author: PETERSON, J.

text:
    H.P. Father of H.P., Jr., and J.P., Children, Appellant/Cross-Appellee, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellees/Cross-Appellants.
    Nos. 5D02-1026, 5D02-1262.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2003.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant/Cross-Appellee, H.P.
    James A. Sawyer, Kissimmee, for Appel-lee/Cross-Appellant, Department of Children and Families.
    Timothy A. Straus of Moyer, Straus & Patel, P.A., Altamonte Springs, for Appel-lee/Cross-Appellant, E.W. V-S.
   PETERSON, J.

H.P., the natural father, and the Florida Department of Children & Families (DCF) appeal the trial court’s order awarding custody of two minor children to E.W. VS., the natural mother, who is a resident of Massachusetts.

In 1994 a Massachusetts court dissolved the father and mother’s marriage and custody was awarded to the father who changed his residence to Florida shortly after the dissolution. Several years later, in 2001, the Florida trial court adjudicated the children dependent after finding that the father had physically abused one of the minor children on more than one occasion. A disposition order was entered placing the children with a third-party followed by a post-disposition motion by the mother asking that she be awarded custody. A hearing on that motion resulted in the trial court finding that:

1. Although a home study is required prior to placing a child in the custody of a nonoffending parent, the information furnished by the mother that included verification of household income, photographs of her home and background checks certified by Massachusetts law enforcement constituted a home study for the purposes of the relevant statute.
2. Department of Children & Families v. Benway, 745 So.2d 437 (Fla. 5th DCA 1999) was not dispositive of the instant case.
3. The delays inherent in the Interstate Compact on Placement of Children (ICPC), § 409.401, Fla. Stat. (2001) rendered it unconstitutional to the extent that it precludes or delays placement of children in the custody of a nonoffending parent when no detriment to the children is shown.
4. Discretion to terminate jurisdiction would not be exercised pursuant to Florida Statute 39.521(3)(b)l because of a 1994 Massachusetts decree that awarded custody to the father.

The mother cross-appeals the trial court’s reservation of jurisdiction.

Home Study

Section 39.521(3)(b), Florida Statutes (2001), provides that if a parent with whom a child was not residing at the time the events arose leading to the court’s jurisdiction wishes to assume custody, the court shall place the child with the parent after a home study. Section 39.521(2)(r) places the burden on DCF to conduct the study and specifies the minimum requirement of the home study’s contents. Because the mother resides in Massachusetts and the children will be residing in that state, DCF cannot conduct the home study, but the ICPC fills that void. Each member state has a “Compact Administrator,” as required by Article VII of the ICPC as codified in Section 409.401, Florida Statutes. A home study conducted by the receiving state can be arranged through the Massachusetts Compact Administrator. If the sending state is concerned with the timeliness of a home study, investigation can be made to determine whether private sector licensed agencies are available.

Article 11(b) of the ICPC applies when a court of a party state (defined as a sending agency) places a child in the receiving state, in this case, Massachusetts. Article II prohibits sending a child to the receiving state until that state gives notice that placement in the state would not appear contrary to the interests of the child. Causing the child to be sent to the receiving state prior to complying with the terms of the compact results in an illegal act invoking penalties that may be imposed by both states.

Although we can detect the trial court’s frustration with any delay inherent in following ICPC procedures, finding the ICPC process unconstitutional in the absence of a challenge by a party in order to ignore ICPC procedures seems extreme. Florida has joined the compact to ensure protection and services to children who are placed across state lines, and should the need for out-of-state placement cease, Florida must be confident that a system exists to return the child to this state. This latter factor is most important in the instant case because the record at the hearing awarding custody to the mother indicated that the trial court desired to retain jurisdiction in order to monitor the father’s performance under the case plan and consider whether future reunification was possible. The anticipated delay by the trial court was speculative and the record does not reflect any attempt to request that coordination between the sending and receiving state’s Compact Administrators be expedited.

Applicability of ICPC

Article YII of the ICPC contemplates the promulgation of rules and regulations. Regulation 3 of the ICPC was amended in May 2001 to clarify that:

The compact does not apply whenever a court transfers the child to a non-custodial parent with respect to whom the court does not have evidence before it that such parent is unfit, does not seek such evidence, and does not retain jurisdiction over the child after the court transfers the child.

In the instant case, the trial court took evidence as to the fitness of the non-custodial parent/mother and retained jurisdiction while commenting about the custodial parent/father’s case plan and possible reunification. The retention of jurisdiction placed the matter squarely within the requirements of the ICPC.

By amending Regulation 3 in 2001, the Association of Administrators of ICPC (AAICPC) attempted to address the broadening of the scope of the ICPC by the courts and perhaps alleviate any constitutional concerns regarding parent’s rights. The AAICPC has slightly narrowed the coverage and constraints of the ICPC where placement of children with non-custodial, non-offending parents is concerned. Such a narrowing is consistent with the purposes of the ICPC (provide a suitable placement of children) and it appears that in the instant case the trial court’s placement of the children with their non-custodial, non-offending, out-of-state natural mother is also consistent with the ICPC and Regulation 3(6)(b). (Regulation 3(6)(b) requires that there must be evidence the parent is unfit in order to block the placement). Furthermore, Regulation 3(6)(b) conforms with and addresses this court’s concern in Department of Children & Families v. Benway, 745 So.2d 437, 439 (Fla. 5th DCA 1999), that “once a court has legal custody of a child, it would be negligent to relinquish that child to an out-of-state parent without some indication that the parent is able to care for the child appropriately.” Here, there was no evidence before the trial court or sought by the trial court that the mother was unfit.

In accordance with the reasoning advanced in The Interstate Compact on the Placement of Children, A Manual and Instructional Guide for Juvenile and Family Court Judges, page 34, we find that the ICPC is applicable to the placement of a child with a non-resident parent who had no previous custodial rights:

Two unsuccessful arguments have been proposed which claim that the ICPC does not apply to interstate placements with parents because: 1) parents are excluded in Article VIII of the Compact; and 2) the Compact covers placements in institutions, placements preliminary to adoption, and placements in foster care, and a placement with a parent is none of these.
These arguments fail for the following reasons. When a parent has custody of a child in the normal way (status conferred by childbirth or adoption), the condition is not that of a placement, nor is it one of foster care. However, when a court takes jurisdiction and determines who is to receive a child, who retains the authority to continue the child with that custodian or to remove the child, and when the court may prescribe supervision or other conditions, the child’s living status is that of a placement. In such circumstances, the parent’s situation is not custody or possession as a matter of parental right, but rather it is the same as the position of a foster parent. In both instances they are caregivers only because of the authority conferred to them by the state acting through the court. When a child is with a caregiver under these circumstances, the child is in foster care. Another unsuccessful argument is that parental care cannot be foster care because it is assumed that foster care means foster care payments made by the state to persons who are recruited to serve as foster parents. But not all persons who care for children receive compensation. Article 11(d) of the Compact includes “family free homes” in the definition of “placement.” Regulation 3, as amended in May 2001 defines “family free or boarding home” as:
... the home of a relative or unrelated individual whether or not the placement recipient receives compensation for care or maintenance of the child, foster care payments, or any other payments or reimbursements on account of the child’s being in the home of the placement recipient.
ICPC applicability is not conditional on whether or not the home receives payment for the care of the child.
Consequently, the ICPC applies to the interstate placements with parents if a child is under the jurisdiction of the juvenile or family court, the court has assumed responsibility to determine where the child will reside, and until such time as the interrupted parent-child relationship is restored and the state’s intervention is ended.

(footnotes omitted). Our conclusion is also in accord with Department of Children & Families v. Benway, 745 So.2d 437 (Fla. 5th DCA 1999).

Conclusion

We vacate the trial court’s March 28, 2002 order clarifying its earlier order of March 6, 2002 placing the children with the mother residing in Massachusetts. We also vacate the March 6, 2002 order placing custody with the mother in Massachusetts and instruct the court to comply with the ICPC. Recognizing that the children have resided with the mother since the Spring of 2002 and the disruption to the children that will occur by still another move, we remand to the trial court to determine where the children shall reside, including whether it would be in the best interest of the children to remain with the mother pending investigation by the Massachusetts Compact Administrator and that state’s approval or disapproval of the placement.

ORDER VACATED; REMANDED.

PLEUS and PALMER, JJ, concur.

      . Section 39.521(3)(b)l, Florida Statutes (2001), authorizes the court to terminate jurisdiction after entering an order awarding custody and reasonable visitation, if appropriate. The order takes precedence over any custody action and can only be modified by a circuit court hearing dependency matters.

      . ICPC Final Report of the Joint Committee on ICPC Improvement, ICPC Regulation No. 7 and Recommendations, December 1996. One recommendation in the report is that local agencies expand their list of available resources for performing a home study in order to achieve timely processing.

      . Arguments have been made that Regulation 3 should not be recognized by Florida courts because it was promulgated by an entity outside of Florida and not subjected to the requirements established by this state for the promulgation of regulations. The applicability of ICPC Regulations has been questioned in other jurisdictions throughout the country. See e.g. McComb v. Wambaugh, 934 F.2d 474, 481 (3d Cir.1991); Division of Youth and Family Services v. K.F. and C.W. and B.M., 353 N.J.Super. 623, 803 A.2d 721 (Ct.App. 2002); In re Johnny S., 40 Cal.App.4th 969, 47 Cal.Rptr.2d 94 (1995)(rev. denied, 1996); Nance v. Arkansas Dep’t of Human Services, 316 Ark. 43, 870 S.W.2d 721 (1994); Tara S. v. Superior Court, 13 Cal.App.4th 1834, 17 Cal.Rptr.2d 315, 316 (1993); and State ex rel. Juvenile Dep’t of Clackamas County v. Smith, 107 Or.App. 129, 811 P.2d 145 (1991). Notwithstanding, we decline to address the issue because the parties to this appeal did not raise the issue.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alan Jerome PRICE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D01-1557, 3D01-3162.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    Rehearing Denied March 5, 2003.
    Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and Mark Rosenblatt, Assistant Attorney General, for appellee.

