author: COLE, KAREN K, Associate Judge.

text:
    Loring Spencer JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1182.
    District Court of Appeal of Florida, First District.
    June 18, 2004.

      Nancy A. Daniels, Public Defender, and Janice G. Scott, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   COLE, KAREN K, Associate Judge.

Appellant appeals his judgment and sentence for felony petit theft following revocation of his probation. He contends that the general probation conditions which he allegedly violated were not validly imposed and cannot serve as a basis for revocation of his probation. We agree but, because the sentencing error was not preserved as required by Brannon v. State, 850 So.2d 452, 459 (Fla.2003), we must affirm.

In November 1999, Appellant plead no contest to felony petit theft. The trial court adjudged him guilty of that offense and sentenced him to three years in prison followed by two years of probation. In pronouncing sentence, the trial judge recited certain special conditions of probation (restitution and deferred payment of the costs of supervision) but did not state that the probation was subject to any general conditions of probation. The trial judge entered a judgment and sentence, but failed to enter a written probation order.

When Appellant was released from prison, the Department of Corrections told him in writing where and when to report to his probation officer. Appellant, however, failed to timely report and failed to contact his probation officer at all. The probation officer then filed an affidavit of violation of probation. Shortly thereafter, the probation officer filed an amended affidavit of violation, adding an allegation that Appellant had been arrested for stealing a shopping cart from Wal-Mart.

The successor trial judge, apparently realizing that no written order of probation had ever been entered, then entered such an order in January 2003 and recited that it was entered nunc pro tunc to the date of the judgment and sentence. Following a hearing, he concluded that Appellant’s failure to contact his probation officer and his commission of a new crime constituted willful and substantial violations of the general conditions of his probation. See § 948.03(1), Fla. Stat. (1999)(general conditions of probation), and Fla. R.Crim. P. 3.986(e) (form probation order including general conditions of probation). The trial judge entered an order revoking Appellant’s probation and sentencing him to five years in prison (with credit for time already served) for felony petit theft. Except in cases involving certain crimes other than the one here involved, a trial court has discretion to determine which general conditions to include in a probation order. See § 948.03(1), Fla. Stat. (“These [general] conditions may include among them the following ...;” (emphasis supplied)). General conditions may be imposed either orally, or in writing, or both. General conditions of probation not orally pronounced at sentencing may nevertheless be validly imposed by subsequent timely written order of probation. Perez v. State, 805 So.2d 76, 79 (Fla. 4th DCA 2002) (citing State v. Hart, 668 So.2d 589, 592 (Fla.1996)). Revoking probation, however, for violating conditions neither orally pronounced nor embodied in a written order violates a defendant’s due process rights under the Florida and United States Constitutions. Perez, 805 So.2d at 79. See also Kiriazes v. State, 798 So.2d 789, 792 (Fla. 5th DCA 2001)(“[I]f a standard condition of probation is not orally announced at sentencing and is not included in the written probation order, then it is not imposed.”)

When Appellant in this case committed the acts which allegedly constituted a violation of his probation, he had not been told either orally or in writing that such acts were prohibited and would result in a revocation of his probation. The trial court therefore erred in revoking Appellant’s probation on this basis. However, a revocation of probation proceeding is merely an extension of the sentencing process and is therefore subject to its preservation requirements. Sentencing errors are not reviewable on direct appeal unless they are preserved in the trial court, either by timely objection at sentencing or by a timely filed motion pursuant to Florida Rule of Criminal Procedure 3.800(b). See Brannon v. State, 850 So.2d 452 (Fla.2003); see also Maddox v. State, 760 So.2d 89, 104-106 (Fla.2000) (concluding that appellant’s due process rights to challenge a condition of probation is sufficiently protected by the mechanisms of rule 3.800(b)).

In the present case, the Appellant neither made a contemporaneous objection nor filed a rule 3.800(b) motion to correct the error, .and thus the issue is unpre-served for review. This determination, however is without prejudice to the Appellant’s right to seek collateral relief under Florida Rule of Appellate Procedure 9.141(c) or Florida Rule of Criminal Procedure 3.850. See, e.g., Santiago v. State, 870 So.2d 198 (Fla. 3d DCA 2004) (opinion not yet final).

Accordingly, the judgment and sentence below is AFFIRMED.

ALLEN and POLSTON, JJ., concur.

       Because it is not necessary for resolution of this case, this Court does not reach the issue of whether he could validly do so.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Furman FANT, Appellee.
    No. 1D03-0465.
    District Court of Appeal of Florida, First District.
    June 18, 2004.

      Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for appellant.
    Judy Groover, of Law Offices of Judy L. Groover, Jacksonville, for appellee.
   PER CURIAM.

The state appeals the downward departure sentence imposed in this case. The trial court clearly stated its reasons for departure on the record, one of which was the appellant’s need for drug treatment. While the need for drug treatment alone would not be a proper basis for departure, State v. Shorter, 814 So.2d 1117 (Fla. 4th DCA 2002), the other reasons stated by the court to support its downward departure sentence are valid and are supported by competent substantial evidence received from testimony presented during the sentencing proceedings and in the record on appeal. “An appellate court is obliged to uphold a departure sentence if one of the reasons for the departure is valid, even if the remaining departure reasons are invalid.” Id. at 1118 (quoting Perry v. State, 714 So.2d 563, 564 (Fla. 1st DCA 1998)).

Only one issue requires further clarification. The state argues that the only agreement by the state below was for a sentence “in the guidelines range,” with a cap of ten years. Accordingly, the state maintains, the trial court’s departure sentence was in violation of the plea agreement and must be reversed, citing State v. Gitto, 731 So.2d 686 (Fla. 5th DCA 1998) (en banc), quashed on other grounds, Silas v. State, 781 So.2d 1082 (Fla.2001). In State v. Gitto, the court ruled,

[T]he trial court’s acceptance of a plea over the prosecutor’s objection is clear error which requires outright reversal of any sentence entered in reliance of such a plea....

Id. at 691.

We find the state’s reliance upon State v. Gitto is misplaced for the reason that the record before us fails to support the state’s position that the trial court was bound by a plea agreement calling for a sentence within the guidelines. We would agree that the terms of the plea agreement below were somewhat inartfully stated. However, at no time do we find the prosecutor below advising the trial court that the plea agreement called for a sentence “in the guidelines range.” On the other hand, we find several statements by defense counsel, unchallenged by the prosecutor, referring to the range of sentencing as contemplating “anything from zero to ten years,” or words to that effect. Furthermore, the only “objection” by the prosecutor was at the final sentencing hearing, just after the court’s adjudication of guilt and just prior to the pronouncement of sentence. At that point the prosecutor stated,

If I may state for the record, the reason we’re pursuing prison for Mr. Fant and would object to anything below the guidelines is because based on the facts and circumstances of the cases, Mr. Fant was the more responsible party. He was also significantly older than the other person involved....

It is clear that the state’s objection to “anything below the guidelines” was based on the “facts and circumstances” of the offenses, and not upon the terms and conditions of the plea agreement. The state had ample opportunity below, on four separate occasions, to assert the position it now maintains for the first time on appeal.

Accordingly, the conviction and sentence is affirmed.

ERVIN and BOOTH, JJ., SMITH, LARRY G., Senior Judge, concur.

      . That there might have been some confusion below may be reflected in the statement found in Appellant’s Initial Brief: "The State thought Fant was pleading to a sentence in the guidelines range, not exceeding ten years. Defense counsel thought otherwise ...."


author: CANADY, Judge.

text:
    In the Interest of J.A.H., a child, and D.G.S., a child, A.R., Appellant, v. Department of Children and Family Services, and Guardian Ad Litem Program, Appellees.
    No. 2D03-2372.
    District Court of Appeal of Florida, Second District.
    June 18, 2004.
    Heather M. Gray, Riverview, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee Department of Children and Families.
    No appearance for Appellee Guardian Ad Litem Program.
   CANADY, Judge.

A.R., a mother, appeals an order adjudicating her son, D.G.S., and her daughter, J.A.H., dependent. We conclude that the adjudication of dependency as to D.G.S. was supported by competent, substantial evidence and consequently affirm that adjudication. However, we conclude that the adjudication as to J.A.H. was not supported by competent, substantial evidence and therefore reverse that adjudication.

The evidence presented at the dependency hearing indicated that A.R. had permitted her father, who suffered from a number of health problems, to live with her for a period of approximately two years. Testimony at the hearing indicated that A.R.’s father had a “nasty” disposition and had a particularly difficult time getting along with A.R.’s eight-year-old son, D.G.S. The strained relationship between the grandfather and D.G.S. culminated in an incident in which the grandfather wrapped his hand in a sheet and struck D.G.S. in the head. When the Department of Children and Family Services learned of this incident, they removed both D.G.S. and his younger sister, J.A.H., from A.R.’s home and instituted dependency proceedings.

A.R. testified that her father had lived at her home because he could not live independently due to his health problems and because his unpleasant disposition made other relatives unwilling to provide him shelter. She admitted that she had been aware of the poor relationship between her father and D.G.S. for some time but stated that she had attempted to mitigate any problems by having D.G.S. live mostly with A.R.’s mother. She also stated that, shortly after the removal of her children from her home, she found appropriate government subsidized housing for her father and that at the time of the hearing he was no longer in her home.

A child may be adjudicated dependent if the court finds that the child was “abandoned, abused, or neglected,” § 39.01(14)(a), Fla. Stat. (2003), or that the child is “at substantial risk of imminent abuse, abandonment, or neglect,” § 39.01(14)(f). We review the trial court’s order adjudicating D.G.S. and J.A.H. dependent under an abuse of discretion standard. D.H. v. Dep’t of Children & Families, 769 So.2d 424, 426 (Fla. 4th DCA 2000) (noting that the trial court’s discretion is “very broad with respect to proceedings involving child welfare”).

