author: SAWAYA, J.

text:
    Ross William RUFF, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2193.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2003.

      James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Ross Ruff appeals the sentence imposed pursuant to a plea agreement, arguing that an error in the scoresheet caused a misunderstanding regarding the minimum sentence that could be imposed for the crimes he committed. For the reasons expressed herein, we remand this case to the trial court to correct the scoresheet, but affirm Ruffs sentence without prejudice to him to file an appropriate postconviction motion to address the voluntariness issue of his plea.

Specifically, Ruff contends that he accepted the State’s offer of 22 months in the Department of Corrections under the mistaken belief that this sentence was close to the minimum when in fact the low range under a correctly calculated scoresheet is 12.45 months in prison. During the pen-dency of this appeal, but before the appeal was perfected, Ruff filed a motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that his plea was involuntary, that the scoresheet should be corrected, and that he should be resentenced. The trial court denied the motion because the plea and sentence were not based on the criminal punishment code, but rather were the result of plea negotiations that culminated in the plea agreement. Parenthetically, we note that the record clearly reflects Ruff entered his plea in exchange for a specific term of years agreed to by Ruff and the State, not a guidelines sentence.

There are several legal impediments to Ruffs request for relief in the instant proceeding that make a reversal of his sentence problematic. Initially, we observe that Ruff filed a motion to correct his sentence rather than a motion to withdraw his plea. This fact is significant because a defendant who enters a plea of guilty or nolo contendré is required to file a motion to withdraw the plea in order to preserve a claim that the plea was involuntary or that the sentence imposed was in violation of the plea agreement. See Fla. R.App. P. 9.140(b)(2)(A); Fla. R.Crim. P. 3.170(i). Even if we consider Ruffs motion as a motion to withdraw his plea, it is untimely because it was filed more than thirty days after the rendition of his sentence. See Fla. R. Crim P. 3.170(l).

Moreover, assuming that it would be appropriate to address Ruffs claim on the merits, he would not be entitled to relief. The fact that his sentence was the result of a negotiated plea agreement poses an insurmountable obstacle for Ruff because the courts generally agree that in these instances, an erroneous scoresheet has no effect on the sentence. See Poole v. State, 777 So.2d 1186 (Fla. 5th DCA 2001) (holding that because the defendant’s sentence was imposed pursuant to a negotiated plea agreement and was not based on the guidelines, there was no basis for finding the preparation of the scoresheet had any impact on the sentence). In essence, scoresheet errors are considered harmless when a sentence is the result of a negotiated plea agreement. See Harris v. State, 810 So.2d 1093 (Fla. 5th DCA 2002); Hill v. State, 730 So.2d 322, 323 (Fla. 1st DCA 1999) (“Any error on a scoresheet is harmless where a defendant’s sentences are the result of his negotiated plea agreement.”) (citations omitted).

Hence, we conclude that in the instant proceeding, Ruff is not entitled to relief. Although we affirm Ruffs sentence, we do so without prejudice to Ruff to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising the issue of the voluntariness of his plea and seeking to withdraw from the plea should he conclude that to do so would be in his best interests. See Williams v. State, 825 So.2d 994, 996 (Fla. 4th DCA 2002) (“Our affirmance is without prejudice to appellant filing a motion for postconviction relief pursuant to rule 3.850 to seek withdrawal of his plea based upon its involuntary character due to the incorrect scoresheet. Although in his filings with this court he has stated that he does not wish to withdraw his plea, that is his only avenue of relief.”). Additionally, based on the State’s concession that Ruff is entitled to have his scoresheet corrected and in accordance with our prior decision in Poole, we remand this case to the trial court to recalculate and correct the score-sheet even though doing so will not affect Ruffs sentence.

AFFIRMED and REMANDED.

THOMPSON, C.J., and MONACO, J., concur.

      . We note that Ruff's sentence does not exceed the statutory maximum.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    JB INTERNATIONAL, INC., Appellant, v. MEGA FLIGHT, INC., et al., Appellee.
    No. 5D02-844.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2003.

      Ronald W. Sikes of Moran & Shams, P. A., Orlando, for Appellant.
    Martin A. Pedata, Deland, for Appellee.
   ORFINGER, J.

JB International, Inc. (JBI) instituted a replevin action against Mega Flight, Inc. and Ronald Rosenberg (collectively “Mega Flight”), seeking to obtain possession of an airplane and two engines. An order to show cause, subsequently amended, was issued by the court, Whereupon the parties filed extensive affidavits. Following a hearing on the amended order to show cause, the trial court issued the writ, finding that JBI was entitled to possession of the property pending final adjudication of the claims of the parties. As required by the writ, Mega Flight returned the property to JBI. Subsequently, the matter lay dormant for a year, and Mega Flight moved to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). After a hearing, the trial court dismissed the action and ordered JBI to return the property to Mega Flight. While JBI concedes that dismissal of the replevin action was proper, it contends that the court erred in ordering it to return the property to Mega Flight. We disagree and affirm.

The replevin statute provides two procedural^ and substantively distinct approaches to replevin actions: the “ordinary writ of replevin” and the “prejudgment writ of replevin.” In McMurrain v. Fason, 584 So.2d 1027, 1030-31 (Fla. 1st DCA 1991), the court explained the differences thusly:

[I]t is imperative to identify the essential differences between an ordinary re-plevin action to obtain possession of property upon final judgment and the remedy afforded by a prejudgment writ of replevin to obtain possession of property ex parte to be held for security purposes pending trial. Chapter 78, Florida Statutes (1989), is somewhat confusing because the sections dealing with both concepts are intermingled throughout the chapter. Nevertheless, a careful reading of these provisions demonstrates the following basic distinctions between the two concepts. The ordinary action for replevin provides for the recovery of personal property wrongfully detained by another, together with damages sustained by the wrongful taking or detention. § 78.01, Fla. Stat. (1989); see generally 12 Fla. Jur.2d Conversion and Replevin §§ 30-73 (1979). This action provides an avenue of relief for obtaining possession of the personal property after a trial on the merits and the entry of final judgment. Thus, all due process requirements affecting the right to notice and hearing of the plaintiffs claimed right to possession are satisfied by the notice and holding of a trial on the merits leading to the entry of judgment.
The prejudgment writ of replevin, on the other hand, is a summary procedure for the limited purpose of obtaining possession of property on an ex parte application to the court to secure it against “danger of destruction, concealment, waste, removal from the state, removal from the jurisdiction of the court, or transfer to an innocent purchaser during the pendency of the action.” § 78.068(2), Fla. Stat. (1989). The defendant’s right to an immediate hearing given by the statute is essential to satisfy the constitutional due process requirements that a person cannot be deprived of his property without reasonable notice and opportunity to put the plaintiff to proof of his claim of right to immediate possession. § 78.068(6), Fla. Stat. (1989). This is made abundantly clear by a quick review of the United States Supreme Court’s decisions in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), and Mitchell v. W.T. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974).

Here, JBI sought an ordinary writ of replevin pursuant to section 78.067(2), Florida Statutes (1998), which provides:

If the court finds that the defendant has not waived the right to be heard on the order to show cause in accordance with s. 78.075, the court shall at the hearing on the order to show cause consider the affidavits and other showings made by the parties appearing and make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties. This determination shall be based on a finding as to the probable validity of the underlying claim alleged against the defendant. If the court determines that the plaintiff is entitled to take possession of the claimed property, it shall issue an order directing the clerk of the court to issue a writ of replevin. However, the order shall be stayed pending final adjudication of the claims of the parties if the defendant files with the court a written undertaking executed by a surety approved by the court in an amount equal to the value of the property.

(emphasis added).

As the statute sets forth, the trial court’s initial determination regarding possession of the property based on a finding that the moving party’s claim has “probable validity” is preliminary to a final adjudication of the claims of the parties. Despite this clear language in the statute, JBI asks us to conclude that the issuance of the writ following the show cause hearing was a final determination of the rights of the parties. We decline to do so. While the trial court may have considered the merits of JBI’s claim insofar as necessary to a preliminary determination of whether or not the writ should have been granted, the trial court’s ruling has no bearing on the rights of the parties when the matter is tried on the merits, nor does it bind the court at the final hearing or preclude a subsequent final adjudication dissolving the writ and ordering the return of the property.