      Before JORGENSON, LEVY, and GREEN, JJ.
   PER CURIAM.

The appellant, Alan Jerome Price, brings this consolidated appeal from two (2) orders entered following his motion for post-conviction relief.

On September 17, 1999 Price filed a motion for post-conviction relief to correct an illegal sentence alleging, in part, that his 134-year sentence for counts five, seven, nine, eleven, and thirteen were illegal because, pursuant to statute, the maximum term of years for life felonies committed after October 1, 1983, was forty (40) years. The trial court denied the motion, and Price appealed.

This court affirmed in part, reversed in part, and remanded for resentencing. Price v. State, 777 So.2d 423, 423 (Fla. 3d DCA 2001). Specifically, we found that:

the defendant’s sentences for kidnaping under counts five, seven, nine, eleven, and thirteen were incorrectly classified as first degree felonies. Kidnaping with a weapon is classified as a life felony. See § 775.087(l)(a), Florida Statutes (2000). Therefore, we remand for re-sentencing under [sjection 775.082(3)(a), Florida Statutes (2000).

Id.

The resentencing took place without Price present. The court vacated the 134-year consecutive sentences, and imposed a life sentence on each of the five counts, to run consecutively. Price appealed this increase in sentence. Subsequently, Price also filed a motion to correct sentence in the trial court claiming that the court had never entered a sentence correctly reflecting the court’s retention of the jurisdiction. A hearing was held, at which the State conceded that the trial court could only retain jurisdiction over counts four (4) through sixteen (16) of the original sentence. The court entered a written order reflecting the same, and Price appealed.

While both of these appeals were pending, on November 14, 2001, the trial court resentenced Price, reclassifying, as per our mandate, the kidnaping with a weapon charges to life felonies. In addition, the court resentenced each of these counts to a sentence of 134 years to run consecutive to each other and count three.

To begin, the trial court lacked jurisdiction to impose or alter Price’s sentence on November 14, 2001, where there were pending appeals from the sentences. See Knapp v. State, 741 So.2d 1150, 1151 (Fla. 2d DCA 1999) (trial court lacks jurisdiction to re-sentence defendant while appeal is pending). Accordingly, the November 14th sentencing order is stricken in its entirety. Price also argues, and we agree, that the 134-year sentences for counts five, seven, nine, eleven and thirteen are illegal, because the maximum term of years that may be imposed for a life felony is forty (40) years. See § 775.083(3)(a). Thus, we reverse and remand once again for resentencing.

On resentencing, we note that Price’s assertion that the trial court is limited to imposing a term of years sentence for counts five, seven, nine, eleven and thirteen, is incorrect. If the court on resentencing chooses to sentence Price to a term of years on these counts, the maximum term sentence is forty years. However, on resentencing the trial court may instead choose to impose a statutorily prescribed harsher sentence, if it so chooses. See State v. Swider, 799 So.2d 388, 390 (Fla. 4th DCA 2001) (double jeopardy not violated where harsher sentence imposed after vacating illegal sentence); Perez v. State, 772 So.2d 577, 577 (Fla. 1st DCA 2000) (imposing habitual violent felony offender sentence following reclassification of crime not violative of double jeopardy); Tapia v. State, 540 So.2d 918, 919 (Fla. 2d DCA 1989) (resentencing court could use re-computed scoresheet reflecting convictions as life felonies instead of first-degree felonies even though maximum sentence was greater). In addition, we note that if the trial court wishes to increase Price’s sentence, the defendant’s presence is required at the resentencing hearing. See e.g., Taylor v. State, 745 So.2d 341, 342 (Fla. 3d DCA 1999) citing Griffin v. State, 517 So.2d 669 (Fla.1987).

At resentencing, the court is also instructed to correct the retention of jurisdiction provision by eliminating retention over count one; and to have the sentences in this case run concurrently with the sentence imposed in case number 84-797.

Finding no merit to any of the other points raised, we reverse and remand this matter for a resentencing, to be held forthwith.

Reversed and remanded with instructions.


text:
    D.O.J., Father of D.J., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-2161.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2003.
    Noel Lawrence, Jacksonville, for appellant.
    Josefina Tomayo, General Counsel, and Cynthia L. Dubell, Assistant General Counsel, Department of Children and Families, Tallahassee, for appellee.
   PER CURIAM.

Appellee’s motion for remand is construed as a confession of error. The March 22, 2002, order which entered a default against appellant and terminated his parental rights is hereby reversed and the cause is remanded for further proceedings as to appellant.

REVERSED and REMANDED.

ERVIN, WOLF and LEWIS, JJ„ concur.


text:
    William Daniel RAVENSCROFT, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4340.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2003.
    Rehearing Denied Feb. 28, 2003.

      Nancy A. Daniels, Public Defender; Jamie Spivey, Assistant Public Defender, Tallahassee; William D. Ravenscroft, pro se, for Appellant.
    Charlie Crist, Attorney General; James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to withdraw his nolo con-tendere plea. As to appellant’s claim that his sentence includes special conditions of probation not orally pronounced at sentencing, this issue is not preserved for appeal. See Harvey v. State, 786 So.2d 28, 32 (Fla. 1st DCA 2001) (holding that “no unpreserved sentencing errors will be entertained on appeal if the defendant had available to him the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b)”), review granted by 797 So.2d 585 (Fla.2001); see also Fillyaw v. State, 734 So.2d 1136, 1137 (Fla. 1st DCA 1999) (stating that a sentencing error must be preserved either by a contemporaneous objection or by a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)).

AFFIRMED.

BOOTH, WEBSTER and LEWIS, JJ., concur.


author: PALMER, J.

text:
    BRAID SALES & MARKETING, INC., d/b/a Full House Company, Appellant, v. R & L CARRIERS, INC., Appellee.
    No. 5D02-1168.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    Rehearing Denied Feb. 28, 2003.

      Allan P. Whitehead of Frese, Nash & Hansen, P.A., Melbourne, for Appellant.
    Mark D. Shuman of Gray, Harris & Robinson, P.A., Melbourne, for Appellee.
   PALMER, J.

Braid Sales & Marketing, Inc. appeals from a final judgment entered in its favor against R & L Carriers, Inc., which limited its damage claim to $3,612.55. Concluding that the trial court improperly applied the limitations of the Carmack Amendment to this case, we reverse the final judgment.

Braid sued R & L, an interstate carrier of goods, seeking compensation in excess of $15,000.00 for damages to machinery shipped via R & L. Count I alleged a claim for negligence, and Count II alleged a claim for breach of an oral contract pursuant to which R & L promised to pay Braid the full cost of repairing the machinery. Prior to trial, the trial court granted R & L’s motion to dismiss Count II, holding that the breach of contract claim was preempted by the provisions of the Car-mark Amendment. The matter proceeded to trial on Count I before the court sitting without a jury. Upon review of the evidence, the court found that R & L had established its affirmative defense that, pursuant to the Carmack Amendment, Braid was not entitled to recover its full damages on Count I, but instead was limited to recovery of $3,612.55, which represented five times the amount of its shipping costs. We disagree.

R & L had the burden to prove at trial its affirmative defense based upon the Carmack Amendment. One of the requirements for the application of the Car-mack Amendment is that the carrier involved maintain a tariff with the Interstate Commerce Commission. See Rohner Gehrig Co. v. Tri-State Motor Transit, 950 F.2d 1079 (5th Cir.1992). While the parties agreed -that R & L was the carrier involved in the shipment at issue, the record demonstrates that the tariff introduced into evidence was not applicable to R & L because the participating carriers listed in the tariff did not include R & L. R & L contends that it adequately authenticated the tariff by having its employee testify that this tariff was applicable to R & L. However, since the tariff document unambiguously shows, on its face, that it is not applicable to R & L, that testimony could not alter the terms of the document. Since R & L did not establish that it maintained any tariff with the Interstate Commerce Commission, it failed to meet its burden of proving its affirmative defense. Accordingly, the damages suffered by Braid were not limited by the Carmack Amendment.

The trial court arguably reached the same conclusion in its final judgment, although not explicitly, when it held that “the 1997 tariff introduced into evidence, the controlling tariff in this action, did not list the named defendant, R & L as the carrier, but instead listed Gator Freight-ways, Inc., as the carrier.” However, after reaching that conclusion, the trial court nonetheless found the 1997 tariff applicable by holding that Braid waived any issue as to the applicability of the tariff “by its prior conduct, and by introducing the 1999 amendment to the tariff in Plaintiffs case.” We disagree. Although the trial court failed to specify what “prior conduct” constituted waiver, our review of the record shows no prior conduct which would legally constitute a waiver, and R & L does not argue that any such prior conduct existed.

In addition, the trial court’s conclusion that Braid waived its argument regarding the applicability of the tariff by introducing the 1999 amendment to the tariff in Braid’s case is erroneous. Braid’s introduction of that document occurred after the trial court had already overruled its objection to the admissibility and relevancy of the 1977 tariff. Accordingly, its introduction could not legally constitute a waiver of the argument previously made.