On appeal, A.R. contends that the adjudication of dependency as to D.G.S. was improper because there was no evidence that D.G.S. was “abandoned, abused, or neglected by the child’s parent or parents, legal custodians, or caregivers.” § 39.01(14)(a). Specifically, A.R. argues that she was not a participant in the grandfather’s abuse of D.G.S. and took reasonable measures to prevent it. A.R. also argues that no evidence was presented to support the trial court’s finding of dependency with respect to J.A.H.

In this case, competent, substantial evidence was presented that the mother knew of the grandfather’s propensity to abuse the child but nonetheless permitted them to be together without direct and continuous supervision. Section 39.01(2) defines abuse, in pertinent part, as “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” Section 39.01(3) also provides that abuse “includes acts or omissions.” Section 39.01(30) defines “ ‘[h]arm’ to a child’s health or welfare” to include situations where a person “[njegli-gently fails to protect a child in his or her care from inflicted physical, mental, or sexual injury caused by the acts of another.” The evidence presented was legally sufficient for the trial court to conclude that, through omission of proper supervision when the incident occurred, A.R. had negligently permitted D.G.S. to be abused by the grandfather, despite evidence that A.R. had taken some measures to avoid the abuse. We therefore conclude that the trial court did not abuse its discretion in adjudicating D.G.S. dependent.

We conclude, however, that the trial court erred by adjudicating J.A.H., D.G.S.’s younger sister, dependent. It was undisputed that J.A.H. was not directly abused. “Children who have not been abused may be adjudicated dependent based on abuse inflicted upon their siblings; however, the evidence must demonstrate a nexus between the abuse and any prospective abuse to another sibling.” CM. v. Dep’t of Children & Family Servs., 844 So.2d 765, 766 (Fla. 2d DCA 2003). Here, there was no demonstration of any nexus between the abuse of D.G.S. and any prospective abuse of J.A.H.

The apparent basis for the adjudication was that J.A.H. might have been harmed by witnessing the abuse suffered by her older brother. Section 39.01(30)(i) provides that “harm” to a child can occur when any person “[e]ngages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child.” But this type of harm can only occur when the “domestic violence [is] committed in the presence of [the] child,” and “the child sees or is aware of the violence occurring.” D.D. v. Dep’t of Children & Families, 773 So.2d 615, 617-18 (Fla. 5th DCA 2000). Here there was no evidence that J.A.H. actually witnessed or was cognizant of the abuse of D.G.S. by the grandfather and thus there was no basis for the trial court’s determination that J.A.H. was dependent. We therefore reverse the adjudication of dependency as to J.A.H.

Affirmed in part, reversed in part, and remanded with instructions.

CASANUEVA and SALCINES, JJ., Concur.


text:
    Lewis P. CHURCHVILLE and Mary Lavern Churchville, Appellants, v. OCEAN GROVE R.V. SALES, INC.; Century American Casualty Company; Damon Corporation; Reliance Insurance Company; General Motors Corporation, Appellees.
    No. 1D04-0417.
    District Court of Appeal of Florida, First District.
    June 18, 2004.

      N. Albert Bacharach, Jr. and Chigozie H. Offor, Gainesville, for Appellants.
    W. Scott Powell of Roth, Powell, Pearson, & Hosley, P. A., Winter Park; Charles P. Mitchell of Rumberger, Kirk and Caldwell, P.A., Orlando; Geoffrey B. Dobson of Dobson & Christensen, St. Augustine; and Melissa Dawn Munroe, Orlando, for Appellees.
   PER CURIAM.

Having considered “Appellee Damon Corporation’s Motion to Dismiss Appeal,” which included a motion for sanctions pursuant to section 57.105, Florida Statutes, as well as “Appellants’ Response to Appellee Damon Corporation’s Motion to Dismiss,” we find that the Court lacks jurisdiction to review the “Ex Parte Final Judgment,” entered on March 22, 2004, and that the appellee is entitled to attorney’s fees incurred subsequent to the appellants’ March 24, 2004 Amended Notice of Appeal.

The appellants initially brought this appeal to review a post-judgment order on a motion for relief from judgment. However, the basis for asserting the Court’s jurisdiction was unclear and on February 11, 2004, the Court issued an order to show cause to determine the proper avenue for review. The appellants responded to this order on February 26, 2004.

In the appellants’ response, they avoided the jurisdictional question presented in the show cause order and instead asserted that the order underlying their motion for relief, titled “Final Order Granting Defendants Damon/Reliance’s 9/8/03 Motion to Dismiss for Lack of Prosecution,” entered on October 28, 2003, was not a final ap-pealable order. The appellants further failed to comply with the Court’s order which required the appellants to attach copies of any pleading or document referenced in the response. However, the appellants suggested that the jurisdictional deficiency in the previous order, i.e., an order that merely grants a motion to dismiss without more is not final, could be corrected by obtaining a final order and the appeal could proceed from that order. Therefore, the appellants requested time to obtain such a final order.

On March 9, 2004, the Court again ordered the appellants to respond to the Court’s concerns regarding its jurisdiction or to file an amended notice of appeal correctly identifying the final order on appeal. The appellants subsequently obtained an “Ex Parte Final Judgment,” entered on March 22, 2004, which entered judgment on “Damon Corporation/Reliance Insurance Company’s 9/8/03 Motion To Dismiss Pursuant to Fla. R. Civ. P. 1.420(e).” On March 24, 2004, the appellants filed an amended notice of appeal identifying this final judgment as the order on appeal.

On March 31, the appellee, Damon Corporation, filed a motion to dismiss, which also sought sanctions pursuant to Section 57.105, Florida Statutes. The appellee argued that in an attempt to circumvent an expired appeal deadline, the appellants deliberately failed to comply with the Court’s orders to show cause and proceeded instead down an improper path with the trial court. The appellee attached to this motion, inter alia, a conformed copy of the “Final Order Granting Defendants Damon/Reliance’s 9/8/03 Motion to Dismiss for Lack of Prosecution,” entered on October 28, 2003. The appellants filed a response in which they assert that the October 28, 2003 order was not a final appealable order, but that the March 22, 2004 order “that contained the exact language as the October 28, 2003 Order” was final and appealable.

An amendment or modification of an order or judgment in an immaterial, insubstantial way does not restart the clock to file an appeal. See St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971); Maxfly Aviation Inc. v. Capital Airlines Ltd., 843 So.2d 973 (Fla. 4th DCA 2003). Even where the modification is substantial or material, but is entirely in the appellant’s favor, the appellant may not rely on this order to obtain an appeal of the issues decided adversely to the appellant in the earlier Final Judgment. Beal Bank, S.S.B. Inc. v. Sherwin, 829 So.2d 961 (Fla. 4th DCA 2002); First Continental Corp. v. Khan, 605 So.2d 126 (Fla. 5th DCA 1992). The “Final Order Granting Defendants Damon/Reliance’s 9/8/03 Motion to Dismiss for Lack of Prosecution,” entered on October 28, 2003, is a final order from which the appellants failed to timely appeal or to move the lower court for rehearing. The October 28, 2003, order stated:

As against Defendants Damon and Reliance, this action is hereby dismissed with prejudice. Plaintiffs shall take nothing from Defendants Damon and Reliance, who shall go hence without day.

This order decided all the issues that subsequently were included in the March 22, 2004 order. Therefore, the subsequent order was merely a republication of the previous order and did not revive the appellants’ time to file an appeal. Accordingly, this appeal must be dismissed as untimely.

An award of appellate attorney’s fees against the appellants is appropriate in this case to cover the attorney’s fees incurred by the appellee, Damon Corporation, subsequent to the appellants filing their Amended Notice of Appeal, on March 24, 2004. See § 57.105(1) Fla. Stat. (2003); Freedom Commerce Centre Venture v. Ransom, 823 So.2d 817 (Fla. 1st DCA 2002) (granting appellate attorney’s fees where appeal would have been completely unnecessary had the offending party recognized the correct state of the law); Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414 (Fla. 1st DCA 2002) (finding no merit to the appeal and awarding appellate attorney’s fees against appellant). The appellants’ Amended Notice of Appeal asserts that the order identified as the order on appeal was an appealable final order. This assertion allowed the appellants to proceed and required the appellee to defend against this appeal. However, the appellants knew or should have known, when they presented this claim to the Court that it was factually and legally without merit. This is clearly shown in the appellants’ response to the motion to dismiss in which the appellants continue to argue that the order was nonfinal when it was originally entered, but the exact language in the subsequent order was sufficient to render the order final.

■ In conclusion, we dismiss this appeal for lack of jurisdiction and grant the appellee’s motion for appellate attorney’s fees. On remand the trial court shall determine the proper amount of the fees for handling this appeal after the appellants filed their amended notice of appeal.

DISMISSED.

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


author: VILLANTI, Judge.

text:
    PUBLIX SUPER MARKETS, INC., a Florida corporation, Appellant/Cross-Appellee, v. WILDER CORPORATION OF DELAWARE, a Delaware corporation, Appellee/Cross-Appellant.
    No. 2D03-3690.
    District Court of Appeal of Florida, Second District.
    June 18, 2004.

      Edwin A. Scales, III, of Edwin A. Scales, III, P.A., Key West; Mark N. Miller of Gray Robinson, P.A., Lakeland; and Monterey Campbell, Lakeland, for Appellant/Cross-Appellee.
    Stanley T. Padgett and Mark G. Morgan of Morgan, Padgett Law Group, P.A., Tampa, for Appellee/Cross-Appellant.
   VILLANTI, Judge.

