author: POLSTON, J.

text:
    BAYCO DEVELOPMENT COMPANY, Appellant, v. BAY MEDICAL CENTER and Delta Florida Properties, Appellees.
    No. 1D02-1402.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.

      Michael P. Dickey, Esquire, Barron, Redding, Hughes, Fite, Bassett, Fensom & Sanborn, P.A., Panama City, for Appellant.
    David L. McGee, Esquire, Beggs & Lane, Pensacola, for Appellees.
   POLSTON, J.

Appellant Bayco Development Company (“Bayco”) argues that because their contract at issue is ambiguous and parol evidence is required to ascertain the intent of the parties, the trial court erroneously granted final summary judgment in favor of Appellee Delta Florida Properties (“Delta”). We agree and therefore reverse.

The parties dispute whether their Agreement for Purchase and Sale of Nursing Home Facility requires Delta, the purchaser, to assume the Patient Transfer Agreement, a contract that Bayco, the seller, had with a third-party. Bayco was required by the purchase agreement to disclose all contracts that materially affect the business or operations of the nursing home facility. The Patient Transfer Agreement was disclosed to Delta as one of the material contracts. However, the purchase contract does not state whether these material existing contracts will be assumed by Delta. Therefore, there is a latent ambiguity in the contract. See Centennial Mortgage, Inc. v. SG/SC, Ltd., 772 So.2d 564, 565 (Fla. 1st DCA 2000)(holding that the contract had a latent ambiguity needing parol evidence to determine the parties intent; “If a contract fails to specify the rights or duties of the parties under certain conditions or in certain situations, then the occurrence of such condition or situation reveals an insufficiency in the contract not apparent from the face of the document. This insufficiency is called a latent ambiguity ...,” quoting from Hunt v. First National Bank of Tampa, 381 So.2d 1194, 1197 (Fla. 2d DCA 1980)).

The parties’ intent regarding Delta’s assumption of the Patient Transfer Agreement through the purchase agreement is a question of fact. Therefore, final summary judgment was entered in error. See Centennial Mortgage, Inc., 772 So.2d at 566. On remand, the trial court should consider parol evidence, including the parties’ conduct regarding the Patient Transfer Agreement, to determine the parties’ intent. Id.

REVERSED and REMANDED.

DAVIS and BENTON, JJ., concur.

      . Moreover, paragraphs 5(22) and 15 of the purchase contract indicate that some obligations or liabilities will be created pursuant to the contract, but it is silent as to what those obligations or liabilities are and therefore ambiguous as to whether they include assumed third-party contracts.

      . The existence of an ambiguity in a contract is a question of law, therefore our review is de novo. Centennial Mortgage, Inc., 772 So.2d at 565-66.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Matthew J. FREELAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1075.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.
    Fred M. Johnson, Fuller, Johnson, and Farrell, PA., Tallahassee for Appellant.
    Richard E. Doran, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The registration and reporting requirements of Section 943.0485, Florida Statutes (2000) are regulatory and procedural in nature and do not violate the ex post facto clause. See Simmons v. State, 753 So.2d 762 (Fla. 4th DCA 2000) (holding that section 943.0435, Florida Statutes, does not violate ex post facto clause as it neither alters the definition of criminal conduct nor constitutes punishment). See also Westerheide v. State, 831 So.2d 93, 102-04 (Fla.2002) (holding that the Jimmy Ryce Act is not punitive in nature and does not violate ex post facto clause); Gonzalez v. State, 808 So.2d 1265 (Fla. 3d DCA 2002) (holding that the reporting requirements as well as the notification requirements of Florida’s Sexual Predator Act are regulatory and procedural in nature and do not violate the ex post facto clause); Rickman v. State, 714 So.2d 538 (Fla. 5th DCA 1998) (holding that registration requirement of Florida’s Sexual Predator Act is procedural and regulatory in nature and does not constitute punishment in violation of ex post facto clause).

AFFIRMED.

BARFIELD, MINER and POLSTON, JJ., concur.


text:
    Michael S. HILTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2822.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.

      Michael S. Hilton, Gainesville, pro se.
    Richard E. Doran, Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Michael S. Hilton appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He raises multiple double jeopardy concerns; only one has merit.

In Case No. 01-30054, Hilton was convicted of three counts of failure to appear when he failed to appear on only one occasion for a sentencing hearing on three crimes.

In McGee v. State, 438 So.2d 127 (Fla. 1st DCA 1983), the defendant failed to appear for a single pretrial conference involving seven cases. The defendant was charged with seven counts of failure to appear. The First District held that a defendant’s failure to appear at a single hearing can only be convicted and punished as one offense. The gravamen of the offense is the failure to appear at the scheduled place and time, not the number of offenses pending and scheduled for that particular occasion. See also Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982).

We affirm the denial of Hilton s 3.850 motion with the exception that we find that the trial court erred by summarily denying relief with respect to the three convictions for failure to appear. We grant to the trial court an opportunity on remand to attach portions of the record showing that Hilton waived the double-jeopardy argument by entering into a plea agreement for a specified sentence. See, e.g., Melvin v. State, 645 So.2d 448 (Fla.1994); Novaton v. State, 634 So.2d 607 (Fla.1994). Otherwise, the trial court is directed to vacate two of three convictions for failure to appear and to re-sentence accordingly.

AFFIRMED in part; REMANDED.

COBB, HARRIS and PETERSON, JJ., concur.


author: WHATLEY, Judge.

text:
    Chris WILFORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3142.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2002.
   WHATLEY, Judge.

Chris Wilford appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order of the trial court in regard to one of his two claims and affirm without comment in regard to the other claim.

In his motion, Wilford alleges that his defense counsel was' ineffective both for failing to file a motion to suppress his statements made to law enforcement and for failing at trial to object to the admissibility of these statements. Wilford asserts his counsel -should have filed a motion to suppress alleging both inadequate Miranda warnings and a violation of his Sixth Amendment right to counsel.

The limited record shows that law enforcement may have given Wilford inadequate Miranda warnings by not informing him that anything he said could be used against him in a court of law or something equivalent. See Duckworth v. Eagan, 492 U.S. 195, 201-02, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (holding that Miranda warnings do not have to be given in the exact form stated in the Miranda opinion as long as an effective equivalent is given). See also Thompson v. State, 595 So.2d 16, 17 (Fla.1992) (stating that the warnings required to comply with the self-incrimination clause of Article I, Section 9, Florida Constitution, do not have to be given in the exact form as long as an effective equivalent is given).

Again based on the limited record before us, Wilford’s Sixth Amendment claim may not have merit. Even though Wilford’s Sixth Amendment right to counsel had attached to other charges, adversary judicial criminal proceedings may not have been initiated in regard to the charges of this case at the time he was interrogated by law enforcement. See Texas v. Cobb, 532 U.S. 162, 167-68, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001) (holding that “a defendant’s statements regarding offenses for which he had not been charged were admissible notwithstanding the attachment of his Sixth Amendment right to counsel on other charged offenses”). See also Smith v. State, 699 So.2d 629, 639 (Fla.1997) (stating that “the right to counsel under either the Sixth Amendment or article I, section 16, [Florida Constitution,] is offense-specific”).

After consideration of this ineffective assistance of counsel claim, the trial court concluded that Wilford was attempting to raise it in regard to a different criminal case (circuit court case number 98-13083) than the case before the trial court (circuit court case number 98-14707). Because of the confusing way in which Wilford presented his claim, it is understandable that the trial court would reach the conclusion it did. However, Wilford has stated a facially sufficient claim of ineffective assistance of counsel in regard to circuit court case number 98-14704, and the trial court must consider it. -

We reverse the trial court s order in regard to this claim and remand with directions that the trial court either hold an evidentiary hearing or, if it again denies the claim, attach to its order the portions of the record refuting the claim.

Affirmed in part, reversed in part, and remanded.

FULMER and COVINGTON, JJ., Concur.


text:
    Erin SHERWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3618.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2002.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Erin Sherwood appeals her judgments and sentences, challenging only the orders of restitution. We reverse one order of restitution in the amount of $2,296.64 entered on July 17, 2001. The State concedes that this order was based on improper hearsay evidence concerning the cost to repair a 1989 Oldsmobile Delta 88. We reverse and remand the order entered on July 17, 2001, for a new restitution hearing. See Moore v. State, 694 So.2d 836 (Fla. 2d DCA 1997). All other orders on appeal are affirmed.

Affirmed in part, reversed in part, and remanded for proceedings pursuant to this opinion.

ALTENBERND, NORTHCUTT and DAVIS, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Curtis BOYD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3163.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2002.
   CASANUEVA, Judge.

Curtis Boyd timely appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Boyd alleges ineffective assistance of trial counsel based on three grounds. We affirm without discussion on the first two grounds but reverse and remand for further proceedings on the third ground.

Boyd pleaded guilty to one count of robbery and one count of carjacking in Hillsborough County. The court sentenced him to twenty years in prison, with a ten-year minimum mandatory for the use of a firearm, on each count. The court ordered the sentences to run concurrently with each other and with another sentence in Sumter County.

In his motion, Boyd claims that his trial counsel informed him that his Hillsbor-ough sentences would have to run consecutively with the Sumter sentence if he chose to go to trial on the Hillsborough charges. He claims that if it were not for this erroneous advice, he would have chosen to proceed to trial on the Hillsborough charges. The trial court denied this claim, finding that it contradicts his plea agreement, which “states clearly that the charges are to run concurrent with the Sumter County charge.” Boyd’s plea form, which acknowledges that his sentences are to run concurrently with each other and the Sumter County case, does not conclusively refute Boyd’s claim that his attorney told him that if he proceeded to trial, the trial court would be required to impose consecutive sentences. The plea form only confirms that Boyd received concurrent sentences due to his plea. It does not address what Boyd’s trial counsel told him regarding the sentence that would be imposed if he were convicted at trial. Accordingly, we reverse and remand for further proceedings.