The trial court’s prejudgment ruling only determined the right of possession during the pendency of the litigation, nothing more. See, e.g., Kalman v. World Omni Financial Corp., 651 So.2d 1249, 1252 (Fla. 2d DCA 1995) (dissolution of prejudgment writ of replevin is not the final determination of ownership and has no effect other than to determine the right to possession of property pending the final adjudication on the merits); Weigh Less for Life, Inc. v. Barnett Bank of Orange Park, 399 So.2d 88, 89 (Fla. 1st DCA 1981) (same). Cf. Ladner v. Plaza Del Prado Condo. Ass’n, Inc., 423 So.2d 927 (Fla. 3d DCA 1982) (findings of fact and legal conclusions arrived at by the court in determining whether a party is entitled to a preliminary injunction are not binding at the trial on the merits).

A plaintiff has an obligation to pursue its case to final judgment. See Crump v. Branning, 74 Fla. 522, 77 So. 228 (1917). A dismissal for failure to prosecute is not an adjudication on the merits. Zukor v. Hill, 84 So.2d 554, 556 (Fla.1956). We conclude that a preliminary determination regarding the “probable validity” of the plaintiffs claim to the subject property is also not an adjudication on the merits. When an action is dismissed without a final adjudication on the merits, the parties are left as if the suit had never been filed. Epstein v. Ferst, 35 Fla. 498, 509, 17 So. 414, 415 (1895); 1 Fla. Jur.2d Actions § 220 (2003). Prior rulings in a dismissed case have no preclusive effect. See Winchester Homes, Inc. v. Osmose Wood Preserving, Inc., 37 F.3d 1053, 1058 (4th Cir. 1994); 24 Am Jur.2d Dismissal § 91 (2002). Here, the only way the trial court could restore the parties to their former positions was to order the property returned.

We find no merit in the other issues raised by JBI. Accordingly, we affirm the court’s order requiring the return of the property to Mega Flight.

AFFIRMED.

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

      . Documents in the record reflect that the appellant's actual name is JBI International, Inc. However, the case caption used in the trial court and the parties’ briefs refer to the appellant as JB International, Inc.

      . §§ 78.01-.21, Fla. Stat. (1998).

      . In many ways, the dissolution of the writ of replevin is similar in effect to the dissolution of a temporary injunction. When a temporary injunction is dissolved, the parties are restored to the same position in which they were prior to the granting of the injunction. See 43A CJS Injunctions § 278 (2002).

      . Florida courts have long held where there is a dismissal for lack of prosecution of a prejudgment writ of replevin action, the defendant is the prevailing party and is entitled to have the property returned. State ex rel. Heavelow v. Frederick, 121 Fla. 494, 163 So. 885 (1935); Eastman Kodak Co. v. Thomas Gordon & Assoc’s., Inc., 789 So.2d 360 (Fla. 3d DCA 2001). While those cases dealt with prejudgment writs, we find no good reason to reach a different conclusion simply because JBI sought an ordinary writ of replevin.


author: SHARP, W., J.

text:
    Calvin MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1378.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2003.
    Calvin Morgan, Clermont, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Morgan appeals from the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He was convicted of vehicular homicide in 1999 for an accident which occurred in 1997. His sentence of ten years was affirmed. Morgan v. State, 758 So.2d 690 (Fla. 5th DCA 2000). We affirm on three grounds raised here, but reverse and remand for further proceedings regarding the fourth.

The trial court held an evidentia-ry hearing on Morgan’s claim that his trial counsel was ineffective. Morgan sought but was not provided with counsel at that hearing. The issue was not complex and turned primarily on whether his counsel properly explained the elements of vehicular homicide to Morgan so that he could make an informed decision on whether to accept the state’s three year plea offer. The trial court found that Morgan had been correctly informed by his trial counsel that the state only had to prove reckless disregard for human life, as opposed to criminal intent. The record supports this finding, as well as the trial court’s decision not to appoint counsel for Morgan at the hearing. See Isaac v. State, 713 So.2d 1035, 1036 (Fla. 5th DCA 1998); Isley v. State, 565 So.2d 389 (Fla. 5th DCA 1990).

We find no merit to two other claims — that Morgan’s trial counsel conceded his guilt in her opening statement and that she failed to object or ask for lesser included offenses. The trial court failed to attach portions of the record to refute them. However, a portion of the trial transcript was attached to the record which included portions of the opening statement. It indicates no concession on the trial attorney’s part. The other claim appears too general and unspecific to apprise the trial court of prejudicial lapses on the part of trial counsel. So no record needed to be attached to its summary denial of these claims.

It does appear, however, that a fourth claim raised by Morgan may have merit. He alleges his sentence is illegal in that it exceeds the statutory maximum and must be corrected. An illegal sentence may be raised at any time. § 924.051(6)(c); Moore v. State, 768 So.2d 1140 (Fla. 1st DCA 2000). Section 782.071, Florida Statutes (1997), which applies to this case, lists vehicular homicide as a third degree and a second degree felony. The second degree charge requires that at the time of the accident, the defendant knew or should have known an accident occurred and that he or she failed to stop and give information or render aid. The record in this case does not indicate which subsection applied to Morgan’s conviction.

Morgan alleges that he got out of his truck immediately after the accident and attempted to render aid to the victim. If that is true, he would have been convicted of the third degree version of the crime. The penalty for a third degree felony in 1997 was imprisonment not to exceed five years — not ten.

The proper method for correcting an illegal sentence is by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(a). See Crotts v. State, 795 So.2d 1020 (Fla. 2d DCA 2001); Marciniak v. State, 754 So.2d 877 (Fla. 1st DCA 2000); DeSantis v. State, 400 So.2d 525 (Fla. 5th DCA 1981). On remand, the trial court may exercise its discretion to treat this motion, filed pursuant to rule 3.850, as one filed pursuant to rule 3.800 and grant appropriate relief. Or, if the record clearly refutes Morgan’s illegal-sentence claim, the court can attach such portions of the record which do so, subject to our further review.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

GRIFFIN and ORFINGER, JJ., concur.

      . However, if the claim has been raised on appeal, the law of the case doctrine prevails and the claim will not be cognizable under rule 3.800. Brown v. State, 813 So.2d 132 (Fla. 5th DCA 2002). In this case, our records show this issue was not raised earlier.

      . Section 782.071, Florida Statutes (1997), provides:
      "Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another. Vehicular homicide is:
      (1) A felony of the third degree, ...
      (2) A felony of the second degree ...
      (a) At the time of the accident, the person knew, or should have known, that the accident occurred;
      (b) The person failed to give information and render aid as required by s. 316.052.

      . The PSI in the record indicates Morgan was convicted of the third degree felony, that his total point score was 196, and that his guidelines sentence was between 111 and 185 months incarceration. The court should also attach Morgan’s sentencing scoresheet, since under the sentencing guidelines in effect in 1997, his sentence could exceed the statutory maximum sentence if his recommended guidelines sentence was greater than the statutory maximum sentence. Mays v. State, 717 So.2d 515 (Fla.1998). We decline the invitation to address any additional issues that might arise if the sentence exceeds the statutory maximum. See, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); United States v. Sanchez, 269 F.3d 1250 (11th Cir.2001)(Apprendi has no application in sentencing guidelines when sentence imposed does not exceed statutory maximum); Hughes v. State, 826 So.2d 1070 (Fla. 1st DCA 2002)(certified question as to whether Apprendi applies retroactively).


text:
    Daryl M. CARTER, etc., Appellant, v. LAKE COUNTY, etc., et al., Appellees.
    No. 5D02-2205.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2003.

      M. Bradley Luczak of Sobering, White & Luczak, P.A., Winter Park, for Appellant.
    Melanie N. Marsh, Lake County Attorney’s Office, Tavares, for Appellee Lake County.
    No Appearance for Appellees CSX and Robert McKee.
   SAWAYA, J.

Daryl Carter appeals the denial of his motion for attorney’s fees. The trial court denied the motion because, contrary to the requirement of Florida Rule of Civil Procedure 1.525, the motion was served on Lake County more than thirty days after Lake County served its notice of voluntary dismissal on Carter. Carter argues that the notice served on him was actually a notice of dropping a party under Florida Rule of Civil Procedure 1.250, which does not contain a thirty-day time limit for filing a motion for fees and, alternatively, that he established excusable neglect under Florida Rule of Civil Procedure 1.090(b) to allow his motion to be heard on the merits.

Although we conclude that the notice was a notice of voluntary dismissal under rule 1.420 and that Carter failed to comply with the time limits of rule 1.525 to serve his motion for fees, we reverse because the trial court failed to apply the correct standard to determine whether excusable neglect was established under rule 1.090(b). We will discuss the factual and procedural background of this case, our analysis that leads us to the conclusion that the notice was a notice of voluntary dismissal under rule 1.420, and the correct standard that should be applied when determining whether a party has established excusable neglect under rule 1.090(b).

