source: Caselaw Access Project

author: POLEN, C.J.

license: Public Domain

text:
    Bernardo GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-4694.
    District Court of Appeal of Florida, Fourth District.
    Jan. 8, 2003.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

POLEN, C.J.

Appellant’s Motion for Rehearing and/or Motion for Certification of this issue as being in direct conflict with a recent opinion from the first district is hereby denied. However, we write to clarify our previous opinion in this case. Appellant Bernardo Garcia initially brought an appeal contesting the state’s ability to file a petition seeking to commit him under the Jimmy Ryce Act, section 394.910-.931, Florida Statutes, in light of a previous plea agreement entered into between himself and the state. The trial court denied Garcia’s motion to specifically enforce the plea agreement. This court has affirmed that decision. However, this court affirmed without prejudice so that Garcia may raise a similar motion at the civil commitment proceeding.

Garcia requests that this court certify conflict with the first district’s recent opinion in Harris v. State, 27 Fla. L. Weekly D946, — So.2d -, 2002 WL 731699 (Fla. 1st DCA Apr.26, 2002); see also Gentes v. State, 828 So.2d 1051 (Fla. 1st DCA 2002)(following Harris). We do not certify conflict. Rather, we point out footnote 1 in Harris which reads:

This is Appellant’s second appearance before this court.... In Harris v. State, 766 So.2d 1239 (Fla. 1st DCA 2000), Harris sought common law certiorari review of an order denying his motion to dismiss the state’s petition to commit him as a sexually violent predator on the ground, among other things, that the proceeding violated the terms of his pri- or plea agreement. The court denied the petition without prejudice to Harris’s right to raise the issue in an appeal from the final commitment order, which has now been entered.

In this case we dismiss the appeal without prejudice so that Garcia may challenge the state’s ability to petition for civil commitment under the Jimmy Ryce Act at the civil commitment proceeding, as there has been no commitment order entered at this time.

STONE, J., and DAVIDSON, LISA, Associate Judge, concur.


author: PER CURIAM.

text:
    Eldred LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D99-1772.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.

      Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING AND MOTION FOR CLARIFICATION

PER CURIAM.

Appellant has filed a motion for rehearing of our decision of December 26, 2002, which we deny. The state has filed a motion for clarification requesting the withdrawal of the prior opinion issued on November 14, 2001, and cited as Lewis v. State, 798 So.2d 918 (Fla. 4th DCA 2001). This court recalled the mandate on July 2, 2002, but inadvertently failed to withdraw the prior opinion. Appellant’s appeal was affirmed without opinion on December 26, 2002. To correct this oversight we hereby grant the state’s motion for clarification and withdraw the opinion issued on November 14, 2001.

GUNTHER, FARMER and HAZOURI, JJ., concur.


text:
    Felton EPPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4982.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Felton Epps, DeFuniak Springs, pro se.
    No appearance required for appellee.
   PER CURIAM.

We grant appellant’s petition for belated appeal of the order summarily denying his Florida Rule of Criminal Procedure 3.853 motion, and affirm the summary denial. See Epps v. State, 835 So.2d 1217 (Fla. 4th DCA 2003); Reighn v. State, 834 So.2d 252 (Fla. 1st DCA 2002).

POLEN, C.J., FARMER and GROSS, JJ., concur.


text:
    Cecil Anthony DORTCH, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-567.
    District Court of Appeal of Florida, First District.
    March 21, 2003.
    Rehearing Denied April 17, 2003.

      Nancy A. Daniels, Public Defender; Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, appellant seeks review of his conviction, following a jury trial, for possession of cocaine with intent to sell or deliver. We agree with appellant that the trial court should have granted his motion for judgment of acquittal, made at the close of the state’s case and renewed at the close of all the evidence, because the evidence (viewed in a light most favorable to the state) was legally insufficient to establish the essential element of intent to sell. See, e.g., Jackson v. State, 818 So.2d 539 (Fla. 2d DCA 2002) (reversing the defendant’s conviction for possession of cocaine with intent to sell based on the defendant’s possession of five grams of cocaine packaged in six ring baggies contained within a larger baggie where the quantity, even as packaged, was not so large as to imply intent to sell absent additional evidence); McCullough v. State, 541 So.2d 720 (Fla. 4th DCA 1989) (holding that the defendant’s possession of a film cannister containing 15 rocks of cocaine weighing 6.15 grams merely raised a suspicion of intent to sell and was not inconsistent with the defendant’s reasonable hypothesis of personal use); Williams v. State, 573 So.2d 124 (Fla. 4th DCA 1991) (holding that the defendant’s possession of $521 was insufficient to show that the defendant had the intent to sell cocaine because it raised no more than suspicion to sell). We conclude that appellant’s remaining arguments are without merit.

We reverse appellant’s conviction for possession of cocaine with intent to sell or deliver, and remand with directions that the trial court enter judgment for the lesser offense of possession of cocaine and resentence appellant accordingly. See § 924.34, Fla. Stat. (2000). In all other respects, we affirm.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, PADOVANO and HAWKES, JJ., concur.


author: KLEIN, J.

text:
    Bianca A. RAYMOND, Petitioner, v. CALDWELL BANKER RESIDENTIAL REAL ESTATE, INC., a California Corporation, Christa Hickey, Gary Green and Mark Cloherty, individually, Respondents.
    No. 4D03-444.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.

      John R. Williams, West Palm Beach, for petitioner.
    No response required for respondents.
   ORDER DETERMINING JURISDICTION

KLEIN, J.

This petition for certiorari is timely as to an order awarding attorney’s fees pursuant to an offer of judgment entered on January 10, 2003. Petitioner, however, also seeks review of an order granting a summary judgment entered on October 2, 2002, which became final when petitioner’s motion for rehearing was denied on November 19, 2002.

After stating that the motion for summary judgment was granted, the court included the traditional words of finality “shall go hence without day.” See Form 1.994, Fla. R. Civ. P. Petitioner argues that this is an order merely granting a motion; however, an order which grants a motion for summary judgment, and includes the words “go hence without day” is a final judgment. Allstate Ins. v. Collier, 405 So.2d 311 (Fla. 4th DCA 1981). The October 2, 2002 order is therefore not reviewable because the time for appeal has run.

The January 10, 2003 judgment for attorney’s fees and costs is reviewable as a final order, BDO Seidman L.L.P. v. British Car Auctions, Inc., 789 So.2d 1019 (Fla. 4th DCA 2001), rev. denied, 828 So.2d 384 (Fla.2002). We accordingly redesignate this as a final appeal from the January 10, 2003 judgment.

POLEN, C.J., and TAYLOR, J., concur.


author: ALLEN, C.J.

text:
    Ronald GASPARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2931.
    District Court of Appeal of Florida, First District.
    April 3, 2003.

      Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Phillip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   ALLEN, C.J.

The appellant in this direct criminal appeal challenges his conviction of aggravated stalking after entry of a domestic violence injunction. He presented evidence at trial that he did not know that the injunction was in effect at the time of the alleged offense, and he argues on appeal that the trial court fundamentally erred by failing to instruct the jury that an element of the offense is knowledge by the accused that an injunction or other specified court order is in effect. Concluding that such knowledge is an element of the offense and that the trial court fundamentally erred in failing to so instruct the jury, we reverse the appellant’s conviction.

Section 784.048(4), Florida Statutes, provides in pertinent part that it is unlawful for any person under injunction for protection of another person against domestic violence to willfully, maliciously, and repeatedly follow or harass such other person. Violation of the statute constitutes a felony of the third degree. The mens rea requirement specified in the statute relates only to the following or harassing element of the offense, and thus the statute is silent as to whether knowledge of the injunction is also an essential element. But the supreme court, in applying a double jeopardy analysis pursuant to Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), has concluded that “[t]he statutory elements of aggravated stalking under section 784.048(4) are knowledge of an injunction, and knowingly, willfully, maliciously, and repeatedly following or harassing the beneficiary of the injunction.” State v. Johnson, 676 So.2d 408 (Fla.1996) (Emphasis supplied). We note that this recitation of the statutory elements is consistent with the principles expressed by the supreme court in Chicone v. State, 684 So.2d 736 (Fla.1996). See also Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).

Because knowledge by an accused that an injunction is in effect is an essential element of the offense, the trial court failed to properly instruct the jury. Although a proper instruction was not requested, the trial court’s failure to instruct the jury as to this essential element of the offense constituted fundamental error in this case. See State v. Delva, 575 So.2d 643 (Fla.1991). The appellant’s conviction is accordingly reversed, and this case is remanded.

BENTON and HAWKES, JJ., concur.


text:
    Irina A. BOGDANOVA, Appellant, v. The ROYAL HANNEFORD CIRCUS, Appellee.
    No. 1D02-1161.
    District Court of Appeal of Florida, First District.
    April 8, 2003.
    Carl A Feddeler, III, of Smith, Fedde-ler, Smith & Miles, P.A., Lakeland; and Susan W. Fox and Brendan M. Lee of Macfarlane, Ferguson & McMullen, Tampa, for appellant.
    Charles E. Bentley of The Bentley Law Group, P.A., Bartow, for appellee.
   PER CURIAM.

Irena Bogdanova, appellant, injured on June 4, 1999, while performing an acrobatic act in the Royal Hanneford Circus, ap-pellee, appeals from a final workers’ compensation order determining that she was not an employee of the Circus, but rather an independent contractor (IC). Because we conclude that competent, substantial evidence (CSE) supports the decision of the judge of compensation claims (JCC), we affirm.

Appellant’s initial argument is that the judge erred in finding her to be an IC, because he had struck the Circus’s IC defense due to its dilatory tactics; therefore, the Circus should have been disallowed from maintaining its IC defense. Cf. Armstrong v. Ormond in the Pines, 734 So.2d 596 (Fla. 1st DCA 1999) (observing that what is now section 440.014(c), Florida Statutes, presumes that an IC is an employee; therefore, the burden is on the party denying such status to prove such defense). Appellant urges that the Circus could not meet its burden because its defenses had been struck. We cannot agree.

