarded students. She was “very much bonded to all of the students.” One of her students, a second-grader, died in a motor vehicle accident. The child’s grandmother was her close friend and co-worker, and she sympathized with her over the course of three to four years of litigation. It had been only six months since she stopped thinking about this matter on a daily basis. Additionally, her former husband was an attorney who did some personal injury work for injured parties, and she was familiar with his eases. She unequivocally stated, however, that she could “most definitely” remain impartial and unbiased despite these experiences.

When the court asked defense counsel to justify his peremptory strike, counsel stated:

“First of all, that she works as a principal in a school that does have mentally retarded children. So she potentially is going to identify with — with people with those types of injuries. Number two, she has a situation where she had a friend that had a child who was injured or killed on 1-95 in a trucking accident, which she would identify with. And her husband — also her ex-husband was a personal injury attorney. So I think all those reasons are sufficient to — allow us to challenge her for that.”

The trial court denied the challenge, citing the juror’s statement that she could be impartial and saying that “other than color there isn’t any other reason to have her excused.” Defense counsel replied that he believed the asserted grounds “are big reasons to be concerned about her as a juror.” The judge declined to alter his ruling, saying he had “no notes on her” and that he was convinced that “she could be perfectly fair.” We reverse.

The outcome here is controlled by our decision in Allstate Insurance Co. v. Thornton, 781 So.2d 416 (Fla. 4th DCA 2001), which involved the identical issue and surrounding circumstances. There the trial judge found the asserted reason not race neutral because the juror “specifically said he could be fair.” 781 So.2d at 418. This court found:

“The record sheds no negative evidence of any of these relevant circumstances except the racial makeup of the jury. The judge noted that [the juror] assured the court that he could be fair.. However the evaluation of the juror’s credibility is not the test. The test is the credibility of the attorney exercising the strike.... In this instance the judge applied the wrong legal standard — the evaluation of the juror’s credibility. As a result, the denial of appellant’s peremptory strike was clearly erroneous and requires the final judgment be reversed and this cause remanded for a new trial.”

781 So.2d at 419.

Here the trial judge based his decision to disallow the peremptory strike solely on the credibility of the juror. He failed to assess the genuineness of the lawyer’s reasons for using, the peremptory challenge. Under the circumstances, the reasons given by the lawyer are facially race neutral and are supported by the record. The reasons are logical, given the background of the juror. In fact, they seem almost enough even to support excusing the juror for cause. For these reasons, we reverse for a new trial.

KLEIN and HAZOURI, JJ., concur.


text:
    Jethro THOMPKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-4757.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Jethro Thompkins, Sneads, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny rehearing, but withdraw this court’s March 10, 2004 opinion granting Thompkins a belated appeal and substitute the following opinion.

Jethro Thompkins seeks belated appeal of his April 30, 2003 conviction and sentence. Thompkins’s sworn petition alleges defense counsel agreed to process the appeal but did not do so. The state was ordered to show cause why the petition should not be granted. The state’s response indicates that it was unable to contact trial counsel and requests that a commissioner be appointed to make factual findings.

The state explains that, in response to our order to show cause, calls were made to defense counsel on January 22, 2004 and January 27, 2004. While each time a message was left, the content of the messages was not disclosed. Defense counsel returned the January 27th call that same day and left a message for the assigned assistant attorney general. The state then called back on January 28, 2004, the same day the state filed its response to this petition, and left another message. It would appear, therefore, that the attorneys engaged in the commonly know experience of “phone tag.”

We deem this response, without more, insufficient to require an evidentiary hearing and conclude that the state has failed to raise a good faith basis for disputing Thompkins’s sworn allegations. “Absent a showing in the state’s response of a good faith basis for opposing a facially sufficient petition, belated appeal will be granted without appointment of a commissioner.” Reese v. State, 743 So.2d 1104 (Fla. 4th DCA 1998). See also State v. Trowell, 739 So.2d 77, 81 (Fla.1999); Wessells v. State, 737 So.2d 1103 (Fla. 1st DCA 1998); Schubert v. State, 737 So.2d 1102, 1103 (Fla. 1st DCA 1998); Denson v. State, 710 So.2d 144, 145 (Fla. 5th DCA 1998). But see Oliver v. State, 834 So.2d 910, 911-12 (Fla. 5th DCA 2003)(suggest-ing that a state’s allegation that defense counsel could not be reached is sufficient to warrant an evidentiary hearing).

