text:
    Andrea Holloway COBB, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2520.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2004.
    Rehearing Denied Oct. 28, 2004.

      Nancy A. Daniels, Public Defender, and W.C. McLain, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie J. Crist, Jr. Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Andrea Holloway Cobb, raises two issues on appeal of her conviction for attempted murder and aggravated battery. We affirm the trial court’s denial of Cobb’s motion for mistrial without further comment. We also affirm the trial court’s decision to exclude the testimony of defense expert Dr. Gary Jacobsen because it appeared irrelevant to any issues at trial. In doing so, however, a brief discussion of the law regarding the defense of involuntary intoxication is warranted.

Cobb sought to introduce Dr. Ja-cobsen’s testimony for the purpose of establishing that Cobb was involuntarily intoxicated at the time she shot her former lover and a bystander. Upon proffer by the defense, Dr. Jacobsen opined that Cobb’s behavior resulted from the use of various prescription and over-the-counter medications combined with the effects of an organic brain disorder. According to Dr. Jacobsen, Cobb had exceeded the prescribed dosages of Xanax by four to five times and Paxil by three to four times in the weeks leading up to the shooting. While Dr. Jacobsen testified that Cobb knew she was exceeding the prescribed dosages, he asserted that she interpreted the negative side effects as symptoms of her psychological disorders rather than side effects of overdosing on these medicines. As a result, Cobb would take more and more Xanax and Paxil thinking her condition would improve. The defense argued that this excessive dosing resulted in Cobb’s involuntary intoxication because she had no way of knowing that it would culminate in a violent episode.

We agree with the trial court’s determination that Dr. Jacobsen’s testimony could have only supported a voluntary rather than an involuntary intoxication defense. Through enactment of section 775.051, Florida Statutes, the Legislature has all but eliminated the defense of voluntary intoxication. That statute provides:

Voluntary intoxication resulting from the consumption, injection, or other use of alcohol or other controlled substance as described in chapter 893 is not a defense to any offense proscribed by law. Evidence of a defendant’s voluntary intoxication is not admissible to show that the defendant lacked the specific intent to commit an offense and is not admissible to show that the defendant was insane at the time of the offense, except when the consumption, injection, or use of a controlled substance under chapter 893 was pursuant to a lawful prescription issued to the defendant by a practitioner as defined in s. 898.02.

(Emphasis added). The Legislature expressly limited the use of an intoxication defense to those circumstance where the defendant’s lack of specific intent or insanity is attributable to the use of a prescription medicine “pursuant to a lawful prescription.” In this instance, the statutory language is “clear and unambiguous,” and must therefore “be given its plain and ordinary meaning.” Dep’t of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003).

We conclude that Cobb’s knowing and excessive use of prescription medicines foreclosed any claim that she had taken those medicines “pursuant to a lawful prescription.” Our conclusion is not inconsistent with the Fourth District Court’s decision in Brancaccio v. State, 698 So.2d 597 (Fla. 4th DCA 1997), a case heavily relied upon by Cobb. There, the court held that the appellant was entitled to a jury instruction on involuntary intoxication while observing:

Because a patient is entitled to assume that an intoxicating dose would not be prescribed or administered by a physician, where intoxication results from medicine which has been prescribed (and taken as prescribed) or administered by a physician, such intoxication is generally considered involuntary.

Id. at 599 (emphasis added) (quoting Phillip E. Hassman, Annotation, When Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge, 73 A.L.R.3d 195 (1976)). In this case, Cobb did not claim that she had been prescribed or administered an intoxicating dose. Nor did she claim that she had taken her medications as prescribed. Thus, the admissibility of Dr. Jacobsen’s testimony in support of Cobb’s involuntary intoxication defense is not compelled by Brancaccio or section 775.051. Accordingly, Cobb’s judgment and sentence is AFFIRMED.

ERVIN, KAHN, and VAN NORTWICK, JJ., CONCUR.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Craig A. SAVERY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-2057.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2004.
    Craig A. Savery, Daytona Beach, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   ORFINGER, J.

Craig A. Savery seeks certiorari review of a circuit court order dismissing his petition seeking a writ of mandamus. Savery, an inmate, was administratively punished by the Department of Corrections (D.O.C.) for possession of narcotics. After his initial appeal to the prison superintendent was denied, he requested a second administrative review by the Secretary of the Department of Corrections, as authorized by D.O.C. rules. In an order dated March 24, 2004, but not filed until March 29, 2004, the Secretary concluded that Savery’s request for a second review was untimely because D.O.C. received the request more than fifteen days from the denial of the prior administrative appeal. See Fla. Admin. Code 33-103.011(l)(b). Savery then filed a petition for writ of mandamus in the circuit court, seeking to compel the Secretary to exercise his jurisdiction and consider his appeal on the merits. The circuit court denied Savery’s petition as untimely, concluding that it was filed more than thirty days after disposition of the disciplinary proceedings. See § 95.11(8), Fla. Stat. (2004). We disagree, quash the circuit court’s order, and remand for further proceedings.

Pursuant to Florida Rule of Appellate Procedure 9.100(c)(4), a petition challenging a D.O.C. order entered in a prisoner disciplinary proceeding must be filed within thirty days of rendition of that order. See also § 95.11(8), Fla. Stat. (2004); Ortiz v. Moore, 741 So.2d 1153 (Fla. 1st DCA 1999). Rule 9.020(h) defines “rendition” as follows:

(h) Rendition (of an Order). An order rendered when a signed, written order is filed with the clerk of the lower tribunal. ...

(Emphasis added). Rule 9.020(b) defines “clerk” as follows:

(b) Clerk. The person or official specifically designated as such by the court or lower tribunal; if no person or official has been specifically so designated, the official or agent who most closely resembles a clerk in the functions performed.

Here, D.O.C. concedes that the Secretary’s March 24, 2004 order, which refused to consider Savery’s administrative appeal, was not rendered as defined by the rule until March 29, 2004. As a result, Sav-ery’s petition for writ of mandamus, filed in the circuit court on April 27, 2004, was timely. See § 95.11(8), Fla. Stat. (2004); Fla. RApp. P. 9.100(c)(4).

We quash the circuit court’s order dismissing Savery’s petition for writ of mandamus and remand for further proceedings. In doing so, we express no opinion concerning the merits of the petition that Savery filed in the circuit court or with the Secretary of D.O.C.

PETITION GRANTED; ORDER QUASHED, CAUSE REMANDED.

SAWAYA, C.J. and PETERSON, J., concur.


author: PER CURIAM.

text:
    CITY OF CRYSTAL RIVER, FLORIDA, Appellant, v. UNITED BROTHERHOOD OF CARPENTERS, etc., Appellee.
    No. 5D04-759.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2004.
    Brian Koji of Allen, Norton & Blue, P.A. Tampa, for Appellant.
    Tobe Lev of Egan, Lev & Siwica, P.A., Orlando, for Appellee.
   PER CURIAM.

We conclude that under the facts of this case the trial court correctly concluded that the issue of whether arbitration was demanded in a timely fashion should properly be before the arbitrator for determination. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002); Piercy v. School Board of Washington County, 576 So.2d 806 (Fla. 1st DCA 1991); Graham Contracting, Inc. v. Flagler County, 444 So.2d 971 (Fla. 5th DCA), review denied, 451 So.2d 848 (Fla.1984); Rinker Portland Cement Corp. v. Seidel, 414 So.2d 629 (Fla. 3d DCA 1982); Public Health Trust of Dade Co. v. M.R. Harrison Constr. Corp., 415 So.2d 756 (Fla. 3d DCA 1982), review denied, 427 So.2d 737 (Fla.1983).

AFFIRMED.

THOMPSON, PLEUS and MONACO, JJ., concur.


text:
    Donald GENTES, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4090.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2004.
    Nancy A. Daniels, Public Defender, and Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   ON REMAND

PER CURIAM.

AFFIRMED. See State v. Harris, 881 So.2d 1079 (Fla.2004).

KAHN, WEBSTER, and DAVIS, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Edward CLOSUIT, Myriam Murphy, and Andalite Industries, Inc., a Florida corporation, Appellants, v. CRANE ENVIRONMENTAL, INC., Appellee.
    No. 2D03-2019.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2004.
    John R. Bush and Stephen B. French of Buss Ross Gardner Warren & Rudy, P.A., Tampa, for Appellants.
    Lawrence P. Bemis and Michael S. McCauley of Kirkland & Ellis LLP, Los Angeles, California, and Digna B. French of Steel Hector & Davis LLP, Miami, for Appellee.
   NORTHCUTT, Judge.

Edward Closuit, Myriam Murphy, and Andalite Industries, Inc., appeal an order finding them in contempt for violating an injunction and assessing attorney’s fees and costs as a sanction. As we did in the related case of Osmo Tec SACV Co. v. Crane Environmental, Inc., No. 2D03-498, 2004 WL 1969574, 884 So.2d 324 (Fla. 2d DCA Sept. 8, 2004), we reverse because the injunction did not prohibit the sale of Andalite’s assets to a third party.

Reversed and remanded.

KELLY, J„ and THREADGILL, EDWARD F., Senior Judge, Concur.


author: STRINGER, Judge.

text:
    Joseph P. KEARNEY, Appellant, v. Elizabeth A. MOORE, Appellee.
    No. 2D03-1942.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2004.
    Virginia R. Vetter, Tampa, for Appellant.
    Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellee.
   STRINGER, Judge.

