text:
    McArthur HELM, Appellant, v. Sally H. FOOTE, for the Estate of Johnie Will Helm, Sr., deceased; Johnnie Helm-James; Johnie Will Helm, Jr., and Leslie Helm-Smalls, Appellees.
    No. 2D02-663.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.

      McArthur Helm, pro se, Appellant.
    Marie A. Borland and Brett J. Preston of Hill, Ward & Henderson, P.A., Tampa, for Appellees, Sally H. Foote and Thompson & Foote, P.A.
   FULMER, Judge.

McArthur Helm (“Helm”), a state prisoner, appeals the dismissal of his claim against the estate of Johnie Will Helm, Sr., the appellant’s father. The trial court dismissed Helm’s claim for failure to prosecute. We reverse because the trial court was not authorized to dismiss the claim for failure to prosecute where the underlying probate action remains pending. Further, the trial court did not provide Helm with an adequate opportunity to participate in the trial court proceedings.

Helm filed a creditor’s statement of claim in the probate action, In re: Estate of Helm, No. 98-3564-ES 003 (6th Cir. Ct.). The personal representative of the estate, Johnnie Helm-James, moved to strike Helm’s claim as untimely filed, and the curator of the estate, Sally H. Foote, filed an objection to the claim. There is no record of any rulings being made on the motion to strike or on the objection to the claim.

Helm also filed an independent civil suit against Foote, as the curator of the estate, and the three named beneficiaries of the decedent’s will, Johnnie Helm-James, Johnie Will Helm, Jr., and Leslie Helm Smalls. Both Foote and Helm-James filed motions to transfer the civil action to the probate court on the ground that the action involved the administration of the estate. The attorney for the personal representative filed a notice of hearing on the motions to transfer and served Helm. Helm objected to the transfer and filed a request to participate in the hearing, specifically asking that a court order be sent to a named staff member at the prison where he was housed to arrange for his participation in the telephonic hearing. No court order was entered allowing for Helm’s participation in the hearing, and it appears that Helm was not able to call in to the judge’s office at the designated time for the hearing. The record reflects that a telephonic hearing was held with the attorneys for the curator and the personal representative participating by calling in to the judge’s office, after which the court authorized the transfer of the case to the probate division. The order on the transfer recited a finding that the action pertained to the probate of the estate of Johnie Will Helm, Sr., which was pending in the probate division of the circuit court.

In March 2001, Helm filed in the probate case a motion for a mediation hearing. No action was taken on this motion. In May 2001, the personal representative filed a “Petition to Extend Time for Filing Final Accounting and Petition for Discharge.” In response, the trial court entered an order extending the time for filing the final accounting and petition for discharge until November 9, 2001.

In August 2001, the curator filed in the probate case a motion to dismiss for failure to prosecute Helm’s action. The motion was made pursuant to Florida Rule of Civil Procedure 1.420(e) and stated as grounds for the motion that “there has been no record activity in this case for a period of over one year.” Helm objected to the motion in a written response that cited his motion for mediation as evidence that the case had not been devoid of record activity for one year. The trial court granted the motion to dismiss on October 9, 2001.

On October 18, 2001, Helm moved to set aside the order of dismissal, arguing that he was not allowed to participate in the hearing on the motion to dismiss, that the trial court transferred his case to the probate court on August 2, 2000, over his objection, and that in March 2001 he had filed his motion for mediation, which constituted record activity.

The attorney for the curator filed a notice of hearing on Helm’s motion to set aside the dismissal. This notice stated: “Please note, pro se Plaintiff to appear by telephone by calling Judge Greer’s Chambers directly” with a telephone number provided. Helm responded with a detailed motion entitled “Motion for Court to Order D.O.C. to Allow Plaintiff to Call Up for Hearing and Pay for Call,” explaining that the Department of Corrections would not permit him to participate in the telephone hearing based on the notice of hearing alone. Helm requested one of three alternatives, that: (1) the court issue an order directing that Helm be allowed to participate in the hearing telephonically at state expense; (2) he be transferred to the court for the hearing; or, (3) the court rule on his motion to set aside the dismissal without a hearing.

The trial court proceeded with the hearing on Helm’s motion to set aside the dismissal without Helm’s participation and denied Helm’s motion. The court also denied Helm’s motion to order the Department of Corrections to allow him to call in for the hearing. In denying this motion, the court noted, “the Court has no authority or jurisdiction to grant the requested relief.”

We first find reversible error in the trial court’s order dismissing Helm’s claim for failure to prosecute under Florida Rule of Civil Procedure 1.420(e) because that rule authorizes dismissal of entire actions only, not specific claims. See Hanson v. Poteet, 556 So.2d 828 (Fla. 2d DCA 1990). Helm’s claim was part of the probate case by virtue of the transfer of his civil action to the probate case- — a transfer that the curator and personal representative requested. After the transfer, there was no separate action and no separate case number for Helm’s claim; it was subsumed into the probate case. Because the probate case was still pending when the trial court granted the dismissal, the dismissal was not authorized by the rule.

We further find error in the trial court’s denial of Helm’s motion requesting accommodation in order to participate in the hearing held on his motion to set aside the dismissal. The trial court denied Helm’s motion because it concluded it was not authorized to grant relief. This was incorrect. In a civil case, the trial court can order that an inmate be transported to a hearing by the state, see Waugh v. Waugh, 679 So.2d 1 (Fla. 2d DCA 1996); however, as an alternative, “the trial court normally should grant a request to hold necessary hearings by telephone.” Johnson v. Johnson, 783 So.2d 326, 327 (Fla. 1st DCA 2001) (citing Gosby v. Third Judicial Circuit, 586 So.2d 1056 (Fla.1991); Vaughan v. Vaughan, 767 So.2d 614 (Fla. 5th DCA 2000); Waugh; Conner v. Conner, 590 So.2d 513 (Fla. 1st DCA 1991)). Helm informed the court that he was unable to participate by telephone without an order directed to the Department of Corrections. On remand, should the trial court elect to offer Helm an opportunity to participate in any necessary hearings by telephone, the trial court should ensure that the necessary arrangements are made with the Department of Corrections to permit Helm’s participation.

Reversed and remanded.

SALCINES and STRINGER, JJ., Concur.

      .Helm initially filed a petition contesting the will and objecting to the named personal representative. After the will contest was disposed of by entry of summary judgment in favor of the respondent, Johnnie Helm-James, Helm filed the statement of claim and independent action which are the subject of the present appeal.

      . In response to Helm’s request for an accommodation to participate in the hearing, the attorney for the personal representative sent a letter to prison officials requesting that Helm be permitted to place a call to the judge's office at his own expense at the time of the hearing.

      . This deadline was later extended to December 7, 2001.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    J.D.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2896.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
    James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Sr. Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

J.D.C. appeals his adjudication and commitment for battery on a specified official or employee, assault on a specified official or employee, and obstructing or opposing an officer without violence. His counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), acknowledging that there are no grounds for reversal but suggesting that remand is required for correction of the disposition order. We agree that reversal of the disposition order is required.

J.D.C. was adjudicated delinquent for three separate offenses; two were first-degree misdemeanors and one was a third-degree felony. See §§ 784.081(3), (4), 843.02, Fla. Stat. (2000). The trial court entered one order adjudicating J.D.C. delinquent for' all three offenses. Neither the order nor a separate order entitled “Findings in Support of Disposition Order” identify J.D.C.’s age or the degree and maximum penalty for each of these offenses as required by Florida Rule of Juvenile Procedure 8.115(c)(1), (2).

Because multiple offenses constitute the basis of the delinquency adjudication, the trial court must enter a separate disposition order for each offense that does not impose commitment beyond the comparable adult sanction and that complies with the requirements of rule 8.115(c). See D.S.S. v. State, 806 So.2d 554, 556 (Fla. 2d DCA 2002); A.B. v. State, 805 So.2d 924 (Fla. 2d DCA 2001). Accordingly, we affirm the adjudication of delinquency, reverse the disposition order, and remand for the trial court to enter separate orders of disposition for each offense.

Affirmed in part, reversed in part, and remanded.

STRINGER and CANADY, JJ., Concur.


author: EDWARD F. THREADGILL, Senior Judge.

text:
    Robert SIMPKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5155.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
    James Marion Moorman, Public Defender, Bartow, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Assistant Attorney General, Tampa, for Appel-lee.
   EDWARD F. THREADGILL, Senior Judge.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Simpkins challenges his resentencing on remand from this court. We have reviewed the record and conclude that the trial court erred in orally adding a new condition of probation to Simpkins’ probationary sentence. The additional condition required Simpkins to pay $411 in court costs. This condition had not previously been imposed.

By requiring Simpkins to pay the $411 in costs as a new condition of probation, the court enhanced Simpkins’ sentence even though he had not violated his probation. This amounts to fundamental error. See Lippman v. State, 633 So.2d 1061 (Fla.1994). This additional condition cannot be considered a modification since there were no monetary conditions of probation ever previously imposed.

We, therefore, remand to the trial court to strike the condition of probation improperly imposed. Otherwise, we affirm Simpkins’ convictions and sentences.

Affirmed, remanded to strike oral condition of probation.

NORTHCUTT and CASANUEVA, JJ„ Concur.

      . While the written sentencing order does not contain this new condition, the oral directive does add this specific provision and oral directives control over written ones in sentencing. Trapp v. State, 760 So.2d 924 (Fla.2000).


author: DAVIS, Judge.

text:
    HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Appellant, v. Mark J. ALBRECHTA, Esquire, In re Ali Z. Ford, Appellee.
    No. 2D02-547.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
    Emeline C. Acton, County Attorney, and Robert E. Brazel, Senior Assistant County Attorney, Tampa, for Appellant.
    Mark J. Albrechta, Tampa, for Appellee.
   DAVIS, Judge.

