text:
    Richard W. CLINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1733.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.
    Rehearing Denied Oct. 2, 2003.

      William G. Warner of Warner and Mallory, P.A., Panama City, for Appellant.
    Charlie Crist, Attorney General and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reject appellant’s contention that the trial court erred by finding that he violated condition 10(e) of his probation, a condition required by section 948.03(5)(a)5., Florida Statutes (1997). See Rowland v. State, 548 So.2d 812, 814 (Fla. 1st DCA 1989) (“The failure to object to a condition of probation constitutes acceptance of that condition.”). We also reject appellant’s contention that the trial court failed to make a specific finding that appellant’s violation was either willful or substantial. The required degree of culpability can be easily gleaned from the trial court’s findings describing the incident of violation. Moreover, the record contains ample evidence of appellant’s understanding of the condition of probation because of the cautionary words utilized by the original sentencing judge and, again at the time of his first violation, which involved the same class of forbidden contact as that involved in the present violation. Finally, we reject appellant’s contention that the trial court faded to require sufficient evidence for a revocation of probation. The trial court’s findings concerning the violation are reviewed by this court under an abuse of discretion standard. See, e.g., Tobias v. State, 828 So.2d 1066 (Fla. 4th DCA 2002).

AFFIRMED.

KAHN, WEBSTER and DAVIS, JJ., concur.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Dell LIEBREICH, Individually and as Personal Representative of the Estate of Lisa McPherson, Kennan Dandar and Thomas Dandar, Appellants, v. CHURCH OF SCIENTOLOGY FLAG SERVICE ORGANIZATION, INC., Appellee.
    No. 2D02-388.
    District Court of Appeal of Florida, Second District.
    Aug. 29, 2003.
    Rehearing Denied Oct. 7, 2003.

      Thomas John Dandar of Dandar and Dandar, P.A., Tampa, for Appellants.
    F. Wallace Pope, Jr. of Johnson, Blakely, Pope, Bokor, Ruppel & Burns, P.A., Clearwater, and Samuel D. Rosen of Paul, Hastings, Janofsky & Walker LLP, New York, New York, for Appellee.
   SILBERMAN, Judge.

Appellants Dell Liebreich, individually and as personal representative of the estate of Lisa McPherson, Kennan Dandar, and Thomas Dandar (the appellants) challenge a final judgment awarding attorney’s fees and expenses of $11,824.26 as a sanction to appellee Church of Scientology Flag Service Organization, Inc. (Flag). We reverse the final judgment and remand for further proceedings in accordance with the provisions of Florida Rule of Civil Procedure 1.380(a).

Flag filed suit against Liebreich for breach of contract and tortious interference with a contractual relationship. The Dandars represent Liebreich in this and other litigation involving the Church of Scientology. During Liebreich’s deposition, which took place in Texas, her counsel advised her not to answer questions on various grounds, including attorney-client privilege. Flag’s counsel adjourned the deposition and obtained a telephone conference before Judge Baird. Judge Baird declined to rule on specific questions without a motion to compel discovery, but he cautioned Liebreich’s counsel that any improper assertions of privilege would be sanctioned. The deposition resumed and counsel advised Liebreich to refrain from answering a number of further questions on attorney-client privilege and other grounds.

After the deposition, Flag filed a motion pursuant to Florida Rule of Civil Procedure 1.380(a), seeking an order compelling Liebreich to answer seventeen specific questions and seeking an award of the expenses incurred in bringing the motion. The trial court heard the motion and determined that five of the questions were protected by the attorney-client privilege and that Liebreich need not answer them. The trial court determined that the remaining twelve questions were not protected by any privilege and ordered Liebreich to answer those twelve questions. The trial court ordered sanctions, stating that Flag was entitled to recover its reasonable attorney’s fees and expenses in connection with the motion to compel and the Texas deposition. After a hearing to determine the reasonable amount of fees and expenses, the trial court entered a final judgment awarding Flag a total of $11,824.26 as a sanction against Liebreich and her counsel. This total included fees and expenses for obtaining the order compelling discovery and for a portion of the fees and costs incurred for the Texas deposition.

Rule 1.380(a)(4) provides for the award of expenses on a motion for order compelling discovery and states:

If the motion is granted and after opportunity for hearing, the court shall require the party or deponent whose conduct necessitated the motion or the party or counsel advising the conduct to pay to the moving party the reasonable expenses incurred in obtaining the order that may include attorney’s fees, unless the court finds that the opposition to the motion was justified or that other circumstances make an award of expenses unjust. If the motion is denied and after opportunity for hearing, the court shall require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion that may include attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons.

(Emphasis added). When a trial court grants a motion to compel discovery under rule 1.380(a), the rule “specifically limits the award of costs to those ‘reasonable expenses incurred in obtaining the order.’” Ford Motor Co. v. Garrison, 415 So.2d 843, 845 (Fla. 1st DCA 1982) (quoting rule 1.380(a)(4) and reversing an award of costs because they were not reasonably related to the plaintiff’s efforts to secure the order compelling discovery).

Here, the trial court awarded fees and costs incurred to obtain the order compelling discovery and in taking Leibreich’s deposition in Texas. Flag’s counsel acknowledged at oral argument, and our review of the record confirms, that Flag’s motion sought sanctions only under rule 1.380(a). In its written response opposing Flag’s motion to compel discovery and for sanctions, Liebreich pointed out that rule 1.380(a) did not support an award of fees and expenses in connection with the Texas deposition. Nevertheless, the trial court awarded a portion of the deposition fees and expenses as a sanction. Because the award was not authorized under rule 1.380(a), we must reverse the final judgment and remand for the trial court to determine sanctions based only on the reasonable expenses incurred in obtaining the order compelling discovery.

In addition, Liebreich argues that the trial court should have denied the request for sanctions, or at least apportioned the award, because the trial court found in Flag’s favor on twelve of the questions but found in Liebreich’s favor on five of the questions. Rule 1.380(a)(4) provides that if the court grants the motion in part and denies the motion in part, “the court may apportion the reasonable expenses incurred as a result of making the motion among the parties and persons.” The trial court made no findings concerning whether it considered apportioning the expenses, and it is unclear from our record whether the trial court considered apportionment. On remand, the trial court may award the reasonable expenses incurred in obtaining the order compelling discovery and should consider whether to apportion the expenses based on its ruling that Liebreich need not answer five of the seventeen questions. In all other respects, we affirm the trial court’s rulings.

Affirmed in part, reversed in part, and remanded.

SALCINES and NORTHCUTT, JJ., Concur.

      . We note that in appropriate circumstances additional sanctions may be awarded under Florida Rule of Civil Procedure 1.380(b), including an award of expenses and attorney's fees for failure to obey a discovery order. Sanctions under rule 1.380(b) were not requested in Flag's motion.


author: WOLF, C.J.

text:
    INTERNAL MEDICINE ASSOCIATES OF JACKSONVILLE, Gary A. Decker, M.D., P.A., a Florida Corporation, Petitioners, v. Chris B. RATHBURN, M.D., Gary A. Decker, M.D., George Comacho, M.D. and Joy R. Griffin, Respondents.
    No. 1D03-0666.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2003.
    Rehearing Denied Oct. 2, 2003.
    Richard Margulies and Benjamin D. Sharkey of Akerman, Senterfitt, Jacksonville; and Michael J. Dewberry, Charles R. Walker, Jr., of Hedrick, Dewberry, Regan & Durant, P.A., Jacksonville, for petitioners.
    John S. Mills and Rebecca Bowen Creed, of Mills & Carlin, Jacksonville, for respondents.
   WOLF, C.J.

We deny the petition for writ of certio-rari because the trial court’s orders granting Dr. Chris Rathburn’s motions to compel do not depart from the essential requirements of the law. See Transmark, USA, Inc. v. State, Department of Ins., 631 So.2d 1112 (Fla. 1st DCA 1994). We note that, while they are arguably unclear, our reading of the trial court’s orders allows petitioners to withhold for later in camera review all accountant-client and attorney-client privileged materials relating to the instant litigation.

LEWIS and POLSTON, JJ., Concur.


author: PER CURIAM.

text:
    Edwardo VALLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2358.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.
    Rehearing Denied Oct. 27, 2003.
    John H. Lipinski of the Law Office of J.H. Lipinski, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Edwardo Valle appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We reverse and remand for an evidentiary hearing.

First, we find that appellant has alleged the requisite “threat of deportation.” See Weir v. State, 823 So.2d 245 (Fla. 4th DCA 2002). Second, the record before this court does not refute appellant’s allegation that he was not advised of the potential deportation consequences of his plea to criminal charges in case no. 97-7630. Accordingly, we reverse the trial court’s order summarily denying relief and remand the case for an evidentiary hearing.

SHAHOOD, TAYLOR and HAZOURI, JJ., concur.


author: BOOTH, J.

text:
    STATE of Florida, Appellant, v. Amy R. HENDRIX, Appellee.
    No. 1D02-1986.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 3, 2003.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, Attorneys for Appellant.
    Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, Attorneys for Appellee.
   BOOTH, J.