Affirmed in part; reversed in part; and remanded.

FULMER and COVINGTON, JJ., Concur.


text:
    Del L. JEFFERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3731.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2002.
    Del F. Jefferson, Wewahitchka, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See ch. 99-12, §§ 1 & 5, Laws of Fla. (adding 10-20-life provisions to section 775.087, effective July 1, 1999).

HARRIS, PETERSON and ORFINGER, JJ., concur.


text:
    Brian WHITNEY Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3709.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2002.
    Brian Whitney, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

See Bruno v. State, 807 So.2d 55 (Fla.2001). Fla. R.Crim. P. 3.703(d)(31).

AFFIRMED.

THOMPSON, CJ., SHARP, W., and ORFINGER, JJ., concur.


text:
    Orenthal Maurice THURMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1989.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2002.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Collins v. State, 766 So.2d 1009 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000).

HARRIS, SAWAYA and PALMER, JJ., concur.


text:
    Kelvin Devan JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1642.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2002.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    Donald P. EISENHART, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-11553.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2002.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Donald P. Eisenhart, Bowling Green, pro se.
    Richard E. Doran, Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Elvin B. SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1501.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2002.
    Elvin B. Simpson, Malone, pro se.
    Richard E. Doran, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hammett v. State, 804 So.2d 522 (Fla. 5th DCA 2001).

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


text:
    James A. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-737.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2002.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Moore v. Stephens, 804 So.2d 575 (Fla. 5th DCA), cause dismissed, 817 So.2d 850 (Fla.2002).

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


text:
    Robert Patrick SCARBORO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1562.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Robert P. Scarboro appeals his convictions for battery on a law enforcement officer and resisting an officer with violence. Based on an evidentiary error, we conclude that there must be a new trial.

Police were called to the house of the ex-girlfriend of defendant-appellant Scarboro. The ex-girlfriend said that defendant had been to her house demanding the return of a ring. He pushed the door open, pushed her out of his way, ransacked the house and ripped the phone off of the wall.

After officers spoke with the victim they went to defendant’s home. When they arrived, defendant cursed at the officers and picked up a dresser and threw it toward the officers. Several officers charged the defendant, the defendant moved around and when the only light in the room broke, defendant bit one of the officers.

At trial, the court allowed the officers to testify concerning the events occurring at the ex-girlfriend’s house including the fact that the ex-girlfriend was crying and frightened. Defendant was convicted and sentenced to ten years as a habitual offender. This appeal followed.

Prior to trial, the defense moved in limine for an order excluding evidence of the defendant’s conduct at the ex-girlfriend’s house. The defense argued that the prior events at the ex-girlfriend’s house were separated by time and place from the defendant’s subsequent encounter with the police at the defendant’s home. The defense contended that testimony regarding the events at the ex-girlfriend’s house would amount to testimony regarding uncharged crimes. The trial court denied the motion in limine, reasoning that the earlier incident was relevant to provide a context for what happened later at the defendant’s own home.

We must respectfully disagree with the trial judge’s conclusion, under the circumstances of this case. All the jury needed to be told was that the officers had arrived at the defendant’s home to conduct a criminal investigation. The details of the officers’ investigation at the ex-girlfriend’s home were not necessary for the jury’s understanding of the officers’ own encounter with the defendant.

At trial, the defense objections were overruled. The investigating officers testified that the defendant had committed serious felonies at the ex-girlfriend’s house, including burglary with a battery, criminal mischief, and tampering with evidence. The testimony included the fact that the defendant had destroyed property at the ex-girlfriend’s house, that the ex-girlfriend was afraid of the defendant, and that she wanted something done because she was concerned that the defendant might come back.

The foregoing testimony did not amount to inseparable crimes evidence, nor was this amount of detail necessary for the jury to understand the context of the officers’ subsequent visit to the defendant’s home. See Porter v. State, 715 So.2d 1018, 1020 (Fla. 2d DCA 1998). We are unable to say that the error was harmless. Thus, there must be a new trial.

Defendant also argues that the trial court should have sustained defense objections to prosecution questions asking the police officer to outline what treatment he had received for the bite injury. By way of background, the defendant is infected with Hepatitis C. On defense motion, there had been an order in limine that the jury should not be informed of that fact.

While in the witness stand, the officer described the bite injury, showed his scar to the jury, and explained that he had to receive medical treatment for the injury. All of this was perfectly appropriate and was not objected to.

However, in answers to further, objected-to questions about the nature of the medical treatment he received, the officer testified that he had to be tested for Hepatitis C, and was undergoing continuing treatment with penicillin and AZT. Under the circumstances of this case, the objections should have been sustained.

Here, the defendant was charged with battery on a law enforcement officer “by actually and intentionally touching or striking said person against said person’s will, in violation of s. 784.07 and s. 784.03, Fla. Stat.” The magnitude or extent of injury is not an issue under this particular part of the statute. Under the facts of this case, the exact medication and tests administered were not relevant to the pending charge, and the officer’s answer could indicate to the jury that the defendant has Hepatitis C — a fact which the court had already ruled should not communicated to the jury. See T.B. v. State, 669 So.2d 1085 (Fla. 4th DCA 1996) (en banc); McGriff v. State, 417 So.2d 300 (Fla. 3d DCA 1982).

We address the claim of error in habitual offender sentencing, because this issue ■will likely arise again if the defendant is convicted. The requirement for introduction of the certified copies of the predicate convictions is set forth in Quarterman v. State, 670 So.2d 1169, 1170 (Fla. 3d DCA 1996).

For the stated reasons, the convictions are reversed and the cause remanded for a new trial.

         This moots the second and third points on appeal.


text:
    R.L.T. FINANCIAL MGMT., INC., a Florida corporation., & Robert L. Totaro, Appellants, v. LINCOLN BENEFIT LIFE CO., a foreign corporation, d/b in Florida, Appellee.
    No. 3D01-489.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Hess & Heathcock and William Hess, Stuart, for appellants.
    Angones, Hunter, McClure, Lynch, William & Garcia and Christopher Lynch, Miami, for appellee.
    Before LEVY, GREEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Sims v. Brown, 574 So.2d 131, 133 (Fla.1991); Secada v. Weinstein, 563 So.2d 172 (Fla. 3d DCA 1990); Crews v. Warren, 157 So.2d 553 (Fla. 1st DCA 1963); § 90.615(2), Fla. Stat. (2000).


author: SHEVIN, Judge.

text:
    Jimmie Reed JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2726.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.

      Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before LEVY, SHEVIN and RAMIREZ, JJ.
   SHEVIN, Judge.

Jimmie Reed Jackson appeals judgments of conviction. We reverse and remand for a new trial holding that the trial court erred in denying Jackson’s motion to exclude statements given to Sergeant Holtz.

Jackson was charged with aggravated battery on a law enforcement officer, aggravated assault on a law enforcement officer, and resisting an officer with violence stemming from the following incident. Miami-Dade Police Department bicycle patrol Officer Robertson alleged that Jackson hit him with a hammer when Jackson came out from a shed where he was hiding. To protect himself, Robertson beat Jackson with an asp — a twenty-one inch retractable baton. Robertson read Jackson his Miranda rights. Because of his injuries, Jackson was not allowed into the station; instead, he was held in the parking lot.

Sargent Holtz approached Jackson in the parking lot to investigate Robertson’s use of force. Holtz did not re-read Jackson his Miranda rights, because he “was not conducting a criminal investigation. [He was] just conducting an administrative report for departmental purposes.” Holtz testified that Jackson was being treated by paramedics for his injuries, and he was hostile, reluctant to speak with Holtz. Holtz had to “urge” Jackson to speak with him. Holtz told Jackson that the questions were not related to the underlying offense, but only to the use-of-force investigation. Jackson responded, “That’s a relief. I’m on probation.” Jackson proceeded to tell Holtz that he was trying to smoke marijuana. Jackson told Holtz he had tossed the marijuana on the roof when he ran from the police. At that point Holtz paused and radioed for the officers who were still at the scene to search the location. Thereafter, Jackson stated to Holtz that he came out of the shed with the hammer because he feared use of police dogs. Jackson filed a motion to suppress these statements. The court denied the motion, and Holtz’s statements were admitted at trial.

The sole issue at trial was whether Jackson committed the aggravated battery, aggravated assault and resisting arrest by striking Robertson with a hammer. Robertson testified that Jackson had a hammer and struck him in the arm. Jackson testified that he fled from the police and hid in a shed to avoid detection. He came out of hiding with his hands up and never had a hammer. A witness saw the officer making striking motions; she did not hear Robertson telling Jackson to throw down a hammer, or anything else — she only heard Jackson’s cries. The jury asked for a magnifying glass to examine the pictures of Robertson’s injury from the hammer. The jury ultimately acquitted Jackson of aggravated battery, finding him guilty of attempted aggravated battery (a lesser included offense), aggravated assault on a law enforcement officer and resisting arrest with violence. Jackson appeals.

We reverse the convictions because the defendant’s motion should have been granted. Holtz’s assurances to Jackson, that he was not investigating the underlying charges, only the use of force, misled Jackson and vitiated the earlier Miranda rights. Cribbs v. State, 378 So.2d 316 (Fla. 1st DCA 1980). The inquiry in this case “turns on the [defendant’s] state of mind, not the investigator’s, and the potential effect on [defendant] of the words used....” D.N. v. State, 529 So.2d 1217, 1223 (Fla. 1st DCA 1988), disapproved on other grounds by State v. G.C., 572 So .2d 1380 (Fla.1991). See Walker v. State, 771 So.2d 573 (Fla. 1st DCA 2000); In Re: K.H., 418 So.2d 1080 (Fla. 4th DCA 1982). The change in Jackson’s demeanor, and immediate co-operation demonstrate he was persuaded by Holtz’s assurances that the underlying crime didn’t interest him. Holtz’s statements were obviously untrue, as Holtz immediately reported the location of the discarded contraband, and the state thereafter introduced Holtz’s testimony at trial. It is clear from the circumstances, that Jackson was deluded as to his true position, and that the representations influenced his decision to speak with Holtz. Holtz’s actions vitiated the Miranda warnings; the subsequent statements should have been excluded.