Hillsborough County challenges the circuit court order approving payment by the County of Mark Albrechta’s fees incurred as court-appointed counsel in a Marchman Act proceeding. We affirm.

Section 43.28, Florida Statutes (2000), provides, “The counties shall provide appropriate courtrooms, facilities, equipment, and, unless provided by the state, personnel necessary to operate the circuit and county courts.”

The Florida Supreme Court has interpreted this statute to mean:

[Wlhen appointment of counsel is constitutionally required to represent an indigent, the case cannot proceed without such an appointment; consequently, such counsel is “personnel necessary” to operate the court. In such an instance, the trial court may require the county to pay appropriate attorney’s fees for such representation absent any other statutory provision.

In re D.B., 385 So.2d 83, 93 (Fla.1980); see also In re R.W., 409 So.2d 1069, 1070-71 (Fla. 2nd DCA 1981).

Accordingly, the issue before us in the instant case is whether appointment of counsel is constitutionally required in Marchman Act proceedings. While Florida’s district courts and supreme court have not directly addressed this question, the United States Supreme Court has recognized that involuntary commitment triggers due process protections. See Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); see also § 397.501(8), Fla. Stat. (2000) (including the right to counsel as one of the enumerated rights of respondents in Marchman Act proceedings). Because due process is implicated, we conclude that a defendant has a constitutional right to be represented by counsel in Marchman Act proceedings. Accordingly, pursuant to section 43.28 and In re D.B., the trial court here was right for the wrong reasons, see Applegate v. Barnett Bank, 377 So.2d 1150, 1152 (Fla.1979); see also Schuette v. State, 822 So.2d 1275 (Fla.2002), and did not err in requiring the County to pay Albrechta’s fees.

Affirmed.

ALTENBERND, C.J., and NORTHCUTT, J„ Concur.


author: PER CURIAM.

text:
    Curtis BIGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4966.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
   PER CURIAM.

Affirmed without prejudice to any right Mr. Bigham might have to seek relief under Heggs v. State, 759 So.2d 620 (Fla.2000).

FULMER, DAVIS, and CANADY, JJ., concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    F.K.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2044.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
    James Marion Moorman, Public Defender, Bartow, and A. Victoria Wiggins, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   THREADGILL, EDWARD F., Senior Judge.

F.K.H., a ten-year old third-grader in special education classes, challenges the trial court order withholding a determination of delinquency and placing him on probation. He argues that the court failed to inquire into his waiver of counsel at the plea hearing and failed to renew an offer of counsel at the disposition hearing. The State concedes error. We reverse and remand to allow F.K.H. to enter a new plea following a proper colloquy and offer of counsel in accordance with Florida Rule of Juvenile Procedure 8.165, State v. T.G., 800 So.2d 204 (Fla.2001), and G.L.D. v. State, 442 So.2d 401 (Fla. 2d DCA 1983).

Reversed.

NORTHCUTT and CASANUEVA, JJ„ Concur.


text:
    Becky Lynn PRESTWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-376.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
   PER CURIAM.

Becky Lynn Prestwood challenges the order of the trial court denying her motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Prestwood argues that her three-year minimum mandatory sentence is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). We affirm the order of the trial court because Prest-wood’s motion is facially insufficient as she does not affirmatively allege that her date of offense falls within the window created by Taylor. We note, however, that the trial court did not dismiss Prestwood’s motion as facially insufficient. Instead, in its December 17, 2002, order, it dismissed Prestwood’s motion without prejudice to refile when the Florida Supreme Court had reviewed the decision in Taylor. On May 29, 2002, the State filed a voluntary dismissal of said review in State v. Taylor, 821 So.2d 302 (Fla.2002) (table). Our affir-mance is therefore without prejudice to Prestwood’s filing a facially sufficient rule 3.800(a) motion.

FULMER, DAVIS, and KELLY, JJ., concur.


author: CASANUEVA, Judge.

text:
    Jerome ELLINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-344.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
   CASANUEVA, Judge.

Jerome Ellington appeals from an order summarily denying his motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850. He has raised numerous grounds for relief, only one of which we determine to be facially sufficient. As to that one ground, we reverse and remand for the circuit court to hold an evidentiary hearing or to attach excerpts from the record conclusively demonstrating that Mr. Ellington is entitled to no relief.

Mr. Ellington was convicted of two counts of racketeering and one count of conspiracy to commit racketeering in contravention of section 895.03(3), (4), Florida Statutes, together with numerous counts of grand theft and collecting an advance fee from a borrower to provide services as a loan broker. He received a guidelines-departure sentence of twenty-five years in Florida State Prison. On his direct appeal he raised several issues, one of which was error in admission of alleged coconspirator hearsay statements and, by implication, insufficiency of competent evidence for his RICO convictions. The State argued in its answer brief that the issue had not been preserved for appeal. Furthermore, even if the issue had been preserved, it had no merit because the State did prove a conspiracy between the defendant and other conspirators, who were not the declarants of the alleged hearsay.

One of Mr. Ellington’s claims on the rule 3 motion before this court is that his trial counsel was ineffective for failure to preserve the RICO issues for appeal. At the close of the evidence, counsel apparently made only a barebones motion, and the State correctly argued on appeal that the motion was insufficient to preserve the issue. “The failure to preserve a potentially reversible error for appeal has been found to constitute ineffective assistance of counsel, sufficient to support a rule 3.850 motion.” Daniels v. State, 806 So.2d 563, 564 (Fla. 4th DCA 2002). The movant, however, has the difficult burden of demonstrating prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court in Hardman v. State, 584 So.2d 649 (Fla. 1st DCA 1991), recognized that difficulty but reversed for an evidentiary hearing on the issue. See also Rogers v. State, 567 So.2d 483 (Fla. 1st DCA 1990) (holding that the defendant failed to satisfy the requirement of demonstrating prejudice— after an evidentiary hearing).

Because the State argued on direct appeal that this issue was not preserved and this court affirmed the appeal per curiam without an opinion, we cannot conclusively state that Mr. Ellington’s counsel was not ineffective for failing to preserve this issue for appeal. Accordingly, we reverse and remand for the circuit court to reconsider only Mr. Ellington’s claim that his counsel was ineffective for failing to preserve the RICO charges for appeal.

WHATLEY and NORTHCUTT, JJ., Concur.

      . The date of the offenses is not apparent from the limited materials available to the court on an appeal from the summary denial of a rule 3.850 motion for postconviction relief.


author: NORTHCUTT, Judge.

text:
    Johnnie MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-377.
    District Court of Appeal of Florida, Second District.
    April 9, 2003.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Johnnie Meeks contends, and the State concedes, that the trial court should not have heard and denied his motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(i) without appointing counsel to represent him in the matter. We agree.

A criminal defendant facing incarceration has a right to counsel at every critical stage of the proceedings against him. Wofford v. State, 819 So.2d 891, 892 (Fla. 1st DCA 2002); Bible v. State, 779 So.2d 517, 517 (Fla. 2d DCA 2000); Padgett v. State, 743 So.2d 70, 72 (Fla. 4th DCA 1999). A motion to withdraw plea pursuant to rule 3.170(£) is such a critical stage of the criminal proceedings. Bible, 779 So.2d 517.

Reversed and remanded with directions to appoint counsel to represent Meeks and to hold a new hearing on his motion to withdraw his plea.

WHATLEY and SILBERMAN, JJ., Concur.


text:
    John Raymond Edward CLEVELAND, Appellant, v. Susan Iris CLEVELAND, Appellee.
    No. 4D03-523.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.

      Donald Loughran of Donald Loughran, P.A., Fort Lauderdale, for appellant.
    Kristin A. West of the Law Offices of Kristin A. West, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from an order of the Broward Circuit Court adjudicating appellant in contempt, finding that appellant had the present ability to pay support and had willfully failed to pay it and ordering the payment of a purge amount of $3,300 by a certain date or else a writ of arrest would issue for ninety days. We reverse the order of contempt.

Based on our review of the record, we conclude that there was no substantial, competent evidence to support the trial court’s finding that appellant had the ability to pay the support or the purge amount. First of all, the presumption of ability to pay support previously ordered can be rebutted. See Bowen v. Bowen, 471 So.2d 1274, 1278-79 (Fla.1985). Appellant filed a new financial affidavit indicating that he did not have the present ability to pay the support, but this affidavit was summarily rejected by the trial court apparently based only on recollection of its previous findings and rejection of previous evidence presented at other contempt hearings. In Vazquez v. Vazquez, 827 So.2d 384 (Fla. 4th DCA 2002), this court construed rule 12.615(d)(1) of the Florida Family Law Rules of Procedure as requiring the trial court to actually identify the sources from which the appellant could have obtained the funds to comply with a prior support order. That was not done here. In addition, the trial court made a conclusory finding of ability to pay the purge amount, but offered no factual basis for that finding either. The trial court did not inquire into appellant’s actual assets and holdings at the time of the hearing and, as previously mentioned, summarily rejected appellant’s financial affidavit. The court simply arrived at the purge amount by calculating the entire amount of support then due.

Accordingly, the order of contempt is reversed and this cause remanded for further proceedings.

REVERSED and REMANDED.

STEVENSON, SHAHOOD and HAZOURI, JJ., concur.

      . An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of contempt was entered, that the alleged contemnor has failed to pay part or all of the support ordered, that the alleged con-temnor had the present ability to pay support, and that the alleged contemnor willfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based. See Fla. Fam. L.R.P. 12.615(d)(1).


text:
    Javier GONZALEZ, Appellant, v. The STATE of Florida, Appellees.
    No. 3D02-415.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.

      Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before GREEN and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Javier Gonzalez was charged in count 1 with burglary of a dwelling with assault while armed with a dangerous weapon (a screwdriver), and in count 2 with possession of burglary tools (the screwdriver).

In the middle of the day, the victim, a 12 year old girl, was getting ready to leave with her mother and went out to her carport intending to wait in the family car. As she approached the car, she saw Gonzalez crouching over inside the open door of a utility room at the rear of the carport, shoving things around with his hands. The utility room door was normally kept closed with a concrete block against the bottom of it to hold it shut, and the yard of the house was fenced and gated, although the record does not establish whether the gate was locked. Gonzalez turned around, approached the victim, and raised a 12-inch long screwdriver from his side as he came around the car. The victim testified Gonzalez had a threatening expression. Scared, and thinking Gonzalez had a machete, she retreated, saying she had to go talk to her mother, and Gonzalez said he was just trying to get out of the rain. As the victim ran inside screaming, “Mommy, he’s going to kill me,” Gonzalez picked up his own bike, which was on the ground next to the car, and rode away. Mother and daughter ran outside in time to see Gonzalez depart, and later identified him for police who found him on his bike near the house, with the screwdriver. Gonzalez confessed to trespassing.

The jury returned a verdict convicting Gonzalez on count 1 of burglary of a dwelling without an assault, while being armed, this being one of the lesser included offenses on which the jury was instructed. On count 2 Gonzalez was convicted of possession of burglary tools, as charged. Gonzalez challenges both convictions. We affirm the conviction on count 1, and reverse the conviction on count 2.

As to count 1, Gonzalez argues that a screwdriver is a “dangerous weapon” only if used as such, Vincente v. State, 669 So.2d 1119 (Fla. 3d DCA 1996), and that since the jury acquitted Gonzalez of assault, the jury necessarily determined thereby that the screwdriver was not used as a dangerous weapon. Thus, Gonzalez argues, he could not have been “armed,” relying heavily upon Nicarry v. State, 795 So.2d 1114 (Fla. 5th DCA 2001), rev. denied, 819 So.2d 138 (Fla.2002). Nicarry, however, involved interlocking charges in two separate counts for being armed with a dangerous weapon and assault. A verdict of acquittal on the assault charge was held to be legally inconsistent with a conviction on the separate dangerous weapon charge. 795 So.2d at 1116.

Here, unlike Nicarry, there was a single count for armed burglary with an assault as to which the jury found a lesser included offense, armed burglary without an assault. Whether the evidence is susceptible of inference by the jury that the defendant is guilty of a lesser offense than that charged is a critical evidentiary matter exclusively within the province of the jury. State v. Bruns, 429 So.2d 307, 309 (Fla.1983); Parker v. State, 330 So.2d 148, 149 (Fla. 2d DCA 1976). A jury’s verdict will not be overturned on appeal as long as competent substantial evidence supports it. Hertz v. State, 803 So.2d 629, 646 (Fla.2001); Kimbrough v. State, 700 So.2d 634 (Fla.1997); Nelson v. State, 753 So.2d 648 (Fla. 3d DCA 2000).

The jury had the opportunity to see and evaluate Gonzalez, the victim, and the foot-long screwdriver which the victim mistook for a machete. They may have believed that, while Gonzalez brandished the screwdriver in a weapon-like way when he was suddenly discovered, his actions were more directed to escaping the scene than assaulting the victim, and may therefore have exercised “jury lenity” or a “jury pardon” as to the assault. The verdict’s purported internal inconsistency thus does not necessarily support Gonzalez’s argument that the acquittal on the assault portion of the charge means that the jury found he did not put the victim in fear, and that therefore this screwdriver was not a weapon. At any rate, an underlying finding as to the victim’s perceptions does not determine whether the perpetrator was “armed.” See, e.g. State v. Baker, 452 So.2d 927 (Fla.1984)(in armed robbery, the victim may never be aware the that a robber is armed so long as the perpetrator has the weapon in his possession during the offense).

Gonzalez further argues that the “lesser included” offense of which he was convicted was not truly a lesser included offense because it carried the same sentence as the charged offense. Nurse v. State, 658 So.2d 1074 (Fla. 3d DCA 1995). However, the instructions provided to the jury on lesser included offenses were as requested by Gonzalez’s own trial counsel, which Gonzalez now urges, for the first time, was ineffective assistance of counsel. Under the circumstances of this case, that claim is not cognizable on this direct appeal, but may be appropriately pursued by Gonzalez by way of a motion for postconviction relief. State v. Barber, 301 So.2d 7 (Fla.1974); Lorenz v. State, 806 So.2d 620 (Fla. 3d DCA 2002); Crenshaw v. State, 490 So.2d 1054 (Fla. 1st DCA 1986).

As to count 2, for possession of burglary tools:

In order for the State to establish the screwdriver was a burglary tool, the State needed to adduce testimony showing that the defendant used, or actually intended to use, the screwdriver to commit a burglary or trespass.

Buffington v. State, 776 So.2d 960, 961 (Fla. 3d DCA 2000), quoting Hierro v. State, 608 So.2d 912, 915 (Fla. 3d DCA 1992). See also Calliar v. State, 760 So.2d 885 (Fla.1999). Here, evidence of use of the screwdriver, or intent to use it, to commit a burglary or trespass is lacking. There is no testimony or evidence that the screwdriver was used to enter either the gate or the utility room door. There is no testimony or evidence of pry marks, or any other physical evidence indicating the screwdriver was used, Karp v. State, 698 So.2d 577, 578 (Fla. 3d DCA 1997), or even that the door to the utility room was “locked” by anything other than a concrete block which was placed against the bottom of the door to hold it shut. In the absence of any such evidence, Gonzalez’s conviction for possession of a burglary tool must be reversed and his sentence as to that charge must be vacated.

Affirmed in part, reversed in part, and remanded for proceedings consistent herewith.

      . Inconsistent jury verdicts are permitted in Florida because they can be the result of jury lenity, and therefore do not always speak to the guilt or innocence of the defendant. State v. Connelly, 748 So.2d 248, 252 (Fla.1999); Fayson v. State, 698 So.2d 825, 826-27 (Fla.1997). The one exception to the general rule' allowing inconsistent verdicts is when they are "truly” inconsistent on legally interlocking charges, i.e. "those in which an acquittal on one count negates a necessary element for conviction on another count.” Fayson, supra, at 827, quoting Gonzalez v. State, 440 So.2d 514 (Fla. 4th DCA 1983) review dismissed 444 So.2d 417 (Fla.1983)(emphasis added). See also, State v. Powell, 674 So.2d 731 (Fla.1996)


author: SHEVIN, Judge.

text:
    Angela BARONE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2471.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.

      Robbins, Tunkey, Ross, Amsel, Raben, Waxman & Eiglarsh and Benjamin S. Waxman, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., SHEVIN and WELLS, JJ.
   SHEVIN, Judge.

Angela Barone appeals a judgment of convictions for conspiracy to traffic, trafficking and importation of phenethylamine. We reverse.

Barone and Gloria Baez, her travel companion, were arrested at Miami International Airport; a search of Barone’s luggage revealed drugs secreted in toiletry containers. Baez gave the following post-arrest statement:

I Gloria Baez was supposed to travel to Amsterdam with Angela — -Angela and I were supposed to pick up and each bring 3,000 pills each — I Gloria Baez decided that it was not worth it and left them behind.
Later we were supposed to deliver them to Cornelli.
While in Amsterdam, I help Angela with packaging (cleaning) the ecstacy. (I am willing to cooperate in helping contacting Cornelli).

Baez entered into a plea bargain with the state and was not tried with Barone. At trial, the court ruled that Baez’s entire statement was admissible after defense counsel cross-examined Detective Prellezo whether Baez, rather than Barone, named Cornelli as the intended recipient. Barone testified that she knew nothing about the drugs; she stated that the toiletry containers belonged to Baez, her co-defendant. Barone was convicted as charged. On appeal, Barone contends that the trial court abused it discretion in admitting Baez’s statement explaining her involvement, and implicating Barone in the charged crimes.

We agree and hold that the Baez’s hearsay statement was not admissible under either concepts of “opening the door” or the “rule of completeness.” Here, defense counsel questioned the arresting detective concerning his testimony that Barone provided him with the name of the intended recipient of the drugs. That cross-examination sought to show that the detective was mistaken when he testified that Barone gave him the recipient’s name. The limited and precise inquiry as to a collateral issue — the provider of the name — did not create any confusion justifying admission of the entire statement under the “rule of completeness.” See Gutierrez v. State, 747 So.2d 429, 432 (Fla. 4th DCA 1999)(where state only introduced couple of lines of a written statement to impeach testimony on a collateral matter, admission of remainder of statement is neither necessary nor fair). See also Evans v. State, 808 So.2d 92, 104 (Fla.2001)(court properly limited detective’s cross-examination where detective did not testify as to partial statement that required further clarification), cert. denied, — U.S. -, 128 S.Ct. 416, 154 L.Ed.2d 297 (2002). Cf. Mendoza v. State, 700 So.2d 670 (Fla.1997)(court did not abuse its discretion in admitting statement where defense counsel’s reading of random parts of statement likely left jury with mistaken impression that statement “differed substantially” from trial testimony), cert. denied, 525 U.S. 839, 119 S.Ct. 101, 142 L.Ed.2d 81 (1998).

In addition, the limited questioning did not open the door to admission of the statement; the inquiry merely sought to address the issue of which of the two women' provided the detective with the intended recipient’s name. The remainder of the co-defendant’s statement did not “qualify, explain, or limit” the detective’s testimony. The cross-examination “did not throw the door open wide enough to admit the entire confession of a [non-testifying] co-defendant.” Pacheco v. State, 698 So.2d 593, 595-96 (Fla. 2d DCA 1997). See Ramirez v. State, 739 So.2d 568, 578 (Fla.1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000). Therefore, the hearsay statement was inadmissible.

