text:
    Jay L. POLLEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1437.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.

      Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Michael J. Neimand, Assistant Attorney General, and Alison F. Smith, Certified Legal Intern, for appellee.
    Before LEVY, SHEVIN and RAMIREZ, JJ.
   RAMIREZ, J.

Jay L. Pollen appeals from his convictions for grand theft, escape, and witness tampering. We affirm the convictions for grand theft and witness tampering, but reverse the conviction for escape.

I. FACTS

Boris Mancilla, a security associate at El-mart, saw Pollen enter the store and followed him to the health and beauty department. Pollen removed a plastic shopping bag from his pocket and proceeded to fill it with different types and sizes of eye drops. Pollen then left the store. Mancilla stopped him outside and asked liim to return inside to the security office.’ When Pollen complied, Mancilla explained that a police officer was on his way.

When the police officer arrived, Mancil-la, Pollen and another shoplifter were in the security office. Mancilla then left the office while the officer was filling out his paperwork. Two minutes later, Mancilla saw Pollen running past the registers at the front of the store, followed by the police officer, who then tackled and handcuffed him.

As Pollen was being led from the store, he told Mancilla, “I am going to come back and see you.” Upon hearing this remark, Mancilla felt threatened. Pollen returned to the store a few days later. When Pollen was about to enter the store, Mancilla told Pollen he should not be there, he should stay away. Pollen did not respond and left. Mancilla testified that he was scared when he saw Pollen and considered not testifying.

, Initially, a tally of the merchandise which Pollen took added up to $299.51, which would have been a misdemeanor. The next day, the cashier told Mancilla that the correct total was $302.50. Pollen was subsequently charged with grand theft, resisting an officer without violence, escape, and tampering with a witness. Mancilla was the only witness to testify at trial. The trial court granted Pollen’s motion for judgment of acquittal with respect to resisting an officer without violence, but denied judgments of acquittal as to the other three counts. The jury found Pollen guilty of theft of more than $300, escape, and witness tampering.

II. ESCAPE

Section 944.40, Florida Statutes (2001) provides, in pertinent part, that “[a]ny prisoner ... being transported to or from a place of confinement who escapes or attempts to escape from such confinement commits a felony of the second degree.” Transportation begins when the suspect is placed under arrest. See State v. Ramsey, 475 So.2d 671, 672 (Fla.1985). It has been extended to suspects who flee after being placed under arrest. See Brown v. State, 623 So.2d 800 (Fla. 4th DCA 1993). However, it does not apply to suspects who have merely been detained.

To be convicted of escape, there must first be a valid arrest. See Thomas v. State, 80S So.2d 102, 104 (Fla. 4th DCA 2002). A valid arrest consists of four factors: (1) a purpose or an intention to effect an arrest under real authority; (2) an actual detention of the person being arrested by a person having the present power to control the person arrested; (3) a communication by the arresting officer to the person whose arrest is sought of the intention to effect an arrest; and (4) an understanding by the person whose arrest is sought that it is the intention of the arresting officer to arrest and detain him. Id (citing Kyser v. State, 533 So.2d 285, 287 (Fla.1988)).

The testimony, at best, supported the conclusion that Pollen was detained. Because the police officer did not testify, there was no evidence that Pollen was either under arrest or that the police officer intended to effect an arrest. When Mancilla left the security office, Pollen was being detained for a misdemeanor. Under section 901.28, Florida Statutes (2001), the officer had the option of giving Pollen a notice to appear.

Without testimony from the police officer as to what was communicated to Pollen while they were in the office, there is no evidence of a valid arrest. We do not know if the officer intended to arrest Pollen, or that Pollen knew that the officer intended to arrest him. Running from an officer after being detained may amount to resisting arrest without violence, but without more, does not establish the charge of escape.

III. WITNESS TAMPERING

Pollen’s conviction for witness tampering rested on Mancilla’s testimony that Pollen said he was coming back to see him and in fact came back a few days later. Section 914.22(l)(a), Florida Statutes (2002) prohibits intimidation, physical force, or threats with “intent to cause or induce any person to: (a) Withhold testimony ... from an official investigation or official proceeding.” See also State v. McGraw, 474 So.2d 289 (Fla. 3d DCA 1985).

The State may establish that a person intends to cause or induce another to withhold testimony by circumstantial evidence. See State v. Atkinson, 490 So.2d 1363, 1365 (Fla. 5th DCA 1986). In reviewing a motion for judgment of acquittal, a de novo standard of review applies. See Pagan v. State, 830 So.2d 792 (Fla.2002). Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. See Donaldson v. State, 722 So.2d 177 (Fla.1998). If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. See Banks v. State, 732 So.2d 1065 (Fla.1999). However, if the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence. See Orme v. State, 677 So.2d 258 (Fla.1996).

The defense has offered no explanation for Pollen’s behavior which would be consistent with a reasonable hypothesis of innocence. Pollen’s return visit intimidated Mancilla. Whether a statement or other communication constitutes a true threat which has the probable consequence of causing reasonable apprehension in the hearer is a question of fact for the jury. See Gill v. State, 622 So.2d 92, 93-94 (Fla. 2d DCA 1993). It was not unreasonable for Mancilla to be apprehensive and to consider not testifying.

In Atkinson, the defendant approached the witness’ car, struck the witness in the face, ordered the witness out of the car “to settle the matter.” The court stated that, although it was not clear what “the matter” meant, Atkinson’s actions could be read as an intentional threat that Atkinson would “settle the matter” with his fists rather than in court. This implied that the witness should not testify.

Thus, facially innocent remarks or actions, when viewed in context, may take on a more ominous meaning. Pollen had no reason to return to see Mancilla. His statement could therefore reasonably be interpreted as a threat, and coupled with Pollen’s subsequent visit, can reasonably be interpreted as a concerted effort to dissuade Mancilla from testifying. The legal system should protect witnesses willing to fulfill their civic duty by testifying in court.

IV. CONCLUSION

Because the elements of the crime of escape were not met, Pollen’s motion for judgment of acquittal as to that charge should have been granted. We affirm his convictions for grand theft and witness tampering, and reject the remaining points on appeal.

Affirmed in part, reversed in part.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Darryl JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-1603.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2003.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Robert J. Krauss, Sr. Assistant Attorney General and Dale E. Tarp-ley, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Darryl Johnson appeals the denial of his motion to withdraw his pleas and the judgments and sentences that were entered against him. Because Johnson should have been permitted to withdraw his pleas, we reverse.

Johnson pleaded guilty to two counts of armed robbery without an agreement as to the sentences that would be imposed. He was aware that he faced potential sentences of life imprisonment pursuant to the Prison Releasee Reoffender Punishment Act (the Act), section 775.082(3)(a)(3), Florida Statutes (1997). However, he entered his pleas believing that the trial court could impose lesser sentences based on any mitigation that he could establish or exceptions that might be available under the Act. The State confirmed that no sentencing agreement had been reached and asserted that life sentences were mandatory unless one of the statutory exceptions applied. The trial court accepted Johnson’s pleas and stated that Johnson was facing sentences of “up to life” imprisonment but that there had been no agreement as to what sentences would actually be imposed.

A different judge presided over two hearings that addressed sentencing. At the first, counsel for Johnson reiterated that the pleas were entered with the knowledge that life sentences could be imposed, but he indicated that Johnson entered the pleas anticipating that lesser sentences were possible based on the provisions of the Act and other considerations. The judge indicated that he would postpone sentencing until he could speak with the judge who had taken the pleas. At the second sentencing hearing, the judge imposed concurrent sentences of thirty years’ imprisonment rather than life sentences under the Act.

On appeal, this court affirmed Johnson’s sentences on the basis that the trial court had the discretion to determine whether a defendant should be sentenced as a prison releasee reoffender under the Act. See State v. Johnson, 743 So.2d 45 (Fla. 2d DCA 1999). The Florida Supreme Court reversed in State v. Johnson, 762 So.2d 521 (Fla.2000), citing to State v. Cotton, 769 So.2d 345 (Fla.2000). In Cotton, the supreme court concluded that the Act established minimum mandatory sentences and removed sentencing discretion from the judicial branch. Id. at 347-49. The court stated that it is the state attorney who invokes the mandatory sentencing provisions of the Act and who determines whether extenuating circumstances exist to preclude prosecution under the Act. Id. at 348.

On remand, another judge handled Johnson’s resentencing. Johnson sought to withdraw his pleas asserting that when the pleas were made, sentences of less than life were anticipated and discussed. He entered the pleas believing in and relying on the possibility that lesser sentences could be imposed by the trial court. The trial court denied Johnson’s request to withdraw his pleas and imposed life sentences under the Act.

Johnson argues that the trial court should have allowed him to withdraw his pleas because of his mistake or misapprehension about the sentencing possibilities. We agree.

A trial court should allow a defendant to withdraw a plea when the defendant establishes that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting the defendant’s rights. See Baker v. State, 408 So.2d 686, 687 (Fla. 2d DCA 1982); Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983). Johnson met this standard by establishing that his pleas were based on a misapprehension as to the sentences that the trial court could impose. While life sentences were possible, his pleas were based on his and his counsel’s belief that the trial court had the discretion to impose something other than mandatory life sentences. Johnson and his counsel understood that they would have the opportunity to present information supporting the imposition of lesser sentences, and the State acknowledged that extenuating circumstances could preclude the imposition of life sentences. The judge who accepted the pleas acknowledged that Johnson could present witnesses to speak on his behalf at sentencing, which supports Johnson’s contention that he understood mitigation was possible. We also note that prior to accepting the pleas, the trial court did not advise Johnson that he was subject to minimum mandatory sentences under the Act. See Fla. R.Crim. P. 3.172(c)®.

