text:
    Corey Tyrone ENICH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2167.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Bennett H. Brummer, Public Defender, Robert Kalter and Shannon P. McKenna, Assistant Public Defenders, for appellant.
    Charles J. Crist, Jr., Attorney General, Michael J. Neimand, Assistant Attorney General, and Alison F. Smith, Certified Legal Intern, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

The defendant, Corey Tyrone Enich, appeals from the denial of a motion to suppress physical evidence. For the reasons that follow, we affirm.

The defendant was charged with carrying a concealed firearm and possession of a firearm or weapon by a convicted delinquent. The defendant filed a motion to suppress the firearm contending that the pat-down search was illegal.

At the suppression hearing, the only witness who testified was Sergeant Reginald Kinchen, the police officer who frisked the defendant. The officer testified that he was working off duty in a known drug area when he was approached by a citizen who told him that drugs were being sold at a certain apartment. When the officer arrived at the apartment building, he saw the defendant sitting on milk crates on the second floor of the building next to the apartment. The officer began to ascend the stairs, but before he could approach, the defendant made a “bee-line” to the end of the hallway where there was debris. When asked to explain what he meant by “bee-line,” the officer explained that the defendant “jumped up, and quickly walked to the end of the hallway....” The officer believed that the defendant’s actions were “strange.”

When the defendant reached the end of the hallway, “he knelt down, and turn[ed] into the garbage, to like conceal himself.” The officer testified that he then saw the defendant “crouching under the shirt he was wearing” and “putting stuff down in the hallway.” The officer also described the defendant’s actions as kneeling down and “concealing something behind the objects there at the end of the hallway.” The officer, however, could not see what objects the defendant was concealing.

The officer became “alarmed by [the defendant’s] actions,” and therefore, asked him to approach. At that time, the officer’s intention was “to merely give [the defendant] an explanation of [his] actions.” The defendant came out from the end of the hallway, and when the officer asked him his name and other questions, the defendant “started stuttering and shaking all over the place.” The officer testified that “at that point, I decided for my own safety, I said to myself, ‘Let me pat him down before I continue this conversation.’ ” During cross-examination, the officer further explained that his “suspicions” were raised when the defendant jumped up and began to conceal something, but that he finally decided to pat-down the defendant when he began to shake and stutter.

When the officer frisked the defendant, he felt an object in the defendant’s pocket that felt like a gun. The officer then removed the gun.

At the conclusion of the hearing, the trial court denied the motion to suppress. The defendant pled guilty, reserving his right to appeal the denial of the motion to suppress. This appeal followed.

The defendant contends that the trial court erred by denying his motion to suppress the firearm where the police officer did not have the requisite reasonable suspicion to justify the pat-down search. We disagree.

A pat-down for weapons is justified when a police officer, in light of his experience, has a reasonable suspicion that the detainee is armed and dangerous. § 901.151(5), Fla. Stat. (2001); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Everette v. State, 736 So.2d 726 (Fla. 2d DCA 1999); State v. Clark, 721 So.2d 1202, 1205 (Fla. 3d DCA 1998); Smith v. State, 719 So.2d 1018 (Fla. 3d DCA 1998); Angaran v. State, 681 So.2d 745, 746 (Fla. 2d DCA 1996). When evaluating whether the pat-down search was justified, the totality of the circumstances must be examined.

In the instant case, we recognize that several of the factors taken alone would not justify the pat-down search of the defendant. See Beasley v. State, 604 So.2d 871 (Fla. 2d DCA 1992)(holding that defendant’s presence in a “high narcotics area” where “a lot of people are known to carry weapons” insufficient to justify pat-down search); Smith v. State, 735 So.2d 570, 572 (Fla. 2d DCA 1999)(holding that detainee appearing nervous and perspiring, without more, insufficient to justify pat-down search); Kindell v. State, 562 So.2d 422, 423 (Fla. 5th DCA 1990) (holding that involvement in street dealing of small quantities of drugs insufficient to justify pat-down search). However, in the instant case, as explained by the police officer, he decided to pat-down the defendant for his safety based on the totality of the circumstances. First, the police officer was in a high-crime area when he was informed that the defendant was selling drugs. Next, when the officer approached, the defendant made a “beeline” to the end of the hall and began to make suspicious and furtive movements. See Lightbourne v. State, 438 So.2d 380 (Fla.l983)(holding that suspicious or furtive movement can justify pat-down search), cert. denied, 465 U.S. 1051, 104 S.Ct. 1330, 79 L.Ed.2d 725 (1984); C.G. v. State, 689 So.2d 1246, 1248 (Fla. 4th DCA 1997) (same); State v. Kinnane, 689 So.2d 1088, 1089 (Fla. 2d DCA 1996) (same). Finally, when the police officer began to ask the defendant questions, the defendant “started stuttering and shaking all over the place.” Therefore, based on the totality of the circumstances, as observed by an experienced police officer, the pat-down search for weapons was justified.

Affirmed.

      . The consensual police-citizen encounter between the defendant and Officer Kinchen was transformed into a stop when Officer Kinchen conducted a pat-down search of the defendant. See Hines v. State, 737 So.2d 1182, 1186 (Fla. 1st DCA 1999); Beasley v. State, 604 So.2d 871, 872 (Fla. 2d DCA 1992). In-the instant case, the defendant is only challenging the pat-down search.


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    Dedeaire GRIFFIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1760.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Dedeaire Griffin, in proper person.
    Charlie Crist, Attorney General and John D. Barker, Assistant Attorney General, for appellee.
    Before JORGENSON, COPE, and GREEN, JJ.
   GREEN, J.

Defendant Dedeaire Griffin appeals from an order denying his motion to correct an unlawful sentence pursuant to Florida Rule of Criminal Procedure 3.800. We affirm in part, and reverse in part.

The defendant was initially arrested on December 23, 1999, and remained incarcerated until his sentencing on March 6, 2000. On March 6, 2000, the defendant entered a guilty plea to armed robbery and third degree grand theft of an automobile, and was adjudicated guilty. He was sentenced to 364 days followed by two years community control followed by two years probation. He waived all credit for time served and gaintime. Additionally, the trial court recommended early termination of the defendant’s jail sentence when space at boot camp opened up for him.

The defendant’s jail sentence was terminated on October 17, 2000 when he entered into the boot camp program. He remained in boot camp until April 16, 2001, when he was released to community control. The defendant violated the conditions of his community control on August 7, 2001 and was arrested. On August 14, 2001, his community control was reinstated. He again violated his community control on October 11, 2001, and was sentenced on January 9, 2002 to two years in state prison with credit for 89 days time served from the date of his October 11 arrest to the date of sentencing.

In the court below, the defendant claimed he was entitled to credit for time served from the date of his December 1999 arrest to the time of sentencing on March 6, 2000; for his 364-day county jail sentence plus the six months he spent in boot camp; for the time spent on community control; and for the time he was incarcerated before his final sentence was issued on January 9, 2002. The trial judge denied the defendant’s claim as to all periods of time.

The defendant is not entitled to receive credit for time served for the period he was in county jail awaiting his initial sentence because any credit or gaintime available to him was validly waived. See Prangler v. State, 470 So.2d 105, 106 (Fla. 2d DCA 1985)(finding that a defendant may validly enter into a plea bargain waiving his right to time served). This waiver is reflected in the March 6, 2000 final judgment of the trial court.

The defendant’s next claim, that he should receive credit for his 364-day county jail sentence and for the time he spent in boot camp, is flawed. We do find some merit in the argument because the defendant should have been granted credit for time served after the March 6, 2000 sentencing for the time he actually spent in county jail up until his release to boot camp on October 17, 2000. See Sainvilus v. State, 689 So.2d 1261, 1261-62 (Fla. 3d DCA 1997)(finding defendant sentenced to prison for violating probation that was the second part of a split sentence is entitled to credit for time actually served in prison, prior to commencement of probationary term). Additionally, the defendant should receive credit for time served while participating in the boot camp program between October 17, 2000 and April 16, 2001. See Barger v. State, 744 So.2d 1159, 1159 (Fla. 1st DCA 1999)(finding that trial court erred in failing to award defendant credit for time served while in boot camp); Miller v. State, 731 So.2d 866, 866 (Fla. 1st DCA 1999)(same). He should not, however receive credit for his entire 364-day sentence as he did not serve all 364 days, but was only incarcerated from his sentencing on March 6, 2000 until he was released to boot camp on October 17, 2000. See Glenn v. State, 639 So.2d 1036, 1038 (Fla. 5th DCA 1994)(finding credit should only be awarded for time actually served, not for entire jail sentence).

The defendant may not receive credit for the time he was on community control between April 16, 2001 and October 11, 2001. Florida law dictates that credit cannot be given for time served on community control. Young v. State, 697 So.2d 75, 77 (Fla.1997); Toomajan v. State, 785 So.2d 1275, 1276 (Fla. 5th DCA 2001).

Finally, defendant argues he should receive credit for time served since his most recent arrest on October 11, 2001 to his sentencing on January 9, 2002. The record clearly reflects that defendant already received 89 days credit for time served for this period. No additional credit is warranted.