After the JCC had entered his order disallowing the Circus’s denial of appellant’s employment status, the Circus moved to set it aside, and in ruling thereon, the judge entered an order that can only be described as confusing. The judge initially decided: “I find that the interests of justice will best be served by allowing the E/C [employer/carrier] to present evidence at trial on their defenses in this claim.” Nevertheless, the order inconsistently concluded: “[I]t is hereby Ordered and Adjudged that the E/C’s motion to set aside the Order of 9/13/01 is ... denied.” In that the JCC allowed the Circus to present the IC defense at the evidentiary hearing and denied the claim on that'basis, we conclude that the portion, of order granting the motion to strike must be considered a typographical error which was “readily correctable” if appellant, the party aggrieved by the inconsistency, had brought it to the judge’s attention by motion for rehearing.

This is precisely the type of error that Rule 4.141 of the Florida Rules of Workers’ Compensation Procedure was designed to correct. The Florida Supreme Court adopted rule 4.141, authorizing motions for rehearing, in response to case law wherein this court had held that readily correctable technical errors should be brought to the JCC’s attention during the 30-day period before the order becomes final. See Fla. R. Work. Comp. P. 4.141 Comm. Notes, 1984 Adoption (citing Dade Am. Hosp. Supply v. Perez, 417 So.2d 296 (Fla. 1st DCA 1982), and Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981)). The misstatement in the order at bar was tailor-made for such a motion for rehearing. Rule 4.141(b) provides that the purpose of a motion for rehearing shall be limited to the following:

(1) calling] attention to typographical, technical, and scrivener’s errors;
(2) challenging] rulings that were outside the scope of the issues presented; or
(3)seeking] clarification in matters of law or fact that the judge overlooked or misapprehended.

See Wal-Mart Stores v. Lopez, 742 So.2d 301 (Fla. 1st DCA 1998) (concluding that the JCC’s award of 108 weeks of benefits rather than the statutory maximum of 104 weeks, was a readily correctable error that the E/C should have raised by motion for rehearing).

On the merits, we agree that CSE supports the claimant’s classification as an IC under the criteria listed in section 440.02(14)(d)(l), Florida Statutes (1999).

AFFIRMED.

ERVIN and DAVIS, JJ., concur; BENTON, J., concurs in result.


text:
    Laura R. MORRISON, Appellant, v. ESTATE OF David I. SALEM, Appellee.
    No. 3D02-2155.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Philip Michael Cullen, III (FLLauder-dale), for appellant.
    George W. Chesrow, Coral Gables, for appellee.

      Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

The appellant attorney appeals an order denying her petition for payment of additional .legal fees in a probate matter. Based upon the record evidence adduced below, we cannot conclude that the trial court abused its discretion in denying the same. See DiStefano Constr., Inc. v. Fidelity & Deposit Co. of Md., 597 So.2d 248, 250 (Fla.1992) (stating that “the award of attorney’s fees is a matter committed to sound judicial discretion which will not be disturbed on appeal, absent a showing of clear abuse of discretion.”). See also Afrazeh v. Miami Elevator Co. of Am., 769 So.2d 399, 401 (Fla. 3d DCA 2000) (same). We therefore affirm.

Affirmed.


text:
    Tony JACKSON, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D02-5492.
    District Court of Appeal of Florida, Second District.
    April 25, 2003.
    Rehearing Denied June 25, 2003.
    Donna P. Levine of Law Office of Donna P. Levine, West Palm Beach, for Petitioner.
    Enoch J. Whitney, General Counsel, Tallahassee, and Heather Rose Cramer, Assistant General Counsel, Lake Worth, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is granted. See Fla. Dep’t of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003); see also Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla. Apr. 3, 2003) (holding clearly established law can derive from recent controlling case law). On remand, the circuit court must determine whether the validly enacted laws in effect prior to the enactment of chapter 98-223, Laws of Florida, would provide Mr. Jackson relief from the administrative order of the Department of Highway Safety and Motor Vehicles. See Henderson v. Antonacci, 62 So.2d 5 (Fla.1952) (holding that when amendment to statutes is declared unconstitutional, statutes as they existed before amendments become effective by operation of law).

Petition for writ of certiorari granted.

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


author: HARRIS, C., Senior Judge.

text:
    ALLSTATE INSURANCE COMPANY, Petitioner, v. TITUSVILLE TOTAL HEALTH CARE, et al., Respondent.
    Nos. 5D02-2560, 5D02-2565, 5D02-2563, 5D02-2564.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2003.
    Rehearing Denied July 8, 2003.
    Raoul G. Cantero, III, Gregory A. Victor, and Jack R. Reiter, of Adorno & Yoss, P.A., Miami, for Petitioner.
    Kimberly P. Simoes, of Susan W. Tol-bert, P.L., Daytona Beach, for Respondent.
   HARRIS, C., Senior Judge.

Kimberly Simoes had been staff counsel for Alstate for a considerable time when she left to join the law firm of Wyatt and Tolbert. She then filed numerous lawsuits allegedly relating to the same provider litigation upon which she previously served as Alstate’s counsel. Athough there were several such lawsuits filed, the four suits involved in the matter under review were filed in the County Court for Brevard County. Alstate, in addition to defending the action, moved to have Simoes disqualified because she was acting in violation of various rules of professional conduct. The parties agreed to stay the underlying actions until the disqualification motions were heard.

There were several such actions filed by Simoes in both Brevard and Volusia Counties which were assigned to several different judges. Alstate elected to file an action in the Orange County Circuit Court seeking to restrain Simoes and her law firm from improperly using information gained by Simoes from her employment with Allstate in the pending Brevard and Volusia actions. Allstate then moved to stay the county courts herein from deciding its motion to disqualify until the disposition of the case in the Orange County Circuit Court.

The trial courts refused this stay and this denial was the subject of the unsuccessful underlying certiorari proceedings in the Brevard Circuit Court which led to an award of appellate attorney’s fees under the amended version of section 57.105, Florida Statutes now before this court on Allstate’s request for certiorari. We grant certiorari and quash the order granting attorney’s fees.

The circuit court had certiorari jurisdiction to review this non-final order under Rule 9.030(c), Jurisdiction of Circuit Courts. The circuit court, acting in its appellate capacity, agreed that it had jurisdiction. It determined, however, that Allstate’s attorneys knew, or should have known, that certiorari was an improper procedural remedy because there would be a full, adequate and complete remedy on appeal and, thus, awarded attorney’s fees under the amended version of section 57.105. While we remain unsure as to how much the amendment has affected previous law (the issue is currently before the supreme court), the lower court ruling would seem to require attorney’s fees to one side or the other in almost every cer-tiorari case.

Courts have often held that it is appropriate for one court to stay an action in order to avoid a waste of judicial resources if a similar issue is pending in another action and will be dispositive. See Rosen v. Zoberg, 680 So.2d 1050 (Fla. 3d DCA 1996) and Laurence v. Soler, 706 So.2d 896 (Fla. 3d DCA 1998). The circuit appellate court distinguished these cases because this case involved a stay of the issue of disqualification and not the stay of the underlying action which was challenged by certiorari. We find the distinction meaningless. The critical issue of disqualification of the lawyer who brought these four actions, as well as twenty-nine other actions in Brevard and Volusia Counties, based on allegations of improper conduct had to be answered before the court proceeded to the merits of the case. It would indeed be a waste of judicial resources if disqualification had to be determined in each of the thirty-three cases. Because certiorari was not an improper procedural remedy for Allstate to seek, the court’s order permitting attorney’s fees against it was improper and is hereby quashed and the resulting award of attorney’s fees is set aside.

CERTIORARI GRANTED and ORDER on Attorney’s fees QUASHED.

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

      . See Forum v. Boca Burger, 788 So.2d 1055, 1060-61 (Fla. 4th DCA 2001), review granted, 817 So.2d 844 (Fla.2002).


author: ALTENBERND, Chief Judge.

text:
    Everett Ward MILKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-460.
    District Court of Appeal of Florida, Second District.
    May 2, 2003.
    Rehearing Denied July 7, 2003.

      James Marion Moorman, Public Defender, and Anthony C. Musto, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Everett Ward Milks appeals an order designating him a sexual predator pursuant to the Florida Sexual Predators Act (the Act), section 775.21, Florida Statutes (2000). He argues that the Act violates constitutional principles of separation of powers and procedural due process. We affirm.

Mr. Milks entered a no contest plea to a charge of lewd and lascivious molestation and was sentenced to six and one-half years’ imprisonment. Approximately four months later, the State sought to have Mr. Milks designated a sexual predator pursuant to section 775.21. Mr. Milks objected, arguing that the Act violated constitutional principles of separation of powers and procedural due process. The trial court overruled Mr. Milks’ objections and held the Act constitutional. By order dated January 2, 2002, Mr. Milks was designated a sexually violent predator. Mr. Milks has appealed this postjudgment order.

We must reject Mr. Milks’ argument that the Act violates constitutional principles of separation of powers. See Kelly v. State, 795 So.2d 135 (Fla. 5th DCA 2001); cf. State v. Cotton, 769 So.2d 345 (Fla.2000) (holding Prison Releasee Reoffender Punishment Act, which took all sentencing discretion away from trial court and placed it in hands of prosecutor, did not violate separation of powers). With respect to Mr. Milks’ procedural due process claim, we also affirm in light of the United States Supreme Court’s decision in Connecticut Department of Public Safety v. Doe, — U.S. -, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003).

Before the circuit and appellate courts, Mr. Milks has argued that the Act violates procedural due process because it publicly labels him as a dangerous sexual predator without providing him a hearing as to his actual dangerousness. Mr. Milks has relied primarily on Doe v. Department of Public Safety, 271 F.3d 38 (2d Cir.2001). In Doe, the Second Circuit held that a similar Connecticut act violated procedural due process because it deprived the defendant of a liberty or property interest by imposing a stigma upon him without providing a hearing to determine whether the defendant was dangerous. Doe, 271 F.3d 38 (citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1975)).