R & L further argues that the terms of this tariff were incorporated into the agreement between the parties by the bill of lading. However, that bill of lading merely states that it is subject to “tariffs in effect on the date of issue of the bill of lading”. As noted above, R & L failed to prove that any tariff relating to R & L was in effect on the date of the bill of lading.

In summary, the trial court erred in applying the Carmack Amendment to limit Braid’s claim to damages for five time the shipping cost. Instead, Braid was entitled to recover whatever damages were proximately caused by the negligence of R & L.

Braid also challenges the trial court’s dismissal of Count II of its amended complaint. Count II set forth an inde-pendent claim for a breach of an oral agreement entered into between R & L and Braid after the shipment was completed. Braid argued that since the claim was based upon conduct occurring after the shipment was completed it was not legally precluded by the Carmack Amendment. R & L responded that dismissal was warranted because the Carmack Amendment provided the sole remedy and preempted all other federal or state claims and remedies relating to the loss or damage to cargo, citing to Rini v. United Van Lines, Inc., 104 F.3d 502 (1st Cir.1997).

Rini involved a plaintiffs attempt to recover on claims which included an allegation that while negotiating plaintiffs damage claim the shipper engaged in unfair and deceptive acts in violation of Massachusetts law, and intentionally inflicted emotional distress. The Rini decision noted that the Supreme Court of the United States had not clarified the extent to which the Carmack Amendment preempted other claims, but went on to rule that state statutes are preempted by the Carmack Amendment if they in any way enlarge the responsibility of the carrier for loss or at all affect the grounds of recovery or the measure of recovery. The court further construed the Carmack Amendment and the set of federal regulations that complement it as covering not only the actual transport of goods, but also the claims process:

Preempted state law claims ... include all liability stemming from damage or loss of goods, liability stemming from the claims process, and liability related to the payment of claims ...

104 F.3d at 505-506. At the same time the Rini court recognized that liability arising from separate harms are not preempted:

On the other hand, liability arising from separate harms — apart from the loss or damage of goods — is not preempted. For example, if an employee of the carrier assaulted and injured the shipper, state law remedies would not be preempted. Similarly, a claim of intentional infliction of emotional distress alleges a harm to the shipper that is independent from the loss or damage to goods and, as such, would not be preempted.

Id.

Here, Braid’s claim of an alleged oral contract between the parties for payment of repairs, entered into after the shipment was completed, constitutes a separate harm which is independent from the loss or damage to goods. As such the claim is not preempted. Neither the Car-mack Amendment nor public policy support a carrier’s attempt to evade the legal responsibilities voluntarily assumed by entry into an independent contract.

REVERSED and REMANDED.

THOMPSON, C.J., and SAWAYA, J., concur.

      . The Carmack Amendment, 49 U.S.C. § 14706, generally limits a motor carrier's liability for loss or damage to an interstate commercial shipment pursuant to a tariff, a document which sets forth a liability limit which is applicable absent a customer exercising the option to purchase higher liability limits.

      . Although we have concluded that the Car-mack Amendment was not applicable in this case because R & L failed to prove that any tariff was on file related to R & L, that argument was not made by Braid in opposition to the motion to dismiss and, accordingly, it waived that argument in connection with Count II.

      . The federal cases which have discussed the scope of preemption of the Carmack Amendment are not in agreement as to what claims are preempted by the Carmack Amendment, even in the absence of an independent contract. For example, in Mesta v. Allied Van Lines International, Inc., 695 F.Supp. 63 (D.Mass.1988), the court held that a claim against the carrier for deceptive acts and practice was based not on loss of property but on the carrier's actions in investigating and responding to the shipper's claim was not preempted. Similarly, in Sokhos v. Mayflower Transit, Inc., 691 F.Supp. 1578 (D.Mass. 1988), the court held that the Carmack Amendment did not preempt state law actions based on a carrier's improper handling of the plaintiff's claims for damage to goods. In American Transfer and Storage Co. v. Brown, 584 S.W.2d 284 (Tex.Civ.Ct.App.1979), rev. on other grounds, 601 S.W.2d 931 (1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474, the court held that the Carmack Amendment does not preempt a claim under the Texas Deceptive Trade Practices Act for misrepresentations made prior to the contract of carriage.
      On the other hand, the court in United Van Lines, Inc. v. Homburger, 932 F.Supp. 139, (W.D.N.C.1996), held that a shipper's state law counterclaims against the carrier for pain and grief caused by the carrier’s inept handling of the move plus the agent’s false representation regarding billing were preempted by Carmack Amendment. Similarly, in Mar-getson v. United Van Lines, Inc., 785 F.Supp. 917 (D.N.M.1991), the court found that claims for fraud against carrier were preempted by the Carmack Amendment where the damages claimed as a result of alleged fraud were for injury to and loss of use of goods. In Pietro Culotta Grapes Ltd.v. Southern Pacific Transp. Co., 917 F.Supp. 713 (E.D.Cal.1996) the court similarly held that preemption related to claims based on conduct occurring after shipment.


author: GRIFFIN, J.

text:
    Gary Collins JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1407.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2003.
    Rehearing Denied Feb. 24, 2003.
    Gary Collins Jackson, Daytona Beach, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Defendant below, Gary Collins Jackson [“Jackson”], appeals pro se the lower court’s order denying his petition for writ of error coram nobis.

Jackson was charged by indictment with first-degree murder of a two-year-old child in August 1988. The jury found Jackson guilty of first-degree murder as charged. The court sentenced Jackson to life imprisonment with a twenty-five year minimum mandatory. Jackson appealed the judgment and sentence in February 1989. This court affirmed in Jackson v. State, 557 So.2d 878 (Fla. 5th DCA 1990).

In February 1992, Jackson filed a motion for post-conviction relief, alleging: (1) counsel failed to object to the admission of out-of-court statements and failed to move for a suppression hearing; (2) counsel failed to object to the denial of a jury instruction on third-degree murder; (3) the State withheld exculpatory evidence; and (4) the trial court denied defense counsel’s motion for a statement of particulars. This motion was denied in March 1993. Jackson appealed the order denying his motion for post-conviction relief in April 1993. This court affirmed the order in Jackson v. State, 619 So.2d 969 (Fla. 5th DCA 1993).

Jackson then filed a second motion for post-conviction relief on December 10, 1998, alleging: (1) the court misunderstood his previous claim and failed to address the claim of ineffective assistance of counsel, and (2) counsel failed to argue in the motion for judgment of acquittal that he could not be convicted of felony murder where the state failed to charge the underlying felony in the indictment. On January 7, 1999, the trial court denied this second motion as being untimely and im-permissibly successive. He appealed the second denial of his motion for post-conviction relief to this court on March 4, 1999. This court affirmed the order in Jackson v. State, 731 So.2d 677 (Fla. 5th DCA 1999).

On March 6, 2001, Jackson filed a pro se amended petition for writ of error coram nobis. He claimed that the trial court erred by failing to give certain jury instructions or by giving erroneous instructions. He asserted that his claim was properly raised in a petition for writ of error coram nobis pursuant to Wood v. State, 750 So.2d 592 (Fla.1999). The trial court entered an order denying this petition, explaining:

In Wood, the Florida Supreme Court provided that all defendants previously adjudicated would have two years from the date the opinion was issued (May 27, 1999) within which to file Rule 3.850 motions raising claims traditionally cognizable under coram nobis. However, this did not mean that those defendants could use the new time period to breathe life into claims which would have been procedurally barred. Defendant’s allegations could have been, should have been, or actually were raised on direct appeal. They would have been procedurally barred in a motion for postcon-viction relief filed prior to Wood; therefore, they remain inappropriate in the instant petition.

We agree with the trial court that Jackson’s claims are not properly the subject of a coram nobis proceeding and are procedurally barred.

Jackson first argues the trial court erred because he was entitled to a jury instruction on child abuse as a lesser included offense of aggravated child abuse under the current statutory scheme. See Raford v. State, 828 So.2d 1012 (Fla.2002). Jackson asserts that the trial court erroneously relied on Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987) in denying his counsel’s request to give an instruction on child abuse as the lesser included offense of aggravated child abuse. Kama held that there were no lesser included offenses that apply to a parent or one acting as such charged with aggravated child abuse. However, the statutes were amended in 1988 to provide that a parent or one acting as such could be convicted of the lesser offense of felony child abuse. See Raford. Since Jackson was tried in 1989, these amendments would have applied to his case. Nevertheless, because the change in law occurred in 1988, this issue is untimely raised.

Jackson next argues the trial court erroneously instructed the jury on the meaning of “maliciously” in light of recently revised jury instructions, citing Standard Jury Instructions in Criminal Cases, 824 So.2d 881 (Fla.2002). Prior to the change, the definition for malicious read “wrongfully, intentionally, without legal justification or excuse,” and following the revisions it read “done from ill will, hatred, spite or an evil intent.” This change in the language of the jury instruction was based on the definition of malice that had been used by the Florida supreme court in State v. Gaylord, 356 So.2d 313 (Fla.1978).