Factual And Procedural Background

In order to resolve the issues before us, it is not necessary to give a detailed account of the facts of the underlying eminent domain action. Suffice it to say that Lake County filed a petition seeking to acquire certain property and named Carter, CSX Transportation (CSX), and others as respondents. Lake County subsequently filed an amended petition that named only CSX and the tax collector as parties. Lake County formalized its act of dropping Carter as a party by filing a Notice of Dropping Parties pursuant to rule 1.250(b). Carter then filed a motion to intervene, claiming ownership of section 25, which was included in the property described in the amended petition. We note that CSX did not claim any ownership interest in section 25. Shortly thereafter, Lake County and CSX entered into a joint stipulation whereby CSX agreed to an Order of Taking and entry of a final judgment that did not include section 25. CSX, in return, released Lake County from any and all claims. Carter’s motion to intervene was thereafter granted on March 12, 2001. A partial order of taking and final judgment that incorporated the stipulation was entered on May 4, 2001. On May 8, 2001, Lake County filed its Notice of Voluntary Dismissal pursuant to rule 1.420 dismissing Garter and discharging the lis pendens that had been filed against section 25.

On June 19, 2001, Carter filed his motion for attorney’s fees pursuant to section 73.901, Florida Statutes. In denying Carter’s motion for attorney’s fees, the trial court relied on rule 1.525, which provides that “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” Because Carter missed this deadline, we must analyze the notice served on Carter to determine whether it is a notice of voluntary dismissal or whether it is a notice of dropping a party under rule 1.250 as Carter contends.

The Notice Was A Notice Of Voluntary Dismissal Under Rule 1.420

We reject Carter’s argument that the notice is a notice of dropping a party under rule 1.250. An essential distinction between a notice of dropping a party and a voluntary dismissal is that the former con-eludes the action as to the dropped party while the latter is generally utilized to conclude the action in its entirety. We agree with Lake County that the notice served on Carter was a notice of dismissal under rule 1.420 because it effectively concluded the litigation. At the time Lake County served its notice of voluntary dismissal, the litigation consisted solely of section 25 in which no one other than Carter claimed an ownership interest. CSX had previously settled with Lake County, and an order of partial taking and a partial final judgment were entered encompassing all of the land subject to the litigation except section 25. The record also reveals that Lake County never took possession .of section 25 and did not pay any compensation to anyone for section 25. Moreover, Carter’s attorney stated on the record that “[w]hen the Notice was received by the Law Firm, it was treated, for the purposes of internal calendaring and tickling, as if it were a notice of voluntary dismissal under Rule 1.420 of the Florida Rules of Civil Procedure.... ”

Because we conclude that the notice was a notice of voluntary dismissal under rule 1.420, the time limits of rule 1.525 were triggered. Since Carter did not comply with the time limits of rule 1.525, we must next determine whether the trial court applied the correct standard to determine whether Carter established excusable neglect under rule 1.090(b).

The Proper Standard to Determine Excusable Neglect

Prior to January 1, 2001 — the effective date of rule 1.525 — the courts generally held that a party could file and serve a motion for fees and costs within a reasonable time after the date the final judgment was entered. See Ulico Cas. Co. v. Roger Kennedy Constr., Inc., 821 So.2d 452 (Fla. 1st DCA 2002). The purpose of rule 1.525 is to eliminate the reasonable time rule and establish a time requirement to serve motions for costs and attorney’s fees. Id. Carter seeks refuge from this time requirement in the provisions of rule 1.090(b), which provides in pertinent part:

When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect,. ...

Fla. R. Civ. P. 1.090(b) (emphasis added). Carter contends that the missed deadline was the result of excusable neglect based on a breakdown of the tickler and calendar systems in his office. Carter further contends that the trial court erred in failing to apply the liberal approach applied by the courts when determining whether excusable neglect exists under rule 1.540. Carter argues that excusable neglect should be given the same meaning regardless of where it appears in the rules.

At the outset of our discussion, we note that Lake County does not argue that the excusable neglect provisions of rule 1.090(b) do not apply to the time limits of rule 1.525. We can discern no valid reason, either in the provisions of the rules or the case law, that would support such an argument and perhaps Lake County could not either. Moreover, the pertinent part of rule 1.090(b) that states that it applies to acts required to be done “within a specified time ... by these rules ...” clearly indicates that it applies to all time limits in the Florida Rules of Civil Procedure, including the time limitations of rule 1.525, unless a particular rule states otherwise.

Hence, we turn our attention to the proper standard for determining whether excusable neglect has been shown under rule 1.090(b). We begin our analysis by noting that there is no precise definition of the term “excusable neglect” in the rules or the case law. Therefore, excusable neglect remains a general concept that must be applied on a case-by-case basis. We also note that most of the cases that deal with excusable neglect determinations do so in the context of rule 1.540(b). While these cases provide guidance as to how the term should be applied in a variety of factual situations, the question we must decide is whether we should apply the same standard utilized to determine excusable neglect under 1.540 to situations where a party seeks relief based on excusable neglect under rule 1.090(b).

We can find no sound reason for giving the term “excusable neglect” different interpretations depending on the particular rule of civil procedure that is being applied. We believe the better reasoned approach is to give the term the same meaning and consistently apply it wherever it appears in the rules of civil procedure unless a rule prescribes a particular definition of the term. This approach is not new or novel. Our research has revealed that Florida courts have consistently looked to and applied case law decided under rule 1.540 when deciding whether excusable neglect has been shown under the provisions of other rules. See, e.g., Oglesby-Dorminey v. Lucy Ho’s Rest., 815 So.2d 749 (Fla. 1st DCA 2002); Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614 (Fla. 4th DCA 2000); Spencer v. Barrow, 752 So.2d 135 (Fla. 2d DCA 2000); see also Kendall Country Estate, Inc. v. Pierson, 826 So.2d 1002 (Fla. 3d DCA 2001); Hernandez v. Page, 580 So.2d 793 (Fla. 3d DCA 1991).

We find support for our decision in the opinions rendered by the federal courts interpreting Federal Rules of Civil Procedure 6(b) and 60(b). We find these opinions persuasive because rule 1.090 is substantially the same as Federal Rule 6, and rule 1.540 is substantially the same as Federal Rule 60. The Florida courts have consistently held that “[fjederal case law which construes a federal rule after which a Florida rule is patterned may be considered in interpreting the Florida rule, as it must be assumed that in adopting a rule identical to a federal rule, our supreme court intended to achieve the same results that would obtain under the federal rule.” Sheradsky v. Basadre, 452 So.2d 599, 602-03 (Fla. 3d DCA 1984) (citations omitted), petition for review denied sub nom. Commercial Laundries, Inc. v. Basadre, 461 So.2d 113 (Fla.1985).

A leading federal case that discusses the application of the excusable neglect standard under Federal Rules of Civil Procedure 6(b) and 60(b) is Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), wherein the Court was confronted with the issue of whether an attorney’s inadvertent failure to file a proof of claim in a bankruptcy proceeding could constitute “excusable neglect” within the meaning of Federal Rule of Bankruptcy Procedure 9006(b)(1). The Court, noting that the term “excusable neglect” appears in Federal Rules of Civil Procedure Rules 6(b) and 60(b), analyzed how the term “excusable neglect” was interpreted by the courts when applying those rules and gave a similar liberal interpretation to the bankruptcy rule under consideration. Specifically, the Court held that the determination of whether the failure to abide by a specified time limit constitutes excusable neglect is in essence an equitable one which should take into account all of the relevant circumstances, including prejudice to the other party, the reason for the delay, the duration of the delay, and whether the movant acted in good faith. Id. at 395, 113 S.Ct. 1489. The Court concluded that excusable neglect “contemplate[s] that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control.” Id. at 388-89, 113 S.Ct. 1489.

The Pioneer standard for determining “excusable neglect” has been extended beyond the bankruptcy context by the federal courts that have applied it to other procedural rules when determining whether excusable neglect has been established. See Stutson v. United States, 516 U.S. 193, 116 S.Ct. 600, 133 L.Ed.2d 571 (1996); Graphic Communications Int’l Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1 (1st Cir.2001); Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501 (2d Cir.1994); United States v. Hooper, 9 F.3d 257 (2d Cir.1993); Clark v. Runyon, 165 F.Supp.2d 920 (D.Minn.2001); In re Cendant Corp. Prides Litig., 189 F.R.D. 321 (D.N.J.1999), aff'd, 233 F.3d 188 (3d Cir.2000); In re Crazy Eddie Sec. Litig., 906 F.Supp. 840 (E.D.N.Y.1995). Specifically, the federal courts have applied Pioneer to excusable neglect determinations under rule 6(b) and rule 60(b).