Joseph P. Kearney seeks review of the final judgment which determined issues regarding the paternity of the parties’ child. We affirm the final judgment in all respects save one. This case involved a heated dispute over the custody of the parties’ child, and the parties paid little attention to the issue of visitation at trial. The final judgment awarded Elizabeth A. Moore primary residential custody of the child and awarded Kearney visitation on alternating weekends. On rehearing, Kearney requested more specific visitation, but the trial court summarily denied Kear-ney’s motion on the basis that the grounds stated by Kearney were “legally insufficient to support a rehearing.” To the extent that this statement suggests that the court was without jurisdiction to revisit the visitation schedule, we disagree. Accordingly, we reverse the award of visitation and remand for rehearing.

Affirmed in part, reversed in part, and remanded.

ALTENBERND, C.J., and DAVIS, J., Concur.


text:
    Marvin C. GILL, Petitioner, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 1D03-5136.
    District Court of Appeal of Florida, First District.
    Oct. 1, 2004.
    Marvin C. Gill, pro se, petitioner.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Marvin C. Gill petitions this court for a writ of certiorari to review an order of the Circuit Court for Leon County which denied his petition for writ of mandamus. In the mandamus petition, he raised several challenges to the imposition of a disciplinary sanction by the Department of Corrections against him after a hearing. We have jurisdiction in accordance with Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998). We conclude that one of his challenges has merit and that mandamus should have been granted by the circuit court.

A disciplinary report was served on Gill which charged him with violating code 0062, “disobey regulations.” The text of the report described a document discovered by an inspector containing minutes of a corporate stockholder meeting supposedly conducted by Gill, the corporation’s majority stockholder, at the correctional institution. After the hearing, the disciplinary team convicted Gill of violating FAC Rule 33-602.205(9), which prohibits an inmate from conducting business through the use of the telephone or other avenue of communication during his or her incarceration.

Gill contends, and we agree, that the disciplinary report served on him did not comply with Rule 33-601.304(2)(a) and (b), which requires a description of the violation, including date, time, and place, and the specific rules violated. In another context, we granted relief where a disciplinary report did not conform to Rule 33-601.304(2)(e), relating to the identification of staff witnesses with knowledge of the incident. See Plymel v. Moore, 770 So.2d 242 (Fla. 1st DCA 2000). Due process in an inmate discipline proceeding requires, among other things, advance notice of the charge. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Further, there may be a question whether the mere existence of the minutes, without evidence that they were the result of communication with others or that they were later transmitted to others, establishes a violation of Rule 33-601.205(9). We find it unnecessary to reach this issue, however, in light of our granting of relief on the issue of inadequate notice of the charges. We are also unpersuaded by the department’s argument that Gill was not prejudiced by the defects in the disciplinary report. The disputes that arose regarding Gill’s requested witnesses for the hearing, which we also do not address on the merits because of our disposition, demonstrate that prejudice did occur.

In light of the above, we grant the petition for writ of certiorari and remand to the circuit court with directions to grant the petition for writ of mandamus.

PETITION FOR WRIT OF CERTIO-RARI GRANTED.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    D.B., Father of D.B., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D04-332.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2004.
    Denise O. Simpson of the Law Office of Denise O. Simpson, P.A., Cocoa, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PER CURIAM.

We hold that the evidence in this case clearly supports the trial judge’s determination that D.B., the father of D.B., abandoned his child and that his parental rights were properly terminated. See C.A.H. v. Department of Children & Families, 830 So.2d 939 (Fla. 4th DCA 2002).

AFFIRMED.

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


text:
    Herbert HAMILTON, Petitioner, v. Ed BIELUCH, Sheriff of Palm Beach County, Florida, Respondent.
    No. 4D04-3562.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2004.
    Samuel J. Montesino of Samuel J. Mon-tesino, P.A., West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Herbert Hamilton petitions this court for a writ of habeas corpus to direct the trial court to set a reasonable bond.

Hamilton is charged with trafficking in cocaine, possession of a firearm during a felony, possession of marijuana under twenty grams, and possession of a firearm and ammunition while subject to an injunction.

At the first appearance hearing, the court concluded there was probable cause to support the charges and denied bond.

Under the Florida Constitution, a person charged with a crime may be denied the right to be released on bond only if: (1) the person is accused of a capital crime or an offense punishable by life imprisonment where the proof of guilt is evident or the presumption great; or (2) no condition of release can reasonably protect the community, assure the presence of the accused, or assure the integrity of the judicial process. Art. I, § 14, Fla. Const.; see State v. Paul, 783 So.2d 1042, 1045 (Fla.2001).

Hamilton is not charged with a capital or life felony and the first appearance judge did not consider whether any conditions of release could protect the community or assure Hamilton’s appearance in court.

The state’s response indicated that it has no objection to the granting of the petition to require the court to consider a bond. Accordingly, the petition is granted and the cause is remanded for the circuit court to set bond or other reasonable conditions for his pretrial release or determine that no condition of release will protect the community, assure the presence of the petitioner, or assure the integrity of the judicial process. Fla. R.Crim. P. 3.131(b)(1).

The clerk shall issue the mandate simultaneously with this opinion.

FARMER, C.J., STONE and WARNER, JJ., concur.


text:
    Johnny WORTHY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3178.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2004.
    Johnny Worthy, Lake City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

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

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


text:
    Oswaldo E. SANABRIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2921.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2004.
    Oswaldo E. Sanabria, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Kennedy v. State, 547 So.2d 912, 913 (Fla.1989).

SAWAYA, C.J., SHARP, W., and MONACO, JJ., concur.


text:
    Craig L. RUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-992.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2004.
    Frank J. Bankowitz of Frank J. Ban-kowitz, P.A., Orlando, for Appellant.
    Craig L. Rucker, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    Romun JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3685.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2004.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Christ, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Cole v. State, 701 So.2d 845 (Fla.1997), cert. denied, 523 U.S. 1051, 118 S.Ct. 1370, 140 L.Ed.2d 519 (1998); Merck v. State, 664 So.2d 939 (Fla.1995).

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


text:
    J.D.G., a Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D04-602, 5D04-1998.
    District Court of Appeal of Florida, Fifth District.
    Oct. 5, 2004.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See § 924.051(4), Fla. Stat. (2003).

SAWAYA, C.J., PALMER and MONACO, JJ., concur.


text:
    YEMC CONSTRUCTION & DEVELOPMENT, INC., Appellant, v. INTER SER, U.S.A., INC., and Flor De Aleli Nursery, Inc., as “Unknown Tenants/Jane Doe” and Lessee/Contract Vendee, Appellees.
    Nos. 3D03-2834, 3D03-3246.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.

      Arnoldo Velez, for appellant.
    John L. Penson and Scott Alan Orth; Laura M. Carbo, for appellees.
    Before SCHWARTZ, Chief Judge, SHEVTN and WELLS, JJ.
   PER CURIAM.

YEMC Construction & Development, Inc., appeals Order on Defendani/Tenants Motion to Set Terms of Redemption and Order Upon Defendant/Tenants Compliance with the October 29, 2003, Order Granting Defendant/Tenants Motion to Set Terms of Redemption. We reverse. ...

Mortgagee Wells Fargo filed an action to foreclose on Nelly Chiongs three-acre farm property. Wells Fargo also named as defendants John Doe and Jane Doe, as unknown tenants in possession. The return of service on Jane Doe indicated that the premises were vacant; John Does return of service indicated that the main house was vacant but that the stalls were rented out to keep livestock. Ramon Torres, who collected the stall rents, was served with the John Doe papers. However, Wells Fargo did not serve tenants Inter Ser, USA, Inc., and Flor De Alelí Nursery, Inc. [collectively “Tenants”]. These Tenants run a plant nursery business on the property. There is a large sign on the property that included the business name and address.

The March 27, 2003, summary final foreclosure judgment required the mortgagor to pay $215,004.20 and set an April 30, 2003, sale date, if the mortgagor did not remit the requisite payment. The judgment also provided that the right of redemption terminated “upon confirmation of the sale of the property by the clerk filing the Certificate of Sale.” No motion for rehearing was filed. On April 30, the property was sold to the highest bidder, and the clerk filed a Certificate of Sale. On May 5, the court approved assignment of the high bidders interest to YEMC.

On May 9, the Tenants filed an Objection and Motion for Relief from Foreclosure Sale and Motion to Vacate Default Final Judgment. They asserted that they were tenants in possession under an unrecorded lease, contract vendees to purchase the property, and that they were not served with process. The Tenants asserted that the sale did not close but that they had paid the owner a deposit.

On September 4, the Tenants filed a Motion to Set Terms of Redemption. The court entered an order finding that it had the power to extend the time to redeem because the Tenants had filed a facially valid objection before issuance of the Certificate of Title. The court denied the motion to set aside the foreclosure judgment and to vacate the default as to the unknown tenant except that the court substituted the Tenants for Jane Doe, stated that the Tenants had a right of redemption through the mortgagor, and ordered the Tenants to place the requisite funds and costs in their counsels trust account. The court subsequently entered an order setting aside the Certificate of Sale and finding that the Tenants had complied with the previous order.

We agree with YEMC that the orders must be reversed. Assuming there was a basis to vacate the foreclosure judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(4), see Dor Cha, Inc. v. Hollingsworth, 876 So.2d 678 (Fla. 4th DCA 2004); Floyd v. Federal Nat’l Mortgage Ass’n, 704 So.2d 1110 (Fla. 5th DCA 1998); Gans v. Heathgate-Sunflower Homeowners Ass’n, 593 So.2d 549 (Fla. 4th DCA 1992), the trial court did not vacate the judgment. Instead, it merely substituted the Tenants in place of the unknown tenant, Jane Doe, and deemed that the Tenants had asserted their right of redemption. In so doing, the court improperly altered the judgment by adding the Tenants as party defendants and changing the period for the right of redemption. The trial court was without jurisdiction to alter or amend the judgment substantively when, as here, the Tenants’ motion was filed more than ten days after filing of the final judgment of foreclosure. See Fla.R.Civ.P. 1.530(g); Harbor Bay Condos., Inc. v. Basabe, 856 So.2d 1067 (Fla. 3d DCA 2003).