Under all of the circumstances, Johnson was prejudiced by the trial court’s failure to warn him of the minimum mandatory sentences, see Simmons v. State, 489 So.2d 43, 44 (Fla. 4th DCA 1986), and he entered his pleas based on a mistake or misapprehension concerning the sentences that could be imposed by the trial court. Because the trial court should have permitted Johnson to withdraw his pleas, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

FULMER and KELLY, JJ., Concur.

      . We are mindful of the fact that prior to the supreme court decision in Cotton, the district courts of appeal had been in conflict concerning a trial court’s discretion to determine whether or not to impose a mandatory sentence under the Act. See Cotton, 769 So.2d at 346-47, and the cases cited therein.


author: PER CURIAM.

text:
    CARNIVAL CORPORATION and, Carnival Cruise Lines, Appellants, v. Susan STOWERS, Appellee.
    No. 3D01-1516.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Kaye, Rose & Maltzman, and Jeffrey B. Maltzman, Miami, and Darren W. Friedman, for Appellants.
    Paul M. Hoffman, and Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, and Nancy W. Gregoire, Fort Lauderdale, for appellee.
    Before GERSTEN, GODERICH, and GREEN, JJ.
   PER CURIAM.

Appellants, Carnival Corporation and Carnival Cruise Lines (“Carnival”), appeal an adverse order in a maritime personal injury action brought by a passenger who slipped and fell while on a Carnival cruise ship. We reverse and grant Carnival a new trial because the trial court improperly permitted an expert witness to render an opinion based on unconfirmed data.

Appellee Susan Stowers (“Stowers”) injured her leg and ankle when she slipped and fell on a granite step while on a Carnival cruise ship. Stowers sued Carnival for negligence. She alleged that she slipped on the step after stepping in soapy liquid on a section of carpet in one of the ship’s lounges.

After Stowers allegedly stepped in this liquid, she walked the length of the dry carpeted room and outside to the kiddie pool area to see if the pool had water. She then went back inside the lounge and again walked the length of the carpeted room to the granite step where she slipped and fell. Stowers contended that soapy liquid remained on her shoe from the puddle she stepped in and caused her to slip.

At trial, Ron Zoilo (“Zoilo”), Stow-ers’s engineering expert, gave his opinion as to what caused Stowers to slip. Zoilo opined that Stowers’s shoe retained the liquid throughout her walk over the dry carpet and transferred it to the steps. This made the steps very slippery, which caused Stowers to fall.

Carnival objected to Zoilo being permitted to render his opinion about the carpet’s ability to absorb and/or wick liquid. The trial court permitted Zollo’s testimony in spite of the fact that Zoilo admitted he did not know what material the carpet was made of and he did not perform any tests on the carpet. Further, Zoilo testified that he had no specialized education or training concerning carpet.

To be admissible, an expert’s opinion must be based on valid underlying data which has a proper factual basis. See Carrier v. Ramsey, 714 So.2d 657 (Fla. 5th DCA 1998); Brito v. County of Palm Beach, 753 So.2d 109 (Fla. 4th DCA 1998); Newell v. Best Security Systems, Inc., 560 So.2d 395 (Fla. 4th DCA 1990).

Here, Zoilo admitted that he did not know the composition of the carpet, had not tested the water absorbing properties of the carpet and did not attempt to recreate the incident. Instead, Zoilo based his opinion on the results of coefficient of friction tests he preformed solely on the granite stairs.

Zoilo clearly did not establish the existence of valid underlying data upon which he based his opinion. Because this opinion lacked a proper factual basis, the trial court erred when it allowed Zoilo to opine that Stowers’s shoes retained liquid which caused her to slip after her walk across the approximately 120'-140' of dry carpet. See Carrier v. Ramsey, 714 So.2d 657 (Fla. 5th DCA 1998).

Reversed and remanded for a new trial.


text:
    The STATE of Florida, Appellant, v. R.E.M., a juvenile, Appellee.
    No. 3D02-1052.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.

      Charlie Crist, Attorney General and ■ Thomas C. Mielke, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Manuel Alvarez, Assistant Public Defender, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See State v. Garcia, 431 So.2d 651 (Fla. 3d DCA 1983).


author: SCHWARTZ, Chief Judge.

text:
    AVIS RENT A CAR SYSTEM, INC., Petitioner, v. Leonel CRUZ and Juan Carlos Martinez, Respondents.
    No. 3D02-2927.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    George J.F. Werner (Clearwater), for petitioner.
    Charles F. Atwood, III, Miami, for respondents.
    Before SCHWARTZ, C.J, and JORGENSON and SHEVIN, JJ.
   SCHWARTZ, Chief Judge.

The petition for certiorari is treated as an application for mandamus to require the Appellate Division of the Miami-Dade Circuit Court to hear and consider the petitioner’s appeal from a February 20, 2002 Miami-Dade County court order dropping a party defendant and is granted. See Griffin v. Sistuenck, 816 So.2d 600 (Fla.2002); Sky Lake Gardens Recreation, Inc. v. District Court of Appeal, Third District, 511 So.2d 293 (Fla.1987).

The appellate division dismissed the appeal on the erroneous theory that a motion for rehearing timely filed in the county court was unauthorized and did not extend the time of rendition of the order on appeal so as to render the notice, which was filed on June 3, 2002, within thirty days of the denial of rehearing on May 2, 2002, untimely. In fact, however, the county court order dropping a party defendant is an appealable final judgment, Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315, 318 (Fla. 3d DCA 1987), and cases collected, to which a motion for rehearing properly lies. Laytner v. Humble Oil & Refining Co., 262 So.2d 675 (Fla.1972); Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386 (Fla. 3d DCA 1986), review denied, 494 So.2d 1153 (Fla.1986). That motion therefore properly tolled the appeal time so that, contrary to the ruling below, the notice of appeal was timely filed. See Fla.R.App.P. 9.020(h)(1). The appellate division is therefore ordered to reinstate the appeal and decide it on its merits.

Mandamus granted.

      . The fact that the notice of appeal erroneously designated the order as a "non-final order” is immaterial. See Austin v. B.J. Apparel Corp., 527 So.2d 206 (Fla. 3d DCA 1987); Puga v. Suave Shoe Corp., 417 So.2d 678 (Fla. 3d DCA 1981).


text:
    Ernesto LICERIO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-298.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Gary K. Milligan and Frank J. Ingrassia, Assistant Attorneys General, for appellee.
    Before GERSTEN, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


text:
    Hernan D. PINEDA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1488.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Susan W. Van Dusen, for appellant.
    Charlie Crist, Attorney General, and Michael J. Neimand, Assistant Attorney General (Fort Lauderdale), for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).


text:
    Clifton Deon SHEPPARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D00-1658.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Clifton Deon Sheppard appeals from final judgments of conviction and entry of sentences. We affirm.

Although we deplore the prosecutorial misconduct evident in this case, the defendant elected to make no contemporaneous objections. The unobjected-to comments complained of do not rise to the level of fundamental error; they did not destroy the essential fairness of the trial. See Rogers v. State, 783 So.2d 980, 1002 (Fla.2001); Kilgore v. State, 688 So.2d 895, 898 (Fla.1996); Scoggins v. State, 691 So.2d 1185, 1189 (Fla. 4th DCA 1997)(“Funda-mental error has been defined as one that goes to the essence of a fair and impartial trial, error so fundamentally unfair as to amount to a denial of due process.”).

Affirmed.

      . See Guerra v. State, 813 So.2d 112 (Fla. 3d DCA 2002); Rodriguez v. State, 794 So.2d 711 (Fla. 3d DCA 2001)(Ramirez, J., concurring).


author: PER CURIAM. CASANUEVA, Judge,

text:
    Reginald KITT, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-1545.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2003.

      James Marion Moorman, Public Defender, and Anthony C. Musto, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed.

ALTENBERND and KELLY, JJ., Concur.

CASANUEVA, J., Concurs with opinion.

CASANUEVA, Judge,

Concurring with opinion.

I fully concur in the court's affirmance. I write to discuss an evidentiary issue of some concern.

Mr. Kitt was charged with grand theft of a trailer valued at three hundred dollars or more. At trial, the value of the trailer was hotly disputed; Mr. Kitt claimed that he should have been found guilty of petit theft, at most.

In addition to photographs taken of the trailer when it was recovered, the State presented the testimony of Terry Camp-field, the trailer’s owner; Donald Ray Smith, the salesman who sold Mr. Camp-field the trailer; and David Cope, one of Mr. Campfield’s employees. Through these witnesses the State presented evidence of the condition of the trailer when it was new and at the time it was stolen, not even three months later. Mr. Camp-field testified that he paid $1760 for the new, customized trailer in March 1999. He used it for hauling trash and often left it outdoors at construction sites, so it sustained substantial wear and ’tear. Mr. Cope testified that he had accidentally damaged the front of the trailer by ramming it with a forklift and tearing a hole in it. The trailer was scratched, was rusted in two places, and had no hubcaps. Prominently painted on its side were the number “10” and an advertisement for the business that said “Light and Heavy Hauling.”

Although the State’s witnesses presented evidence of original 'market cost,- the manner in which it had been used, and its general condition, they were not specifically questioned about the amount of depreciation or the trailer’s market value at the time of the theft. Thus, the issue was whether the trailer’s value had been reduced below ■ the grand theft threshold.

An essential element of the crime of grand theft in the third degree is proof that the value of the property stolen is three hundred dollars or more. § 812.014(2)(c), Fla. Stat. (1997). “ ‘Proof of the element of value is essential to a conviction for grand theft and must be established by the state beyond and to the exclusion of every reasonable doubt.’ ” Toler v. State, 779 So.2d 594, 595 (Fla. 2d DCA 2001) (quoting Evans v. State, 452 So.2d 1040, 1041 (Fla. 2d DCA 1984)).