Reversed and remanded.


text:
    Raymond LOPEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-325.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Raymond Lopez, in proper person.
    Richard E. Doran, Attorney General, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Raymond Lopez appeals his revocation of probation and sentences imposed in Miami-Dade County Circuit Court case numbers 98-4124, 98-9720, and 99-6743. We affirm.

Defendant-appellant Lopez was placed on probation in the above three cases. Thereafter an affidavit of violation of probation was filed, charging the defendant with fleeing and eluding a police officer, reckless driving, and other violations. After the conclusion of the arresting officer’s testimony at the violation of probation hearing, the defendant entered a plea bargain for a twelve-year term.

The trial court imposed a twelve-year sentence in circuit court case number 99-6743, a five-year term in circuit court case number 98MJ24 (concurrent with the sentence in circuit court case number 99-6743), and a five-year term in circuit court case number 98-9720, consecutive to the sentence in circuit court case number 98-4124 (concurrent with the sentence in circuit court case number 99-6743).

The written sentencing order in circuit court case number 98-9720 does not conform to the oral pronouncement. It does not include the provision that the sentence be consecutive to circuit court case number 98-4124. We therefore remand in circuit court case number 98-9720 for correction of the sentencing order.

Appointed counsel has filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

The appellant has filed a pro se brief in which he argues that the sentences are illegal. The defendant contends that the sentences imposed upon revocation of probation cannot exceed the original two-year probationary term. The defendant is incorrect. See § 948.06(1), Fla. Stat. (1999); Troncoso v. State, 825 So.2d 494, 496 (Fla. 3d DCA 2002). Each sentence imposed upon the defendant is within the legal maximum.

The defendant also attempts to challenge the factual basis pursuant to which he was originally placed on probation in circuit court case number 99-6743. That issue is not properly before us. The issue was first raised with the trial court by letter after the defendant’s notice of appeal had already been filed. Our ruling is without prejudice to the defendant to seek postconviction relief. We express no opinion on the merits of any such claim.

We affirm the convictions and sentences in all three circuit court cases. We remand the sentencing order in circuit court case number 98-9720 for correction of the sentencing order to reflect that it is consecutive to the sentence imposed in circuit court case number 98-4124.

Affirmed; remanded for correction of order.


text:
    Franchot BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2924.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.

      Elaine L. Thompson, Lake Worth, for appellant.
    Richard E. Doran, Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   PER CURIAM.

By unpublished order Franchot Brown was granted a belated appeal of his conviction for first degree murder and attempted armed robbery. We affirm.

Defendant-appellant Brown was arrested on robbery charges unrelated to the present case, and was taken to police headquarters. Thereafter a homicide detective asked the defendant if he would be willing to speak with him regarding the instant murder case. The detective testified that the defendant voluntarily agreed. The detective took the defendant to another interview room, administered Miranda warnings, and interviewed the defendant, at which time the defendant incriminated himself.

The defendant was charged with murder and armed robbery. His trial counsel moved to suppress his statement on various grounds, including Fourth Amendment grounds. After hearing testimony, the trial court denied the motion to suppress the evidence.

On this appeal, the defendant contends that somehow he was illegally in custody while being interviewed about the homicide. We fail to see any basis for that claim. The defendant had already been lawfully arrested in another case. Where a defendant is already lawfully in custody in one case, and voluntarily agrees to speak with a detective about another case, he is not thereby somehow illegally arrested on the second case. The fact that the defendant was moved from the robbery interview room to the homicide interview room within the same police station does not change the analysis. The defendant’s reliance on Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), is entirely misplaced.

As to the defendant’s second issue, the evidence was legally sufficient to go to the jury. See Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

Affirmed.

      . After defendant-appellant Brown was convicted, he took an appeal to this court and the convictions were affirmed. See Brown v. State, 751 So.2d 580 (Fla. 3d DCA 2000). Subsequently he petitioned for a writ of habe-as corpus asserting ineffective assistance of appellate counsel. The panel which considered the petition decided that the appellate issue should be fully briefed and granted a belated appeal for that purpose.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: PER CURIAM. COPE, J.

text:
    Dedrick T. ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2754.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Richard L. Polin, Assistant Attorney General, and Mercedes Oxean, Legal Intern, for appellee.
    Before SCHWARTZ, C.J., and COPE, and GODERICH, JJ.
   PER CURIAM.

Dedrick T. Robinson appeals his convictions for burglary and theft. At trial, the defense properly objected to police officer testimony regarding the contents of the “Be On Lookout” (“BOLO”) announcement of the burglary in process. The objection should have been sustained, as the hearsay “content of that statement is inadmissible, especially where it is accusatory.” Conley v. State, 620 So.2d 180, 182 (Fla.1993) (emphasis in original); State v. Baird, 572 So.2d 904, 907-08 (Fla.1990). We are convinced, however, that the error was harmless beyond a reasonable doubt. Kearse v. State, 662 So.2d 677, 684 (Fla.1995) (citing State v. DiGuilio, 491 So.2d 1129 (Fla.1986)).

Affirmed.

SCHWARTZ, C.J., and GODERICH, J., concur.

COPE, J.

(dissenting).

I am not convinced that the inadmissible hearsay was harmless beyond a reasonable doubt.


text:
    Teresa E. HUNTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1314.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before LEVY, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Miller v. State, 672 So.2d 95 (Fla. 3d DCA 1996).


author: COPE, J.

text:
    Carlos E. MIRANDA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-156.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Michael J. Neimand, Assistant Attorney General, and Frank Kearns, Legal Intern, for appellee.
    Before SCHWARTZ, C.J., and COPE, and GODERICH, JJ.
   COPE, J.

Carlos E. Miranda appeals the sentences imposed after his guilty plea to the charges of second degree murder, arson, and attempted second degree murder. We affirm in part and reverse in part.

Defendant-appellant Miranda was charged with the second degree murder of his girlfriend, Andrea Triana, and attempted second degree murder of Andrea’s nine-year-old daughter, Rebecca Triana. The defendant was extradited from Costa Rica. Under the terms of the extradition agreement with the Costa Rican government, the maximum term of imprisonment which could be imposed on the defendant was fifty years.

The defendant eventually entered a guilty plea with sentencing to be left up to the trial court. The trial court took evidence regarding the details of the crime and the injuries inflicted. The court rejected the defendant’s request for a guidelines sentence, and imposed a departure sentence of fifty years.

In entering the departure sentence, the trial court stated in part:

The facts of this case show that Andrea Triana was murdered, that she was stabbed nineteen times, with one fatal wound. I think the record is sufficiently clear and reasonable for this court to conclude that the circumstances causing Andrea Triana’s death were sufficiently heinous, egregious and cruel to justify this court’s upward departure from the sentencing guidelines.

On this appeal, the defendant argues that this departure reason was legally insufficient. We reject the defendant’s argument on this point, and conclude that the departure reason is permissible and amply supported.

The medical examiner testified that the victim’s wounds were consistent with the three hundred pound defendant pinning the one hundred sixteen pound victim on the bed, and repeatedly stabbing her in the head and neck as she moved her head from side to side attempting to avoid the knife. Of the nineteen stab wounds, eighteen were painful but superficial. The fatal wound was a stab wound to the chest, which punctured a lung.

The medical examiner was not able to say in what order the stab wounds were inflicted, but it makes no difference to the analysis. The medical examiner testified that it would have taken several minutes for the victim to bleed to death after being stabbed in the chest. Even if the first blow was the stab wound to the chest, the victim in all likelihood was alive, conscious, and attempting to move her head away from the knife — with which the defendant stabbed her eighteen times. Simply put, the defendant tortured the victim.

The medical examiner testimony was, in part:

Q. Were there any defensive wounds on the rest of her body?
A. First of all, defensive wounds are those wounds sustained by a victim after trying to protect themselves. Defense injuries are typically on the hands, or on the back of the hands, or the palms and fingers, or on the forearms or upper arms. This young lady did not have any of these defense injuries.
Q. But she had wounds to each side of her head and to the top of her head?
A. Yes.
Q. Would that be consistent with a person receiving injuries as they move their head from left to right, left to right, up and down being that she also has wounds to her neck?
A. Yes, that would be entirely consistent with moving her head around.
Q. Would it also been consistent with someone being unable to move their hands?
A. Yes.
Q. Let me ask you this hypothetically, Dr. Lew. If a 116-pound woman is on the bed, possibly sleeping and a 300-pound man straddled her, got on top of her with one portion of his leg or body on her left side and the other portion of his body or left on the right, sitting on top of her, would the wounds be consistent with a 116-pound woman lying down trying to help herself?
A. Yes, the wounds on this young woman would be entirely consistent for a 116-pound person being pinned down by a much larger person.
Q. During the time that those wounds were inflicted, would she be feeling the pain of them?
A. Yes.
Q. And it would take a few minutes for her to die?
A. Yes.
Q. Three minutes?
A. Possibly.
Q. Five minutes?
A. Possibly.
Q. What was the manner of Andrea Triana’s death?
A. The manner of death was homicide.
Q. What was the cause of her death?
A. The cause of her death was multiple stab wounds.
Q. No further questions, Judge.
THE COURT: Cross?
CROSS EXAMINATION
Q. And one of the head wounds, I believe classified as L, that wound was severe enough to be associated with a skull fracture. Is that correct?
A. Yes, that is correct.
Q. There are a number of factors that might leave someone unconscious while the wounds are being inflicted, is that correct?
A. Yes, that is correct.
Q. Now you stated on direct examination that you cannot tell the order in which these wounds are inflicted, that is correct?
A. Yes, that is correct.
Q. Based on that fact, isn’t it true that you cannot tell for how long Ms. Triana was conscious and feeling pain?
A. That is correct.
Q. I don’t have anything further.
THE COURT: Re-direct?
MS. LEVINE: Yes, your Honor.
RE-DIRECT EXAMINATION
BY MS. LEVINE
Q. In order for Ms. Triana to move her head from side to side, she would have been conscious?
A. Likely, yes.
RE-CROSS-EXAMINATION
BY MR. COHEN.
Q. Doctor, that’s assuming that that happened though no one knows, is that correct.
A. If no one knows what happened?
Q. If she was moving her head from side to side, we don’t know that for sure?
A. No. we don’t know that for sure.