In addition, the trial court was without authority to extend the period of redemption. Here, it is undisputed that the Tenants’ right of redemption expired upon filing of the certificate of sale. § 45.0315, Fla. Stat. (2003). The Tenants’ redemption rights could have revested had the court set aside the judicial sale. “If a party files an objection to the foreclosure sale and the court determines there is a valid basis for the objection, the property is readvertised and resale begins anew. Upon the readvertisement and resale, a mortgagor’s lost redemptive rights temporarily revest.” JRBL Dev., Inc. v. Maiello, 872 So.2d 362, 363 (Fla. 2d DCA 2004) (citations omitted); Emanuel v. Bankers Trust Co. 655 So.2d 247, 249-50 (Fla. 3d DCA 1995). However, the Tenants’ objection to the sale, § 45.031(4), Fla. Stat. (2003), provided no basis for relief. “The purpose of [section 45.031(4)] is to afford a mechanism to assure all parties and bidders to the sale that there is no irregularity at the auction or any collusive bidding, etc.” Emanuel 655 So.2d at 250. Here, the record provides no such grounds for vacating the sale. See Prater v. Mortgage Elec. Registration Sys., Inc., 866 So.2d 212, 213 (Fla. 3d DCA 2004); Ingorvaia v. Horton, 816 So.2d 1256 (Fla. 2d DCA 2002); Cueto v. Mfrs. & Traders Trust Co., 791 So.2d 1125 (Fla. 4th DCA 2000); Indian River Farms v. YBF Partners, 777 So.2d 1096 (Fla. 4th DCA 2001). Therefore, the Tenants’ expired redemptive rights did not revest. Accordingly, the orders are reversed.

Reversed and remanded.

      . We express no opinion whether the lease or the option to purchase contract survives the foreclosure. See Burns v. Bankamerica Nat'l Trust Co., 719 So.2d 999, 1001 (Fla. 5th DCA 1998)(Sharp, J. dissenting).


text:
    Kevin DEL VALLE, a minor by and through his parent, Idaina Fernandez, and Idaina Fernandez, individually, et al., Appellants, v. Dr. Rafael SANCHEZ, et al., Appellee.
    No. 3D03-1369.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    Mark D. Press, Coral Gables; Kluger, Peretz, Kaplan & Berlin and Michael B. Chesal, Miami; Joel Perwin, for appellants.
    Marisa Tinkler Mendez, Coral Gables, for appellee.
    Before GERSTEN, GODERICH, and GREEN, JJ.
   PER CURIAM.

Under the unique and peculiar circumstances in this case, we determine the trial court’s dismissal of this action was too harsh a sanction. Accordingly, we reverse and remand. The trial court can, however, consider other sanctions, such as fees and costs, should it deem them fit and proper.

Reversed and remanded.


text:
    Charles PULLINS, Petitioner, v. Charles J. McCRAY, Director Miami-Dade County Corrections and Rehabilitation Department for the State of Florida, Respondent.
    No. 3D04-2169.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.

      Joseph W. Gibson, Miami, for petitioner.
    Charles J. Crist, Jr., Attorney General and Richard L. Polin, Assistant Attorney General, for respondent.
    Before SCHWARTZ, C.J., and COPE . and WELLS, JJ.
   PER CURIAM.

The petitioner, a criminal defendant on bond making a routine appearance before the circuit court, was summarily ordered to be drug tested, taken into custody and had his bond revoked under circumstances virtually identical to those in Reyes v. McCray, 879 So.2d 1269 (Fla. 3d DCA 2004) and Hernandez v. McCray, 879 So.2d 60 (Fla. 3d DCA 2004). On the authority of those cases, we grant habeas corpus, vacate the revocation and order the defendant released from custody on his reinstated bond.

Habeas Corpus granted.


text:
    Hugo CASTILLO and Berta Castillo, Appellants, v. FLORIDA POWER & LIGHT COMPANY and Jenny’s Flowers, Appellees.
    No. 3D03-1809.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    David H. Pollack, for appellant.
    Josephs, Jack & Miranda, P.A. and Susan S. Lerner, Miami, for appellee.
    Before GERSTEN, GODERICH, and GREEN, JJ.
   PER CURIAM.

Affirmed. See Mozee v. Champion Int’l Corp., 554 So.2d 596, 598 (Fla. 1st DCA 1989) (property owner not liable for the electrocution of subcontractor of independent contractor’s employee where property owner informed subcontractor electrical wiring was still hot); Lemen v. Fla. Power & Light Co., 452 So.2d 1107, 1108 (Fla. 5th DCA 1984) (property owner not liable for injuries to employee of independent contractor in absence of a showing of a positive act of negligence which proximately causes such injury).


text:
    Curmit SIBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1903.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.

      Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ and GODERICH, JJ.
   PER CURIAM.

The defendant, Curmit Sibert, appeals from his convictions. We affirm.

The defendant was charged by four-count information with attempted first degree murder, two counts of shooting a deadly missile into his former girlfriend’s home, and aggravated stalking with a firearm. After trial by jury, the defendant was found guilty of aggravated assault with a firearm, a lesser included offense of attempted first degree murder; and guilty of the two shooting counts. The defendant appeals from these convictions.

The defendant contends that, absent a notice of intent to rely on Williams rule evidence, the trial court erred by allowing the State to elicit testimony that the defendant had possessed weapons before, that he had handled concealed weapons before and had gone to jail as a result, and that he had handled firearms a long time ago when he was 18. The defendant alleges that this error was compounded when the State argued in closing that the significance of the defendant having possessed a handgun when he was 18 was that the gun involved in shooting into the victim’s apartment was a small handgun.

Although we agree that the State’s line of questioning was improper in light of Robertson v. State, 829 So.2d 901 (Fla.2002), we find that any error was harmless beyond a reasonable doubt, State v. DiGuilio, 491 So.2d 1129 (Fla.1986), where the State presented the testimony of the victim and two of her family members who unequivocally identified the defendant as the shooter. The defendant contends that the testimony of his alibi witnesses that he was at an all-night card game at the time of the shooting creates reasonable doubt that the error was not harmless. We disagree where the alibi witnesses came forward for the first time on the second day of trial and where their testimony was riddled with inconsistencies regarding the date and time of the card game. Therefore, there is no reasonable probability that the error affected the verdict.

Accordingly, we affirm.


text:
    Timothy MARTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1375.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    Timothy Martin, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Timothy Martin appeals the summary denial of his motion to correct illegal sentence pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure alleging that his sentence was based on an improperly calculated scoresheet. We previously held in Martin v. State, 795 So.2d 143 (Fla. 3d DCA 2001), that under the version of the habitual offender statute then in effect, Martin could not be sentenced as a habitual offender in count five because the statute did not authorize habitualization for a life felony. We therefore remanded the ease to the trial court with directions to strike the habitual offender adjudication from count five and resentence the defendant within the guidelines. Because Martin’s guidelines maximum was twenty-two years and he had already agreed, in the plea bargain, to a twenty-seven year habitual offender sentence on counts one and two, we instructed that, on remand, Martin need not be present for the resentencing on count five.

The record reflects that in the trial court, the State admitted that counts one and two should not have been scored as additional offenses and therefore recomputed his scoresheet to reflect a permitted range of nine to twenty-two years in State Prison. The State argued that Martin should be sentenced to twenty-two years in prison. The trial court denied Martin’s motion “as he is already sentenced to 22 years in State Prison as to count 6.” It is not clear from the record whether Martin is currently serving a twenty-two or a twenty-seven year sentence, nor is it clear whether the State has satisfied the sequential conviction requirement necessary for the imposition of a habitual offender sentence.

We therefore reverse and remand for a new sentencing hearing at which point the State will have the opportunity to present record evidence that other prior convictions existed that would satisfy the sequential conviction requirement for habitualization. See Bover v. State, 797 So.2d 1246, 1251 (Fla.2001).


text:
    John Michael SHEA, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-541.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 2004.
    Heather M. Gray of Law Office of Joseph C. Bodiford, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

John Shea appeals a judgment for armed trafficking in cocaine, conspiracy to traffic in cocaine, carrying a concealed firearm, possession of cocaine, possession of methamphetamine, and possession of al-prazolam. We affirm the convictions without further comment. On appeal, Mr. Shea has raised issues regarding his sentence for armed trafficking. These issues were not raised at sentencing nor did Mr. Shea’s appellate counsel file a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to preserve these issues for review. As a result, we conclude that these issues cannot be addressed in this appeal. See Maddox v. State, 760 So.2d 89, 98 (Fla.2000); cf. Harvey v. State, 848 So.2d 1060 (Fla.2003) (refusing to apply Maddox to preclude direct review of “a sentencing error [that] developed that did not exist before the first brief was filed”). We therefore affirm Mr. Shea’s sentence for armed trafficking without prejudice to his right to file an appropriate motion for postconviction relief.

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


text:
    Donald BURGESS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-24.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before GREEN, SHEVIN and WELLS, JJ.
   PER CURIAM.

We affirm the conviction without prejudice to defendant raising ineffective assistance of trial counsel in an appropriate post-conviction motion.

Affirmed.


text:
    Abdul ANTHONY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2064.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    Abdul Anthony, in proper person.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.
   PER CURIAM.