To prove value, the State is required to establish the market value of the stolen property at the time of its unauthorized taking. Gilbert v. State, 817 So.2d 980, 982 (Fla. 4th DCA 2002). Generally, the owner of property is presumed to be competent to testify as to the value of his stolen property. Platt v. State, 291 So.2d 96, 99 (Fla. 2d DCA 1974). However, if the State fails or is otherwise unable to present direct testimony of the property’s market value, “proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.” Gilbert, 817 So.2d at 982 (citing Negron v. State, 306 So.2d 104, 108 (Fla.1974), receded from on other grounds, Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); and Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983)).

In Jackson v. State, 413 So.2d 112 (Fla. 2d DCA 1982), this court crafted a narrow exception for certain extraordinary cases where specific proof of value is missing. We held in Jackson that where, by the very nature of the property stolen, reasonable persons could not doubt that its value exceeded the statutory threshold of value for grand theft, the State’s proof would be deemed sufficient. In Jackson, the item stolen was a 37-foot 1980 Hunter sailboat less than one year old. The sailboat’s appraised value of $55,000 was not admissible based upon a well-taken hearsay objection. However, the court cautioned that this exception should apply only in those instances when the minimum value is un-disputable.

In this case, although the witnesses testified regarding the trailer’s price when new and its physical condition, there was no testimony as to its market value at the time it was stolen, after it had sustained what the owner admitted was a great deal of wear and tear. However, the State’s photographs of the trailer from all angles supplied the missing link to determine value. From these pictures the jury could evaluate the trailer’s value and condition, particularly the damage that it sustained while in Mr. Kitt’s possession. The photographs demonstrate that the trailer was a substantial piece of inventory in Mr. Campfield’s business and was worth well over three hundred dollars despite the wear and tear it had endured. Thus, Mr. Kitt’s challenge to his conviction based upon the value of the stolen property has no merit.


author: THOMPSON, C.J.

text:
    Brian BOGERT, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2793.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.

      James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, C.J.

Brian Bogert appeals portions of a restitution order imposed by the trial court after he entered pleas of guilty as charged to dealing in stolen property and grand theft pursuant to a plea agreement. He contends on appeal that the restitution order was erroneous because there is no nexus between the amount of restitution ordered and his criminal activity. Bogert also contends that the trial court did not establish that he had the ability to pay $100 per month restitution. We affirm.

Bogert confessed to receiving and pawning stolen property. He admitted buying electronic equipment and personal property stolen from two separate victims’ cars. The stolen equipment and personal items included CD players, radios, CDs, woofers, speakers, personal grooming articles, and gym clothes. In his confession, Bogert stated he presented as his own some of the stolen items to pawn shops. At each pawn shop, he was fingerprinted and presented his identification before he received money for the pawned equipment. He also stated in his confession that he purchased the equipment from the thief knowing that it had been stolen. Further, at the time of his arrest, additional items stolen from the same victims were found in his home. The victims of the crimes identified their property and stated they had repurchased some of it from the pawn shops to which Bogert had taken it. Bogert signed a plea agreement admitting his guilt and- agreeing to pay restitution to the two victims. The trial court accepted his pleas, withheld adjudication, and placed him on probation for five years. A hearing was scheduled to establish the amount of restitution.

At the hearing, the victims testified about the theft of their property, and the purchase price of the equipment and personal articles in the cars. Each testified how they redeemed some of the stolen property from pawn shops where Bogert had presented the property as his own. The trial court determined the reasonable value of the stolen property, deducted the value of the property returned to the victims, and imposed restitution of $764.66 for the benefit of one victim and $390 for the benefit of the other. Before imposing the restitution amount, the trial court heard testimony that Bogert was employed at a body shop. Restitution was set at the rate of $50 per month per victim. Bogert objected stating he had a minor child he was obligated to support and that $100 a month was excessive.

On appeal, Bogert contends that there was no nexus between the restitution and the crimes he committed. He argues that specific items were alleged in the information and he was being required to make restitution for items he had not received from the actual thief and which had not been alleged in the information. He argues that Florida case law only allows the trial court to set restitution for items actually stolen or mentioned in the information and cites Mansingh v. State, 588 So.2d 636 (Fla. 1st DCA 1991), and Hamm v. State, 403 So.2d 1155, 1156 (Fla. 1st DCA 1981) to support his argument. We disagree with this contention for several reasons.

First, Bogert admitted receiving the victims’ property knowing it was stolen. Although not the thief, he was well aware that the property had been taken during automobile burglaries. Second, some of the stolen property was recovered in his home. Finally, additional stolen property was recovered from pawn shops where Bogert was fingerprinted and had used his own identification before exchanging the property for money. The nexus between his crime and the restitution is irrefutable. The nexus having been established, the next question is whether Bogart can be required to pay restitution for articles not alleged in the information.

Section 775.089(l)(a), Florida Statutes, allows the trial court to require restitution for damage or loss caused “directly or indirectly” by the defendant. Bogart was charged with dealing in stolen property and grand theft. We have previously held that a defendant receiving stolen property and pawning it is sufficiently “related” to the victim’s loss to justify restitution. See Dowdy v. State, 700 So.2d 409 (Fla. 5th DCA 1997); see also Chapman v. State, 733 So.2d 1055 (Fla. 2d DCA 1999); A.G. v. State, 718 So.2d 854 (Fla. 4th DCA 1998). Moreover, we note that Bogert signed a plea agreement stating that he would pay restitution. This agreement is binding upon Bogart and may require him to pay restitution for crimes with which he was not charged. § 775.089(l)(b)2, Fla. Stat.

Bogart next argues that the trial court did not make a determination of his ability to pay restitution. He cites State v. Bleckinger, 746 So.2d 553 (Fla. 5th DCA 1999) as the basis for argument. We do not read Bleckinger as support for this argument, and it is easily distinguishable. Bleckinger was a case in which the state appealed a downward departure sentence. One of the oral reasons given for the departure was “the need for restitution in lieu of imprisonment.” Id. at 554. This court held that there was no testimony from the victim that restitution was needed or expected. The victim testified that she believed the reason the defendant had stolen from the company was his need to support his family. She did not testify that he should remain free to pay restitution Id. at 555. This court reversed the downward departure and returned the case to the trial court to impose a guideline sentence. Id. at 557. Here, the trial court found that Bogert was employed at Coastal Mitsubishi doing body work on automobiles and that $100 per month was not an onerous burden. Because a trial court is required to order restitution unless it finds clear and compelling reasons not to order such restitution, we find no abuse of discretion. § 775.089(l)(a)2, Fla. Stat.

AFFIRMED.

SHARP, W. and PLEUS, JJ„ concur.

      . § 812.019(1), Fla. Stat.

      . § 812.014(1), (2)(c), Fla. Stat.

      . (l)(a) In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
      1. Damage or loss caused directly or indirectly by the defendant’s offense; and
      2. Damage or loss related to the defendant's criminal episode, unless it finds clear and compelling reasons not to order such restitution. Restitution may be monetary or nonmonetary restitution. The court shall make the payment of restitution a condition of probation in accordance with s. 948.02.

      2. An order of restitution entered as part of a plea agreement is as definitive and binding as any other order of restitution, and a statement to such effect must be made part of the plea agreement. A plea agreement may contain provisions that order restitution relating to criminal offenses committed by the defendant to which the defendant did not specifically enter a plea.
      (c) The term "victim” as used in this section and in any provision of law relation to restitution means each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant's offense or criminal episode....


text:
    Albert K. MORRELL, Sr., Millicent Morrell, et al, Appellants, v. WAYNE FRIER MANUFACTURED HOME CENTER, etc., et al, Appellees.
    No. 5D02-105.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.

      Kevin K. Dixon of Brannen, Stillwell & Perrin, P.A., Inverness, for Appellants.
    Frank C. Amatea, Ocala, for Appellees.
   THOMPSON, C.J.

Millicent and Albert K. Morrell, Sr., appeal an order granting the motion of defendants Wayne Frier Manufactured Home Center of Homosassa Springs, Inc., and Wayne Frier Mobile Home Sales, Inc. (“Frier”), to require arbitration of the Morrells’ complaint against Frier. We reverse.

The Morrells, along with Joseph and Kathleen Stafford (collectively “plaintiffs”) sued Frier under The Motor Vehicle Retail Sales Finance Act, Chapter 520, Florida Statutes. They alleged that the Staffords had wanted to purchase a mobile home from Frier to place on their land. The Morrells, who were Kathleen Stafford’s parents, agreed to co-sign the credit application, and signed the documents given to them by Frier. After the home was placed on the Staffords’ land, the plaintiffs discovered that the Morrells were not co-signors, but were the owners of the mobile home and the sole obligors on the note. They alleged that Frier had altered the credit application submitted by the Mor-rells, resulting in an overstatement of their income by $2000. Further, the plaintiffs discovered that instead of the model contracted for, a five bedroom home with a fireplace, Frier delivered a four bedroom model without a fireplace.

The complaint was served on 3 October 2000. Frier answered the complaint in October 2000, and asserted as an affirmative defense that the Staffords were not signatories to the contract, an apparent contention that the Staffords did not have standing to sue under chapter 520. Frier also filed a motion to dismiss the complaint as to the Staffords, on the ground that the Staffords were not signatories to the contract and therefore had no cause of action under chapter 520. On 4 June 2001, the plaintiffs filed notice that the action was ready for trial. A status conference was held on 1 August 2000, and the attorneys for all parties attended. On 2 August 2000, the court issued an “Order Setting Case for Mediation Conference, Discovery Cut Off Date, Pretrial Conference and Trial.” Among other things, this order set a pre-trial conference for 28 November 2001, and required all attorneys to attend and to be accompanied by someone authorized to settle. The attorneys were required to present all of the documentary evidence to be introduced at trial, a synopsis of testimony, and requests for preliminary rulings. The case was set for trial during the 10 December 2001 docket.