We conclude that the approach taken by the Supreme Court and adopted by subsequent federal courts supports our decision to interpret the excusable neglect provisions in the various rules of civil procedure similarly and consistently and to, therefore, utilize the same standard — the rule 1.540 standard — to make excusable neglect determinations, unless a specific rule provides otherwise. It is evident from the provisions of the trial court’s order under review that it eschewed the liberal standard applied by the courts in rule 1.540 eases by adopting a more stringent excusable neglect standard for rule 1.090(b). This was error.

Conclusion

The notice served by Lake County was a notice of voluntary dismissal that triggered the time limitations of rule 1.525 for filing motions for fees and costs. Carter clearly missed that deadline. However, the trial court applied the wrong standard in determining that Carter did not establish excusable neglect under rule 1.090. We therefore conclude that the appropriate remedy is for us to reverse the order denying Carter’s motion for fees and remand this case to allow the trial court the opportunity to apply the correct excusable neglect standard.

REVERSED and REMANDED.

SHARP, W. and ORFINGER, JJ„ concur.

      . This rule does not eliminate the pleading requirements established by the court in Stockman v. Downs, 573 So.2d 835 (Fla.1991), to entitle a party to attorney’s fees. See Amendments to Fla. Rules of Civil Procedure, 773 So.2d 1098, 1099 (Fla.2000).

      . Lake County presents an alternative argument that even if the notice was served pursuant to rule 1.250(b) as Carter contends, the rule provides that parties may be dropped in the manner provided for voluntary dismissal in rule 1.420(a)(1) and, therefore, all aspects of rule 1.420(a)(1) are triggered, including the time limit provided for filing a motion for fees under rule 1.525. Because we conclude that the notice was a notice of voluntary dismissal pursuant to rule 1.420, we will not address Lake County’s alternative argument. By our decision in the instant case, we in no way decide whether a notice of dropping a party under rule 1.250 subjects the recipient to the time limits of rule 1.525 for filing a motion for costs and fees. That decision must be left for another day, another case, and possibly another court.

      .The tax collector's claims were satisfied by CSX pursuant to the joint stipulation it entered into with Lake County. Therefore, at the time the notice of voluntary dismissal was served on Carter, the tax collector was no longer a party; Carter was the only remaining party to the litigation.

      . See Raymond v. International Bus. Machs. Corp., 148 F.3d 63 (2d Cir.1998); Committee for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 825 n. 4 (9th Cir.1996); 44 Liquormart, Inc. v. Rhode Island, 940 F.Supp. 437, 440 (D.R.I.1996); see also Pratt v. Philbrook, 109 F.3d 18, 19 n. 1 (1st Cir.1997).

      . Pratt.

      . We note parenthetically that although the term "excusable neglect" defies precise definition, patterns emanate from the case law applying rule 1.540 from which some very general principles emerge. Generally, the courts do not find excusable neglect in the attorney’s misunderstanding or ignorance of the law or rules of procedure. See Spencer. On the other hand, the courts are much more inclined to find excusable neglect when the error occurs due to a breakdown in the mechanical or operational practices or procedures of the attorney's office equipment or staff. See City of Pembroke Pines v. Zitnick, 792 So.2d 677 (Fla. 4th DCA 2001); Wood v. Fortune Ins. Co., 453 So.2d 451 (Fla. 4th DCA 1984); Florida Aviation Acad., Dewkat Aviation, Inc. v. Charter Air Ctr., Inc., 449 So.2d 350 (Fla. 1st DCA 1984); Crystal Lake Golf Course v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971). Perhaps these principles may be of some benefit to the trial court on remand.


author: THOMPSON, C.J.

text:
    H.S. MUSSELWHITE, Jr., Appellant/Cross Appellee, v. Brian L. CHARBONEAU & Kathleen E. Charboneau, Appellees/Cross-Appellant.
    Nos. 5D01-2032, 5D01-3023.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2003.

      James Edward Cheek, III, of Winder-weedle, Haines, Ward & Woodman, P.A., Orlando, for Appellant/Cross-Appellee.
    Richard A. Kupfer of Richard A. Kup-fer, P.A., West Palm Beach, for Appel-lees/Cross-Appellant.
   THOMPSON, C.J.

H.S. Musselwhite, - Jr. (“Musselwhite”) appeals the award of attorney’s fees and costs to Brian and Kathleen Charboneau (“the Charboneaus”). We affirm.

This ease arises from a lease purchase agreement between Musselwhite, the seller, and the Charboneaus, the buyers, for property consisting of approximately 3,000 acres of land. The only access to the property was á single dirt road running across railroad tracks owned by CSX Transportation, Inc. (“CSX”). The lease purchase agreement warranted that there was ingress and egress sufficient for the intended use of the land, but CSX issued a notice that a license agreement was required to cross CSX’s railroad tracks. Despite his efforts, Musselwhite was unable to negotiate an ingress agreement with CSX.

In July 1994, the Charboneaus filed suit against Musselwhite for, among other things, breach of contract and specific performance. We affirmed the trial court’s conclusions that Musselwhite had breached the contract, see Musselwhite v. Charboneau, 709 So.2d 199 (Fla. 5th DCA 1998), but that the Charboneaus were not entitled to specific performance, Charboneau v. Musselwhite, 758 So.2d 688 (Fla. 5th DCA 2000). After the second appeal, the Charboneaus moved below for attorney’s fees and costs contending that they were the prevailing party. In granting the motion, the trial court stated:

I’m satisfied based on the parties’ arguments that, in fact, the plaintiff [the Charboneaus] is the prevailing party here; that they are entitled to attorneys’ fees reasonably expended for the prosecution of the case; that proceeding under alternative theories of relief, one for equitable and one for legal remedies — or money damages, they were successful on one of those. And under those circumstances, they will be considered the prevailing party and be entitled to reasonable attorney’s fees for all time expended outside of the appellate process, because the appeals court has determined the fees on both appeals.

On appeal, Musselwhite contends that the trial court erred in deciding that the Charboneaus prevailed, and in failing to apportion the fees. “The fairest test to determine who is the prevailing party is to allow the trial judge to determine from the record which party has in fact prevailed on the significant issues tried before the court.” See Moritz v. Hoyt Enterprises, Inc., 604 So.2d 807 (Fla.1992). When reviewing the trial court’s determination on the entitlement of attorney’s fees, the standard of review is an abuse of discretion. Discovery Experimental Development, Inc. v. Department of Health, 824 So.2d 195 (Fla. 2d DCA 2002).

We find no abuse of discretion in the trial court’s determination that the Charboneaus prevailed. Although the Charboneaus were unsuccessful in obtaining the equitable relief they sought, they succeeded in proving that Musselwhite breached the contract and in obtaining alternative relief in the form of money damages. Compare, Green Companies, Inc. v. Kendall Racquetball Investment, Ltd., 658 So.2d 1119 (Fla. 3d DCA 1995) (reversing award of attorney’s fees to the defendant on the issue of damages where, although the jury did not award money damages, the jury found that the defendant had breached the contract, and where the plaintiff obtained equitable relief), disagreed with on other grounds, Merchants Bonding Co. v. City of Melbourne, 832 So.2d 184 (Fla. 5th DCA 2002). Mussel-white also contends that the law of the case established him as the prevailing party when we granted his motion for attorney’s fees on a prior appeal. We also affirm on this issue because the order granting the motion for fees established Musselwhite as the prevailing party only in that appeal.

Next, Musselwhite contends that the trial court erred in not apportioning the fees with respect to the breach of contract claim, on which the Charboneaus prevailed, and the specific performance claim upon which they did not prevail. We disagree. In Folta v. Bolton, 493 So.2d 440 (Fla.1986), the court held that a party may recover all attorney’s fees incurred even though the party prevails on fewer than all counts if the claims involve alternative and interrelated theories of liability for a single wrong. Id. at 443. In the instant case, the claims for specific performance and breach of contract were all interrelated theories of liability.

AFFIRMED.

SHARP, W. and SAWAYA, JJ, concur.


author: PALMER, J.

text:
    Edwin William TIMMER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-16.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2003.

      Edward S. Stafman of Edward S. Staf-man, P.A., Tallahassee, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. MeCravy, Assistant Attorney General, Daytona Beach, for Respondent.
   PALMER, J.

Edwin William Timmer petitions this court for a writ of certiorari contending that the trial court erred in refusing to conduct a hearing on his pending motion to reduce and modify his sentence. Concluding that Timmer is entitled to receive a hearing on his sentencing motion, we grant the petition.