Affirmed. See Hidalgo v. State, 729 So.2d 984 (Fla. 3d DCA 1999).


text:
    FORTUNA DISTRIBUTION CORPORATION, Appellant, v. THE UNIVISION NETWORK LIMITED PARTNERSHIP, Appellee.
    No. 3D03-2983.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    Aballi Milne Kalil Escagedo, P.A., Miami, and Hendrik G. Milne and Carlos F. Osorio, for appellant.
    Holland Knight LLP, and Lucinda A. Hofmann, and James D. Wing, Miami, for appellee.
    Before LEVY, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

Fortuna Distribution Corporation appeals the .trial court’s dismissal of its suit for declaratory relief due to lack of jurisdiction. We reverse.

The trial court’s determination that it lacked jurisdiction is plainly error. There are multiple ripe issues that squarely fall under the declaratory judgment act, Section 86.011, Florida Statutes (2003). See Santa Rosa County v. Admin. Comm’n Div. of Admin. Hearings, 661 So.2d 1190 (Fla.1995). Accordingly, we reverse and remand.

Reversed and remanded.


text:
    Roberto BAEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1367.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2004.
    Roberto Baez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Anderson v. State, 860 So.2d 996, 998 (Fla. 5th DCA 2003).


author: MAY, J.

text:
    Barbara FRANCIS and Julie Francis, Appellants, v. Suzanne AKERLEY, Appellee.
    Nos. 4D03-2786, 4D03-3115.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Caryn L. Bellus of Kubicki Draper, Miami, for appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach and Stuart M. Address and Guy Rubin of Rubin & Rubin, Stuart, for appellee.
   MAY, J.

The defendants in a defamation action appeal a final judgment entered in favor of the plaintiff and an order awarding attorney’s fees. Three issues are raised, two involving the sufficiency of the evidence; the third concerns the trial court’s award of attorney’s fees. We affirm the final judgment, but reverse the attorney’s fee award.

Following entry of the judgment, the plaintiff moved for attorney’s fees based upon the offer of judgment statute, section 768.79, Florida Statutes (2003). At the hearing on the motion, plaintiffs counsel requested the trial court to apply a contingency risk multiplier and advised the court of conflicting precedent. See Allstate Ins. Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001), and Island Hoppers, Ltd. v. Keith, 820 So.2d 967 (Fla. 4th DCA 2002). The defendants argued the contingency risk multiplier is inapplicable to fees awarded pursuant to the offer of judgment statute.

Relying on the prevailing authority in this jurisdiction at the time, Island Hoppers, the trial court applied a contingency risk multiplier of 2.5 in determining the fee award. However, the Supreme Court of Florida subsequently overruled Island Hoppers, and held a contingency risk multiplier cannot be applied to fees awarded under the offer of judgment statute. See Sarkis v. Allstate Ins. Co., 863 So.2d at 210. We therefore reverse the fee award.

On appeal, the plaintiff alternatively argues that Sarkis does not prohibit the use of a contingency risk multiplier in a fee awarded pursuant to section 44.103, Florida Statutes (2003) (court-ordered, nonbinding arbitration statute). The plaintiff maintains section 44.103, unlike section 768.79, contains no specific enumerated factors to be considered by a trial court in awarding fees. Therefore, the court is not prohibited from considering a contingency risk multiplier. We reject this distinction.

While the supreme court noted that section 768.79 did not include a contingency risk multiplier among the enumerated factors to be considered in awarding fees, that was not its only basis for disallowing the use of a multiplier. The real basis for its decision in Sarkis is that the underlying philosophy of section 768.79 and Florida Rule of Civil Procedure 1.442 is to encourage settlement rather than extend litigation. Id. at 218. For this same reason, we hold a court may not apply a contingency risk multiplier when awarding fees, pursuant to section 44.103, Florida Statutes (2003).

We reverse the order awarding fees and remand the case to the trial court for entry of an attorney’s fees award based upon the already established reasonable hourly rate and number of hours expended, and without the contingency risk multiplier. However, because the Florida Supreme Court did not address section 44.103 in Sarkis, and we deem this issue to be of great public importance, we certify the following question.

MAY A COURT APPLY A CONTINGENCY RISK MULTIPLIER IN AWARDING ATTORNEYS FEES PURSUANT TO SECTION 44.103, FLORIDA STATUTES (2003)?

Affirmed in part, reversed in part and remanded.

POLEN, J., and GOLD, MARC H., Associate Judge, concur.


text:
    Laura F. STEVENSON, Appellant, v. Robert S. STEVENSON, Appellee.
    No. 4D03-2942.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Frank G. Cibula, Jr., Of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellant.
    No appellee appearance filed.
   PER CURIAM.

The former wife appeals an order denying two motions for contempt against her former husband for failure to pay child support and her subsequent motion to vacate that order. The appeal centers around miscalculations upon which the orders are based. We agree there has been a miscalculation of arrearages in child support and therefore reverse and remand the case for a redetermination of the amount owed.

The final judgment of dissolution entered in 1992 required the former husband to pay $350.00 per week in child support. On July 1, 2000, the former husband unilaterally reduced his child support payments to $232.00 per week. On September 21, 2001, the former husband filed a petition to modify his child support obligation.

He continued to pay $232.00 weekly (instead of the ordered $350.00) until entry of an order on October 31, 2002. That order reduced the child support to “$198.50 per week effective with the payment due on November 1, 2002, but retroactive to September 21, 2001.” The court then granted the former husband retroactive credit for the difference in the amount of child support required by the final judgment of dissolution and the amount of his newly modified obligation between September 21, 2001 and November 1, 2002.

Unfortunately, the trial court failed to consider that the former husband had reduced his obligation from July 1, 2000 through September 21, 2001 by $118.00 per week (the difference between $350.00 and $232.00). Therefore, the amount owed in back child support is $118.00 multiplied by the number of weeks between those dates, plus interest.

Furthermore, the court must revisit the amount of retroactive credit awarded to the former husband. In the period between the husband’s filing of the September 21, 2001 petition for modification and the October 31, 2002 modification order, the former husband continued to pay the reduced amount of $232.00 per week. Therefore, he is entitled only to the difference between the $232.00 weekly he paid and the modified amount of $198.50 per week, plus interest.

We reverse the orders and remand for a recalculation of the child support arrearag-es owed to the former wife and the retroactive credit due the former husband.

REVERSED and REMANDED.

POLEN, MAY, JJ., and GOLD, MARC, Associate Judge, concur.


author: STONE, J.

text:
    Alexander ARMALIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1874.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Alexander Armalin’s conviction for delivery of cocaine. The evidence reflected that Armalin sold crack cocaine rocks to an undercover officer.

At trial, Officer Fromm testified that she had been trained in drug identification. Posing as a drug buyer, Officer Fromm pulled into a gas station and made contact with Armalin, who told her to pull into a parking area. After the officer told him that she “needed 40,” Armalin took a little square, which Officer Fromm recognized as crack cocaine, out of his mouth. The officer gave Armalin $20 and asked him for another square. Armalin gave Officer Fromm another one and she paid him another $20.

Officer Jackson, who accompanied Officer Fromm, witnessed the transaction. He testified that Armalin took what appeared to be crack out of his mouth and sold it to Officer Fromm. At trial, the following exchange took place between Officer Jackson and the prosecutor:

STATE: And you said what appeared to be crack cocaine, how is it you believed it to be crack cocaine?
WITNESS: Just by — crack cocaine sold in South Florida is usually a small square, something like a square, with a yellowish, whitish, waxy substance. It appeared to be crack cocaine.
STATE: Continue.
WITNESS: He [Armalin] took it out of his mouth, gave it to Detective Fromm who was sitting in the driver’s seat, he was on the driver’s side of the vehicle, she gave him twenty dollars and asked if he had another piece. He retrieved another piece out of his mouth which is a common area for narcotic dealers to hold crack cocaine because they can ingest it if we come into contact with them.
STATE: You said he took it from his mouth and that’s common. What do you base that on?
WITNESS: We see it every day. That’s an easy way for them to hold it in their mouth because if they come into contact with us—
MR. BENDER: Objection. This is irrelevant.
THE COURT: Overruled.
THE WITNESS: It’s a common way if we make contact with a person who’s holding all your illegal narcotics for them to ingest them and then we have no evidence against them.
STATE: That’s based on your training and field experience?
WITNESS: Yes.

Armalin argues that the trial court abused its discretion in overruling defense counsel’s relevancy objection to testimony concerning the behavior patterns of drug dealers.

This court has made it clear that testimony about a defendants general criminal behavior is not allowed as substantive proof of guilt, “because ‘every defendant has the right to be tried based on evidence against him, not on the characteristics or conduct of certain classes of criminals in general.’ Lowder v. State, 589 So.2d 933, 935 (Fla. 3rd DCA 1991).” Dean v. State, 690 So.2d 720, 723 (Fla. 4th DCA 1997).

In Dean, we reversed based on the erroneous admission of testimony that it is common during drug transactions for one person to have possession of the drugs and hand them off to the buyer, while another person takes the money. Id. at 722. See also Thomas v. State, 673 So.2d 156, 158 (Fla. 4th DCA 1996)(finding reversible error where the state elicited testimony from a detective that, in a drug transaction, often one individual is actually in possession of the drugs while another person collects the money to prevent robberies); Shelton v. State, 654 So.2d 1295, 1296 (Fla. 4th DCA 1995)(finding reversible error where an officer was allowed to testify that money marked for identification was not always recovered and that the lack of recovery would not be considered abnormal); Dunning v. State, 695 So.2d 473, 474 (Fla. 4th DCA 1997)(holding that the admission of detective’s testimony concerning general customs of drug dealers, specifically that it was not uncommon for dealers to keep drugs off their persons, was error). We have recently re-affirmed this holding in Griffin v. State, 872 So.2d 998 (Fla. 4th DCA 2004).