(Emphasis added).

“The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a preponderance of the evidence.” § 921.001(6), Fla. Stat. (1993).

The defense argues that there is no evidence the victim was alive while she was being held down and stabbed repeatedly. We reject that argument. The medical examiner testimony adequately establishes a factual basis for the conclusion that the victim was conscious, held down, and struggling to avoid the defendant’s knife as he repeatedly stabbed her in the face and neck.

As a legal matter, the case law has repeatedly recognized that a departure sentence is justified where the circumstances are sufficiently heinous, egregious or cruel.

The defense relies heavily on Davis v. State, 517 So.2d 670 (Fla.1987), but that case supports the departure here. The Florida Supreme Court stated that “cruelty towards the victim may justify departure in some circumstances.... ” Id. at 673. In explaining why a departure was not justified in Davis, the court stated among other things, “There was no evidence that the victim was aware of the impending attack.” Id. In Davis, the victim was killed from multiple gunshot wounds. In the present case, by contrast, the evidence supports the conclusion that the victim was well aware of the approaching knife, struggled, but was unable to save herself.

A case similar to the present one is Semenec v. State, 698 So.2d 900 (Fla. 4th DCA 1997). A departure sentence was upheld there where the defendant and multiple co-defendants “stood with others circling [the victim] Kent while the co-defendants inflicted additional wounds.” Id. at 902. See also Carter v. State, 791 So.2d 568 (Fla. 3d DCA 2001); Johnson v. State, 695 So.2d 787 (Fla. 1st DCA 1997); Weekley v. State, 584 So.2d 78, 80 (Fla. 3d DCA 1991); Vara v. State, 546 So.2d 1071 (Fla. 2d DCA 1989); Wright v. State, 538 So.2d 497, 499 (Fla. 3d DCA 1989); Orange v. State, 535 So.2d 691 (Fla. 3d DCA 1988).

The defendant relies on Lamond v. State, 500 So.2d 342 (Fla. 5th DCA 1986), but that case is not on point. In Lamond there was no evidence that the victim was aware of her impending attack. Id. at 343. In the present case, the evidence supports the proposition that the victim was awake, aware, and struggling. We affirm the departure sentence.

With respect to the remaining issue on appeal, the State has confessed error. The State concedes that for a 1993 crime date, the offense of second degree murder with a weapon is classified as a life felony. See §§ 782.04(2), 775.087(l)(a), Fla. Stat. (1993). At that time the penalty for a life felony was life imprisonment or a term of years not exceeding forty. Id. § 775.082(3)(a); Ferguson v. State, 804 So.2d 411 (Fla. 4th DCA 2001); Redd v. State, 738 So.2d 978 (Fla. 5th DCA 1999). Since the fifty year term exceeds the legal maximum, the sentence on the second degree murder count must be reduced from fifty years to forty years. The defendant need not be present.

Affirmed in part, reversed in part, and remand for correction of sentence.

      . The crime date was December 30, 1993.


text:
    June HOOD and Edward Hammatt, Jr. as Trustees, and Sol Stiss, Appellants, v. MARVIN AND KAY LICHTMAN FOUNDATION, Appellee.
    No. 3D02-656.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Ruden, McClosky, Smith, Schuster & Russell and James R. George, for appellants.
    Stephen E. Tunstall, Coral Gables, for appellee.
    Before LEVY, SHEVIN and RAMIREZ, JJ.
   SHEVIN, Judge.

June Hood and Edward Hammatt, Jr., as trustees, and Sol Stiss, their attorney, appeal the trial court’s order awarding them $1 in fees. We reverse.

In Marvin and Kay Lichtman Foundation v. Estate of Marvin Lichtman, 773 So.2d 1232, 1235 (Fla. 3d DCA 2000), this court stated that “while it is clear work was done by the trustees, there was no separate evidentiary basis for the trial court’s award of $50,000 fees to the two trustees. No testimony or documentary evidence supported the figure arrived at by the court. Likewise, without evidentia-ry basis was the award of $55,000 to Stiss, as attorney for trustees.” This court remanded for “a sufficient breakdown and allocation and apportionment of the work done in relation to the dual functions performed,” citing Dhondy v. Schimpeler, 528 So.2d 484 (Fla. 3d DCA 1988). Id. The Dhondy court remanded for an evidentia-ry hearing to determine a fee award.

Here, on remand, the trial court entered an order stating that it “has been unable to locate any additional facts or testimony other than that previously relied upon by the Court in making its initial awards. While the Court believes the trustees and their attorneys are legally and factually entitled to fees, this Court is unable to make such an award since no additional facts or testimony can be cited to support same.” The trial court was unable to discern a basis in the record of the proceeding for the fee awards and, despite our citation to Dhondy, concluded that it could not consider additional evidence. However, this court’s remand permitted the court to conduct an evidentiary hearing. As the trial court was unaware that it had the discretion on remand to consider additional evidence, we reverse the order and remand for an evidentiary hearing on the amount of fees earned by the trustees and their attorney.

Reversed and remanded for an eviden-tiary hearing.


text:
    Joseph SKLANDIS, Appellant, v. WALGREEN COMPANY, Appellee.
    No. 3D02-1097.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Koltun & Lazar and Jeffrey N. Anderson, for appellant.
    Walton Lantaff Schroeder & Carson and Robert L. Teitler and Stephanie L. Bandy, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   COPE, J.

Joseph Sklandis appeals a final judgment dismissing his case. For procedural reasons, we remand for a new hearing.

Plaintiff Joseph Sklandis sued defendant Walgreen Company for personal injury occurring on Walgreen’s premises. Prior to trial, Walgreen moved to dismiss the action based on a claim of fraud and perjury by the plaintiff. See Leo’s Gulf Liquors v. Lakhani, 802 So.2d 337 (Fla. 3d DCA 2001). At the court’s request, this was set for a hearing after a previously scheduled calendar call. The notice reflected that this was a “motion calendar” hearing, and there was no indication that evidence would be taken.

At the hearing, Walgreen brought witnesses to present testimony. The plaintiff objected that there had been no notice for an evidentiary hearing. Consequently plaintiffs counsel had not arranged for plaintiff to be present. The plaintiffs counsel stated that the plaintiff would wish to testify, and indicated what the substance of the plaintiffs testimony would be. The plaintiff also objected that the hearing had been scheduled on less than twenty-four hours notice, and that such notice was unreasonably short.

We conclude that there was insufficient due process notice. There was no notice to the plaintiff that evidence would be taken, and plaintiff made a timely objection on this point. The plaintiff is entitled to fair notice and an opportunity to be heard, prior to any order being entered which would dismiss the case on the basis of fraud and perjury. See Butts v. Hegmann, 705 So.2d 1007, 1008 (Fla. 4th DCA 1998); Hart v. Hart, 458 So.2d 815, 816 (Fla. 4th DCA 1984); Henzel v. Golstein, 349 So.2d 824, 825 (Fla. 3d DCA 1977). Further, one day’s notice for a nonemer-gency dispositive motion was unreasonably short. See J.B. v. Dept. of Children & Family Serv., 768 So.2d 1060, 1067 (Fla. 2000); Crepage v. City of Lauderhill, 774 So.2d 61, 65 (Fla. 4th DCA 2000).

We reverse the judgment and remand for a new evidentiary hearing. We do so solely on procedural grounds, and do not express any opinion on the merits of Walgreen’s dismissal motion.

Reversed and remanded for a new hearing.


text:
    Troy MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2471.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Troy Martin, in proper person.
    Richard E. Doran, Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SHEWN, JJ.
   PER CURIAM.

Troy Martin appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, wherein defendant-appellant Martin asserts newly discovered evidence. The motion fails to set forth what the evidence was in the defendant’s case, and how the claimed newly discovered evidence would have affected the outcome, if at all. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This court’s affirmance is without prejudice to the defendant to file an amended motion.

Affirmed.


text:
    Dedrick ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-643.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before LEVY, SHEVIN and RAMIREZ, JJ.
   SHEVIN, Judge.

We reverse Dedrick T. Robinson’s judgment of convictions upon the holding that the trial court erroneously disallowed defense counsel’s peremptory challenge of prospective juror Mathews. The record demonstrates that defense counsel’s reasons for the challenge were genuine. This court has held that “[t]here is nothing in [State v.] Neil, [457 So.2d 481 (Fla.1984),] or its progeny, that forbids choosing among available jurors, even for capricious reasons, so long as the reasons are not racially discriminatory. Peremptory challenges are still presumed to be exercised in a non-discriminatory manner.” Davis v. State, 691 So.2d 1180, 1182 (Fla. 3d DCA 1997). Although the strike in this case was questioned as being gender-discriminatory, this statement applies with the same force. Being the victim of a crime is a recognized neutral reason for striking a potential juror, Anderson v. State, 750 So.2d 741 (Fla. 3d DCA 2000), and so is striking a potential juror who’s relative has been arrested or charged with a crime. See Allen v. State, 643 So.2d 87 (Fla. 3d DCA 1994). Therefore, the court erred in denying the strike; a new trial is required.