The State appeals a non-final order granting Appellee’s motion to suppress evidence of methamphetamine found during a search of Appellee’s purse. The search was carried out by special agents with the Florida Department of Law Enforcement (FDLE) pursuant to a search warrant directed to a residence owned by a third party and based on the existence of probable cause to believe that the residence contained items involved in the distribution of methamphetamine as well as records, cash, scales and other paraphernalia.

A confidential informant reported seeing “two skinny white females” smoking methamphetamine inside the house and at least two handguns on the living room floor. When officers arrived at the scene to execute the warrant, they saw Appellee, carrying a purse, standing in the front yard of the residence. The officers announced themselves, secured the area by ordering everyone, including Appellee, inside the residence, and did a pat-down search of everyone for safety because the guns were still visible inside the house. Once inside the house, Appellee sat next to her purse. An officer did a pat-down of Appellee and searched her purse, finding methamphetamine.

The trial court granted Appellee’s motion to suppress, holding that Appellee had an expectation of privacy in her purse and that there was no evidence of any suspicion of criminal activity on Appellee’s part except for her presence on the property at the time of the search. At issue in this case is whether the trial court’s suppression of the methamphetamine was proper.

On appeal, a ruling on a motion to suppress is presumed correct. However, the appellate court must decide for itself whether the facts relied on by the trial court support its legal conclusions. State v. Wikso, 738 So.2d 390, 391 (Fla. 4th DCA 1999). Therefore, the appellate court reviews a trial court’s factual findings to determine whether they are supported by competent, substantial evidence; review of the trial court’s application of the law to the facts is de novo. Williams v. State, 721 So.2d 1192, 1193 (Fla. 1st DCA 1998).

In State v. Levasseur, 411 So.2d 295 (Fla. 1st DCA 1982), the defendant was a visitor to a house that was the subject of a search warrant for quaaludes. He asked permission to leave. The defendant picked up his windbreaker jacket off the bed, and the officer noticed a bulge in its pocket. The officer took the jacket from the defendant, fearing the defendant was carrying a weapon. Instead of finding a weapon, the officer found drug tablets, which he asked the defendant to remove. The officer recognized the tablets as quaaludes. This Court held that the jacket was an article in the residence subject to a search warrant for quaaludes, therefore, the tablets were validly seized pursuant to the warrant.

Similarly, in State v. Richards, 487 So.2d 98 (Fla. 4th DCA 1986), the State appealed an order granting a motion to suppress. The officers began searching the second floor and found a purse on a table, which belonged to a visitor on the premises. The officers searched the purse and found cocaine. The trial court found that the search of the purse exceeded the scope of the warrant. The appellate court disagreed because the defendant did not have the purse in her immediate possession, holding that the purse came within the scope of the warrant to search the premises. In both Richards and Levasseur, the contraband was found pursuant to a valid search warrant. Here, the officers had authority to detain Appellee based on the search warrant and based on her presence on the premises earlier and at the time of the search. See Zaner v. State, 444 So.2d 508 (Fla. 1st DCA 1984). The officer also had reasonable suspicion to detain Appellee and search her purse. Appellee matched the general description by the confidential informant of one of the women seen smoking the methamphetamine. In addition, although situated beside Appellee, Appellee’s purse was within easy reach of any of the other occupants of the residence after Appellee and the others had been directed inside the residence by the officers. Given the handguns visibly present in the house, the officers had reasonable suspicion that the purse might contain a weapon.

Accordingly, we hold the trial court erred in granting Appellee’s motion to suppress. We reverse and remand this case for further proceedings.

REVERSED and REMANDED.

VAN NORTWICK and HAWKES, JJ., Concur.

      . The validity of the search warrant in this case is not at issue. The trial court found Appellee had no standing to challenge the sufficiency of the warrant.


author: DAVIS, Judge.

text:
    Michael A. NEDD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5457.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 2, 2003.
   DAVIS, Judge.

Michael A. Nedd appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.800. Although we agree with Nedd that his sentence is illegal, we affirm the denial because this attack is not properly brought pursuant to rule 3.800.

Nedd was originally charged by information with trafficking in twenty-eight grams to thirty kilograms of heroin. He entered a negotiated plea to the reduced charge of trafficking in fourteen to twenty-eight grams, in return for a fifteen-year minimum mandatory sentence. When Nedd entered his plea, section 893.135(l)(c)(l)(b), Florida Statutes (2001), required the fifteen-year minimum mandatory term for this offense.

Nedd’s request for relief is based on this court’s decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), which declared chapter 99-188, Laws of Florida, unconstitutional. The fifteen-year minimum mandatory requirement had been added by an amendment to section 893.135 contained in chapter 99-188. Thus, Nedd argues that his sentence was illegal since the amendment was not valid on the date he committed his offense, December 21, 2000.

The trial court denied Nedd’s motion, finding that the legislature had subsequently reenacted the statutory provisions included in the amendments retroactive to the date of the original enactment. Citing Carlson v. State, 2002 WL 31202145, — So.2d - (Fla. 5th DCA 2002), the trial court concluded that Nedd’s sentence was legal.

Although we agree with Nedd that his sentence is illegal based on Taylor and Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), the trial court’s denial of the requested relief must be affirmed. Nedd’s sentence is the product of a negotiated plea. Both the State and Nedd bargained for the agreement. While Nedd has sought relief under rule 3.800 to obtain correction only of his sentence, he is actually challenging the terms of a plea agreement and, thus, the resulting convictions. Because a plea withdrawal is a potential consequence in this case, Nedd must seek relief under rule 3.850. In that proceeding, the State will have the option to either agree to a resentencing or withdraw from the plea agreement and proceed to trial on the original charges. Bruno v. State, 837 So.2d 521 (Fla. 1st DCA 2003).

Accordingly, we affirm the trial court’s denial of Nedd’s motion without prejudice to his right to file an appropriate motion under rule 3.850.

Affirmed.

FULMER and CANADY, JJ., Concur.

      . The negotiations also left open the possibility that the sentence might be reduced if Nedd provided "substantial assistance” in another case. That relief was not granted and is not involved in this appeal.


author: TOBIN, VICTOR, Associate Judge.

text:
    Riad BOULOS, Appellant, v. YUNG SHENG XIAMEN YONG CHEMICAL INDUSTRY CO., LTD., Supreme Oil and Chemical of Florida Inc., a dissolved corporation, d/b/a Supreme Oil and Chemicals, Inc., and Salim Boulos, Appellees.
    No. 4D02-4502.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.

      Charles D. Franken of Charles D. Franken, P.A., Plantation, for appellant.
    Gayle Halligan, Fort Lauderdale, for ap-pellee Yung Sheng Xiamen Yong Chemical Industry Co., Ltd.
   TOBIN, VICTOR, Associate Judge.

This appeal arises from a trial court’s denial of appellant’s motion to vacate a final judgment entered after default was entered. This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). We are presented with two issues. First, did the trial court abuse its discretion in failing to set aside the default judgment. Second, did the trial court err by awarding unliquidated damages without notice to the defendants. Because we find that the trial court abused its discretion in failing to set aside the default judgment and erred by awarding unliquidated damages without notice, we reverse the final judgment.

The facts in this case are not in dispute. On January 23, 2001 Yusin, Xiamn Yong-Yu Machinery Co. Ltd. (‘Yusin”) filed a complaint against Supreme Oil and Chemical of Florida (“Supreme”), as well as Riad Boulos (“Boulos”) individually, charging that Supreme and Boulos breached their agreement with Yusin to ship certain products to Yusin. Boulos was served with the complaint.

On April 18, 2001 Yusin filed a motion for default and a default was entered by the clerk on April 18, 2001. Copies of the motion and the entry of the default were mailed to Boulos.

In August, Yusin sought leave to amend the complaint without notice to the defendants. The trial court granted the motion and the complaint was amended to the extent that the name of the plaintiff was changed from ‘Yung Sheng Xiamen Yong Sheng Chemical Industry, Ltd.” to ‘Yusin, Xiamn Yong Yu Machinery Co. Ltd.” The amended complaint was never served on the defendants and Yusin never sought a default against the defendants on the amended complaint.

In October of 2001, Yusin sought the entry of a final judgment for damages resulting from Supreme’s failure to deliver goods, lost profits, interest, and lost business. Yusin did not provide notice of hearing for entry of a final judgment on either defendant, and on November 5, 2001, the trial court entered an order granting final judgment in favor of Yusin for all damages. With the exception of the damages for loss of business and attorney’s fees, the lower court’s order was unspecified as to the amounts awarded to Yusin. The order further provided that Yusin was to submit a memorandum in support of its unliquidated claims for damages with respect to which the lower court’s order did not set forth an amount to be awarded in the final judgment.

After Yusin submitted its memoranda, the trial court entered an order awarding damages for lost profits. On January 28, 2002 the court entered a final judgment against all defendants in the amount of $100,247.24. No copy of the final judgment was sent to Boulos.

Appellant asserts, and we agree, that the trial court reversibly erred by entering a final judgment for unliquidated damages without first providing notice and an opportunity to be heard on the issue of damages pursuant to Florida Rule of Civil Procedure 1.440(c). Florida Rule of Civil Procedure 1.440(c) provides in pertinent part that in “actions in which damages are not liquidated, the order setting an action for trial shall be served on the parties who are in default.”