Accordingly, belated appeal is granted.

STONE, KLEIN and SHAHOOD, JJ., concur.


text:
    Charles BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4431.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Charles Bell appeals the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand to the circuit court for resentencing.

Bell was charged with, attempted first degree murder. The information alleged that Bell attempted to kill Clifford Wheeler, “and in the course of the commission of the attempted murder possessed, used, or attempted to use a firearm in violation of Florida Statute 775.087, 782.04(l)(a) and 777.04.”

A jury found Bell guilty of the lesser offense of attempted second degree murder with a firearm. The jury also found that Bell had discharged the firearm. Because of this last finding, the trial judge sentenced Bell to a mandatory minimum period of twenty years consistent with section 775.087(2)(a)2., Florida Statutes (2002).

In his motion, Bell argued that he should not have received the twenty-year mandatory minimum sentence, in that the information did not allege that he “discharged” the firearm.

Bell raised this issue in his direct appeal. This court affirmed the conviction and sentence without opinion. See Bell v. State, 834 So.2d 177 (Fla. 4th DCA 2002). Eight days later, we decided Altieri v. State, 835 So.2d 1181 (Fla. 4th DCA 2002), which is directly on point. Applying a procedural bar to deny Bell relief would work a manifest injustice, in that two cases presenting the identical sentencing issue were decided differently by the same court within days of each other. In State v. McBride, 848 So.2d 287 (Fla.2003), the supreme court determined that a successive rule 3.800(a) motion should not be barred, based on collateral estoppel, when invoking that principle “would result in a manifest injustice.” Id. at 292.

Based on Altieri, we reverse the mandatory minimum sentence and remand to the trial court for resentencing under section 775.087(2)(a)l. The jury’s finding that Bell discharged a firearm satisfies the requirement that he “possessed” it within the meaning of section 775.087(2)(a)l., a factor contained in the charging document.

KLEIN, GROSS and HAZOURI, JJ., concur.


text:
    Theodore SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1579.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Theodore Smith, Jr., Sanderson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Theodore Smith, Jr. appeals the summary denial of his Criminal Rule of Procedure 3.850 motion for postconviction relief. We reverse.

Pursuant to a negotiated guilty plea, Smith was sentenced to fifteen years for each of his first two counts, concurrently, with a ten-year mandatory minimum as a Prison Releasee Reoffender, and to a consecutive term of seven years for his third count, for a total of twenty-two years in prison. In his motion for postconviction relief, he claimed ineffective assistance of counsel in misadvising him that all of his sentences would run concurrently, for a total sentence of fifteen years in prison. Smith alleged that he would not have accepted the plea had he known the total sentence would exceed fifteen years. He asked that the judgment and sentence be set aside, and he be granted a jury trial, on the ground that his plea was involuntarily obtained. The trial court summarily denied the motion without furnishing any explanation or attaching any portions of the record.

Smith’s motion was legally sufficient. A postconviction movant may be entitled to relief in the form of leave to withdraw a plea on the basis of defense counsel’s misrepresentation about the length of a sentence. See State v. Leroux, 689 So.2d 235, 236 (Fla.1996). Accordingly, we reverse and remand for an evidentiary hearing or the attachment of portions of the record that conclusively refute Smith’s ground for relief.

GUNTHER, WARNER and HAZOURI, JJ., concur.


text:
    Linzy CHAVERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4925.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Linzy Chavers, Perry, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Linzy Chavers appeals the trial court’s order summarily denying his rule 3.850 motion for postconviction relief. We affirm in part and reverse in part.

Following a jury trial, defendant was found guilty of selling a substance in lieu of a controlled substance. According to the instant motion, an Officer Castelli testified to arresting defendant in a convenience store after he sold suspect crack cocaine to an undercover officer in the store’s parking lot, and that no other arrests were made at the same time.