For these reasons, we affirm the trial court’s denial to correct defendant’s sentence as to the time he was incarcerated from December 23, 1999 to March 6, 2000, and October 11, 2001 to January 9, 2002. We also affirm the denial for credit for time spent on community control. We reverse the trial court’s order as to defendant’s time spent incarcerated from March 6, 2000 to October 17, 2000, and the time he spent in boot camp from October 17, 2000 to April 16, 2001, and remand with instructions to grant credit for time served as indicated in this opinion.

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


author: PER CURIAM.

text:
    G.S., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D02-1624.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Marc Anthony Douthit; and Russell Shepherd, Miami, for appellant.
    Calianne P. Lantz, for appellee.
    Before JORGENSON, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

G.S. appeals from a final judgment in which her parental rights were terminated. We reverse because the trial court committed reversible error by terminating G.S.’s parental rights without appointing a guardian ad litem to represent the interests of D.V., a minor child.

On April 5, 2001, the Department filed a detention petition alleging that D.V.’s parents had exposed him to a risk of harm by using drugs in his presence. The Department thereafter placed D.V. in a shelter and the trial court subsequently ordered D.V. placed with his maternal uncle. The Dependency Petition of May 1, 2001 alleges D.V.’s parents had severe substance abuse problems which interfered with their ability to parent and thus placed D.V. at risk of harm.

At the adjudication of dependency hearing, the trial court entered an Adjudicatory Order of Dependency and placed D.V. in the- temporary custody of his uncle, finding that D.V. was dependent by a preponderance of the evidence. The trial court accepted the Department’s case plan on May 80, 2001.

On July 25, 2001, the Department filed a petition for termination of parental rights against D.V.’s parents. The petition outlines the parents’ history of neglect, abandonment and abuse, past and current severe drug addiction, as well as the parents’ failure to comply with the case plan and court orders. The petition states that D.V. has resided with his uncle since April 2001, D.V.’s uncle has provided a stable, safe and loving home for him, and D.V.’s uncle would like to adopt him. The petition also states that D.V. “has or will have a Guardian Ad Litem appointed” and that the “Guardian Ad Litem recommends that the parents’ parental rights be terminated.” It is undisputed, however, that no guardian ad litem was ever appointed.

Section 39.808(2), Florida Statutes (2000), requires the trial court to appoint a guardian ad litem to represent a child’s best interests in any termination of parental rights proceeding, if one has not already been appointed. Rule 8.510(a)(2)(C), Florida Rules of Juvenile Procedure (2000), also requires the court to appoint a guardian ad litem if one has not already been appointed.

In this case, the trial court did not inquire whether a guardian had been appointed to represent D.V.’s interests, did not attempt to appoint a guardian ad li-tem, and did not determine whether D.V.’s interests were adequately represented throughout the pendency of the proceedings. This constitutes a clear violation of the statutory mandates on the appointment of a guardian in the termination of parental rights proceedings. Although the Department’s petition alludes to the appointment of a guardian ad litem who recommended that parental rights be terminated, there was in fact no such appointment. While the appointment of a guardian ad litem may not have resulted in a different outcome, that is a conclusion we are unwilling to reach.

We are therefore compelled to. reverse and remand for the trial court to appoint a guardian ad litem to represent D.V.’s interests.

Reversed.


author: HAWKES, J.

text:
    Albert Lee PALMORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2202.
    District Court of Appeal of Florida, First District.
    March 7, 2003.

      Nancy A. Daniels, Public Defender and Nancy Showalter, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Karen Armstrong, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Appellant, Albert Lee Palmore, appeals his convictions for second degree murder and assault and his resulting life sentence as a prison releasee reoffender. As grounds, Appellant argues, in pertinent part, that the trial court erred by denying defense counsel’s request for a special jury instruction on his theory of defense (i.e., that Appellant acted in the heat of passion). Finding the issue preserved for appeal, we agree with Appellant and reverse and remand for a new trial.

The giving or withholding of a requested jury instruction is reviewed under the abuse of discretion standard of review. See Pozo v. State, 682 So.2d 1124, 1126 (Fla. 1st DCA 1996), rev. denied, 691 So.2d 1081 (Fla.1997); see also Bozeman v. State, 714 So.2d 570 (Fla. 1st DCA 1998). However, the trial judge’s discretion is fairly narrow because a criminal defendant is entitled, by law, to have the jury instructed on his theory of defense if there is any evidence to support his theory and the theory is recognized as valid under Florida law. See Mora v. State, 814 So.2d 322 (Fla.2002); see also Bozeman, 714 So.2d at 572 (noting that the defendant was entitled to jury instruction on his theory of defense even if the only evidence to support that theory was the defendant’s testimony); Williams v. State, 588 So.2d 44, 45 (Fla. 1st DCA 1991) (noting that the defendant was entitled to have jury instructed on his theory of defense even if the evidence was weak or improbable).

I

In the case at bar, evidence was presented that Appellant and the victim, Addie Jones (Jones), lived together for some period of time in Jones’ home, and were the natural parents of a four-year-old girl. Approximately one month prior to the murder, Appellant was court-ordered to have no contact with Jones and, for a brief period of time, lived with his sister. During the time Appellant lived with his sister, Jones began a relationship with Leverage Parrish (Parrish). Subsequently, Jones came to the home of Appellant’s sister and asked him to get his clothes and “come on home.” Jones assured Appellant her relationship with Parrish was over and she wished to raise their daughter together. At the time of the offense, Appellant was living in Jones’ home at her request.

In the 10 hours preceding the murder, Appellant and Jones had contact several times. Appellant was aware that Jones was with Parrish, and a witness described Appellant’s response as emotional and angry. Appellant cried at one point, and on two occasions, made statements to the effect that if he “couldn’t have [his] family, no one could and [he] would kill them all.” Upon returning home with Parrish between 1:30 a.m. and 2:00 a.m., Jones asked the Panama City Police to walk through her home to ascertain whether Appellant was present. A police officer testified Jones was frightened.

Shortly before 2:30 a.m., Appellant looked in the window and saw Jones and Parrish naked in the master bedroom. Appellant broke through the window, and Jones fled into the child’s bedroom closet. A struggle ensued between Appellant and Parrish, or Parrish attempted to keep Appellant from going into the child’s bedroom. Parrish subsequently fled by breaking through the child’s bedroom window. When Jones ran out of the closet, Appellant stabbed her several times. Two of the wounds were fatal. In his statement to police, Appellant described his actions:

I just went to stabbing her. Went to stabbing her. Next thing I know I’m, I’m just, after I realized what I was doing, I dropped the knife and I reached down for her ...

Appellant didn’t know how many times he stabbed Jones because “I did — couldn’t really focus.” Describing his thoughts when he saw Jones and Parrish naked together Appellant stated that “it just, it hurted me. It hurt me real bad. Cause I didn’t think she would do that after she came back and got me. I was doin’ pretty good at my sister’s house.”

II

At trial, Appellant’s sole theory of defense was that, although he committed the act which resulted in Jones’ death, it constituted heat of passion manslaughter, not second degree murder. Heat of passion negating the depraved mind element of second degree murder is a valid defense in Florida. See Paz v. State, 777 So.2d 983 (Fla. 3d DCA 2000). Appellant both requested and proffered a special jury instruction defining heat of passion in relation to second degree murder. Although not constituting excusable homicide, heat of passion under this theory of defense would reduce second degree murder to manslaughter if accepted by the jury. The State objected, arguing the applicable law regarding the defense was explained in the standard jury instructions. The trial court sustained the State’s objection, and in so doing, erred.

A

The State did not contest, either at the trial court or on appeal, that heat of passion is a valid theory of defense to the depraved mind element of second degree murder or that evidence was offered at trial to support the defense. The State’s only argument is that the standard jury instruction is sufficient. The State’s argument is without merit. The standard jury instructions contain the term “heat of passion” only once. The instruction is based on section 782.03, Florida Statutes, which defines excusable homicide, and the term “heat of passion” itself is not defined in the instruction.

In the case at bar, excusable homicide was not the defense theory. The jury was instructed that if they found that Appellant acted in the heat of passion, the killing would be “excusable” and therefore “lawful.” The standard jury instructions do not contain language which would inform the jury that, pursuant to Florida law, if they believed Appellant’s passion resulted in a state of mind “where ‘depravity which characterizes murder in the second degree (is) absent,’ ” they could return a verdict of manslaughter. Paz, 777 So.2d at 984 (quoting Disney v. State, 72 Fla. 492, 73 So. 598, 601 (1916)). Accordingly, the jury was not properly instructed on Appellant’s theory of defense.

B

The State argues that, if the trial court erred by improperly instructing the jury, the error was harmless as defined by State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Harmless error analysis requires the State, as beneficiary of the error, to prove beyond a reasonable doubt that the error did not contribute to the verdict or, alternatively, that there is no reasonable possibility the error contributed to the conviction. Id at 1135. Here, the jury was instructed prior to the presentation of evidence that “it is the judge’s responsibility to decide which laws apply to this case and to explain those laws to you.” During the closing argument defense counsel told the jury:

It is not something to be condoned by any means, but I believe that it doesn’t rise, in this case, to murder. It is more appropriately termed a crime of passion or a killing that occurs in the heat of passion and then by legal definition it is manslaughter and not murder.