Reversed and remanded.


text:
    Lee A. STAPPENBECK, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Sun Vista Hotels, Inc., Appellees.
    No. 3D02-663.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Lee A. Stappenbeck, in proper person.
    John D. Maher (Tallahassee), for appel-lee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

We affirm the final order disqualifying the appellant from receiving unemployment benefits where there is substantial, competent record evidence to support the determination that he failed to follow the reasonable instructions of his employer, and was thus discharged for misconduct as defined by section 443.036(29), Fla. Stat. (2001). See Bozzo v. Safelite Glass Corp., 654 So.2d 1042, 1042 (Fla. 3d DCA 1995); Brownstein v. Hartwell Enters., Inc., 647 So.2d 1004, 1005 (Fla. 3d DCA 1994); Rubido v. Brinks, Inc., 601 So.2d 1298, 1300 (Fla. 3d DCA 1992).

Affirmed.


text:
    Patricia IZURIETA, Appellant, v. Ana GONZALEZ and Carlos Gonzalez, Appellees.
    No. 3D02-2645.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Carrera & Amador and Juan M. Carrera and Carmen G. Amador, for petitioner.

      Spear & Hoffman and Lucilo Ramos, Jr., for respondents.
    Before SCHWARTZ, C.J., JORGENSON and SHEVIN, JJ.
   SHEVIN, Judge.

Patricia Izurieta petitions for a writ of certiorari to quash an order setting aside a transfer of real property as a fraudulent conveyance. We treat the petition as a notice of appeal, and reverse the order.

The trial court erred in granting the motion to set aside the transfer of property titled in Izurieta’s name. Izurieta was not brought into the case as an impleader defendant, or present in the proceedings in any capacity other than as a witness. “[D]ue process requires that the rights of third persons claiming adversely both to the plaintiff and defendant in execution should not be finally adjudicated unless such persons have been first fully implead-ed and brought into the proceedings as actual parties and given opportunity to present their claims as parties on the issues made up including questions as to whether conveyances of property of the judgment debtor are voidable as to them.” Morton v. Cord Realty, Inc., 677 So.2d 1322, 1324 (Fla. 4th DCA 1996); see Varveris v. Carbonell, 773 So.2d 1275 (Fla. 3d DCA 2000).

Reversed and remanded for further proceedings.


author: PLEUS, J.

text:
    Gerald McMILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-462.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.

      James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

McMillan appeals his convictions for armed robbery with a firearm and resisting an officer without violence. He argues that the trial court erred in (1) allowing the state to reopen its case, (2) instructing the jury on armed robbery with a firearm when that offense was not charged, (3) violating separation of powers by charging McMillan with an offense -not charged in the information, and (4) violating McMillan’s due process rights by convicting him of an offense not charged in the information. We affirm.

All of McMillan’s arguments are founded upon his. assertion that he was charged with armed robbery with a weapon rather than armed robbery with a firearm. McMillan was charged by information as follows:

COUNT ONE
CHARGE: ARMED ROBBERY WITH A WEAPON, in violation of F.S. 812.13(1) & (2)(b)
SPECIFICATIONS OF CHARGE: In that GERALD .CHRISTOPHER MCMILLAN ... did then and there .unlawfully by force, violence, assault or putting in.fear take away from the person or custody of K. PATEL certain property .of value, to wit: CURRENCY, the property of THRIFT LODGE HOTEL, with the intent to deprive K. PATEL and/or THRIFT LODGE MOTEL of their rights to said property or a benefit therefrom and, in the course of ■ committing said' robbery, carried a weapon, to wit: A FIREARM.

The state correctly notes that McMillan failed to challenge the information prior to trial as required by Florida Rule ■ of Criminal Procedure 3.190. “Where a defendant waits until after the State rests its case to challenge the propriety of an indictment, the defendant is required to show not that the indictment is technically defective but that it is so fundamentally defective that it cannot support a judgment of conviction.” Ford v. State, 802 So.2d 1121, 1130 (Fla.2001). This rule is designed to discourage defendants from waiting until after a trial is over before contesting deficiencies in charging documents which could have easily been corrected if they had been pointed out before trial. Id. Where the charging document is merely imperfect or imprecise, the failure to challenge it by motion to dismiss waives defect. State v. Wimberly, 459 So.2d 456 (Fla. 5th DCA 1984). On the other hand, where an information totally omits an essential element of the crime or is so vague, indistinct or indefinite that he is misled or exposed to double jeopardy, it is fundamentally defective. Id. The overriding concern is whether the defendant had sufficient notice of the crimes for which he is being tried.

In the instant case, the caption charged armed robbery with a weapon and recited the statute applicable to that crime. These technical defects are not fatal. See Fla. R.Crim. P. 3.140(d)(1); Sanders v. State, 386 So.2d 256, 257 (Fla. 5th DCA 1980). The determinative questions are whether the information charged every element of the offense of robbery with a firearm and whether it misled McMillan. The specifications of the information alleged each essential element of the crime of armed robbery with a firearm. See §§ 812.13(1) and (2)(a), Fla. Stat. (2001). The information sufficiently notified McMillan that he was charged with committing a robbery by carrying a firearm. See Mosely v. State, 688 So.2d 999 (Fla. 2d DCA 1997). McMillan has failed to demonstrate otherwise. Sanders, 386 So.2d at 257.

Having concluded that the information sufficiently charged robbery with a firearm, we find that it was unnecessary for the state to prove that the firearm was operable. See, e.g., St. Hilaire v. State, 778 So.2d 479 (Fla. 4th DCA 2001); Ahlberg v. State, 541 So.2d 775 (Fla. 3d DCA 1989). Thus, McMillan’s argument that the trial court abused its discretion in allowing the state to reopen its case is rendered moot. Even if it were not moot, this court has previously rejected the exact argument made by McMillan in K.K. v. State, 717 So.2d 193 (Fla. 5th DCA 1998).

Likewise, McMillan’s remaining arguments must fall because the foundation upon which they were constructed has proven faulty. Because we find that the information sufficiently charged armed robbery with a firearm, McMillan’s arguments regarding jury instructions, due process and separation of powers cannot stand. Accordingly, we affirm his conviction.

AFFIRMED.

COBB and PETERSON, JJ., concur.

      . McMillan was charged in Count 2 with resisting an officer without violence. That charge is not relevant to this appeal.


author: STRINGER, Judge.

text:
    MERRILL LYNCH TRUST COMPANY, Appellant, v. ALZHEIMER’S LIFELINERS ASSOCIATION, INC.; The Arthritis Foundation, Florida Chapter, Southwest Branch; The Salvation Army, a Georgia corporation; The American Lung Association of Gulf Coast Florida, South Bay Region, Appellee.
    No. 2D02-683.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.

      Barry F. Spivey of Ruden, McClosky, Smith, Schuster & Russell, P.A., Sarasota, for Appellant.
    Dianne D. Hagan and Henry P. Trawick, Jr., Sarasota, for Appellees Alzheimer’s Li-feliners Association, Inc., and The Arthritis Foundation, Florida Chapter, Southwest Branch.
    John M. Strickland of Livingston, Patterson & Strickland, P.A., Sarasota, for Appellee The Salvation Army.
    Ira M. Seidler of Smith & Seidler, St. Petersburg, for Appellee The American Lung Association of Gulf Coast Florida, South Bay Region.
   STRINGER, Judge.

Appellant, Merrill Lynch Trust Company (“Merrill Lynch”), seeks review of the trial court’s order granting The American Lung Association’s (“American Lung”) motion for writ of execution and granting Alzheimer’s Lifeliners Association, Inc.’s (“Alzheimer’s”), The Arthritis Foundation’s (“Arthritis”), and The Salvation Army’s (“Salvation Army”) motions for contempt. We reverse.

This case began with a dispute over the proper beneficiaries of the Ruth M. Trout Charitable Remainder Unitrust (“the Trust”) after Trout’s death in July 1997. In June 1999, Merrill Lynch, as trustee, and Alzheimer’s and Arthritis, as charitable remainder beneficiaries, filed separate actions to determine beneficiaries under the Trust. Their separate actions were consolidated. On January 28, 2000, the trial court granted Alzheimer’s motion for summary judgment, voiding an attempted amendment to the Trust which purportedly removed American Lung, Alzheimer’s, Arthritis, and Salvation Army (together “the Beneficiaries”) as beneficiaries, and named Greensburg Public Library in their place. The summary judgment ordered that “MERRILL LYNCH TRUST COMPANY is directed to make distribution to [the Beneficiaries] in accordance with the Trust.”

The summary judgment was appealed, and the trial court denied Merrill Lynch’s motion requesting a stay of the summary judgment pending the appeal. Merrill Lynch did not appeal the denial of its motion requesting the stay. We affirmed the trial court in Greensburg Public Library v. Alzheimer’s Lifeliners Ass’n, 787 So.2d 947 (Fla. 2d DCA 2001), and mandate issued on July 9, 2001.

On August 10, 2001, Merrill Lynch furnished each of the Beneficiaries with an accounting of all receipts and disbursements of the Trust from its creation through July 31, 2001. Merrill Lynch also sent agreements for the Beneficiaries’ signatures consenting to the accounting and releasing Merrill Lynch from fiduciary liability. Merrill Lynch indicated that it would make a prompt distribution of the Trust upon receipt of the releases. The releases were never executed.