Wilder Corporation of Delaware (Wilder) sued Publix Super Markets, Inc. (Publix) for a declaratory judgment as to the meaning of the parties’ reciprocal easement agreement. The circuit court construed the agreement in Wilder’s favor. For reasons discussed below, we reverse.

Publix and Wilder are successors in interest to a 1974 reciprocal easement agreement between Pinellas Shopping Centers, Inc. (Pinellas), and Jenbank, Inc. (Jen-bank), respectively. In the agreement, the parties conveyed nonexclusive easements to each other so that vehicles and pedestrians could have access into and out of the parking lots on the adjoining properties. The agreement also listed additional provisions as consideration. Both parties agreed to pay one dollar, to maintain the easements on their own properties, and not to use the easements in any manner that would unreasonably interfere with vehicle and pedestrian traffic. Jenbank also agreed to certain parking restrictions. Finally, in provision (d), Jenbank “further ... agree[d] that at no time [would] it construct any improvements in the area located to the North of the Jenkins Building without the express written consent of Pinellas.” Both Publix and Wilder agree that provision (d) is a restrictive covenant that runs with the land. The dispute in this case centers around its application.

In 2001, Wilder requested Publix’s consent to allow development of an approximately 7900 square-foot building on the north parcel. Publix withheld consent for four reasons: building code concerns, inadequate parking, line of sight problems, and lack of approval from the city. Wilder then filed suit for declaratory judgment and, in another count, for damages arising from Publix’s alleged breach of the agreement. Both parties moved for summary judgment. The circuit court sided with Wilder on the declaratory judgment count, concluding that Publix could withhold consent based on only ingress or egress concerns and that Publix had breached the agreement and the implied covenant of good faith by withholding consent for other reasons. To resolve the remaining issue of damages, there was a jury trial, resulting in a verdict in favor of Publix.

Restrictive covenants will be enforced if (1) they are unambiguous, (2) they are reasonable, and (3) the parties’ intent is clear. Imperial Golf Club, Inc. v. Monaco, 752 So.2d 653, 654 (Fla. 2d DCA 2000).

Provision (d) is unambiguous because it is both clear and consistent with the agreement as a whole. Provision (d)’s plain and ordinary language expressly requires Wilder to obtain Publix’s written consent for any improvements on the north parcel of Wilder’s property. The words are not insensible or obscure. Provision (d) refers to “any improvements” on a specific piece of land and requires “express written consent.” Even in looking at the agreement as a whole, there are no contradictory or unclear terms. See Robins v. Walter, 670 So.2d 971, 974 (Fla. 1st DCA 1995) (“[WJhen interpreting covenants, one must look at the document as a whole to determine the intent of the parties.”).

The trial court held that provision (d) is unambiguous but interpreted it as giving Publix a right to withhold consent based on only ingress or egress concerns. We disagree for four -reasons. First, provision (d) is not located in the section establishing the reciprocal easement for ingress and egress. Instead, provision (d) is included in the section of “further agree[ments].” Second, provision (d) is not expressly limited by any other language in the agreement. Third, the express terms of provision (d) do not conflict with the other language in the agreement. The whereas clauses indicate that the parties contemplated further development and construction. Wilder can still further develop its property with Publix’s consent. Finally, if provision (d) was merely a mechanism to enforce the vehicular and pedestrian easement rights, it would render provision (b) absolutely useless. In provision (b), the parties agreed not to “unreasonably interfere” with “vehicular and pedestrian traffic.” . If the trial court’s interpretation was correct, then provisions (b) and (d) would sérve the same function and would be redundant. Courts must “construe contracts in such a way as to give reasonable meaning to all provisions,” rather than leaving part of the contract useless. Hardwick Props., Inc. v. Newbern, 711 So.2d 35, 40 (Fla. 1st DCA 1998); see also Paladyne Corp. v. Weindruch, 867 So.2d 630, 633 (Fla. 5th DCA 2004). The trial court’s interpretation unnecessarily eviscerated the parties’ original intent and effectively rewrote provision (d). This was error. We find that provision (d) unambiguously gives Publix the right to withhold consent for development on Wilder’s land for reasons unrelated to ingress and egress.

Provision (d) also meets the reasonableness requirement of restrictive covenants. Although it gives Publix the discretion to withhold' consent without defined standards, we can imply a reasonableness requirement. See Natural Kitchen, Inc. v. Am. Transworld Corp., 449 So.2d 855 (Fla. 2d DCA 1984) (imposing a reasonableness requirement in a case involving a landlord’s right to consent to an assignment).

Finally, the parties’ intent was clear. Pinellas and Jenbank expressly stated that provision (d) was “part of the consideration for the [reciprocal easement agreement].” Because provision (d) is unambiguous and reasonable and the parties’ intent is clear, it should be enforced. See Imperial Golf Club, 752 So.2d at 654.

Therefore, we reverse the trial court’s declaratory judgment that Publix could withhold consent based on only ingress and egress concerns. We also reverse the trial court’s finding that Publix breached the agreement because it is based on an erroneous interpretation of provision (d).

The trial court’s conclusion that Publix also breached .the implied covenant of good faith is likewise based on an erroneous interpretation of provision (d) and therefore will not support a summary judgment against Publix. Florida’s implied covenant of good faith and fair dealing is a gap-filling default rule. It is usually raised when a question is not resolved by the terms of the contract or when one party- has the power to make a discretionary decision without defined standards. See Sepe v. City of Safety Harbor, 761 So.2d 1182, 1185 (Fla. 2d DCA 2000) (stating “where contract afforded party ‘substantial discretion to promote that party’s self-interest,’ [the] duty of good faith ... applied”) (quoting Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097-98 (Fla. 1st DCA 1999)). Where there are no standards for exercising discretion, the implied covenant of good faith protects contracting parties’ reasonable commercial expectations. Id. “Unless no reasonable party in the position of [Publix] would have made the same discretionary decision [Publix] made, it seems unlikely that its decision would violate the covenant of good faith....” Id. As discussed above, Publix had the discretion to refuse consent to Wilder’s improvements. It refused because of inadequate parking, among other concerns. It presented unrefuted evidence of the number of parking spaces and the number of spaces required by the building code — revealing that parking was already inadequate. In the face of this unrefuted evidence, Publix’s refusal was commercially reasonable and not arbitrary and thus did not constitute a breach of good faith, as a matter of law.

We therefore reverse the circuit court’s ruling on the declaratory judgment count and remand for entry of judgment in favor of Publix. We dismiss Wilder’s cross-appeal as moot.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Christopher M. HANNAH, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5427.
    District Court of Appeal of Florida, Second District.
    June 18, 2004.
   SILBERMAN, Judge.

Christopher M. Hannah challenges the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Hannah raised nine grounds for relief. We affirm without comment as to seven of the grounds and reverse as to two of them.

In ground one, Hannah asserted that he is entitled to an additional nineteen days of jail credit because he never received credit for time spent in a juvenile detention center before he was transferred to the Polk County Jail. He alleged that he was arrested on December 28, 1992, and housed at the detention center through January 15, 1993. He also alleged that on January 16, 1993, he was transferred to the jail. Hannah asserted that the jail and detention center records demonstrate his entitlement to relief. Additionally, he attached a capias that indicates an offense date of December 28, 1992, shows that the case was “direct information filed (juvenile)” and, under “comments,” notes “c/o juv dent center.” The capias was executed on January 15,1993.

The trial court, citing to Bain v. State, 784 So.2d 1168 (Fla. 2d DCA 2001), dismissed this claim without prejudice to Hannah filing a properly supported motion. The trial court stated that Hannah failed to provide and the record did not contain any documentation to support the claim. This court has previously stated that time spent in a juvenile facility is credited like time spent in county jail. See Smith v. State, 664 So.2d 1076 (Fla. 2d DCA 1995). Because the motion and capi-as presented a facially sufficient claim for relief, the trial court should have addressed the merits of the claim. See Whitt v. State, 807 So.2d 788 (Fla. 2d DCA 2002); Smith, 664 So.2d at 1076. Accordingly, we reverse the denial of this claim and remand for consideration on the merits.

In ground eight, Hannah alleged that he was improperly sentenced because certain of the convictions shown on his original scoresheet were uncounseled and should not have been considered. The trial court dismissed this claim without prejudice to Hannah filing a properly supported motion to correct illegal sentence.

In Register v. State, 619 So.2d 498, 499 (Fla. 2d DCA 1993), we stated that an issue concerning the scoring of prior convictions that “may be voidable for constitutional infirmities” cannot be raised for the first time on appeal or in a motion to correct illegal sentence; however, the issue could constitute ineffective assistance of counsel. As in Register, we conclude that Hannah’s motion is sufficient to warrant further inquiry by the trial court as to whether counsel at the 2002 violation of probation proceedings “inexcusably ignored” voidable prior convictions. Id. at 500. Accordingly, we reverse the dismissal of ground eight and remand for the trial court to examine the files and records in this ease to determine whether anything conclusively refutes Hannah’s claim. If so, the trial court may again deny the motion, attaching to its order any documentation it has relied upon. Otherwise, an evidentia-ry hearing may be necessary to resolve this claim.

Finally we note, as did the trial court, that a portion of ground nine of Hannah’s motion appears to be missing. In its order, the trial court stated the following, “Regarding claim nine Defendant shall file a new Motion for Postconviction Relief regarding newly discovered evidence pursuant to Rule 3.850, Fla. R.Crim. P.” We can only assume that the trial court made this ruling because it could not resolve the incomplete claim. We affirm the trial court’s disposition as to ground nine without prejudice to Hannah filing a timely, facially sufficient motion on this claim.