After the parties filed their briefs in this case, the United States Supreme Court reversed Doe in Connecticut Department of Public Safety v. Doe, — U.S. -, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003). The Supreme Court held that even if a liberty or property interest was implicated in the Connecticut act, due process did not entitle the defendant to a hearing to establish whether he or she was dangerous, as that fact was not material under the statute. Id. at 1164.

The reporting requirements of Florida’s act, like Connecticut’s, are determined solely by a defendant’s conviction for a specified crime. See § 775.21. The conviction itself is “a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest.” Doe, 123 S.Ct. at 1164. Florida, like Connecticut, has decided that the public must have access to information about all convicted sex offenders, currently dangerous or not, and that those convicted sex offenders must face certain sanctions. Thus, procedural due process does'not require a hearing to prove a fact irrelevant to the statutory scheme. Id.

The Supreme Court has not determined whether the Connecticut act or ones similar to it violate substantive due process. Id. at 1164-65. However, Mr. Milks, like Mr. Doe, has not raised that claim. Id. We therefore affirm the order designating Mr. Milks a sexual predator.

Affirmed.

SALCINES and COVINGTON, JJ., Concur.

      . The State has argued that this court lacks jurisdiction to review the order designating Mr. Milks a sexually violent predator because it was entered months after Mr. Milks entered a plea to the charges against him. See Coblentz v. State, 775 So.2d 359, 360 (Fla. 2d DCA 2000). We conclude that we have jurisdiction in this direct appeal of the trial court's order to review whether the sexual predator designation violates constitutional principles of separation of powers or procedural due process either pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(D) or by way of certiorari. Cf. State v. Colley, 744 So.2d 1172 (Fla. 2d DCA 1999) (concluding that review by certiorari was appropriate in state appeal of order denying sexual predator designation).

      . See also Espindola v. State, - So.2d -, 2003 WL 118634, 28 Fla. L. Weekly D222 (Fla. 3d DCA Jan. 15, 2003) (holding the Florida Sexual Predator Act unconstitutional, relying on Doe, 271 F.3d 38). At this time, Espin-dola is not a final opinion and therefore may be subject to withdrawal or revision. Accordingly, we decline to certify conflict with that decision.


author: CASANUEVA, Judge.

text:
    Jon Paul BURNETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5527.
    District Court of Appeal of Florida, Second District.
    May 16, 2003.
    Rehearing Denied July 2, 2003.

      Michael P. McDaniel of C. Ray McDaniel, P.A., Bartow, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for appel-lee.
   CASANUEVA, Judge.

Jon Paul Burnett was convicted of two counts of lewd or lascivious conduct and over one hundred counts of possession of child pornography. The child pornography charges stemmed from law enforcement’s seizure of his computer and numerous diskettes in his bedroom. We affirm his convictions for lewd or lascivious conduct, but because the affidavit in support of the search warrant was fatally defective, we reverse the convictions for possession of child pornography and remand for re-sentencing.

Facts

This case began when the father of two boys, ages nine and twelve, contacted a Polk County Sheriffs Office detective with his concern that Mr. Burnett had engaged in inappropriate behavior with his children. The father related his suspicion that Mr. Burnett videotaped his children while they were not wearing any clothing. In a subsequent interview the children told the detective that Mr. Burnett had asked them to remove their clothes and wrap themselves in clear plastic wrap so that he could videotape a temporary tattoo on their buttocks. Additionally, he asked them to place clear plastic wrap on the toilet, then to use the toilet and deliver the plastic wrap to him, and to place quarters in their rectums and shake them out. The children denied that any videotaping actually occurred.

Armed with this information, detectives then contacted Mr. Burnett, who drove to a sheriffs office substation for an interview. There he advised the deputies that he had videotaped the boys but that he had either discarded or recorded over the tape. Upon discovering that Mr. Burnett rented a bedroom from his parents at their residence, the detectives obtained his consent to search his room. Among the targets of their search were the video camera and any videotape of the boys. During the search, Mr. Burnett showed the deputies the camera, demonstrated how it worked, but stated that the tape was not in the camera. Noticing that the camera had no power, a deputy plugged it in, hit the play mode, and watched a videotape that matched the father’s allegations. Both the video camera and tape were seized as evidence and the room was searched. Nothing else was seized.

The following day one of the detectives applied for a warrant to search the entire residence. Among the matters set out in the affidavit were the following:

(1) Your affiant is a duly appointed law enforcement official employed by the Polk County Sheriffs Office. Your affi-ant is currently a detective assigned to the Bureau of Criminal Investigations in the Sexual Abuse And Family Exploitation Unit. Your affiant has been employed for over three years at the Polk County Sheriffs Office. I have been assigned to the S.A.F.E. Unit for approximately one year. My duties are to investigate any activity involving sex crimes, child abuse, and family exploitation in Polk County, Florida. Your affi-ant has received specialized training in investigating sex crimes, specifically the Institute of Police Technology and Management course focusing on sexually exploited children and juvenile victims of sexual abuse. This affiant attended the Polk County conference on Sexual Abuse that specialized in recognizing victims of sexual abuse and interviewing them. Your affiant has received specialized training in child injury and death investigations as well as a course on interview and interrogations and search warrant preparations. Your affiant has conducted over two hundred investigations involving crimes against children and has made over thirty arrests as a direct result of these investigations. Your affiant has previously either written or assisted in the execution of four search warrants.
* * * *
(7) Based on my expertise and training, people involved in child pornography (as in this case video taping a juvenile’s genitals and buttocks) commonly are involved with receiving or transmitting like images of children engaged in sexual performances on their computer. It is not unusual for a suspect to retain images on their computer even when they are under suspicion of committing crimes against children. Furthermore, the majority of people utilizing computers are unable to erase these images from their hard drive. These images can be retrieved during forensic analysis even after an attempt has been made to erase the images. Consequently, I believe there are images related to children involved in sexual performances and/or child pornography as defined in F.S.S. 827.071 still contained on the computer located at the place to be searched. Your affiant also believes due to the suspect’s untruthful statements on whether he kept pornographic images on tape (which I viewed), it is believed other child pornographic images may be stored on numerous video tapes located in the suspect’s bedroom, the place to be searched.

Based upon this affidavit a judge issued the warrant, and deputies seized Mr. Burnett’s computer and numerous diskettes. Mr. Burnett’s motion to suppress based upon lack of probable cause in the warrant was denied.

Among the evidence introduced at trial was the testimony of a computer forensics expert, Mr. Gates, who testified that, upon his technical examination using specialized software, the seized diskettes revealed that they at one time had held images, but all of the pictures had been deleted or erased. Mr. Gates’s examination could not ascertain when or by whom the images had been deleted. Furthermore, Mr. Gates recovered no images — deleted or otherwise — from the hard drive of Mr. Burnett’s computer. However, Mr. Burnett possessed a computer diskette for a program called Paint Shop Pro that can be used to view and manipulate images, and Mr. Gates discovered that someone at some unspecified time had used this program to view at least two pornographic images on Mr. Burnett’s computer.

To counter this circumstantial evidence that he possessed child pornography, Mr. Burnett adduced testimony from a friend who was present when Mr. Burnett received a package through an e-Bay auction containing diskettes that he had not specifically ordered. Mr. Burnett’s theory of innocence was that he did not know what was on the diskettes when they arrived, that he had never viewed the images on them, and that someone else could have deleted the images before the diskettes ever came into his possession. Similarly, Mr. Burnett attacked the charges stemming from the images viewed through the Paint Shop Pro program on the ground that there was no evidence demonstrating that he actually viewed or manipulated the recovered images.

Although we have misgivings about the sufficiency of the evidence to sustain the possession of child pornography charges, we do not need to reach that issue. On this appeal we reverse the finding that the detectives had probable cause to search for and to seize Mr. Burnett’s computer and the diskettes. Consequently, we reverse the convictions on 136 counts of possession of child pornography that flowed from the illegal seizure of those items.

Analysis

The Fourth Amendment to the United States Constitution recognizes the right of the people to be protected from the government’s unreasonable searches and seizures and mandates that no search warrant shall issue “but upon probable cause, supported by oath or affirmation. ...” U.S. Const, amend. IV. The Constitution of the State of Florida similarly protects against unreasonable searches and seizures by the government: “No warrant shall be issued except upon probable cause, supported by affidavit....” Art. I, § 12, Fla. Const. To further these constitutional imperatives, our legislature has decreed:

No warrant shall be issued for the search of any private dwelling under any of the conditions hereinabove mentioned except on sworn proof by affidavit of some creditable witness that he or she has reason to believe that one of said conditions exists, which affidavit shall set forth the facts on which such reason for belief is based.

§ 933.18(10), Fla. Stat. (1999). In implementing these constitutional mandates,

[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Thus, the affidavit in the warrant application must satisfy two elements: first, that a particular person has committed a crime— the commission element, and, second, that evidence relevant to the probable criminality is likely located at the place to be searched — the nexus element. United States v. Vigeant, 176 F.3d 565, 569 (1st Cir.1999). As stated in Gates, wholly con-clusory statements fail to meet the probable cause requirement; the reviewing magistrate cannot abdicate his or her duty and become a mere ratifier of the bare conclusions of others. Gates, 462 U.S. at 238, 103 S.Ct. 2317. And, pursuant to Gates, as the reviewing court we are required to ensure that a substantial basis existed to support the magistrate’s probable cause determination. Id. at 238-39, 103 S.Ct. 2317.

Our initial analytical focus will be upon the nexus element of the warrant application. We must measure the affidavit’s averments to determine whether evidence relevant to Mr. Burnett’s probable criminality — possession of child pornography' — was likely located at the place to be searched, that is, his bedroom. Because the affidavit failed to set forth crime-specific facts regarding Mr. Burnett’s probable possession of child pornography and the likelihood that it would be found on the computer and diskettes in his bedroom, we conclude that the warrant application failed. See King v. State, 779 So.2d 385, 386 (Fla. 2d DCA 2000) (holding that the probable cause statement was totally devoid of any facts leading to the conclusion that probable cause existed to believe that stolen property would be found at the places to be searched).