In October 2001 the Beneficiaries filed motions for a writ of execution and for contempt against Merrill Lynch for its failure to distribute the Trust in accordance with the summary judgment. Merrill Lynch filed an independent action seeking judicial approval of the accounting and that action remains pending.

The trial court granted the motion for the writ of execution, finding that the summary judgment was a money judgment against Merrill Lynch individually, in the amount of $328,870.20, the value of the Trust on the date the judgment was entered. The court assessed interest from the date of the summary judgment. The court also found Merrill Lynch in contempt “because it intentionally failed to distribute the Trust to the beneficiaries in accordance with the judgment and it had the ability to do so.”

On appeal, Merrill Lynch argues that the trial court erred in granting the motion for writ of execution because the January 28, 2000, summary judgment is not a “money judgment” subject to execution. Merrill Lynch also argues that the trial court erred in finding it in contempt because the summary judgment is not clear and definite enough to make Merrill Lynch aware that “immediate” distribution of the Trust was commanded. We find merit in both arguments.

Florida Rule of CM Procedure 1.570 provides for the enforcement of final judgments. Subsection (a) provides that “[f]i-nal process to enforce a judgment solely for the payment of money shall be by execution, writ of garnishment, or other appropriate process or proceedings.” We have found only one case addressing what constitutes a “money judgment” for purposes of rule 1.570(a). See Garcia v. Garcia, 748 So.2d 1225 (Fla. 4th DCA 1999).

The Garcia court held that an order to pay temporary attorney’s fees and costs in a divorce modification proceeding was not a “judgment solely for the payment of money” under rule 1.570(a). Instead, the court held that the order was a judgment “for the performance of a specific act or contract” that was enforceable by contempt under rule 1.570(c).

The order in this case is comparable to that in Garcia because it orders Merrill Lynch to distribute the Trust and not to pay a particular sum of money. Thus, the order is not a “judgment solely for the payment of money” enforceable by writ of execution under rule 1.570(a), but a judgment “for the performance of a specific act or contract” enforceable by contempt under rule 1.570(c).

Our holding is buttressed by the conclusion that the order would not be considered a “money judgment” under Florida Rule of Appellate Procedure 9.310(b)(1), which contains the same “money judgment” language. That rule provides that a party may obtain a stay of execution pending review “[i]f the order is a judgment solely for the payment of money.” Courts construing rule 9.310(b)(1) have held that orders directing the disbursement of a specific fund are not money judgments under the rule. See, e.g., Wilson v. Woodward, 602 So.2d 545 (Fla. 2d DCA 1991) (addressing order directing clerk to disburse funds from court registry); Dice v. Cameron, 424 So.2d 173 (Fla. 3d DCA 1983) (addressing order authorizing personal representative to distribute estate funds).

Merrill Lynch next argues that, under section 737.208, Florida Statutes (2002), the summary judgment did not require immediate distribution as found by the trial court, but distribution was required only after the proper beneficiaries were determined. Thus, Merrill Lynch argues that the trial court improperly determined that the date of valuation of the Trust was January 28, 2000, and improperly awarded the Beneficiaries interest from that date.

Section 737.208 provides, in pertinent part:

(1) Pending the outcome of a proceeding filed to determine the validity of all or part of a trust or the beneficiaries of all or part of a trust, the trustee shall proceed with the administration of the trust as if no proceeding had been commenced, except that no distribution may be made to a beneficiary in contravention of the rights of those persons that may be affected by the outcome of the proceeding.
(2) Upon motion of a party and after notice to interested persons, a court may, upon good cause shown, make an exception to the prohibition under subsection (1) and authorize the trustee to distribute trust assets to a beneficiary subject to any conditions the court, in its discretion, may impose, including the posting of bond by the beneficiary.

(Emphasis added.) Thus, under section 737.208, a trustee cannot be compelled to distribute a trust while an action to determine the beneficiaries is pending. In this case, the action to determine the beneficiaries was pending until this court’s mandate issued on July 9, 2001. At that point, the summary judgment directing Merrill Lynch to make distribution to the Beneficiaries in accordance with the Trust was enforceable. Therefore, the trial court erred in determining that Merrill Lynch had a duty to distribute the Trust on January 28, 2000.

The Beneficiaries argue that section 737.208, which went into effect on January 1, 2001, does not apply in this case because it is a substantive provision that may not be applied retroactively. However, it is clear that section 737.208 is procedural in nature and, therefore, may be applied retroactively.

It is well-settled that statutory provisions that are substantive in nature may not be applied retroactively, while procedural provisions may be applied retroactively. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995). Substantive law prescribes rights and duties, while procedural law addresses the methods and means to enforce and apply those rights and duties. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994). Section 737.208 addresses the time for distribution of a trust when litigation is pending regarding the validity of the trust or the proper beneficiaries. It does not infringe on a beneficiary’s right to distribution, as argued by the Beneficiaries, but delays distribution to ensure the propriety of such.

Furthermore, the Florida Legislature itself has indicated that parts of chapter 737 may be procedural in nature. In enacting the statute as part of a substantial revision of the Florida Probate Code, the legislature provided with respect to the entire act that:

[t]he substantive rights of all persons that have vested prior to January 1, 2002, shall be determined as provided in former chapters 63, 215, 409, 660, and 731-737, Florida Statutes, as they existed prior to January 1, 2002. The procedures for the enforcement of substantive rights which have vested prior to January 1, 2002, shall be as provided in this act.

Ch.2001-226, § 195, at 2090, Laws of Fla. (emphasis added). Thus, we conclude that section 737.208 is procedural and not substantive in nature, and it may therefore be applied in this case.

Because the trial court erred in determining that Merrill Lynch had a duty to distribute the Trust as of January 28, 2000, the trial court erred in finding Merrill Lynch in contempt for failing to distribute as of that date. The only issue that remains to be determined is whether the trial court abused its discretion in finding Merrill Lynch in civil contempt for failing to distribute the Trust to the Beneficiaries in accordance with the summary judgment as of July 9, 2001, when this court’s mandate issued. See Northstar Invs. & Dev., Inc. v. Pobaco, Inc., 691 So.2d 565, 566 (Fla. 5th DCA 1997) (“A judgment of contempt comes to the appellate court clothed in a presumption of correctness and will not be overturned unless a clear showing is made that the trial court either abused its discretion ‘or departed so substantially from the essential requirements of the law as to have committed fundamental error.’ ”). If so, the trial court’s finding of contempt must be reversed.

As discussed above, the date mandate issued, July 9, 2001, was the date Merrill Lynch could be compelled to distribute the Trust in accordance with the former summary judgment. The summary judgment directs Merrill Lynch to distribute the Trust, but does not state a time for compliance: “MERRILL LYNCH TRUST COMPANY is directed to make distribution to [the Beneficiaries] in accordance with the Trust.”

If an order to perform an act does not specify the time for performance of the act, it is assumed that performance will be required upon issuance of the order. Powell v. Powell, 580 So.2d 620, 621 (Fla. 1st DCA 1991) (stating that the court would construe an order awarding rehabilitative alimony as requiring payment of the obligation upon entry of the order). However, a party cannot be held in contempt for failing to immediately comply with an order that does not specifically require immediate compliance. Lawrence v. Lawrence, 384 So.2d 279, 280-81 (Fla. 4th DCA 1980) (reversing an order of contempt for failure to pay support* arrearage because “the trial court’s order was not sufficiently explicit and precise with reference to the time for payment of arrearages to support a conclusion that the appellant willfully or wantonly violated that order.”). While Merrill Lynch did not distribute the Trust assets upon this court’s mandate, Merrill Lynch did begin the distribution process as mandated by Florida law.

Florida law requires a trustee to furnish trust beneficiaries an accounting “upon termination of the trust.” See § 737.303(4)(a), Fla. Stat. (2000). After the beneficiaries receive the accounting, they have six months to bring an action in the probate court objecting to the accounting. § 737.307, Fla. Stat. (2000); First Union Nat’l Bank v. Turney, 824 So.2d 172, 189 n. 13 (Fla. 1st DCA 2001). In order to avoid delay, the beneficiaries may consent to the accounting. § 737.307. As an alternative, the trustee may request judicial approval of the accounting. See Rhoades v. Frazier, 124 Fla. 737, 169 So. 379 (1936); Fraser v. Southeast First Bank of Jacksonville, 417 So.2d 707 (Fla. 5th DCA 1982).

In this case, Merrill Lynch took one month to provide the required accounting. With the accounting, Merrill Lynch sent each of the Beneficiaries an agreement for the Beneficiaries’ signatures consenting to the accounting and releasing Merrill Lynch from fiduciary liability. The Beneficiaries chose not to sign and return the releases. Thus, the Beneficiaries had six months to object to the accounting. Within two months of the accounting, however, Alzheimer’s and Arthritis filed a motion for contempt for Merrill Lynch’s failure to distribute the Trust. Because the Beneficiaries refused to consent to the accounting Merrill Lynch provided, Merrill Lynch subsequently filed a request for judicial approval of the accounting.

An essential finding to support contempt is the party’s intent to violate the court order at issue. Power Line Components, Inc. v. Mil-Spec Components, Inc., 720 So.2d 546, 548 (Fla. 4th DCA 1998); Northstar, 691 So.2d at 566. It is clear from Merrill Lynch’s actions that it immediately began the process for distribution of the Trust as mandated by Florida law. It could not have distributed the Trust without conducting an accounting. See First Union Nat'l Bank v. Jones, 768 So.2d 1213, 1215 (Fla. 4th DCA 2000) (“Although a trust instrument directs termination of the trust and the distribution of the principal to the beneficiaries upon the settlor’s death, the trustee cannot make complete distribution until provision has been made for all the expenses, claims and taxes the trust may be obligated to pay, and certainly not before these amounts have been fully ascertained.”). While Merrill Lynch could have distributed the Trust after the completion of the accounting in August 2001, it would not have been prudent to do so for six months without either a consent to the accounting by the Beneficiaries or approval of the accounting by the court. Otherwise, one of the Beneficiaries could object to the accounting after the distribution of the Trust, resulting in litigation over assets that have already been distributed. Thus, the trial court abused its discretion in finding Merrill Lynch in civil contempt for failing to distribute the Trust, and we reverse the entire order on appeal.