The error was clearly harmful. The co-defendant’s statement directly implicated Barone and bolstered the detective’s disputed testimony. The admission of this unimpeached eyewitness testimony had a devastating effect on Barone’s defense. See Garcia v. State, 816 So.2d 554, 563 (Fla.2002); Brooks v. State, 787 So.2d 765, 779-80 (Fla.2001); Tindall v. State, 645 So.2d 129 (Fla. 4th DCA 1994).

Accordingly, we reverse the judgment of convictions and remand for a new trial.

      . The state does not dispute that the statement is hearsay that does not fall within any hearsay exception and violates the Confrontation Clause. Ramirez v. State, 739 So.2d 568, 578 (Fla.1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000).

      . The "rule of completeness” is a separate evidentiary rule within the general principle of "opening the door.” Ramirez, 739 So.2d at 580. The premise of both concepts is fairness. Id. at 579-80. The "opening the door” concept permits the admission of otherwise inadmissible evidence to "qualify, explain or limit” previously admitted evidence. Id. at 579. The "rule of completeness” provides that “[w]hen a writing ... is introduced by a party, an adverse party may require ... her at that time to introduce any other part ... that in fairness ought to be considered contemporaneously.” § 90.108(1), Fla. Stat. (2002). The rule seeks "to avoid potential for creating misleading impressions by taking statements out of context.” Larzelere v. State, 676 So.2d 394, 401 (Fla.), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996); Miller v. State, 780 So.2d 277, 280 (Fla. 3d DCA 2001).

      . Because we are reversing the convictions, it is unnecessary to reach the remaining points on appeal. As to the state's closing argument, we remind the state that it is improper' to argue that defendant has not testified truthfully without a record basis. See Craig v. State, 510 So.2d 857 (Fla.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988); Cooper v. State, 712 So.2d 1216 (Fla. 3d DCA 1998).


text:
    Alesha MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-693.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Alesha Moore, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GODERICH, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).


text:
    Jonathan FUENTES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2673.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Jonathan Fuentes, m proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Gethers v. State, 838 So.2d 504 (Fla.2003).


text:
    Henry T. WOJCICKI, Appellant, v. The SCHOOL BOARD OF MIAMI-DADE COUNTY, Florida, Appellee.
    No. 3D02-2669.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Henry T. Wojcicki, in proper person.
    Madelyn P. Schere, for appellee.
    Before JORGENSON, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Kantor v. Sch. Bd. Of Monroe County, 648 So.2d 1266 (Fla. 3d DCA 1995).


text:
    Nancy BARBOSA, Ruth Delgado, and Jose Delgado, Appellants, v. TANDY CORPORATION, a foreign, corporation, d/b/a Radio Shack Corporation, Appellee.
    No. 3D02-2925.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.

      Abramson & Magidson, and David L. Magidson, for appellants.
    Jackson Lewis, and Susan H. Stern, and Nikki M. Setnor, for appellee.
    Before JORGENSON, LEVY, and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Degitz v. Southern Mgmt. Serv., Inc., 996 F.Supp. 1451 (M.D.Fla.1998); Ayers v. Wal-Mart Stores, Inc., 941 F.Supp. 1163 (M.D.Fla.1996); Sussman v. Florida East Coast Prop., Inc., 557 So.2d 74 (Fla. 3d DCA 1990); Watson v. City of Hialeah, 552 So.2d 1146 (Fla. 3d DCA 1989).

Affirmed.


text:
    Barry S. THOMPSON, Appellant, v. DEPARTMENT OF STATE, DIVISION OF LICENSING, Appellee.
    No. 3D02-2879.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Barry S. Thompson, in proper person.
    Stephen S. Mathues, Assistant General Counsel, Department of Agriculture and Consumer Services, for appellee.
    Before JORGENSON, LEVY, and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Prysi M.D. v. Dep’t of Health, 823 So.2d 823 (Fla. 1st DCA 2002); Pillsbury v. State, Dep’t of Health and Rehab. Servs., 744 So.2d 1040 (Fla. 2d DCA 1999); Heifetz v. Dep’t of Bus. Reg., Div. of Alcoholic Beverages and Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985).


author: MAY, J.

text:
    C.C., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-828.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals the trial court’s order, which committed her to a moderate risk program for an indeterminate period not to exceed one year or the child’s nineteenth birthday, as a result of a violation of probation. She argues that the trial court erred in failing to give her credit for time served in the juvenile detention center. The State concedes she is entitled to credit for time served in secure detention, but argues that she was ordered into respite care for which she is not entitled to credit. We reverse and remand the case to the trial court for calculation of the number of days spent in secure detention to be credited against the length of time the juvenile is committed. L.K. v. State, 729 So.2d 1011 (Fla. 4th DCA 1999). In doing so, however, we make the following observation.

The authorization for giving an adult defendant credit for time served is legislative in origin. See § 921.161(1), Fla. Stat. (2003). No such provision exists in Chapter 986 or in the Florida Rules of Juvenile Procedure. In other words, giving juveniles credit for time served in secure detention was born of judicial interpretation.

In Tal-Mason v. State 515 So.2d 738 (Fla.1987), the Florida Supreme Court reviewed the issue of “credit for time served” in the context of whether time spent in a mental institution as a result of an involuntary commitment for incompetency should be credited against an adult prison sentence. The Supreme Court held that it should.

[W]e hold that there is no legitimate basis for granting jail-time credit for preconviction detention in a hospital for treatment of physical injuries, but not for preconviction detention in a mental institution for incompetence to stand trial. Both of these forms of detention constitute a coercive deprivation of liberty and implicate significant constitutional rights. When a defendant is committed for incompetence, the state has assumed total, if constructive, custody of that defendant as though he were in the county jail. To grant no jail-time credit for this kind of detention while allowing it for others constitutes a violation of equal protection and a denial of due process.

Id. at 740.

The Second District Court of Appeal relied upon this reasoning in E.R. v. State, 584 So.2d 158 (Fla. 2d DCA 1991), when it held that juveniles are entitled to credit for time spent in secure detention. Our court has since followed that lead. See L.K., 729 So.2d at 1011; J.B. v. State, 829 So.2d 376 (Fla. 4th DCA 2002).

However, it is only where a determinate length of commitment exists that such credit can be given any real meaning. This will occur in juvenile misdemeanor cases only where the maximum period of commitment is limited to a year and when the juvenile is committed within one year of reaching the age of nineteen (19).

The juvenile justice system is designed to rehabilitate youth. Accordingly, juveniles are committed for indeterminate lengths of time. It is, therefore, generally impossible to fix a date from which to deduct time spent in secure detention. Perhaps this is why there is no comparable statute found in Chapter 985. Nevertheless, this is one of those cases involving a misdemeanor where the credit for time served in secure detention can find certainty.

We therefore reverse and remand the case to the trial court for calculation of time served in secure detention to be credited against the one-year commitment.

STEVENSON and GROSS, JJ„ concur.


author: POLEN, C.J.

text:
    William Lenard WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-810.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Carey Haughwout, Public Defender, and Tara Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, C.J.

On August 14, 2001, William Watson was charged with felony fleeing and eluding, possession of a firearm by a convicted felon, tampering with evidence and resisting arrest without violence as a result of officers witnessing his involvement in a suspected illegal drug transaction and his subsequent attempt to avoid arrest. After a jury trial Watson was found guilty. We affirm that conviction for the reasons explained below.

During jury selection, the state sought to strike potential juror Mr. Jackson. The defense objected to the strike on the grounds that the potential juror was an African American and so was Watson. The defense asked for a race neutral reason for the strike. In response to the objection, the state explained “Judge, he looked very disinterested to me. Really didn’t seem like he wanted to be here. Beyond that, in fact, doesn’t look like he would be willing to pay full attention.”

After this explanation, the court responded, “[a]ll right. Very well. That’s a race neutral decision,” and allowed potential juror Mr. Jackson to be stricken. This timely appeal follows.

As the sole issue on appeal, Watson asserts the trial court committed reversible error by finding the state properly exercised a race neutral peremptory challenge to excuse Mr. Jackson from the panel. We disagree.

This court has recently revisited this issue noting the process for challenging peremptory strikes on the grounds of racial bias as follows:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must a)make a timely objection on that basis b)show that the venireper-son is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike. At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather on its genuineness.
Appellate courts, on review of the granting of a peremptory strike, should presume the strike was exercised in a nondiscriminatory manner and, because the trial court’s decision turns primarily on an assessment of credibility, should affirm the court’s determination in this regard unless clearly erroneous.

Siprien v. State, 812 So.2d 536, 538-39 (Fla. 4th DCA 2002)(quoting Melbourne v. State, 679 So.2d 759 (1996)).

Watson argues that the trial court failed to conduct the genuineness analysis required under Melbourne. In Jones v. State, 787 So.2d 154 (Fla. 4th DCA 2001), this court addressed this particular issue. In Jones, the defense sought to strike a female juror who had previously served on a federal jury and returned a guilty verdict. The trial court denied the strike and explained that the juror was qualified. On appeal, this court found that the court committed reversible error by failing to engage in the proper genuineness analysis. Id.

In reaching its conclusion in Jones, this court pointed out “the relevant circumstances the court is to consider in determining whether the explanation is pretex-tual include factors such as the racial makeup of the venire, prior strikes exercised against the same racial group; a strike on a reason equally applicable to an unchallenged venireperson, or singling out the venire person for special treatment.” Id. (citing Melbourne, 679 So.2d at 764). The court concluded that there was nothing in the transcript to indicate the trial court considered any of the factors before not allowing the juror to be stricken. Ultimately this court concluded where there is a race or gender neutral reason advanced for the strike and the reason is itself reasonable and the record is devoid of any indication the judge considered the relevant factors before concluding that the strike had improper motivations, the judge failed to properly determine the genuineness of the reason given for the strike. Id.