In July 2001, the plaintiffs requested production of documents, and in August 2001, the defendants complied. Twice in July 2001, Frier noticed the plaintiffs’ depositions, but these were apparently canceled. Also in July, Frier noticed a 14 August 2001 hearing on its motion to dismiss. It does not appear that this hearing was ever held. In August 2001, Frier set the plaintiffs’ depositions for 18 September 2001, but four days before the depositions were to be taken, they were rescheduled by Frier for the same day but a different time. Apparently, these depositions were also canceled. The plaintiffs moved to amend their complaint to add a count for fraud based on the allegations made with respect to their claim under chapter 520. In September 2001, Frier served its motion to stay the proceedings and refer the matter to arbitration. In December 2001, the court entered an order allowing the plaintiffs to amend their complaint. On that date, the court also entered the order on appeal, which referred the matter to arbitration.

A contractual right to arbitrate a dispute may be waived. See e.g., Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678 (Fla.1978); Graham Contracting, Inc. v. Flagler County, 444 So.2d 971 (Fla. 5th DCA 1983). In ruling on a motion to compel arbitration, a court must determine whether: (1) a valid written agreement containing an arbitration clause exists; (2) an arbitrable issue exists; and (3) the right to arbitration has been waived. North American Van Lines v. Collyer, 616 So.2d 177 (Fla. 5th DCA 1993). A party who opposes arbitration need not demonstrate actual prejudice unless waiver is premised on delay in asserting the right. Beverly Hills Development Corp. v. George Wimpey of Florida, Inc., 661 So.2d 969 (Fla. 5th DCA 1995).

A party waives its right to arbitrate by: (1) actively participating in the lawsuit; or (2) taking action which is inconsistent with the right to arbitrate. Klosters Rederi; R.W. Roberts Construction Co., Inc. v. Masters & Co., Inc., 403 So.2d 1114 (Fla. 5th DCA 1981) (the defendant’s motion to transfer the action, a contention that the case was in the court of the wrong county, rather than that the case should not be in court at all, waived the right to arbitration). Compare Mike Bradford & Co. v. Gulf States Steel Co., 184 So.2d 911 (Fla. 3d DCA 1966) (waiver where the defendant submitted an answer and a counterclaim without raising the issue of arbitration, allowed the cause to proceed for five months, and allowed a jury to be impaneled); King v. Thompson & McKinnon, Auchincloss, Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977) (waiver where the defendant repudiated the right to arbitration in the form of an answer to the cross-claim without a demand for arbitration, where the opposing party had submitted extensive requests for discovery, and where the cross-defendant did not move to compel arbitration until nearly a year after the cross-claim was filed); Marthame Sanders & Co. v. 100 West Madison Corp., 401 So.2d 1145 (Fla. 4th DCA 1981) (waiver where the defendant answered and counterclaimed, participated in depositions, interrogatories, and document production, and where the defendant did not file its motion to compel arbitration until the third continued date of trial, over three years after the complaint was filed); Transamerica Insurance Co. v. Weed, 420 So.2d 370 (Fla. 1st DCA 1982) (waiver where the defendant answered the complaint without specifically mentioning the arbitration agreement, failed to object to the plaintiffs motion to set the case for trial, made two separate settlement offers, and did not move to compel arbitration until almost four months after the complaint was filed, and where the plaintiff filed a detailed statement of inventory loss); Bared and Co., Inc. v. Specialty Maintenance and Construction, Inc., 610 So.2d 1 (Fla. 2d DCA 1992) (waiver where the defendant filed an answer and a cross-claim without raising the arbitration issue); Breckenridge v. Farber, 640 So.2d 208 (Fla. 4th DCA 1994) (waiver where the defendant answered without demanding arbitration); Sterling Condominium Ass’n. v. Herrera, 690 So.2d 703 (Fla. 3d DCA 1997) (waiver where the defendant filed an answer, affirmative defenses, and a counterclaim, and where the defendant actively participated in the litigation for over two years and did not move to compel arbitration until the case was already set for trial); Woodall v. Green Tree Financial Servicing Corp., 755 So.2d 681 (Fla. 4th DCA 1999) (waiver where the defendants responded to the complaint by filing a motion for summary judgment which was directed to the merits).

In the instant case, Frier filed an answer, an affirmative defense, and a motion to dismiss which addressed the merits of the plaintiffs’ case and which did not assert the right to arbitrate. Frier allowed the litigation to reach the point at which a case management conference was held, and at which the case was set for mediation and trial. Frier and the plaintiffs engaged in discovery and submitted their witness lists, and Frier did not assert the right to arbitrate until the eve of trial, nearly a year after the complaint was served on it. Under these circumstances, we conclude that Frier waived its asserted right to arbitration. The fact that the plaintiffs filed an amended complaint does nothing to revive Frier’s right to arbitration. Compare Hawkins v. James D. Eckert, P.A., 738 So.2d 1002 (Fla. 2d DCA 1999) (filing of counterclaim did not revive a party’s previously waived right to arbitration).

REVERSED.

SHARP, W. and SAWAYA, JJ., concur.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Gerald E. CLARKE, Appellee.
    No. 2D00-23.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Richard Fishkind, Assistant Attorney General, Tampa, for Appellant.
    Joseph T. Hobson, of McFarland, Gould, Lyons & Sullivan, Clearwater, for Appel-lee.
   DAVIS, Judge.

The State of Florida appeals the trial court’s order discharging Gerald E. Clarke from DUI manslaughter charges based on a violation of his speedy trial rights.

On January 26, 1998, Clarke was charged with DUI manslaughter for causing the death of Nicholas Aristizabal on November 9, 1997. After the trial court excluded evidence of the legal blood draw, the State sought to present the results of the medical blood draw by submitting Clarke’s medical records from the hospital. Clarke objected, and the trial court ruled that the medical blood draw results would be excluded unless the State could satisfy the predicates described in Robertson v. State, 604 So.2d 783 (Fla.1992), and State v. Bender, 382 So.2d 697 (Fla.1980). In reaching this decision, the trial court relied on this court’s decision in Michie v. State, 632 So.2d 1106 (Fla. 2d DCA 1994).

After receiving this court’s decision affirming the exclusion of the results of the legal blood draw on October 25, 1999, Clarke filed his demand for speedy trial. Although the State timely obtained the medical records, it had difficulty in determining the witnesses who would be needed to establish the Robertson/Bender predicate as required by the trial court’s ruling. On the morning of trial, December 14, 1999, Clarke objected to certain witnesses and documents, alleging that the State had failed to timely comply with the rules of discovery. The trial court held a Richardson hearing and found that since the State had not attempted to find these witnesses while the legal blood issue was on appeal, the failure to timely disclose witnesses’ names and documents was a substantial discovery violation resulting in prejudice to Clarke. Accordingly, the trial court excluded the documents and one of the State’s essential witnesses.

As a result of these rulings, the first requiring the State to establish the predicate and the second excluding essential evidence, the State advised that it could not proceed to trial and moved to extend speedy trial to allow appellate certiorari review of the trial court’s decisions. Clarke objected, and the trial court denied the request for an extension. When Clarke’s speedy trial time period expired, he moved for discharge. The trial court granted his motion, and the State appealed.

When the State requests an extension of speedy trial for the purpose of pursuing an interlocutory appeal of a trial court’s ruling, “a trial court must grant this extension for the period necessary to complete the appellate proceedings, unless it makes a factual determination that the appeal is being taken for the purpose of delay, upon grounds which are frivolous and not fairly debatable.” State v. Bar nett, 366 So.2d 411, 416 (Fla.1978). Additionally, the Florida Supreme Court has ruled that the language “for appeals by the state” contained in Florida Rule of Criminal Procedure 3.191(I)(4) includes “all appellate applications made by the state.” Nelson v. State, 414 So.2d 505 at 508 (Fla.1982). Thus, the mandate of Barnett applies to petitions seeking certiorari review as well as to interlocutory appeals.

Our decision then turns on whether the record here reflects that the trial judge made a factual finding that the petition was filed for the purpose of delay and was frivolous and not fairly debatable. Although the trial court did not make these specific findings, it is clear from the record that the trial judge was frustrated with the State’s lack of diligence in determining the proper witness needed to present its case. However, the record does not suggest that he reached the conclusion that the petition was filed in bad faith. Accordingly, we must reverse for it was error for the trial court to deny the request for an extension of speedy trial while the petition was being considered in the appellate court.

Reversed and remanded for further proceedings consistent with this opinion.

WHATLEY and KELLY, JJ., Concur.

      . The trial court found that the officer did not have probable cause to order the blood draw. This court affirmed that decision. See State v. Clarke, 744 So.2d 1003 (Fla. 2d DCA 1999). The appeal process took approximately one ' year.

      . Robertson held that evidence of blood-alcohol test results produced by an unlicensed expert may be admitted into evidence if the blood was drawn by a person authorized to do so by section 316.1933, Florida Statutes (1987), and if the State establishes the predicate spelled out in Bender. Robertson, 604 So.2d at 791. The Bender predicate consists of three prongs: "(1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment, and (3) expert testimony was presented concerning the meaning of the test.” Bender, 382 So.2d at 699.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . The State petitioned for writ of certiorari to review both the December 13, 1999, order, which excluded the medical blood results unless the Robertson/Bender predicate was established, and the order of December 14, 1999, finding the Richardson violation.

      . Nelson refers to rule 3.191(d)(2) which is the same paragraph as 3.191(f)(4) prior to the rewriting and renumbering of the rule in 1980.

      . It is noted that this court has previously determined that "an appeal by the State” as used in rule 3.191(m) does not include extraordinary writs. See Hochstrasser v. Demers, 491 So.2d 1245 (Fla. 2d DCA 1986).