Timmer pled guilty to fraud, deceit or misrepresentation in the operation of a cemetery and was sentenced a term of five years incarceration. On direct appeal, this court affirmed Timmer’s conviction and sentence, and the mandate was issued on September 6, 2002. See Timmer v. State, 824 So.2d 264 (Fla. 5th DCA 2002).

On September 30, 2002, Timmer filed a rule 3.800(c) motion to reduce and modify his sentence. However, he was unable to obtain a hearing date on his motion within 60 days of the filing date. Instead, Timmer received a hearing date of January 24, 2003. The prosecutor was notified of the hearing date on October 8, 2002. Two months later, on December 5, 2002, the trial court sua sponte entered an order denying Timmer’s 3.800 motion based on lack of jurisdiction holding that, although the motion had been timely filed, no action was taken on the motion within 60 days as required by the rule. This decision was error.

Florida Rule of Criminal procedure 3.800(c) provides, in relevant part:

Rule 3.800 Correction, Reduction, and Modification of Sentences
Reduction and modification. A court may reduce or modify ... a legal sentence imposed by it ... within 60 days after receipt by the court of a mandate issued by the appellate court

In Abreu v. State, 660 So.2d 703 (Fla.1995), our supreme court held that, within a reasonable time period, a trial court possesses jurisdiction to grant a petitioner’s motion for enlargement of time or to sum sponte enlarge the time for ruling on a timely filed 3.800 motion. No formal rule 3.050 motion for enlargement of time needs to be filed in order for a petitioner to be entitled to receive an enlargement of time, where the scheduling of the hearing beyond the 60-day period is beyond the petitioner’s control. See State v. Paulino, 696 So.2d 425 (Fla. 2d DCA 1997). Thus, the trial court departed from the essential requirements of the law in denying Tim-mer’s motion on jurisdictional grounds since the motion was timely filed and the failure to obtain a ruling on the motion within 60 days was the result of his inability to obtain a hearing with the court.

PETITION GRANTED.

SHARP, W. and PLEUS JJ., concur.

      . See Fla. R.Crim. P. 3.800.


author: PER CURIAM.

text:
    Jonel OCER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2003.
    Jonel Ocer, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION TO REVIEW

PER CURIAM.

Jonel Ocer appeals an order denying Ocer’s motion for a transcript of an eviden-tiary hearing at public expense. We reverse.

Ocer’s rule 3.850 postconviction motion was denied after an evidentiary hearing. Ocer then filed a notice of appeal, a motion for an order of insolvency, and a motion for a transcript of the evidentiary hearing at public expense. Although the trial court entered an order of insolvency, it denied the motion for a transcript. The denial was based on this court’s opinion in Ridge v. Adams, 643 So.2d 116 (Fla. 5th DCA 1994). In Ridge, the defendant’s request for a transcript of a preliminary hearing was made before any motion for postconviction relief was filed in the trial court.

Unlike the defendant in Ridge, Ocer is seeking a transcript of a postconviction evidentiary hearing, which will be filed as part of the record on appeal of the denial of his postconviction motion. Florida Rules of Appellate Procedure 9.141(b)(3)(A) & (B) require that transcription be ordered by the clerk of the lower tribunal in indigent appeals where a rule 3.850 motion is denied after an evidentiary hearing. Accordingly, Ocer is entitled to the transcript of the postconviction evidentiary hearing at public expense. See Colonel v. State, 723 So.2d 853 (Fla. 3d DCA 1998).

We remand for transcription of the evidentiary hearing and for supplementation of the record with the transcript, within thirty days from the date of this opinion.

REVERSED and REMANDED.

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

      . The appellant actually filed a "Motion to Enforce Duties of the Lower Court Clerk," which we treat as a motion to review the order denying transcription of appellant's evi-dentiary hearing.


text:
    George Edmund McALLISTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3747.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2003.
    George Edmund McAllister, Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

George Edmund McAllister (defendant) appeals the trial court’s order denying his rule 3.800(a) motion, in which he asserted he was entitled to receive additional jail time credit for the time he spent incarcerated prior to sentencing on his violation of probation. See Fla. R.Crim. P. 3.800(a). We affirm.

The trial court, in a form order, denied the defendant’s motion with a notation “previously denied.” However, the court order contains no attachments of any prior orders or other documents supporting the determination that the defendant’s motion was previously denied or otherwise refuting the defendant’s claim. The denial of a rule 3.800(a) motion as successive must include an attachment of the prior motion and order. See Lewis v. State, 730 So.2d 828 (Fla. 5th DCA 1999). On the other hand, the defendant’s motion is facially insufficient because it fails to allege that the record on its face demonstrates an entitlement to relief. See State v. Mancino, 714 So.2d 429 (Fla.1998); Toomajan v. State, 785 So.2d 1275 (Fla. 5th DCA 2001).

Accordingly, the trial court’s denial of the defendant’s rule 3.800(a) motion is affirmed, but without prejudice to the defendant filing a facially sufficient motion.

AFFIRMED.

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


author: MONACO, J.

text:
    Clyde JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-467.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2003.
    Clyde Johnson, South Bay, pro se.
    No appearance for Appellee.
   MONACO, J.

The appellant, Clyde Johnson, appeals the summary denial of the motion he filed before the trial court in accordance with Rule 3.800(a), Fla. R.Crim. P. We are unable to review the order of the trial court because the notice of appeal was not timely filed.

The trial court denied Mr. Johnson’s Rule 3.800(a) motion by an order rendered on December 10, 2002. Mr. Johnson filed a motion for rehearing on December 29, 2002, which was denied by the trial court on January 23, 2003. Mr. Johnson then filed his Notice of Appeal on February 2, 2003.

As we have pointed out in the past, a motion for rehearing directed to an order denying Rule 3.800(a) relief is not an authorized motion, and accordingly does not toll the time to appeal. See Mathis v. State, 720 So.2d 1116 (Fla. 5th DCA 1998); see also Mincey v. State, 789 So.2d 492 (Fla. 1st DCA 2001). Because the appellant failed to file his notice of appeal within thirty (30) days from the rendition of the order denying his motion for Rule 3.800(a) relief, this court does not have jurisdiction to consider his appeal.

DISMISSED.

PALMER and TORPY, JJ., concur.


author: SILBERMAN, Judge.

text:
    Akram Angel RADWAN, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 2D02-1521.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.
    Brian Gray of Brian Gray & Associates, P.A., Tampa, for Appellant.
    Bonita Kneeland Brown of Fowler White Boggs Banker P.A., Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Akram Angel Radwan appeals the order dismissing her complaint for failure to prosecute. We reverse and remand for further proceedings.

In July 1999 Radwan filed suit against Nationwide Mutual Fire Insurance Company and claimed uninsured/underinsured motorist insurance benefits. After various pleadings and discovery disputes, there was no record activity for over one year. Nationwide then filed its motion to dismiss for failure to prosecute pursuant to Florida Rule of Civil Procedure 1.420(e). Ten days prior to a scheduled hearing on the motion to dismiss, Radwan filed a verified response to the motion, outlining several grounds that she contended established good cause for the delay in prosecution.

At the hearing on the motion, the trial court indicated that the file did not reflect any record activity for a period in excess of one year prior to the filing of the motion to dismiss. In the order of dismissal, the trial court specifically noted that it was dismissing the complaint for failure to prosecute because Radwan had not filed a written showing of good cause at least five days before the hearing. It is evident that the trial court was not aware that Radwan had filed with the clerk of the court a verified response to the motion to dismiss ten days prior to the hearing.

Rule 1.420(e) provides that a party opposing a motion to dismiss for failure to prosecute may avoid dismissal if it “shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.” Because Radwan timely responded to the motion as contemplated by the rule, the trial court was required to make a determination of whether she had established good cause prior to dismissing her complaint. See Frohman v. Bar-Or, 660 So.2d 633, 636-37 (Fla.1995). Accordingly, we reverse and remand for the trial court to determine whether Radwan’s response established good cause sufficient to preclude dismissal of the complaint.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.


author: ALTENBERND, Chief Judge.

text:
    Melinda M. FARR, Appellant, v. James D. FARR, Appellee.
    No. 2D02-643.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.
    Thomas J. Trask of Frazer, Hubbard, Brandt & Trask, L.L.P., Dunedin, for Appellant.
    Charles D. Waller, Dade City, for Appel-lee.
   ALTENBERND, Chief Judge.