The Florida supreme court recently addressed this issue in Reed v. State, 27 Fla. L. Weekly S1045, 837 So.2d 366(Fla. 2002). The court held that the failure to use the correct definition of malice in the standard jury instruction was fundamental error in cases where the essential element of malice was disputed at trial. However, the court also stated:

To resolve the question of what eases this decision is to be applied to, we hold that this decision shall be retroactively applied to cases pending on direct review or not yet final ... The standard jury instruction used in the present case has been in use for more than twenty years. Retroactive application of the present case to final aggravated child abuse cases would require courts to revisit numerous final convictions and to extensively review stale records to determine if the malice element was disputed at trial. We therefore expressly limit retroactive application of our decision to nonfinal cases because applying this decision to final cases would have an adverse effect on the administration of justice. See Witt v. State, 387 So.2d 922 (Fla.1980); see also Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Since Jackson’s case became final in 1990, this change in the law cannot be retroactively applied to his case pursuant to Reed. Moreover, the definition of malice in Gay-lord has been Florida supreme court precedent since 1978. This claim is also untimely.

AFFIRMED.

PLEUS, J., and COBB, W., Senior Judge, concur.


author:
FLETCHER, Judge.
      SCHWARTZ, Chief Judge

text:
    Harry William PINNELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2990.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Rehearing Denied March 5, 2003.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and FLETCHER and SHEVIN, JJ.
   FLETCHER, Judge.

Harry William Pinnell appeals from his conviction and sentence for two counts of lewd and lascivious assault. We affirm.

Pinnell asserts that the trial court reversibly erred by determining that a PACE social worker could not be questioned about a conversation with the victim as the conversation fell within the sexual assault counselor-victim privilege created

by section 90.5035, Florida Statutes. That section provides, in part:

“(1) For purposes of this section:
(a) A ‘rape crisis center’ is any public or private agency that offers assistance to victims of sexual assault or sexual battery and their families.
(b) A ‘sexual assault counselor’ is any employee of a rape crisis center whose primary purpose is the rendering of advice, counseling, or assistance to victims of sexual assault or sexual battery.
(2) A victim has a privilege to refuse to disclose, and to prevent any other person from disclosing, a confidential communication made by the victim to a sexual assault counselor or any record made in the course of advising, counseling, or assisting the victim.... This privilege includes any advice given by the sexual assault counselor in the course of that relationship.”

§ 90.5035(l)(a),(b),(2), Fla. Stat. (1999).

The trial court found that PACE met the statutory definition of a “rape crisis center” and that the PACE social worker could be considered a “sexual assault counselor” as statutorily definéd. Consequently, the trial court held that the statutory sexual assault counselor-victim privilege applies. After a careful examination of the record, we cannot say that, under the circumstances presented, we disagree with the trial court’s factual findings regarding either the PACE Center for Girls, Inc. or its social worker.

Affirmed.

SHEVIN, J., concurs.

SCHWARTZ, Chief Judge

(specially concurring).

As an additional basis for affirmance, it should be emphasized that, not only has the defendant not established the likelihood, or even the possibility, that the victim’s statements to the counselor were in any way favorable to him, the circumstances strongly suggest directly to the contrary. Thus, even if the conversation were not privileged, the appellant’s argument should be rejected on the ground that he has failed in his obligation to demonstrate harmful error. Cf. State v. Fami-glietti, 817 So.2d 901, 909 (Fla. 3d DCA 2002)(Sehwartz, C.J., specially concurring in part, dissenting in part), review granted, 826 So.2d 991 (Fla.2002), review dismissed, 838 So.2d 528 (Fla.2003).

      . PACE Center for Girls, Inc. is a gender-responsive, school-based program, established as an alternative to incarceration or institutionalization of at-risk adolescent girls in Florida.

      . We find Pinnell's other complaint to be without merit.


author: HARRIS, C., Senior Judge.

text:
    Warren R. KUPKE, et al., Petitioner, v. ORANGE COUNTY, Respondent.
    No. 5D02-1361.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2003.
    William G. Osborne, of William G. Osborne, P.A., Orlando, for Petitioners.
    George L. Dorsett, Assistant County Attorney, Orlando, for Respondent.
    John W. Costigan, Tallahassee, Amicus Curiae, for Florida Department of Agriculture and Consumer Services.
   ON MOTION FOR RECONSIDERATION

HARRIS, C., Senior Judge.

We withdraw the previous opinion issued in this cause and substitute the following:

Kupke, a farmer in an extremely rural area, was cited by the Code Enforcement Board of Orange County with operating an unauthorized “junkyard” on his agricultural zoned land because he “stored” a bush-hog, a bulldozer, a crane, a backhoe, and various other equipment and materials outdoors at his farm. Section 823.14(4), Florida Statutes, provides that a farm operation, except under conditions not involved herein, shall not be considered a nuisance. The sole issue, then, before the Board was whether the equipment said to constitute a nuisance was protected as farm machinery and equipment.

At the hearing at which the violation was determined and Kupke was given 30 days to remove the offending items or pay a $250 per day fine, the County was permitted to call as many witnesses as it wished and yet limited what Kupke could offer and refused to permit him to present his proffered “testimony from people who do farming, that use heavy equipment.” And although Kupke addressed the relevant issue, whether the challenged equipment was in fact used for farm purposes, the County’s witnesses (four complaining neighbors) talked about contamination, fires, snakes and rats, etc. Even the County’s inspector who testified admitted that she was not an expert on agricultural uses. These witnesses attempted to prove that this equipment, statutorily exempted from being a nuisance if it was used for farming purposes, was in fact a nuisance without first establishing that the equipment was not properly used for farm purposes.

O’Neil v. Fallot, 257 So.2d 59 (Fla. 1st DCA 1972), suggests that those tried by administrative bodies must be able to “present witnesses in their behalf and cross-examine witnesses against them.” The court in Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So.2d 996 (Fla. 2d DCA 1993), held that in quasi-judicial proceedings, the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts upon which the commission acts.

Here, if Kupke had been permitted to present the testimony of those farmers familiar with the use of heavy equipment in farming practices, the Board might have found that the bushhog was used to clear land for farming and that the backhoe and bulldozer and perhaps the crane were used to dig and maintain ditches and ponds necessary to or desirable for the farm operation. This denial of an opportunity to present evidence violated Kupke’s due process rights.

Kupke appealed to the circuit court which found that the Board “provided procedural due process” and “observed the essential requirements of law” and denied relief. Now a petition for writ of certiora-ri has been filed with this court. We recognize that our review authority is limited. We must determine whether the circuit court afforded procedural due process and applied the correct law. The circuit appellate division did not inform us as to which law it used to affirm a decision which denied the petitioner the basic right to be heard before a property right was taken from him. We conclude, however, that whatever law was applied was misapplied and we therefore grant certiorari, quash the decision of the circuit appellate division, and remand for an order quashing the decision of the Code Enforcement Board and requiring a new hearing in which Kupke must be given an opportunity to show, if he can, that in fact the challenged equipment has an agricultural use which meets the policy expressed by the legislature in section 604.001, Florida Statutes. In making its decision, the Board should consider subsection (6) of that act:

The laws and regulations that have caused problems for agricultural production in this state have been due primarily to a lack of adequate and informed consideration of the adverse impact such laws and regulations would have on efficient and profitable agricultural production in this state.

Certiorari is granted and the order of the appellate division is quashed and the matter remanded with instructions.

CERTIORARI GRANTED; ORDER QUASHED.

PETERSON, J., and COBB, W., Senior Judge, concur.

        . Section 823.14(3)(a), Florida Statutes, defines a farm as “the land, buildings, support facilities, machinery, and other appurtenances used in the production of farm products.” Apparently the Code Enforcement Board did not consider this definition in determining whether the backhoe or bushhog, etc. may have been a part of the farm operation.

      . However, in Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000), the Florida Supreme Court stated: "In essence, the supreme court has cautioned the district courts to be prudent and deliberate when deciding to exercise this extraordinary power, but not so wary as to deprive litigants and the public of essential justice."


author: HAZOURI, J.

text:
    Barry E. KRISCHER, State Attorney, and the State of Florida, Appellants, v. Samuel A. FARIS, Appellee.
    No. 4D02-2284.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Rehearing Denied March 5, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Richard L. Polin, Assistant Attorney General, Miami, for appellants.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   HAZOURI, J.

Samuel Faris (Faris) entered into a plea agreement with the State in May 1990, that provided for a prison sentence of twenty-five years maximum to be followed by a twenty year period of probation in exchange for his plea of no contest to two counts of attempted sexual battery and one count of lewd act. A judgment was entered and Faris began serving his sentence. Immediately prior to his release from prison in June 2000, the Office of the State Attorney filed a Petition for a Probable Cause Determination and Civil Commitment based on evaluations that recommended that Faris be civilly committed as a sexually violent predator. The circuit court entered an order finding that probable cause existed to believe that Faris was a sexually violent predator. Faris was taken into the custody of the Department of Children and Families (DCFS) pending his civil commitment trial.

Faris filed a Motion to Enforce Plea Agreement, which he later amended, alleging that the commencement of the civil commitment proceedings violated the prior plea agreement in the criminal case. After a hearing, the circuit court entered an Order granting Faris’s motion on the authority of Harris v. State, 27 Fla. L. Weekly D946, — So.2d-, 2002 WL 731699, (Fla. 1st DCA Apr.26, 2002), and directing the State to release Faris from its custody. We reverse the trial court order and reinstate the civil commitment proceedings.