Affirmed in part, reversed in part, and remanded with instructions.

DAVIS and CANADY, JJ„ Concur.


text:
    Dennis DYER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1916.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2004.
    Stephen R. Jewett, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Partloiv, 840 So.2d 1040 (Fla.2003).

PETERSON, ORFINGER and TORPY, JJ., concur.


text:
    Adrain MEDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1558.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2004.
    Adrain Medley, Belle Glade, pro se.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See Mathis v. State, 720 So.2d 1116 (Fla. 5th DCA 1998).

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


text:
    Crystal JEWELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4083.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Benjamin TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3924.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2004.
    Benjamin Taylor, Miami, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Ridge v. Adams, 643 So.2d 116 (Fla. 5th DCA 1994).

SAWAYA, C.J., SHARP, W., and PETERSON, JJ„ concur.


text:
    Juan RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3355.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2004.
    James B. Gibson, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Juan M. Rivera, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


author: WELLS, Judge.

text:
    Leonardo GONZALEZ, Appellant/Cross Appellee, v. The STATE of Florida, Appellee/Cross-appellant.
    No. 3D02-2544.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant/cross-appel-lee.
    Charles J. Crist, Attorney General, and Barbara Zappi, (FtLauderdale), Assistant Attorney General for appellee/cross-appel-lant.
    Before SHEVIN, RAMIREZ and WELLS, JJ.
   WELLS, Judge.

Leonardo Gonzalez appeals his criminal convictions and sentences. We find no merit to Gonzalez’ overriding claim that the trial court’s failure to appoint two experts to evaluate his competency as required by Florida Rule of Criminal Procedure 3.210(b) mandates reversal. As outlined below, because the error was not properly preserved, and is not fundamental, we find no basis for relief as to that claim. We do, however, agree with several of the remaining points raised by the defendant.

Gonzalez was charged by information with two counts of attempted first-degree murder (Counts I and II) and one count of burglary with assault (Count III). Gonzalez entered into a negotiated plea, which he subsequently withdrew, against the advice of counsel. Thereafter, in response to counsel’s claim that Gonzalez was hearing voices, the trial court ordered a competency hearing and appointed two experts to evaluate him. Both experts concluded that Gonzalez was incompetent to proceed, but also pointed to possible malingering. Following a hearing held on May 4, 2001, the trial court ruled Gonzalez competent to stand trial.

Some months later, on September 25, 2001, with Gonzalez’ trial yet to begin, defense counsel filed a second motion for a competency examination and again requested two experts to evaluate Gonzalez. That motion outlined Gonzalez’ mental deterioration, including his auditory and visual hallucinations and suicidal tendencies. At the November 27, 2001 hearing on that motion, defense counsel pointed to emergency mental health treatment Gonzalez had received after the motion had been filed. Counsel argued that Gonzalez was not able to" communicate effectively about the case and renewed his request for a second rule 3.210(b) competency hearing.

The motion was granted. See Brockman v. State, 852 So.2d 330, 333-34 (Fla. 2d DCA 2003)(observing that “[e]ven if a defendant has previously been declared competent, the trial court must hold another competency proceeding if a bona fide doubt is raised as to the defendant’s continued competence”); Kothman v. State, 442 So.2d 357, 359 (Fla. 1st DCA 1983)(ob-serving that “[o]nce the judge is presented with reasonable grounds to believe a defendant may not have sufficient present ability to eonshlt with his attorney and aid in the preparation of his defense with a reasonable degree of understanding ... he must order a hearing and examination” for purpose of determining whether the defendant is competent to stand trial). However, the trial court named only one potential expert and indicated that it had not yet decided on the second expert. At the subsequent competency hearing, defense counsel noted that he had received a report from only one expert, Dr. Harrison, and that Gonzalez was entitled to two experts. When the prosecutor informed the trial court that Gonzalez had been evaluated by two experts some months earlier and that Dr. Harrison had been appointed as “the tie breaker,” defense counsel raised no objection and, in fact, participated in the hearing, during which the court ruled Gonzalez competent.

Gonzalez was subsequently found guilty of attempted second-degree murder of Mabel Martinez (Count I), guilty of aggravated battery of James Hurley (Count II), and “guilty as charged in the information of the offense of: burglary with intent to assault occupant, in violation of f.s. 810.02” (Count III). The trial court sentenced Gonzalez as a prison releasee reoffender (PR.R) to a term of fifteen years on Counts I, fifteen years on Count II, and to life imprisonment on Count III. The trial judge initially ordered the three sentences to run consecutively, however in response to defendant’s motion to correct sentencing error, the fifteen year sentence on Count I and the life term on Count III were ordered to run concurrently. The fifteen year sentence on Count II remained a consecutive sentence as initially ordered.

While we agree with Gonzalez that the trial court’s failure to appoint two experts to evaluate him for the second competency hearing was error, it is not a fundamental error that may be urged in the absence of an objection. See D’Oleo-Valdez v. State, 531 So.2d 1347, 1348 (Fla.1988) (concluding that the failure to appoint a second expert to determine a defendant’s competency, while error, is not fundamental error that would support reversal absent an objection below). Thus, we reject Gonzalez’ claim in this regard.

We do, however, agree with Gonzalez’ argument that the trial court erred in imposing a life sentence on Count III for “burglary with assault.” The jury verdict form found Gonzalez: “[g]uilty as charged in the information of the offense of: burglary with intent to assault occupant, in violation of F.S. 810.02.” Both the United States Supreme Court and the Florida Supreme Court require specific jury findings of any fact that increases the penalty for a crime beyond its prescribed statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984). Under Florida’s burglary statute, findings that the place burglarized was a “dwelling,” that the offender is or became “armed” with explosives or a dangerous weapon, or that an “assault” occurred during the course of the burglary are aggravating circumstances that increase the penalty beyond the statutory maximum sentence prescribed for simple burglary. See § 810.02, Fla. Stat. (1997). The jury must make specific findings of such aggravating circumstances before an increased penalty may be imposed. See Bottoson v. Moore, 833 So.2d 693, 709 n. 21 (Fla.2002) (Anstead, C.J., concurring) (“[i]f the jury finds that the state has proved-a particular aggravating circumstance beyond a reasonable doubt, they are required to find the defendant guilty of the enhanced crime, such as ‘burglary with an assault,’ ‘burglary while armed,’ ‘burglary of a dwelling,’ or ‘burglary of a structure with a human being in the structure.’ ”) (citation omitted); Wise v. State, 576 So.2d 428, 429 (Fla. 4 DCA 1991)(concluding that defendant was not subject to enhanced sentence for burglary of dwelling with intent to commit assault, in the absence of a jury finding that an assault had actually occurred).

In this case, the jury’s verdict, finding defendant guilty of “burglary with intent to assault occupant” made no such specific findings. Moreover, contrary to the State’s assertion otherwise, that part of the verdict form finding Gonzalez “[g]uilty as charged in the information” cannot be utilized to provide the missing necessary determination. See State v. Tripp, 642 So.2d 728, 730 (Fla.1994)(observing that “[tjhe special verdict form — not allegations in an information” — indicates a penalty increasing fact). Thus, Gonzalez’ life sentence for “burglary with assault” must be vacated, and he must be re-sentenced for simple burglary.

Additionally, as defendant argues, application of the Prison Releasee Reoffen-der Act to this count cannot stand. The jury made no specific finding as to occupancy or use of force, one of which was required to support application of the Act. See Weems v. State, 795 So.2d 122, 125 (Fla. 1st DCA 2001)(concluding that PRR sentence had to be vacated where it was not supported by specific jury findings). Thus, we remand the case for the trial judge to sentence Gonzalez under the appropriate guidelines for Count III, simple burglary, in conformity with the jury’s verdict.

Having disposed of Count III in this manner , the final point we address is Gonzalez’ argument that Count II should have been ordered to run concurrent to the other PRR sentences imposed (i.e. now, solely Count I). Because the facts of this case clearly demonstrate that the PRR sentences at issue resulted from a single criminal episode, we agree with the defendant and join with those districts that have uniformly concluded that “[a] defendant cannot be sentenced to consecutive Prison Releasee Reoffender sentences for offenses arising from a single criminal episode.” Rodriguez v. State, 835 So.2d 1172, 1173 (Fla. 2d DCA 2002); see also Robinson v. State, 829 So.2d 984, 985 (Fla. 1st DCA 2002)(“where the crimes are part of a single criminal episode ... this situation ... precluded] consecutive sentences for prison releasee reoffenders”); Williams v. State, 804 So.2d 572, 573 (Fla. 5th DCA 2002)(concluding “[cjonsecutive sentences for crimes arising from the same criminal episode under the PRR Act are not permitted”); Smith v. State, 800 So.2d 703, 704 (Fla. 5th DCA 2001); Durr v. State, 773 So.2d 644, 646 (Fla 5th DCA 2000); Philmore v. State, 760 So.2d 239, 240 (Fla. 4th DCA 2000)(noting that “once the sentences for multiple crimes committed during a single criminal episode have been enhanced, then the total penalty may not be further increased by ordering that they run consecutively”); McIntyre v. State, 757 So.2d 1288, 1288 (Fla. 4th DCA 2000)(coneluding that “because the sentences imposed in Counts II and III arose from- only one criminal episode, the court should not have imposed consecutive life sentences against him”). In doing so, we reject the State’s argument that each district considering this question has merely relied on what amounted to an earlier erroneous concession on this point by the State. See Philmore, 760 So.2d at 240. Rather, as argued by defense counsel, statements made in Palmer v. State, 438 So.2d 1 (Fla.1983), Daniels v. State, 595 So.2d 952 (Fla.1992), and Hale all support the conclusion outlined herein. Moreover, while not directly deciding this question, this court’s decision in Green v. State, 845 So.2d 895, 896 (Fla. 3d DCA 2003)(conclud-ing that “the trial court was not authorized tp impose the enhanced consecutive minimum mandatory sentences”), likewise supports our conclusion.