Although the affidavit in this case properly stated that the seized videotape substantiated the allegations of Mr. Burnett’s lewd or lascivious conduct with children, the videotape corroborated only those initial charges and nothing more. The affidavit recited the deputy’s observation that videos and magazines were stacked about the bedroom, yet it failed to affirm that the title or cover of any video or magazine suggested it contained child pornography. This is despite the fact that the detective and other law enforcement personnel had already consensually searched the very bedroom in question — a fact also omitted from disclosure to the magistrate.

Furthermore, the general information set forth in paragraphs one and seven of the affidavit manifested no factual foundation for the magistrate’s conclusion that probable cause existed in this case. The initial complaint was that Mr. Burnett made a lewd videotape of two young boys, but nothing was elicited'suggesting that the father believed Mr. Burnett used his computer to transmit or store images of child pornography. The affidavit contained no specific facts linking Mr. Burnett to this particular criminal conduct; it failed to describe a factual link between the video camera and the functioning capability of the home computer so that images could be transferred. The affidavit also omitted any factual averment that the computer was linked to the internet or that the video camera was compatible with the computer so that images could be downloaded, transferred, or transmitted.

Rather, in this case the affiant averred in only general terms that she had conducted over two hundred investigations involving crimes against children, resulting in over thirty arrests, but she recited no specific experiences in child pornography matters or arrests she had made for this particular crime. Essentially, the affiant failed to describe any personal experience with child pornography from which her conclusions concerning Mr. Burnett were derived. Instead, the affidavit included language such as “[biased on my expertise,” “commonly are involved,” and “it is not unusual.” To determine probable cause, the magistrate is required to evaluate whether the case-specific facts yield a legal conclusion that probable cause exists. Here, the affiant’s education and experience in matters of child pornography were not set out, nor did the affiant indicate the degree of commonality that is alleged to exist. Although it may not be unusual for suspects such as Mr. Burnett to retain child pornography images, the question is — factually—to what degree that propensity could be attributed to him.

The magistrate’s duty is to examine the affidavit for facts and fact-based conclusions. An affidavit is not limited to the affiant’s personal knowledge; in some instánces information from confidential informants or scientific evidence can be presented. In the same vein, information from experts in the field, such as child pornography, may be made available to the magistrate for consideration, whether it be by scientific studies, statistical analysis, or the like. See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (holding that “hearsay may be the basis for issuance of the warrant’ so long as there ... [is] a substantial basis for crediting the hearsay’ ” (citing Jones v. United States, 362 U.S. 257, 272, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83,100 S.Ct. 2547, 65 L.Ed.2d 619 (1980))); see also United States v. Isgut, No. 95-6199 CR Lenard, 1996 WL 775064 (S.D.Fla. Jul. 23, 1996) (voiding a search warrant for lack of probable cause based on staleness but criticizing the affiant’s failure to include specific information about the training he had received and the source of his information concerning “five characteristics of those who are considered ‘collectors of child pornography’ ”). Unfortunately, no scientific information or expert opinion evidence was included in this affidavit for the magistrate’s consideration.

In paragraph seven, the affiant described her belief in the generalized behavior of other persons who receive or transmit images of children and who are unable to erase the contents of their computers. From this generalized information, which contained no link to criminal conduct by Mr. Burnett, the officer concluded that Mr. Burnett’s computer contained pornographic images. Probable cause analysis focuses not on the evidence that is found as a result of the search but on facts known at the moment of seizure. See State v. Bond, 341 So.2d 218, 218 (Fla. 2d DCA 1976) (“Probable cause for issuance of a search warrant is determined solely with reference to facts stated in the warrant and supporting affidavit.”). Here, the conclusion that images remained on Mr. Burnett’s computer was not supported by the factual allegations of the affidavit. The fact that Mr. Burnett might have lied about or misrepresented the existence of the video of the children established, in this instance, only his questionable veracity; it did not substantiate his commission of another criminal offense. In contrast, in Schmitt v. State, 590 So.2d 404, 411 (Fla.1991), in which the supreme court sustained the probable cause determination in a warrant issued to search the defendant’s home for evidence of the defendant’s knowing possession of child pornography, § 827.071(5), Fla. Stat. (1987), the affidavit revealed that the defendant “made nudity a central and almost obsessive object of his attention” and that “this overall focus of Schmitt’s conduct tended to show a lewd intent and thus created a substantial basis for believing that the search would fairly probably yield evidence” that the defendant had violated the laws prohibiting possession- of child pornography. The Schmitt affidavit alleged that the defendant had taken numerous nude photographs of his daughter over a four-year period beginning when the child was eight years old; that the father had taken photographs of a nude adult female in the presence of the child; that the father had videotaped the daughter and a friend “stripping down to their panties” and “swimming in the nude”; and that the father kept photographs, film, cameras, a television, and a videocassette recorder in the place to be searched. Schmitt, 590 So.2d at 408. In Mr. Burnett’s case, however, no details in the affidavit supported a conclusion that Mr. Burnett possessed pornographic videotapes, photographs, or computer images other than the single tape that the authorities already possessed. Any conclusion that his room contained other evidence of his possession of pornographic materials was based on mere suspicion.

Years ago, the Supreme Court examined another affiant’s statement that he had “cause to suspect and [did] believe” that liquor illegally brought into the United States was located on certain premises. Nathanson v. United States, 290 U.S. 41, 44, 54 S.Ct. 11, 78 L.Ed. 159 (1933). That wholly conclusory statement was rejected as a foundation for probable cause. Similarly, we must reject the wholly conclusory statements made here.

Conclusion

We recognize that normally the aver-ments of an experienced officer are accorded some weight. To be given that deference, however, the officer’s conclusions must be grounded upon some particular evidence. As stated in Churney v. State, 348 So.2d 395, 397 (Fla. 3d DCA 1977), “an affidavit in support of a search warrant for a private dwelling must show probable cause on its face.... Probable cause for issuance of a search warrant cannot be based on mere suspicion, but rather must be based on facts known to exist.” The affidavit and search warrant in this case cannot withstand scrutiny under the test of case law, section 933.18(10), or the Florida or federal constitutions.

Because we have resolved this case on the sufficiency of the affidavit, it is not necessary to address the equally difficult question of whether possession of a computer diskette that contained deleted images of child pornography retrievable only through efforts of a computer forensics expert is sufficient evidence to sustain a conviction for possession of child pornography.

Affirmed in part, reversed in part, and remanded for resentencing.

ALTENBERND, C.J., and WHATLEY, J., Concur.

      . § 800.04(6), Fla. Stat. (1999).

      . § 827.071(5), Fla. Stat. (1999).


author: HAWKES, J.

text:
    Karen Lee SPEARS, Appellant, v. ALBERTSON’S, INC., a corporation, Appellee.
    No. 1D02-3008.
    District Court of Appeal of Florida, First District.
    May 20, 2003.

      Lester Makofka, Makofka and Makofka, Jacksonville, for Appellant.
    Michael S. O’Neal, Howell & O’Neal, Jacksonville, for Appellee..
   HAWKES, J.

Appellant appeals a final order granting summary judgment on her claims for slander and false arrest. Because disputed issues of material fact remain as to both claims, we reverse.

The standard of review applicable to a grant of summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “[S]ummary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Id. The moving party must show conclusively “the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). If the evidence is conflicting, will permit different reasonable inferences, or tends to prove the issues, it should be submitted to the jury as a question of fact. See Aberdeen at Ormond Beach, L.P., 760 So.2d at 130.

False Arrest

Store manager Craig Sopetto (Sopetto) and investigator Kim Hires (Hires), both Albertson’s employees, accused Appellant, a long-time Albertson’s employee, of stealing $600.00 by failing to make a cash register “drop.” It is uncontested that Hires and Sopetto called Appellant to Sopetto’s office, questioned her about the missing $600, and called the police. However, Hires testified she told Appellant “the door was open” and “she was in no way” being held, while at the same time testifying Appellant asked to call her husband, but that Hires told her the police officer would let her make a call after he arrived. Conversely, Appellant testified she asked to leave but Sopetto prevented her from doing so by blocking the door and saying “you’re not going anywhere, we called the police.”

The tort of “false imprisonment” or “false arrest” is the unlawful restraint of a person against his or her will, and the gist of the action is the unlawful detention of the person and the deprivation of his or her liberty. See Escambia County Sch. Bd. v. Bragg, 680 So.2d 571, 572 (Fla. 1st DCA 1996). To be civilly hable for false imprisonment, one must have personally and actively participated, either directly or by indirect procurement. See Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699 (1944). A plaintiff in a false imprisonment action need not show that force was used in the detention or that he or she orally protested to demonstrate the detention was against his or her will. See Harris v. Lewis State Bank, 436 So.2d 338, 341 (Fla. 1st DCA 1983); Washington County Kennel Club, Inc. v. Edge, 216 So.2d 512 (Fla. 1st DCA 1968). However, a plaintiff alleging false arrest must show the restraint was unreasonable and unwarranted under the circumstances. Harris, 436 So.2d at 341. Whether the restraint was unreasonable under the circumstances is a question of fact, which precludes summary judgment. Id. at 341-342.

Here, disputed issues of material fact remain as to whether Appellant was, in fact, held against her will, thus precluding summary judgment. Moreover, if it is determined that Appellant was held against her will, a question of fact remains as to whether the detention was unreasonable or unwarranted under the circumstances, again precluding summary judgment.

Slander

Ultimately, a uniformed police officer escorted Appellant out of Albertson’s through the front of the store, with her hands handcuffed behind her. Appellant testified Sopetto yelled at her “I want my money,” as she was being taken through the store in handcuffs. Conversely, Sopet-to denied, and the police officer could not recall, Sopetto making any comment to Appellant. The trial court granted summary judgment on this claim based on its holding that the words “I want my money” could never constitute slander. In so doing, the trial court erred. A determination of whether these words constitute slander must be made by considering the context in which the words were spoken.