      . This court has previously dismissed the State’s petition for writ of certiorari as moot due to the trial court's granting of the discharge. With this reversal of the order of discharge and remand for further proceedings, the State is once again in the posture of proceeding with the prosecution. If the State desires to challenge the trial court's prior rulings regarding the necessity of establishing the Robertson/Bender predicate and the exclusion of the witness and documents, the State should file its motion with the trial court and, only after obtaining ruling, petition this court for certiorari review, if necessary.


author: NORTHCUTT, Judge. SILBERMAN, Judge,

text:
    Jason FAULKNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-5437.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Jason Faulkner, charged with possessing cocaine and drug paraphernalia, moved to suppress the evidence seized from him during a roadside search. The circuit court denied the motion. Faulkner then pleaded no contest to the charges while reserving his right to appeal the disposi-tive suppression issue. We reverse.

The evidence at the hearing on Faulkner’s motion to suppress disclosed that Faulkner was riding as a passenger in his own car when Polk County Sheriffs Deputy Christopher Gilbert observed it running a stop sign. After Deputy Gilbert stopped the car, Faulkner attempted to get out. Deputy Gilbert ordered him to remain in the vehicle. At the hearing the deputy recounted that he did this for general safety purposes; he did not suspect Faulkner of criminal conduct or of being a threat. Deputy Gilbert proceeded to investigate the driver who, it developed, had no driver’s license. He then had Faulkner come to the rear of the patrol car and asked for his identification. At this point, Deputy Gilbert realized that Faulkner was listed on the vehicle registration as its owner. He asked Faulkner why he had allowed an unlicensed driver to operate the car. Faulkner explained that he had been drinking and did not feel comfortable driving. He had asked his friend to drive without realizing that the friend had no license.

Deputy Gilbert then asked Faulkner whether he was carrying a weapon or drugs. Faulkner said he was not. The deputy asked Faulkner if he could pat him down, and Faulkner agreed. W(hen Deputy Gilbert patted Faulkner’s pocket, he felt a hard, round object, which he asked Faulkner to identify. Faulkner told him it was a “socket.” Deputy Gilbert asked to see it, whereupon Faulkner retrieved the item from his pocket, voiced the observation that he was “screwed,” and handed Deputy Gilbert a socket-wrench socket. The socket had electrical tape wrapped around one end and contained a wire mesh insert. Deputy Gilbert testified that he was aware that this type of apparatus was used to smoke illegal drugs.

Faulkner’s counsel argued that his consent to the search and to the production of the socket were products of an illegal detention that began when Deputy Gilbert ordered him to stay inside the car. For this proposition he relied on the Fourth District’s Wilson v. State, 734 So.2d 1107 (Fla. 4th DCA 1999), which holds that an officer conducting a traffic stop may not order a passenger to remain in the vehicle absent a reasonable suspicion that the passenger has engaged in criminal activity or poses a threat to the officer’s safety. The circuit court rejected this argument, as follows:

The Defendant was determined to be the registered owner of the car. Pursuant to Florida Statute 322.36, a vehicle owner commits a second degree misdemeanor when he allows someone to drive his vehicle if he is aware that the person has a suspended license. The State argues that this justified the officer’s order to have the Defendant remain in the car. The Court agrees. Not only was the passenger a witness to the driver’s crime of driving on a suspended license and the civil traffic infraction, but he also was the subject of a criminal investigation. Since this satisfies the “reasonable suspicion of criminal activity” requirement of Wilson, the Court finds that the detention was lawful and that the evidence was obtained legally as a result of Defendant’s consent which Defendant did not deny.

Of course, the problem with that analysis is that Deputy Gilbert ordered Faulkner to stay in the car before he knew either that the driver was not licensed or that Faulkner owned the vehicle. As the deputy acknowledged, when directing Faulkner to remain in the car he did not suspect him of criminal conduct or of being a threat.

In Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the United States Supreme Court held that for general safety purposes an officer may routinely order the driver of a lawfully stopped vehicle to exit the vehicle. The Court reached this conclusion by balancing the public interest in officer safety against the driver’s interest in being free from arbitrary interference by law enforcement. The Court noted that when the vehicle is already stopped, the slight additional intrusion associated with being directed to exit the car “can only be described as de minimis.” Mimms, 434 U.S. at 111, 98 S.Ct. 330. The Court extended this reasoning to passengers in Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Applying the Mimms balancing test, the Court held that passengers, too, may be required to exit a vehicle that has been lawfully stopped for a traffic offense.

As the Fourth District noted in its Wilson decision, however, “a command preventing an innocent passenger from leaving the scene of a traffic stop to continue on his independent way is a greater intrusion upon personal liberty than an order simply directing a passenger out of the vehicle.” Wilson, 734 So.2d at 1111— 12. The court observed that such “cannot be classified as a de minimis intrusion.” Id. at 1112. Rather, the court wrote, it is an unreasonable interference. Id. We agree. When an innocent passenger is directed to exit a vehicle, he is detained only in a legal sense; his movement is restricted merely to the extent that there is a single place he may not go. But a passenger who is ordered to remain in the vehicle suffers a far greater intrusion upon his personal liberty because he is forbidden go anywhere other than that one place. In other words, he is fully detained in both law and fact. See Barrios v. State, 807 So.2d 814 (Fla. 4th DCA 2002) (holding that innocent passenger’s arrest for resisting a police officer without violence was improper because passenger could resist officer’s direction to stand at the side of the vehicle). We conclude that it is illegal to detain a passenger in this manner absent a reasonable suspicion that the passenger has committed a crime or is a threat.

The circuit court’s error in this regard necessarily affected its assessment of Faulkner’s consent to the patdown and the request to produce the socket for Deputy Gilbert’s inspection. Generally, the State bears the burden to prove the volun-tariness of a consent to search by a preponderance of evidence. Reynolds v. State, 592 So.2d 1082 (Fla.1992). But when the consent follows illegal police activity, the State’s burden is significantly heavier. In such circumstances the consent is presumptively involuntary, and the State may overcome this presumption only by clear and convincing proof of an unequivocal break in the chain of illegality sufficient to dissipate the taint of the prior illegal police action. Reynolds, 592 So.2d at 1086; Norman v. State, 379 So.2d 643, 647 (Fla.1980).

Here, the State proved no such break in the chain of illegality that began when the deputy ordered Faulkner to stay inside the car. To the contrary, the detention continued when the deputy ordered Faulkner to the rear of the patrol car and questioned him — still without a reasonable suspicion that Faulkner had engaged in criminal conduct or posed a threat. For this reason, the presumption remained that Faulkner’s consent was involuntary, and the circuit court should have granted his motion to suppress. See Davis v. State, 744 So.2d 586 (Fla. 2d DCA 1999); Satterfield v. State, 609 So.2d 157 (Fla. 2d DCA 1992); Reed v. State, 577 So.2d 1362 (Fla. 2d DCA 1991).

Reversed and remanded with directions to discharge the defendant.

BLUE, C.J., Concurs.

SILBERMAN, J., Concurs specially with opinion.

SILBERMAN, Judge,

Specially concurring.

As to the officer’s direction to Faulkner to stay in the car, there was no evidence that Faulkner posed a threat to the officer’s safety, to Faulkner’s own safety, or to the safety of others. See Wilson v. State, 734 So.2d 1107, 1112 (Fla. 4th DCA 1999). Instead, the officer testified that he was concerned because the area was “a high crime area and a high narcotics area.” The fact that the encounter occurred in such an area is not, by itself, sufficient to establish a reasonable concern for the safety of persons or property. See Jaudon v. State, 749 So.2d 548, 549 (Fla. 2d DCA 2000); Coleman v. State, 707 So.2d 767, 768 (Fla. 2d DCA 1998). Because of the lack of evidence to support Faulkner’s detention, and for the other reasons expressed in the majority opinion, I concur.


text:
    Billy J. SLAUGHTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-739.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.
    Billy J. Slaughter, Sneads, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

The defendant below, Billy J. Slaughter [“Slaughter”], was convicted of possession of a firearm by a convicted felon, for which he was sentenced by the trial court to fifteen years’ imprisonment. He appealed, and this court per curiam, affirmed his judgment in Slaughter v. State, 761 So.2d 1129 (Fla. 5th DCA 2000). Slaughter now appeals the denial of his subsequent motion for post-conviction relief. We affirm.

We conclude the trial court did not err in summarily denying grounds II through VII of Slaughter’s motion for post-conviction relief because the grounds either were not facially sufficient or were refuted by the record. The trial court also did not abuse its discretion in denying Slaughter’s request for appointment of post-conviction counsel for the evidentiary hearing because there is no absolute right to counsel for post-conviction proceedings and the issue in the evidentiary hearing was neither complex nor did it require substantial legal research.

AFFIRMED.

GRIFFIN, ORFINGER, JJ., and HARRIS, C., Senior Judge, concur.


text:
    Patrick FOSS, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2512.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.

      Charlie Crist, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Patrick Foss appeals his conviction for four counts of sexual battery on a child under 16 and two counts of lewd or lascivious molestation pursuant to section 800.04, Florida Statutes (1999).

The amended information properly set forth the elements necessary to charge Foss with violations of sections 800.04(4)(a) and 800.04(5)(a), Florida Statutes (1999), but erroneously cited to section 800.04(2), Florida Statutes (1999). We do not find that the erroneous references to the incorrect section of the statute is fatal. An erroneous reference to a statute in the information is not fatal to a conviction if the information properly pleads the necessary elements of the offense. E.g., B.H. v. State, 645 So.2d 987 (Fla.1994), cert. denied, 515 U.S. 1132, 115 S.Ct. 2559, 132 L.Ed.2d 812 (1995); Mosely v. State, 688 So.2d 999 (Fla. 2d DCA 1997).

The remaining issues raised on appeal were not preserved. We remand for correction of the errors in the judgment that made reference to the incorrect citations.

AFFIRMED but REMANDED.

PETERSON, PLEUS and PALMER, JJ., concur.


text:
    Robert J. MATISKO, Appellant, v. Wanda E. MATISKO, Appellee.
    No. 5D02-1238.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.
    Robert J. Matisko, Fern Park, pro se.
    Paula Pratt and James E. Cheek, III, of Winderweedle, Haines, Ward & Woodman, P.A., Winter Park, for Appellee.
   PER CURIAM.