In Harris, the defendant entered into a plea agreement which provided that at the conclusion of seven years incarceration, the remainder of his sentence would be suspended and he would be placed on probation with the special condition that he complete a sex offender treatment. Id. at D946, at-. Four days before he was scheduled to be released from prison, the state filed a petition seeking his civil commitment under the Jimmy Ryce Act The defendant argued that by pursuing civil commitment, the state breached the plea agreement. The first district agreed and held that it is immaterial that one’s confinement under the Ryce Act has been held a collateral, rather than a direct, consequence of a defendant’s plea. Id. at D947, at-.

The first district applied the doctrine of equitable estoppel and reasoned that the state had represented to the defendant the sentence he would receive in exchange for his plea and the defendant relied on that representation. The first district also noted that under the Ryce Act, the state attorney is given discretion whether to file a civil commitment action. The first district reversed the trial court’s order denying defendant’s motion to enforce plea agreement and remanded with directions that the court specifically enforce the plea agreement. Id. at D948, at-. The first district reasoned that nothing less than specific performance of the contract could afford the defendant justice. In addition, the first district certified the following question to the Florida Supreme Court:

MAY THE STATE INITIATE DISCRETIONARY CIVIL COMMITMENT PROCEEDINGS UNDER THE RYCE ACT (PART V OF CHAPTER 394, FLORIDA STATUTES) WHERE, BY SEEKING CIVIL COMMITMENT, THE STATE WOULD VIOLATE THE TERMS OF A PLEA AGREEMENT PREVIOUSLY ENTERED INTO WITH THE DEFENDANT?

The first district addressed the issue again on motions for rehearing and rehearing en banc in Harris v. State, 27 Fla. L. Weekly D 946, — So.2d - (Fla. 1st DCA Oct. 4, 2002). In oral argument, the state had represented that the defendant was not on probation while civilly committed. Id. at *1, at-. However, in its motion for rehearing, the state argued that it had erred before and that the defendant was in fact on active probation while he was committed. Therefore, the state contended that it had honored the plea agreement. The first district disagreed and reasoned that the defendant’s conditions of probation did not impose residential sex-offender treatment which was essentially what the civil commitment constituted. The first district held that, “it cannot be said that appellant is on active probation while committed under the Ryce Act to the custody and control of the DCFS.” Id.

The court held that even if it could be said that the defendant was on active probation while in the custody of DCFS, a double jeopardy issue would arise due to the change in probationary conditions. The defendant’s order required sex-offender treatment, but not residential sex-offender treatment. “Thus, if appellant were considered to be on active probation while committed to the care and custody of DCFS, the terms of his probation have been improperly enhanced from nonresidential to residential sex-offender treatment without a violation of probation.” Id. The first district denied the motions for rehearing and rehearing en banc and certified two additional questions to the Florida Supreme Court:

IS A PLEA AGREEMENT FOR PRISON TIME FOLLOWED BY PROBATION VIOLATED WHEN THE STATE LATER INITIATES DISCRETIONARY CIVIL COMMITMENT PROCEEDINGS UNDER THE JIMMY RYCE ACT (PART V OF CHAPTER 394, FLORIDA STATUTES)?
IN THE CIRCUMSTANCES DESCRIBED IN THE FIRST QUESTION, IS THE STATE BARRED BY EQUITABLE ESTOPPEL FROM SEEKING CIVIL COMMITMENT?

At the time that the trial court granted Faris’ amended motion to enforce plea agreement, the Florida Supreme Court had not answered the certified questions posed in Harris nor had there been any contrary decision from any other district courts of appeal. However, the Florida Supreme Court has recently provided guidance on this issue. The Court’s guidance was in response to this court’s decision in Murray v. Kearney, 770 So.2d 273 (Fla. 4th DCA 2000). In Murray, the defendant had been convicted through a plea agreement of sexual battery on a minor child. Id. at 274. He was sentenced to incarceration followed by probation. Prior to his release from prison, he was civilly committed as a sexually violent predator under the Ryce Act. The defendant filed a petition for writ of habeas corpus in this court and argued that the commitment order was illegal since the plea agreement provided how and where he was to receive treatment after the termination of his prison sentence. The defendant requested specific performance of his plea agreement. This court noted that the commitment order was not entered in the criminal proceeding, but rather DCFS had instituted a new civil commitment proceeding, based upon clinical evaluations of the defendant’s current state. This court dismissed the petition because we viewed our habeas jurisdiction as limited to determining whether the challenged order was entered without jurisdiction or was illegal. We concluded that the order of commitment was not entered without jurisdiction and/or was not illegal.

The defendant filed a petition for habeas with the Florida Supreme Court arguing that his civil commitment order was illegal and violated his right to due process because the plea agreement in his criminal case specified that he would receive sex offender treatment while on probation supervision in the community. The Florida Supreme Court granted review in Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d-, 2002 WL 31728885 (Fla. Dec. 5, 2002). The Court noted that while district courts have limited jurisdiction over habeas claims, this limited inquiry did not foreclose constitutional challenges to pretrial detention or leave a defendant without an avenue to bring such a challenge. Id. at S1009, at-. The Court stated:

Despite our conclusion that the Fourth District Court should have considered the merits of Murray’s claim that his civil commitment order is illegal because it violates his constitutional right to due process, we conclude that Murray is not entitled to relief on this claim. The plea agreement was part of a criminal proceeding against Murray whereas the commitment order was entered in a civil proceeding based upon clinical evaluations of Murray’s present state ... Thus, Murray’s involuntary commitment cannot be considered continued punishment for his criminal offense, but was based upon clinical evaluations of his present state.

Id.

The Court cited to Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). In Hendricks, the United States Supreme Court addressed challenges to a similar Kansas statute that provided for the involuntary commitment of sexually violent predators. The Supreme Court recognized that commitment as a sexually violent predator constitutes a separate proceeding from the criminal action that was based on the individual’s sexually violent offense. Relying on the Hendricks decision, the Florida Supreme Court held:

Thus, we conclude that any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment. Consequently, Murray’s constitutional claim is without merit and he was not entitled to release from detention on this basis.

Murray, 27 Fla. L. Weekly at S1010, at

Although the Murray decision arises from a habeas petition, it has direct application to the instant case. The Florida Supreme Court’s holding that any bargain a defendant may strike in a plea agreement in a criminal case could have no bearing on a subsequent involuntary commitment under the Jimmy Ryce Act is controlling. We therefore reverse.

FARMER and STEVENSON, JJ., concur.

      . The Jimmy Ryce Act is contained in sections 394.910-931, Florida Statutes.

      . While this case was on appeal, Jerry Regier had been appointed to replace Kathleen Kear-ney as Secretary of the Department of Children and Family Services.


text:
    Lori J. GILMAN, Appellant, v. Peter J. GILMAN, Appellee.
    Nos. 3D01-106, 3D01-779.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Elizabeth S. Baker, Orlando, for appellant.
    Cynthia L. Greene, Miami, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Lori J. Gilman, former wife, seeks to reverse an amended final judgment on parental responsibility and primary physical residence entered in favor of the former husband, Peter J. Gilman. We affirm.

The former wife argues, inter alia, that her signature on the final signed settlement agreement between the parties was the product of duress applied by the former husband. We have examined the record and see no reversible error either on the question of duress or other issues.

Affirmed.


text:
    Henry JANUARY, Petitioner, v. STATE FARM MUTUAL INSURANCE CO., Respondent.
    No. 5D02-1978.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.

      Phares M. Heindl, of Phares M. Heindl, P.A., Altamonte Springs, for Petitioner.
    Michael Y. Hammond, of Rissman, Weis-berg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Respondent.
   GRIFFIN, J.

Petitioner, Henry January [“January”], seeks certiorari review of an order of the circuit court, sitting in its appellate capacity, affirming the county court’s final summary judgment in favor of respondent, State Farm Mutual Insurance Co. [“State Farm”], and the order granting State Farm’s motion to tax costs and attorney’s fees. Although we recognize that the scope of our review of such a decision is limited, we conclude that this case is within the scope of review because the circuit court applied the wrong law in affirming the decision of the county court.

January was injured while driving a 1981 Isuzu pickup on October 17, 1998. He was insured by State Farm under an automobile policy covering a 1990 Isuzu pickup. The policy included personal injury protection benefits. State Farm paid January’s claims until January 22, 1999, when it advised January in writing that there was a question regarding coverage under the policy and it was issuing a reservation of rights. Specifically, State Farm said it was questionable “whether the vehicle involved in the accident constitutes either temporary substitute, newly acquired or a non-owned automobile or car, as defined in the policy or trailer as covered in the policy.” The January 22 letter concluded by saying that if State Farm did not hear from the insured to the contrary, it would assume it was acceptable to continue handling the claim on terms of the reservation.

State Farm did not, however, pay January’s medical bills submitted on January 2, 1999. On March 9, 1999, State Farm, now through counsel, wrote a letter scheduling an examination under oath on March 23, 1999. The policy in question provides that a person making a claim shall answer questions under oath when requested by State Farm. However, January did not attend the scheduled examination, nor did he attend a second scheduled examination, taking the position through counsel that PIP was largely controlled by statute and that the PIP statute did not contemplate statements under oath, only the discovery referenced in section 627.736(b) and (c), Florida Statutes (1999).

January’s counsel did eventually give State Farm the name of the owner of the 1981 Isuzu and the name of his insurance company. State Farm then requested a copy of that owner’s policy from January’s counsel. When the policy was not received, a third examination under oath was scheduled. January again refused to attend this examination, instead filing suit against State Farm in county court for breach of contract for failing to pay his claims. January did appear for his deposition in the course of the lawsuit. He testified that he was not the owner of the 1981 Isuzu in which he was injured and he produced a bill of sale for the vehicle showing that he had sold it before the accident. State Farm nevertheless filed a motion for summary judgment, arguing that January’s failure to appear for any of the scheduled examinations under oath was a material breach of the insurance contract and barred his recovery of PIP benefits. The county court agreed and entered summary judgment for State Farm. State Farm’s motion for attorney’s fees was granted.