A few minutes later the court instructed the jury as to excusable homicide. This instruction was the only time the term “heat of passion” was used by the judge. Under this instruction heat of passion results in a lawful or excusable homicide. This was contrary to defense counsel’s statement to the jury regarding the applicable law given just a few minutes earlier. After instructing the jury on the rules for deliberation, the judge instructed the jury that:

[Y]ou must follow these rules in order to return a lawful verdict. First, you must follow the law as it set out in these instructions. If you fail to follow the law your verdict will be a miscarriage of justice. There is no reason for failing to follow the law in this case.

Based on that instruction, it is reasonable to conclude the jury would feel required to follow the law as set forth in the jury instructions. The trial court did not instruct the jury that Florida law permits a conviction for manslaughter, as argued by defense counsel, if they accepted that the evidence showed the Appellant acted in the heat of passion. Finally, the State’s strenuous objection to the proposed instruction below seems to contradict its argument on appeal that the failure to instruct the jury on the defense theory could not have contributed to the conviction.

Because the standard jury instruction neither explains the term “heat of passion,” in relation to second degree murder, nor recognizes Appellant’s theory of defense, the State cannot prove “there is no reasonable possibility that the error contributed to the conviction.” Id.; c.f., Billeaud v. State, 578 So.2d 343 (Fla. 1st DCA 1991) (holding trial court erred by excluding evidence that extra-marital affair of defendant’s wife sent him into a blind, unthinking rage resulting in a lack of capacity to premeditate murder, but because evidence was cumulative, the error was harmless).

Ill

Appellant also challenges the sufficiency of the evidence to prove the killing was committed with “ill will, hatred, spite or evil intent,” as required by the depraved mind element of second degree murder. Appellant failed to make a motion for a judgment of acquittal at the close of the State’s case, and now attempts to make the equivalent on appeal. The question presented by a motion for a judgment of acquittal is whether the evidence is legally sufficient to support the charged offense. Jones v. State, 790 So.2d 1194 (Fla. 1st DCA 2001). “The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

Had the jury been properly instructed and chosen not to accept the defense theory that Appellant acted in the heat of passion, the evidence would have been legally sufficient to support a conviction for second degree murder. Accordingly, it is unnecessary to address the consequences of defense counsel’s failure to make a motion for a judgement of acquittal, or the parties’ other contentions relating to this issue.

IV

Based on the foregoing, we reverse Appellant’s conviction for second degree murder and remand for a new trial with the jury properly instructed on the Appellant’s theory of defense.

REVERSED AND REMANDED.

BARFIELD and POLSTON, JJ., CONCUR.

      .The killing of a human being is excusable, and therefore lawful, under any one of the following three circumstances:
      1. When the killing is committed by accident and misfortune in doing any lawful act by lawful means with usual ordinary caution and without any unlawful intent, or
      2. When the killing occurs by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation, or
      3. When the killing is committed by accident and misfortune resulting from a sudden combat, if a dangerous weapon is not used and the killing is not done in a cruel or unusual manner. (Emphasis added.)


text:
    Arthur Lee HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3715.
    District Court of Appeal of Florida, First District.
    March 7, 2003.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Ray v. State, 755 So.2d 604, 609 (Fla.2000).

BARFIELD, KAHN, and PADOVANO, JJ., concur.


text:
    Kenneth S. CUMMINGS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-193.
    District Court of Appeal of Florida, Second District.
    March 7, 2003.
   PER CURIAM.

Kenneth Cummings appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s order without prejudice to any right Cummings might have to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

SILBERMAN, COVINGTON, and KELLY, JJ., Concur.


author: DAVIS, Judge.

text:
    George A. FINKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-24.
    District Court of Appeal of Florida, Second District.
    March 7, 2003.
   DAVIS, Judge.

George A. Finkley appeals the dismissal of his motion for postconvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court dismissed Finkley’s motion because it failed to contain a brief statement of facts relied on in support of the motion as required by rule 3.850(c)(6). We affirm the trial court’s order of dismissal without prejudice to Finkley to refile a motion which conforms to the rule. See Pavey v. State, 720 So.2d 563 (Fla. 2d DCA 1998); Toler v. State, 818 So.2d 639 (Fla. 1st DCA 2002).

Affirmed.

CASANUEVA and STRINGER, JJ., Concur.


text:
    Kelli R. KEMPER, Appellant, v. Max KEMPER, Appellee.
    No. 5D01-1669.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.

      Judith G. Shine and Linda Logan Bryan of Miller, Shine & Bryan, P.L., St. Augustine for Appellant.
    Lyman T. Fletcher and Jeffrey A. Conner of Fletcher & Conner, Jacksonville for Appellee.
   ON MOTION FOR REVIEW

PER CURIAM.

Max Kemper requests review of the trial court’s order deferring award of appellate attorney’s fees to Kelli R. Kemper for a period of twenty-four months. We had remanded this case to the trial court in Kemper v. Kemper, 807 So.2d 711 (Fla. 5th DCA 2002) and had conditionally granted fees upon a finding by the trial court of need and commensurate ability to pay after appropriate consideration of the financial resources of both parties.

Upon remand, the trial court expressed its opinion that it could not adequately determine need nor ability to pay based upon the current situation of Mr. Kemper, and speculated that he may be able to pay in the future if he recovers damages from injuries received in an automobile accident.

The deferral is contrary to Duchesneau v. Duchesneau, 692 So.2d 205 (Fla. 5th DCA 1997) and Mishoe v. Mishoe, 591 So.2d 1100 (Fla. 1st DCA 1992) which require attorney’s fee awards to be based upon the current relative financial positions of the parties, not at some unspecified future date.

We vacate the order deferring consideration of the award and remand for determination based upon the financial positions of the parties.

MOTION GRANTED; ORDER VACATED; REMANDED.

PETERSON, GRIFFIN and PLEUS, JJ., concur.

      . Fla. R.App. P. 9.400(c)


text:
    Walter BLACKSHEAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2380.
    District Court of Appeal of Florida, First District.
    March 7, 2003.

      Nancy A. Daniels, Public Defender; Joel Arnold, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Robert R. Wheeler, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

In this appeal from a revocation of appellant’s probation and re-sentencing, appellant argues that the trial court abused its discretion in finding that he had violated standard conditions one and six of his probation. Additionally, appellant notes and the State concedes, the written order of revocation of probation is not consistent with the trial court’s oral pronouncement. The oral pronouncement indicated that the state failed to prove appellant’s ability to meet his financial obligation, and therefore, the appellant was found not guilty of the violation. We remand for an entry of a proper written revocation order setting forth the conditions of probation appellant was found to have actually violated and re-sentencing for the reasons set forth below. See Bloodworth v. State, 672 So.2d 56 (Fla. 1st DCA 1996).

The standard of review for probation revocation orders is whether the trial court abused its discretion. See Bell v. State, 643 So.2d 674, 675 (Fla. 1st DCA 1994). A violation triggering a revocation of probation must be “willful and substantial.” See State v. Meeks, 789 So.2d 982, 987 (Fla.2001); Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993). We find there was sufficient evidence for the trial court to conclude that appellant willfully and substantially failed to satisfy condition one by failing to submit monthly reports to his probation officer. However, in accordance with the dictates of Alston v. State, 646 So.2d 184 (Fla.1994), we must reverse as to condition six for a lack of sufficient evidence of excessive intoxicant use or visiting a place that intoxicants are used. See also Blair v. State, 745 So.2d 496 (Fla. 1st DCA 1999); Legree v. State, 739 So.2d 616 (Fla. 1st DCA 1999); Hogan v. State, 583 So.2d 426 (Fla. 1st DCA 1991).

While we must remand, we note, as did the supreme court in Alston, that a single positive urinalysis as in this case could constitute sufficient evidence that appellant violated standard condition five of his probation which required him to “live and remain in liberty without violating any law.” See Alston, 646 So.2d at 185. We, therefore, advise the state that nothing in our opinion precludes it from initiating new revocation proceedings against appellant prior to the expiration of his probation, based on a properly charged violation of standard condition five.

Accordingly, we reverse and remand for re-sentencing and further proceedings consistent with this opinion.

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


author: ORFINGER, J. SHARP, W., J.,

text:
    STATE of Florida, Appellant, v. James HARRINGTON, Appellee.
    No. 5D01-2723.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellee.
   ORFINGER, J.

The State of Florida appeals the trial court’s order granting James Harrington’s renewed motion for judgment of acquittal after the jury found him guilty of attempted lewd or lascivious battery. We reverse.

Harrington was charged with one count of lewd or lascivious battery stemming from an incident involving K.E., who at the time was under the age of 16. At his trial, KE.’s mother testified that she chaperoned a party attended by her daughter. After the party ended around 11:00 p.m., K.E. planned on spending the night at a Mend’s house. When the mother next saw her daughter about two and one-half hours later, K.E. was comatose and was taken to the hospital.

Dobson, a teenager, testified that he and Harrington were with K.E. at the party. Later that night, he and Harrington went to Lee Dey’s house. While at Dey’s house, he walked outside and saw Harrington and K.E. in the back of a pickup truck. Harrington was on top of K.E. with his pants down below his buttocks. The two were moving in a manner consistent with sexual activity. Harrison, another teenager who had also been at the party, testified Harrington later told her that he had been intoxicated that evening and that he was “pretty sure” he had sex with K.E. Thereafter, detectives from the Sheriffs Office interviewed Harrington after he waived his Miranda rights. Harrington admitted he had sex with K.E. in the back of the pickup truck. He claimed that K.E. pulled his pants down and initiated the sexual contact. Harrington’s statement was admitted into evidence without objection.