■ Accordingly, the order under review is affirmed in part, and reversed in part. Counts I and II are ordered to run concurrently, the case is remanded for re-sentencing on Count III.

      . This disposition resolves the State’s argument on cross-appeal, that the trial judge erred in concluding that he was obligated to order that Counts I and III run concurrently, in accordance with Hale v. State, 630 So.2d 521 (Fla.1993).


author: STONE, J.

text:
    Albert HALLMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2281.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

The sole issue on appeal is whether Hallmon’s sentence of life in prison is a vindictive sentence, where the same judge, pre-trial, offered him a sentence of nine years in prison. We affirm.

In a previous appeal, Hallmon v. State, 805 So.2d 60 (Fla. 4th DCA 2002), we affirmed Hallmon’s conviction of robbery with a firearm but remanded for re-sentencing because the state failed to adequately prove that he qualified for a habitual offender sentence. In that appeal, although raised, we declined to address the vindictive sentence issue.

The record reflects that a co-defendant, Danielle Marchione, the assistant manager of a Burger King, allowed Hallmon to enter the store after hours. At the same time, a gunman appeared, who forced Mar-chione, Hallmon, and two other Burger King employees back inside the store, and directed Marchione to empty the safe and the cash register. Hallmon told the victims that he would go for help. Meanwhile, the gunman placed Marchione and the other employees in the freezer.

At Hallmon’s first trial, the only witness was Danielle Marchione. That trial, which was conducted before a different judge, ended in a hung jury in February 1998. Thereafter, the state arrested and charged Victor Small, the gunman in the robbery. Small testified, at Hallmon’s second, trial, that Hallmon planned the robbery, gave him the gun, and rode with him to Burger King from Hallmon’s residence.

The supreme court recently addressed the subject of sentencing following trial court involvement in plea negotiations in Wilson v. State, 845 So.2d 142 (Fla.2003). There, the court reaffirmed that appellate courts should look at the totality of the circumstances when determining whether a defendant’s constitutional right to due process was violated by the imposition of an increased sentence after unsuccessful plea negotiations that include the trial court’s participation. Id. at 156.

In Wilson, the supreme court reaffirmed its previous opinion in State v. Warner, 762 So.2d 507 (Fla.2000), declining to adopt a “rigid” rule in balancing competing issues in order to resolve whether an imposed sentence, where the court was previously actively involved in plea negotiations, is vindictive. 845 So.2d at 150-51.

The Wilson court refined Warner, holding that:

Judicial participation in plea negotiations followed by a harsher sentence is one of the circumstances that, along with other factors, should be considered in determining whether there is a “reasonable likelihood” that the harsher sentence was imposed in retaliation for the defendant not pleading guilty and instead exercising his or her right to proceed to trial. See [Alabama v.] Smith, 490 U.S. [794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989)]. The other factors that should be considered include but are not limited to: (1) whether the trial judge initiated the plea discussions with the defendant in violation of Warner; (2) whether the trial judge, through his or her comments on the record, appears to have departed from his or her role as an impartial arbiter by either urging the defendant to accept a plea, or by implying or stating that the sentence imposed would hinge on future procedural choices, such as exercising the right to trial; (3) the disparity between the plea offer and the ultimate sentence imposed; and (4) the lack of any facts on the record that explain the reason for the increased sentence other than that the defendant exercised his or her right to a trial or hearing.

Id. at 156 (footnote omitted).

Here, before Hallmon’s second trial commenced, and after the state amended the information to omit the kidnaping charges, the following colloquy occurred:

MR. COHN [DEFENSE COUNSEL]:
... there is a matter I’d like to bring to the Court’s attention.
THE COURT: Yes
MR. COHN: With the Information now being what it is, the guidelines have changed.
THE COURT: They’ve gone down.
MR. COHN: Pretty dramatically down.
THE COURT: What does he score?
MR. COHN: He scores 82.5, 137.5 months.
THE COURT: 82.5,137.5 months.
MR. COHN: And we’ve had numerous discussions with the State. I know the State’s not going to be making any offer within the guidelines.
THE COURT: They want a departure?
MR. COHN: Yeah. Well, actually, they’re trying to habitualize him as a violent offender.
MR. COHN: And we, on behalf of our client, wanted to find out from the Court if the Court would consider a — And I don’t really know what the Court’s procedure is in terms of getting involved in the negotiation. But if the Court would consider a sentence within those guidelines.
THE COURT: Well, you know, even if the State does seek me to qualify Mr. Hallmon — And I’m going to be honest with you. The case law is real clear. The 775.084 governs habitualization, violent offenders.
So, having said that [concerning the violent habitual offender mandatory sentence], you know, I’m always agreeable to a fair and adequate sentence, especially before trial, because I may hear some things in trial that may aggravate me and cause me to depart above the guidelines. And I’ve done it. And you all know I love to write. So I put stuff in writing.
I don’t know enough about Mr. Hall-mon. I just know that this is a first-degree felony punishable by life. So let me tell you what the minimum is.
MR. GARCIA [DEFENSE COUNSEL]: Judge, I don’t thing [sic] they’re looking to find him a violent career criminal. I think it’s a habitual violent offender.
MS. JOANNOU [PROSECUTOR]: I believe it’s a habitual violent offender, Judge.
MR. GARCIA: And judge, that says the Court may impose an extended sentence.
THE COURT: Habitual violent-
MR. GARCIA: Yes. The Court may impose. The violent career criminal, the Court must impose a minimum mandatory.
THE COURT: Okay. Let’s get it right. And he’s not a recent prison releasee — ■
MR. GARCIA: So, if the Court does find that he qualifies as a habitual violent offender, the Court still can, within its discretion, sentence him within the guidelines and it would not be an illegal sentence.
* * *
THE COURT: All right. In the case of a life felony or a felony of the first degree I can sentence him to life and the offender shall not be eligible for release for 15 years.
So, at the discretion, it’s a 15-year minimum mandatory. I can sentence him to life in prison. So, I mean, the State wants life, I guess, with a minimum mandatory. However, even if he gets a guideline sentence from this Court — And I don’t know all the facts, just what I heard from the motion which I called and entered an order in limine excluding the prior robbery and facts from Dade County.
But based upon what I know what was filed, he would be somewhere in the mid-range of the guidelines.
THE COURT: Well, talk to him. I told you mid-range as a violent under 775.084, paragraph (4)(b), paragraph 1, because it is with the discretion of the trial judge. I can sentence him to live [sic], if convicted, with a 15-year minimum mandatory with a designation of a violent habitual offender.
However, for purposes of negotiations I’ll offer a nine-year sentence mid-range, 6.875 years up to 11.45 years. Knowing that Mr. Small negotiated a 48-month sentence and he was the gunman, I think that’s fair.

(Emphasis added)

Hallmon rejected the offer, proceeded to a jury trial and, upon conviction, was subsequently sentenced to life in prison.

Hallmon contends that all of the facts of the case were before the court when the court made these comments. However, prior to the second trial, the court had not heard testimony from the co-defendant Small, nor had it heard from the victims, other than Marchione. The first time this judge had even heard live testimony was at the second trial, since a different judge conducted Hallmon’s first trial.

At Hallmon’s re-sentencing, following our remand, defense counsel advised the court that since his initial life sentence, Hallmon felt remorseful, had changed, and was no longer arrogant. Accordingly, she asked the trial court to reconsider Hall-mon’s life sentence and re-sentence him to the pre-trial offer of nine years.

In response, the trial court made several findings. The judge recalled the state’s vehement opposition to the court’s offer before the trial and stated that the court could not have maintained the pre-trial offer after hearing the testimony of one of the victims, Ms. Summers. The court explained: “The fear, I will never forget Ms. Summers as long as I live and is [sic] a Judge, the way she shook through the entire procedure. Her last words, Ms. Joannou questioned her, Mr. Hallmon allegedly got up and said he will be back with help and her comment was I am still waiting for him to come back to help me.” The court continued, discussing the impact of the victims’ testimony concerning their fear that they were going to die in the freezer.

The trial court continued, stating that after hearing all of the witnesses, the facts showed that he set up the robbery and was the mastermind who put Small up to it. Further, the trial court noted that Hall-mon’s post-arrest statement to a detective that he would smile at the jury and “beat” this case showed “utter arrogance.”

The trial court pointed to Hallmon’s past involvement in conduct similar to the current offense and that Hallmon used his “fiduciary” sexual relationship with Mar-ehione, the co-defendant, to commit the crime. The court also heard the undisputed proof that Hallmon qualified for re-sentencing as a habitual violent offender as a result of an earlier robbery.

Specifically, the trial court relied upon the fact that Hallmon committed the robbery within one year of serving his earlier robbery sentence, that he used his sexual relationship with Danielle Marchione to further his crime, and that he placed the victims at risk by leaving them in the freezer, while falsely leading them to believe that he was going to get help.

On the facts here, also significant is that the defense initiated the plea discussion and the court, at that time, recognized it was not fully informed with respect to the details of the crime or Hallmon’s background.

Here, as in Mounds v. State, 849 So.2d 1170 (Fla. 4th DCA 2003), the trial court did not push the defendant to accept the offer and provided an explanation for the sentence finally imposed. In fact, here, there is evidence in the record indicating that, when the plea was offered, the court knew much less about the case than at the time of sentencing. In fact, the trial court relied, in significant part, upon matters which occurred during trial, including both testimony and demeanor, adding “[f]rankly, the things that I heard during the course of the trial stunned this court.”