In Amador v. United Automobile Insurance Co., 748 So.2d 307 (Fla. 3d DCA 1999), review denied, 767 So.2d 464 (Fla. 2000), more than thirty days after receiving a claim for PIP benefits, the insurer scheduled an examination under oath. Rather than attending, the insured filed a complaint for a declaratory judgment, in-junctive relief and for breach of contract. The court in Amador rejected the insurer’s argument that the insured could not file suit, even beyond the thirty-day period, if the insurer had requested further information. The court held that if the insurer does not pay within the statutory thirty days, the insured is free to file a lawsuit to have the claim determined on the merits.

The court in Amador emphasized that although an insurer may request information in aid of its investigation of a claim, the burden is on the insurer to authenticate the claim within the statutory period and the insurer cannot use its investigative rights to extend the thirty-day period without reasonable proof that it was not responsible for the claim. The court rejected the insurer’s attempt to rely on Goldman v. State Farm Fire General Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995), review denied, 670 So.2d 938 (Fla. 1996), and found that requesting an examination under oath after the thirty-day statutory period had expired was unreasonable, again emphasizing that the insurer has the burden to authenticate the claim within thirty days and cannot unilaterally extend that period. The court in Amador explained that, because of the special nature and protection afforded under the PIP statute, upon expiration of the thirty-day period, the insured is entitled to access to the courts to enforce its rights.

In this case, the circuit court found that the question to be resolved was whether the case was governed by Goldman, the case relied on by the county court, or by Amador, which was relied on by January. After discussing the two cases, the circuit court concluded that the county court had correctly relied on Goldman and held that January was barred from recovery for failing to give the requested examination under oath. The court also held that Ama-dor was inapplicable, because there had been no coverage issue in Amador, as there was in this case. The circuit court embraced the county court’s conclusion that State Farm had had no duty to act on January’s claims submitted on January 2 within thirty days because the issue raised by State Farm was one of coverage, not one of validity of the claim itself. Here is where both the county court and the circuit court made the key mistake in their application of the law.

It is clear that an insurer is not freed from the statutory time constraints of a PIP claim payment simply by raising a coverage issue. As we have repeatedly said and as the supreme court said in United Automobile Insurance Co. v. Rodriguez, 808 So.2d 82 (Fla.2001), the legislative intent the penalty provision in section 627.736(4) is to promote resolution of PIP claims by imposing reasonable penalties on insurers who pay late. The court emphasized that “[n]othing in the statute provides that once a payment becomes overdue the insurer is forever barred from contesting the claim.” Id. at 87. See also AIU Ins. Co. v. Daidone, 760 So.2d 1110 (Fla. 4th DCA 2000). The court in United Automobile cited Amador with approval for the principle that the insurer has thirty days in which to verify a claim and that time cannot be tolled and the burden is clearly on the insurer to authenticate the claim within the statutory period. The remedy for tardily paying a PIP claim subsequently determined to be due is the same whether the question raised by the insurer is coverage or any other issue.

The holding in United Automobile confirms that an insurer is not automatically obligated to pay a claim when the thirty-day period has passed. The insurer may contest the claim after the thirty days, but accepts the risk that if the insured prevails, the insurer will be liable to pay interest on the claim and the insured’s attorney’s fees. See also Gurney v. State Farm Mut. Auto. Ins. Co., 795 So.2d 1118 (Fla. 5th DCA 2001); Jones v. State Farm Mut. Auto. Ins. Co., 694 So.2d 165 (Fla. 5th DCA 1997)(insurer who fails to pay claim within thirty days does not lose right to contest claim, but is exposed to the statutory penalties attendant to overdue claim).

The PIP insurer is given thirty days to investigate and to either pay the claim or discover the facts that warrant a refusal to pay. If it does not do so then the claim is overdue and the statutory penalties for failing to pay the claim timely (interest and fees) are due. If the insurer fails to pay the claim, electing either to refuse the claim or to continue investigating, it is not barred from contesting the claims, but must pay the penalties once its duty to pay the claim is established. Clearly, if there is no coverage for the claim, the insurer’s failure to act within thirty days is not fatal to the insurer’s right to refuse the claim. In that sense, the county court was correct that the thirty-day limit is not applicable. But it is simply incorrect to conclude that where the insurer’s reason for non-payment is a doubt about coverage, that the insurer is free to ignore the thirty-day claim deadline and investigate at its leisure with no limitation or consequences.

Thus, as to those claims under the policy made by January that were not paid by State Farm within thirty days, January’s claim was mature and he was entitled to seek a judicial determination of his rights. See State Farm Mut. Auto. Ins. Co. v. Jenkins, 767 So.2d 622 (Fla. 4th DCA 2000). There is no arguable breach of contract by him that we can identify prior to March 23 that would excuse payment of the claim and statutory penalties once coverage is established. Obviously, if there is no coverage, there is no amount due, but if there is coverage, then payment of the claim plus the statutory penalties is due. It does appear that coverage existed in this case, although we do not declare it. We only say that the trial court and the circuit court were wrong in concluding that January’s subsequent refusals to be examined pursuant to State Farm’s request cannot justify refusal to pay those claims.

So what is the effect of January’s refusal to be examined? We have no basis to gainsay the lower court’s conclusion that this was a material breach of the policy and would bar recovery for any claim that was not thirty days old when the policy was breached by January’s refusal to comply with State Farm’s request. Certainly, by May 3, 1999, January’s letter to State Farm clearly communicated his refusal to comply with the request. Whether this breach of the policy occurred as early as the March 23 non-appearance is a question that may or may not matter and may or may not require judicial determination based on the surrounding facts and circumstances.

We accordingly vacate the decision of the circuit court and remand.

PETITION GRANTED, DECISION VACATED and REMANDED.

SHARP, W., and SAWAYA, JJ., concur.

      . State Farm sent a second letter on February 9, 1999 questioning its obligation on the policy because:
      It is questionable whether there was been compliance with the provision of the policy requiring the assistance and cooperation of the insured, by reason of allegations or evidence of:
      a) The insured's refusal to give pertinent information to the Company.
      b) The insured's refusal to assist in investigation.
      January responded through counsel on February 22 that State Farm advise how January may have refused to cooperate with their investigative efforts, provide a copy of January's policy, referencing any policy language on which they intend to rely, and specify what information they want from January. Counsel also indicated that January intended to cooperate with State Farm “to the full extent required by your insurance policy.”

      . This rhetorical question is my homage to Judge Charles Harris, who has just retired this month from this court. There was little he enjoyed more than to ask a good question and supply the answer himself. He will be missed.


author: BENTON, J.

text:
    Cathaleen MYERS, Appellant/Cross-Appellee, v. SHERWIN-WILLIAMS PAINT, CO. and Gallagher Bassett Servicing, Appellees/Cross-Appellants.
    No. 1D02-0747.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2003.
    Rehearing Denied March 5, 2003.

      Joy E. Greyer, West Palm Beach, for Appellant/Cross-Appellee.
    Kevin R. Clarke, Esquire and Michael A. Edwards, Esquire of Michael A. Edwards, P.A., West Palm Beach, for Appel-lees/Cross-Appellants.
   BENTON, J.

In her second appearance before this court, Cathaleen Myers contends that the judge of compensation claims erred in denying her certain medical benefits and in awarding less than full indemnity benefits. As to denial of medical benefits, we affirm, with one exception. We reverse and remand for further proceedings regarding indemnity benefits, however, as well as regarding medical benefits owed on account of an industrial injury to the lumbar spine.

As described in our prior opinion, Ms. Myers had two industrial accidents while she was working for Sherwin-Williams Paint Company (Sherwin-Williams) before she was involved in an automobile accident that had nothing to do with work. See Myers v. Williams, 770 So.2d 1246, 1247 (Fla. 1st DCA 2000). Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compen-sable) accident was the “major contributing cause” of her injuries and disability. We reversed and remanded, holding that “[t]he claimant is entitled to any medical or compensation benefits attributable to either (or both) of the work-related accidents.” Myers, 770 So.2d at 1249.

I.

On remand, a successor judge of compensation claims found that appellant’s head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal conditions were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of appellant’s need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.

The employer of a claimant who suffers an industrial injury must “furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require.” § 440.13(2)(a), Fla. Stat. (Supp.1996). “[M]edical care is properly awarded pursuant to section 440.13(2)(a) when the need for such care arises from the combined effect of industrial and nonindustrial conditions. See Jordan v. Florida Industrial Commission, 183 So.2d 529 (Fla.1966); Glades County Sugar Growers v. Gonzales, 388 So.2d 333 (Fla. 1st DCA 1980).” Copeland v. Bond, 528 So.2d 458, 459 (Fla. 1st DCA 1988). “As Gonzales indicates, the employer is responsible for ‘treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compen-sable injury.’ ” Id. See Newhouse v. Volu-sia County Sch. Bd., 474 So.2d 1222, 1224 (Fla. 1st DCA 1985). We thus approve the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached.