Defendant claimed that his trial counsel was ineffective in failing to investigate two potential witnesses for the defense and in failing to utilize exculpatory videotapes. The trial court explained in its summary denial of both grounds that even if defendant’s assertions were true, there was no basis to believe that, if defense counsel had accomplished the tasks, the outcome of the trial would have been affected. The court concluded: “The evidence at the trial was clear and unambiguous that the defendant was selling fake cocaine on the public streets of Riviera Beach and that some of the buyers were undercover police officers.” No portions of the record, however, were attached to support this conclusion.

We agree with the State’s position that defendant’s first claim was legally insufficient. Defendant alleged that counsel should have called the following two defense witnesses: an Officer Morris, who would have testified that another suspect, Peter Albert Miller, was also arrested on the same date, and Miller, who would have corroborated defendant’s trial testimony (that it was Morris who arrested him). Defendant failed to explain how the omission of these witnesses prejudiced the outcome of the trial; even if his own trial testimony would have been corroborated and Castelli’s impeached, he did not explain why testimony as to precisely which officer arrested him and whether or not anyone else was arrested at the same time had anything to do with whether he was guilty as charged.

We reverse, however, as to the second ground wherein defendant claimed counsel was ineffective in failing to utilize exculpatory videotapes that were discussed in discovery. He alleged that during the course of discovery, two videotapes were found that clearly showed the crime scene and the true suspect who made the alleged sale of suspect cocaine. He claimed that the videotapes would have exonerated him of the instant offense, and he stated that he asked his attorney to move to have them placed into evidence. This claim is legally sufficient and should not have been summarily denied without the attachment of portions of the record conclusively refuting it. See Fla. R.Crim. P. 3.850(d).

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

WARNER, POLEN and STEVENSON, JJ., concur.

      . In his reply to the State's response to this court's order to show cause, defendant added the information that Miller was arrested along with him as a suspect in the crime and could have confirmed defendant’s claim that he was not guilty.


text:
    Jared S. FOX, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1942.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We have for review an order revoking the appellant’s probation as a consequence of his failure to pay restitution, failure to report, and his commission of a new crime, i.e., the sale of marijuana. In the instant case, there was insufficient evidence to prove appellant’s willful failure to pay restitution or to report during his probation period. See Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992). There was, however, sufficient evidence establishing that appellant sold marijuana while on probation. Accordingly, we reverse and remand for the trial court to consider whether to revoke appellant’s probation for the sole violation of the sale of marijuana. See Costanz v. State, 740 So.2d 71 (Fla. 4th DCA 1999).

REVERSED and REMANDED.

GUNTHER, STEVENSON and TAYLOR, JJ., concur.


text:
    Corey Austin JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2787.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    Corey A. Jordan, Crestview, Pro Se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Corey Austin Jordan appeals the trial court’s order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Having reviewed the record thoroughly, we find no error and affirm the order on review. The trial court’s order in this matter was extraordinarily thorough and detailed and fully supported by the evidence.

AFFIRMED.

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


text:
    Anthony LONG, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2833.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    Anthony Long, Monticello, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Anthony Long appeals an order of restitution rendered by the trial court. It appears from the record that Mr. Long was not represented by counsel at the hearing. Restitution is part of sentencing. A criminal defendant is entitled have counsel representing him or her at sentencing, including that part of sentencing during which restitution is imposed. See Moore v. State, 868 So.2d 683 (Fla. 5th DCA 2004); Moment v. State, 645 So.2d 502 (Fla. 4th DCA 1994). Accordingly, the order must be reversed.

Mr. Long also argues that the trial court lacked jurisdiction to impose the requirement of restitution against him. Given the procedural history of this case, however, we conclude that the trial court had, and upon remand will still have the jurisdiction to impose restitution.

REVERSED AND REMANDED.

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


text:
    CITY OF COCOA BEACH, Appellant, v. VACATION BEACH, INC., et al, Appellees.
    No. 5D03-2355.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    James A. Fowler and Jamie E. Seaman, of Fowler & O’Quinn, Orlando, for Appellant.
    No Appearance for Appellees.
   GRIFFIN, J.