This case is distinguishable from Jones in several respects. In Jones, this court was clear to point out that the record did not indicate any factors were considered by the trial court to determine the genuineness of the reasoning given by counsel seeking to strike the juror. In this case, immediately after striking potential juror Mr. Jackson, the court noted there was another African American on the venire. This comment, indicates the court was considering the make up of the panel.

This case is similarly distinguishable from Carter v. State, 762 So.2d 1024 (Fla. 3d DCA 2000), and other cases which appellant relies upon in his brief. In Carter, the race neutral reason given for the peremptory strike was that the potential juror did not understand reasonable doubt. Id. The defense, which opposed the juror being stricken, did not challenge whether the reason was race-neutral, rather they argued that the juror did not have difficulty with the concept of reasonable doubt. Id. In the case at bar, defense counsel did not contend the state was wrong about juror Jackson’s claimed disinterest; rather, Watson asserts the reason given by the state to strike Mr. Jackson was not race neutral.

As discussed in Siprien, our review of the granting of a peremptory strike starts with a presumption that the strike was exercised in a nondiscriminatory manner. Since the trial court’s decision turns primarily on an assessment of credibility, its determination should be affirmed unless clearly erroneous. The review of the “genuineness” of the reasons advanced by counsel is a daunting task for appellate courts. On close cases such as this it would assure the proper analysis has been conducted by the trial court if the trial judge would make some observation on the record regarding the genuineness of strike. For example, the trial judge could 'include his own observations as to whether the prospective juror did in fact appear exceedingly uninterested in the proceedings.

In this case, based on the facially race neutral reason given for the strike, the indication in the record that the court did consider the make up of the venire, and primarily on the trial court’s better position to evaluate and determine this issue, we conclude the trial court’s decision to allow Mr.- Jackson to be stricken was not clearly erroneous and affirm the decision of the trial court.

KLEIN and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    Vicki PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4780.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In challenging her conviction for cocaine possession, appellant claims the court erred in failing to grant her motion for judgment of acquittal, as the state failed to introduce the cocaine she possessed into evidence. Because the cocaine was mere residue, and the cocaine pipe with the residue was introduced into evidence, the trial court correctly denied the motion. We therefore affirm.

When an officer retrieved a pipe dropped by appellant while riding a bike, he conducted a field test for traces of drugs. The test caused a blue color to appear which indicated the presence of cocaine. A forensic chemist tested the stem portion of the pipe by using a rinse solution. She tested only the stem, not the bottle of the pipe, because she did not want the blue colored residue caused by the officer’s field test to interfere with her test. The residue in the stem tested positive for cocaine. There was no evidence as to what occurred to the residue tested by the chemist.

The state rested after presenting only the testimony of the officer and the chemist. The defense then moved for a judgment of acquittal arguing the state’s failure to introduce the cocaine into evidence or explain that the cocaine was unavoidably destroyed during testing, constituted grounds for acquittal. The motion was denied. The defense rested and the jury found appellant guilty. After conviction and sentence, appellant filed this appeal.

When the state charges a defendant with possession of a controlled substance, the state must introduce the substance into evidence unless excused by its destruction during testing. See G.E.G. v. State, 417 So.2d 975, 977 n. 2 (Fla.1982). Appellant contends that our decision in Marrisette v. State, 780 So.2d 1020 (Fla. 4th DCA 2001), requires reversal. We disagree. In Marrisette, also a cocaine pipe case, the state introduced the pipe into evidence, but not the cocaine. 780 So.2d at 1021. We held that where the testimony failed to account for what happened to the residue in the pipe and why it was unavailable at trial, the court erred in denying a motion for judgment of acquittal. See id. In the present case, however, the state actually introduced the cocaine into evidence. The state introduced the pipe, which exhibited a blue color. The officer testified that the blue color resulted from his test of cocaine, which turned the residue blue. Therefore, unlike Marri-sette, the substance, in the form of blue residue, was introduced.

The quantity of drugs possessed is immaterial for a possession charge. See Jones v. State, 589 So.2d 1001, 1002 (Fla. 3d DCA 1991) (quoting State v. Eckroth, 238 So.2d 75, 77 (Fla.1970)) (citations omitted) (holding “infinitesimal ‘residue’ of cocaine found on a small piece of metal ribbon” contained in jacket pocket was sufficient to sustain possession conviction). The evidence presented was sufficient to overcome the motion for judgment of acquittal.

Affirmed.

STONE and MAY, JJ., concur.


text:
    LEAFY WAY ENTERPRISES, INC., David S. Kaufman, Grove Village Properties, Inc., d/b/a Grove Properties, Appellants. v. Carolyn Jane LAMB, Appellee.
    No. 3D02-1734.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Wilson, Elser, Moskowitz, Edelman & Dicker, and James M. Kaplan, and William Zeena, Jr., Miami, and Alan M. Herman, for appellants.
    Genovese Joblove & Battista, and Richard J. Sarafan, and Gregory M. Gamo, and Glenn D. Moses, Miami, for appellee.
    Before JORGENSON, LEVY, and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Infinity Radio Inc. v. Whitby, 780 So.2d 248 (Fla. 4th DCA 2001); Gold Coast Chemical Corp. v. Goldberg, 668 So.2d 326 (Fla. 4th DCA 1996); Perry & Co. v. First Sec. Ins. Underwriters, Inc., 654 So.2d 671 (Fla. 3d DCA 1995).


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. D.L., a child, Appellee.
    No. 4D02-1568.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

In the instant case, the trial court dismissed the charges against D.L., a minor, after finding that the ten-day recapture period provided for in Florida Rule of Juvenile Procedure 8.090(m)(3) was not available to the State as a consequence of its failure to arraign D.L. prior to the expiration of the ninety-day speedy trial time. We find that the trial court erred in dismissing the charges.

D.L. was arrested on May 29, 2001. On August 16, 2001, the State filed a petition for delinquency charging D.L. with burglary of a dwelling and grand theft. On March 22, 2002, D.L. filed a motion to dismiss the charges against him, alleging the following facts: (1) on September 3, 2001, D.L.’s brother was served with a notice for D.L. to appear at an arraignment scheduled for September 5, 2001; (2) D.L. did not appear for the September 5, 2001 arraignment and the judge placed the child on reset/reserve status; (3) D.L. was rescheduled for arraignment on January 23, 2002; (4) on January 4, 2002, a pick-up order was issued nunc pro tunc for September 5, 2001; and (5) on January 23, 2002, D.L. was arraigned. According to D.L., his speedy trial time expired on August 27, 2001 — ninety days from the date of his arrest. D.L. argued to the trial court that since he was not arraigned prior to the expiration of speedy trial, he was automatically entitled to dismissal of the charges. This is not the law.

Florida Rule of Juvenile Procedure 8.090 provides that the State has ninety days from the date of arrest or the filing of the petition for delinquency, whichever is earlier, within which to bring the juvenile defendant to trial. See Fla. R. Juv. P. 8.090(a)-(b). Generally, when the State has not commenced the adjudicatory hearing within ninety days, upon the fifing of a motion to dismiss or motion for discharge, the State shall have ten days to commence the adjudicatory hearing — the so-called recapture period. See Fla. R. Juv. P. 8.090(d), (m)(3).

In the context of the adult speedy trial rule, courts have held that the recapture period was not available to the State where its actions had served to deprive the defendant of the opportunity to timely assert his speedy trial rights. See State v. Morris, 662 So.2d 378 (Fla. 4th DCA 1995); see also State v. Gantt, 688 So.2d 1012 (Fla. 3d DCA 1997); Cordero v. State, 686 So.2d 737 (Fla. 3d DCA 1997). In Morris, Gantt, and Cordero, the defendants had been arrested on charges which were subsequently dismissed. The State refiled the charges, but the defendants were not immediately rearrested or notified of the re-ified charges. A substantial period of time after the expiration of the speedy trial periods (ranging from about a month in Morris to about six months in Cordero), the State notified the defendants or rearrested them. The courts in Morris, Gantt, and Cordero all held that where the defendant did not know that the State was still pursuing charges against them and could not move for speedy trial discharge shortly after the expiration of time, the State was not entitled to the fifteen-day window.

In A.L. v. State, 787 So.2d 942, 945 (Fla. 4th DCA 2001), this court addressed the application of the principles discussed in Morris, Gantt, and Cordero to the juvenile speedy trial rule. A.L. was arrested on May 23, 2000, and the petition for delinquency was filed on July 14, 2000. A.L. was arraigned on August 23, 2000. At the arraignment, A.L.’s counsel noted that the speedy trial time had run on August 21, two days earlier, but did not file a motion for discharge. See id. at 943. The case was called twice in October and, again, although A.L.’s counsel reminded the court that speedy trial had run, no motion for discharge was filed. Finally, on November 3, 2000, A.L. filed a motion to dismiss on speedy trial grounds. The State contended that dismissal was not appropriate and that it still had the ten-day recapture period within which to try A.L. The trial court denied A.L.’s motion to dismiss.