After the State rested, Harrington moved to strike his confession to the police officers, arguing that the corpus delicti of the crime had not been demonstrated. He also moved for a judgment of acquittal. These motions were denied. After the defense presented its case, Harrington renewed his motion for judgment of acquittal. The motion was again denied. The jury then returned its verdict, finding Harrington guilty of the lesser offense of attempted lewd or lascivious battery. After the verdict, Harrington filed another motion for judgment of acquittal, which the court granted. The trial court concluded that Harrington’s statement should not have been admitted because the State had not independently proved the corpus delicti of the offense as is required. See J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998). The court found that without Harrington’s statement, the evidence was insufficient to sustain the verdict.

Because Harrington’s statement was admitted without objection, we need not determine whether the State adequately proved the corpus delicti of the offense prior to the admission of the statement. Without an objection, the error, if it was error, was waived and not preserved for appeal. Any claim of error regarding the admission of a confession or admission against interest into evidence, without independent proof of the corpus delicti, requires a contemporaneous objection in order to preserve the issue for appeal. Only when error is fundamental can the error be raised on appeal in the absence of a contemporaneous objection. Crump v. State, 622 So.2d 963, 972 (Fla.1993). That, however, does not help Harrington, because the admission of a confession in the absence of independent proof of the corpus delicti is not fundamental error. J.B., 705 So.2d at 1379.

We conclude, as did the court in State v. Brockman, 827 So.2d 299 (Fla. 1st DCA 2002), that the trial court erred in retroactively excluding evidence to which no objection was made at trial, then granting an acquittal based on the remainder of the evidence. In resisting a judgment of acquittal, the State may rely on any evidence adduced, even evidence later determined to have been erroneously admitted. Id. at 302.

Accordingly, we reverse the order granting Harrington’s motion for judgment of acquittal and direct the trial court to reinstate the jury’s verdict.

REVERSED AND REMANDED.

HARRIS, C., Senior Judge, concurs.

SHARP, W., J., concurs specially with opinion.

SHARP, W., J.,

concurring specially.

I agree the order granting Harrington’s motion for judgment of acquittal should be reversed and the trial court directed to reinstate the jury verdict finding him guilty of attempted lewd or lascivious battery. However, I disagree that our reversal should be solely based on Harrington’s failure to timely object to the admission of his confession to the police officers.

In my opinion, there was sufficient evidence (corpus delicti) adduced to permit the admission of Harrington’s confession to the police officers that he had sex with the fourteen-year old victim, K.E. Had Harrington timely objected at trial, the trial judge should have properly overruled his objection. Harrington’s confession and the other evidence adduced at trial were sufficient to support his conviction and his motions for judgment of acquittal should have been denied.

The record discloses that Harrington was charged with one count of lewd or lascivious battery stemming from an incident in March 2001. He was also charged with violating his probation based on this offense. He was tried simultaneously for the substantive offense and the probation violation.

At the trial, the mother of the victim testified she chaperoned a party attended by her daughter at a friend’s house. The party ended around 11:00 p.m. and K.E. planned to spend the night at her friend’s house. The mother next saw her daughter about two and one-half hours later. At this point, K.E. was comatose and incoherent due to extreme intoxication and the mother took her to the hospital.

Dobson, a teenage witness, testified he and Harrington were at the same party with K.E. Later that night, he and Harrington went to Lee Dey’s house. While at Dey’s house, he walked outside and saw Harrington and K.E. in the back of a pickup truck. Harrington was on top of K.E. with his pants down below his buttocks. The two were moving up and down in a sexual way. Another teenage witness, Harrison, who had also been at the party, testified Harrington told her later that he was intoxicated that evening, but he was pretty sure he had sex with K.E. These testimonies are clearly sufficient to constitute corpus delicti of the charged crime of lewd or lascivious battery on a minor.

In the course of investigating this crime, Harrington was interviewed by detectives from the Sheriffs Office. They explained his Miranda rights. Harrington admitted to them that he had sex with K.E. in the back of the pickup truck. He said he did not force himself on her but rather she pulled his pants down and initiated the sexual contact.

After the state rested, Harrington moved to strike his confession to the police officers on the ground that no corpus de-licti of the crime had been established before his police confession was admitted. He also moved for judgment of acquittal. These motions were denied. After the defense presented its case, Harrington renewed his motion for judgment of acquittal. The motion was again denied.

While the jury was deliberating, the judge found there was insufficient evidence of the probation violation based on the evidence presented in the case. Given this ruling, Harrington renewed his motion for judgment of acquittal. Before the court ruled, the jury returned its verdict, finding Harrington guilty of the lesser offense of attempted lewd or lascivious battery.

After the verdict, Harrington again moved for judgment of acquittal. The judge said he believed Harrington was primarily convicted based on his confession to the police officers and that his confession should not have been admitted based on the corpus delicti rule. The judge also said he disbelieved the two teenage witnesses, or disregarded their testimony because Dobson admitted to being intoxicated at the party, and Harrison’s demeanor at the trial offended the judge. She appeared to be grinning as though she thought the trial was a joke. Finally, the trial judge stated he felt because of the circumstances and manner in which the sexual activity took place, it would be to harsh to convict Harrington and to cause him to be registered as a sexual offender for the rest of his life “based on his confession.”

Two of these considerations are jury matters, not judicial matters: credibility of witnesses, and jury pardons. Granting a judgment of acquittal for those reasons was clearly erroneous.

With regard to the corpus delicti ground, the trial judge also erred both because procedurally the matter was untimely presented and because substantively, it did not apply in this case to bar admission of the confession. The rule requires that the prosecution must present independent evidence that a charged crime was committed before being able to use the defendant’s own statements or confession in court. Baker v. State, 760 So.2d 1085 (Fla. 5th DCA 2000). As stated above, I think sufficient independent evidence was presented through Dobson’s and Harrison’s testimony.

But, even if those testimonies were insufficient, section 92.565 has eliminated corpus delicti as a predicate for the admission of a defendant’s confession in sexual abuse cases where the state is unable to establish every element of the offense because the victim is physically or mentally incapacitated. State v. Dionne, 814 So.2d 1087 (Fla. 5th DCA 2002); Peterson v. State, 810 So.2d 1095 (Fla. 5th DCA 2002). Once the statutory predicate is established, the state must prove there is suffi-dent corroborating evidence that tends to establish the trustworthiness of the defendant’s confession. A hearing must be conducted by the judge outside the presence of the jury and specific findings of fact must be made on the record to support his or her ruling.

Here the state was unable to show the existence of every element of the crime because the victim was incapacitated from excessive alcohol consumption. In the post-verdict hearing, the judge questioned the credibility of the two teenage witnesses (Dobson and Harrison) but not the credibility of the two detectives who testified about the circumstances surrounding Harrington’s confession. Their testimony regarding the circumstances under which the confession was made was more than sufficient to establish the trustworthiness of that confession.

While the judge did not hold a separate hearing, the substantive provisions of section 92.565 were clearly met. Thus Harrington’s confession was properly admitted and considered by the jury. Harrington’s confession and the other evidence adduced at trial were sufficient to support his conviction for attempted lewd or lascivious battery. Accordingly, I concur with reinstatement of the jury verdict.

      . § 800.04(4)(a), Fla. Stat. (2001).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . By declining to address the substantive issues, the majority opinion sets the stage for an ineffective assistance claim for counsel's failure to object to admission of Harrington's confession. However, since any objection should have been overruled, counsel's failure to object (in my view) would not have changed the outcome and thus does not constitute ineffective assistance of counsel. Du-perier v. State, 590 So.2d 511 (Fla. 4th DCA 1991)(motion to suppress cocaine was properly denied and thus defendant was not denied effective assistance by trial counsel’s failure to preserve issue for appeal by not objecting at time cocaine was offered into evidence; counsel's failure would not have changed outcome of case, as trial court would properly have overruled objection and ruling would have been affirmed on appeal).

      . § 800.04(4)(a), Fla. Stat. (2001).

      . Dobson’s age could not be determined from the record on appeal but the trial judge referred to him as a teenager.

      . Section 800.04(4)(a) provides that a person who engages in sexual activity with a person 12 years of age or older but less than 16 years of age commits lewd or lascivious battery, a second degree felony. "Sexual activity” is defined as the oral, anal, or vaginal penetration or union with the sexual organ of another or the anal or vaginal penetration of another by any other object.

        .Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . This section specifically applies to a prosecution in which the defendant, such as Harrington, is charged with violating section 800.04. § 92.565(2), Fla. Stat.