This is the appeal of an order imposing contempt sanctions against the City of Cocoa Beach. It arose out of a lawsuit commenced on October 16, 2001, by the plaintiff below, Vacation Beach, Inc. [“Vacation Beach”]. Vacation Beach filed a complaint for declaratory judgment and injunctive relief against defendants below, City of Cocoa Beach [“the City”], Fred D. Galey in his capacity as Brevard County Supervisor of Elections, and Paul Fernald. As a property owner, Vacation Beach challenged a voter-initiated referendum to be placed on the ballot for the November 6, 2001, election, which would change the maximum building height and density. Vacation Beach sought a declaratory judgment declaring the referendum void ab initio and removing it from the ballot. One of the challenges to the proposed amendments was that they had not been submitted to the planning board before being placed on the ballot. The City filed an answer to the complaint and a motion to strike on November 1, 2001.

That same day, a hearing was held in the circuit court. The parties entered into a written stipulation before the hearing, agreeing to referendum ballot language; agreeing that the density and height changes in the referendum had not been submitted to the planning board for study or recommendation; and that the planning board had not completed any study, prepared any report or made any recommendations regarding the density and height changes in the referendum. The City noted it was stipulating “without agreeing to either relevance or materiality of the facts.” At the close of the hearing, the parties agreed to allow the election to proceed with the challenged referendum on the ballot, but to stay the enforcement of the referendum if it passed, pending a final hearing on the merits of the lawsuit. The exact language stipulated to was that the parties “would agree to stay enforcement of the charter amendment pending final hearing.”

On November 8, 2001 — nunc pro tunc to November 1, 2001 — the court entered an order granting temporary injunction. The order stated, “Should the referendum contained in the November 6, 2001, election pass, by the required affirmative votes, pursuant to the stipulation of the parties, [the City] is enjoined from enforcing the proposed Charter Amendments contained therein and shall not enforce them until further Order of this Court.” On November 6, 2001, the referenda were approved by the voters.

On April 3, 2002, Vacation Beach filed a motion for contempt of the injunction entered November 1, 2001. The motion alleged in part:

1. On November 7, 2001, this Court entered an Order Granting Temporary Injunction nunc pro tunc to November 1, 2001, enjoining the [City] from enforcing the referendum that is the subject of this action.
2. After the November 1, 2001, hearing, at the City’s November 15, 2001, City Commission meeting, the City initiated procedures for the implementation of a Moratorium halting the issuance of building permits.
3. On December 20, 2001, the City passed a moratorium on the issuance of any building permits in the City. The City’s enactment of the Moratorium is clearly a back-handed attempt to enforce the [height and density] restrictions set forth in the referendum, directly in violation of this Court’s injunction.
4. From a review of the official records of the City, specifically the minutes from the City Commission meetings and Planning Board Meetings, it is clear that the purpose behind the passage of the Moratorium was specifically to allow the City to enforce the height and density limitations set forth in the referendum, despite this Court’s Order Granting Temporary Injunction.
6. As listed in the Moratorium, Ordinance No. 1325, there are numerous exemptions to its enforcement. The City has put up the appearance that there is a moratorium as to building in the City, but the exemptions have watered the Moratorium down so extensively that the only real applicability that remains, is to height and density.

The minutes of the meetings referenced in the motion were attached.

On April 19, 2002, the City filed a motion to set aside the injunction “which was agreed to by the parties herein at hearing on November 7, 2001.” The City alleged as grounds:

1. The above-referenced Injunction, staying the implementation of the referendum passed by the citizens of the City of Cocoa Beach, Florida, was entered pursuant to an agreement by the parties to such a stay.
2. The trial on these matters which was to be held on April 15, 2002, has been continued over the objection of [the City].
3. As a consequence of the continuation, the City no longer consents to the temporary stay, absent a hearing on the matter and a determination by the Court that such a stay was prudent and proper under the circumstances.

It appears, however, that the City never set the motions to lift the temporary injunction for a hearing.