In Williams v. Direct Dispensing, Inc., 630 So.2d 1195 (Fla. 3d DCA 1994), the third district reiterated that:

[although a default judgment can be entered to establish liability, a trial with proper notice is necessary to establish unliquidated damages.... When a claim involves unliquidated damages a defaulting party has a due process entitlement to notice and opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of those damages.

Id. at 1196 (internal quotations omit-ted)(quoting Buffington v. Torcise, 504 So.2d 490, 491 (Fla. 3d DCA 1987)); see also Calder v. McNess, 427 So.2d 393 (Fla. 4th DCA 1983).

In this case, at least a portion of the damages sought by and awarded to Yusin were unliquidated. Liquidated damages are those damages that are determinable with exactness from the cause of action as pleaded, by an arithmetical calculation or by application of definite rules of law. Pierce v. Anglin, 721 So.2d 781 (Fla. 1st DCA 1998). In the instant case, the trial court’s order which required Yusin to produce the memorandum addressing the damages for lost business could not be determined with exactness from the cause of action as pleaded, by an arithmetical calculation or by application of definite rules of law.

Appellant was not provided notice and an opportunity to be heard at the stage of the proceeding in which the unliq-uidated damages were determined by the trial court. Therefore, the trial court erred in denying appellant’s motion to set aside the default final judgment on the issue of unliquidated damages.

For the reasons stated above, the judgment and order of the district court is REVERSED AND REMANDED as to unliquidated damages.

GUNTHER and TAYLOR, JJ., concur.


author: PER CURIAM. RAMIREZ, J

text:
    Isabel GARCIA-ROQUE, Appellant, v. Ismael ROQUE-VELASCO, Appellee.
    No. 3D02-835.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.
    Norkin & Drucker, and Jeffrey Norkin, Miami, for appellant.
    Bluestein, Wayne and Weintraub, and Karen B. Weintraub, Miami, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

We affirm the order granting the former husband/appellee’s motion for judgment on the pleadings. Since the former wife/appellant was seeking to enforce an oral agreement made subsequent to the dissolution of the marriage, the family division trial judge properly found lack of subject matter jurisdiction. See Poling v. Tresidder, 373 So.2d 405 (Fla. 4th DCA 1979).

Where parties arrive at a subsequent agreement that was not a part of the trial court’s final dissolution order, enforcement of that agreement cannot be obtained simply by filing a motion, but rather must be sought in a separate breach of contract action. See Paulucci v. General Dyn., 842 So.2d 797 (Fla.2003); MCR Funding v. CMG Funding Corp., 771 So.2d 32 (Fla. 4th DCA 2000).

Contrary to the concurring opinion’s suggestion, there simply is no policy or legal basis to require a transfer under these circumstances. Moreover, since the former wife never raised the issue of transfer to the civil division below, but rather strenuously insisted the cause remain in the Family Division, it is clearly inappropriate for this Court to even consider this issue which is being raised for the first time on appeal. See Miller v. Miller, 709 So.2d 644 (Fla. 2d DCA 1998); Maryland Nat’l Ins. Co. v. State, 243 So.2d 183 (Fla. 3d DCA 1971); Beaty v. Beaty, 177 So.2d 54 (Fla. 2d DCA 1965).

Affirmed.

GERSTEN and GREEN, JJ., concur.

RAMIREZ, J

(concurring).

I concur in the result reached by the majority, but not in its reasoning.

The majority affirms an order granting the former husband/appellee’s motion for judgment on the pleadings. In so doing, it states as follows: “Since the former wife/appellant was seeking to enforce an oral agreement made subsequent to the dissolution of the marriage, the family division trial judge properly found lack of subject matter jurisdiction.” (emphasis added). The majority then cites Poling v. Tresidder, 373 So.2d 405 (Fla. 4th DCA 1979). The Poling case, however, held that, because the original final judgment of dissolution of marriage did not retain jurisdiction in the trial court, the trial court was without authority to entertain the “Petition for Enforcement.” Id. at 406. This is more than just a quibble about semantics because subject matter jurisdiction can be raised at any time, see Fla. R. Civ. P. 1.140(b), whereas the lack of authority may be waived if not raised in a timely manner. Fidelity Brokerage Servs., Inc. v. Cook, 572 So.2d 6 (Fla. 4th DCA 1991). A lack of precision in our terminology is only going to cause confusion in future cases.

I agree that the judge had no authority to maintain a suit that properly belonged in the general jurisdiction division instead of the family division. Had the former wife made this argument below, in my view the proper remedy would have been to transfer the case to that division, not dismiss the ease for lack of subject matter jurisdiction.

The parties entered into a Marital Settlement Agreement, which was approved and ratified by the Final Judgment for Dissolution of Marriage, on November 29, 1994. On July 12, 2000, Ms. Garcia filed her Petition for Enforcement of Marital Settlement Agreement in the Family Division of the 11th Judicial Circuit, with the same case number as the prior divorce case. Pursuant to Count I of the Wife’s Second Amended Petition for Enforcement, Ms. Garcia has alleged that subsequent to the execution of the Marital Settlement Agreement and entry of Final Judgment, the parties entered into an oral understanding regarding their rights and obligations under the Marital Settlement Agreement. She has requested that the court “enforce” the Marital Settlement Agreehient by ordering Mr. Roque to comply with the oral understanding, which he has allegedly failed to do.

Mr. Roque filed a Motion for Judgment on the Pleadings, alleging that the relief that Ms. Garcia requests is impermissible and that she has not presented any viable legal claims for the court to adjudicate. The trial court agreed with Mr. Roque and entered a judgment on the pleadings with respect to Count I of Ms. Garcia’s second amended petition. The court also dismissed the remaining counts because it lacked “subject matter jurisdiction.” This was error.

As the Fourth District recently explained in Partridge v. Partridge, 790 So.2d 1280, 1284 (Fla. 4th DCA 2001), “[s]ubject matter jurisdiction is ‘the power of the court to adjudicate the class of eases to which the particular case belongs.’ ” (quoting VL Orlando Bldg. Corp. v. AGD Hospitality Design & Purchasing, Inc., 762 So.2d 956, 957 (Fla. 4th DCA 2000)). It is undisputed that a circuit court has the power to adjudicate claims for constructive trust, fraud and accounting.

As in Partridge, Mr. Roque’s claim is not lack of subject matter jurisdiction, but rather divisional jurisdiction. See generally Williams v. State, 737 So.2d 1141, 1142 (Fla. 4th DCA 1999). In the Interest of Peterson, 364 So.2d 98, 99 (Fla. 4th DCA 1978), states that “[a]ll circuit court judges have the same jurisdiction within their respective circuits.... The internal operation of the court system and the assignment of judges to various divisions does not limit a particular judge’s jurisdiction.” See also Maugeri v. Plourde, 396 So.2d 1215, 1217 (Fla. 3d DCA 1981) (“We think it appropriate to comment that every judge of the circuit court possesses the full jurisdiction of that court in his of [sic] her circuit and that the various divisions of that court operate in multi-judge circuits for the convenience of the litigants and for the efficiency of the administration of the circuits’ judicial business.”).

The Florida Family Law Rules of Procedure do not place their divisional jurisdiction or subject matter jurisdiction exclusively with the judges that serve in the family division. Partridge, 790 So.2d at 1285. The proper remedy is to transfer the case to the correct division, once the party tenders the filing fee. Furthermore, by granting a motion to dismiss without specifying that it is without prejudice to refile in the proper division, the trial judge simply creates confusion and may prejudice the wife’s ability to proceed to the merits of the case.

In this case, however, the former wife failed to request a transfer to the civil division and thus cannot raise this issue for the first time on appeal. See Labrada v. Metropolitan Dade County, 715 So.2d 1126 (Fla. 3d DCA 1998).


text:
    Jeffrey RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-75.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2003.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See L.O. v. State, 718 So.2d 155 (Fla.1998).

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


text:
    Carmaine GIVENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-572.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2003.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Chaneil CRUMITY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1311.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2003.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Section 924.06(3), Florida Statutes (2002).

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


text:
    Dondre L. WADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1445.
    District Court of Appeal of Florida, Fifth District.
    Sept. 16, 2003.

      James B. Gibson, Public Defender, and Rosemarie Farrell, 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 State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Michael Jason NICKS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3620.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 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.
   PER CURIAM.

AFFIRMED. See Ray v. State, 755 So.2d 604 (Fla.2000); State v. Spioch, 706 So.2d 32 (Fla. 5th DCA), rev. denied, 718 So.2d 17 (Fla.1998).

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


text:
    Leroy C. HOSE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4008.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 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 Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Stephens v. State, 748 So.2d 1028 (Fla.1999).

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


text:
    Lillian YANEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1314.
    District Court of Appeal of Florida, Fifth District.
    Sept. 23, 2003.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Annette ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3462.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    Annette Allen, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm without prejudice to seek administrative relief on the issue of entitlement to gain time.