Reversed.

WHAjTLEY and KELLY, JJ., concur.

      . Florida Rule of Civil Procedure 1.570(c) provides, in pertinent part:
      (c) Performance of an Act. If judgment is for the performance of a specific act or contract:
      (1)the judgment shall specify the time within which the act shall be performed. If the act is not performed within the time specified, the party seeking enforcement of the judgment shall make an affidavit that the judgment has not been complied with within the prescribed time and the clerk shall issue a writ of attachment against the delinquent party. The delinquent party shall not be released from the writ of attachment until that party has complied with the judgment and paid all Costs accruing because of the failure to perform the act
      (2) the court may hold the disobedient party in contempt; or
      (3) the court may appoint some person, not a party to the action, to perform the act insofar as practicable....

      . We express no opinion as to whether Merrill Lynch breached a fiduciary duty to the Beneficiaries by failing to secure the assets of the Trust as of January 28, 2000.

      . In fact, the Florida Bar recommends that a trustee wait six months to distribute a trust if the trustee does not receive a consent to the final accounting. David A. Armstrong, Administration of Trusts in Fla. § 5.5 (The Florida Bar ed., Lexis Publishing 3d ed.2001).


author: THREADGILL, EDWARD F„ Senior Judge.

text:
    Angela WEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-883.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.

      James Marion Moorman, Public Defender, and Jack W. Shaw, Jr., Special Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   THREADGILL, EDWARD F„ Senior Judge.

Angela Weeks appeals her conviction and the order imposing three years’ probation for child neglect, a third-degree felony. Weeks raises three issues on appeal, but we address only one that requires reversal. The trial court erred in denying Weeks’ motion for judgment of acquittal because the State failed to present competent substantial evidence that Weeks’ acts or omissions regarding dental care for her child could reasonably be expected to result in serious injury to the child.

The State alleged that from January to March 2001 Weeks failed to provide adequate dental care for her seven-year-old son. The child had severe dental caries (cavities) in his “baby” teeth. Weeks was charged with neglect of a child “without causing great bodily harm, permanent disability, or permanent disfigurement” under section 827.03(3)(c), Florida Statutes (2000), a third-degree felony. Section 827.03(3)(a)(l) defines “neglect of a child” as follows:

A caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential, for the well-being of the child;_

Section 827.03(3)(a)(2) provides that “[n]e~ gleet of a child may be based on repeated conduct or' on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.” On a charge of child neglect as a third-degree felony, “the legislature has required that the defendant’s acts or omissions create a ‘reasonably expected’ potential for the child to suffer, at a minimum, serious injury.” Arnold v. State, 755 So.2d 796, 797 (Fla. 2d DCA 2000).

Here, the State presented the testimony of Kay Stump, a pediatric nurse practitioner who also worked for the Child Protection Team. Stump was called in to do a medical exam of the child and saw him on March 14, 2001. The child was alert, cooperative, in no acute distress, and well nourished. He was able to bite down on the tongue blade during the exam. Although his gums were slightly reddened, there was no obvious swelling or infection. In the past the child had complained of toothaches to his teacher, but the child did not complain to Stump of any pain, and she did not prescribe any antibiotics. Stump testified that the child had severe dental caries of his baby teeth and needed dental care. A photograph of the child introduced into evidence showed that the child’s four upper front teeth were blackened and eroded. Stump testified that the potential effect on a child who has teeth in that state was self-esteem issues, weight loss, pain, abscesses, and permanent damage to adult teeth. Stump opined that the child had a “potential” risk of serious injury.

Stump never stated that the condition of the child’s teeth “could reasonably be expected” to result in serious injury, as section 827.03(3)(a) requires. A “potential” result seems to us to be less likely to occur than a result that “could reasonably be expected.” Stump admitted that in her report to the Department of Children and Families, she deferred her finding of any permanent damage to a licensed dentist and recommended that X-rays be done. She did not know the condition of the roots of the child’s teeth. No dentist testified in this case, and no one testified as to what “could reasonably be expected” from the lack of dental care in this case. Therefore, the State failed to prove a prima facie case of child neglect, and the trial court should have granted Weeks’ motion for judgment of acquittal on this ground. Accordingly, we reverse the judgment and order imposing probation for child neglect and remand for the trial court to enter a judgment of acquittal.

Reversed and remanded.

NORTHCUTT and DAVIS, JJ., concur.


author: SHARP, W., J.

text:
    David T. QUEEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-2753.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Queen appeals from two orders rendered by the trial court: the first order placed him on probation, ordered him to pay restitution to the City of St. Augustine, and reserved the amount to be paid; and a subsequent order filed October 16, 2001, set restitution in the amount of $999.00. We affirm in part, strike conditions (10) and (12), quash the order setting restitution, and remand for further proceedings.

Queen pled nolo contendere to misdemeanor criminal mischief. The trial court withheld adjudication of guilt and placed him on twelve months probation. It also required him to pay restitution, but reserved jurisdiction to set the amount. This order was rendered on August 6, 2001, and Queen filed a notice of appeal on September 6, 2001. On October 15, 2001, the trial court set the restitution amount and filed that order on October 16, 2001. Queen also filed a motion to correct a sentencing error on December 4, 2002, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which was not acted on by the trial court.

Queen challenges three conditions of his probation because they were not orally pronounced at his sentencing:

(10) You will participate in self-improvement programs determined by the Court, or your officer.
(12) You will hereby waive all extradition rights and process during your term of supervision and agree to comply and return to the State of Florida, and the Court of Jurisdiction, upon official instruction to do so.
(13) You will submit to a reasonable search without a Warrant by your officer of your person, effects, residence or vehicle for weapons or firearms, alcoholic beverages, or controlled substances.

The state concedes that condition (10) is neither statutorily authorized nor contained within the general conditions or probation and thus it must be orally pronounced at sentencing to be validly imposed. § 948.03(1), Fla. Stat. (2000), Fla. R.Crim. P. 3.986(f). See Hagins v. State, 693 So.2d 698, 699 (Fla. 4th DCA 1997). In addition, the state concedes that condition (12) must also be orally pronounced at sentencing because it is a special rather than a general condition. See Steinard v. State, 711 So.2d 105, 106 (Fla. 2d DCA), rev. denied, 718 So.2d 171 (Fla.1998); McDaniels v. State, 679 So.2d 840 (Fla. 2d DCA 1996); Reiter v. State, 674 So.2d 189 (Fla. 2d DCA 1996). Thus both of these conditions must be stricken.

However, condition (13), although not a standard condition of probation nor a general condition, has been upheld even though not orally pronounced at sentencing because probation officers must be able to conduct warrantless searches in order to properly supervise their probationers. Brown v. State, 697 So.2d 928 (Fla. 2d DCA 1997). The court in Brown relied on Grubbs v. State, 373 So.2d 905 (Fla.1979), and determined that section 948.03, provided the necessary notice sufficient to validate this written condition, even though not orally pronounced at sentencing. These holdings were codified in section 948.03(5), Fla. Stat. (1999). Thus, we affirm condition (13).

We also quash the order setting the restitution amount because it was rendered after Queen had filed his notice of appeal. At that time the trial court did not have jurisdiction to conduct a restitution hearing or to render an order thereon. See Marro v. State, 803 So.2d 906 (Fla. 4th DCA 2002); Kern v. State, 726 So.2d 353 (Fla. 5th DCA 1999). However, this ruling is without prejudice to the court to conduct another restitution hearing on remand. Locus v. State, 785 So.2d 594 (Fla. 1st DCA 2001). Both the state and the public defender agree on this point.

AFFIRMED in part; Conditions (10) and (12) STRICKEN; Order Setting Restitution Amount QUASHED; REMANDED.

COBB and PLEUS, JJ., concur.

      . § 806.13(l)(a) and (b), Fla. Stat. (2000).

      . The relevant subsections of section 948.03, Florida Statutes (1997) provide:
      (1) The court shall determine the terms and conditions of probation or community control. Conditions specified in paragraphs
      (a)-(m) do not require oral pronouncement at the time of sentencing and may be considered standard conditions of probation. Conditions specified in paragraphs (a)-(m) and (2)(a) do not require oral pronouncement at sentencing and may be considered standard conditions of community control. These conditions may include among them the following, that the probationer or offender in community control shall:
      (a) Report to the probation and parole supervisors as directed.
      (b) Permit such supervisors to visit him or her at his or her home or elsewhere.
      (c) Work faithfully at suitable employment insofar as may be possible.
      (d) Remain within a specified place.
      (k) 1. Submit to random testing as directed by the correctional probation officer or the professional staff of the treatment center where he or she is receiving treatment to determine the presence or use of alcohol or controlled substances.
      2. If the offense was a controlled substance violation and the period of probation immediately follows a period of incarceration in the state correction system, the conditions shall include a requirement that the offender submit to random substance abuse testing intermittently throughout the term of supervision, upon the direction of the correctional probation officer as defined in s. 943.10(3).
      (m) Be prohibited from using intoxicants to excess or possessing any drugs or narcotics unless prescribed by a physician. The probationer or community controllee shall not knowingly visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.