But the order under review also made Sherwin-Williams responsible for half of the expense of treating Ms. Myers’ lower back or lumbar spine. While competent, substantial evidence supports the finding that she did not sustain a lumbar spinal injury in the first accident, the record lacks competent, substantial evidence supporting the decision to allocate responsibility for treatment of that injury fifty-fifty. Such an allocation is not justified simply because the need for treatment was causally related both to the second and to the third accidents. None of the doctors whose opinions the judge of compensation claims cites in support of a fifty-fifty split stated that the second and third accidents were equally responsible for the condition of appellant’s lumbar spine.

II.

Ms. Myers also contends that the judge of compensation claims erred in denying her claims for treatment with a neu-ropsychologist and with a separate, pain management specialist. The order provides:

7. Authorization of a pain management physician is deferred until the claimant resumes treatment with authorized neurosurgeon, Dr. Wancier or other, and the suggested treatment is deemed to be reasonable and medically necessary.
8. Authorization for care and treatment of the claimant’s neuropsychological condition is deferred until the claimant resumes treatment with the authorized psychiatrist, Dr. Kubski, and suggested neuropsychological treatment with Jeffrey Hirsh, Psy.D., or other, is deemed to be reasonable and medically necessary.

A judge of compensation claims has no authority to delegate the decision of claims pending before him to medical providers, to delay decision indefinitely, or, in a final order, to defer to opinions not yet offered.

Paragraphs seven and eight must therefore be deemed a denial of the claims seeking authorization for a neuropsychologist and for a separate, pain management specialist. On the other hand, the order does not deny psychological care (by a psychiatrist) or pain management (either by a psychiatrist or by a neurosurgeon). It may fairly be read as authorizing such care and services by implication, while at the same time deciding that the claimant failed to prove that separate professionals had to be authorized in order for the claimant to receive adequate medical benefits. Competent, substantial evidence supports the order, so construed.

III.

The judge of compensation claims found that Ms. Myers was entitled to temporary partial disability benefits from the April 30, 1996 accident until she reached statutory maximum medical improvement on May 1, 1998, and to permanent total disability benefits thereafter. He then ruled that she was entitled to only two-thirds of the normal indemnity benefits, holding that entitlement to a third of the benefits otherwise due was “carved out” by the non-compensable accident. This analysis was erroneous.

If a subsequent non-compensable accident superimposes an injury on a com-pensable condition, “the disability resulting solely from the [subsequent] accident is not compensable.” State, Dep’t of Pub. Health v. Wilcox, 458 So.2d 1207, 1209-10 (Fla. 1st DCA 1984). See also Cosmos Contracting Co. v. Courtney, 617 So.2d 439, 440 (Fla. 1st DCA 1993); Pan Am. World Airways, Inc. v. Franchina, 396 So.2d 245, 246 (Fla. 1st DCA 1981). As to temporary indemnity benefits, the question that should have been addressed on remand — and must now be addressed on a second remand — is whether appellant’s disability attributable to the industrial accidents would have rendered her (partially or totally) unemployable, without regard to the effects of the third accident. See Winn Dixie Stores, Inc. v. La Torre, 702 So.2d 1267, 1270-71 (Fla. 1st DCA 1997).

[A]n employer is not entitled to receive a windfall when some misfortune unrelated to work befalls an industrially injured employee and prevents his working, if a prior industrial accident would otherwise have entitled the employee to workers’ compensation benefits. See Koulias [v. Tarpon Marine Ways, 538 So.2d 130 (Fla. 1st DCA 1989) ]. See also McCla-ney v. Dictaphone/Pitney Bowes, 659 So.2d 325 (Fla. 1st DCA 1994).

Id. at 1270. Similarly, as to permanent indemnity benefits, the judge of compensation claims must decide on remand whether appellant’s disability attributable to the industrial accidents would have rendered her totally, permanently disabled even if the third accident had never occurred. See Curtis v. Bordo Citrus Prods., 566 So.2d 328, 330 (Fla. 1st DCA 1990) (“An evidentiary issue is presented as to what portion of the disability is caused by the compensable accident, even where the non-compensable condition is independently a sufficient producing cause of claimant’s total disability.”). The question is “[w]hether she was or [w]ould have become totally disabled in the absence of the [non-work-related] accident.” Wilcox, 458 So.2d at 1210. See Cover v. T G & Y Store # 1331, 405 So.2d 985, 986 (Fla. 1st DCA 1981).

IV.

Accordingly, all awards of indemnity benefits and any award of medical benefits that pertain specifically to the lower back or lumbar spine are reversed, and the case is remanded for further proceedings on those claims. The order is otherwise affirmed.

KAHN and LEWIS, JJ., concur.

      . The claimant was involved in a work-related accident on April 30, 1996, hitting her head against the window of the car she was driving. She sought medical attention, complaining of pain in her upper back and thoracic spine. She had a second work-related accident on May 6, 1996, while lifting a five-gallon drum of paint thinner. She again sought medical attention, complaining of low-back pain as well as continued pain in the upper back and cervical spine. On June 5, 1996, the claimant was involved in a non-work-related auto accident. Myers v. Williams, 770 So.2d 1246, 1247 (Fla. 1st DCA 2000).

      . In the report on which the judge of compensation claims relied, Dr. Magaña stated that "it would be reasonable to apportion the cause of the patient’s complaints as being 30% from her accident of 4/30/96, 30% from her accident of 5/6/96 and 30% from 6/5/96.” He also noted that appellant had an impairment rating of 16%, and that he "would apportion a third of that to her accident of 4/30/96, a third to her accident of 5/6/96, and a third to her accident of 6/5/96.”


text:
    Michael A. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0066.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2003.
    Michael A. Smith, pro se, petitioner.

      Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DISMISSED. See Fla. RApp. P. 9.141(c)(4)(B).

BARFIELD, POLSTON and HAWKES, JJ„ concur.


text:
    Marsha Faye LOVELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2881.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2003.
    Nancy Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee; Appellant pro se, for Appellant.
    Charlie Crist, Attorney General, and Karen Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error occurred. We affirm the appellant’s revocation of probation and imposition of judgment and sentence. However, because the record does not contain a written order of revocation of community control listing the conditions of community control violated, we remand for the trial court to enter such an order, consistent with its oral pronouncement. See Oliver v. State, 819 So.2d 816 (Fla. 1st DCA 2002).

AFFIRMED.

WEBSTER, PADOVANO and HAWKES, JJ., concur.


text:
    Terry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3860.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2003.
    Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We have reviewed this case according to our obligation under In re Anders Briefs, 581 So.2d 149 (Fla.1991), and affirm the revocation of probation and sentence of imprisonment. In accordance with the trial court’s order of December 13, 2001, however, we strike from the sentencing documents the $90.00 public defender’s hen imposed on August 30, 2001.

Affirmed as modified.

ALLEN, C.J., BENTON and HAWKES, JJ., concur.


author: PER CURIAM,

text:
    Ronald McKEEHAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1973.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2003.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM,

AFFIRMED. State v. Smith, 840 So.2d 937 (Fla.2003); Sanders v. State, 621 So.2d 723 (Fla. 5th DCA 1993).

SAWAYA, PLEUS and MONACO, JJ., concur.


text:
    Dalvin BRAXTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1756.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2003.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Joyce PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1032.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2003.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Gethers v. State, 838 So.2d 504 (Fla.2003); Price v. State, 598 So.2d 215 (Fla. 5th DCA 1992).

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


text:
    Andrew J. SUMPTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-5019.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.

      Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Andrew Sumpter (Sumpter) was charged with two counts of robbery with a deadly weapon. After a jury trial, he was found guilty on both counts. As the basis for his appeal, he contends that the trial court erred in denying his motion for mistrial based on testimony that he alleges inferred that he confessed in another case.

The statement made during trial was not an improper implication of a collateral crime and therefore the trial court did not err in denying Sumpter’s motion for mistrial. We affirm the conviction.

However, we remand for re-sentencing. The scoresheet utilized by the trial court to sentence Sumpter erroneously contained a robbery which was committed three days after the offense for which he was being sentenced. It was error to include this offense under the “prior record” section of the scoresheet. See Pollis v. State, 581 So.2d 991 (Fla. 2d DCA 1991). The only offenses that may be included under “prior record” are those committed by the offender prior to the commission of the primary offense. We remand for re-sentencing under a corrected scoresheet.

POLEN, C.J., KLEIN and HAZOURI, JJ., concur.


author: SILBERMAN, Judge.

text:
    Phillip Earl SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4233.
    District Court of Appeal of Florida, Second District.
    Feb. 21, 2003.
   SILBERMAN, Judge.

Phillip Sutton challenges the order of the trial court granting his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a).

In his motion, Sutton alleged that he was not awarded credit in three trial court cases for the time he previously spent in prison in each case prior to his being re-sentenced to prison upon violation of the probationary portions of his probationary split sentences. In its order, the trial court awarded Sutton credit for time spent in jail prior to sentencing.

Regarding Sutton’s prison credit claim, the trial court acknowledged that Sutton is “entitled to the time actually served on the prison sentence first imposed to be credited against those sentences he is currently serving [upon] violating probation.” However, the trial court found that “the Department of Corrections, not the trial court, has the responsibility of granting postsentencing jail time credit (actual time spent in prison).” The trial court is incorrect. Although the trial court may delegate to the Department of Corrections the task of determining the correct amount of prison credit when a defendant is resen-tenced after violating the probationary portion of a probationary split sentence, it is the responsibility of the trial court to order that defendants receive the prison credit to which they are entitled. See Downing v. State, 779 So.2d 562 (Fla. 2d DCA 2001).