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


text:
    Vaughn D. SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4386.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2003.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

In this Anders appeal, Vaughn D. Sutton challenges the revocation of his probation and the resulting sentence for two counts of robbery with a firearm, delinquent in possession of a firearm, and carrying a concealed firearm. Pursuant to In re Anders Briefs, 581 So.2d 149 (Fla.1991), the public defender asserts that no meritorious issues exist except a minor sentencing error. After a thorough review of the record, we agree.

The trial court properly revoked Sutton’s probation on the basis of new law violations and imposed a legal sentence of 180 months in prison on counts one (robbery), two (delinquent in possession of a firearm), and four (robbery). On count three, the trial court sentenced Sutton to sixty months in prison. As defense counsel points out, the original sentencing court had never placed Sutton on probation for count three, carrying a concealed firearm, and he had already completed his original sixty-month sentence for that offense.

Therefore, we affirm the revocation of probation and sentence, except that we remand for the trial court to correct the judgment and sentence it entered on April 9, 2002, by deleting any reference to count three, carrying a concealed firearm.

FULMER and STRINGER, JJ., Concur.

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


text:
    Kenneth O. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2451.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    Kenneth O. Harris, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the trial court’s denial of Kenneth Harris’ rule 3.800(a) motion, but remand for correction of the scoresheet error which resulted from the consolidation of Harris’ 1994 and 1999 offenses on a single scoresheet. See Mortimer v. State, 770 So.2d 743, 744 (Fla. 4th DCA 2000); Ivy v. State, 754 So.2d 776 (Fla. 4th DCA 2000).

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


author: SALCINES, Judge.

text:
    Charles Leroy McCLENITHAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2794.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2003.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Charles Leroy McClenithan appeals his convictions for aggravated assault and armed trespass. McClenithan asserts that the twenty-year minimum mandatory term imposed by the trial court was improper and that the trial court erred when it denied his motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b). Of the five issues raised on appeal, two have merit. We affirm in part, reverse in part, and remand.

McClenithan was charged with four counts of attempted first-degree murder, one count of shooting into a building, one count of burglary with a firearm, and one count of possession of a firearm while a domestic violence injunction was in effect.

After a jury trial, McClenithan was found not guilty of three counts of attempted first-degree murder and found to be guilty of only one count of the allegedly lesser-included offense of aggravated assault. He was also convicted of shooting into a building, the lesser-included offense of trespass in a structure with a firearm, and possession of a firearm while a domestic violence injunction was in effect.

With regard to the attempted first-degree murder charges, the information alleged in pertinent part:

[O]n or about January 08, 2001, in the County of Hardee and State of Florida, [McClenithan] did unlawfully attempt to commit murder in the first degree in that from a premeditated design to effect the death of a human being and intending to kill a human being, did attempt to kill [each of four victims] and in furtherance of said attempt, did carry and discharge a firearm at or in the direction of [each of the four victims].

On appeal, McClenithan argues that the trial court erred when it instructed the jury that the offense of aggravated assault was a lesser-included offense of attempted first-degree murder. He asserts that his conviction for aggravated assault cannot stand because he has been convicted of a charge not made in the information. We agree.

This court directly addressed this issue in Velasquez v. State, 654 So.2d 1227, 1228 (Fla. 2d DCA 1995). In the present case, as in Velasquez, the information only charged the elements of the crime of attempted first-degree murder. The offense of aggravated assault includes the required element that the victim had a well-founded fear of imminent violence. § 784.021, Fla. Stat. (2001); Gaston v. State, 682 So.2d 581, 581 (Fla. 2d DCA 1996). This element was not included in the information in the present case because attempted first-degree murder does not require the fear element. A conviction on a charge not made in the information is a denial of due process. Velasquez, 654 So.2d at 1228. McClenithan’s conviction for aggravated assault must be reversed. On remand the State may prosecute McClenithan for the offense of aggravated assault or any lesser offense, but he may not be retried for attempted first-degree murder. See Gaston, 682 So.2d at 581.

McClenithan also argues that the twenty-year minimum mandatory sentence imposed for the aggravated assault pursuant to section 775.087(2)(a)(2), Florida Statutes (2001) (the 10/20/Life statute), was erroneous. He asserts that the jury did not make the specific finding that a firearm was discharged during the course of the aggravated assault as required to impose the mandatory sentence. We agree that there must be a clear jury finding that a firearm was discharged during the aggravated assault in order to justify the twenty-year enhancement under the 10/20/Life statute. See Muldrow v. State, 842 So.2d 240, 242 (Fla. 2d DCA 2003). This clear finding was not made in the present case. Although the sentence has been reversed with the conviction for this offense, we address this issue to caution the trial court against such an error in the future.

We affirm without further comment McClenithan’s convictions and sentences for trespass in a structure with a firearm, shooting into a building, and possession of a firearm while a domestic violence injunction was in effect. We note that the trial court properly denied McClenithan’s motion to correct sentence pursuant to rule 8.800(b).

Affirmed in part, reversed in part, and remanded.

DAVIS and VILLANTI, JJ., Concur.

      . § 782.04(l)(a), Fla. Stat. (2000); § 777.04(1), Fla. Stat. (2001).


text:
    Spaulding HUNTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4802.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2003.
    Elliott C. Metcalfe, Jr., Public Defender, and Doris A. Kail, Assistant Public Defender, Bradenton, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Spaulding Hunter, Jr. appeals from an order holding him in indirect criminal contempt of court and sentencing him to ninety days in jail based on the trial court’s determination that Hunter violated the terms of a domestic violence injunction. We reverse the adjudication of contempt because the State’s evidence fell short of proving an intentional violation of the injunction.

The injunction provides in pertinent part:

Within 10 days of the date of this injunction, Respondent shall enroll in and thereafter without delay complete ... within 30 days of the date of this injunction ... [a] certified batterers’ intervention program from a list of programs to be provided by the Court or any entity designated by the Court. Respondent shall also successfully complete any substance abuse or mental health evaluation that the assessing program counselor deems necessary as a predicate to completion of the batterers’ intervention program.

The order to show cause charged that Hunter violated the injunction by being terminated from the batterers! intervention program. The evidence at trial showed that Hunter enrolled in the requisite program and attended eight classes. He was terminated when the director of his program, Mr. McMillan, called the police to have Hunter removed from the class due to Hunter’s failure to pay the program fee or to provide proof of community service hours.

The sole witness for the State, Ms. McMillan, another program director, testified that the program allows participants with an inability to pay to complete community service hours in lieu of paying the fee. Hunter had been qualified to do community service hours because he met a certain level of indigency, but he did not complete the hours.

Hunter testified that after the injunction was entered he was sent to prison on an unrelated case for violation of probation and due to his incarceration he lost his Social Security disability benefits. He was presently trying to get the disability payments restored. He testified that he did not have the money to pay the program fees. He attempted to do the community service work at the Palmetto Fairground, but he was unable to because he was sick, suffering from asthma. When he explained his disability to the people at the fairground, they told him they did not want him working there. He did not try to do the hours anywhere else. Hunter left the batterers’ intervention class because he was given a trespass warning and told to stay off the property by the officer who responded to the director’s call. Hunter asserted that he did not have a problem with attending the class but he did not have money to pay for it and he was too sick to work.

The burden of proof in indirect criminal contempt proceedings is beyond a reasonable doubt. Hoffman v. State, 842 So.2d 895, 896 (Fla. 2d DCA 2003). In probation revocation cases, where the burden of proof is a preponderance of the evidence, this court has found that evidence of the type presented in this case fell short of establishing a willful and substantial violation. See Lynom v. State, 816 So.2d 1218 (Fla. 2d DCA 2002) (finding insufficient evidence of a willful and substantial violation for failing to complete sex offender treatment program where defendant testified that he did not have the money to pay for the program); Garcia v. State, 701 So.2d 607, 608 (Fla. 2d DCA 1997) (reversing revocation based on failure to comply with probation officer’s instructions to attend scheduled appointments for psychological evaluation where probationer missed appointments due to lack of transportation and was refused evaluation because he could not pay required fee); see also Jones v. State, 611 So.2d 26 (Fla. 1st DCA 1992) (reversing revocation based on failure to obtain mental health evaluation where order lacked specificity and defendant did not obtain evaluation because he could not afford to pay fee); Meade v. State, 799 So.2d 430 (Fla. 1st DCA 2001) (refusing to pay for polygraph testing, required by treatment counselor, could not support revocation of probation).

Hunter demonstrated a willingness to attend the required classes, and his indigency and disability status were undisputed. We, therefore, reverse based upon the State’s failure to prove an intentional violation of the court order and remand for discharge. Our disposition makes it unnecessary for us to reach the second issue raised on appeal concerning Hunter’s objection to hearsay testimony.

Reversed and remanded.

FULMER, SALCINES, and VILLANTI, JJ., concur.


text:
    COBBLE STONE ELECTRIC, INC., a Florida corporation, Ranger Insurance Company, a Delaware corporation, and Amwest Surety Insurance Company, a California corporation, Appellants, v. The CITY OF PLANT CITY, Appellee.
    No. 2D02-4996.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2003.
    Thomas S. Hogan, Jr. of The Hogan Law Firm, Brooksville, for Appellants.
    David H. Galloway of David H. Galloway, P.A., Plant City, for Appellee.
   PER CURIAM.

Affirmed.