Here, there is no showing that the trial court-departed from its role as an impartial arbiter. The court did not urge Hall-mon to accept a plea and did not state or imply that the sentence imposed would hinge on future procedural choices, such as the right to trial. Additionally, at the time of the plea discussion, the court did not know with certainty that Hallmon would, in fact, be found to be a habitual violent offender, nor had the court heard the state’s argument as to why a life sentence was appropriate for Hallmon. There is also nothing in the record giving reason to question the trial court’s statement that the victim’s testimony “stunned” the court.

Therefore, considering the Wilson factors, we cannot conclude that under the totality of the circumstances, this sentence was vindictive and a violation of due process.

STEVENSON and HAZOURI, JJ., concur.


text:
    Robert McKAY, Petitioner, v. GREAT AMERICAN INSURANCE COMPANY, Great American Insurance Company of New York f/k/a American National Fire Insurance Company, SCI Funeral Services of Florida, Inc. d/b/a Menorah Gardens & Funeral Chapels, Service Corporation International, Dr. Sheldon Cohen, Paula Trigueros, Marian Novins, Dan Kossoy, Allen Altschuler, Joan Light, Shirley Eisenberg, Carol Prisco and Gloria Zimmer, Respondents.
    No. 4D04-1753.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Rehearing Denied July 14, 2004.

      Daniel S. Gelber and Walter J. Tache of Zuckerman Spaeder LLP, Miami, for petitioner.
    No response required for respondents.
   PER CURIAM.

Robert McKay petitions for a writ of certiorari seeking to quash a trial court order compelling him to testify in a civil proceeding despite his Fifth Amendment, privilege against compelled self-incrimination, objection.

On May 13, 2004, this court denied the petition by order. This opinion follows.

“Certiorari will lie to review an order compelling discovery in a civil case over an objection that the order violates the Fifth Amendment privilege against self-incrimination.” Boyle v. Buck, 858 So.2d 391, 392 (Fla. 4th DCA 2003) (citing Magid v. Winter, 654 So.2d 1037 (Fla. 4th DCA 1995)). The reviewing court must determine whether the trial court’s discovery order departed from the essential requirements of law resulting in harm to the petitioner that cannot be remedied on plenary appeal. Id.

McKay confessed and pled guilty to charges in a prior criminal proceeding arising from McKay’s employment with a cemetery. The charges included allegations of desecration of bodies and other violations of law in the manner in which the cemetery was operated. The negotiated plea agreement in the criminal case provides:

The Defendant will testify truthfully, completely and consistently with his pri- or statements to Law Enforcement, to any venue in which his testimony is required, both criminal and civil, in connection with the Menorah Gardens Palm Beach case. The State agrees that testimony given pursuant to this section in any venue is given pursuant to F.S. Section 914.04 as set forth herein. Nothing in this section, precludes the Defendant from asserting his Fifth Amendment privilege in any proceeding in order to obtain assurances or clarification that such testimony is indeed given pursuant to the above terms.

McKay and the prosecutor negotiated to include in the agreement the language providing that testimony under the agreement was pursuant to section 914.04, Florida Statutes (2003).

Section 914.04 grants use and derivative use immunity to a witness compelled by subpoena to testify in a criminal proceeding:

No person who has been duly served tuith a subpoena or subpoena duces te-cum shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no testimony so given or evidence so produced shall be received against him upon any criminal investigation or proceeding.

(Emphasis added.)

During discovery proceedings in this civil case, which relates to the offenses at the cemetery, McKay objected on Fifth Amendment grounds when the plaintiffs sought to take his deposition. McKay argued that Section 914.04 does not apply to testimony given in a civil proceeding and that the state lacked authority to grant statutory immunity. The trial court granted plaintiffs’ motion to compel McKay to testify according to his plea agreement. The court found the protection of the agreement sufficiently overcame any fear of prosecution justifying the claim of privilege. McKay petitions for certiorari review.

TRANSACTIONAL VERSUS USE/DERIVATIVE USE IMMUNITY-

The distinction between transactional and use immunity is important in this case. Use immunity prevents authorities from using the testimony against the witness in any criminal prosecution of the witness. Zile v. State, 710 So.2d 729, 732 (Fla. 4th DCA 1998). Derivative use immunity prohibits the government from using evidence derived from the testimony, including investigatory leads, unless a source for the evidence independent of the compelled testimony can be shown. See Kastigar v. United States, 406 U.S. 441, 461, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) (setting forth independent source rule: “ ‘Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.’ ”) (citation omitted). ■

In contrast, transactional immunity provides complete immunity for the subject matter of the testimony elicited. Zile, 710 So.2d at 732. Transactional immunity provides significantly broader protection than the Fifth Amendment in certain respects. Kastigar, 406 U.S. at 453, 92 S.Ct. 1653. The Fifth Amendment’s sole concern is protection from compelled self-incriminating testimony. Id. . The Fifth Amendment does not prevent prosecution for one who invokes it. Id. Transactional immunity, however, does not prevent authorities from using the testimony to prosecute for other transactions.

The statute at issue in this case once provided for both use/derivative use immunity and transactional immunity. See, e.g., Alford v. Cornelius, 380 So.2d 1183 (Fla. 5th DCA) (to gain transactional immunity, compelled testimony must be relevant and have substantial connection with the subject of the inquiry), rev. denied, 389 So.2d 1107 (Fla.1980). The statute was amended, and transactional immunity was no longer authorized. Meek v. State, 566 So.2d 1318, 1321 n. 1 (Fla. 4th DCA 1990) (“In 1980, section 914.04 provided for both transactional and use immunity. The legislature amended it in 1982 to exclude transactional immunity. Today the statute provides only for use immunity.”).

State v. Williams, 487 So.2d 1092 (Fla. 1st DCA 1986), held that the 1982 amendment of the statute meant the state can no longer grant transactional immunity under the statute. Id. at 1094. Williams, however, does not address whether the state can grant transactional immunity as part of a plea agreement. The testimony in Williams fell within the purview of the statute because the witness in that case was subpoenaed to testify in a criminal proceeding. In the absence of a bargained-for plea agreement, the statute’s authorization for mere use immunity is controlling. The statute does not expressly prohibit the grant of immunity by agreement.

RELEVANT LAW AND ANALYSIS

McKay’s argument relies primarily on language found in Randall v. Guenther, 650 So.2d 1070 (Fla. 5th DCA 1995). In Randall, Walther Guenther filed a civil suit against Anne Randall alleging Randall transferred almost all his assets to her own personal account without his consent. Id. at 1071. The trial court ordered Randall to disclose all the assets she received from Guenther. Randall learned that the state had initiated a criminal investigation into the matter. , The trial court granted Randall’s motion and restricted the discovery because of the Fifth Amendment issues.

In response, Guenther filed a motion to compel discovery attaching letters from the state attorney purporting to grant Randall use and derivative use immunity under section 914.04 for deposition testimony in the civil case. The trial court ruled that Randall could be compelled to testify because of the grant of immunity. Id. at 1072.

The fifth district granted Randall’s petition for a writ of certiorari and quashed the trial court’s order. The court found that case law in the area has consistently held that the statute must be construed strictly and-that a grant of immunity under the statute must be confined to its parameters. See DeBock v. State, 512 So.2d 164, 167 (Fla.1987), cert. denied, 484 U.S. 1025, 108 S.Ct. 748, 98 L.Ed.2d 761 (1988) (statute inapplicable to bar disciplinary proceedings); Delisi v. Smith, 423 So.2d 934, 939 (Fla. 2d DCA 1982), rev. denied, 434 So.2d 887 (Fla.1983) (statute inapplicable to civil RICO proceeding). Thus, the statutory immunity could be applied only to testimony given in a criminal proceeding and not to testimony elicited in a civil proceeding. Randall, 650 So.2d at 1072.

The court, however, went on to reject Guenther’s contentions that the state’s letters were a valid grant of contractual immunity. In so holding, the court made some broad statements suggesting there can be no contractual immunity in Florida. The court seemed to hold that Section 914.04 is the sole means by which the state can grant immunity. Id. The court wrote, “[I]t is well-settled that ‘immunity from prosecution must derive from a specific statutory or constitutional provision.’ ” Id. (quoting Stancel v. Schultz, 226 So.2d 456, 459 (Fla. 2d DCA 1969)); see also State v. Schroeder, 112 So.2d 257, 261 (Fla.1959) (noting that [i]mmunity from prosecution is a creature of statute”).

Randall’s broad language is dicta because the letters at issue in that case were not enforceable as a contract. No indication is given that the letters were part of a plea agreement or that the letters were bargained for, i.e. with consideration flowing from both sides. See Metellus v. State, 817 So.2d 1009 (Fla. 5th DCA) (holding that rules of contract law apply to plea agreements), rev. granted, 833 So.2d 774 (Fla.2002). The letters were nudum pac-tum and unenforceable.

McKay’s case is distinguishable. McKay entered a negotiated plea agreement in which he was placed on probation in exchange for his guilty pleas and confessions on two counts. McKay agreed to testify completely and consistently with his prior statements to law enforcement in any criminal or civil proceeding dealing with the subject matter of the agreement. As part of the bargain, the state agreed “not to file any new charges against the DEFENDANT that are related to the SUBJECT MATTER, except for crimes of violence.” The state, in essence, granted contractual, transactional immunity for any other non-violent crime committed by McKay while at the cemetery.