“Slander may be defined as the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood.” Axelrod v. Califano, 357 So.2d 1048, 1050 (Fla. 1st DCA 1978). “When the words published concerning a person tend to degrade him, bring him into ill repute, destroy confidence in his integrity, or cause other like injury, such language is actionable per se.” Id. Similarly, “[publications which impute to another characteristics or conditions incompatible with the proper exercise of one’s business, trade, profession or office are slanderous per se.” Glynn v. City of Kissimmee, 383 So.2d 774, 775 (Fla. 5th DCA 1980). “[A] publication which falsely and maliciously charges another with the commission of a crime is actionable per se.” Axelrod, 357 So.2d at 1050 (holding statements made by former employer to a third party that plaintiff was a thief and a forger were actionable per se, and raised a presumption of malice as a matter of law); Bass v. Rivera, 826 So.2d 534, 535 (Fla. 2d DCA 2002) (holding an oral communication that imputes to another a criminal offense amounting to a felony, is actionable per se); Bobenhausen v. Cassat Ave. Mobile Homes, Inc., 344 So.2d 279 (Fla. 1st DCA 1977) (holding statement made by plaintiffs former employer to another that plaintiff was a “thief and a crook” who “stole him blind” was slander per se, if false). “ ‘Qualified privilege’ is a defense and the burden of proving it rests with the defendant.” Glynn, 383 So.2d at 776. “The existence of a ‘qualified’ privilege vanishes if the statement is made with malice, or to too wide an audience.” Id. Whether the privilege exists or has been exceeded creates a mixed question of law and fact which should be determined by the trier of fact. Id.

If the trier of fact believed Appellant, it could be reasonably inferred from Sopetto’s comments that Sopetto was loudly accusing Appellant of theft as she was being taken from the store in handcuffs. Thus, a jury could find that the comments, under these circumstances, constitute slander per se and raise a presumption of malice as a matter of law, because they impute to Appellant characteristics incompatible with the exercise of her profession or trade, and charge her with the commission of a crime. See Axelrod, 357 So.2d at 1050; Glynn, 383 So.2d at 775. Moreover, if Sopetto had a qualified privilege, a question of fact remains as to whether the privilege was lost because the statement was made with malice or to too wide an audience.

Because disputed issues of material fact remain, the trial court’s order granting summary judgment is REVERSED.

VAN NORTWICK and LEWIS, JJ., concur.


author: COVINGTON, Judge.

text:
    Rex E. HARPER, Appellant, v. Amy HARPER n/k/a Amy Damon, Appellee.
    No. 2D02-1394.
    District Court of Appeal of Florida, Second District.
    May 21, 2003.
    Rehearing Denied June 25, 2003.

      Joseph R. Park and J. Brent Barnaky of Park and Ossian, P.A., Clearwater, for Appellant.
    David J. Plante of Merkle & Magri, P.A., Tampa, for Appellee.
   COVINGTON, Judge.

Rex Harper appeals the trial court’s denial of the supplemental petition in which he sought to terminate child support for an adult child who is dependent because of mental and physical incapacities. The adult child is now married to a man who is also mentally incapacitated. We affirm the trial court’s order.

We write only to point out that we believe the legislature should address this issue. By legislative design, children up to the age of eighteen are dependent upon their parents. § 743.07(1), Fla. Stat. (2001). Also by legislative design, children who are mentally or physically incapacitated may remain dependent upon their parents beyond the age of eighteen. § 743.07(2). However, marriage was an emancipating act under common law, and marriage is an emancipating act under section 743.01 for children who are dependent because of their age. The question of whether marriage is an emancipating act for a child who is dependent because of a mental or physical incapacity is best answered by our legislature, particularly where as here, it has previously codified its public policy intentions in Chapter 743, Florida Statutes (2001).

Affirmed.

CASANUEVA and DAVIS, JJ„ Concur.


author: VILLANTI, Judge.

text:
    Julie M. BYERS, Appellant, v. Robert A. CALLAHAN, Appellee.
    No. 2D02-2838.
    District Court of Appeal of Florida, Second District.
    May 23, 2003.
    Rehearing Denied June 26, 2003.

      Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellant.
    Richard G. Pippinger, Tampa, for Appel-lee.
   VILLANTI, Judge.

Julie Byers, the former wife, challenges the trial court’s order granting a motion for correction of final judgment filed by Robert Callahan, the former husband, pursuant to Florida Rule of Civil Procedure 1.540. We affirm in part and reverse in part.

Byers and Callahan married on October 1, 1998, and separated in January 1999. The parties’ only daughter was born January 6,1999. The final judgment dissolving the parties’ marriage was rendered on March 21, 2000; however, due to a clerical error in the clerk’s office, it was never mailed to the parties. Thus, by the time the parties learned of the final judgment, the time for filing an appeal had expired.

Rather than seeking to have the entire judgment set aside and reentered, Callahan filed a rule 1.540 motion to correct the final judgment on September 15, 2000, contending that the trial court improperly included daycare expenses in the child support award when Byers had not incurred and was not incurring such expenses. Because the original trial judge was no longer in the civil division, the new trial judge requested that the parties file memoranda addressing the issue raised in the motion.

Callahan filed his memorandum on December 15, 2000. In it, he raised for the first time another alleged error in the final judgment. Callahan contended that the trial court had improperly allowed six months of transitional alimony rather than five months for the period from November 1, 1998, to April 1, 1999, and that this mathematical error was correctable through his rule 1.540 motion. In her responsive memorandum, Byers objected to Callahan raising this “new” error because it had not been raised in Callahan’s rule 1.540 motion. Despite Byers’ objection, Callahan did not seek leave to amend his motion to add this “new” error as a basis for relief.

For various reasons not relevant to this opinion, the parties took no further action until April 2002. At that point, Callahan filed another memorandum in support of his motion to correct the judgment. In that memorandum, in addition to reargu-ing the daycare expense and transitional alimony issues, Callahan argued for the first time that the trial court had erred in calculating the child support award by adding daycare expenses twice. Byers again objected to the transitional alimony issue being considered since it was not raised in Callahan’s rule 1.540 motion, and she objected to the new grounds for attacking the daycare expenses. Despite these objections, Callahan still did not seek leave to amend his rule 1.540 motion.

At the hearing on Callahan’s motion, Callahan presented evidence that Byers had bed about her daycare expenses at the hearing on the final judgment. Byers had testified at the final judgment hearing in February 2000 that she was working full time and incurring daycare expenses. However, she testified in a subsequent deposition that she had not worked for three months before the final hearing and for three months after the final hearing. Over Byers’ objection, Callahan also argued that the original trial judge had made mathematical errors in calculating the amount of transitional alimony due. In addition, over Byers’ objection, Callahan argued that the original trial judge had added daycare expenses twice when calculating Callahan’s child support obligation.

In response, Byers presented paystubs and handwritten receipts for daycare payments that purported to show that she had been working and incurring daycare expenses during some of the months in question. In addition, she argued that the alleged errors Callahan sought to correct were not clerical errors correctable through a rule 1.540 motion but, if anything, were judicial errors that had to be corrected by way of appeal. She also argued that Callahan was precluded from contesting the transitional alimony award because he had not raised that issue in his rule 1.540 motion.

After considering this evidence, the trial court granted Callahan relief on both issues. The trial court found that the original trial judge had made a mathematical error when he computed the transitional alimony due by including payments for six months rather than five. The trial court also found that the original trial judge erred by including daycare expenses twice in his calculation of Callahan’s child support obligation. In the alternative, the trial court found that Byers had made material misrepresentations concerning the daycare expenses she had actually incurred. Therefore, the trial court reduced the amount of transitional alimony owed to Byers and reduced Callahan’s child support obligation.

In this appeal, Byers raises three grounds for relief. Byers first contends that the trial court erred in correcting the transitional alimony award because the alleged error in that award was neither pleaded in the rule 1.540 motion nor tried by express or implied consent. We agree.

Under Florida law, a trial court is without jurisdiction to “hear and determine matters which are not the subject of appropriate pleadings and notice.” Todaro v. Todaro, 704 So.2d 138, 139 (Fla. 4th DCA 1997) (quoting Defreitas v. Defreitas, 398 So.2d 991, 992 (Fla. 4th DCA 1981)); see also Lamelas v. Granados, 730 So.2d 387 (Fla. 2d DCA 1999). However, when issues not raised by the pleadings are tried by express or implied consent, they are treated as if they had been raised by the pleadings. Fla. Fam. L.R.P. 12.190; Fla. R. Civ. P. 1.190(b); Buday v. Ayer, 754 So.2d 771, 772 (Fla. 2d DCA 2000); Dey v. Dey, 838 So.2d 626, 627 (Fla. 1st DCA 2003); Todaro, 704 So.2d at 139.

In this case, there is no question that Callahan did not raise the issue of the alleged overpayment of transitional alimony in his rule 1.540 motion. Therefore, the issue was properly before the trial court only if it was tried by express or implied consent. The record is clear that Byers did not expressly consent to trying this issue. Moreover, implied consent does not exist when the opposing party objects to the argument or the introduction of evidence. Flemming v. Flemming, 742 So.2d 848, 844 (Fla. 1st DCA 1999) (“The issue of rotating custody was not tried by implied consent because Former Wife raised a proper objection.”); Todaro, 704 So.2d at 189 (“[I]t cannot be said that this issue was tried by implied consent where Former Wife objected to the trial court hearing matters that were not properly pled.”); Hemraj v. Hemraj, 620 So.2d 1300, 1301 (Fla. 4th DCA 1993). Here, Byers consistently and repeatedly objected to any argument or evidence on the issue of the transitional alimony. Therefore, this issue was not tried by implied consent.