WHATLEY, STRINGER, and SILBERMAN, JJ., concur.


text:
    In the Interest of T.S., a child. C.D., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-2196.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 2003.

      Christopher Desrochers of Christopher A. Desrochers, P.A., Winter Haven, for Appellant.
    Douglas Sherman of Department of Children and Family Services, Bartow, for Appellee.
   DAVIS, Judge.

C.D., the natural mother of T.S., challenges the trial court’s order terminating her parental rights to her son. C.D. argues that the Department of Children and Family Services (DCF) failed to prove that the prior terminations were involuntary as required by the statute. We agree and reverse the final judgment. See C.C. v. Dep’t of Children & Family Servs., 854 So.2d 720, 2003 WL 21973599 (Fla. 2d DCA Aug.20, 2003).

The trial court here based the termination of C.D.’s parental rights on section 39.806(l)(i), Florida Statutes (2001), which allows termination “[w]hen the parental rights of the parent to a sibling have been terminated involuntarily.” In C.C., this court held that when the previous termination was the result of the parent’s failure to appear at the adjudicatory hearing, as was the case here, it cannot be said that the parent’s rights were terminated involuntarily. 854 So.2d at 721-22 (citing § 39.801(3)(a)). Accordingly, we must reverse the termination of C.D.’s rights to T.S. and remand for further proceedings consistent with this opinion.

However, we also note that during the pendency of this appeal, the Fourth District found section 39.806(l)(i) to be unconstitutional. See F.L. v. Dep’t of Children & Families, 849 So.2d 1114 (Fla. 4th DCA 2003). In doing so, the court certified conflict with A.B. v. Department of Children & Families, 816 So.2d 684 (Fla. 5th DCA 2002), which found the provision to be constitutionally valid. The Fourth and Fifth Districts differed on whether the statute unconstitutionally shifts the burden of proving a parent’s fitness, or lack thereof, from DCF to the parent by allowing prior terminations to evidence unfitness to parent the subject child.

We agree with the conclusion expressed in AB. that the statute is constitutional. We find the reasoning in A.B. to be consistent with our prior holding in In re W.D.N., 443 So.2d 493 (Fla. 2d DCA 1984), and with the Florida Supreme Court’s reasoning in Padgett v. Department of Health & Rehabilitative Services, 577 So.2d 565 (Fla.1991). Accordingly we certify conflict with F.L., 849 So.2d 1114.

Reversed and remanded; conflict certified.

FULMER and VILLANTI, JJ., Concur.


text:
    Winston Monroe PITTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2321.
    District Court of Appeal of Florida, First District.
    Sept. 26, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his amended rule 3.850 motion for postconviction relief asserting six grounds for relief. We affirm the trial court’s summary denial of relief on four of those grounds without discussion. However, we reverse with respect to the appellant’s third and fourth stated claims that counsel rendered ineffective assistance in failing to inform him of the elements of the charged crimes and remand with directions for the trial court to either hold an evidentiary hearing or to attach portions of the record conclusively refuting the appellant’s entitlement to relief. See Webster v. State, 744 So.2d 1033 (Fla. 1st DCA 1999); Marshall v. State, 540 So.2d 921, 922 (Fla. 1st DCA 1989).

We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002) as to Appellant’s constitutional challenge that Chap. 99-188, Laws of Florida violates the constitutional single subject rule.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

BARFIELD, WEBSTER and BROWNING, JJ. Concur.


text:
    Leander J. COBLENTZ, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3883.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2003.

      Leander J. Coblentz, Jr., pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Leander J. Coblentz appeals the trial court order which summarily denied his motion for relief from judgment filed pursuant to Florida Rule of Civil Procedure 1.540(b). We reverse the trial court’s order and remand for further consideration of the motion.

In July 1999, Mr. Coblentz entered a plea of nolo contendere to two counts of handling and fondling and one count of indecent exposure. He was sentenced to prison followed by community control and probation. He was declared to be a sexual predator pursuant to section 775.21(4)(c), Florida Statutes (1997).

Mr. Coblentz filed a motion to correct illegal sentence seeking to challenge the sexual predator designation. The trial court denied relief. In Coblentz v. State, 775 So.2d 859, 360 (Fla. 2d DCA 2000), the trial court’s decision was affirmed and Mr. Coblentz was encouraged to file a “civil proceeding in hopes both that the merits of his case can be tested and that the trial court can be given an opportunity to devise a workable mechanism to resolve such claims.” Id. at 360.

Mr. Coblentz followed this court’s advice and filed a motion for relief from judgment pursuant to rule 1.540(b). The trial court denied the motion and noted that Mr. Cob-lentz had filed two previous motions to correct illegal sentence, the denials of which had been affirmed on appeal. See Coblentz, 775 So.2d 359; Coblentz v. State, 785 So.2d 480 (Fla. 2d DCA 2001). The motion was denied without any discussion of its merits.

The trial court has broad discretion in determining whether to grant relief from judgment. Kroner v. Singer Asset Fin. Co., L.L.C., 814 So.2d 454, 456 (Fla. 4th DCA 2001). Generally an order entered pursuant to Florida Rule of Civil Procedure 1.540(b) is reviewed under a gross abuse of discretion standard. Tilden Groves Holding Corp. v. Orlando/Orange County Expressway, 816 So.2d 658, 660 (Fla. 5th DCA 2002).

The State has conceded that the order is erroneous. We agree that the trial court grossly abused its discretion when it failed to address the merits of Mr. Coblentz’s motion. Accordingly, we reverse the order denying the motion for relief from judgment and remand for the trial court to attach documentation which demonstrates that Mr. Coblentz qualifies for treatment as a sexual predator or to conduct a hearing to determine if he qualifies for such treatment.

Reversed and remanded with directions.

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

      . We note that in Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003), the Fifth District has declined to follow our opinion.


text:
    M.W., Petitioner, v. Jon LOFTHIEM, Director, Polk Regional Juvenile Detention Center, Respondent.
    No. 2D03-3414.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2003.

      James Marion Moorman, Public Defender, and Robert V. Hartman, Assistant Public Defender, Bartow, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

M.W. petitions this court for a writ of habeas corpus challenging the legality of his confinement for contempt. We previously directed a stay of the trial court’s detention order and ordered M.W.’s release pending our further review. We now grant the petition and vacate the order of detention.

On July 24, 2003, M.W. was before the trial court for disposition on a charge of petit theft. The trial court imposed probation and withheld adjudication. The court asked if the Department of Juvenile Justice (DJJ) was requesting a drug screen. When the DJJ representative responded affirmatively, the court ordered- M.W. to immediately report for a drug test “now that he is on probation.” The court proceeded with other cases. M.W. asked to address the court again prior to reporting for the drug test. M.W. told the judge he had smoked marijuana in the past week.

The trial judge stated:

My rule in .court is if somebody comes into my courtroom with marijuana in his system — he’s in contempt of court, because he shouldn’t be using drugs and going to eourt. You can give me a reason now why you shouldn’t be held in contempt of court and confined for [five] days — I’ll entertain your excuse or your reason for me not [holding you in contempt],

M.W.’s counsel on the petit theft case responded that M.W. had not misrepresented anything to the court and should not be held in contempt.

Subsequently, M.W. tested positive for marijuana. The trial court found M.W.’s admission to smoking marijuana, coupled with the quantity of marijuana in his system, to be sufficient to establish that he was in contempt of court. On that basis alone, the court entered a summary order for M.W.’s detention for contempt for five days.

Although the trial judge did not characterize the type of contempt proceeding he initiated, the summary proceeding most closely resembles a direct criminal contempt proceeding. But the record before us does not contain a written judgment of contempt with recitals of the facts upon which the adjudication was based as is required in direct criminal contempt proceedings. See Fla. R. Juv. P. 8.150(a) (requiring recitals of fact in judgment of guilt of contempt); Fla. R.Crim. P. 3.830 (adult counterpart to the juvenile rule); see also Gidden v. State, 613 So.2d 457, 460 (Fla.1993); Williams v. State, 698 So.2d 1350, 1351 (Fla. 1st DCA 1997) (stating that factual recitation assures compliance with longstanding rule that contempt should be exercised with care and circumspection).

Furthermore, based on our review of the transcript of the contempt proceeding, we conclude that no act of direct criminal contempt occurred. Contempt is an act which is calculated to embarrass, hinder, or obstruct the trial court in the administration of justice or which is calculated to lessen its authority or dignity. See Thomson v. State, 398 So.2d 514, 517 (Fla. 2d DCA 1981). Rule 8.150(a) provides that “[a] contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.” Where a judgment of contempt is not objectively supported by the court transcripts, it is procedurally defective. Thompson v. State, 618 So.2d 781, 784 (Fla. 5th DCA 1993). Admission to the use of marijuana “in the past week” prior to appearing in court does not constitute direct criminal contempt. The record before us contains no evidence that M.W. was under the influence of marijuana such that his conduct was disruptive of court proceedings or that his faculties were impaired. While M.W. acted in an irresponsible manner before his appearance in court, there is no evidence that he was directly disrespectful of or directly hindered the court proceedings on the day at hand or that his behavior was calculated to lessen the court’s authority or hinder the administration of justice.