On appeal, A.L. asserted that since he was not arraigned prior to the expiration of speedy trial, he was automatically entitled to dismissal of the charges — -the same argument that D.L. made to the trial court here. This court rejected A.L.’s argument, stating that “[t]he right to a speedy trial is a procedural right, not a substantive right.” Id. at 944. Citing the supreme court’s holding in R.J.A. v. Foster, 603 So.2d 1167, 1172 (Fla.1992), that the time period specified in the rule is “ ‘a triggering mechanism and not an absolute right,’ ” the court concluded that dismissal was not required unless the child was not brought to trial within the window period set forth in rule 8.090(m)(3). Id. As for the exception discussed in Morris, Gantt, and Cordero, the panel held that the cases did not stand for the proposition that a defendant had to be arraigned prior to the expiration of speedy trial or the charges against him would be dismissed and that the cases were distinguishable on their facts. In Morris, Gantt, and Cordero, the State’s actions or inactions had deprived the defendant of the right to move for speedy trial discharge shortly after the expiration of speedy trial time. In A.L., the child was arraigned only two days after the running of speedy trial. Moreover, if A.L.’s attorney had moved for discharge at the August 23, 2000 arraignment, A.L. could have been brought to trial within the ten-day period set forth in rule 8.090(m)(3). Consequently, in A.L., it was defense counsel’s actions that deprived the child of the opportunity to timely seek discharge due to expiration of speedy trial and not the State’s failure as was the case in Morris, Gantt, and Cordero.

Approximately one year later, this court decided D.D. v. State, 817 So.2d 930 (Fla. 4th DCA 2002), applying the analysis used in A.L., but reaching a different conclusion. There, the child was arrested on September 2, 2001, and the petition for delinquency was filed on October 29, 2001. On November 1, 2001, a summons providing for D.D.’s arraignment was issued. Since the summons contained a typographical error, it was returned unserved and the State made no further efforts. D.D. did not appear at the arraignment. Speedy trial expired on December 1, 2001. Finally, in February 2002, D.D. was served with a summons for a March 7, 2002 arraignment. D.D. appeared for arraignment and counsel was appointed. On April 5, 2002, defense counsel filed a speedy trial motion to dismiss. The State argued that dismissal was not appropriate and that it still had the recapture period within which to have the trial. D.D. asserted that the State was not entitled to the benefit of the recapture period because the State had not informed him of the charges until after the ninety-day speedy trial time had run. The panel concluded that Morris, Gantt, and Cordero compelled dismissal and that A.L. was distinguishable. In those cases and the case before it, the defendant was not notified that the State was pursuing charges against him and, thus, could not move for speedy trial discharge until well after the time had run. In contrast, in A.L., the child was arraigned only two day after the running of speedy trial and defense counsel could have earlier filed a motion for discharge that would have permitted the defendant to be tried within the ten-day period.

The lesson to be taken from reading A.L. and D.D. together is that, when the child is not arraigned until after the expiration of speedy trial, the availability of the recapture period turns on whether the child’s inability to move for speedy trial discharge within a short time after the expiration of the ninety-day period is attributable to the child or to the State. See, e.g., D.C. v. State, 807 So.2d 198 (Fla. 4th DCA 2002)(finding that juvenile’s motion to dismiss should have been granted where, despite the fact that juvenile was in custody of Department of Juvenile Justice, the State delayed in serving him and, as a result of the State’s delay, juvenile was not arraigned until forty-three days after expiration of the ninety-day speedy trial period). In the instant case, the trial judge recognized that it was the child that had failed to appear for the September 5, 2001 arraignment and that this was a “stumbling block.” The judge nonetheless found that A.L. was distinguishable on its facts and that D.L. was entitled to dismissal of the charges. We disagree.

On September 3, 2001, only seven days after the ninety-day period had run, the child’s brother was served with notice for D.L. to appear at an arraignment scheduled for September 5, 2001. Consequently, had the child appeared for the arraignment, he could have filed his motion for discharge and insisted that the State immediately bring him to trial or discharge him, thus enforcing his speedy trial rights. The fact that the child did not appear at the hearing resulted in the loss of the child’s ability to timely assert his speedy trial rights. Since the loss of the rights was attributable to the child and not the State, the instant case is controlled by A.L. and, thus, the ten-day recapture period was available to the State. Accordingly, we reverse the order of dismissal.

REVERSED and REMANDED.

FARMER and HAZOURI, JJ., concur.

      . Ultimately, despite the conclusion that Morris, Gantt, and Cordero did not compel dismissal of the charges and that the ten-day recapture period was available to the State, the panel in A.L. held that dismissal of the charges was appropriate. See 787 So.2d at 945. The necessity of the dismissal resulted from the judge's failure to set the adjudicatory hearing within ten days of the motion to dismiss as required by rule 8.090(m)(3). See id.

      . Rule 8.040 and chapter 48, Florida Statutes (2001), both permit service on a parent or guardian. The probable cause affidavit filed in this case reflects that the child’s brother is his guardian and that it was the brother to whom the child was released following his arrest. At no point during these proceedings has D.L. asserted that service or notice regarding the arraignment was improper because it was made on his brother.


text:
    DECKTIGHT ROOFING SERVICES, INC., a Florida corporation, Petitioner, v. AMWEST SURETY INSURANCE, a Florida corporation and DiTocco Konstruction, Inc., a Florida corporation, Respondents.
    No. 4D02-2168.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.

      Andrew T. Trailor of Burger & Trailor, P.A., Miami, for petitioner.
    Frederick T. Hawkes, Bruce C. King and William H. Strop of Carlton Fields, P.A., Miami, for respondent Amwest Surety Insurance.
    Oscar E. Soto of the Soto Law Group, P.A., Ft. Lauderdale, for respondent DiTocco Konstruction, Inc.
   PER CURIAM.

Decktight Roofing Services, Inc. (“Deck-tight”) seeks certiorari and mandamus relief from orders denying its Motion to Vacate Arbitration Order and Motion for Partial Final Judgment. We find no basis for certiorari review and dismiss the petition. Similarly, we also deny the petition for writ of mandamus.

This petition arises from a statutory bond claim brought under Florida Statutes Section 713.28 by Decktight, a roofing subcontractor, against Amwest Surety Insurance (“Amwest”) in connection with construction of a motel in Marathon, Florida. Amwest filed a third-party complaint against the general contractor, DiTocco Konstruction (“DiTocco”).

The trial court stayed Deck-tight’s action and compelled arbitration on March 30, 2001. Decktight moved to vacate the court’s arbitration order on April 6, 2001, requesting rehearing and reconsideration. An order determining a party’s entitlement to arbitration is considered a non-final order under Florida Rule of Appellate Procedure. 9.130(a)(3)(C)(iv). Unlike authorized and timely motions directed to a final order (which defers rendition until the disposition thereof), motions for reconsideration or rehearing of non-final orders are unauthorized and do not toll the time for filing a notice of appeal or petition for writ of certiorari. See Nationwide Ins. Co. v. Forrest, 682 So.2d 672 (Fla. 4th DCA 1996); Richardson v. Watson, 611 So.2d 1254 (Fla. 2d DCA 1992). See also Fla.R.App.P. 9.020(h). Decktight should have appealed the arbitration order as a non-final appeal when it was entered on March 30, 2001.

Nearly a year after filing its motion to vacate the arbitration order, Decktight renewed its motion. A party cannot circumvent the “strict” thirty-day time limitation imposed for non-final orders by filing a second motion addressing the same issue raised and decided in an earlier motion, and then seek review of the second motion by certiorari. See Bensonhurst Drywall, Inc. v. Ledesma, 583 So.2d 1094, (Fla. 4th DCA 1991)(“Petitioner cannot evade the time requirements of Florida Rule of Appellate Procedure 9.100(c) by filing successive motions addressed to the same issue.”). Decktight waived its appeal of the nonfinal arbitration order and must wait until a final judgment is entered to seek review.

We also reject Decktight’s claim that it is entitled to have a Partial Final Judgment entered because the insolvency of Amwest effectively left it without a remedy and brought its claim against the surety to an end. The fact that Decktight’s claims are frustrated by the absence of a payment bond does not entitle it to a final judgment at this juncture. Since DiTocco has defenses to payment, arbitration is necessary to determine the extent of Deck-tight’s recovery. Mandamus is not a favored remedy when controverted issues of fact must be resolved. Sandpiper Bay, Inc. v. LaChance, 384 So.2d 948 (Fla. 4th DCA 1980). There remain issues of fact concerning the amount owed. The trial court was justified in refusing to rule because it had a lawful basis to reserve ruling on the matter.

For the above reasons, the petition for certiorari is dismissed and the petition for mandamus relief is denied.

STONE, KLEIN and TAYLOR, JJ., concur.


text:
    Richard KOVALCHICK, Appellant, v. Laraine KOVALCHICK, Appellee.
    No. 4D02-2280.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Richard B. Kay, Tequesta, for appellant.
    Steven Cripps of Law Offices of Orsley & Cripps, P.A., West Palm Beach, for ap-pellee.
   POLEN, C.J.

This appeal arises out of a final judgment of dissolution of the Kovalchick’s marriage. On appeal, the husband contests the court’s equitable distribution in several respects. We find this argument without merit and affirm the equitable distribution ordered by the trial court. The husband also challenges the alimony award and the trial court’s verbatim adoption of the proposed final order submitted by the wife’s attorney. For the reasons expressed below, we affirm in part and reverse and remand in part.

On appeal, the husband asserts numerous errors with the trial court’s equitable distribution. The standard of review of a trial court’s determination of equitable distribution is abuse of discretion. Bogard v. Bogard, 490 So.2d 43 (Fla.1986) (citing Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980))). Section 61.075, Florida Statutes, requires that distribution of marital assets and liabilities be supported by “factual findings in the judgment or order based on competent substantial evidence.... ” § 61.075. Fla. Stat.

In this case, the order makes findings of fact to support the judgment. More specifically, the court noted that the wife was 53 years old with a high school education and that she did work at times during the marriage. Additionally, the court noted how the wife spent her inheritance and that the financial resources of the husband were clearly greater than those of the wife. The court also specifically discussed, during the hearing and in the final judgment, the division of the husband’s pension, as being part equitable distribution of the pension and part alimony. Therefore, of the numerous complaints the husband raises against the equitable distribution, we conclude the distribution is specifically supported by the findings listed in the final judgment and in the record, and are well within the court’s discretion.