Because the alleged error in the transitional alimony was not pleaded and was not tried by express or implied consent, the trial court erred in awarding relief on this issue. Therefore, we reverse this aspect of the trial court’s order and remand for reinstatement of the original amount of transitional alimony.

Second, Byers contends that the trial court erred in recalculating the child support award to delete the daycare expenses because rule 1.540(a) cannot be used to make substantive changes to a final judgment. Because the trial court actually corrected the child support award under rule 1.540(b), this argument has no merit.

As an initial matter, we note this issue was properly before the trial court. In Callahan’s amended motion to correct final judgment, Callahan argued that daycare expenses were improperly included in the child support award because Byers did not incur any daycare expenses. Thus, the issue of the propriety of the daycare expense award was properly raised in the rule 1.540 motion and was properly before the trial court.

Turning to the substance of the argument, Byers is correct that the alleged error in the child support award cannot be characterized as a “clerical mistake” for which relief is available under rule 1.540(a). The “clerical mistakes” referred to by rule 1.540(a) are only “errors or mistakes arising from accidental slip or omission, and not errors or mistakes in the [sjubstance of what is decided by the judgment or order.” Town of Hialeah Gardens v. Hendry, 376 So.2d 1162, 1164 (Fla.1979) (quoting Keller v. Belcher, 256 So.2d 561, 563 (Fla. 3d DCA 1971)); see also Clearwater Oaks Bank v. Plumtree, 477 So.2d 1023, 1024-25 (Fla. 2d DCA 1985) (holding that rule 1.540 is not available to make substantive changes to a judgment). Clearly, the question of whether the original trial judge erred in setting the amount of child support or misapplied the child support guidelines to the facts of this case is not a “clerical mistake” for which relief is available under rule 1.540(a).

However, under rule 1.540(b), the court may relieve a party from a final judgment if it determines that the final judgment was procured by fraud, misrepresentation, or other misconduct. In this case, Callahan argued that Byers committed fraud on the court by misrepresenting her employment status and daycare expenses at the final judgment hearing. While Byers contested this characterization of her conduct at the hearing on Callahan’s rule 1.540 motion, the trial court specifically found that “there was a clear material misrepresentation by the Former Wife regarding her incurred child care costs.” Thus, the trial court’s decision to relieve Callahan of the daycare expense portion of the child support award was proper based on its finding that Byers had procured this portion of the child support award through a material misrepresentation.

In this appeal, Byers takes issue with the trial court’s findings of fact concerning her work history and daycare expenditures, arguing that she offered proof that she did, in fact, work and incur daycare expenses. It is true that at the hearing on Callahan’s motion, Byers introduced into evidence some receipts that allegedly showed that she was working for a portion of the time in question. However, Byers clearly testified in her deposition that she was not working for the three months before and the three months after the February 2000 hearing. This testimony flatly contradicts the offered receipts, some of which are handwritten by individuals who can no longer be located. The resolution of this factual discrepancy was solely within the province of the trial court and will not be disturbed by this court on appeal.

Because the daycare expenses were properly before the court and because there was competent evidence in the record to show that Byers made misrepresentations in procuring that portion of the child support award, the trial court acted within its discretion in recalculating the child support award pursuant to rule 1.540(b) to remove the daycare expenses. Therefore, we affirm this portion of the trial court’s order.

Finally, Byers contends that the trial court erred in sustaining Callahan’s objection to her proffered argument concerning alleged deviations from the child support guidelines made by the original trial court. We disagree. The proffered argument was not relevant to the issues raised by Callahan’s motion. Therefore, the trial court did not err in sustaining the objection to this argument.

We reverse that portion of the trial court’s order that altered the amount of transitional alimony due to Byers and remand for reinstatement of the original award. We affirm the trial court’s order in all other respects.

Affirmed in part; reversed in part; and remanded.

CASANUEVA, J„ and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

      . The term "transitional alimony” is a misnomer in this case. The "transitional alimony” payments were intended to cover the income Byers lost between November 1, 1998, and April 1, 1999, due to her inability to work during that period because of medical complications during her pregnancy and after the child's birth.

      . The trial court also granted Byers’ motion for attorney’s fees. That ruling is not at issue in this appeal.


text:
    C.B., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D02-990.
    District Court of Appeal of Florida, Third District.
    June 4, 2003.
    Rehearing Denied July 9, 2003.
    Hughes Hubbard & Reed and Sharon L. Kegerreis, Miami; Bart A. Whitley, Miami, for appellant.
    Calianne P. Lantz; Mercedes E. Scopet-ta; and James T. Armstrong, for appellee.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   PER CURIAM.

Appellant/Mother, C.B., appeals from the lower court’s Final Judgment terminating parental rights. We reverse on the ground that the Department of Children and Family Services (“Department”) failed to establish by clear and convincing evidence any basis for termination as required by section 39.806, Florida Statute. See § 39.809(1), Fla. Stat. (2002).

To support the termination of parental rights, the Department has the burden to show by clear and convincing evidence that a parent has abused, neglected, or abandoned a child and that permanent termination of parental rights is the least restrictive alternative. See § 39.806(1), Fla. Stat. (2002); Dunn v. Blumstein, 406 U.S. 330, 343, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Padgett v. Department of Health and Rehabilitative Services, 577 So.2d 565, 571 (Fla.1991).

We find that the Department failed to meet its burden in the instant case. Accordingly, the Order terminating C.B.’s parental rights is vacated and the matter remanded for further proceedings and/or action as may be appropriate.

Reversed and remanded.


author: SCHWARTZ, Chief Judge.

text:
    FIREMAN’S FUND INSURANCE COMPANY, a foreign corporation, Appellant, v. LEVINE & PARTNERS, P.A., a Florida Professional Association, Appellee.
    No. 3D03-38.
    District Court of Appeal of Florida, Third District.
    June 4, 2003.

      Byrd and Murphy and James 0. Murphy, Jr. (Fort Lauderdale), for appellant.
    Manuel F. Fente and Robert J. Levine, Miami, for appellee.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   SCHWARTZ, Chief Judge.

The defendant carrier appeals from a summary judgment in favor of the plaintiff insured, a Miami-Dade county law firm, in an action on an Employee Dishonesty Optional Coverage endorsement to a comprehensive policy of insurance issued to the firm. The endorsement provided coverage for up to $50,000 in losses caused by defalcations of key employees, including its longtime and long trusted bookkeeper, a Ms. Stewart. It is undisputed that Ms. Stewart embezzled a great deal of money from the firm during the late 1990’s. It is also undisputed, however, both that the coverage period of the endorsement ended on June 30, 1999 and that Ms. Stewart’s dishonesty was not discovered by the firm until October 2001. Because the claim in question was therefore indisputably barred under the provision of the endorsement that

We will pay only for covered loss discovered within 90 days after the end of the coverage period or cancellation date of this insurance.

we reverse the judgment below.

No more need be said or cited in support of this conclusion than the familiar rule that, in common with all contracts, an insurance policy must be enforced in accordance with its unambiguous terms, Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla.2002); Deni Associates of Florida, Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135 (Fla.1998); State Farm Fire and Cas. Co. v. Castillo, 829 So.2d 242 (Fla. 3d DCA 2002).

Moreover, no possible “exception” to this abiding principle applies here. First, contrary to the trial judge’s view, there is nothing contrary to any known “public policy” in the controlling provision, which is common to fidelity policies of this kind. Southeast Bakery Feeds, Inc. v. Ranger Ins. Co., 974 S.W.2d 635 (Mo.App. E.D.1998); First Sec. Bank & Trust v. New Hampshire Ins. Co., 232 Neb. 493, 441 N.W.2d 188 (1989); Dunbar v. National Sur. Corp., 140 Neb. 833, 2 N.W.2d 116 (1942); see Story v. First Nat. Bank & Trust Co., 115 Fla. 436, 439, 156 So. 101, 102 (1934)(“public policy ... [is] a very unruly horse, and, when once you get astride it, you never know where it will carry you”).

Second, because the terms of an endorsement such as the one sued upon control over anything purportedly to the contrary in any other insuring agreement, Steuart Petroleum Co., Inc. v. Certain Underwriters at Lloyd’s London, 696 So.2d 376 (Fla. 1st DCA 1997), review dismissed, 701 So.2d 867 (1997); Johnson v. Center Mut. Ins. Co., 529 N.W.2d 568 (N.D.1995); A & S Fuel Oil Co., Inc. v. Royal Indemnity Co., Inc., 279 N.J.Super. 367, 652 A.2d 1236 (1995), cert. denied, 141 N.J. 98, 660 A.2d 1196 (1995); Zurich Ins. Co. v. Bouler, 198 So.2d 129 (La.App. 1 Cir.1967); 2 Couch on Insurance 3d § 21:22 (2003), it is irrelevant that the “discovery” clause may be contrary to the liability portions of the policy to which the endorsement was attached. Compare Dyer v. Nationwide Mut. Fire Ins. Co., 276 So.2d 6 (Fla.1973)(conflict with same insuring agreement must be resolved in favor of insured); Government Employees Ins. Co. v. Burak, 373 So.2d 89 (Fla. 3d DCA 1979)(same).

Finally, the clause has no effect on the applicable statute of limitations for bringing suit on the policy and therefore is not barred by section 95.03, Florida Statutes (2001)(“Any provision in a contract fixing the period of time within which an action arising out of the contract may be begun at a time less than that provided by the applicable statute of limitations is void.”). See Independent Life & Acc. Ins. Co. v. Nixon, 111 Fla. 167, 149 So. 16 (1933); Prudential Ins. Co. v. Prescott, 115 Fla. 365, 156 So. 109 (1933); Lyons v. National Surety Co., 243 Mo. 607, 147 S.W. 778 (1912); 11 Couch on Insurance 3d § 160:94 (2003); 35 Fla. Jur.2d Limitations and Laches § 10 (2003).

For these reasons, the summary judgment is reversed with directions to enter one for the carrier.

Reversed.