In its response, the State urged that the petition should be dismissed because M.W. committed an act of direct contempt of court. However, it cited no cases to support its conclusion. The only Florida case our independent review disclosed involving direct contempt for appearing in court under the influence of drugs, Miller v. State, 672 So.2d 95 (Fla. 3d DCA 1996), is factually dissimilar to this ease.

Neither does M.W.’s admission to prior use of marijuana constitute indirect criminal contempt unless the use violated a valid court order that was in effect at the time he used the drug. The record discloses no such order. Even if such an order existed, the trial court failed to follow any of the procedures required by rule 8.150(b), which governs indirect contempt. Thus, the trial court failed to afford the due process protections required in indirect criminal contempt proceedings. See E.H. v. State, 711 So.2d 1331 (Fla. 2d DCA 1998); May v. State, 623 So.2d 601 (Fla. 2d DCA 1993).

For the reasons explained in this opinion, we lift the temporary stay of the detention order, grant the petition for writ of habeas corpus, and direct that the order of detention for contempt be vacated.

Petition for habeas corpus granted; order vacated.

FULMER, CANADY, and WALLACE, JJ., Concur.


author: COVINGTON, Judge.

text:
    Binh TRAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-676.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2003.
   COVINGTON, Judge.

Binh Tran challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). While we affirm the trial court’s denial of Tran’s motion, it is without prejudice to Tran’s right to file an appropriate motion pursuant to rule 3.850. Nedd v. State, 855 So.2d 664, 2003 WL 22081375 (Fla. 2d DCA Sept.10, 2003).

CASANUEVA and KELLY, JJ., Concur.


text:
    Derrick E. MIKELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2007.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2003.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Derrick E. Mikell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Affirmed without prejudice to any right Mikell might have to seek appropriate postconviction relief.

CANADY and VTLLANTI, JJ., Concur.


text:
    Alexander C. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1811.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2003.
   SALCINES, Judge.

Alexander C. Wilson challenges the trial court order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court order and remand the cause for further proceedings.

Wilson claims that his sentences as a habitual felony offender are illegal in that he is serving sixty-three months for each of three third-degree felonies and that they should be stricken because there is no record of a notice of habitualization or transcript of his sentencing hearing. He also claims that the sentencing court improperly enhanced his sentence when prior convictions were included on his score-sheet without the benefit of certified copies of his convictions.

The State responded to these claims and conceded that “this cause should [be] remanded to the trial court to attach portions of the record to support its finding[s].” We agree.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.


text:
    Roger GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4340.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2003.
    James Marion Moorman, Public Defender, Tampa, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Roger Green appeals his conviction for possession of ecstasy with intent to sell. Green argues that his conviction should be reversed and the case remanded for a new trial because, through no fault of his own, a complete transcript of his trial is unavailable. We agree.

Several portions of the transcript of Green’s jury trial are absent from the record, such as the testimony of two State’s witnesses, Green’s own testimony, judgment of acquittal arguments, closing arguments, the trial court’s charge to the jury, and the jury’s rendition of the verdict. This court relinquished jurisdiction for the trial court to reconstruct the missing portions of the record; however, the trial court was unable to reconstruct an accurate record due to problems with the court reporter. Green filed a motion to reverse due to the lack of a complete record, and the State responded that it is unable to show cause why Green’s conviction should not be reversed.

Without a complete record, Green’s appellate counsel is unable to review several portions of the trial to determine if reversible error exists. See Cooper v. State, 845 So.2d 309 (Fla. 2d DCA 2003); Jones v. State, 780 So.2d 218 (Fla. 2d DCA 2001). Because Green is prejudiced through no fault of his own, we reverse his judgment and sentence and remand for a new trial.

Reversed and remanded.

NORTHCUTT, CASANUEVA, and KELLY, JJ., Concur.


author: WHATLEY, Judge.

text:
    Bruce Michael BUSWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3806.
    District Court of Appeal of Florida, Second District.
    Oct. 1, 2003.
    James Marion Moorman, Public Defend-' er, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

Bruce Michael Buswell correctly contends, and the State correctly concedes, that the trial court erred in denying his motion to correct sentence in which he asserted that the trial court erred in placing him on drug offender probation as a sanction for his conviction of driving while license suspended. See Jones v. State, 813 So.2d 22, 25 (Fla.2002) (“Section 948.01(13) [providing for drug offender probation] ... applies only to violations of chapter 893, which defines nonviolent drug crimes.”); State v. Lazo, 761 So.2d 1244 (Fla. 2d DCA 2000) (“The plain language of section 948.034(2) [the 1997 provision allowing drug offender probation] unambiguously indicates that it applies only to violations of the specific provisions referenced in the statute.... Driving on a suspended or revoked driver’s license is not.”). Accord Ellis v. State, 816 So.2d 759 (Fla. 4th DCA 2002).

Accordingly, we affirm Buswell’s convictions but we reverse Buswell’s sentence for driving while license suspended and remand for resentencing with directions consistent with this opinion.

STRINGER and KELLY, JJ., Concur.


text:
    STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. GUARDIAN AD LITEM OF C.R. and M.R., Appellee.
    No. 1D03-0607.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2003.
    Richard D. Cserep, Assistant District Legal Counsel, Department of Children and Families, Pensacola, for Appellant.
    Maureen L. McGill, Counsel for Guardian Ad Litem Program, Pensacola, for Ap-pellee.
   PER CURIAM.

The Department of Children and Families (DCF) appeals an order that disapproved its prospective adoptive placement for C.R. and M.R., arguing that the trial court exceeded its jurisdiction by conducting a broader review of the appropriateness of the placement of the children than is permitted under section 39.812(4), Florida Statutes (2002). We disagree and affirm.

DCF’s argument is premised, in large part, upon the dissent in Department of Children & Family Services v. J.C., 847 So.2d 487 (Fla. 3d DCA 2002), wherein Judge Sorondo stated “that the trial court’s review of the appropriateness of the child’s adoptive placement is limited to a determination of whether the selection has been made in a manner consistent with the Department’s own internal policies, and not in an arbitrary or capricious manner.” Id. at 495. DCF also relies upon section 39.521(4), Florida Statutes (2002), which gives it the authority “to determine where and with whom the child shall live.” It argues that the court, by balancing the risk of harm of removing the children from their current placement, against the status quo, and by considering the children’s best interests, went far beyond the inquiry permitted under section 39.812(4). And by disapproving the prospective adoptive placement, the court impermissibly substituted its judgment for that of the agency in determining where and with whom the children should live.

In our judgment, if we were to adopt DCF’s argument, the review power granted to the courts by section 39.812(4) would be rendered meaningless. We agree with the majority’s observation in J.C., 847 So.2d at 490, that “[t]he language of Section 39.812(4) is clear and must be given its plain and ordinary meaning!,]” and “provides express statutory authority for the trial court to exercise judicial review of the appropriateness of adoptive placement.” DCF’s argument also fails to acknowledge that the first stated goal of chapter 39, Florida Statutes, is “to provide for the care, safety, and protection of children in an environment that fosters healthy social, emotional, intellectual, and physical development; to ensure secure and safe custody; and to promote the health and well-being of all children under the state’s care.” § 39.001(l)(a), Fla. Stat. (2002). We therefore follow J.C. and hold that the trial court did not exceed its jurisdiction by considering the children’s best interests and balancing the risk of harm when it reviewed the appropriateness of the prospective adoptive placement.

In so concluding, we distinguish cases such as Department of Children & Families v. Adoption of B.G.J., 819 So.2d 984 (Fla. 4th DCA 2002), and C.S. v. S.H., 671 So.2d 260 (Fla. 4th DCA 1996), because they involve reversals of trial court orders that approved adoption petitions filed by persons other than those whom DCF had recommended for the adoptive placements. As such, they pertained to situations in which DCF’s chosen placement was overruled by the trial courts, which then substituted their judgment on the issue of where and with whom the child should be placed. Although the trial court in this case did reject DCF’s approved adoptive placement, it did so upon a finding that it was not appropriate and not in the children’s best interests, and, more to the point, the court did not direct that the children be placed in the custody of someone whom DCF had disapproved.

On the merits, because there is competent, substantial evidence to support the trial court’s findings that the prospective adoptive placement was not appropriate or in the best interests of the children, we AFFIRM.

ERVIN, ALLEN and LEWIS, JJ., CONCUR.

      . Section 39.812(4) provides:
      The court shall retain jurisdiction over any child placed in the custody of the department until the child is adopted. After custody of a child for subsequent adoption has been given to the department, the court has jurisdiction for the purpose of reviewing the status of the child and the progress being made toward permanent adoptive placement. As part of this continuing jurisdiction, for good cause shown by the guardian ad litem for the child, the court may review the appropriateness of the adoptive placement of the child.

      (Emphasis added.)


author: FULMER, Judge.

text:
    John Russell PETERMAN, Appellant, v. Nute Carl MEEKER, Jr., Appellee.
    No. 2D03-548.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2003.
    Mark Hanks, St. Petersburg, for Appellant.
    No appearance for Appellee Nute Carl Meeker, Jr.
   FULMER, Judge.