Melinda M. Farr appeals a final judgment dated January 10, 2002, dissolving her marriage to James D. Farr. We affirm all aspects of the final judgment except the provision that dismissed an injunction against domestic violence. At the time of the final hearing, Mr. Farr had not moved to dismiss the injunction, and neither party was on notice that the trial court would consider this issue. Accordingly, the final judgment did not accord due process for this issue.

Reluctantly, we must also strike an order resolving a motion for rehearing, which the trial court entered on April 11, 2002. Ms. Farr filed a timely motion for rehearing and then “in an abundance of caution” filed a notice of appeal on February 8, 2002. The motion for rehearing was abandoned by the filing of the notice of appeal. See Fla. R.App. P. 9.020(h)(3). Ms. Farr now complains that the trial court lacked jurisdiction to enter the order resolving her own abandoned motion for rehearing, even though many aspects of this order were to her benefit. For example, the trial court attempted to correct its own error concerning the dismissal of the domestic violence injunction. Nevertheless, we must strike the order because Ms. Farr is correct that the trial court lacked jurisdiction to enter it. See Rice v. Brown, 645 So.2d 1020, 1021 (Fla. 2d DCA 1994).

Affirmed in part, reversed in part, and remanded.

WHATLEY and SILBERMAN, JJ., Concur.


text:
    Wilma JACOB and Manuel Jacob, Appellants, v. Cal HENDERSON, Sheriff of Hillsborough County, Appellee.
    No. 2D01-5718.
    District Court of Appeal of Florida, Second District.
    March 28, 2003.

      Claude H. Tison, Jr., of The Swope Law Group, Tampa, for Appellants.
    Thea G. Clark and Christopher C. Sabel-la, Tampa, for Appellee.

      . Chief Judge Altenbernd has been substituted for Judge Blue, who was on the original panel.

   PER CURIAM.

Wilma Jacob and her husband Manuel Jacob appeal the trial court order that dismissed, with prejudice, their personal injury action against Cal Henderson, as sheriff of Hillsborough County. The trial court ruled that sworn deposition testimony of Mrs. Jacob, when compared to a surveillance video, constituted fraud on the court justifying dismissal with prejudice. We conclude dismissal with prejudice was too harsh a sanction and thus an abuse of discretion. Therefore, we reverse and remand for further proceedings.

Mrs. Jacob alleged that, while a pedestrian, she was struck in the arm by the side-view mirror of a patrol car driven by a Hillsborough County deputy sheriff. At trial, Mrs. Jacob presented evidence that she sustained a severely fractured right arm resulting in nerve damage, continuing partial loss of function, and pain in the arm and hand caused by Reflex Sympathetic Dystrophy. The jury evaluated Mrs. Jacob’s damages to be $285,000 and assessed fault at 53% to Mrs. Jacob and 47% to the Sheriff. For reasons not relevant in this appeal, both parties moved for a new trial which the trial court granted.

Before the new trial, the Sheriff arranged for surveillance videos to be made of Mrs. Jacob. After securing the surveillance videos, the Sheriff scheduled Mrs. Jacob’s deposition. At this deposition Mrs. Jacob was asked a number of questions about her ability to perform certain tasks that the Sheriff knew were performed on the videos. Mrs. Jacob denied being able to perform a number of the same tasks that were demonstrated on the videos. The trial court viewed the videotape and reviewed the deposition testimony and found the discrepancies constituted fraud on the court and ordered the case dismissed with prejudice. The trial court found most telling her denial of the ability to close a car door with her right hand and to sweep her driveway, which the videotape displayed her doing.

While we apply the abuse of discretion standard, Morgan v. Campbell, 816 So.2d 251, 258 (Fla. 2d DCA 2002), case law has narrowed a trial court’s discretion in cases involving dismissal for fraud, Young v. Curgil, 358 So.2d 58, 59 (Fla. 3d DCA 1978) (stating that trial court’s power to dismiss a case based on fraud “should be cautiously and sparingly exercised and only on the most blatant showing of fraud, pretense, collusion or other similar wrongdoing”); see also Tri Star Invs., Inc. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981) (same). A more stringent abuse of discretion standard is appropriate because dismissal is an extreme remedy. The test we are to apply is set out most succinctly by Chief Judge Griffin in Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998):

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994).

Viewing the facts before this court, Mrs. Jacob either knowingly perpetrated a fraud, exaggerated her injuries, or unknowingly provided video evidence that her injuries are far less severe than she may believe. Only the first of these three possibilities would support the dismissal of all claims with prejudice. See Baker v. Myers Tractor Servs., Inc., 765 So.2d 149 (Fla. 1st DCA 2000) (affirming dismissal because plaintiff knowingly, intentionally, and repeatedly concealed prior injuries to gain an unfair advantage in litigation). Trials result from factual disputes. In these disputes, the facts on one side are, at best, less true and, at worst, false or fraudulent. In nearly every intersection collision, there is only one person with the right of way. Is the fact that both drivers believe they had the right of way the result of fraud? If there are ten eyewitnesses to the collision and all agree driver A had the right of way, does that make driver B’s claim fraudulent and subject to dismissal?

In this case, there is no clear and convincing evidence that Mrs. Jacob “has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Cox, 706 So.2d at 46 (quoting Aoude, 892 F.2d at 1118). This is not a case in which Mrs. Jacob suffered no injury. The question is the severity of her injuries. Certainly the video evidence that she is capable of performing tasks which she has denied the ability to perform lessens her credibility and the damages to which she may be entitled, but the jury should evaluate this evidence. The power to resolve disputes over the truth or falsity of claims belongs to a jury.

The same facts for which this case was dismissed would not withstand a motion for summary judgment nor a motion for directed verdict, for there are questions of material fact. More importantly to our review, the trial court’s ruling in this case resulted from a review of the same deposition and videotape that we reviewed. Trial court rulings are given less deference when they are based on the same cold document record that is before the reviewing court. Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995).

In Francois v. Harris, 366 So.2d 851, 852 (Fla. 3d DCA 1979), Judge Schwartz eloquently stated the applicable principle of law: “In all but the most extreme cases, our system entrusts juries with the ultimate decisions as to whether claimed injuries are genuine or not. Our experience has demonstrated that juries deserve this trust and that they are well able to discern the truth and to render judgment accordingly.” Accordingly, we reverse the dismissal with prejudice and remand for further proceedings.

Reversed and remanded.

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


author: CASANUEVA, Judge.

text:
    Marian B. HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1316.
    District Court of Appeal of Florida, Second District.
    April 2, 2003.

      James Marion Moorman, Public Defender, and Alfonso M. Saldana, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Marian B. Henry appeals from a restitution order, contending the amount ordered was not proven. We agree to the extent that we are unable to determine the basis for the amount awarded and reverse.

Ms. Henry pleaded guilty to one count of exploitation of an elderly person, her father. She disputes the restitution amount of $239,899.93 ordered by the court following an evidentiary hearing. At the restitution hearing the State called no witnesses but instead relied only upon documentary evidence consisting of financial data, including credit card records, a spreadsheet summarizing financial transactions, and other documents. Ms. Henry testified that the amount she misappropriated was only $112,886.87.

Section 775.089(l)(a), Florida Statutes (2001), requires that restitution be ordered for damages or loss caused directly or indirectly by the defendant’s offense. It is the State’s burden of proof to establish the amount of loss the victim sustained. Here, the record shows that Ms. Henry utilized a power of attorney granted by her father to handle his financial affairs to perpetrate this offense. The State presented evidence showing a massive reduction of her father’s savings while Ms. Henry was exercising the power of attorney. Ms. Henry introduced some receipts for construction work on her father’s property that the trial court accepted as proof that several withdrawals she had made were properly expended for her father’s needs. Otherwise, the State’s documentary evidence showed primarily a cash flow into and out of her father’s accounts.

The trial court’s factual findings are not detailed enough for us to determine the basis for a finding of $239,899.93 worth of misappropriations. Because the documentary evidence does not establish that all individual expenditures were improper, we remand for further proceedings — either for the trial court to make sufficient findings or for the State to provide evidence substantiating the amount it seeks. See Glaubius v. State, 688 So.2d 913 (Fla.1997) (holding that evidence to establish a restitution order must be based on more than mere speculation). Even though the victim once possessed substantial sums and now does not, that fact alone does not establish that the difference was misappropriated.

The trial court concluded that Ms. Henry’s testimony lacked credibility. However, her testimony referred only to a small portion of the thousands of dollars expended. We remand so that the State may show the monies were wrongfully spent, not merely spent, or so that the trial court may provide more detailed factual findings as a basis to support the amount of restitution ordered.

Reversed and remanded with instructions.