In each of these cases, the general criminal behavior in question was a critical aspect of proof in relation to other evidence of guilt. Here, however, although inadmissible, the testimony is not prejudicial in the face of the evidence that the officer bought drugs from Armalin that were tested and found to be crack cocaine. Here, the testimony was not used to defeat a defense or establish an element of the crime. This is not a case where the state is seeking to explain why drugs or money was not located at the time of the arrest by reference to alleged habits of drug dealers. Here, the defense was essentially a challenge to the credibility of the officers. We conclude that admitting this testimony was harmless. Goodwin v. State, 751 So.2d 537 (Fla.1999).

We find no reversible error or abuse of discretion as to the other issues raised. Therefore, the judgment and. sentence are affirmed. See Dunning v. State, 695 So.2d 473 (Fla. 4th DCA 1997); Reyes v. State, 700 So.2d 458 (Fla. 4th DCA 1997); Baskin v. State, 732 So.2d 1179 (Fla. 1st DCA 1999).

GUNTHER and TAYLOR, JJ., concur.

      . Because we affirm on the basis of harmless error, we have not considered whether there may be an exception to the cited cases where relevant testimony is not used to convert otherwise innocent behavior to evidence of guilt, but, rather, to explain otherwise inexplicable behavior. In such instance, it might be argued that an analysis under section 90.403, Florida Statutes, is applicable to determine whether the probative value of testimony, otherwise relevant, is substantially outweighed by the danger of unfair prejudice.


author: TAYLOR, J.

text:
    Raymone LEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1873.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.

      Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Raymone Lee successfully completed the Broward County Sheriffs boot camp as a youthful offender. After he was found in violation of community control, he was sentenced to thirty-six months in prison. On appeal, he argues that the trial court erred in sentencing him to more than 364 days in prison because Florida’s youthful offender statute limits incarceration for youthful offenders to 364 days upon successful completion of boot camp. For support, he cites to sections 958.04 and 958.045, Florida Statutes (2002), and cases construing those statutory provisions. The state responds that these provisions do not apply to the defendant because he was not committed to the boot camp program operated by the Department of Corrections pursuant to section 958.045.

Section 958.045 governs the department’s youthful offender basic training program, commonly referred to as “boot camp.” Subsection (5)(c) provides in part:

Upon the offender’s completion of the basic training program, the department shall submit a report to the court that describes the offender’s performance. If the offender’s performance has been satisfactory, the court shall issue an order modifying the sentence imposed and placing the offender on probation.... If the offender violates the conditions of probation, the court may revoke probation and impose any sentence that it might have originally imposed as a condition of probation.

(Emphasis added).

Section 958.04(2)(b), which governs the disposition of youthful offenders generally, states:

The court may impose a period of incarceration as a condition of probation or community control, which period of incarceration shall be served in either a county facility, a department probation and restitution center, or a community residential facility which is owned and operated by any public or private entity providing such services.... Placement in such a facility or center shall not exceed 364 days.

Read together, these two statutes have been consistently construed as limiting to 364 days the period of incarceration which may be imposed for violation of probation following successful completion of boot camp. See Mims v. State, 871 So.2d 1003 (Fla. 1st DCA 2004); Blaxton v. State, 868 So.2d 620 (Fla. 2d DCA 2004); Williams v. State, 841 So.2d 685 (Fla. 5th DCA 2003).

However, as the state points out, the defendants in those cases were placed in boot camp programs operated by the Department of Corrections. Here, the defendant was not placed in the department’s boot camp program, but was committed to the county’s boot camp facility. Consequently, the trial court’s sentencing authority is not limited by section gSS.OJSfóXc).

Unlike the detailed provisions of the statute pertaining to the department’s boot camp programs, the statute concerning county-run programs merely states:

In counties where there are county-operated youthful offender boot camp programs, other than boot camps described in s. 958.04 or s. 985.309, the court may sentence a youthful offender to such a boot camp. In county-operated youthful offender boot camp programs, juvenile offenders shall not be commingled with youthful offenders.

§ 958.046, Fla. Stat. (2003).

There are no provisions in the Youthful Offender Act requiring application of rules governing department boot camp facilities to the county-run programs. Moreover, the statute contains no specific provision comparable to section 958.045(5)(c) limiting sentences for youthful offenders who complete a county boot camp.

We therefore affirm the defendant’s sentence.

AFFIRMED.

GUNTHER and HAZOURI, JJ., concur.

      . We note Chief Judge Altenbernd’s observations that it is doubtful that the legislature intended the result urged by the defendant even in cases where the defendant completed the department's program. See Blaxton, 868 So.2d at 621 ("We are inclined to believe that the legislature intended to permit the court to impose any sentence ‘that it might have originally imposed.’ Indeed, a judge may be hesitant to recommend boot camp in an effort to rehabilitate a youth if the-judge realizes that the youth’s sentence upon a future violation of probation will be limited to such a short term .of incarceration.”).


author: GATES, MICHAEL, Associate Judge.

text:
    Suzette RENO, Appellant, v. William Q. RENO, Appellee.
    No. 4D03-3787.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.

      Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellant.
    Jeffrey S. D’Amore of D’Amore Law Firm, P.A., West Palm Beach, for appellee.
   GATES, MICHAEL, Associate Judge.

In this case, the trial court terminated permanent alimony, when only a reduction of alimony was sought by the husband. Additionally, the trial court granted the former wife’s petition to relocate with the minor child but required her to provide all the transportation and costs for visitation with the former husband. We reverse on the former and affirm on the latter.

FACTS

Suzette Reno (the “former wife”) and William Q. Reno (the “former husband”) were divorced pursuant to a final judgment of dissolution of marriage on August 12,1998.

The former wife was awarded permanent periodic alimony which would terminate only upon the former wife’s remarriage or death.

On February 4, 2003, the former husband filed a petition to modify seeking a reduction in alimony. The former wife filed a petition to relocate with the minor child from Jupiter to Vero Beach with her fiancé, Mr. Zimms (the “fiancé”). On September 2, 2003 the trial court held an evidentiary hearing.

The former husband testified that he was no longer earning anywhere near his previous annual salary. The former wife contended her only present source of income was alimony. She indicated she fell while working as a teacher’s aide and medical problems prevented her from returning to that job.

The former wife testified she moved into the rented Jupiter residence of her fiancé in July 2003. Since this time, all of her living expenses, except for her cell phone bill, have been paid by her fiancé. Additionally, the former wife and her fiancé leased a residence in Vero Beach. The former wife intended to work for her fian-cé from the Vero Beach residence. The parties have no specific plans for getting married.

The visitation schedule provided the former husband with visitation every other weekend and each Wednesday evening, which he fully exercised. The former wife testified that if the trial court permitted her to relocate with the minor child, “I am more than willing, if [the former husband] wants to keep the visitation that was intact at the same time of our divorce, I will keep that, or whatever [the trial judge] feels that’s in the best interests of Dillon and providing a meaningful relationship with his father; anything you offer, I would be more than willing to accept.”

In closing, the former husband argued that the evidence indicated that the former wife basically had no need for alimony since all her expenses were being paid by her flaneé. The former husband asked the court to grant the petition for modification based on his reduced income. The former husband also pointed out to the court that the former husband’s guidelines do consider that the alimony will terminate, since the plan is for the former wife and her fiancé to get married.

On September 3, 2003, “Final Judgment on Petitions for Modification” was entered. The trial court granted the former husband’s petition to modify support. Alimony was terminated effective October 1, 2003. The trial court granted the former wife’s petition to relocate. The visitation schedule was to remain unchanged, with the former wife being responsible for transporting the child, as well as the costs. Neither party was awarded attorney’s fees or costs.

As is well settled, “[t]hree prerequisites are required for a modification of alimony: 1) a substantial change in circumstances; 2) that was not contemplated at the time of final judgment of dissolution; and 3) is sufficient, material, involuntary, and permanent in nature.” Damiano v. Damiano, 855 So.2d 708, 710 (Fla. 4th DCA 2003) (emphasis added) (citation omitted).

The former husband filed a petition seeking a reduction of permanent alimony based on his reduced income and the former wife’s underemployment. During the hearing, the former husband presented a new ground for a reduction in alimony: that the former wife had no current need for alimony, because her flaneé was paying for all of her living expenses except for her cell phone bill. Accordingly, the former husband demonstrated a substantial change of circumstances warranting a reduction in alimony.

However, while a reduction in alimony is warranted, it is clear that the former husband did not seek the complete termination of alimony, either in his pleadings or at trial.

A trial judge may not order that alimony cease simply because the alimony recipient cohabits with another person, even when this arrangement appears to be one consistent with a de facto marriage. See Dibartolomeo v. Dibartolomeo, 679 So.2d 72, 72-73 (Fla. 4th DCA 1996). However, cohabitation may justify the modification and elimination of alimony, depending on how the new living situation has impacted the alimony recipient’s financial condition and continued need for alimony. Id. at 73.

In this case, there appears to be conclusive evidence that almost all of the former wife’s living expenses are being paid by her fiancé, as she conceded such. Nonetheless, while this may support the elimination of alimony, the former husband did not request this relief. Given that the former wife’s needs may change in the future, the proper course is to reduce alimony, even if done to a nominal amount.

While it may seem that there is a de minimis difference between the complete elimination of alimony and the near-complete elimination of alimony, this is a distinction with a difference. It is clear that when a party requests that alimony be terminated, the trial court has jurisdiction to simply modify the alimony. See Greene v. Greene, 547 So.2d 1302, 1304 (Fla. 2d DCA 1989). However, the reverse is not true; when a party seeks the modification of alimony, this does not permit the trial court to terminate alimony. See Jennings v. Jennings, 353 So.2d 921 (Fla. 4th DCA 1978). This court’s language from Jennings is instructive:

The petition, on its face, clearly did not seek a cancellation but only a reduction in alimony payments. As a consequence it was error for the trial judge to so rule. We would comment that to us the distinction between reduction and cancellation is important. True, the trial judge could perhaps have reduced the alimony to one dollar per year ... however, an award of one dollar would leave open the question of further modification at a later date should changed circumstances justify it. By contrast, a cancellation of alimony, unappealed from, would not be susceptible to revival later and accordingly we hold that cancellation must be pled in order that the opposing spouse be given adequate notice.