The husband also asserts error with the trial court’s award of alimony. The court ordered that the husband pay the wife $1000 a month in permanent alimony. The husband was ordered to pay the wife $880 a month directly and the remaining $120 would be paid by QDRO from the husband’s Barclay pension. “[T]he nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court.” Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988). The standard of review is abuse of discretion. Cifrian v. Cifrian, 715 So.2d 1068 (Fla. 4th DCA 1998).

The husband challenges the court’s order inasmuch as it allocated 50% of the husband’s Barclay pension to the wife although the couple was married nearly three years after the husband began working at Barclay’s. However, the court made it abundantly clear that the 50/50 distribution was done with the understanding that a portion of the money was going to be considered alimony.

While we find no error with such a distribution, the record makes clear the court sought to award the wife $1000 per month in permanent alimony. The court recognized the wife was not entitled to the full 50% of the Barclay’s pension since a portion of it was premarital, but awarded her 50% under the equitable distribution scheme and noted that a portion of it, namely what the court calculated to be an additional $120 over what she was entitled to, as alimony. To balance out the difference, the court ordered $880 to be paid directly from the husband as alimony. This $880 reflected the $1000 alimony award minus the $120 the wife was receiving over and above what she was entitled to under the husband’s pension.

However, according to the calculations done by the husband, with which we agree, the court miscalculated the award. As a result of the mathematical error, the wife is actually receiving more than the $1000 a month award the court ordered. Although no additional testimony is needed on this issue, we remand this case back to the trial court to correct the error and enter an accurate judgment in accordance with this opinion.

As his last argument on appeal, the husband asserts the trial court abused its discretion in adopting the wife’s proposed final judgment verbatim. This court has previously addressed the issue of a trial court adopting a proposed judgment. Flint v. Fortson, 744 So.2d 1217 (Fla. 4th DCA 1999). In Flint, this court acknowledged the desirability of judges preparing their own judgements, but recognized the practical justification for judges utilizing submissions from counsel. The court noted that “what is critical for a reviewing court is that a final judgment reflect the trial judge’s independent decision on the issues of the case.” Id. at 1220. The court concluded that although there is a split of opinion on the issue, reversal has been granted only when the signed judgment is inconsistent with prior pronouncements of the judge. Id.

Although this issue need not be reached, as we are reversing on grounds discussed above, we write to caution the trial court that this court is concerned in any case where there is a verbatim adoption of a proposed final order submitted by counsel in family proceedings.

GUNTHER and SHAHOOD, JJ., concur.


text:
    Timothy William BARNHILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2465.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hepburn v. State, 780 So.2d 326 (Fla. 3d DCA 2001).

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    John POTTS, Appellant, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, Appellee.
    No. 4D01-4734.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.

      Jeff Barnes of W.J. Barnes, P.A., Fort Lauderdale, for appellant.
    Aimee Stein Fried, Miami, for appellee.
   POLEN, C.J.

This appeal arises from the trial court’s entry of summary judgement in favor o'f Florida Power & Light (“FPL”) in a negligence suit. For the reasons set forth below we affirm that decision.

The subject of the allegations of Mr. Potts’ complaint was that after multiple phone calls to FPL, it sent an employee to the condominium development where Potts resided and had been attempting to get his power back on. Potts alleged that the FPL employee advised him the main breaker had blown and that if Potts took the bottom breaker out and put it in the top slot, he would have power in his condominium unit. The FPL employee advised Potts that he was not authorized to do it for him.

Subsequent to the FPL employee leaving, Potts attempted to switch the breakers. As he was switching them, Potts alleged that he saw a flash and suffered injuries. In response, FPL filed a motion for summary judgment. The trial court properly granted that motion.

A utility, such as FPL, may adopt non-discriminatory rules and regulations governing its relations with customers. Fla. Admin. Code. Ann. R. 25-6.033. “It is well established that a limitation of liability contained in a tariff is an essential part of the rate, and that the consumer is bound by the tariff regardless of his knowledge or assent thereto. Tariffs are even recognized as having the force and effect of law.” Landrum v. Fla. Power & Light Co., 505 So.2d 552 (Fla. 3d DCA 1987)(internal citations omitted).

FPL relies on Tariff provision 2.7, Indemnity to Company, which reads as follows:

The Customer shall indemnify, hold harmless and defend the Company from and against any and all liability, proceedings, suits, cost or expense for loss, damage or injury to persons or property, in any manner directly or indirectly connected with or growing out of the transmission and use of electricity on the customer side of the point of delivery.

In addition, Rule. 2.3 of FPL’s Tariff defines point of delivery as “the point where the company’s wires or apparatus are connected with those of the customer.” Rule 4.1 of FPL’s Tariff defines customer’s installation as follows:

The customer’s installation consists of and includes all wires, cutouts, switches and appliances and apparatus of every Mnd and nature used in connection with or forming a part of an installation for utilizing electric service for any purpose, (excepting meters and associated equipment), ordinarily located on the Customer’s side of ‘Point of Delivery’....

There is no material issue of fact as to where the injury occurred. Thus, as a matter of law, pursuant to the tariffs discussed in this opinion, FPL was entitled to summary judgment. The decision of the trial court is hereby affirmed.

GUNTHER and SHAHOOD, JJ., concur.


text:
    Glender J. CURRAS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellees.
    No. 3D02-1998.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Glender J. Curras, in proper person.
    John D. Maher (Tallahassee), for appel-lee Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., and JORGENSON and GERSTEN, JJ.
   PER CURIAM.

Glender Curras appeals from an order of the Unemployment Appeals Commission affirming the denial of his application for unemployment compensation benefits. For the following reasons, we reverse.

Curras worked as a driver for an auto parts business in Broward County and lived in Dade County. As a term of his employment, he was allowed to use a company vehicle to go back and forth from home to work. His employer later informed him that the company vehicle could no longer be driven beyond a stated area; that area did not include Curras’ home. For two or three weeks Curras tried to commute to work but found it impossible, and informed his employer that he was forced to look for another job because he no longer had a way to get to work.

Curras’ application for unemployment compensation benefits was denied on the ground that he quit his job without good cause attributable to his employer. The appeals referee affirmed. We reverse, as the employer substantially and unilaterally altered the terms of the agreement under which Curras accepted employment, giving Curras good cause to quit. See Amato v. Unemployment Appeals Comm’n, 648 So.2d 284, 285 (Fla. 4th DCA 1995). Cf. Coolaire Nordic Int'l, Corp. v. Florida Dept. of Commerce, Div. of Employment Sec., 356 So.2d 1317, 1318 (Fla. 4th DCA 1978) (holding that where employer initially provided transportation to employees but then gave six months notice that free transportation would be terminated and all employees would have to make their own transportation arrangements, termination of transportation was not an alteration of the contract of claimant’s employment and claimant did not quit for good cause attributable to his employer).

Reversed and remanded with directions to afford the claimant the full amount of benefits claimed.


text:
    ALBERT PROPERTIES, INC., a Florida corporation, and Peter A. Albert, Appellants, v. VIZCAYA AT PALM-AIRE ASSOCIATION, INC., a Florida corporation, Jack Berman, Martin Biafora, Ralph Calatchi, Elcio Gaz, Stu Glassman, Harold Gold, John Hertz, Ira Kinsler, Lee Mailloux, Conrad Moore, Ciro Nessumo, Seymour Oliet, Mark Warshaw, Sig Warshaw and Vizcaya on the Green, Inc., a Florida corporation, Appellees.
    No. 4D02-1009.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Steven E. Stark, June G. Hoffman and Patrick E. Gonya, Jr., of Fowler White Burnett, P.A., Miami, for appellants.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellees Vizcaya at Palm-Aire Association, Inc., Jack Berman, Martin Biafora, Ralph Calatchi, Elcio Gaz, Harold Gold, John Hertz, Ira Kinsler, Lee Mailloux, Conrad Moore, Ciro Nessumo, Seymour Oliet, Mark Warshaw and Sig Warshaw.
    Jason H. Okleshen and Mark A. Green-berg of Powers, McNalis & Moody, Lake Worth, for appellee Stu Glassman.
   PER CURIAM.

We have for review an order of the trial court dismissing with prejudice the appellants’ seven-count complaint, citing res ju-dicata, a prior settlement agreement, and the insufficiency of the allegations as to the individual board members. We hold that, in dismissing the seven counts, the trial court impermissibly looked beyond the four corners of the complaint. See Lost Tree Village Corp. v. City of Vero Beach, 838 So.2d 561, 569 (Fla. 4th DCA 2002)(“ ‘A court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true.’ ”)(quoting Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001), review denied, 821 So.2d 293 (Fla.2002)). Moreover, at this juncture, none of the alternative grounds advanced by the appellees are sufficient to save the dismissal with prejudice. Accordingly, we reverse and remand for further proceedings.

REVERSED and REMANDED.

STEVENSON, HAZOURI and MAY, JJ., concur.


text:
    HARTFORD FIRE INSURANCE COMPANY and National Surety Corporation, Appellants, v. MRT MICRO, ASA; a Norwegian corporation; David S. Hauger and Barbara Hauger, his wife, Appellees.
    No. 4D02-1577.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Edward Etcheverry and Guy W. Harrison of Etcheverry, Kouri & Harrison, LLP, Fort Lauderdale, for appellants.
    Howard N. Kahn of Kahn & Chenkin, Hollywood, for Appellee-David S. Hauger.
   PER CURIAM.