      . Section 92.565, Florida Statutes, provides
      (1) As used in this section, the term "sexual abuse” means an act of a sexual nature or sexual act that may be prosecuted under any law of this state, including those offenses specifically designated in subsection (2).
      (2)In any criminal action in which the defendant is charged with a crime against a victim under s. 794.011; s. 794.05; s. 800.04; s. 826.04; s. 827.03, involving sexual abuse; s. 827.04, involving sexual abuse; or s. 827.071, or any other crime involving sexual abuse of another, or with any attempt, solicitation, or conspiracy to commit any of these crimes, the defendant’s memorialized confession or admission is admissible during trial without the state having to prove a corpus delicti of the crime if the court finds in a hearing conducted outside the presence of the jury that the state is unable to show the existence of each element of the crime, and having so found, further finds that the defendant’s confession or admission is trustworthy. Factors which may be relevant in determining whether the state is unable to show the existence of each element of the crime include, but are not limited to, the fact that, at the time the crime was committed, the victim was:
      (a) Physically helpless, mentally incapacitated, or mentally defective, as those terms are defined in s. 794.011;
      (b) Physically incapacitated due to age, infirmity, or any other cause; or
      (c) Less than 12 years of age.
      (3) Before the court admits the defendant's confession or admission, the state must prove by a preponderance of evidence that there is sufficient corroborating evidence that tends to establish the trustworthiness of the statement by the defendant. Hearsay evidence is admissible during the presentation of evidence at the hearing. In making its determination, the court may consider all relevant corroborating evidence, including the defendant's statements.
      (4) The court shall make specific findings of fact, on the record, for the basis of its ruling.

      .The detectives informed Harrington of his Miranda rights and he said he understood them. The detectives did not coerce or promise Harrington anything in exchange for his statement. At the beginning of his statement, Harrington indicated he understood his rights, knew how to read and write English, and that he was not under the influence of drugs or alcohol. He also said he was giving his statement freely and voluntarily, without any promise or reward, and without any coercion.


author: NORTHCUTT, Judge.

text:
    Andrew EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4633.
    District Court of Appeal of Florida, Second District.
    March 7, 2003.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Andrew Evans seeks a new trial on charges of battery on a law enforcement officer and resisting arrest without violence. He claims the State, in its questioning of a witness and in its closing argument, improperly injected racial issues into his first trial. We agree, reverse his convictions, and remand for a new trial.

Evans was charged as a result of an incident at a Wal-Mart Department Store. Evans’s stepdaughter, Ms. Jones, worked at the store. Evans and his wife went to the store to pick up Jones at the end of her shift. Evans went into the store to retrieve her while his wife waited outside. Inside, Evans heard that Jones was being investigated for an alleged theft. He went to the room where Jones was being questioned and tried to tell her not to give a statement. At this point, Evans testified, the investigating officer became belligerent, grabbed his arm, and threatened to arrest him. Evans said he tried to leave but another officer blocked his path. Evans squeezed past him and went outside the store to tell his wife about the investigation. According to Evans, another officer approached him, pushed him against a wall, tried to handcuff him, and sprayed him with mace. Two officers then tied his legs together and placed him in a police cruiser.

The law enforcement personnel told a different story. The officer investigating Jones said Evans was agitated when he entered the room. He began swearing, and when the officer attempted to escort him out, Evans pushed the officer’s hand away. Evans’s demeanor continued to worsen as the officer maneuvered him out of the store. The officer used his body to place Evans against an outside wall of the Wal-Mart. Evans began yelling and flailing about. Another officer came to assist. They had to force Evans to the ground and spray him with mace in order to handcuff him.

These divergent versions of the incident show that this case was a credibility contest. The defense pointed out that numerous shoppers had seen what happened and perhaps could have helped the jury determine which version was closer to the truth. But the officers and the Wal-Mart employees had not obtained the witnesses’ names.

During the State’s case, the Wal-Mart manager testified he had heard comments from a crowd outside the store to the effect that Evans was not being treated properly. The prosecutor then posed the following series of questions:

Q. [LJet’s talk about that for a minute. What kind of context were these comments made in?
A. During — what do you mean by context?
Q. Tell the jury the — demographics of the people in the crowd.
A. It wasn’t — are you asking me whether it’s racially oriented?
Q. Yes.
A. Yes, it was.
Q. Was [Evans] and his wife in any way instigating the crowd regarding the race card issue?
A. Not to my knowledge, no.
Q. The people in the crowd, what kind of comments were they making, was it race-related?
A. Yes, it was.
Q. And were the comments coming from — from African American people?
A. Yes.
The prosecutor continued his race-based argument in closing:
But he doesn’t want you to believe what [the manager] said after that, which was, yeah, there were people out there in the parking lot not happy about what was happening with [Evans]. [Defense counsel] wants you to believe that out of [the manager]. But he doesn’t want you to believe the next thing [the manager] said, which was, those people were African Americans. [Defense counsel] wants you to stop at that point. [The manager] said, the African Americans were upset about it, not whites, and not Hispanics. And, I’m sorry, race issues exist.

Our courts have consistently recognized the impropriety of injecting irrelevant racial references into a trial, particularly when the comments are made by a lawyer representing the State in a criminal prosecution. See Wallace v. State, 768 So.2d 1247, 1260 (Fla. 1st DCA 2000); Perez v. State, 689 So.2d 306, 307 (Fla. 3d DCA 1997). By its questions and comments in Evans’s trial, the State insinuated that the witnesses to the incident would have been of no value because they, like Evans, were African Americans and would have taken his side no matter what the truth was. The prosecutor implied that the witnesses would have perjured themselves to support a defendant of their race. As we stated in Terrazas v. State, 696 So.2d 1309, 1310 (Fla. 2d DCA 1997), attempts to attribute criminal conduct to persons based on their race have been universally condemned. The State’s race-based comments fatally tainted Evans’s trial.

We reverse Evans’s convictions and remand for a new trial.

WHATLEY and COVINGTON, JJ., Concur.


author: MONACO, J.

text:
    Kenneth COLE and Sandra Cole, Appellants, v. HERITAGE COMMUNITIES, INC., Appellee.
    No. 5D02-2078.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.

      Michael D. Sechrest and David L. Worthy, of Peter A. Robertson & Associates, P.A., Gainesville, for Appellants.
    Michael J. Cooper, Ocala, for Appellee.
   MONACO, J.

The appellants appeal a final judgment rendered after a non-jury trial on their suit for breach of contract and breach of express and implied warranties against the builder and seller of a house that they purchased in 1997. We find no error and affirm. Two issues raised by the appellants, however, merit discussion.

The appellants assert that the trial court erred in failing to grant a continuance of the trial. Suit was brought by the appellants in 1998. In 2001, counsel for appellants moved to Tallahassee, and very little activity occurred for the next year. On February 6, 2002, the trial court entered an order setting a pre-trial conference on March 27, 2002, and a trial for the trial period beginning April 29, 2002. Appellant’s original lawyer was granted permission to withdraw on March 5, 2002, but the trial court noted that the previously scheduled trial was not postponed as a result of the withdrawal. New counsel appeared of record and filed a motion for continuance shortly thereafter, indicating that he could not be ready for the trial as scheduled, and that additional discovery was necessary. The trial court denied the motion without a hearing, but did leave discovery open until a few days before trial. Counsel for the appellants renewed the motion at the beginning of trial on May 9, 2002, and it was once again denied. The appellants assert that the refusal to continue their case was an abuse of discretion.

The grant or denial of a continuance is within the sound discretion of the trial court. See Ziegler v. Klein, 590 So.2d 1066 (Fla. 4th DCA 1991). This was a four-witness, one-day, non-jury case that took four years to get to trial, and that had previously been continued a year earlier. The appellants took essentially no action for a year after their attorney moved to a distant city. When the appellant’s prior attorney withdrew, the order allowing the withdrawal specifically noted that the trial was to remain as scheduled. For this case, four years was more than enough.

In Fleming v. Fleming, 710 So.2d 601 (Fla. 4th DCA 1998), certain factors to be considered in determining whether a trial court abuses its discretion in denying a motion for continuance were identified, including: (1) whether the denial of the continuance creates an injustice for the movant; (2) whether the cause of the request for continuance was unforeseeable by the movant, and not the result of dilatory practices; and (3) whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance. Id. at 603; see also Peiman v. Peiman, 829 So.2d 307 (Fla. 5th DCA 2002); Onett v. Ahola, 780 So.2d 979 (Fla. 5th DCA 2001); Florida Fruit & Vegetable Ass’n. v. Wells, 755 So.2d 828 (Fla. 5th DCA 2000). Notably, the withdrawal of an attorney does not give the client an absolute right to a continuance. See Alter v. Alter, 473 So.2d 775 (Fla. 3d DCA 1985).

There is nothing in the record to indicate that the denial of the appellants’ motion for continuance created an injustice for them. This was not a difficult trial. There were few witnesses, and the appellants had possession of and introduced all of the necessary documents into evidence. Ample time had been allowed for discovery, and discovery was extended by the trial court to accommodate the schedule of appellants’ new counsel. The appellants must certainly have known that a trial was coming, yet they took no action to secure new counsel until the last moment. Finally, the appellee had a right to see the final conclusion of litigation that had lasted three years beyond the one year presumptively reasonable period to bring a case to non-jury trial. See Florida Rule of Judicial Administration 2.085(d); compare Thompson v. General Motors Corporation, Inc., 439 So.2d 1012 (Fla. 2d DCA 1983). The trial judge committed no error in denying the motion for continuance.

The second issue raised by appellants that merits discussion concerns whether the trial court erred in rejecting the testimony of their expert. We again find no error.