John Russell Peterman, respondent below, appeals a final judgment for protection against domestic violence entered in favor of Nute Carl Meeker, Jr., under section 741.30, Florida Statutes (2002). We affirm.

Peterman and Meeker have been partners in a homosexual relationship for thirteen years and were living together in a house they jointly own. The evidence showed that there were violent episodes between these men in the recent past as their relationship was ending. Meeker sought an injunction, and Peterman’s attorney filed a motion to dismiss, arguing that section 741.30 does not protect homosexuals against domestic violence. The trial court denied the motion to dismiss and granted the injunction, holding that the statute was intended to protect intimate partners.

Section 741.30(l)(a) provides for a domestic violence injunction to “[a]ny person described in paragraph (e), who is either the victim of domestic violence as defined in s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” Section 741.30(l)(e) provides that the injunction may be sought by family or household members, and section 741.28(3) defines family or household members as:

spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

Peterman argues that same-sex couples do not qualify as persons residing together as if a family because same-sex couples cannot marry in the state of Florida. But section 741.30(l)(e) states: “No person shall be precluded from seeking injunctive relief pursuant to this chapter solely on the basis that such a person is not a spouse.” Therefore, we conclude that the statute does not exclude those persons who otherwise meet the requirements for a domestic violence injunction but seek protection from a person of the same sex.

There is no reported case in Florida on this issue, but the several courts around the country that have addressed the issue have held that persons in a same-sex relationship qualified for domestic violence protection under various state statutes. See Glater v. Fabianich, 252 Ill.App.3d 372, 192 Ill.Dec. 136, 625 N.E.2d 96 (1993) (affirming domestic violence injunction in homosexual relationship based on statute defining family or household member in part as those who share or formerly shared common dwelling); Ireland v. Davis, 957 S.W.2d 310 (Ky.Ct.App.1997) (2-1 decision) (reinstating domestic violence proceedings in homosexual relationship based on statute defining members of unmarried couple as those who are living together or have formerly lived together); State v. Hadinger, 61 Ohio App.3d 820, 573 N.E.2d 1191 (1991) (holding that domestic violence statute applied to partners in same-sex relationship based on statute’s definition of person living as spouse to include person who is otherwise cohabiting with offender; rejecting trial court’s imposition of requirement that such persons must have the ability to marry before domestic violence statute applied).

Affirmed.

STRINGER and SILBERMAN, JJ., Concur.


text:
    Dennis Keith CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-256.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2003.

      Affirmed in part; reversed in part and remanded.
    Bernard F. Daley, Jr., Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Dennis Keith Clark appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing on his claim of ineffective assistance of counsel with respect to the State’s plea offer. We otherwise affirm the remainder of the trial court’s summary denial without discussion.

Clark was originally charged with and convicted of two counts of capital sexual battery and one count of lewd fondling. In his first direct appeal, Clark was granted a new trial. Clark v. State, 742 So.2d 824 (Fla. 2d DCA 1999). On retrial, Clark was again found guilty as charged and was sentenced to concurrent life sentences on the capital sexual battery convictions and to a consecutive term of ten years’ imprisonment on the lewd fondling conviction. Clark appealed and this court affirmed. Clark v. State, 790 So.2d 413 (Fla. 2d DCA 2001).

In the verified motion for postconviction relief filed on behalf of Clark, the summary denial of which is the subject of this appeal, counsel asserted numerous allegations of ineffective assistance of trial and appellate counsel. The trial court properly summarily denied all but one of those allegations which related to a purported plea offer made by the State prior to Clark’s retrial.

In the sworn motion, counsel alleged that, prior to retrial, the State offered Clark an opportunity to enter a plea to attempted sexual battery for which Clark would receive a sentence of ten years’ incarceration followed by ten years’ probation. The motion under oath asserted that, in relaying the plea offer, trial counsel incorrectly advised Clark that he would not be entitled to basic gain time if he entered the plea. The motion further asserted that, but for counsel’s erroneous advice, Clark would have accepted the State’s offer and entered a plea.

The trial court erroneously found that Clark failed to state a sufficient claim for relief regarding his rejection of the plea offer. See Rudolf v. State, 851 So.2d 839 (Fla. 2d DCA 2003). Clark’s verified motion indicates that trial counsel advised him that he was ineligible for basic gain time as a result of the statutory provision which precludes such an award to a defendant convicted of committing a sexual battery on or after October 1, 1992. § 794.011(7), Fla. Stat. (1993). Such advice, if given, was incorrect because Clark could have been eligible for basic gain time on a conviction for attempted sexual battery. See Zopf v. Singletary, 686 So.2d 680, 681-82 (Fla. 1st DCA 1996). Although some other basis might have nonetheless rendered such alleged advice correct in Clark’s case, this court cannot make that determination from the record before us.

Thus, this matter is reversed in part and remanded for a limited evidentia-ry hearing on this single ground of error because the record attachments do not conclusively refute Clark’s claim regarding counsel’s alleged misadvice concerning the plea offer; Clark’s claim is facially sufficient; and prejudice is deemed to inhere in such errors. See Rudolf, 851 So.2d at 839.

Affirmed in part; reversed in part and remanded.

SALCINES, STRINGER and SILBERMAN, JJ., Concur.


author: FLETCHER, Judge.

text:
    Demetrius L. MORRISON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3062.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   FLETCHER, Judge.

Demetrius L. Morrison appeals from the trial court’s judgment and sentence for manslaughter. We reverse and remand for a new trial.

Morrison, a juvenile at the time, was charged with the first degree murder of Laurent Valme, but was found incompetent to stand trial based on his history of mental illness. Morrison was eventually deemed competent and went to trial. At trial, the state introduced Morrison’s voluntary confession to the police, but over defense’s proper objection, the trial court permitted the state to selectively redact those portions of Morrison’s statement referring to his mental illness and of being on medication for mental illness at the time he committed the crime. Although urged to do so, we cannot find this to be harmless error, because the content and context of the entire statement is directly related to Morrison’s state of mind at the time of the offense, given his history of difficult interactions with the victim. Redacting those portions of Morrison’s statement which went to his defense of self-defense precluded the jury from considering all of the relevant evidence necessary to establishing the element of intent required by the charged crime as well as the crime of which Morrison was eventually found guilty. See Long v. State, 610 So.2d 1276 (Fla.1992); Chao v. State, 661 So.2d 1246 (Fla. 3rd DCA 1995)(a party, in the interest of fairness, has the option to introduce all or part of a recorded statement if the opposing party “opens the door” by referring to portions of it during its case); § 90.108, Florida Statutes (2001).

Reversed and remanded for a new trial.

      . The harmless error test, as explained in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively, that there is no reasonable possibility that the error contributed to the conviction.


text:
    Kenny STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3445.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The state acknowledges that the order declaring Stokes a sexual predator under section 775.21, Florida Statutes, should be stricken. Stokes, guilty of a second-degree felony, is a first offender. The sexual predator designation requires that the defendant be adjudicated of a capital, life, or first-degree felony, or have had prior conviction, none of which apply here.

Therefore, we vacate the sexual predator designation and remand without prejudice to the trial court’s considering, at the state’s request, whether Stokes qualifies as a sexual offender under section 943.0435, Florida Statutes.

We also strike, upon the state’s concession of error, $100 of additional costs that were imposed without a required finding of ability to pay.

STONE, WARNER and HAZOURI, JJ., concur.


text:
    Adrian DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-202.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Rehearing Denied Oct. 8, 2003.
    Adrian Davis, Belle Glade, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

On remand and mandate from the Supreme Court of Florida, see State v. Davis, 28 Fla. L. Weekly S657, — So.2d -, 2003 WL 22019503 (Fla. Aug. 28, 2003), we reverse the order on appeal and remand this cause to the trial court for reconsideration of appellant’s motion to correct illegal sentence in light of the decision in State v. Lemon, 825 So.2d 927 (Fla.2002). Pursuant to Lemon, the trial court must determine whether the reasons relied upon in imposing the departure sentence under the 1995 sentencing statute would have provided a valid basis to depart under the 1994 statute.

REVERSED and REMANDED.

STEVENSON, GROSS and TAYLOR, JJ., concur.


author: WELLS, J.

text:
    Jason Wainwright ALSOPP, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2083.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot and Melissa Vaughan Rubin, (FtLauderdale), Assistant Attorneys General, for appellee.
    Before GREEN, FLETCHER, and WELLS, JJ.
   WELLS, J.

The defendant appeals his conviction and sentence for resisting arrest without violence, alleging that the trial court erred in failing to require the State to give a race-neutral reason for using a peremptory strike on a Hispanic juror. For the following reasons, we agree and reverse for a new trial.

The State charged the defendant by information with two counts of battery on a law enforcement officer and one count of resisting arrest without violence. During jury selection, the State exercised its first peremptory challenge in the form of a backstrike against prospective juror Julio Campos. Defense counsel objected stating, ‘Tour Honor, we’re going to object. Mr. Campos is a member of a minority. We’d ask for a race-neutral reason.”

The trial court summarily accepted the State’s challenge.

At the conclusion of voir dire, defense counsel accepted the panel subject to his previous objections. The jury found the defendant not guilty on the two battery counts, but guilty of resisting arrest without violence.