After the contempt hearing held on June 14, 2002, the court granted Vacation Beach’s motion and found that the City was in contempt of its order granting temporary injunction. The court’s order is detailed and includes a finding that “the enactment of the moratorium was nothing more than a thinly veiled attempt by the City to enforce the restrictions contained in the enjoined amendments.” The court said: “While this Court agrees with the proposition cited by the City that legislative ordinances are not the subject of judicial inquiry generally, none of the cases cited by the City address the situation where the legislative action is taken for the specific intent to thwart the terms of a court ordered injunction.” The court found “the City is not free to ignore its obligations under the law and its obligations under its own agreement and under this Court’s order. It cannot do indirectly that which it had agreed and was ordered not to do directly.” The court then reserved ruling on the imposition of sanctions pending a further hearing.

On July 18, 2002, the trial court entered an order on the cross motions for summary judgment on the declaratory judgment complaint, granting Vacation Beach’s motion and denying the City’s motion. The lower court invalidated the amendments on the ground that they violated section 163.3194(2), Florida Statutes, requiring amendments to land use regulations to be referred to the local planning board prior to adoption by the governing body. On August 20, 2002, the City appealed the order on cross motions for summary judgment to this court. In City of Cocoa Beach v. Vacation Beach, Inc., 852 So.2d 358 (Fla. 5th DCA 2003), this court reversed and remanded. This court held that the charter amendments were not invalid under section 163.3194(2), but remanded because there were other grounds asserted below which were not addressed in the lower court’s order nor on appeal which would have to be resolved on remand. Id. at 361.

On September 3, 2002, Vacation Beach filed an emergency motion to hold the City in contempt of court. Vacation Beach alleged that the City disregarded the court’s July 18 contempt order by voting to extend the duration of the moratorium for ninety days and expanding the area subject to the moratorium.

After a hearing on October 30, 2002 — on both the imposition of sanctions pursuant to the court’s order of July 18, 2002, finding the City in contempt, and on Vacation Beach’s emergency motion seeking an order from the court finding the City in contempt for a second time — -the lower court filed an order imposing contempt sanctions against the City. The court ruled that the moratorium and the extension of the moratorium were violations of the court’s July 18, 2002, temporary injunction order, declared both void ab initio, and stated, “Henceforth, in its review of any applications, plans or permits, the City shall not reference any height and/or density limitations or restrictions that were not in effect on October 31, 2001, until further order of the Court.” The court also imposed the following sanctions: (1) the City shall extend Vacation Beach’s site plan for a period of ten months; (2) the City shall pay Vacation Beach’s attorney’s fees in the amount of $9,000 and costs in the amount of $2,400; and (3) the City shall pay a fine of $250,000 for its repeated willful disregard of the court’s orders. This is the order on appeal.

Like the trial court, we are somewhat puzzled by the City’s position below and on appeal. Rather than address the issue of whether the City actually violated the injunction by enacting the moratorium, the City has launched off into an attack on the trial court and what it calls its “egregious” violation of the constitution by “controlling” the City’s legislation in violation of the separation of powers. Reading the City’s brief as broadly as we can, however, we can divine an argument that the agreement of the parties, and the injunction based on that agreement, pertained only to the charter amendments approved pursuant to the challenged referendum and did not by its terms restrict the City’s ability to enact similar limitations by other methods available to the City’s commission. Because we agree with this proposition, we are bound to reverse the appealed order.

Vacation Beach did not challenge the moratorium as being beyond the power of the commission to enact; only that the City was prevented from enacting a moratorium that had the same purpose and effect as the referendum measure whose validity was in litigation and which was the subject of the injunction. We agree with the City that it was not so constrained. To say that the City could not do indirectly what it could not do directly does not solve the question whether the City could do something different but within its power that had the same purpose or effect as the referendum. If the City had the power to issue the moratorium before the referendum litigation and the injunction, nothing we can see prevented them from taking those same measures thereafter. The City did not agree to forebear height and density requirements or to place a moratorium on building. Even if the City intended its moratorium to show contempt of the court’s injunction, it did not because the moratorium was not within the injunction. The City merely agreed to stay enforcement of the charter amendments. The contempt order is vacated.

ORDER VACATED.

SAWAYA, C.J., and SHARP, W„ J., concur.

      . The City is the only defendant involved on appeal.