AFFIRMED.

Husband has failed to demonstrate any error in the rulings made by the trial court. Specifically, husband has failed to show that it was error to award wife all of the marital home, which was hers by inheritance, as her separate property. Nor did the trial court err in excluding certain evidence as irrelevant to the issues in the case. Finally, the husband’s failure to obtain a ruling on his motion for sanctions precludes consideration on appeal of whether the motion should have been granted.

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


text:
    Lloyd C. KING, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-324.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    James Marion Moorman, Public Defender, and Eric J. Gottlieb, Special Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Lloyd C. King appeals sentences he received after a jury rendered a verdict finding him guilty of twenty-three counts of forgery and thirteen counts of grand theft. He does not challenge the jury verdicts finding him guilty of these charges. We reverse the judgments and sentences in order to obtain correct written orders. The current sentencing documents, entered after the trial court issued an order granting Mr. King’s motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), are internally inconsistent and ambiguous. On remand, the court shall enter new judgments and sentences properly reflecting the appropriate convictions and sentences. The new document should reflect that count 24 was nol prossed by the State and that count 28 was a conviction for grand theft, not forgery. The trial court must also address those counts for which it did not orally pronounce an adjudication.

Reversed and remanded with directions consistent with this opinion.

ALTENBERND, NORTHCUTT, and DAVIS, JJ., Concur.


text:
    Frank Joseph HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-365.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.

      James Marion Moorman, Public Defender, Bartow, and Raymond Dix, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   ORDER

DAVIS, Judge.

Frank J. Henry appeals the three-year minimum mandatory sentence imposed on a charge of possession of a firearm by a convicted felon. We reverse the sentence and remand for imposition of a new sentence deleting the minimum mandatory provision.

The State charged Henry with two counts of aggravated assault and one count of possession of a firearm by a convicted felon. The jury found Henry guilty as charged on the firearm count and guilty of the lesser charges of assault. The trial court sentenced Henry to time served on the misdemeanor assault charges and to a three-year minimum mandatory period of incarceration on the firearm count. Henry appeals the minimum mandatory sentence on several grounds. Because we reverse on one of those grounds, we do not address the others.

Henry argues that his case is governed by this court’s decision in Bundrage v. State, 814 So.2d 1133 (Fla. 2d DCA 2002), which requires a finding of actual possession of a firearm before the sentencing court may apply the enhancement provisions of section 775.087(2)(a)(l), Florida Statutes (2000). Here, the information charged that Henry “did knowingly own or be in the care, custody, possession or control of a firearm.” The jury returned a general verdict which found Henry “Guilty as charged [of] Possession of a Firearm by a Convicted Felon.” The State concedes that, contrary to the Bundrage requirement, the verdict does not indicate whether the possession was actual or constructive.

Henry filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which raised two other grounds but did not present this argument. The State consequently argues that Henry has not preserved this issue for appeal. Since Henry’s notice of appeal was filed after the effective date of the amendments to the Florida Rules of Criminal Procedure, the State maintains that this court does not have jurisdiction to consider this sentencing error and cites Garrett v. State, 788 So.2d 328 (Fla. 4th DCA 2001), as support for its argument. The Garrett court concluded that even a fundamental sentencing error cannot be raised unless a postconviction 3.800(b) motion raising the same issue has been filed with the trial court.

Garrett, however, is factually distinguishable from this case. At the time Henry filed his original 3.800(b)(2) motion, the basis for relief he now argues was not available as this court had not yet issued Bundrage. This is not a case where Henry could have raised the issue but failed to do so. However, now that the- case is before us, Bundrage identifies the error. Inasmuch as the State has conceded that the Bundrage error is involved, it is a more effective use of judicial resources to correct this error rather than to affirm and require Henry to file a new rule 3.800(b) motion with the trial court. Accordingly, we reverse the imposition of the three-year minimum mandatory enhancement sentence and remand for resentencing.

Reversed and remanded.

BLUE, C.J., and STRINGER, J., Concur.


author: PALMER, J.

text:
    BMW FINANCIAL SERVICES NA, LLC, Petitioner, v. Elana B. ALGER and Edmund W. Alger, III, etc., Respondent.
    No. 5D02-2685.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.
    Kenneth J. Joyce and Jonathan M. Stre-isfeldof Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, Fort Lauderdale, for Petitioner.
    0. John Alpizar of Alpizar, Ville & Cam-field, Palm Bay, for Respondents Elana B. Alger and Edmund W. Alger, III.
   PALMER, J.

BMW Financial Services has filed a petition seeking certiorari review of an order denying its motion to set aside a clerk’s default. Concluding that this order is not properly reviewable by certiorari, we deny the petition.

An order on a motion to set aside a clerk’s default is not an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3). Additionally, absent a showing of extraordinary circumstances, such an order is not reviewable by certiorari, as certiorari should not be used to circumvent the appellate rule which limits interlocutory review of non-final orders.

In Kolb v. Florida Fruit & Vegetable Ass’n, Inc., 718 So.2d 957 (Fla. 5th DCA 1998), this court held that a trial court’s order which sets aside a clerk’s default is not appealable as a non-final order and, since there is an adequate remedy by plenary appeal, certiorari review is also generally not available. Accord Collins v. Penske Truck Leasing, 668 So.2d 343 (Fla. 5th DCA 1996) (denying petition for certio-rari review of order which granted motion to set aside clerk’s default since no extraordinary grounds for relief were alleged).

The same is true when the trial court enters an order denying a motion to set aside a clerk’s default. The order is non-final because the case remains pending to determine damages. Such an order is not appealable, nor should it be reviewed by certiorari, as there is an adequate remedy by plenary appeal from a final judgment. See MacDonald v. R.A. Investments, Ltd., 830 So.2d 916 (Fla. 4th DCA 2002) (affirming final judgment granting a default). When a court sets aside a clerk’s default, the defendant’s expense of having to proceed to trial is not recognized by the courts as being the type of irreparable injury justifying certiorari review. See Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979). The same reasoning applies in the instant situation. Although BMW Financial Service will have to proceed to trial on the issue of damages, that does not qualify as being irreparable injury.

PETITION DENIED.

PLEUS and ORFINGER, JJ„ concur.

      . This type of non-final order was previously appealable under the appellate rule which authorized interlocutory appeals of orders which determined “the issue of liability in favor of a party seeking affirmative relief.” See Fla. R.App. P. 9.130(a)(3)(C)(iv) (2000); Safetitle, Inc. v. Fidelity Nat. Title Ins., 701 So.2d 565 (Fla. 5th DCA 1997). However, that particular category of appealable non-final orders was deleted in 2000 so as to limit the number of interlocutory appeals. The committee notes to rule 9.130 specifically state that such orders are not presently ap-pealable until the conclusion of the case.


author: GRIFFIN, J.

text:
    Edward EASTWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2946.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.

      Edward Eastwood, Daytona Beach, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Defendant, Edward Eastwood [“Eastwood”], appeals the summary denial of his amended motion pursuant to rule 3.850 and/or rule 3.800. Eastwood pled guilty to various felonies in case nos. 97-68 and 97-199 in exchange for a guidelines sentence. Eastwood was sentenced to concurrent terms of twenty years. No direct appeal was filed. Eastwood also pled guilty to violating community control and/or probation in 95-498, 95-506 and 95-553 and received concurrent twenty year sentences in those cases also. Again, no direct appeal was filed.

Eastwood later filed a rule 3.850 motion raising sentencing issues, but the trial court denied the motion because the motion, although under oath, failed to contain any facts and the memorandum which contained facts was not under oath. No appeal of that order was filed. Eastwood then filed the current amended rule 3.850 and/or 3.800 motion. The trial court denied these motions on the merits. We find no error, with one exception pertaining to the 1997 cases.

Eastwood claims that under the 1995 guidelines, the sentence range was between 196.5 and 327.5 months with 240 months being the recommended sentence. He contends, however, that under the 1994 guidelines, which governed sentencing of his 1997 convictions based on Heggs v. State, 759 So.2d 620 (Fla.2000), the range was only 118.6 to 196 months.

Although the trial court found that Eastwood had made a prima facie case for Heggs relief in the 1997 cases, the court denied relief because there was no transcript of his sentencing hearing nor was there a completed scoresheet under the 1994 guidelines. Thus, there were “unresolved issues of fact” which precluded relief under rule 3.800. See, e.g., Lancaster v. State, 764 So.2d 835 (Fla. 5th DCA 2000). The court correctly ruled that a rule 3.850 motion would be untimely, so defendant was denied relief.

We disagree that unresolved factual issues preclude relief under Rule 3.800(a). The question essentially is a legal one: What was the guidelines range under the 1994 guidelines? The State appears to have conceded below that the guidelines were exceeded by ten months, an illegal upward departure which would require correction. Accordingly, we reverse the appealed order on this ground only and remand for determination of a proper sentence within the 1994 guidelines.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

PLEUS, J. and COBB, W„ Senior Judge, concur.


text:
    Derik Brian LOWERY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D02-3816.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2003.
    Derik Brian Lowery, Orlando, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Petitioner seeks habeas corpus relief from his judgment and sentence. On March 10, 1999, petitioner pled no contest to unlawful sexual activity with a 17 year old minor and interference with custody. On June 11,1999, he was sentenced to 68.7 months incarceration to be followed by 60 months probation. Petitioner was later resentenced to 68.7 months incarceration to be followed by 45.8 months probation.

After pursuing appeal rights, petitioner filed a 3.800 motion to correct his sentence, and subsequently filed a 3.850 motion for post-conviction relief. After an evidentia-ry hearing on his 3.850 motion, his motion was denied. In the 3.850 appeal, an An-ders brief was filed and this court affirmed the order denying relief.