      . Indeed, the insured's attempts to develop some analogy or conflict between the terms of this fidelity policy and the "occurrence” or "claims made” provisions of a liability policy, see Gulf Ins. Co. v. Dolan, Fertig & Curtis, 433 So.2d 512 (Fla.1983), are so strained that the usual apples and oranges metaphor is insufficient. Comparing daisies and whales would be more like it.


author: PER CURIAM. GREEN, J.

text:
    Roberto SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1153.
    District Court of Appeal of Florida, Third District.
    June 4, 2003.
    Roberto Sanchez, in proper person.
    Charles J. Crist, Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).

SCHWARTZ, C.J., and RAMIREZ, J., concur.

GREEN, J.

(specially concurring).

The doctrine of stare decisis compels me to join in the reversal of this cause, but I continue to adhere to the view that Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), was correct in its conclusion that Chapter Law 99-188, Laws of Florida, violates the single subject rule of the Florida Constitution.


author: WELLS, Judge.

text:
    FIRST HANOVER, et al., Appellants, v. Alfred VAZQUEZ, James Bogoeff, et al., Appellees.
    No. 3D02-3146.
    District Court of Appeal of Florida, Third District.
    June 4, 2003.

      Kiefner & Renaldo and Scott W. Fitzpatrick and John R. Kiefner, Jr., St. Pe-tersburg, for Appellant Michael King; Hicks & Kneale and Brett C. Powell, for appellant, First Hanover, et al.
    William A. Friedlander, Tallahassee, and Stephen Isherwood, Key West, for Appel-lee Bogoeff.
    Before LEVY, RAMIREZ, and WELLS, JJ.
   WELLS, Judge.

Michael King appeals the denial of a motion for default and writ of possession for non-payment of rent relating to real property that he owns in Key West. We reverse.

Initially we observe that such orders, although denying relief, have been held to be orders determining the right to immediate possession of property, and as such, are appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). See Florida Disc. Props, v. Windermere Condo., Inc., 763 So.2d 1084 (Fla. 4th DCA 1999)(concluding that an order denying a motion to require a tenant to pay rent into the registry of the court was appealable because it determined the right to immediate possession of property); Federal Home Loan Mortgage Corp. v. Molko, 584 So.2d 76 (Fla. 3d DCA 1991)(observing that an order denying mortgagee’s request for the appointment of a receiver and directing mortgagor to pay rents into registry of court was an appealable interlocutory order, as the order determined the parties’ rights to immediate possession of both mortgaged property and rents collected under the mortgage).

King is the record owner of two parcels of real property located in Key West, one at 2522 Staples Avenue, the other at 3339 Donald Avenue. The Staples Avenue property is leased to James Bogoeff and Cesar Davila; the Donald Avenue property is leased to Bogoeff alone. In June 2002, Bogoeff and Davila failed to pay the rent at the Staples Avenue property. The following month, Bogoeff faded to pay the rent at the Donald Avenue property. As a consequence, King filed two eviction actions, one relating to the Staples Avenue property, the other relating to the Donald Avenue property, seeking possession for non-payment of rent.

Bogoeff and Davila thereafter successfully moved to consolidate these two actions with a pending action, styled Vazquez v. Kamal, Case No. CA-K-02-866, in which they claimed that King had defrauded them into selling the properties that they currently were renting (and which were the subject of King’s eviction actions). However, before the actions were consolidated, the trial judge in the Donald Avenue action (the action involving property leased solely to Bogoeff), entered an order mandating the payment of rent on that property into the court registry failing which King would be entitled to a writ of possession. Because no similar order was entered prior to consolidation of the Staples Avenue action (the action involving the lease to Davila and Bogoeff), King sought in the consolidated action, to mandate, pursuant to section 83.60, Florida Statutes(2002), either payment of rent relating to that property into the court registry or entry of default and a writ of possession. That request was denied and is the subject of this appeal.

Section 83.60(2), without equivocation, provides:

In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due.... Failure of the tenant to pay the rent into the registry ... constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon.

(Emphasis added).

Under this provision, tenants in actions for possession for non-payment of rent are obligated to pay rent as a condition to remaining in possession irrespective of their defenses and counterclaims.

In ED. Lewis Enterprises Corp. v. Smith, 445 So.2d 1032 (Fla. 5th DCA 1984), the Fifth District upheld writs of possession against tenants who refused to pay rent claiming their landlord had failed to maintain the premises. The tenants argued that they were entitled to stay in their apartments without paying rent and without depositing rent into the court registry because the deposit requirement imposed by section 83.60 applied only to actions for possession, not to actions involving counterclaims for injunc-tive relief and damages. In rejecting this argument, the K.D. court stated:

[Cjounsel for the tenants candidly conceded that had the tenants’ suit proved to be without merit, a judgment for rent owed would have been valueless because they were “judgment proof.” We believe the Legislature anticipated such an eventuality in drafting the statute [section 83.60]. As now framed, the landlord may recover his rent should the tenants’ suit have no legal basis. On the other hand, should the tenants’ suit have merit, the rent is not lost to them. To follow the course suggested by the tenants would enable a devious tenant to live rent free during the litigation, if he could frame a legally sufficient pleading. We see no more reason to expect a landlord to continue furnishing housing without rent than to expect an oil supplier to continue furnishing oil without payment during a period of litigation.

Id. at 1035.

We find the same analysis applicable to the instant dispute. In accordance with section 83.60, the landlord in this case was entitled to payment of rent either directly or into the court registry, and on the tenants’ failure to do so, the landlord was entitled to a default and a writ of possession. This determination comes with the same caveat observed in K.D., 445 So.2d at 1035, that the tenants’ cause of action is not lost to them, rather they lose only their right to retain possession of the premises by their failure to pay the rent to the landlord or into the registry of the court.

Reversed and remanded.

      . In that action, Davila and Bogoeff claimed that they initially owned the Staples and Donald Avenue properties and that when their properties went into foreclosure, they had been contacted by King or one of the other defendants named in that action, who informed them that they could save their homes by entering into a "buy back” arrangement, in which they would sell their homes to an "investor” (here King), lease their homes for twelve months from the investor, and if they timely made all lease payments, would qualify to refinance a buy back through another named defendant, First Hanover Mortgage. Davila and Bogoeff also claimed that they were promised that the lease payments would be less than the mortgage payments that they had been unable to meet. However, upon entering into these lease arrangements, Davi-la and Bogoeff discovered that the lease payments were actually far more than their prior mortgage payments had been, and when they were unable to meet these payments, King, through his agents, First Hanover Mortgage, and Property Management Co., had initiated eviction proceedings.

      . We, like the K.D. court, conclude that our earlier decision in Freedman v. Geiger, 314 So.2d 189 (Fla. 3d DCA 1975), poses no conflict with this analysis. In Freedman, we concluded that granting a default in a landlord's favor was error in an action not solely for relief under section 83.60. But as the K.D. court observed, the tenants in Freedman were in substantial compliance with section 83.60 because they had not only made court-ordered rent payments but also had deposited additional sums into the registry prior to the hearing on the landlord’s motion for default. K.D. therefore limited Freedman to its facts and correctly concluded that Freedman was "simply following the established policy of liberality in setting aside defaults to permit a trial on the merits.” K.D., 445 So.2d at 1036.
      No similar circumstances exist here.


author: SHARP, W., J.

text:
    Pervis TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3122.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.

      James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Taylor pled no contest to a charge of possession of cannabis after the trial court denied his motion to suppress evidence of the crime. He duly reserved his right to appeal the suppression ruling and it was deemed determinative of the case. We have jurisdiction and we affirm.

At the suppression hearing, Taylor’s testimony about his encounter with police officers and whether or not he consented to a search of his person conflicted materially with the testimony of the police officers. Taylor said he returned to his apartment after work, intending to talk briefly to his cousin who lived in a nearby apartment. He left his truck running and parked near a fence which surrounded the apartment complex.

When he commenced his return to his truck, Taylor was approached by two uniformed police officers. Officer Dejarnett asked him if he could talk with him. Taylor testified that he said he did not do anything wrong, but he continued to talk to Dejarnett. Taylor said he did not feel free to leave. When asked if he would consent to a search of his person, he said he refused. However, the police searched him anyway and discovered marijuana in his side pocket.

Officer Dejarnett testified his unit was looking for stolen vehicles, narcotics and other illegal activity which occurred in Taylor’s neighborhood. The three officers in Dejarnett’s vehicle saw Taylor standing behind a fenced yard, next to apartments. They saw him go into an apartment. Officer Dejarnett walked towards the front of the apartments.

When Taylor came out of the apartments and walked towards his truck, Officer Dejarnett approached him on a “hunch” he was involved in illegal activity. The “hunch” was based on the fact that Taylor had walked away from the officers when they first saw him, and this is a high-crime area.

Officer Dejarnett said Taylor was free to leave at that point. He asked if he could talk with him and Taylor said “sure.” De-jarnett asked him where he lived, whether he had identification, and what was he doing there. He also asked Taylor if he had any contraband or weapons. He said Taylor said “no.” Officer Dejarnett asked if he could search him and Taylor said “okay,” raising his arms up. In the course of the search, marijuana was found.

The trial court prophetically stated that this was going to be a “swearing” contest. After hearing the testimony, the judge found there was no illegal seizure of Taylor, but rather that he had consented to the search.

Whether a person has consented to a search is a mixed question of fact and law. Connor v. State, 803 So.2d 598 (Fla.2001). See also Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). If there is competent evidence to support the trial court’s determination of facts, as in this case, they are controlling. Thereafter the voluntariness of the consent vel non is determined on a de novo standard, based on the totality of the circumstances. Connor.

In this case, Officer Dejarnett’s version of the facts is controlling. Viewing the circumstances as he explained them leaves us no basis to conclude that the initial encounter between Taylor and Officer Dejarnett was anything other than consensual, and that Taylor voluntarily consented to a search of his person. See Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002); Eldridge v. State, 817 So.2d 884 (Fla. 5th DCA 2002).

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.