We therefore reverse the order of the trial court in regard to Sutton’s prison credit claim and remand to the trial court for further consideration. If Sutton has not been previously awarded credit in each case for the time he spent in prison prior to his being resentenced to prison, the trial court shall award him such credit.

Affirmed in part, reversed in part, and remanded.

WHATLEY and NORTHCUTT, JJ., concur.

      . In Downing, the award of prison credit could have been accomplished by placing a check in the appropriate box on the written sentence. However, in the present case, there were no judgments and sentences filed with the clerk of the circuit court. Instead, the trial court utilized snap-outs or memoran-da of sentences which do not have a separate box for an award of prison credit. This court has repeatedly criticized the use of these memoranda because of the "mischief” that they can cause on appellate review. See Heath v. State, 840 So.2d 307 (Fla. 2d DCA 2003). Furthermore, as we have also frequently mentioned, a memorandum of sentence cannot serve as a formal order of revocation of probation. See Braswell v. State, 804 So.2d 523 (Fla. 2d DCA 2001).


text:
    Craig B. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2678.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.

      An appeal from the Circuit Court for Walton County, Lewis R. Lindsey, Judge.
    Appellant, pro se.
    Charlie Crist, Attorney General, James W. Rogers, Senior Assistant Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his rule 3.800(a) motion, in which he alleges that his sentence is illegal because it exceeds the statutory maximum for a third-degree felony. Because the appellant’s sentence exceeds both the statutory maximum and the lowest permissible sentence under the Criminal Punishment Code, we reverse.

The appellant was convicted of aggravated assault with a firearm and sentenced to eighty-four months’ imprisonment. Aggravated assault with a firearm is a third-degree felony punishable by up to sixty months’ imprisonment. The appellant’s lowest permissible prison sentence on the Criminal Punishment Code scoresheet was 82.3 months, so section 921.0024(2), Florida Statutes (1999), authorized the trial court to impose a sentence in excess of the statutory maximum for a third-degree felony. See Butler v. State, 838 So. 2d 554 (Fla. 2003). However, section 921.0024(2) only authorizes the trial court to sentence the appellant to the lowest permissible sentence provided by the Criminal Punishment Code. Thus, the appellant should have received a sentence of 82.3 months, not eighty-four months. See Watkins v. State, 787 So.2d 141, 142 (Fla. 2d DCA 2001).

We, therefore, reverse the trial court’s order summarily denying the appellant’s motion to correct illegal sentence and remand for the trial court to resentence the appellant to the lowest permissible sentence pursuant to the Criminal Punishment Code.

REVERSED and REMANDED.

BARFIELD, BROWNING and LEWIS, JJ., CONCUR.


text:
    Reginald C. HAWKINS, Petitioner, v. Nancy A. DANIELS, Joel Arnold, Archie F. Gardner, Jr., Steven Seliger, Judge James C. Hankinson, Eugenia B. Lawrence and Laura Mountain, Respondents.
    No. 1D02-4821.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2003.

      Reginald C. Hawkins, pro se, petitioner.
    No appearance for respondents.
   PER CURIAM.

The amended petition for mandatory injunction shall be treated as a petition for writ of mandamus. The petition is denied.

PETITION DENIED.

ERVIN, BOOTH and BROWNING, JJ., concur.


text:
    Ronald HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-356.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2003.
    Ronald Hogan, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Harris v. State, 810 So.2d 1093 (Fla. 5th DCA 2002); Cuevas v. State, 770 So.2d 703 (Fla. 4th DCA 2000).

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


text:
    Chad DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2171.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

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


text:
    Jean-Paul TRUJILLO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1562.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2003.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rolling v. State, 825 So.2d 293 (Fla.2002); Penn v. State, 825 So.2d 456 (Fla. 2d DCA 2002).

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


text:
    Jamal A. LONG, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3346.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2003.
    Jamal Long, Bonifay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Carattini v. State, 774 So.2d 927, 928 (Fla. 5th DCA 2001).

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


text:
    David R. CRUZ BERTANCES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-110.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.

      David R. Cruz-Bertances, in proper person.
    Charlie Crist, Attorney General, and Marni A. Bryson, (Ft. Lauderdale), Assistant Attorney General for appellee.
    Before SCHWARTZ, C.J., and LEVY, and WELLS, JJ.
   PER CURIAM.

Appellant, David R. Cruz Ber-tances, appeals the denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Among the issues raised, the defendant argues that his trial counsel failed to properly advise him of the ramifications of his plea, and he claims that the lack of written notice of the State’s intentions to impose an habitual offender designation, as required by section 775.084(3)(a), Florida Statutes (2000), entitles him to the relief sought. As to the first point, a review of the transcript clearly refutes the defendant’s claim that he was not fully advised of the ramifications of his plea. As to the latter claim, on the authority of Ashley v. State, 614 So.2d 486 (Fla.1993), and section 775.084(3)(a), the order denying relief is reversed. The defendant did not receive the required written notice of intent to habitualize. Moreover, while such a claim is subject to a harmless error analysis, see Massey v. State, 609 So.2d 598 (Fla.l992)(observing the purpose of requiring a prior written notice is to advise of the State’s intent and give the defendant and the defendant’s attorney an opportunity to prepare for the hearing), unlike Massey, the fact pattern sub judice does not demonstrate the defendant’s actual knowledge prior to hearing of the intention to habitualize, nor is a harmless error argument advanced by the State.

Accordingly, the defendant’s habitual offender sentence is vacated and the case remanded for resentencing.


text:
    STATE of Florida, Appellant, v. Andre CALIXTE, Appellee.
    No. 4D02-822.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Steven R. Parrish, Assistant Attorney General, Fort Lauderdale, for appellant.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state charged appellee, Andre Ca-lixte, in a five-count information with: 1) possession of cannabis with intent to deliver/sell; 2) grand theft of a motor vehicle; 3) burglary of a conveyance; 4) possession of burglary tools; ■ and 5) possession of drug paraphernalia. Calixte was arrested after a traffic stop revealed that the car was stolen, drugs and paraphernalia were found in the car, and appellee possessed a “Toyota master key.”

Without negotiating a plea bargain with the state, Calixte entered a plea of no contest to all five charges to the court. Not convinced that the master key was a burglary tool, the trial court accepted the plea and sentenced the appellee on four counts, but “acquitted” Calixte of the burglary tools charge. The state preserved its objection to the “acquittal.” This case concerns only the state’s appeal of the dismissal of the burglary tool charge. The state does not challenge the disposition of the other four counts.

Although the trial court used the term “acquittal,” the order is properly treated as an order dismissing a count of an information which the state may appeal under Florida Rule of Appellate Procedure 9.140(c)(1)(A). See State v. Gaines, 770 So.2d 1221, 1226 n. 5 (Fla.2000); State v. Sherrod, 383 So.2d 752, 753 (Fla. 4th DCA 1980). At the plea conference, the trial court was without the authority to enter a dismissal without the consent of the state based on its belief that the master key was not a burglary tool within the meaning of the statute. The proper procedural mechanism for resolving such an issue is a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4).

The dismissal of the possession of burglary tools charge is reversed.

GROSS and MAY, JJ., and DAMOORGIAN, DORIAN, Associate Judge, concur.


author: COPE, J.

text:
    Thomas J. GILBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3372.
    District Court of Appeal of Florida, Third District.
    Feb. 26, 2003.
    Thomas J. Gilbert, in proper person.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for appellee.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   COPE, J.

Thomas J. Gilbert appeals an order denying his motion to correct illegal sentence. We affirm.

In earlier proceedings, this court remanded for resentencing of defendant-appellant Gilbert within the 1994 guidelines. Gilbert v. State, 706 So.2d 135 (Fla. 3d DCA 1998); see also Gilbert v. State, 680 So.2d 1132 (Fla. 3d DCA 1996). After resentencing, there was a further appeal, and this court affirmed. Gilbert v. State, 755 So.2d 197 (Fla. 3d DCA 2000). By this motion to correct illegal sentence, the defendant argues that his sentence exceeds the legal maximum. We believe this claim to be procedurally barred, as it appears to have been raised and rejected in the appeal decided in 2000.

In any event, we conclude that the sentence is legal. Insofar as pertinent here, the defendant’s 1994 guidelines were for a maximum sentence of 32.6 years. Defendant was sentenced to concurrent terms of thirty years incarceration for sexual battery on counts one, two, and four. These are all first degree felonies.

The defendant was given a consecutive thirty year probationary term for a fourth sexual battery count, count five.

The defendant argues that when imposing a sentence of incarceration followed by probation, the combined total cannot exceed 32.6 years, which is the maximum of his guidelines score. That is not so.

The decision in Tripp v. State, 622 So.2d 941 (Fla.1993), considered a similar issue. The incarcerative part of the sentence is permissible so long as it does not exceed the guidelines amount. A consecutive probationary period is permissible up to the legal maximum. Since the trial court is allowed to impose consecutive sentences, see § 921.16, Fla. Stat., Tripp, 622 So.2d at 942-43; Hoffman v. State, 776 So.2d 286, 287 (Fla. 3d DCA 2000), it follows that the consecutive term of thirty years of probation in this case is within the legal maximum. The Tripp decision does, however, impose a limitation on the amount of incarceration which can be ordered if the defendant violates the consecutive term of probation. 622 So.2d at 942.

We affirm on the remaining issues without comment.

Affirmed.

       There were concurrent sentences on multiple third degree felonies, which are immaterial here.