This type of plea agreement is enforceable. See Rosenquist v. State, 769 So.2d 1051 (Fla. 2d DCA 2000) (holding agreement that defendant would not be charged with any more crimes if he was truthful in providing information to law enforcement was violated when defendant failed polygraph tests), rev. denied, 817 So.2d 850 (Fla.2002). Unlike the situation in Randall, the state’s grant of “immunity” in this case is based on a negotiated plea agreement and not solely on a purported “gift” of immunity under section 914.04.

Stancel v. Schultz, 226 So.2d 456, 459 (Fla. 2d DCA 1969), one of the cases relied on heavily by the fifth district in Randall, states that immunity must derive from a specific statutory or constitutional provision. Randall does not address the fact that the court in Stancel analyzed whether the “contract for immunity” at issue was enforceable. Stancel, 226 So.2d at 460. The court ruled that the contract could not be enforced outside the territorial jurisdiction of the state attorney who entered into the agreement. Id. Thus, Stancel acknowledges the existence of contractual immunity. The due process clause of our state and federal constitutions requires enforcement of plea agreements and resulting contractual immunity.

STATUTORY VERSUS CONTRACTUAL IMMUNITY

Section 914.04 does not eliminate a prosecutor’s discretion in granting immunity in connection with a valid plea agreement. Nevertheless, testimony, exchanged for “transactional immunity” (or a promise not to prosecute), as part of a plea agreement, is not equivalent to testimony compelled in a criminal proceeding pursuant to subpoena as contemplated by the statute.

The immunity contemplated by the statute serves different purposes than immunity which might be extended as part of a plea bargain. The purpose of the statute is to facilitate the state’s ability to prosecute crimes by making witnesses more likely to testify. Section 914.04 automatically grants the witness use and derivative use immunity even in the absence of a claim of Fifth Amendment privilege. Grant v. State, 832 So.2d 770 (Fla. 5th DCA 2002), cert. denied, 538 U.S. 980, 123 S.Ct. 1808, 155 L.Ed.2d 670 (2003). Grant finds that section 914.04 applies to the office of the statewide prosecutor, the prosecuting agency in McKay’s case. Id. at 773. The agreement with the statewide prosecutor in this case binds the state.

A grant of immunity under the statute would prevent any other sovereign from using the compelled testimony in any other criminal proceeding. See Costello v. Fennelly, 681 So.2d 926 (Fla. 4th DCA 1996) (holding that the Fifth Amendment requires a second sovereign to afford a person use and derivative use immunity for testimony originally “compelled” under statutory grant of immunity by. another sovereign).

Although McKay is correct that section 914.04 does not shield his testimony in this civil proceeding, McKay is protected, and essentially granted transactional immunity, by the separate promise-not-to-prosecute provision of the plea agreement. The agreement is valid, approved by the court, and enforceable. C.f. Ingram v. Prescott, 111 Fla. 320, 149 So. 369 (1933) (holding that'agreement not to prosecute is unenforceable if entered only with the state without the consent of the court); see also Johnson v. State, 460 So.2d 954 (Fla. 5th DCA 1984) (holding that jeopardy attaches when an unconditional plea agreement is accepted by the court in the absence of fraud on the part of the defendant or other grounds to rescind the agreement). Jeopardy would attach in McKay’s case when he fully complies under the agreement. The state would not be able to back out of the agreement once McKay fully complied.

Of course, the state could refuse to grant McKay immunity if he fails to live up to his end of the bargain. Conversely, the state could be compelled to specifically perform its end of the bargain (file no new charges for the transaction) if McKay fulfills his obligations under the agreement. See State v. Frazier, 697 So.2d 944 (Fla. 3d DCA 1997) (applying principles of contract law and finding that state, having reaped benefits of the agreement, must be held to suffer its detriments).

Promissory estoppel, or equitable immunity, would prevent the state from breaching its agreement if McKay relied on the state’s promise not to prosecute and this reliance worked to his detriment. See State v. Borrego, 445 So.2d 666 (Fla. 3d DCA 1984) (discussing when equitable immunity may be applicable).

As suggested in Frazier, basic fáirnéss, due process, would be offended if the state could back out of the agreement after the defendant has fully' performed. “[T]he state, above all parties, must keep its word.” Frazier, 697 So.2d at 945; see also Rowe v. Griffin, 676 F.2d 524 (11th Cir.1982) (setting forth a three-part test for when due process requires that the government abide by an agreement not to prosecute). C.f. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (holding that a defendant who pleads guilty as a result of a plea bargaining agreement has a due process right to enforcement of the bargain).

PROPRIETY OF THE WRIT

A litigant may assert the Fifth Amendment privilege when the litigant has reasonable grounds to believe that the response to a discovery request would furnish a link in the chain of evidence needed to prove a crime against the litigant. See Magid, 654 So.2d at 1038-39. As noted above, McKay has no reasonable grounds to fear further state prosecution as long as he complies with the agreement.

McKay asserts that the federal government could bring a prosecution under the dual sovereignty doctrine. See Booth v. State, 436 So.2d 36 (Fla.1983) (holding that double jeopardy is not violated by state and federal prosecutions for the same transaction). McKay does not point to any provisions of federal law under which he might reasonably be prosecuted or a basis for federal jurisdiction over his offenses. No federal charges are pending. McKay does not allege that any federal criminal investigation is ongoing.

Of course, McKay is not required to incriminate himself in this proceeding to protect his Fifth Amendment privilege. McKay, however, has failed to make any reasonable showing that the testimony, which he has already provided to law enforcement and agreed to testify consistently with, could possibly implicate any federal criminal statute. McKay fails to allege even a basis for federal jurisdiction over what appears to be a purely state-law matter.

McKay has not met his burden in this certiorari proceeding. He has not shown a reasonable probability that his deposition testimony would provide a link in the chain of evidence needed to prove a crime against him. Thus, the trial court did not depart from the essential requirements of law in compelling McKay’s testimony in accordance with the plea agreement.

CONCLUSIONS

McKay cannot receive immunity for his testimony in this civil case under section 914.04, Florida Statutes. Nevertheless, under the plea agreement, McKay received a promise that no new charges would be filed in connection with his acts at the cemetery. The agreement, in essence, provides transactional immunity.

In exchange for this promise, McKay pled guilty and agreed to testify in all subsequent criminal and civil proceedings consistently with his prior statements to law enforcement. This agreement is binding on the state as long as McKay performs his end of the bargain. If McKay fails to testify “truthfully, completely and consistently with his prior statements,” the state could rescind the agreement and file further charges. If McKay complies with the agreement, then the state is bound by due process, and equity, to abide by its promise not to prosecute.

The state’s plea agreement granting transactional immunity is not enforceable against the federal government because federal prosecutors were not a party to the agreement. See United States v. Roberson, 872 F.2d 597, 611 (5th Cir.1989) (concluding that state agreement for immunity could not bind the federal government, and thus curtail federal prosecutorial discretion, where no agreement was reached with federal prosecutors or regarding federal prosecution), cert. denied, 493 U.S. 861, 110 S.Ct. 175, 107 L.Ed.2d 131 (1989).

If a federal prosecution were to arise, federal prosecutors may or may not need to afford use and derivative use immunity. See Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); United States v. Camp, 72 F.3d 759, 761 n. 2 (9th Cir.1995); Taylor v. Singletary, 148 F.3d 1276, 1283 n. 7 (11th Cir.1998). But see United States v. Eliason, 3 F.3d 1149, 1152 (7th Cir.1993).

See also Adam Harris Kurland, Lurking Pitfalls of Successive Prosecutions: Immunity, Plea Agreements, Promises Not to Prosecute, and Cooperation Agreements, 14 Crim. Justice 4 (Winter 2000) (“Anything short of receipt of a formal statutory immunity grant provides no legal protection concerning subsequent use of the testimony by another sovereign.”).

McKay has not lost the right to assert. his Fifth Amendment privilege if questions are asked beyond the scope of. his prior testimony. McKay may, not be compelled to incriminate himself for acts outside the scope of the agreement.

McKay must “tread lightly and make difficult risk assessments.” Kurland, supra at 9. McKay can refuse to testify if he reasonably believes the testimony would provide a link in the chain of evidence to prove a crime not covered by the, plea agreement, e.g. a federal or foreign state crime. By refusing, however, McKay would breach the plea agreement, and the state would no longer be bound to afford him transactional immunity. If this occurred, McKay would be entitled to withdraw his plea.

The trial court correctly determined that McKay was provided sufficient protection under the agreement and that he should be compelled to testify. McKay did not raise reasonable grounds supporting a fear. of further prosecution which would justify his invocation of the Fifth Amendment. The petition for writ of certiorari is denied.

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


author: GREEN, J.

text:
    Jorge Luis DOMINGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1419.
    District Court of Appeal of Florida, Third District.
    June 23, 2004.

      Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Marni A. Bryson, Assistant Attorney General, for appellee.
   GREEN, J.

Jorge Luis Dominguez appeals the denial of his motion for post-conviction relief challenging the legality of his conviction and sentence for armed robbery with a weapon, pursuant to section 812.13, Florida Statutes (1995), where the state relied solely upon the automobile that he was driving at the time of the offense to satisfy the statute’s weapon requirement. Because, on direct appeal, we affirmed Dominguez’s convictions in toto, see Dominguez v. State, 800 So.2d 242 (Fla. 3d DCA 2001) (“Dominguez I”), we sua sponte granted hearing en banc of this matter. To the extent that Dominguez I affirmed the armed robbery conviction, we now recede from that case and issue this decision in its stead.