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


author: GRIFFIN, J.

text:
    L.L.N., Mother of I.N. and S.N., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-109.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.
    James M. Sowell, Jr., Orlando, for Appellant.
    James A. Sawyer, Jr., Kissimmee, for Appellee.
   GRIFFIN, J.

This is the appeal of an order terminating a mother’s parental rights to two of her children. The appeal was not timely filed. The original order terminating the mother’s parental rights was entered on November 21, 2001. Although an amended order was entered on December 11, 2001, nunc pro tunc November 21, 2001, the trial court was without jurisdiction to amend the order because no motion for rehearing was filed within ten days of entry of the original order, as required by Florida Rule of Juvenile Procedure 8.265(b). Nor did the mother move for relief from judgment pursuant to Florida Rule of Juvenile Procedure 8.270. Because no motion was filed, the time for taking an appeal was not extended by entry of an amended order on December 11, 2001, nor was there any basis for tolling the time for taking of an appeal under Florida Rule of Appellate Procedure 9.020(h). Thus, the notice of appeal had to be filed by December 21, 2001. The mother’s counsel did not file a notice of appeal until January 8, 2002. See R.F. v. Department of Children and Families, 801 So.2d 291 (Fla. 1st DCA 2001) (dismissing appeal for lack of jurisdiction because notice not filed within 30 days of termination order); Salam v. Benmelech, 622 So.2d 592 (Fla. 3d DCA 1993)(distriet court of appeal lacked jurisdiction to review final judgment, as time of rendition was not postponed by untimely service of modification motion, which was in fact motion to alter or amend judgment beyond ten-day period provided under rules); see also In the Interest of E.H., 609 So.2d 1289 (Fla.1992)(setting forth procedure to obtain belated appeal in termination cases).

Because of the nature of the proceeding, however, and the mother’s clear entitlement to a belated appeal, we elect to treat the untimely notice as an application for belated appeal, which we grant.

After examining the record and the briefs, we find notice to the mother was adequate and the decision to terminate appellant’s parental rights is supported by the record.

AFFIRMED.

ORFINGER and TORPY, JJ., concur.


text:
    Travoris Lamar GEORGE, etc., Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-433.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.

      Travoris George, Indiantown, pro se.
    No Appearance for Respondent.
   MONACO, J.

Defendant Travoris Lamar George, who entered into a negotiated plea resulting in his incarceration in the DOC for the sixth time, petitions for a writ of habeas corpus. We deny the writ. When this court affirmed the summary denial of his third Rule 3.850 motion in 2000, we expressly warned George that further attacks upon his conviction would be improper and successive. George v. State, 764 So.2d 905 (Fla. 5th DCA 2000), cause dismissed, 837 So.2d 409 (Fla.2003). Undaunted, George again asserts the same evidentiary claim he has raised several times before.

Because his claim had been rejected on the merits both at the trial court level and in this court, we issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). We have received and find no merit to his response. As George has repeatedly abused the judicial system in this regard, he qualifies for this court’s “enough is enough” rule. We hold that George is precluded from filing any additional pro se appeals, pleadings, motions or petitions pertaining to his convictions and sentences for Case No. 98-252-CF, Seventh Judicial Circuit, in and for Putnam County, unless reviewed and signed by an attorney licensed to practice in the State of Florida. The clerk of this court is directed not to accept from George, as petitioner or appellant, any further pro se pleadings or filings relating to that case. See Jackson v. Florida Dep’t of Corr., 790 So.2d 398 (Fla.2001), cert. denied, 536 U.S. 908, 122 S.Ct. 2365, 153 L.Ed.2d 186 (2002); Vickson v. Singletary, 734 So.2d 376 (Fla.1999); Medberry v. State, 824 So.2d 1058 (Fla. 5th DCA 2002); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

PETITION FOR WRIT OF HABEAS CORPUS DENIED.

PALMER and ORFINGER, JJ., concur.


author: SHARP, W.

text:
    Roger SIMON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1859.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W.

In this Anders appeal, the public defender raised as a possible error the fact that Simon’s sentence for both grand theft and dealing in stolen property involving the same property was improper. The state agreed that the dual sentences cannot stand pursuant to section 812.025, Florida Statutes (2001). The statute provides:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts, (emphasis added).

In this case, Simon was charged with and convicted of grand theft of power tools, and dealing in stolen property (the power tools). He was also charged with and convicted of burglary of a conveyance and defrauding a pawn dealer. He was sentenced on all four charges and the sentences are within the statutory maximum.

In order to save judicial time and effort, we vacate the conviction and sentence for grand theft and affirm the balance of the judgment. See Mohansingh v. State, 824 So.2d 1053, 1054 (Fla. 5th DCA 2002). Simons need not be resentenced because he was sentenced to ten years as an habitual offender for dealing in stolen property, and to probation for two years consecutive to the prison sentence for the other crimes. Thus, our vacating the grand theft sentence of probation will not affect the other three sentences.

AFFIRMED in part; REVERSED in part.

THOMPSON, C.J., and PALMER, J., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    STATE of Florida, Appellant, v. Alex FOSTER, Appellee.
    No. 5D02-2476.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary C. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    Claude Ashton Van Hook, III, DeLand, for Appellee.
   PER CURIAM.

Based on State v. Davis, 838 So.2d 696 (Fla. 5th DCA 2003), the trial court’s order dismissing the information is reversed.

REVERSED and REMANDED.

GRIFFIN, PLEUS and TORPY, JJ., concur.


author: PER CURIAM. COBB, W., Senior Judge, PETERSON, J.,

text:
    Ellis PEETLUK, Appellant, v. Deborah HUFFSTETLER, Appellee.
    No. 5D01-3705.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.
    Homer A.C. Bliss, Jacksonville, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellant.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED.

PLEUS, J., concurs.

COBB, W., Senior Judge, concurs and concurs specially, with opinion.

PETERSON, J., dissents with opinion.

COBB, W., Senior Judge,

concurring specially.

I write only to respond to the issues raised by the dissent. First, this is not an imputed income case. The trial court surmised that the 30-month average income utilized represented real income on which it could base child support payments. Woodard v. Woodard, 634 So.2d 782 (Fla. 5th DCA 1994); Shudlick v. Shudlick, 618 So.2d 740 (Fla. 4th DCA 1993).

The fundamental point is that Ellis Peetluk has never raised any concerns or expressed complaints about the lack of deductions from his average gross income. It was not briefed or argued and, thus, is simply not a consideration in this appeal. See Carrasquillo v. Holiday Carpet Service, Inc., 615 So.2d 862 (Fla. 3d DCA 1993).

PETERSON, J.,

dissents.

I dissent because the trial court’s computation of Ellis Peetluk’s income necessary for the assessment of child support is difficult for me to understand or accept. The concurring opinion criticizes any discussion of this point because it was not raised on appeal. I must admit that I am puzzled by Peetluk’s failure to include in his brief the discussion that follows in this dissent. Nevertheless, due to the obvious errors in computation made by the trial court and in hopes of preventing future error, I believe some discussion is warranted.

Peetluk was primarily a criminal defense lawyer engaged as a sole practitioner in Atlanta, Georgia. He and his former wife moved there from Florida after terminating his association with a Florida firm around 1992. The net earnings from Peet-luk’s law practice averaged $40,000 before 1996 when his practice changed after representing a few personal injury plaintiffs that had been involved in a single tractor-trailer/automobile accident. The record includes copies of his income tax returns for 1998 through 2000 which indicate:

Calendar Year 1996 1997 1998 1999 2000

Gross Income from Law Practice $92,075 $19,409 $707,410 $140,182 $97,059

Net Income (loss) from Law Practice $40,328 ($ 6,280) $636,470 $ 14,903 ($27,310)

Other Income 43 8,077 15,623 $32,173

Federal Tax Paid O $235,740 $ 4,765 $ 3,217 $12,871 -e*

Income After Taxes $27,500 $13,129 $408,807 $ 25,761 $ 1,646

The return for 2001 was not available because the trial took place in January of that year.

Review of Peetluk’s earnings reveals that most of his financial success is owed to clients that were referred to him as a result of a tractor-trailer/automobile accident that occurred in Georgia. More specifically, in the first case, the Harper case settled after two days of trial and generated a $680,000 fee in 1998. The Walker case generated a fee of at least $30,000, but the fee has not yet been taken because a dispute is being litigated with the client over whether the costs were to be paid out of the gross proceeds. The Williams case generated $302,000 in fees and reimbursement for costs in the amount of $29,000. That fee is in dispute because the former attorneys representing the client sued Peetluk claiming that they were entitled to a portion of the fees. Although testimony indicated that the former attorneys’ claim was without merit, the ongoing cost of litigation continues to deplete the fee.