The instant habeas corpus petition first alleges ineffective assistance of trial counsel. Habeas corpus is not a proper remedy for issues which could be raised in a 3.850 motion. See Fla. R.Crim. P. 3.850(h). Even if petitioner had pursued the proper remedy and filed a Rule 3.850 motion in the trial court, the motion would have been successive, as petitioner could have raised this ground in his prior 3.850 motion. See Fla. R.Crim. P. 3.850(f).

Petitioner also claims that counsel appointed for his 3.850 evidentiary hearing was ineffective. The Supreme Court of Florida has held that this type of an ineffective assistance of post-conviction counsel claim is not cognizable in subsequent post-conviction proceedings. See Foster v. State, 810 So.2d 910, 915 (Fla.2002); Waterhouse v. State, 792 So.2d 1176 (Fla.2001).

PETITION FOR WRIT OF HABEAS CORPUS DENIED.

PETERSON, SAWAYA and PLEUS, JJ., concur.


text:
    DEPARTMENT OF REVENUE o/b/o Angela MOORE, Appellant, v. Robert D. MOORE, Appellee.
    No. 2D01-3193.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Louis F. Hubener, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   SILBERMAN, Judge.

The Department of Revenue appeals an order disapproving the report and recommendation of a hearing officer and denying the Department’s motion for contempt and writ of bodily attachment. We reverse.

The Department filed a motion to hold Robert D. Moore in contempt for failing to pay child support pursuant to a 1989 support order. The motion gave notice of a hearing to be held before a child support enforcement hearing officer. After Mr. Moore failed to appear for the hearing, the hearing officer made the following written findings: (1) Mr. Moore was served with the motion and notice by regular U.S. mail; (2) the notice was sent to Mr. Moore’s last known address and a second address confirmed by postal verification and was reasonably calculated to apprise Mr. Moore of the pendency of the proceedings; (3) Mr. Moore was presumed to be in contempt for failure to pay outstanding arrears of $20,435.68; and (4) Mr. Moore was presumed to be able to pay that amount and had not rebutted the presumption. The hearing officer set a purge amount of $206 and recommended that the trial court enter a writ of bodily attachment.

The trial court reviewed the hearing officer’s report and recommendation and entered an order denying the writ of bodily attachment, denying the Department’s motion, and disapproving the report and recommendation. The trial court concluded that the “Notice of Hearing and Motion for Contempt were legally insufficient to put [Mr. Moore] on notice for the hearing as [Mr. Moore] was never advised to keep his address current with the Clerk of the Circuit Court or the Department of Revenue.”

Contrary to the trial court’s conclusion, in an earlier support order Mr. Moore had been advised to keep his address current by providing any change of address to the clerk of the court and to the Department. Pursuant to Florida Family Law Rule of Procedure 12.615(b), a “civil contempt motion and notice of hearing may be served by mail provided notice by mail is reasonably calculated to apprise the alleged con-temnor of the pendency of the proceedings.” Additionally, Florida Family Law Rule of Procedure 12.491(f) provides that upon receipt, the trial court shall review a recommended order and “enter an order promptly unless good cause appears to amend the order, conduct further proceedings, or refer the matter back to the hearing officer to conduct further proceedings.”

Because the record reflects that the trial court’s rejection of the hearing officer’s report and recommendation was based on the erroneous belief that Mr. Moore was not told to keep his address current with the clerk of the court or the Department, we reverse and remand for further proceedings. On remand, the trial court must reconsider the report and recommendation and proceed in accordance with the applicable rules of procedure. We note that the trial court may conduct a hearing to determine the propriety of the writ of bodily attachment before it is issued. See Dep’t of Revenue ex rel. Meade v. Meade, 827 So.2d 1093, 1094-95 (Fla. 2d DCA 2002). If a writ of bodily attachment is issued, then upon incarceration Mr. Moore must be brought before the court within forty-eight hours for a determination of whether he continues to have the present ability to pay the purge amount. See Fla. Fam. L.R.P. 12.615(e).

Reversed and remanded for further proceedings.

NORTHCUTT and STRINGER, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    LAZY FLAMINGO, USA, INC., Appellant, v. Barry GREENFIELD and Island Endeavors, Inc., Appellees.
    No. 2D01-4523.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.

      Thomas R. Grady, Alberto A. Maciá, and Scott A. Beatty of Grady & Associates, L.P.A., Naples, for Appellant.
    Terrence F. Lenick, Bonita Springs, for Appellees.
   NORTHCUTT, Judge.

At a mediation, Lazy Flamingo settled its claims against Barry Greenfield and Island Endeavors. When Greenfield and Island did not perform their part of the bargain, Lazy Flamingo moved to enforce the settlement agreement in circuit court. The court enforced the agreement but refused Lazy Flamingo’s request for attorney’s fees incurred in the enforcement action. That refusal is the subject of this appeal. We reverse the order denying fees and remand for further proceedings.

Lazy Flamingo claims entitlement to fees on three different bases: Florida Rule of Civil Procedure 1.730(c); section 57.105, Florida Statutes (2001); and an attorney’s fee clause in the original contracts that gave rise to the underlying litigation. At the outset, we reject the last two grounds. We have reviewed the record and determined that the circuit court applied the correct standard when denying fees based on section 57.105. As for contractual fees, the circuit court correctly looked to the mediated settlement agreement, which was the contract at issue in this enforcement proceeding. The settlement agreement is a distinct contract, separate from the parties’ underlying agreements. Cf. Croteau v. Operator Serv. Co. of S. Fla., 721 So.2d 386, 387 (Fla. 4th DCA 1998) (explaining that motion to enforce a settlement agreement is grounded on separate facts unrelated to the underlying complaint). Because the settlement agreement did not contain a provision for attorney’s fees, the circuit court rightly refused to award fees based on contract. We hold, however, that rule 1.730(c) could provide a basis for an award of fees to Lazy Flamingo, and we remand for further proceedings on that issue.

Rule 1.730(c) provides that a court may impose sanctions, including attorney’s fees, against a party who fails to perform under a settlement agreement reached in court-ordered mediation. When determining that fees could not be awarded under that rule in this case, the circuit court focused on the fact that it had not entered a written order requiring the parties to mediate the case. But the court acknowledged that “this case was mediated as the result of a directive order of this Court on September 19, 2000....” At a hearing on that date the court had commented, “I want you to begin the process of mediating this case.” “I think it would be better for you to select your own mediators ... [b]ut I would like for them to do it in the next thirty days.... ” Thereafter, the parties agreed on a mediator and a date for the mediation. The parties completely resolved the controversy, and the mediator filed a report with the circuit court as required in rule 1.730(b).

In denying Lazy Flamingo’s motion for fees under rule 1.730(c), the court recognized that it had “directed these parties to mediate,” but did not think it could impose the sanction of attorney’s fees because the rules of civil procedure addressing mediation required a written order of referral. Without such an order, the court believed that the mediation did not comply with the rules, and thus, the sanction of attorney’s fees could not be ordered pursuant to rule 1.730(c).

We disagree. Although entering a written order referring the parties to mediation is the customary, and likely the better, practice, rule 1.700(a) does not require a written order. As the court recognized, it had entered an oral order directing the parties to mediate. A court’s oral order is valid and binds the parties even though a -written order has not been entered. Knott v. Knott, 395 So.2d 1196, 1198 (Fla. 3d DCA 1981). Thus we hold that this was a court-ordered mediation under rule 1.700(a).

At the hearing on Lazy Flamingo’s request for attorney’s fees, the circuit court commented, “If this had been a court-ordered mediation, I would have awarded attorney’s fees in this case.” Because we have determined this was a court-ordered mediation pursuant to the mediation rales, we reverse the circuit court’s decision and remand to allow it to reconsider its ruling. An award of sanctions under rule 1.730(c) is discretionary, and we offer no opinion about whether Lazy Flamingo should be awarded fees under the rule. See Trowbridge v. Trowbridge, 674 So.2d 928, 932 (Fla. 4th DCA 1996).

Affirmed in part, reversed in part, and remanded.

SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    In the Interest of E.B., a child. S.B., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-426.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.

      Keith D. Miller, of Boswell & Dunlap, LLP, Bartow, for Appellant.
    Josefina Tamayo, General Counsel, Tallahassee, and Douglas Sherman, Assistant District Legal Counsel, Bartow, Department of Children and Family Services, for Appellee.
   DAVIS, Judge.

S.B., the mother, challenges the circuit court’s order adjudicating her son, E.B., dependent. In adjudicating E.B. dependent, the trial court found that the mother abused the child by exposing him to acts of domestic violence between the mother and her boyfriend; neglected the child by failing to maintain a stable residence and living in seven different places in eight months; and abandoned the child by failing to consistently and regularly provide child support to the maternal grandmother with whom the child stayed for two months. We reverse.

A child may be found dependent if the child has been “abandoned, abused, or neglected by the child’s parent or parents or legal custodians.” § 39.01(14)(a), Fla. Stat. (2001). “[T]he trial court’s findings as to abuse, abandonment, or neglect will be sustained if they are supported by competent substantial evidence.” In re D.J.W., 764 So.2d 825, 826 (Fla. 2d DCA 2000).

The Fourth District has interpreted abuse to “include harm caused by incidents of domestic violence, but it is limited to instances where the child sees or is aware of the violence occurring.” D.H. v. Dep’t of Children & Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000). Here, the mother’s roommate testified that she came home one day to find the mother icing her wrist because she said her boyfriend had slammed a door on it. The witness was not present for the incident, however, and did not testify that the child was either. Accordingly, the trial court’s finding that the mother exposed the child to acts of domestic violence is not supported by competent substantial evidence of record.

Furthermore, while the trial court’s finding that the mother and child had changed residences seven times in eight months was supported by record evidence, such finding does not rise to the level of statutory neglect. Section 39.01(45) defines neglect as “when a child is deprived of, or allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired.” Here, no evidence was presented that the residential changes caused the child to be deprived of food, clothing, shelter, or medical treatment. Furthermore, there was no evidence that the environment created by those living arrangements caused the child significant impairment.