We reverse because the trial court committed reversible error in failing to conduct a Neil inquiry regarding the Campos peremptory strike. Under Melbourne v. State, 679 So.2d 759, 764 (Fla.1996)(footnotes omitted), the defense properly put the Campos strike at issue:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.

See also State v. Johans, 618 So.2d 1319, 1321 (Fla.1993) (holding “that from this time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner”).

As Melbourne notes, a “simple objection and allegation of racial discrimination” such as “I object. The strike is racially motivated,” is sufficient to mandate an explanation for the strike. Melbourne, 679 So.2d at 764 n. 2, 3; see also Murray v. Haley, 833 So.2d 877, 879-80 (Fla. 1st DCA 2003)(all that is necessary is that the trial court understand the nature of the objection under step one of the Neil inquiry; courts should not elevate form over substance); 33 Fla. Jur.2d Juries § 225 (“When a party wishes to object to the other side’s use of a peremptory challenge on racial grounds, a simple objection and allegation of discrimination is sufficient, as for example, T object. The strike is racially motivated.’ ”); State v. Holiday, 682 So.2d 1092, 1093 (Fla.1996) (finding that “any doubt concerning whether the objecting party has met its initial burden must be resolved in that party’s favor”).

We reject the notion that no inquiry was necessary because the defense failed to demonstrate that Campos was a member of a distinct racial or ethnic group. The record in this case adequately establishes that Campos is Hispanic, a cognizable ethnic group for the purposes of a Neil inquiry. See State v. Alen, 616 So.2d 452 (Fla.1993) (extending Neil to protect potential Hispanic jurors from exclusion on the basis of ethnicity). Moreover, where it is clear that the challenged juror is a member of a racial or ethnic group and the court is aware of the fact, a general objection is sufficient to trigger an inquiry. See Franqui v. State, 699 So.2d 1332, 1334-35 (Fla.1997) (finding sufficient to mandate a Neil inquiry an objection that the defense would “challenge that strike” where it was clear from the record that the alleged juror was born and raised in Cuba, that the juror’s name was Aurelio Diaz, and that the trial court clearly understood the nature of the State’s objection); Foxx v. State, 680 So.2d 1064, 1065 (Fla. 3d DCA 1996)(finding the State’s comment that “We would ask for a Neil inquiry” sufficient where it was clear from the record that the venire person was a member of a distinct racial group and that the trial court was aware of this fact); Joseph v. State, 636 So.2d 777, 781 (Fla. 3d DCA 1994)(where the State contended that there was no showing that a juror was, in fact, Jewish, finding that the defendant had met the threshold requirement of Neil because the transcripts of voir dire indicated that “[tjhere is no question that the trial judge understood the basis of the defendant’s objection”).

Failure to conduct a Neil inquiry in this case therefore mandates reversal and remand for a new trial. See Johans, 613 So.2d at 1322 (holding that “the proper remedy in all cases where the trial court errs in failing to hold a Neil inquiry is to reverse and remand for a new trial”); Vasquez v. State, 711 So.2d 1305, 1306 (Fla. 2d DCA 1998) (finding that the trial court committed reversible error in failing to conduct a Neil inquiry where the defendant had properly put the strike of a juror at issue).

      . State v. Neil, 457 So.2d 481 (Fla.1984).

      . Trial courts are free to conduct inquiries as to whether a challenged juror is a member of an ethnic group. See Windom v. State, 656 So.2d 432, 436-37 (Fla.1995)(upholding the trial court’s determination of ethnicity where the parties disagreed as to whether a prospective juror was black or Hispanic, and where the trial court questioned the venire person as to her ethnicity, finding that she was East Indian); Dean v. State, 703 So.2d 1180 (Fla. 3d DCA 1997)(upholding the trial court’s determination that a juror was Hispanic where, because the trial court was not certain of the juror's ethnicity, the lower court recalled the juror and questioned him as to his place of birth and heritage). No such inquiry took place in this case; none was necessary since the transcripts confirm that the parties and the trial court understood that Campos was Hispanic.


author: SHEVIN, Judge.

text:
    The STATE of Florida, Appellant, v. Jose V. NUNEZ, Appellee.
    No. 3D02-2523.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellant.
    Stephen J. Golembe, Miami, for appel-lee.
    Before GREEN and SHEVIN, JJ., and NESBITT, Senior Judge.
   SHEVIN, Judge.

The State appeals a downward departure sentence. We affirm. A review of the record demonstrates that the State offered to forgo an appeal of a downward departure sentence if the defendant gave a sworn statement. Although we agree with the State’s assertion that this offer had been rejected and/or revoked at the beginning of the September 9 hearing, the transcript reveals that by the end of the hearing the State had renewed the offer. Before the hearing ended, the prosecutor stated: “If defense is inclined to provide the additional cooperation, my agency is available at any time to check him out, and to be interviewed, if at any time we have been contacted we are available to proceed.” [SR. 79]. Thus, the record be-bes the State’s assertions that no State offer remained on the table. Furthermore, the State incorrectly asserts that the agreement was never mentioned by the court or the defense at the September 11 hearing: At that hearing, the plea colloquy contains a provision as to this condition that requires defendant to be debriefed by the State.

At the beginning of the September 11 hearing, the prosecutor stated that he went along with side-bar and chambers discussions “[b]ut [he] wantfed] to make sure that it’s clear that the state is not requesting for the court to get involved in this plea negotiations.” The prosecutor then objected to a departure sentence. [SR. 83] In response, the court stated: “I have said what I needed to say and I think it is clear that everybody was acting in good faith in the meetings and there was no point in time any statements made by the state that they didn’t want the court to participate in the plea negotiations.” [SR. 83] Thereafter, the court conducted the plea coboquy and asked: “And part of the plea was that the defendant agreed to be debriefed by the state of Florida; is that your understanding of the plea?” Defense counsel responded, “Yes,” and the State did not object or inform the court that the offer to forgo the appeal had been withdrawn. [SR. 86]

We find no merit to the State’s appeal. A careful review of the transcripts show that, over several weeks, the court, the State and defense counsel conducted several on-the-record and off-the-record discussions as to a downward departure sentence. It is unclear whether the State’s initial downward departure offer remained viable. However, it is apparent that the offer to forgo an appeal of a downward departure sentence was resurrected by the State at the end of the September 9 hearing and the court apparently accepted that provision as reflected by the court’s statement to the prosecutor at the start of the September 11 hearing and the plea colloquy which included a provision, without a State objection, requiring defendant to be debriefed by the State. Therefore, the offer to forgo an appeal of a downward departure sentence was not withdrawn at the time the court made its offer to defendant. Accordingly, the downward departure sentence was within the court’s discretion. See State v. Leggett, 792 So.2d 646 (Fla. 3d DCA 2001). See also State v. Aquilar, 775 So.2d 994 (Fla. 3d DCA 2000), review denied, 791 So.2d 1101 (Fla.2001).

Affirmed.

      . Initially, the State offered defendant a four-year downward departure sentence. Defendant filed a motion to mitigate seeking a lower sentence arguing that once the State offered a downward departure sentence, it was within the court's discretion to depart further below the guidelines. The State responded that it considered defendant's motion as a rejection of the four-year offer and it withdraw the offer. Subsequently, the State, defendant and the court participated in plea discussions in chambers and off the record. At the August 2 hearing, defense counsel informed the court that the State wished to delay the plea so that the cases of the other charged defendants could be resolved at the same time. Defense counsel stated that he did not want the delay to affect the plea. The State noted that Nunez's case was going to be resolved, and it should be done to include the co-defendants. Defense counsel requested that the plea offer be put on the record. After an unrecorded sidebar, the court reset the plea for August 15. Subsequently, the case was reset for September 9.


text:
    Pamela SOKOL, Appellant, v. STARDANCER CASINO, INC., a Foreign corporation, Appellee.
    No. 3D02-2604.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 2003.
    Roy D. Wasson, Miami; Robert M. Miller, Hollywood, for appellant.
    McAlpin & Brais and Julie K. Rannik and James J. Feeney and Richard McAl-pin, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
   PER CURIAM.

Affirmed. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991); Effiron v. Sun Line Cruises, Inc., 67 F.3d 7 (2d Cir.1995); Spataro v. Kloster Cruise, Ltd., 894 F.2d 44 (2d Cir.1990); Hodes v. S.N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905 (3d Cir.1988), cert. dismissed, 490 U.S. 1001, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989); Marek v. Marpan Two, Inc., 817 F.2d 242 (3d Cir.1987), cert. denied, 484 U.S. 852, 108 S.Ct. 155, 98 L.Ed.2d 110 (1987); Shankles v. Costa Armatori, S.P.A., 722 F.2d 861 (1st Cir.1983); DeNicola v. Cunard Line Ltd., 642 F.2d 5 (1st Cir.1981); Norwegian Cruise Line, Ltd. v. Clark, 841 So.2d 547 (Fla. 2d DCA 2003). Compare Eick v. Norwegian Caribbean Lines A/S, 560 So.2d 1221 (Fla. 3d DCA 1990); Hirsch v. Klosters Rederi A/S, 521 So.2d 316 (Fla. 3d DCA 1988).