A trier of fact may accept or reject all or any part of an expert’s testimony. See Tolley v. Department of Health & Rehabilitative Servs., 667 So.2d 480 (Fla. 5th DCA 1996); Burton v. Powell, 547 So.2d 330 (Fla. 5th DCA 1989); see also Shaw v. Puleo, 159 So.2d 641 (Fla.1964). Instruction 2.2b. of the Florida Standard Jury Instructions In Civil Cases, in fact, says specifically that the jury may,

accept such opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all other evidence in the case.
The trial court as the trier of fact considered the conflicting testimony and related in the final judgment that he placed “no weight on the testimony or credibility” of the appellants’ expert. He rejected that testimony in favor of the evidence offered by the appellee. The trial court had a right to do so.

AFFIRMED.

SAWAYA and PLEUS, JJ., concur.


text:
    SIMON DEBARTOLO GROUP, INC., Appellant, v. Emma Jean BRATLEY and Frank , Bratley, Appellee.
    No. 1D02-1355.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Richard A. Sherman, Esq. of the Law Office of Richard A. Sherman, P.A., Ft. Lauderdale; Jack Luks, Esq. of Luks & Santaniello, L.L.C., Ft. Lauderdale, for Appellant.
    Charles A. Sorenson, Esq. and Richard R. Alexander, Esq. of Coker, Myers, Schickel, Sorenson, Higginbotham & Green, P.A., Jacksonville, for Appellee.
   PER CURIAM.

We affirm. See Lewis v. Bondy, 752 So.2d 1225 (Fla. 1st DCA 2000); see also Labaton v. Mellert, 772 So.2d 622 (Fla. 4th DCA 2000). Because section 768.79(7)(b), Florida Statutes, directs trial courts to consider, in determining the reasonableness of an attorney’s fee award, certain enumerated factors “along with all other relevant criteria,” and because sections 768.79(6)(a) and (b), Florida Statutes, refer trial courts to the guidelines promulgated by the supreme court, we agree with the Second and Fourth Districts that the Legislature authorized trial courts to consider and apply a contingency risk multiplier when awarding an attorney’s fee award pursuant to section 768.79. See Island Hoppers, Ltd. v. Keith, 820 So.2d 967, 974 (Fla. 4th DCA 2002); Pirelli Armstrong Tire Corp. v. Jensen, 752 So.2d 1275, 1276 (Fla. 2d DCA 2000). In doing so, we note conflict with Allstate Insurance Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001) (en banc), review granted, 826 So.2d 992 (Fla.2002).

AFFIRMED.

BOOTH, WEBSTER and LEWIS, JJ„ concur.


text:
    FLORIDA POWER & LIGHT COMPANY, FPL Group, Inc., FPL Fibernet, LLC, FPL Group Capital, Inc., and FPL Investments, Inc., Petitioners, v. J.W. THOMAS, Ernestine M. Thomas, Chester Jenkins, Marie Jenkins, and Ray Norman and Jack Teague, Co-Personal Representatives of the Estate of Robert L. Johns, et al., Respondents.
    No. 1D02-3277.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Gary K. Harris and Cynthia M. Moore of Boies, Schiller & Flexner LLP, Orlando; M. Blair Payne of Darby, Peele, Bowdoin, Payne & Kennon, Lake City, for Petitioners.
    Jon C. Moyle, Jr., Cathy M. Sellers and William H. Hollimon of Moyle, Flanigan, Katz, Raymond & Sheehan, P.A., Tallahassee; Guyte P. McCord, III, of McCord, Bubsey, Ketchum & Donahue, LLP, Tallahassee; James W. Prevatt, Jr., of Sellers & Prevatt, Live Oak, for Respondents.
   PER CURIAM.

Petitioners seek review, by a petition for common law certiorari, of a trial court order denying their motion for a protective order bifurcating class certification discovery from merits discovery, and staying merits discovery. Because they have failed to carry their burden of demonstrating that the order will result in irreparable injury, we dismiss the petition for lack of jurisdiction. See Bared & Co. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996) (en banc) (holding that irreparable injury is a jurisdictional prerequisite to certiorari review); Topp Telecom, Inc. v. Atkins, 763 So.2d 1197 (Fla. 4th DCA 2000) (holding that parties seeking a protective order on the ground that the discovery requested would be unduly burdensome bear the burden of presenting evidence in the trial court to support that position).

PETITION FOR WRIT OF CERTIO-RARI DISMISSED.

BOOTH, WEBSTER and LEWIS, JJ., concur.


text:
    Susan WOODRING, Appellant, v. WISE MICROCOMPUTER SOLUTIONS, INC., a Florida corporation, Wendell Brian Phillips, and Debra Bevan, Appellees.
    No. 02-2112.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, for Appellant.
    J. Michael Lindell and Karen E. Wend-zel, of Lindell & Kellison, P.A., Jacksonville, for Appellees.
   PER CURIAM.

The appeal is DISMISSED as moot. See Insurance Field Services, Inc. v. White & White Inspection and Audit Service, Inc., 384 So.2d 303 (Fla. 5th .DCA 1980)(an injunction to enforce a covenant not to compete became moot when the covenant lapsed by its own terms).

BARFIELD, POLSTON and HAWKES, JJ., concur.


text:
    CALDER RACE COURSE, INC., a Florida corporation, and Tropical Park, Inc., a Florida Corporation, Appellants, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Division of Pari-Mutuel Wagering, an agency of the State of Florida; Investment Corporation of Palm Beach, a Florida corporation; and Daytona Beach Kennel Club, Inc., a Florida corporation, Appellees.
    No. 1D02-1244.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Wilbur E. Brewton, Kelly B. Plante and Tana D. Storey of Brewton, Plante & Plante, P.A., Tallahassee, for Appellants.
    Harold F.X. Purnell of Rutledge, Ece-nia, Purnell & Hoffman, P.A., Tallahassee, for Appellee Daytona Beach Kennel Club.
    Robert W. Pass and E. Kelly Bittick, Jr., of Carlton Fields, P.A., Tallahassee, for Appellee Investment Corporation of Palm Beach.
   PER CURIAM.

Appellants seek review of a final order dismissing their complaint with prejudice, as barred by res judicata and collateral estoppel. Because we conclude that neither the affirmative defense of res judicata nor that of collateral estoppel is conclusively demonstrated within the four corners of the complaint, we hold that it was error to dismiss the complaint with prejudice as barred by either defense. See, e.g., Liv ingston v. Spires, 481 So.2d 87 (Fla. 1st DCA 1986). Accordingly, we reverse, and remand for further proceedings.

REVERSED and REMANDED, with directions.

BOOTH, WEBSTER and LEWIS, JJ., concur.


text:
    William LAINE, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4935.
    District Court of Appeal of Florida, First District.
    March 10, 2003.
    Harold S. Richmond, Quincy, for Appellant.
    Charlie Crist, Attorney General; Janelle Gillaspie, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse appellant’s conviction because there was insufficient evidence that it was appellant who committed the crime. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002)(ruling that “if the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence”). Accordingly, we remand with directions that the trial court vacate the judgment of conviction and order placing appellant on probation and enter a judgment of acquittal. See Hubbard v. State, 828 So.2d 494 (Fla. 1st DCA 2002).

REVERSED and REMANDED, with directions.

DAVIS, BROWNING and POLSTON, JJ., concur.


text:
    Isidro G. GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3817.
    District Court of Appeal of Florida, First District.
    March 10, 2003.

      Isidro G. Gonzalez, Pro Se.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his new sentence upon being re-sentenced pursuant to Heggs v. State, 759 So.2d 620 (Fla. 2000). Although the issue of Appellant’s lack of representation during the re-sentencing hearing was not properly preserved for appeal, the denial of the right to counsel is fundamental error. See Tyler v. State, 710 So.2d 645 (Fla. 4th DCA 1998) (holding that the denial of the right to counsel is fundamental error); see also May v. State, 623 So.2d 601, 608 (Fla. 2d DCA 1993) (stating that the Sixth Amendment right to counsel is a fundamental right). Once a trial court determines that a defendant’s sentence is illegal and the defendant is entitled to re-sentencing, the full panoply of due process considerations attaches. See State v. Scott, 439 So.2d 219, 220 (Fla.1983). Sentencing is a critical stage of the criminal proceedings; thus, a sentencing hearing is mandatory. See id. at 221. As such, an indigent defendant is entitled to appointment of counsel at re-sentencing. See id.; see also McDonald v. State, 679 So.2d 1273 (Fla. 1st DCA 1996).

The lack of representation is not a sentencing error, but rather a due process error. Thus, Appellant may properly raise this issue on appeal. Cf. Harvey v. State, 786 So.2d 28 (Fla. 1st DCA 2001) (holding that unpreserved sentencing errors will not be entertained on appeal after the adoption of rule 3.800(b)). Regardless of whether Appellant requested 122 months in his original motion, he did not expressly waive his right to appointed counsel. There is no waiver of counsel in the record, therefore, the trial court erred in fading to appoint counsel at the re-sentencing hearing. Such error is never harmless. See Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978) (“The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.”) (citations omitted); State v. DiGuilio, 491 So.2d 1129, 1137 (Fla.1986) (“Denial of counsel is always harmful, regardless of the strength of the admissible evidence, and can be properly categorized as per se reversible.”).