It is undisputed that no notice was given to the sureties, Hartford Fire Insurance Company and National Surety Corporation, and that judgment should not have been entered against them.

We, therefore, reverse and remand for entry of an amended final judgment omitting paragraph three and all other references to the sureties, and without prejudice to any relief that may subsequently be afforded pursuant to rule 1.625, Florida Rules of Civil Procedure.

All other issues raised on appeal are moot. As to MRT Micro, ASA, the judgment shall remain in full force and effect.

GUNTHER, STONE, and FARMER, JJ., concur.


text:
    J.W.M., Appellant, v. The STATE of Florida, Appellee.
    No. 3D002-3154.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General.
    Before JORGENSON, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Reversed. See L.D.L v. State of Florida, 569 So.2d 1310, 1312 (Fla. 1st DCA 1990)(reversing conviction for criminal trespass holding that the landlord of the housing project did not have a right to deny L.D.L. entry because he was on the property based upon a tenant’s invitation).


text:
    A.L., Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2358.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the disposition order entered in this juvenile delinquency proceeding because the trial court failed to renew the offer of counsel to the juvenile after she had waived counsel at an earlier proceeding. Florida Rule of Juvenile Procedure 8.165(b)(4) compels the court to offer counsel at each subsequent stage of the proceedings. Failure to do so constitutes fundamental error. See M.Q. v. State, 818 So.2d 615, 618 (Fla. 5th DCA 2002). Although the court appointed counsel for the juvenile in connection with other charges pending against her, the court never extended the offer for the disposition hearing in the current case.

Reversed and remanded for a new disposition hearing.

STONE, WARNER and FARMER, JJ., concur.


text:
    Gary MERRELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-0286.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Gary Merrell, in proper person.
    Charles J. Crist, Jr., Attorney General and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

We affirm the order denying the appellant’s motion to correct illegal sentence in all respects except his conviction for unlawful possession of a firearm during the commission of a felony in Case No. 89-5491. Appellant correctly argues, as conceded by the state, that his conviction on this count is illegal and must be vacated as violative of the double jeopardy clause where he was also convicted of two counts of armed robbery, two counts of armed kidnaping, and one count of armed burglary in this same case. See Hall v. State, 752 So.2d 1245 (Fla. 3d DCA 2000).

Affirmed in part. Reversed and remanded with directions in part.


author: PLEUS, J.

text:
    Charles David POPE, a/k/a Charles Edward Pope, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3594.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2003.

      Charles David Pope, a/k/a Charles Edward Pope, Lowell, pro se.
    No Appearance for Appellee.
   PLEUS, J.

Pope appeals the summary dismissal of his petition for writ of habeas corpus. We affirm.

In 1993, Pope was found guilty of kidnapping with intent to commit a felony and robbery in Orange County. His convictions were affirmed but sentences were reversed for resentencing in Pope v. State, 646 So.2d 827 (Fla. 5th DCA 1994). We held that his consecutive habitual offender sentences were illegal because the crimes arose out of the same criminal episode. We remanded for resentencing with directions to sentence Pope to either consecutive sentences within the guidelines or an enhanced habitual offender sentence. Id. On resentencing, the habitual offender sentences were run concurrently.

On January 18,1996, Pope filed a motion for post-conviction relief, which was denied. We per curiam affirmed that order in Pope v. State, 671 So.2d 800 (Fla. 5th DCA 1996).

On February 28, 2001, Pope filed a motion to correct an illegal sentence, making an Apprendi argument. On July 6, 2001, Pope filed a second motion to correct illegal sentence, arguing that he could not be sentenced to life in prison for kidnapping when the jury only convicted him of false imprisonment. He also argued that the trial court erred in upwardly departing without written reasons. Both these motions were denied in an order dated February 19, 2002. This court per curiam affirmed that order in Pope v. State, 816 So.2d 646 (Fla. 5th DCA 2002).

On October 22, 2002, Pope filed a petition for writ of habeas corpus in the circuit court in Marion County, where he is imprisoned. The circuit court dismissed Pope’s petition.

On appeal, Pope argues that the trial court erred in sentencing him for kidnapping when the jury found him guilty of false imprisonment. This claim is successive. It was raised in the July 6, 2001 motion to correct illegal sentence, denied by the sentencing court and affirmed on appeal. It also “utterly lacks merit” as the sentencing court found. The verdict form clearly indicates that the jury found Pope guilty of kidnapping with intent to commit a felony.

Pope also argues that the trial court erred in sentencing him as an habitual offender without making written findings. This claim is also successive. Pope raised this argument in his July 6, 2001 motion. In addition, the claim lacks merit. It was not necessary to provide written reasons when sentencing Pope as an habitual offender if the court orally stated the reasons in a judicial proceeding. See, e.g. Power v. State, 568 So.2d 511 (Fla. 5th DCA 1990); Long v. State, 558 So.2d 1091 (Fla. 5th DCA 1990). The record contains a portion of the original sentencing transcript in which the court makes the necessary findings. After reviewing Pope’s lengthy criminal record, which includes murder, escape and possession of firearms, and noting that the instant crimes of kidnapping and robbery were committed just five months after getting out of prison, the court found it necessary to sentence Pope as an habitual offender. This finding was sufficient and appropriate.

Next, Pope argues that the habeas court erred in finding that he was correctly sentenced as an habitual offender for a life felony. Pope mistakes a first degree felony punishable by life for a life felony. Pope was properly sentenced as an habitual offender because kidnapping is a first degree felony, not a life felony. See Floyd v. State, 807 So.2d 93 (Fla. 5th DCA 2002).

Pope’s claims in this proceeding are untimely, successive and constitute an abuse of process. Accordingly, in order to protect the limited judicial resources available to our judicial system and this court, we prohibit Pope from filing any further pro se pleadings with this court concerning his 1998 conviction and sentence. See Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

AFFIRMED.

SAWAYA and TORPY, JJ., concur.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


author: SHARP, W., J.

text:
    Burton BRADSHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2058.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2003.

      Raymond M. Warren of Warren & Warren, P.A., Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Bradsher appeals from his final judgment and sentence after he entered into a negotiated plea bargain and pled guilty to false imprisonment and aggravated assault. He claims that based on the Fai-son decision he could not be convicted and sentenced for both false imprisonment and aggravated assault, under the facts of this case. We affirm.

We do not reach the merits of this argument because Bradsher bargained for his plea agreement with the state, which ’ was honored. As a result, he received a lenient sentence for these crimes. Under these circumstances, he waived any right to challenge his convictions and sentences. Novaton v. State, 684 So.2d 607 (Fla.1994).

Were we to reach the merits of this argument, the result would be the same. First because the Florida Supreme Court has now held that the Faison test does not apply to the offense of false imprisonment. State v. Smith, 840 So.2d 987 (Fla.2003).

Second, if Faison applied to this case, as the state, defense and trial judge thought at the time of sentencing, the record would permit the false imprisonment charge to stand. The judge held five sentencing hearings, at which the testimony of the victim, witnesses, and the defendant were taken. He concluded, and the testimonies adequately support his findings:

The false imprisonment in this case was not slight, inconsequential, and merely incidental to the aggravated assault and was not in the inherent nature of the aggravated assault, and the confinement had a significance independent of the aggravated assault, such that it made the aggravated assault substantially easier to commit, the Faison test having been met.

AFFIRMED.

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

      . § 787.02(l)(a), Fla. Stat. (2000).

      . § 784.021, Fla. Stat. (2000).

      . Faison v. State, 426 So.2d 963 (Fla.1983).


author: ORFINGER, J.

text:
    Peter STITES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1502.
    District Court of Appeal of Florida, Fifth District.
    April 11, 2003.
    Steven J. Guardiano, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Peter Stites’s conviction of three counts of lewd and lascivious assault on his adult son’s fifteen-year-old girlfriend was affirmed on appeal. See Stites v. State, 743 So.2d 531 (Fla. 5th DCA 1999). Stites then filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that his trial counsel was ineffective due to: 1) counsel’s failure to investigate, interview and present an alibi witness; 2) counsel’s failure to investigate, interview and present witnesses whose testimony would have attacked the credibility of the State’s witnesses and demonstrated their bias; and 3) counsel’s failure to move for a mistrial or seek a curative instruction following the State’s improper cross-examination of Stites. The trial court summarily denied relief on claim 3, but conducted an evidentiary hearing on claims 1 and 2. Having carefully reviewed the record, we find competent, substantial evidence to support the trial court’s conclusion that counsel was not ineffective under the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as to claims 1 and 2.

As to claim 3, the record reflects that in cross-examining Stites, the prosecutor posed such questions as: “Isn’t it true that you have problems with your sexuality?”; “Isn’t the problem that you have sexual perversions?”; “Isn’t it true that you like a young girl like Kristen?”; and “You have a problem with pretty girls?” Trial counsel’s objections to these questions were all sustained, but he did not request a mistrial or ask the court to give a curative instruction. While conceding that the questions were improper under the facts of this case, the State argues that the issue is procedurally barred, as it was raised on direct appeal. We disagree. On direct appeal, appellate counsel was limited to arguing that the unpreserved error was fundamental. Because we concluded that it was not, we affirmed Stites’s conviction. As a result, we conclude that Stites’s postconviction argument is not a rehash of his argument on direct appeal reformulated as a claim of ineffective assistance of counsel.

Accordingly, we affirm the trial court’s decision regarding claims 1 and 2, and remand the matter for an evidentiary hearing on claim 3. In doing so, we express no opinion regarding the merit of Stites’s contention. We simply conclude that he is entitled to a hearing on that claim.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

THOMPSON, C.J. and SHARP, W., J., concur.

      . Because we affirmed Stiles's conviction without an opinion, our conclusion was not apparent to the trial court or the parties.