      . Section 6.01, the proposed amendment on the ballot pertaining to residential density, provided:
      No part of the City of Cocoa Beach shall be zoned to a residential density greater than ten (10) dwelling units per acre for permanent occupancy dwellings, or twenty-eight (28) units per acre for transient lodging establishments (hotels and motels). Buildings in existence, or with an approved construction permit on or before July 19, 2001, may be repaired or rebuilt to a habitable density equivalent to the previously existing density.... Those parts of any ordinances in conflict with this section are hereby repealed.
      Section 6.04, the second proposed amendment on the ballot, pertained to building height limit and provided:
      No structure, no part of any structure, and no attachment to any structure shall be erected to a height greater than forty-five (45) feet above the grade of the building site. Buildings in existence, or with approved construction permit on or before July 19, 2001, may be repaired or rebuilt to a height not to exceed the previously existing habitable height.... Those parts of any ordinances in conflict with this section are hereby repealed.

      . The moratorium — Ordinance No. 1325 — ■ was also attached and provided:
      SECTION 3. Moratorium Imposed.
      (a) Moratorium in effect. A moratorium is hereby effectuated in the area described in Section 2 of this Ordinance. Except as provided in Section 3.(b) of this Ordinance, no application or petition for a comprehensive plan amendment pursuant to Section 163.187, Florida Statutes, as amended, Land Development Regulation proposals or amendments, Development Permits, including, but not limited to, a rezoning or change in zoning district boundaries, special exception, site plan approval, building permit, Development of Regional Impact Application for Development Approval, Florida Quality Development, variance, plat or subdivision approval, shall be accepted, processed, or considered by the City during the time period that the moratorium is in effect.
      (b) Exemptions. The following proposals to amend the Comprehensive Plan or the Land Development Regulations, Development Permits, and applications for Development Permits, shall be exempt from the provisions of this Ordinance:
      (1) Amendment to the Comprehensive Plan proposed by the City to implement the Evaluation and Appraisal Report (“EAR”) pursuant to Section 163.3191, Florida Statutes;
      (2) Site plan application for the purpose of repair, rehabilitation or expansion of an existing structure; provided, that any expansion of an existing structure shall not exceed ten percent (10%) of the gross floor area of an existing structure shall not be exempt from the moratorium provided for by this Ordinance;
      (3) Building Permit or other Development Permit issued pursuant to the City of Cocoa Beach Code for the purpose of repair, rehabilitation or expansion of an existing structure; provided, that any expansion of an existing structure shall not exceed ten percent (10%) of the gross floor area of the structure as said gross floor area exists on the effective date of this Ordinance. Any building permit application or approval providing for the demolition and reconstruction during the term of this moratorium cumulatively amounting to more than ten percent (10%) of the gross floor areas of an existing structure shall not be exempt from the moratorium provided for by this Ordinance;
      (4) Variance for other than height or density except for density variances processed in accordance with the requirement of City Charter Section 6.01;
      (5) Development Order relating to concurrency;
      (6) Development Permit or variance issued for Flood Protection, Coastal Construction Code, or Coastal Setback;
      (7) Development Permit or variance issued for Landscaping and Trees;

        (8) Development Permit or variance issued for Stormwater Management;
      (9) Any Comprehensive Plan amendment or Land Development Regulation proposed by the City and affecting substantially all of the City provided that such amendment does not allow for residential density greater than ten (10) dwelling units per acre for one-family, two-family, or multiple-family dwellings, or transient accommodation density greater than twenty-eight (28) units per acre for transient lodging establishments or hotels and/or motels, and/or provide or allow structures, including parts and attachments, that would be greater than forty-five (45) feet above crown of road;
      (10) Vested rights special permit;
      (11) Construction, repair, or rebuilding or structures in existence or with approved construction permit obtained on or before November 15, 2001;

      . Vacation Beach filed a motion for continuance on April 1, 2002. The City filed a response in opposition to Vacation Beach's motion for continuance on April 5, 2002. On April 15, 2002, the court entered an order to continue the trial. The trial date was moved to the June 10, 2002, docket.

      . Vacation Beach filed a motion for summary final judgment on April 4, 2002. On April 23, 2002, the City filed a response in opposition to Vacation Beach’s motion for summary final judgment and a cross motion for summary final judgment.