Accordingly, we vacate Appellant’s sentence and remand for further re-sentencing.

BOOTH, WOLF and KAHN, JJ., concur.


author: FULMER, Judge.

text:
    Candice NULPH, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2307.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Candice Nulph pleaded no contest to trafficking in amphetamine, possession of cannabis, and possession of drug paraphernalia, reserving her right to appeal the denial of a motion to suppress evidence. We reverse the convictions and direct the trial court to grant the motion to suppress because we conclude that Nulph was subjected to an unreasonable detention when the officer prolonged the traffic stop beyond the time necessary to issue a citation for a careless driving infraction.

Nulph was a passenger in a car driven by Peter Dion. Detectives Horsman and Gilbert of the Polk County Sheriffs Office had information from a confidential source indicating that Dion was staying at a particular residence and was in possession of a large quantity of methamphetamine. A day after receiving that information, the officers were conducting surveillance in the area of Dion’s residence. The officers recognized Dion’s car as it left the neighborhood, and they followed it. The officers had no indication that Dion had drugs in the car, and it was admitted that when the officers ultimately stopped Dion for careless driving, the stop was not based on any cause to believe that the car contained narcotics.

Detective Horsman did not know that Dion was the driver until after he conducted the stop and obtained Dion’s identification. The detective then immediately attempted to locate a drug-certified canine to walk around the vehicle. After determining that all of the sheriffs canines were unavailable, the detective requested assistance from Officer Taylor of the Winter Haven Police Department. It took Officer Taylor seventeen minutes to respond to the scene with a canine. In the meantime, Detective Horsman ran a driver’s license and registration check on Dion and ran a warrants check on Dion and Nulph. It took about fifteen minutes to run the checks and the results were negative. By the time Officer Taylor arrived, Detective Horsman had finished running the checks and was standing at the back of his vehicle waiting for the officer to arrive. The stop had lasted approximately twenty minutes at that point. Detective Horsman never gave Dion a citation for careless driving.

Nulph argues that the traffic stop lasted longer than was reasonably necessary to deal with the situation. The State argues that the vehicle was not detained longer than necessary to issue a citation, and even if the detention was unreasonably long for the issuance of a citation, the delay was justified because the officer had a reasonable suspicion that the occupants were in possession of narcotics.

“If a driver is stopped for the commission of a traffic infraction, he or she may be subjected to a canine search of the exterior of the vehicle so long as it is done within the time required to issue a citation.” Eldridge v. State, 817 So.2d 884, 887 (Fla. 5th DCA 2002). “The law is clear that a person may not be detained for a traffic violation for any longer than necessary to issue a citation.” Summerall v. State, 777 So.2d 1060, 1061 (Fla. 2d DCA 2001) (citing Cresswell v. State, 564 So.2d 480 (Fla.1990)). “In order to justify a detention beyond the time needed to issue a citation, the officer must have a reasonable suspicion based on articulable facts that criminal activity is occurring.” Id.

We agree with Nulph that the stop was unreasonably long under the circumstances. The detective testified that the car was stopped for careless driving, but after the driver produced identification, the detective knew that he was Peter Dion, a suspected drug dealer. Therefore, the detective called for a canine and waited seventeen minutes for one to arrive. By the time the canine arrived, Detective Horseman testified, “I had finished running the warrants checks and everything, and basically I was just standing by and keeping myself organized. I was actually digging out some arrest affidavits from the trunk when he showed up.”

It is clear from the detective’s testimony that the vehicle was being detained based on a suspicion of drug possession, rather than for the issuance of a citation for a traffic infraction. After all checks were run on the vehicle and the occupants, the detective had not even begun to write a citation and instead was standing by waiting for the canine to arrive. The detective testified that he had made a conscious decision not to start writing a citation because he wanted to first wait for Officer Taylor.

Although we cannot say that the detention was unreasonably long had the detective decided at the outset to issue a citation, that is not what occurred. After twenty minutes into the detention, the detective still had not decided whether to issue a citation and was only continuing the detention to investigate his suspicions of drug activity. This was improper because the detective did not articulate a reasonable suspicion that the vehicle occupants were committing a crime, and although the detective suspected Dion of being a drug dealer, the detective did not have a basis to suspect that either Dion or Nulph was in possession of drugs at the time of the traffic stop. The detective indicated, in response to questioning by the State, that the stop was not based “on the Carroll Doctrine or any probable cause that [the vehicle] contained narcotics.”

We therefore reject the State’s arguments that the length of the detention was reasonable and, alternatively, that the delay in releasing the vehicle was justified by a reasonable suspicion of drug possession.

Reversed and remanded.

SALCINES and STRINGER, JJ., concur.

      . Because we are reversing on the suppression issue, we do not address the sentencing issue raised.


author: KELLY, Judge.

text:
    Ruby FOSKEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1289.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Ruby Foskey appeals from an order requiring her to pay $524.70 in restitution. Foskey argues that the order must be reversed because she was not represented by counsel at the restitution hearing. The State concedes that Foskey was entitled to have counsel present during the restitution hearing. We agree. See Moment v. State, 645 So.2d 502 (Fla. 4th DCA 1994). Accordingly, we reverse and remand for a new evidentiary hearing.

Reversed and remanded.

SALCINES and CANADY, JJ., Concur.


text:
    Michael AVERY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2165.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    James Marion Moorman, Public Defender, Bartow, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Michele Taylor, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Michael Avery challenges the trial court’s final order of restitution requiring him to pay $1824.06 to Gold Coast Eagle Distributors. We reverse and remand for further proceedings.

Avery pleaded guilty to grand theft and was sentenced to two years’ probation and ordered to pay restitution, the amount to be determined. Avery did not attend the April 24, 2002, restitution hearing, but the State presented evidence that the charges arose when Avery, an employee of Gold Coast, accepted cash payments from customers without turning the money over to Gold Coast. Originally, he took $758.30, but the parties agree that he repaid that money. Jeff Lukowsky, the Gold Coast employee investigating the thefts, testified that his investigation led him to suspect that Avery also took $1311.06, that Avery had admitted to taking that amount, and that Avery had repaid $50 toward that amount. Lukowsky further testified to the costs of his investigation. The trial court ordered restitution in the amount of $1824.06, which consisted of the $1311.06 less the $50 repaid, plus $563 in investigative fees.

On appeal, Avery argues that the additional $1311.06 was not part of the original charge against him, that Lukowsky’s investigative costs were not substantiated or reasonable, and that he did not voluntarily waive his presence at the restitution hearing.

As to the restitution being ordered in Avery’s absence, we affirm without comment the trial court’s ruling that Avery voluntarily absented himself from the proceeding. We conclude, however, that the trial court erred in setting the amount of restitution.

The information charged that Avery
did knowingly and unlawfully obtain or use, or endeavor to obtain or use, certain property of another, to-wit [sic]: U.S. CURRENCY, the property of GOLD COAST EAGLE DISTRIBUTORS, the value of said property being three hundred ($300.00) dollars or more, but less than five thousand ($5,000.00) dollars, and in so doing intended to either permanently or temporarily deprive the said GOLD COAST EAGLE DISTRIBUTORS of a right to the property....

Although Lukowsky testified that he informed the investigating officer of the second theft of $1311.06, the arrest warrant only referenced the original $758 that Avery already had repaid. Additionally, the factual basis recited at Avery’s plea hearing referred only to the $758 theft. As such, the second theft is a separate offense for which Avery has not been charged and which cannot affect the calculation of restitution here. We therefore reverse the restitution order and remand for determination of what portion of the investigative costs pertained to the original $758 theft.

Reversed and remanded.

NORTHCUTT, J., and GREEN, OLIVER L., Senior Judge, Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Delmar HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1463.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    James Marion Moorman, Public Defender, Bartow, and Siobhan Helene Shea, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   THREADGILL, EDWARD F., Senior Judge.

Delmar Hampton challenges the trial court’s denial of his motion to withdraw his no contest plea. Hampton was originally charged with sexual battery, possession of marijuana, and possession of paraphernalia. He was permitted to plead no contest to lesser included offenses and was sentenced to a total of eight years’ probation. We reverse and remand for further proceedings.

Hampton filed his motion to withdraw plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(Z), which allows a defendant who has pleaded guilty or nolo contendere to appeal an involuntary plea if preserved by a motion to withdraw plea. Although Hampton raises two issues on appeal, one is disposi-tive. Hampton argues that the trial court’s refusal to appoint counsel to assist him in preparation of his motion to withdraw plea denied him his Sixth Amendment right to counsel. We agree. A motion to withdraw plea is a critical stage of a criminal proceeding at which an indigent defendant is entitled to court-appointed counsel. Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999).

Although Hampton was technically still represented by counsel and the court could have refused to consider his motion on that basis, see Harris v. State, 818 So.2d 567 (Fla. 2d DCA 2002), the court nevertheless proceeded to consider and rule on Hampton’s motion without questioning him or his counsel regarding Hampton’s representation. The court denied Hampton’s motion without providing him assistance of counsel or an evidentiary hearing. This was per se reversible error. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967).