Id. at 921-22 (emphasis added) (citations omitted); see also Herbert v. Herbert, 304 So.2d 465 (Fla. 4th DCA 1974); Isaacson v. Isaacson, 463 So.2d 513 (Fla. 1st DCA 1985) (where husband only requested reduction of alimony, trial court abused its discretion in terminating alimony).

As is also well settled, while it is error for the trial court to grant relief for an issue not raised in the pleadings, an exception lies when this non-pled issue has been tried by implied or express consent. See Todaro v. Todaro, 704 So.2d 138, 139 (Fla. 4th DCA 1997). The former husband contends that the issue of whether to terminate alimony was in fact tried by implied consent because the former wife, by not objecting to testimony of her financial relationship with her fiancé, impliedly agreed to the consideration of that issue.

However, “in order to rely on questions and answers not objected to during trial as evidencing the opposing party’s implied consent to try unpled issues, it must be shown that said questions and answers are irrelevant to any pled issues.” See Bilow v. Benoit, 519 So.2d 1114, 1116 (Fla. 1st DCA 1988).

All of the evidence introduced by the former husband was clearly relevant to support his request for the reduction of alimony, such that any objection by the former wife would have been fruitless.

Additionally, the trial court granted the former wife’s relocation with the minor child to Yero Beach, an issue the former husband does not appeal. The former wife contends it is unreasonable to require her to shuttle back and forth on this long commute for the former husband’s visitations and to require her to pay for 100% of the financial costs in doing so.

A trial court has great discretion in setting a visitation schedule and in establishing the terms of the visitation. See Keitel v. Keitel, 724 So.2d 1255, 1257 (Fla. 4th DCA 1999); Gerthe v. Gerthe, 857 So.2d 306, 307 (Fla. 2d DCA 2003). The appellate court will not reverse a trial court’s order regarding visitation absent a finding of abuse of discretion. See Damiani v. Damiani, 835 So.2d 1168, 1169 (Fla. 4th DCA 2002).

The trial court was within its discretion in imposing this travel requirement upon the former wife, as a reflection that her relocation could potentially hinder the current visitation schedule, which the former husband was maintaining. The trial court in granting the former wife this relief, established a sensible provision to ensure that the former husband maintained an active and meaningful relationship with the minor child.

We reverse the termination of alimony, and remand to the trial court to impose a nominal $1.00 monthly alimony payment to the former wife and to retain jurisdiction should there be a substantial change of circumstances in the future. As to all other issues raised, we affirm.

WARNER and SHAHOOD, JJ., concur.


text:
    Stanley H. HOFFMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-5138.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, and Stanley H. Hoffman, Florida City, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979); Maddox v. State, 760 So.2d 89 (Fla.2000).

FARMER, C.J., SHAHOOD and TAYLOR, JJ., concur.


text:
    G.S.H., The Father and Department of Children and Family Services, Appellants, v. K.H., The Mother, Appellee.
    No. 4D04-2008.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2004.
    John Brewer, Lake Worth, for appellant G.S.H., The Father.
    No brief filed for appellant Department of Children and Family Services.
    No appearance for appellee.
   PER CURIAM.

G.S.H., the father, files this appeal from the trial court’s denial of his motion to modify placement of his child, M.H., pursuant to section 39.521(3)(b), Florida Statutes (2003). He argues that the trial court applied the wrong legal standard in denying the motion and that there was insufficient evidence to support that denial. We agree and reverse.

After the mother, K.H., consented, the trial court entered an Order of Adjudication of Dependency which provided that M.H. remain in the physical and legal custody of her maternal grandparents. The father filed his motion to modify custody alleging that he had custody of the child who was born in 1998 until she was three, he paid child support at all times and he was prevented from seeing her by the mother for two years. A home study of the father prepared by DCF was filed with the court. The home study provides that the custody by the father is approved only if he continues to live with his parents. He testified that he has no intention of leaving.

M.H.’s case worker testified that she had not met the father but believed that the child would be well taken care of in the father’s home as long as he remains with his parents. M.H. is doing well in her maternal grandparents’ home and has bonded with her older sister who lives there with her. The mother, however, has had ample time to satisfy her case plan but has missed some sessions and not completed certain required courses.

In denying the motion, the trial court found that M.H. was in a stable placement with her maternal grandmother and her sister and that the mother visits with M.H. frequently. These visits would be limited if M.H. lived with her father in Citrus County, Florida. The trial court concluded, “[i]t is not in the best interest of the child to separate her from her sibling in order to be placed with her father.”

Section 39.521(3)(b), Florida Statutes (2003), entitled “Disposition hearings; powers of disposition,” provides:

3) When any child is adjudicated by a court to be dependent, the court shall determine the appropriate placement for the child as follows:
(b) If there is a parent with whom the child was not residing at the time the events or conditions arose that brought the child within the jurisdiction of the court who desires to assume custody of the child, the court shall place the child with that parent upon completion of a home study, unless the court finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child. Any party with knowledge of the facts may present to the court evidence regarding whether the placement will endanger the safety, well-being, or physical, mental, or emotional health of the child....

As the court held in M.M. v. Department of Children & Families, 777 So.2d 1209 (Fla. 5th DCA 2001):

This statute requires the court to place a child adjudicated to be dependent as to one parent with the child’s remaining (non-residential) parent upon request, unless the court “finds that such placement would endanger the safety, well-being, or physical, mental, or emotional health of the child.” The decision is not optional with the court — the statute says the court “shall” make such a placement.

Id. at 1212 (citations omitted); see also L.P. v. Dep’t of Children & Families, 871 So.2d 306 (Fla. 1st DCA 2004); D.S. v. Dep’t. of Children & Families, 832 So.2d 838 (Fla. 5th DCA 2002); Roberts v. Fla. Dep’t of Children & Families, 687 So.2d 51 (Fla. 3d DCA 1997).

In making its decision below, the trial court used the improper standard of “best interest of the child” and did not make the indispensable finding concerning endangerment.

In L.P. v. Department of Children & Families, 871 So.2d 306 (Fla. 1st DCA 2004), the father of a seventeen-month-old developmentally disabled son sought custody of his son under section 39.521(3)(b), Florida Statutes (2002). The father had not been married to the mother but now lived with his fiancée who was in a wheelchair. The father had a steady job and home, worked the evening shift until 11:00 P.M., and prior to the child’s birth had five admissions to a detox facility for two days each. There were two home studies, the first of which was positive and the second of which did not recommend placement solely because there was no suitable or specific arrangement for the child while the father was at work. The fiancée had worked at the Center for Independent Living and was familiar with agencies that could provide assistance to the father and child. There were also family members available to assist them.

The trial court denied the father’s motion because of his “less than forthright” testimony about his detox admissions. Id. at 307. It also determined that the fact that the fiancée was in a wheelchair limited her ability to care for the child and although the father had arranged for full-time child care, the trial court thought that this would be difficult to maintain because of the late hours.

On appeal, the district court held:

The “best interest” standard does not apply under this section, and in the absence of evidence of endangerment, the non-offending parent is entitled to custody. See D.S. v. Dep’t of Children & Families, 832 So.2d 838 (Fla. 5th DCA 2002). A natural parent cannot be denied custody of his child unless evidence demonstrates compelling reasons that the parent is unfit or otherwise unable to exercise custody, and that placing the child with the parent would endanger the child’s safety and well-being. See In the Interest of M.K.S., 726 So.2d 309 (Fla. 2d DCA 1998).

Id. at 308. The district court found that those compelling reasons did not exist and the trial court abused its discretion in denying custody to the father. It reversed and remanded for the trial court to place the child in the father’s custody.

Here, the trial court’s findings do not show “compelling reasons” to deny the father’s motion. The father’s home study was positive and his mother was available to care for M.H. There is insufficient evidence from which the trial court could make a finding of endangerment to the child.

Without compelling reasons which show the child would be endangered in the father’s custody, the trial court abused its discretion in denying the father’s motion. We reverse and remand for the trial court to place M.H. in the father’s custody.

REVERSED and REMANDED for proceedings consistent with this opinion.

STEVENSON, GROSS and HAZOURI, JJ., concur.


text:
    David MARKIN, Petitioner, v. Susan MARKIN, Respondent.
    No. 4D04-720.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    See also 877 So.2d 785.
    Joel M. Weissman of Weissman, Yaffa & Desmond, P.A., West Palm Beach, for petitioner.
    Philip M. Burlington, P.A., West Palm Beach and Jeffrey D. Fisher of Fisher & Bendeck, P.A., West Palm Beach, for respondent.
   PER CURIAM.

We grant this petition for writ of prohibition filed by David Markin to prevent the trial court from entertaining further proceedings following its February 3, 2004 order granting the respondent, Susan Markin’s, motion for summary judgment of partition.

The issue raised is identical to that resolved as to these parties in Markin v. Markin, 877 So.2d 785 (Fla. 4th DCA 2004). There, we said:

... this court’s prior stay order controls the disposition of this petition.
Whether automatic or discretionary, this court has previously ordered a stay conditioned on the posting of a substantial bond in the underlying appeal from the final judgment of dissolution. The former husband has posted the bond. This stayed any further action by the trial court that affects the final judgment of dissolution as it relates to equitable distribution. We must give effect to the prior stay order of this court. We therefore grant the petition and direct the trial court to refrain from any proceeding affecting the equitable distribution ordered in the final judgment of dissolution.