The trial court based the award of child support upon an income of $344,000 per year or $28,667 per month. Specifically, the trial court’s calculations were as follows:

While the wife’s income is now approximately $30,000.00 a year, the husband has/will receive attorney’s fees of $680,000.00 from the Harper case in 1998, $50,000.00 from the Walker case in 1999, and $302,000.00 from the Williams case in early 2001 for a total of, $1,032,000.00 in the last thirty (30) months. Therefore, the husband’s average gross income from the attorney’s fees from these three (3) cases is $28,667.00 per month or $344,004.00 per year.

The trial court then acknowledged that an income of $344,000 per year or $28,667 per month did not account for certain costs:

Nevertheless, the Husband is in litigation over fees obtained on those cases (Walker and Williams cases), has IRS delinquent tax exposure for 1996 ($30,-000), 1998 ($5,000) and 1999 ($3,000), all of which remain unpaid. There is also a medical lien on the Williams case proceeds in an unspecified amount. He still has student loans outstanding in the amount of $117,000 including principal and interest ...

Notwithstanding, the trial court still found:

The husband shall pay child support in the amount of $2,000.00 per month. The court calculates child support using the Husband’s average gross income of $344,000.00 per year.

Additionally, the trial court required Peet-luk to maintain a $250,000 life insurance policy for the wife and child, pay the wife $16,000 for her share of premature IRA distributions and pay the wife’s attorney’s fees of $29,657 within 30 days of the final judgment.

It is impossible to determine from the final judgment which months or years constituted the 30 months or three years used by the trial court to average the gross fees. The above quotation from the judgment indicates that the trial court used gross income for the years 1998 to and including early 2001 for its computation, a four year period, not a three year period. If the income available after taxes for the years 1998 through 2000 are combined with the court’s use of the gross proceeds of $302,000 from the Williams case, one cannot arrive at a $344,000 average net income per year. The computation using the following years results in a much lower average:

Of course, if one uses a five year period, the average income is even lower. The use of the three year period by the trial court to average gross fees earned in four different calendar or tax years was an incongruent act.

Averaging income for purposes of assessing alimony and child support has been employed in determining the awards. See, e.g., Greenberg v. Greenberg, 793 So.2d 52 (Fla. 4th DCA 2001); Woodard v. Woodard, 634 So.2d 782 (Fla. 5th DCA 1994); Shudlick v. Shudlick, 618 So.2d 740 (Fla. 4th DCA 1993); see also Deoca v. Deoca, 837 So.2d 1137 (Fla. 5th DCA 2003). In Greenberg and Woodard, the averaging method was used by the trial courts, but reversed on appeal because of unusual circumstances. In Woodard, the trial court had averaged income over a four year period. In reversing this court stated:

Past average income, unless -it reflects current reality, simply is meaningless in determining a present ability to pay. Past average income will not put bread on the table today ... If the court is going to impute income not apparent from the record, it must indicate the amount and source.

Woodard 634 So.2d at 783. In the instant case, the trial court’s finding ignored current reality by using gross fees in calculating income and imputed the difference between those gross fees and net income to Peetluk. This, of course, will not put bread on the table today.

Peetluk’s law practice generates income sporadically with periods of no income while expenses continue. When the practice does generate fees, it is important to determine when those fees are available and what portion is personally available to a lawyer after paying not only those costs associated with the case generating the fee but also the overhead costs of maintaining a law practice, such as licenses, research materials, secretarial help, office supplies and taxes. The trial judge in the instant case ignored all of these deductions when he focused only upon the gross amount of the fees instead of the fees remaining after payment of all the costs required to support a law practice. The trial court should have determined the amount that Peetluk could use personally not the gross amount that came into the law practice. Determination of the amount available for personal use was readily available from the income tax returns placed into evidence for a period of five years together with the testimony describing the nature of the practice and the history of the personal injury cases.

The trial court made reference to Peet-luk’s admission that he has a pending plaintiffs case in which he has made a 4.5 million dollar demand upon the defendants who are insured. Current reality should be used to evaluate that speculative source of income. Peetluk’s comment in his brief summarizes the reliance upon that source:

It hardly requires argument that a demand letter does not guarantee that a party will be successful in winning a determination of liability at trial, much less whether any damages are actually awarded or collected.

The pending plaintiffs case had not been set for trial when the trial of the instant case took place. Additionally, the pending case was the only one remaining in Peet-luk’s inventory of personal injury cases.

It should be made clear that the proceeds from Peetluk’s financial success as a result of being selected to represent plaintiffs from a single accident may not be available for the acquisition of many basic future comforts. He has a substantial debt burden to satisfy as recognized by the trial court including IRS delinquent taxes of $38,000; student loan balance of $117,000; wife’s share of an IRA distribution of $16,000; wife’s attorney’s fee of $29,657; the litigation expenses of the Williams and Walker cases; the expenses of litigating his remaining case; and finally, the $24,000 per year assessed against him for child support. He has no home or law office and rents living quarters in a home owned by a friend in Georgia and occupies a space in another lawyer’s office in Georgia. The marital home once owned in Georgia was sold when the parties had made a determination to move to Florida and the $305,000 marital home purchased in Florida was awarded to the wife who has a burden of an $89,000 mortgage. The trial court concluded that an equitable distribution of the assets would be the distribution of the home to the wife and Peet-luk’s law practice to him which I understand to be one personal injury case and $200,000 in the trust account.

The trial court erroneously concluded that the base income could be fairly calculated using only the gross fees earned over a 30-month period that included the unusually high gross fees from the personal injury cases to arrive at an average gross income of $344,000 per year. The former wife’s gross income of $30,000 per year was also erroneously considered in arriving at the former husband’s child support requirement of $2,000 per month. The use of only gross income which included the years of spiked gross income in the instant case rather than net income to determine the base income required by section 61.30, Florida Statutes (1991), was contrary to the dictates of that statute. Further, the support order makes no allowance for the operating costs of conducting the former husband’s law practice, for income taxes or any other allowable deductions prescribed by section 61.30(3). Deductions must also be made from the former wife’s gross income to arrive at her net income for the purpose of calculating child support.

In sum, the trial court erred by imputing annual income of $344,000 to the former husband because it does not realistically represent his annual income and it does not represent an amount that is available for the purpose of computing child support.

      . The parties filed separate income tax returns during the marriage.

      . This income was the proceeds of an early IRA distribution.

      . The court may have added a fee of $30,000 and cost recovery of $24,000 to arrive at this estimated $50,000 fee for the Walker case.

      . When income averaging was available to tax payers who had spiked income, even the internal revenue code allowed a period of five years as a divisor.


text:
    Nelson PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1862.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Perez appeals from the trial court’s denial of his motion to correct his sentences, pursuant to Florida Rule of Criminal Procedure 3.800(a). After two re-sentencing procedures, one based on Heggs v. State, 759 So.2d 620 (Fla.2000), and the other based on the 1994 guidelines range, • the trial court let stand concurrent fifteen year sentences for attempted second degree murder with a firearm, and armed robbery, followed by fifteen years probation, and fifteen years probation consecutive to the probation on the other counts for shooting into an occupied vehicle. Perez was also sentenced to a three year minimum mandatory term for use of a firearm on both the attempted murder and armed robbery counts. We find no error, although we remand for correction of the scoresheet.

The scoresheet used at sentencing indicated that the attempted murder count was scored as a Level 9 offense, with a sentencing range of 109.0 to 182.7 months incarceration. The state agrees this was error. Attempted second degree murder is a Level 8 offense. Saylor v. State, 816 So.2d 1254 (Fla. 5th DCA 2002); Galdamez v. State, 804 So.2d 619 (Fla. 3d DCA 2002). Nor is it subject to the one level increase for use of a firearm during the Heggs window period. See Salters v. State, 758 So.2d 667 (Fla.2000); Saylor.

However, scoring the attempted second degree murder as a Level 8 offense does not change the result in this case. The charge of armed robbery with a firearm becomes the primary offense because it is a Level 9 offense. Fla. R.Crim. P. 3.704(d)(7). Thus scoring the attempted murder count as a Level 8 offense deletes only 1.2 points from Perez’s score, making his total sentencing points 173. That results in a guidelines maximum range of 181.25 months or 15.1 years incarceration. The 15 year prison sentence Perez received is therefore legal.

AFFIRMED; REMANDED for Correction of Scoresheet.

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

      . § 782.04(1)(a)(1), Fla. Stat. (1995)

      . § 812.13(2)(a), Fla. Stat. (1995).

      . § 790.19, Fla. Stat. (1995).