      . Section 948.03(5), Fla. Stat. (1999) provides:
      (5) Conditions imposed pursuant to this subsection, as specified in paragraphs (a) and (b), do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation or community control for offenders specified in this subsection.
      * * ❖
      10. Submission to a warrantless search by the community control or probation officer of the probationer’s or community control-lee’s person, residence, or vehicle.


author: GREEN, OLIVER L., Senior Judge.

text:
    Jermaine Carlos JOHNS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4436.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.

      James Marion Moorman, Public Defender, and Ronald S. Tulin, Special Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   GREEN, OLIVER L., Senior Judge.

Jermaine Carlos Johns challenges his conviction and sentence for attempted robbery while wearing a mask. Johns raises four issues on appeal, only one of which has merit. Because we agree that improper comments made in the State’s closing argument denied Johns a fair trial, we reverse.

The evidence at trial established that two men attempted to rob a Burger King manager as he was leaving the restaurant after closing. One of the men was wearing a mask, and the other remained too far away for the victim to see clearly. The man in the mask demanded the “pouch” from the victim, presumably in reference to a restaurant bank bag. When the victim responded that he did not have the pouch, the robbers quickly walked away.

At the same time, a sheriffs department helicopter happened to be overhead, and a Pasco County sheriffs detective in the helicopter observed the attempted robbery by means of a forward-looking infrared (FLIR) camera. This type of camera allowed the detective to see the victim and the robbers as glowing forms, but he could not identify any features of any of the individuals. The detective tracked the robbers with the FLIR camera as they made their escape, and he directed other sheriffs officers to form a perimeter on the ground. While officers on the ground were setting up a perimeter, the detective using the FLIR camera lost track of both robbers under the trees.

As Pasco Sheriffs Deputy Collazo was driving to his designated location in the perimeter, a man ran across the road, almost running into the patrol car. Colla-zo immediately began a foot pursuit of this man, believing him to be one of the robbers. As Collazo was chasing this suspect, he found Johns standing behind a tree, sweating and out of breath and looking up at the helicopter. Collazo stopped chasing the running suspect and arrested Johns. In Johns’ back pocket, Collazo found a black “doo rag.” Collazo took Johns back to Burger King where the victim was giving a statement. While the victim could not identify Johns as one of his assailants, he did identify Johns’ “doo rag” as the mask the robber was wearing.

Following the victim’s identification of Johns’ “doo rag” as the mask worn by the robber, the police read Johns his Miranda rights. Johns then gave the police various conflicting statements concerning how he got to the area, his reasons for being in the area, and his reasons for hiding behind the tree. Johns was subsequently charged with attempted armed robbery while wearing a mask.

At trial, the State argued that Johns was found in the area of the crime with a “doo rag” identified by the victim as the mask worn during the attempted robbery. The State argued that Johns’ conflicting statements to police showed that he was not telling the truth about why he was in the area or what he had been doing. Johns’ theory of defense was that he was caught in the wrong place at the wrong time. He argued that he had been in the area to visit his girlfriend, that he had left her apartment to find a pay phone, and that when he spotted the helicopter, he realized that there was trouble in the area. He decided to hide behind the tree out of the way until the police activity died down and he could go about his business.

During closing arguments, the prosecutor began with the following comment:

[PROSECUTOR]: You folks, I’d ask that you not forget the victim as you sit in this courtroom and you see the defendant’s mother, and younger brother.
As we talked in jury selection about sympathy, and I understand that sympathy is a normal very natural human response, I ask that you not forget the victim.
[DEFENSE COUNSEL]: Objection. May we approach for a legal motion? BENCH CONFERENCE:
[DEFENSE COUNSEL]: Motion for mistrial on the grounds he’s bringing sympathy as an issue before the jury.
THE COURT: Okay. The motion for mistrial is denied. But I don’t want either side to be arguing sympathy, and say remember the victim, it comes too close to. that. So I’m not going to allow you to continue in this vain [sic].

The jury was instructed to disregard the prosecutor’s comments. Despite this admonition, the prosecutor continued:

Folks, I’m not going to ask you to convict the defendant because you feel sorry for the victim, that’s not what I’m asking you to do. I’m not asking you to acquit the defendant because you feel sorry for his family.

Later, the prosecutor made the following argument concerning whether Johns was properly charged:

Did we charge someone who’s 6'2" or 6'4," with this crime? No. Did we charge someone who didn’t have the implements necessary to pull this crime off? No.
Did we charge someone who the victim described as having a speech pattern consistent with an African American citizen with our country? No. Because the defendant’s voice has a distinct pattern, which you all heard. Did we charge somebody, folks, that wasn’t in the area? No.
Did we charge somebody who wasn’t running? No. Did we charge someone who didn’t have the means of escape in a vehicle? No. Did we charge someone who didn’t have the keys to the means of escape? No. And did we charge someone who was honest with law enforcement? No.
We charged someone who had every opportunity and completely made every effort from day one to impede these officers’ investigation over and over again, as evidenced by those tapes.

A short time later, the prosecutor continued with this argument:

Number two, the defendant is guilty of the lesser included offense of attempted robbery without a weapon.
Now, why does that not apply to these facts? Simple. Again your common sense will tell you it doesn’t apply, because the victim in this case told you that he felt a blunt object in his ribs, and he looked down and saw the defendant’s hand or a robber’s hand around some object and he thought it was a gun.
He felt it was a gun, but did we charge the defendant with a gun? No. Because we couldn’t prove it. We didn’t charge anything that we couldn’t prove. What we charged was provable.

(Emphasis added.)

Next, the prosecutor argued that “people like the defendant” committed crimes:

And unfortunately for the defendant the victim didn’t have any money, because Burger King knows enough to know that the defendant, people like the defendant are out at night robbing people, especially managers of stores, so they don’t let their managers go out with cash at night.

(Emphasis added.) The court, sua sponte, interrupted the prosecutor at that point and admonished him that this argument was improper. In closing, the prosecutor argued, “What in the world entitles him the defendant to a verdict of not guilty? What in the world, mere possibility?”

In addition to these specific comments, throughout his argument the prosecutor continually denigrated Johns’ theory of defense and belittled defense counsel for maintaining such a defense. The prosecutor also commented on facts not in evidence and improperly vouched for the credibility of the law enforcement officers who testified.

After deliberations, the jury found Johns guilty of the lesser offense of attempted robbery without a weapon while wearing a mask. Johns then brought this appeal, arguing, among other things, that the prosecutor’s improper closing arguments denied him his right to a fair trial.

We begin by noting that while there was sufficient evidence to withstand a motion for judgment of acquittal, the evidence against Johns was not overwhelming. Johns was arrested within the perimeter set up by the police after the attempted robbery but more than seven-tenths of a mile from the Burger King where the attempted robbery occurred. Johns was not fleeing from the police when he was apprehended but was found hiding behind a tree. Deputy Collazo, who had been chasing a known suspect, gave up that chase after spotting Johns and arrested Johns instead. Johns did not resist Collazo or try to flee. Johns told Collazo that he had been at his girlfriend’s house and that he had left there to find a pay phone. The only physical evidence connecting Johns in any way to the crime was the “doo rag.” Based on this evidence, the case should properly have gone to the jury. However, contrary to the State’s assertions, the evidence was not overwhelming.

In the context of this evidence, the prosecutor’s improper arguments to the jury rose to the level of reversible error. The prosecutor’s first statement was a request that the jury show sympathy for the victim. This type of argument is clearly improper. See Thomas v. State, 787 So.2d 27, 30 (Fla. 2d DCA 2001); Brown v. State, 593 So.2d 1210, 1211-12 (Fla. 2d DCA 1992). The prosecutor also argued that the State had charged the right person and had only brought charges that it could prove, implying the State only charges those who are guilty. An argument that the State only charges those who are guilty is improper. Ruiz v. State, 743 So.2d 1, 5 (Fla.1999). The prosecutor next argued that the reason that the robbery was not successful was because Burger King knew that “people like the defendant” were out there trying to rob employees. However, it is improper to cite witnesses or defendants as examples of a certain criminal type. Perez v. State, 689 So.2d 306, 307 (Fla. 3d DCA 1997). The State then went on to disparage Johns for having exercised his right to trial. This too is an improper argument. See Bell v. State, 723 So.2d 896 (Fla. 2d DCA 1998). Next, the State vouched for the credibility of the law enforcement officers who testified. This again is an improper argument. Brown v. State, 787 So.2d 229, 230 (Fla. 2d DCA 2001). Finally, the State’s arguments that denigrated both Johns’ defense and defense counsel were improper. Miller v. State, 712 So.2d 451, 453 (Fla. 2d DCA 1998); Lewis v. State, 711 So.2d 205, 206 (Fla. 3d DCA 1998). The trial court acknowledged the impropriety of these arguments, sustained the objections made, and instructed the jury to disregard the comments; however, the trial court denied Johns’ motions for mistrial.

In making these improper arguments, the prosecutor failed to maintain the demeanor required in a criminal trial. “A criminal trial is a neutral arena wherein both sides place evidence for the jury’s consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury’s view with personal opinion, emotion, and nonrecord evidence!!]” Ruiz, 743 So.2d at 4. While no one of the comments standing in isolation would have required a new trial, this court must look at the entire trial record when considering whether the comments at issue are of such a nature as to destroy the fairness of the proceeding. Brown, 787 So.2d at 230. When considering the relative lack of evidence against Johns, the character of the evidence that did exist, and the number of improper arguments made by the prosecutor, it is apparent that the prosecutor’s closing argument was improper with respect to the “neutral arena” in which a trial should be held, Ruiz, 743 So.2d at 4, and that the curative instructions were insufficient. The cumulative effect of these improper arguments was not harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (holding that to establish harmless error, the State must show “beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction”). Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

SILBERMAN and KELLY, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).