Id. at 787.

Similarly, with respect to the partition order, a valid stay was in place. The posting of the bond stayed further proceedings affecting the final judgment as it relates to equitable distribution. The provisions for the property in question were included under the amended final judgment’s provisions for equitable distribution.

As in Markin, we grant the petition and direct the trial court to refrain from further proceedings as to the property included within the equitable distribution.

STONE, WARNER and HAZOURI, JJ., concur.


text:
    John H. GARVIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3167.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    John H. Garvin, Lake City, pro se.
    No appearance required for appellee.
   PER CURIAM.

John H. Garvin appeals a trial court order summarily denying his motion to enforce his plea agreement or vacate plea, in which he alleged that the forfeiture of his gain time by the Department of Corrections thwarted his plea bargain. Gar-vin’s motion did not comport with the requirements of Florida Rule of Criminal Procedure 3.850. The trial court summarily denied the motion as successive and redundant. Our review suggests that Gar-vin’s prior post-conviction motions challenged the legality of the forfeiture of jail and .gain time, but did not seek withdrawal of his plea agreement.

Appellant may have stated a legally cognizable claim for enforcement of his plea agreement or withdrawal of his plea. See State v. Jackson, 842 So.2d 1040 (Fla. 3d DCA 2003); Williamson v. State, 841 So.2d 694 (Fla. 2d DCA 2003); Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002).

We therefore affirm the. trial court’s summary denial of this motion, but without prejudice to Garvin’s right to file a motion for post-conviction relief in the trial court on this claim which is verified and otherwise comports with the requirements of rule 3.850, and which demonstrates timeliness under that rule as well.

STEVENSON, TAYLOR and MAY, JJ„ concur.


text:
    John Phillip VROBEL, Petitioner, v. STATE of Florida, Respondent.
    No. 4D04-2828.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    John Phillip Vrobel, Moore Haven, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel L. Wiley, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

John Vrobel timely filed a notice of appeal from the denial of his Florida Rule of Criminal Procedure 3.800(c) motion to mitigate sentence. We treat the notice of appeal as if the proper remedy had been sought and exercise this court’s certiorari jurisdiction. Fla. R.App. P. 9.040(c); McCalla v. State, 814 So.2d 1209 (Fla. 4th DCA 2002).

Vrobel filed his motion within sixty days of the trial court’s receipt of this court’s mandate following affirmance of Vrobel’s conviction and sentence on direct appeal. Vrobel v. State, 873 So.2d 336 (Fla. 4th DCA 2004). The motion to mitigate sentence was timely. Fla. R.Crim. P. 3.800(c); Roauer v. State, 697 So.2d 1303, 1304 (Fla. 2d DCA 1997).

Accordingly, we quash the order denying the motion as untimely and remand the case to the circuit court for consideration of the motion.

FARMER, C.J., KLEIN and MAY, JJ., concur.


text:
    Ricci SCHMIDT, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-852.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals the denial of his rule 3.800(a) motion to correct an illegal sentence, arguing that his sentence is illegal because it exceeds the statutory maximum for a second degree felony and that he should be resentenced. We agree.

Defendant was convicted of DUI manslaughter for an offense in 1992. He was originally sentenced to eight years in prison followed by three years probation. After violating probation, he was sentenced in 1998 to eleven and a half years in prison, followed by two years probation. On September 26, 2003, he entered a plea admitting a violation of his probation. His probation was reinstated and extended four years from the original termination date.

Appellant’s total sentence of 11.5 years in prison followed by six years probation exceeds the statutory maximum for DUI manslaughter, a second degree felony. § 316.193(3)(c)3, Fla. Stat. (1992); § 775.082(3)(c), Fla. Stat. (1992).

The attached records and the state’s arguments do not refute this claim. The state suggests that his sentence is not illegal because the amount of time he actually served is within the statutory maximum. The state also argues that he is not entitled to credit for 11.5 years because he did not serve this entire sentence. Notwithstanding the amount of time he served in prison or the credit he received, the sentence imposed, which totals 17.5 years, exceeds the maximum allowed by law. See Gonzales v. State, 816 So.2d 720, 722 (Fla. 5th DCA 2002) (observing “after revocation of probation, the combination of sanctions (prison term and probation) cannot exceed the statutory maximum for the underlying offense”).

Accordingly, we reverse and remand for resentencing within the statutory maximum.

FARMER, C.J., GUNTHER and TAYLOR, JJ., concur.


text:
    Ganeshwar R. SUKHLALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2477.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Ganeshwar R. Sukhlall, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

We treat this appeal as an order denying relief sought under Florida Rule of Criminal Procedure 3.850(a)(1) and affirm. See Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003).

STONE, KLEIN and GROSS, JJ., concur.


author: FARMER, C.J.

text:
    S.B., Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2775.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.

      Andrew D. Stine, West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

A sixteen-year old child was indefinitely committed to level 8 detention after being found guilty as an accessory after the fact on three counts of robbery and one count of attempted murder. In the commitment order, dated May 30, 2003, the trial Judge required periodic reports of the child’s progress and specified that “[t]he Court must give written approval before the child is released from any institutional commitment ... and must be given reasonable notice of any intention to release.”

The Department of Juvenile Justice (DJJ) scheduled the child for release in June 2004 and gave the trial court appropriate notice. On June 10, 2004, the court held a hearing on the proposed discharge of the child. The court file indicated generally positive evaluations during the child’s detention. The court received testimony during the hearing from the child’s primary counselor after commitment, from a substance abuse counselor, and from the child herself.

The trial Judge interrogated the child, asking her about a statement the child was said to have made in the presence of a detention worker to the effect that she and her co-defendants should have killed the victims of the robbery. The child denied making the comment, and her attorney objected to any consideration of it as hearsay. The trial Judge considered the hearsay admissible — an admission against penal interest? — and expressed disbelief in the child’s denial. The child’s lawyer argued that the Court should not rely on the statement attributed to the child and should instead defer to the recommendation of DJJ.

In denying release from detention, the trial Judge explained:

“The program needs to address that. That’s a considerable concern to me, because that doesn’t show that anything has changed at all. These people were shot. Her boyfriend was the one that did the shooting. She made the statement that they should have just killed them. And she’s still in denial. I heard sworn testimony on it that she made that statement. And she is still at that same position. We need to address those issues before she can be released back into the community.”

The child now seeks a writ of habeas corpus for release from her detention. We deny the writ.

The child argues that the Judge erred in overruling the recommendation of DJJ. She acknowledges the absence of any case authority as to a committing Judge’s discretion to deny release in spite of a positive recommendation by DJJ. We take the time to write on the subject and provide such authority.

The child likens the Judge’s authority in regard to release from detention, before the maximum term has been served, to the Court’s initial authority in committing a juvenile offender to such detention. We think the analogy misplaced. We view the Court’s discretion in regard to release from detention already lawfully imposed to be at least as broad — perhaps even broader — than its discretion to impose such a commitment in the first place.

As we pointed out in C.T. v. State, 819 So.2d 869 (Fla. 4th DCA 2002), in imposing restrictive detention the trial Judge is free to disagree with DJJ’s recommendation, so long as the Judge does not simply ignore, it. When the Judge disagrees with a DJJ recommendation to impose a lesser form of punishment, the Judge must set forth the reasons for ordering a more restrictive level of detention. As Judge May explained for this court:

“They [trial judges] have the opportunity to witness the demeanor of the juveniles and families who appear before them, the interaction between the family members, and to discern the intricacies of the personalities involved. Trial judges have been given discretion to disagree with DJJ recommendations. When they do, they must set forth reasons supported by a preponderance of the evidence. And, when they follow those rules, we will give them deference.”

819 So.2d at 873.

In specifying a specific punishment for the offense, the sentencing Judge is constrained by legal norms. A Judge is not free to impose punishment more severe — or, as here, more restrictive — than those legal norms provide. But releasing a child from an indeterminate sentence of the kind lawfully imposed in this case does not involve similar constraints. A child committed indefinitely under section 985.231 may be detained until the child reaches the age of 21. In this instance, that meant that this child was committed for a period of slightly more than 4 years.

Release from this indefinite period of commitment before the child reaches the age of 21 is not a matter of statutory right, or even of constitutional norms. It is entirely up to the committing judge. While it is surely appropriate for a judge to make an early release dependent to some extent on the progress of the child and her adjustment during detention, nothing in any statute makes even that necessary. The statute merely says that “[t]he court that committed the child may thereafter accept or reject the request.” § 985.231(l)(d), Fla. Stat. (2003). No new reasons are required to deny a request for early release because the continued detention of the child until she reaches 21 was authorized and justified by the original reasons for the commitment in the first place.

In considering whether to grant an early release of a child from indefinite commitment, the Judge is being asked to grant something in the nature of an early grace, a form of mercy, a remission or reprieve. So long as the Judge’s reasons for denying such a reprieve are not invidious, and they are not invidious here, there is every reason for a reviewing court to defer entirely to the trial Judge’s decision.

We disagree with the child’s argument that the statutes required the trial Judge to set forth specific reasons for denying early release. Nothing in section 985.231(l)(d) requires for release what section 985.23(3)(c) requires for imposing indefinite detention in the first instance. Plainly there is no statute obligating the trial Judge to state why she does not concur in a DJJ recommendation. And even if a statute did contain such a provision, we would deem the trial Judge’s explanation here at the conclusion of the hearing more than adequate.

WRIT DENIED.

KLEIN and STEVENSON, JJ., concur.