Citing Cunningham v. State, 677 So.2d 929 (Fla. 4th DCA 1996), the State argues that Hampton was not entitled to counsel because Hampton merely had a conflict with his counsel. However, as the court observes in Padgett, 743 So.2d at 73-74, Cunningham is factually distinguishable. In Cunningham, there was no factual dispute regarding counsel’s allegedly coercive behavior that occurred in private and off the record. By contrast, Hampton alleged in his pro se motion to withdraw plea that his trial counsel had “lied to” and “deceived” him, inducing him to enter the plea. This type of conflict requires the appointment of counsel. See Padgett, 743 So.2d at 73-74.

We reverse and remand the judgment and sentence with directions to allow Hampton to file a new motion to withdraw his plea with the assistance of counsel.

FULMER and CASANUEVA, JJ., Concur.


author: WHATLEY, Judge.

text:
    Charles KOHLER, Appellant, v. Angelica T. VEGA-MALTES, Appellee.
    No. 2D02-2442.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.

      Manuel N. Lindiakos and Celene Hum-phries of Manuel N. Lindiakos, P.A., Tarpon Springs, for Appellant.
    John Boult of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Appellee.
   WHATLEY, Judge.

Charles Kohler appeals the dismissal of his complaint for failure to comply with Florida Rule of Civil Procedure 1.070Q), which requires service of process within 120 days of filing the complaint. We reverse.

Florida Rule of Civil Procedure 1.0700) provides the following:

If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period....

In Chaffin v. Jacobson, 793 So.2d 102, 104 (Fla. 2d DCA 2001), this court held that if a plaintiff demonstrates good cause or excusable neglect for the failure to make timely service, the trial court must extend the time for service and it has no discretion to do otherwise. However, this court further held that if neither good cause nor excusable neglect is shown, the trial court still has discretion in deciding whether to dismiss a complaint. Id. This court noted that Florida has a long-standing policy in favor of resolving civil disputes on the merits, and therefore, where the statute of limitations has run and there has been no showing of good cause or excusable neglect, discretion should be exercised in favor of giving the plaintiff an extension of time to accomplish service. Id. This court held that the trial court abused its discretion in not extending the period of time for service where service had been obtained at the time of the hearing on the motion to dismiss and the statute of limitations had run. Id.

In the present case, Kohler filed his complaint on December 1, 2000, and therefore, service was required to be accomplished by April 2, 2001. On March 2, 2001, a summons was issued, and on April 16, an affidavit of nonservice was filed by Kohler’s private investigation firm. On May 17, 2001, Kohler filed a motion for extension of time to accomplish service, which was granted, and on July 18, Kohler filed an affidavit of compliance.

On March 17, 2001, the litigation assistant for Kohler’s counsel became very ill and missed work during the following weeks, and on April 11, 2001, the assistant underwent surgery. On March 21, 2001, the mother of Kohler’s counsel unexpectedly passed away, and counsel was out of the office for a couple of weeks.

We agree with Kohler that such facts establish good cause and excusable neglect for the failure to timely effectuate service of process. Further, even if there had not been a showing of good cause or excusable neglect, the trial court abused its discretion in granting the motion to dismiss where the statute of limitations had run and an affidavit of compliance had been filed at the time of the hearing on the motion to dismiss. Id.

Reversed and remanded for further proceedings.

SILBERMAN and KELLY, JJ„ Concur.


text:
    John E. GARY, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Florida Blood Services, INC., Appellees.
    No. 2D01-5600.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    Clay C. Schuett, LLC, Indian Rocks Beach, for Appellant.
    Emil C. Marquardt of Macfarlane, Ferguson & McMullen, Clearwater and Brendan M. Lee of Macfarlane, Ferguson & McMullen, Tampa, for Appellees.
   FULMER, Judge.

John E. Gary appeals the decision of the Unemployment Appeals Commission denying his claim for unemployment benefits. Gary argues that the Commission erred in rejecting the findings made by the appeals referee because there was competent, substantial evidence in the record to support the referee’s findings. We agree and reverse.

Gary was initially denied benefits based on a determination that he was discharged for absenteeism from Florida Blood Services. Gary then filed a letter requesting a review of the denial of benefits. He wrote:

I was fired due to absences, but these were due to depression. I have documented proof that I had sought counseling for depression and requested time off through Human Resources (which was denied). I have been suffering from depression due to a recent separation from my wife and the loss of custody of my three year old daughter.

In response, Rox Hoxworth, Director of Human Resources for Florida Blood Services, faxed a letter to the Commission for Gary’s file, stating: “I have no knowledge of claimant’s Dr. request or request for time off. Supervisor recommended attending employee assistance program to get help for personal problems. I don’t know if he sought help.”

The appeals referee conducted a telephone hearing. Gary and Hoxworth were the only witnesses. The referee first questioned Hoxworth and asked, “Were you aware that [Gary] was suffering from depression?” Hoxworth testified that he was not aware of Gary’s condition but he was aware that the supervisor had recommended the employee assistance program for Gary to get help with his personal problems. Gary testified that family-related problems caused his absenteeism and that he did attend the employee assistance program when it was suggested by his supervisor. Gary also testified that he asked his supervisor for a medical leave of absence, but his request was denied. Gary testified that he was receiving private counseling at the time of his discharge.

The appeals referee reversed the denial of benefits, finding that Gary had sought medical help for depression through the employee assistance program and had requested a medical leave of absence. The referee found that when leave was denied, Gary continued to be absent and was terminated. The referee concluded that because of Gary’s ongoing illness, his conduct and attendance record were not so egregious as to amount to misconduct connected with work.

The employer appealéd' the referee’s decision and the Commission reversed. The Commission concluded, first, that the referee’s decision was not supported by the record. We disagree with this conclusion. Our review of the record reveals that the referee’s findings were based on competent, substantial record evidence. The Commission, therefore, exceeded its scope of review. See Anderson v. Unemployment Appeals Comm’n, 822 So.2d 563, 567 (Fla. 5th DCA 2002) (“[W]here there is competent, substantial evidence to support the referee’s findings of fact, the Commission may not reweigh the evidence and substitute its findings of fact for those of the referee.”); Johnston v. Homeowners Warehouse, Inc., 654 So.2d 934, 934 (Fla. 3d DCA 1994) (“The Commission’s ruling exceeded its authorized scope of review, which precludes reweighing the evidence -”).

Aside from rejecting the referee’s findings, the Commission determined that even if Gary had been suffering from depression, it was incumbent upon him to provide his employer with medical documentation. We agree with Gary that the medical documentation requirement is not supported by the law. Cf. Gilbert v. Dep’t of Corr., 696 So.2d 416 (Fla. 1st DCA 1997) (discussing claimant’s burden after dismissal for excessive absenteeism). Accordingly, we reverse the denial of benefits.

Reversed and remanded.

SALCINES and STRINGER, JJ., concur.


text:
    Vincent R. QUEVADO, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3938.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.
    James Marion Moorman, Public Defender, and AJIyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Vincent Quevado protests the sentence he received for a,probation violation after he successfully challenged his original sentence in a motion for postcon-viction relief. We agree with Quevado that the sentence imposed in March 2001 is incorrect, and we reverse it.

Quevado was charged with a homicide that took place in July 1983. In April 1984, he pleaded guilty to manslaughter and was placed on seven years’ probation. A guidelines scoresheet was prepared at that time, and Quevado claims he received a guidelines sentence. (If so, it was a downward departure.)

Quevado violated his probation in December 1984. He was not apprehended until 1999, at which time he admitted the violation. In June 1999, the circuit court sentenced him to a nonguidelines sentence of fifteen years’ imprisonment. Afterward, Quevado filed a motion pursuant to Florida Rule of Criminal Procedure 3.850, alleging his counsel was ineffective for not advising him he could be sentenced under the guidelines.

• At the March 2001 hearing on Quevado’s rule 3.850 motion, defense counsel and the prosecutor discussed the “1984 guidelines,” and focused on whether the court could apply a one cell bump for Quevado’s probation violation. Such a bump would result in a permissive sentencing range with an upward limit of seventeen years’ imprisonment. Concluding the bump was appropriate, the court again imposed fifteen years’ imprisonment, this time as a guidelines sentence. That sentence is the subject of this appeal.

We must reverse the sentence imposed under the 1984 guidelines because they cannot be applied to a crime committed before their enactment. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). Quevado’s crime was committed in 1983. But the 1983 guidelines cannot be used to sentence him because they were declared unconstitutional. Smith v. State, 537 So.2d 982 (Fla.1989) (holding the guidelines unconstitutional for offenses committed before July 1, 1984). Quevado should have been given the option (1) to receive a nonguidelines sentence, under which he would be eligible for parole; or (2) to be sentenced under the guidelines in effect in 1999 when he was sentenced for his probation violation. See Kunkel v. State, 765 So.2d 244 (Fla. 1st DCA 2000). We understand that the circuit court did not offer this option because it was misled by all involved to believe that the constitutional 1984 guidelines applied.

Quevado’s rule 3.850 motion asked that he be sentenced under the guidelines, but he was under the misapprehension that the 1983 guidelines would be used. Because of the confusion in this case, and in the interests of justice, we remand with instructions to give Quevado the option under Kunkel to elect either a nonguide-lines sentence or one under the 1998 Criminal Punishment Code, the guidelines in effect at the time of his sentencing on the probation violation.

Reversed and remanded.

DAVIS, J., and THREADGILL, EDWARD F., Senior Judge, concur.