Similarly, the trial court’s finding that the mother did not financially support the child during the two months he stayed with his maternal grandmother, while supported by record evidence, does not meet the statutory definition of abandonment. Section 39.01(1) defines “abandoned” as “a situation in which the parent or legal custodian of a child ... while being able, makes no provision for the child’s support and makes no effort to communicate with the child.” The testimony here, from both the mother and the maternal grandmother, was that the mother attempted to retrieve the child from the maternal grandmother’s home at the conclusion of an approximately two-week-long vacation. When the mother was informed that the maternal grandmother would not return the child, at the behest of child protective services, she contacted the child by telephone and internet. Additionally, she gave the maternal grandmother authorization to seek medical treatment for the child if necessary. This conduct does not “evince a willful rejection of parental obligations. Nor would the evidence support a finding that the mother’s efforts were only marginal efforts to support and communicate with the [child] such that she failed to evince a settled purpose to assume parental duties.” S.C. v. Dep’t of Children & Families, 767 So.2d 579, 582 (Fla. 5th DCA 2000).

Because the trial court’s finding regarding the mother’s exposing the child to domestic violence is not supported by the record and because the trial court’s findings regarding changing residences and financial support do not rise to the statutory level of neglect or abandonment, we reverse.

Reversed.

ALTENBERND and CANADY, JJ., Concur.


text:
    Bruce Lee WOODY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-882.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    Appeal from the Circuit Court for Sarasota County, Robert B. Bennett, Jr., Judge.
    James Marion Moorman, Public Defender, and James T. Miller, Special Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Bruce Lee Woody appeals his judgments and sentences for sexual battery with a firearm and sexual battery with a deadly weapon. We affirm without prejudice to any right Mr. Woody might have to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850.

ALTENBERND, DAVIS, and CANADY, JJ„ Concur.


text:
    DEPARTMENT OF REVENUE o/b/o Mary NORTHERN, Appellant, v. Elbert COLEY, Appellee.
    No. 2D01-3237.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   SILBERMAN, Judge.

The Department of Revenue appeals an order disapproving the report and recommendation of a hearing officer and denying the Department’s motion for contempt and writ of bodily attachment. We reverse.

The Department filed a motion to hold Elbert Coley in contempt for failing to pay child support pursuant to a 1985 support order. The motion gave notice of a hearing to be held before a child support enforcement hearing officer and stated that a writ of bodily attachment may be issued if Mr. Coley failed to appear at the hearing. After Mr. Coley failed to appear, the hearing officer made the following written findings: (1) the Department served the motion and notice to Mr. Coley by regular U.S. mail; (2) the notice was sent to an address confirmed by postal verification and was reasonably calculated to apprise Mr. Coley of the pendency of the proceedings; (3) Mr. Coley was presumed to be in contempt for failure to pay outstanding arrears of $12,006.77; and (4) Mr. Coley was presumed to be able to pay that amount and had not rebutted the presumption. The hearing officer 'set a purge amount of $300 and recommended that the trial court enter a writ of bodily attachment.

The trial court reviewed the hearing officer’s report and recommendation and entered an order denying the Department’s motion, denying the writ of bodily attachment, and disapproving the report and recommendation. The trial court concluded that the “Notice of Hearing and Motion for Contempt were legally insufficient to put [Mr. Coley] on notice for the hearing as [Mr. Coley] was never advised to keep his address current with the Clerk of the Circuit Court or the Department of Revenue.”

Contrary to the trial court’s conclusion, in an earlier order on motion for contempt Mr. Coley had been advised to keep his address current by prpviding any change of address to the clerk of the court. Pursuant to Florida Family Law Rule of Procedure 12.615(b),. a “civil contempt motion and notice of hearing may be 'served by mail provided notice by mail is reasonably calculated to apprise the alleged contem-nor of the pendency of the proceedings.” Additionally, Florida Family Law Rule of Procedure 12.491(f) provides that upon receipt, the trial court shall review a recommended order and “enter an order promptly unless good cause appears to amend the order, conduct further proceedings, or refer the matter back to the hearing officer to conduct further proceedings.”

Because the record reflects that the trial court’s rejection of the hearing officer’s report and recommendation was based on the erroneous belief that Mr. Coley was not told to keep his address current with the clerk of the court, we reverse and remand for further proceedings. On remand, the trial court must reconsider the report and recommendation and proceed in accordance with the applicable rules of procedure. We note that the trial court may conduct a hearing to determine the propriety of the writ of bodily attachment before it is issued. See Dep’t of Revenue ex rel. Meade v. Meade, 827 So.2d 1093, 1094-95. (Fla. 2d DCA 2002). If a writ of bodily attachment is issued, then upon incarceration Mr. Coley must be brought before the court within forty-eight hours for a determination of whether he continues to have the present ability to pay the purge amount. See Fla. Fam. L.R.P. 12.615(e).

Reversed and remanded for further proceedings.

NORTHCUTT and STRINGER, JJ., Concur.


author: CANADY, Judge.

text:
    Juan M. CARTAYA-LUQUE, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 2D01-3858.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    Juan M. Cartaya-Luque, pro se.
    No appearance for Appellee.
   CANADY, Judge.

Juan M. Cartaya-Luque appeals the order denying his motion to dismiss based on lack of personal jurisdiction. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i). We affirm because the record shows that Mr. Cartaya-Luque voluntarily subjected himself to the circuit court’s jurisdiction.

Affirmed.

ALTENBERND and DAVIS, JJ., Concur.


author: STRINGER, Judge.

text:
    John DOE a/k/a George Bailey, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4435.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

John Doe a/k/a George Bailey (“Bailey”) seeks review of the trial court’s order denying his motion to withdraw his plea after sentencing. Bailey argues that the trial court abused its discretion in denying his motion to withdraw his plea because it was impossible for the court to adhere to the terms of his plea agreement. We agree and reverse.

The State charged Bailey with armed burglary with an assault, first-degree murder, five counts of aggravated assault, aggravated battery, attempted armed robbery, and shooting within a building. Bailey entered into a plea agreement in which he pleaded no contest to the offenses of second-degree murder with a firearm, armed burglary with an assault, attempted armed robbery, and aggravated assault in exchange for fifteen-year sentences that would run concurrently with any sentence subsequently imposed in Virginia for a violation of probation on the ten-year suspended sentence he was currently serving there. Bailey filed a motion to withdraw his plea because a de-tainer had not been issued against him in Virginia and it was possible that his Virginia sentence could exceed his Florida sentences.

Bailey correctly asserts that the trial court lacks jurisdiction to ensure that Bailey’s Virginia sentence, if it is indeed imposed, will run concurrently with his Florida sentence; thus, the trial court cannot ensure that the terms of Bailey’s plea bargain are met. See Richardson v. State, 432 So.2d 750, 751 (Fla. 2d DCA 1983); Janney v. State, 599 So.2d 731, 731 (Fla. 1st DCA 1992). Accordingly, we reverse and remand with directions to permit Bailey to withdraw his plea of no contest and enter a plea of not guilty, if he desires to do so after he has been advised of the proper alternatives.

Reversed and remanded.

SALCINES and DAVIS, JJ„ Concur.


text:
    Dwight Dale CARMICHAEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5604.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    James Marion Moorman, Public Defender, Bartow, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Dwight Dale Carmichael challenges the revocation of his probation, arguing that no affidavit of violation appears in the record. We reverse.

An order revoking probation should be vacated if no formal charge of violation of probation has been filed, and this issue may be raised for the first time on appeal. Johnston v. State, 684 So.2d 262 (Fla. 4th DCA 1996).

Here, no affidavit of probation appears in the record, and the Highlands County clerk of circuit court has filed a “certificate of non-existence,” stating that “a diligent search has been made for the Affidavit of Violation of Probation, and said document does not exist or cannot be located.”

Although Carmichael’s probation officer testified that she had “submitted” an affidavit of violation, this does not prove that the affidavit was formally filed. Accordingly, we reverse the revocation order.

Reversed.

SALCINES and STRINGER, JJ., Concur.


text:
    John BELCHER and Leesa Belcher, Petitioners, v. Patricia JOHNSON, as guardian of Harriet L. Roberts, a/k/a Henrietta L. Roberts, an incapacitated person, Respondent.
    No. 2D02-2497.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    Timothy W. Weber of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Petitioners.
    Thomas G. Tripp, Pinellas Park, for Respondent.
   PER CURIAM.

John and Leesa Belcher petition this court for a writ of certiorari to quash a protective order. The Belchers sought to take the deposition of Harriet L. Roberts, who is an elderly woman suffering from a level of dementia. Her guardian, Patricia Johnson, filed a motion for protective order seeking to prevent the deposition because Ms. Roberts is, to some degree, legally incapacitated. The trial court granted the protective order without an evidentiary hearing and without making a factual determination that Ms. Roberts should be disqualified to testify as a witness under section 90.603, Florida Statutes (2000). Apparently, the trial court assumed that Ms. Roberts’ incapacity for purposes of a guardianship proceeding rendered her disqualified to testify as a matter of law. Florida law, however, only disqualifies a witness under specific circumstances. See § 90.603. Under the established law, even a person who has been declared insane can be found competent to testify. See Fla. Power & Light Co. v. Robinson, 68 So.2d 406, 413 (Fla.1953).

Although an order denying discovery may rarely qualify for review by certiorari, we conclude that Ms. Roberts’ advanced age and deteriorating mental status render this a case in which review on appeal cannot provide an adequate remedy. Accordingly, we quash the protective order and remand to the trial court to conduct a hearing to determine whether Ms. Roberts should be disqualified from testifying pursuant to section 90.603. ■

Petition for writ of certiorari granted.

ALTENBERND, SALCINES, and' STRINGER, JJ., Concur.