      . See § 985.231(l)(d), Fla. Stat. (2003) (“Any commitment of a delinquent child to the Department of Juvenile Justice must be for an indeterminate period of time ... but the time may not exceed the maximum term of imprisonment that an adult may serve for the same offense. The duration of the child’s placement in a residential commitment program of any level shall be based on objective performance-based treatment planning. The child's treatment plan progress and adjustment-related issues shall be reported to the court each month. The child’s length of stay in a residential commitment program may be extended if the child fails to comply with or participate in treatment activities. The child’s length of stay in such program shall not be extended for purposes of sanction or punishment. ... The child’s treatment plan progress and adjustment-related issues must be communicated to the court at the time the department requests the court to consider releasing the child from the residential commitment program. Notwithstanding s. 743.07 and this subsection, and except as provided in ss. 985.201 and 985.31, a child may not be held under a commitment from a court pursuant to this section after becoming 21 years of age. The department shall give the court that committed the child to the department reasonable notice, in writing, of its desire to discharge the child from a commitment facility. The court that committed the child may thereafter accept or reject the request.”).


text:
    Charles E. McBRIDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3060.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.

      Charles E. McBride, Polk City, pro se.
    No appearance required for appellee.
   TAYLOR, J.

In 1992, a jury found Charles E. McBride guilty of burglary of a dwelling. Subsequently, the trial court imposed a thirty-year prison sentence under the habitual felony offender statute, section 775.084, Florida Statutes. McBride appeals the denial of his rule 3.800(a) motion to correct sentence, wherein he challenged the habitual offender sentence under the Supreme Court’s recent decision in Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). McBride contends that his sentence is illegal because the jury did not determine whether he had the requisite prior convictions for the enhanced sentence.

In Blakely, the Supreme Court revisited Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and extended its application to sentencing guidelines schemes which allow judges to depart upward based on certain facts and circumstances surrounding the criminal offense. In Apprendi, the Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime ... must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348.

We previously held that Apprendi does not apply to recidivism statutes and entitle a defendant to have a jury determine, beyond a reasonable doubt, the existence of predicate convictions necessary for imposing a habitual felony offender sentence. See Gordon v. State, 787 So.2d 892, 894 (Fla. 4th DCA 2001). In Gordon, we concluded that Apprendi did not overrule Eutsey v. State, 383 So.2d 219 (Fla.1980), wherein our state supreme court rejected “the notion that a defendant was entitled to have a jury determine, beyond a reasonable doubt, the existence of the predicates necessary for imposition of a habitual felony offender sentence.” Gordon, 787 So.2d at 894.

Recently, the Eleventh Circuit held that Blakely, like Apprendi, does not require a jury to find beyond a reasonable doubt that a defendant had prior convictions for a sentencing court to enhance a sentence. United States v. Marseille, 377 F.3d 1249, 1258 n. 14 (11th Cir.2004)(“We have reviewed Blakely and conclude that it is inapposite.... [Tjhough the district court found that Marseille had prior convictions, Blakely does not take such fact-finding out of the hands of the courts.”).

The Eleventh Circuit has also concluded that Blakely does not apply retroactively to cases on collateral review. In re Dean, 375 F.3d 1287, 1290 (11th Cir.2004)(“Regardless of whether Blakely established a ‘new rule of constitutional law1 ... the Supreme Court has not expressly declared Blakely to be retroactive to cases on collateral review.”). Without an express declaration by the Supreme Court, Blakely cannot be applied retroactively. See Tyler v. Cain, 533 U.S. 656, 663, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001)(explaining that “a new rule is not ‘made retroactive to cases on collateral review’ unless the Supreme Court holds it to be retroactive.”).

We likewise hold that Blakely does not entitle a defendant to have a jury determine whether he has the requisite predicate convictions for a habitual felony offender sentence. We further hold that Blakely does not apply retroactively to cases on collateral review. Accordingly, we affirm the trial court’s denial of the defendant’s motion to correct his sentence.

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


author: HAZOURI, J.

text:
    Michelle SEHNAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3185.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Richard W. Springer of Richard W. Springer, P.A., Palm Springs, for appellant.
    No appearance required for appellee.
   HAZOURI, J.

Michelle Sehnal appeals the summary denial of her Florida Rule of Criminal Procedure 3.850 motion to vacate a plea which she entered in 1995. The trial court denied the motion as untimely. We affirm.

In 1995, Sehnal entered a guilty plea to a charge of felony driving under the influence. As a condition of this plea, Sehnal accepted a permanent lifetime suspension of her driver’s license. At the time of the plea, Sehnal was advised that she could apply for a work permit license after five years.

Subsequent to the plea, the Florida Legislature enacted legislation effective July 1, 1998, which prevents persons with lifetime suspensions from applying for a work permit license. § 322.271, Fla. Stat. (Supp. 1998). In the instant case, had this change not occurred, the earliest date that Sehnal would have been allowed to apply for a work permit license would have been March 22, 2000. Sehnal never filed an application for a work permit license subsequent to March 22, 2000. Instead, on November 12, 2003, Sehnal filed the instant motion to vacate her plea, claiming the change in the law made her plea involuntary.

The trial court denied the motion stating it was untimely filed, citing as authority Peart v. State, 756 So.2d 42 (Fla.2000), for the proposition that any motion for post-conviction relief, based on a change in the law, had to be filed within the two-year window in which Sehnal could have or should have known that there had been a change in the law, which in this case began on March 22, 2000. Had she made an application for a work permit license between March 22, 2000 and March 22, 2002, she would have learned that a work permit license was not permissible and would have been able to challenge her plea as involuntary in a timely fashion pursuant to rule 3.850.

In Peart, the defendant sought to withdraw his guilty plea asserting it was involuntary because the trial court failed to advise him of the possibility he could be deported as a consequence of his plea as required by Florida Rule of Criminal Procedure 3.172(c)(8). The supreme court was called upon to decide, inter alia, “whether the two-year limitation in rule 3.850 applies to writs alleging a rule 3.172(c)(8) violation and, if so, at what point does the limitation begin to run.” Id. at 45.

The third district court had rejected the defendant’s argument that the request for relief pursuant to rule 3.850 was timely because it was brought when the defendant first learned of impending deportation proceedings. The district court concluded that the claim was not founded on newly discovered evidence and, therefore, did not fall under the rule 3.850(b)(1) exception to the two-year -time limitation.

The supreme court disagreed with this conclusion and determined that the time period for filing a rule 3.850 motion to vacate the plea was within two years of learning of the threat of deportation. Id. at 46. . The court stated:

[W]e hold that the limitation period runs from when the defendant has or should have knowledge of the threat of deportation based on the plea. As explained below, in order for a defendant to establish. a prima facie case for relief, the defendant must be threatened with deportation resulting from the plea. See infra pp. 47-48. Since the day the defendant gains (or should gain) knowledge of the threat of deportation is the first day the defendant can actually articulate a prima facie case, it stands to reason that the day the defendant learns of the threat should likewise start the running of the two-year limitation period.

Id,

Applied to the instant case, the two-year limitation period began to run on the day Sehnal gained or should have gained knowledge of the change in the law. As the trial court reasoned, that day was March 22, 2000, the earliest date Sehnal was allowed to apply for a work permit license. The two-year time limitation expired after March 22, 2002, thus making her 3.850 motion of November 13, 2003, untimely.

Sehnal relies on this court’s decision in Bilogan v. State, 802 So.2d 459 (Fla. 4th DCA 2001), for reversal of the trial court’s denial of the motion as untimely. Sehnal’s reliance is unwarranted because Bilogan is distinguishable. In Bilogan, this court reversed the summary denial of a similar motion, noting that Bilogan did not have the opportunity to apply for a work permit license prior to the change in the law. Therefore, the trial court’s denial of the motion as untimely was error.

In reversing the denial, this court stated: “The State acknowledges that denial of the motion as untimely was error because Bilogan could not have applied for his permit before the law changed. See, e.g., Bethune v. State, 774 So.2d 4 (Fla. 2d DCA 2000).” Although the factual sequence of when Bilogan could have or should have filed for his permit is not delineated in the opinion, the court does cite to Bethune. In Bethune, the Second District Court of Appeal noted that the defendant’s motion to withdraw his nolo contendere plea as involuntary for failure of his counsel to inform him of the potential sentencing-enhancing consequences of his plea was not untimely because he filed his motion within two years of the date he learned of the potential for the imposition of a habitual offender sentence. Id. at 5.

To conclude that Bilogan stands for the proposition that when there is a change in the law which would affect the voluntary nature of a plea, the running of the two-year limitation for filing a 3.850 motion begins only when a defendant files his or her motion would eviscerate the supreme court’s decision in Peart that the two-year time limitation begins to run on a rule 8.850 motion to challenge a plea as involuntary when a defendant gains or should gain knowledge of circumstances which would establish a prima facie case. We, therefore, hold that Sehnal’s failure to file her motion to withdraw her plea on or before March 22, 2002 results in her motion being untimely.

AFFIRMED.

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


text:
    Jeffrey E. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4274.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898, 901-02 (Fla.1979).

STONE, GROSS and TAYLOR, JJ„ concur.


text:
    J. M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3884.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm J.M.’s conviction for burglary. While J.M. claimed that she entered the dwelling to retrieve her own property, she admitted to her stealthy entry in the middle of the night. Section 810.07, Florida Statutes (2002), establishes that proof of stealthy entry is prima facie evidence of entering with intent to commit an offense. The statutory presumption is sufficient to create a prima facie case and avoid a judgment of acquittal. See Thomas v. State, 655 So.2d 163 (Fla. 4th DCA 1995) (finding defendant’s self-serving statements for reason for breaking into home in early hours of morning did not negate statutory presumption so as to preclude submission of case to jury to evaluate defendant’s explanation along with presumption).

Although appellant also challenges the admission of hearsay evidence, we conclude that the admission of the evidence, even if improper, was harmless.

Affirmed.

WARNER, SHAHOOD and GROSS, JJ., concur.