      . § 893.03(l)(c)(7), Florida Statutes (2002).

      . See, Florida Rule App. Proc. 9.140(b)(2); § 924.051(4), Florida Statutes (2002); Leonard v. State, 760 So.2d 114 (Fla.2000); Carroll v. State, 761 So.2d 417 (Fla. 2d DCA 2000).


author: DAVIS, Judge.

text:
    K.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4398.
    District Court of Appeal of Florida, Second District.
    June 13, 2003.

      Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

K.C. challenges the circuit court order committing her to a moderate risk program for indirect criminal contempt. We reverse.

After pleading guilty to petit theft, K.C. was placed on probation in August 2001. In September 2001, the Department of Juvenile Justice (DJJ) filed an affidavit of violation, alleging that K.C. had unexcused absences from school and that she had absconded from her grandparents’ residence, where she had been living. K.C. remained at large until May 2002. After appearing in court on June 3, 2002, and admitting that she violated her probation, the trial court ordered K.C. to appear on July 16, 2002, for disposition. However, prior to that date, two more affidavits of violation were filed, alleging that K.C. tested positive for marijuana and that she again absconded, leaving her whereabouts unknown. When K.C. failed to appear on July 16, she was noted to be on runaway status.

After she was again taken into custody, K.C. pleaded no contest to two charges of indirect criminal contempt. The trial court ordered that she remain in secure detention until the disposition hearing. At that hearing the trial court adjudged K.C. delinquent on the contempt charges and, citing S.W. v. State, 664 So.2d 39 (Fla. 5th DCA 1995), committed her to two six-month terms in a moderate risk program, in addition to a sixty-day commitment on the original violation of probation, all terms to be served concurrently. On appeal, K.C. argues that the trial court erred in placing her in a moderate risk program for the contempt charges. We agree.

Section 985.216, Florida Statutes (2001), limits the trial court’s options on a charge of indirect criminal contempt against a juvenile:

(1) CONTEMPT OF COURT; LEGISLATIVE INTENT. — The court may punish any child for contempt for interfering with the court or with court administration, or for violating any provision of this chapter or order of the court relative thereto. It is the intent of the Legislature that the court restrict and limit the use of contempt powers with respect to commitment of a child to a secure facility. A child who commits direct contempt of court or indirect contempt of a valid court order may be taken into custody and ordered to serve an alternative sanction or placed in a secure facility, as authorized in this section, by order of the court.
(2) PLACEMENT IN A SECURE FACILITY. — A child may be placed in a secure facility for purposes of punishment for contempt of court if alternative sanctions are unavailable or inappropriate, or if the child has already been ordered to serve an alternative sanction but failed to comply with the sanction.
(a) A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days for a first offense and not to exceed 15 days for a second or subsequent offense.

A “secure facility” is defined as “a physically restricting facility for the temporary care of children, pending adjudication, disposition, or placement.” § 985.08(47). We conclude that a residential commitment program does not fall within the definition of secure facility, nor does it qualify as an alternative sanction.

Therefore, pursuant to chapter 985, the trial court was without authority to commit K.C. to a moderate risk program for a period of six months. Accordingly, we reverse K.C.’s sentence as to the two contempt charges. We also certify conflict with the Fifth District’s opinion in S.W., 664 So.2d 39, to the extent that it holds that commitment to a moderate risk residential program is a proper sanction for a charge of indirect criminal contempt against a juvenile under section 985.216.

Reversed and remanded.

WHATLEY and CASANUEVA, JJ., Concur.

      . Although “alternative sanction” is not defined in chapter 985, section 985.216(3) provides that "the court may immediately request the alternative sanctions coordinator to recommend the most appropriate available sanction and shall order the child to perform up to 50 hours of community-service manual labor or a similar alternative sanction....”

      . In S.W., the Fifth District affirmed a suspended commitment to a moderate risk residential program as a sanction for indirect contempt under section 39.0145, Florida Statutes (Supp.1994). Section 39.0145 was renumbered as section 985.216 by chapter 97-238, Laws of Florida.


text:
    Patricia Rybovich CRALLE, Appellant, v. Raymond Hill CRALLE, Appellee.
    No. 4D01-1923.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Rehearing Denied July 24, 2003.
    Charles Wender, Boca Raton, for appellant.
    Michael P. Walsh of Michael P. Walsh, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The former husband, Raymond Hill Cralle, filed an action seeking contribution from his former wife for the couple’s 1988 and 1992 federal income tax liability. The trial court entered a final judgment in favor of the former husband. The 1994 marital settlement agreement did not preclude the former husband from bringing the action. In Steinfeld v. Steinfeld, 553 So.2d 774 (Fla. 4th DCA 1989), we held that an action separate from the dissolution of marriage was the proper procedural vehicle to have the court determine entitlement to the proceeds of a tax refund check payable to the husband and wife jointly, where neither the property settlement agreement or final judgment addressed this issue. Id. at 775-76. Similarly, a separate action is appropriate to determine responsibility for a tax liability imposed after the execution of the settlement agreement, where the agreement was silent as to delinquent tax liabilities incurred during the marriage.

The record before us fails to demonstrate that the trial court erred in entering the final judgment. However, we agree that the trial court erred in a mathematical computation. The court held that the former wife was responsible for one-half of the liability for the 1988 tax year, but it inadvertently awarded the former husband one-half of the liability for the 1992 tax bill (one-half of $46,509.44 or $23,254.72). We therefore affirm the final judgment, but remand to the trial court to correct the final judgment to award one half of $44,764.97, or $22,382.49.

POLEN, C.J., WARNER and GROSS, JJ., concur.


text:
    Beckenson FORTUNE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-327.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    Beckenson Fortune, DeFuniak Springs, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant raising any claims of ineffective assistance of appellate counsel under Florida Rule of Appellate Procedure 9.141.

KLEIN, SHAHOOD and MAY, JJ., concur.


text:
    David REAMY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1201.
    District Court of Appeal of Florida, Third District.
    June 25, 2003.
    David Reamy, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, FLETCHER and WELLS, JJ.
   PER CURIAM.

David Reamy appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm.

Defendant-appellant Reamy filed his motion in Miami-Dade County Circuit Court case number 95-35612. In the motion, the defendant asserts that he was not advised of the possible immigration consequences of his plea, and that deportation proceedings have been initiated against him.

The defendant is not entitled to relief. The order to show cause issued by the United States Immigration and Naturalization Services (“INS”) cites several other convictions of the defendant, but not the 1995 case, as a basis for deportation. That being so, we affirm the denial of postcon-viction relief on authority of Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002) review denied, 842 So.2d 845 (Fla.2003).

Affirmed.


text:
    David ABURTO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1413.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2003.
    David Aburto, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

David Aburto filed a Florida Rule of Criminal Procedure 3.800(a) Motion to Correct Illegal Sentence challenging the constitutionality of the Criminal Punishment Code (CPC). The trial court denied the motion after ordering a State Response. The court’s denial of the motion was proper as Aburto was sentenced as a Habitual Felony Offender, not under the CPC.

After the court’s order was rendered, Aburto filed a “Reply to the State’s Response.” In this Reply, Aburto raised a different ground for relief, claiming the three-year minimum mandatory sentence imposed by the court was illegal. The Reply appears to state a legally sufficient claim. See Wright v. State, 779 So.2d 399 (Fla. 2d DCA 2000); Grant v. State, 650 So.2d 705 (Fla. 3d DCA 1995); Alfrod v. State, 644 So.2d 549 (Fla. 3d DCA 1994). The trial court has not addressed this claim.

To prevent Aburto’s claim from inadvertently being barred as successive, we write to affirm the denial of the initial motion but remand the case to the trial court with directions to treat Aburto’s Reply as a separate motion to correct illegal sentence.

WARNER, TAYLOR and HAZOURI, JJ., concur.


author: THOMPSON, C.J.

text:
    Steven CHESHIRE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-620.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2003.
    Steven Cheshire, Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, C.J.

Steven Cheshire appeals the summary denial of his motion for post conviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. We dismiss the appeal for lack of jurisdiction.

The order denying Cheshire’s Rule 3.853 motion was rendered on 21 November 2002. Cheshire served his motion for rehearing on 5 December 2002. The motion for rehearing was denied by order rendered on 17 December 2002, but Cheshire did not serve his notice of appeal until 7 February 2003, as evidenced by his certificate of service. Cheshire’s notice of appeal was filed more than thirty days after the order denying rehearing was rendered and was untimely because Cheshire had filed a second, unauthorized motion for rehearing, which was denied as successive. Because the notice of appeal was untimely, this court issued a show cause order. In response thereto, Cheshire alleged that he never received a copy of the order denying his first motion for rehearing. However, that order indicated that a copy was sent to Cheshire at his address of record, and Cheshire did not proffer as evidence the incoming mail log to show that legal mail was not delivered to his address following rendition of the order denying his first motion for rehearing. We therefore must dismiss the appeal for lack of jurisdiction without prejudice to Cheshire to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c). See Jones v. State, 838 So.2d 659 n. 1 (Fla. 5th DCA 2003).

DISMISSED.

PETERSON and MONACO, JJ., concur.


author: SHEVIN, Judge.

text:
    Ameht DOMINGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3254.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General, and Andrea D. England (Ft.Lauderdale), Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., SHEVIN and RAMIREZ, JJ.
   SHEVIN, Judge.

We reverse the order revoking defendant’s community control on ground one, failure to pay restitution, based on the state’s proper concession. We also reverse the revocation as to ground two, failure to perform monthly community service hours, on the authority of Davis v. State, 697 So.2d 895 (Fla. 2d DCA 1997). The state argued in the trial court that defendant failed to complete the 30 hours required for the period in question. However, defendant had completed 18 hours in that period. Here, as in Davis, defendant substantially performed community service hours during the time he was on community control, and there is no evidence of a willful and substantial violation of this requirement.

Accordingly the order is reversed and the case remanded for resentencing in view of the fact that defendant has served one year in prison as a result of the violation.