The state charged Dominguez by information with one count of armed robbery with a weapon, namely, an automobile, pursuant to section 812.13, Florida Statutes (1995), and two counts of aggravated battery on a person sixty-five years of age or older with a deadly weapon pursuant to section 784.045, Florida Statutes (1995). The case proceeded to a jury trial. The state adduced evidence which showed that Dominguez bumped the victim with his automobile as she was walking in a parking lot. Dominguez then reached out of the automobile, grabbed the victim’s purse and pulled it away from her as he drove off. The victim fell and was injured.

At the close of the state’s case in chief, the defense moved for judgment of acquittal, arguing, among other things, that, as a matter of law, the state had failed to prove that Dominguez possessed or carried a weapon during the commission of the robbery. The trial court denied the motion, and Dominguez was convicted of armed robbery and one count of aggravated battery.

Dominguez was sentenced, as a violent career criminal, to life for armed robbery as a first-degree felony, and thirty years for aggravated battery. On direct appeal Dominguez challenged, among other things, his conviction for armed robbery, arguing that an automobile was not a weapon that could be carried for purposes of the armed robbery statute. We per curiam affirmed his convictions with a citation to Jenkins v. State, 747 So.2d 997, 998 (Fla. 5th DCA 1999), rev. dismissed, 781 So.2d 1083 (Fla.2001). See Dominguez I at 242. After our affirmance, Dominguez petitioned the Florida Supreme Court for review, which was denied. See Dominguez v. State, 821 So.2d 294 (Fla.2002).

Dominguez then moved for relief under Florida Rule of Criminal Procedure 3.850. He argued that his sentence was illegally enhanced for carrying a weapon (i.e., an automobile) during the commission of a robbery, because it is impossible to carry an automobile, ás- required by section 812.13(2)(b). He also claimed that his conviction for armed robbery was a violation of due process because there was no evidence that he “carried” a weapon within the meaning of the armed robbery statute. The trial court denied Dominguez’s 3.850 motion.

Dominguez timely instituted this appeal from the denial of his 3.850 motion, which we treat as an appeal from the denial of a 3.800 motion. See Hall v. State, 643 So.2d 635, 636 (Fla. 1st DCA 1994)(“[C]ourts have the authority to treat prisoner petitions as if the proper remedy were sought if it would be in the interest of justice to do so.”).

The armed robbery statute provides in pertinent part that:

(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree.... (b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree....

§ 812.13, Fla. Stat. (1995) (emphasis added). Following oral argument in this case, the Florida Supreme Court decided State v. Burris, 29 Fla. L. Weekly S149 (Fla. April 8, 2004), which held that an automobile cannot be “carried” as a deadly weapon during a robbery so as to allow an enhanced conviction. Specifically, the court found that a person cannot “carry” a car as a weapon because “[i]n common parlance, automobiles carry people — people do not carry automobiles.” Id. (quoting Burris v.State, 825 So.2d 1034, 1037 (Fla. 5th DCA 2002)). Because Dominguez has been convicted of “armed robbery” where no armed robbery occurred, his sentence is illegal as a matter of law and cannot stand. See Carter, 786 So.2d 1173, 1181 (Fla.2001) (“[A] sentence is ‘illegal’ if it ‘imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances[.]’ ”). Dominguez’s conviction for that crime must therefore be vacated and a conviction for strong-arm robbery imposed in its place. See Fiore v. White, 531 U.S. 225, 228-29, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001) (holding that due process forbids a state to convict a person of a crime without proving all elements beyond a reasonable doubt); Nelson v. State, 543 So.2d 1308, 1309 (Fla. 2d DCA 1989) (holding that a person may not be convicted of a crime that never occurred); Williams v. State, 516 So.2d 975, 978 (Fla. 5th DCA 1987) (same).

The maximum penalty allowed for strong-arm robbery by a violent career criminal is forty years imprisonment. Dominguez’s life sentence is therefore illegal under Rule 3.800, and we reverse and remand with instructions that he be re-sentenced consistent with this opinion.

Armed robbery conviction vacated, sentence reversed, and case remanded with instructions.

      . The statute provides, in pertinent part:
      (2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree....
      (b) If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree....
      (c) If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree....
      § 812.13, Fla. Stat. (1995) (emphasis added).

      . The statute provides, in pertinent part:
      (l)(a) A person commits aggravated battery who, in committing battery ...
      2. Uses a deadly weapon.
      § 784.045, Fla. Stat. (1995).

      . Dominguez was acquitted on the second count of aggravated battery.

      . In Jenkins, a case factually similar to this one, the defendant, while seated in the passenger seat of an automobile driven by a co-defendant, snatched the victim’s purse as the victim was walking in a parking lot. The car then sped off but was later caught. The defendant was charged with being a principal to armed robbery with "a weapon, to wit: an automobile,” and a principal to aggravated battery. Jenkins, 747 So.2d at 997-98. At the conclusion of the state’s case in chief and at the close of the defense's case, the defense moved for judgment of acquittal on the grounds that, as a matter of law, the car was not used as a weapon. Id. at 998. The court, denied both motions, and the defendant was convicted on both counts. Id.

      On appeal, Jenkins asserted that the central issue was "whether, in the specific circumstances of this case, the car was to be classed as a weapon so as to enhance a strong-arm robbery to an armed robbery.” Id. The Jenkins majority affirmed the convictions based upon its conclusion that the evidence was sufficient for a jury to find that the automobile was used as a weapon. Id. The majority, however, specifically declined to address the issue of whether a car could be " ‘carried’ as a weapon within the meaning of Section 812.13(2)(b)” based upon its conclusion that this issue had not been raised on appeal. Id. at 999.

      .Rule 3.800 states: "A court may at any time correct an illegal sentence imposed by it.” Fla. R.Crim. P. 3.800(a). A 3.800 motion may be used in certain cases to challenge sentencing errors that can be resolved, without an evidentiary determination, as a matter of law. See Carter v. State, 786 So.2d 1173, 1177 (Fla.2001). Because Dominguez claims that his conviction and sentence were incorrect as a matter of law, this court can. resolve the matter based solely on the record.

      . "The court ... shall sentence the violent career criminal as follows.... In the case of a felony of the second degree, for a term of years not exceeding 40, with a mandatory minimum term of 30 years’ imprisonment.” § 775.084(4)(c)2„ Fla. Stat. (1995).


author: TAYLOR, J.

text:
    DOR CHA, INC., a dissolved Florida corporation, Appellant, v. Wendell S. HOLLINGSWORTH, Appellee.
    No. 4D03-2310.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.

      Stanley Jay Bartel of the Law Offices of Stanley Jay Bartel, Miami, for appellant.
    Jeffrey H. Rosenthal, Boca Raton, for appellee.
   TAYLOR, J.

Dor Cha, Inc. áppeals the denial of its motion to set side a default and default final judgment. Thep motion, brought under Fla. R. Civ. P. 1.540(b)(4), alleged that the final judgment was void because it was based on defective and inadequate service of process. The trial court denied the motion, ruling that the motion had to be brought within one year under rule 1.540 and had to allege a meritorious defense. We reverse.

Appellee, the plaintiff .below, concedes that a motion to vacate a void judgment for inadequate service of process may be made at any time and that the motion need not allege a meritorious defense. See M.L. Builders, Inc. v. Reserve Developers, LLP, 769 So.2d .1079 (Fla. 4th DCA 2000)(void judgment for inadequate service of process may be attacked at any time); Kennedy v. Richmond, 512 So.2d 1129, 1130 (Fla. 4th DCA 1987)(attack on void judgment for lack of service of process does hot require allegation of meritorious defense). The plaintiff argues, however, that his process by constructive service complied with the essential requirements of Chapter 46 of the Florida Statutes, thus giving the court jurisdiction to render a judgment by default.

The plaintiff sued Dor Cha, Inc., a dissolved -Florida corporation, to quiet plaintiffs title to four vacant lots in Palm Beach County, Florida. The corporate principal’s name, as alleged in the complaint, is Stephen R. Sohson. However, all of plaintiffs efforts to locate Mr. Sonson were mistakenly directed at “Stephen R. Sanson.” In his diligent search affidavit, the plaintiff stated that he made a thorough computer search of the defendant corporation and obtained “the name of the principal of the corporation, Stephen R. Sanson.” He then obtained the records of the State of Florida Department of Highway Safety and Motor Vehicles, Division of Driver Licenses, and “obtained an address for Stephen R. Sanson.” When he attempted to serve the defendant corporation through its principal at the address obtained, he discovered that “said address does not exist.” These efforts, made in a search for the wrong individual, comprised the extent of the plaintiffs alleged diligence.

A party seeking to utilize service by publication must be able to show that personal service could not be made. Schram v. Dep’t. of Prof'l Regulation, 603 So.2d 1307 (Fla. 1st DCA 1992); Gans v. Heathgate-Sunflower Homeowners Ass’n, Inc., 593 So.2d 549, 551 (Fla. 4th DCA 1992). The plaintiff must show an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes. Id.

In Mayo v. Mayo, 344 So.2d 933, 936 (Fla. 2d DCA 1977), the second district stated the general rule for a diligent search, as follows:

It is basic that to constitute diligent search and inquiry to discover the whereabouts of a party, that inquiry should be made of persons likely or presumed to know such whereabouts.

In this case the record does not show any such inquiry on the plaintiffs part. The plaintiff was not careful in his search, crucially misspelling Mr. Sonsoris name in the inquiry that he made of the driver’s license department. Then, when the address that he obtained came back as “non-existent,” he apparently did nothing further to locate Mr. Sonson. Moreover, he failed to inquire of other sources of information readily available to him. As Mr. Sonson’s unrefuted affidavit states:

... the Plaintiff herein had previously filed a Quiet Title claim in Palm Beach County Court in a matter wherein Peter Cagle represented me, yet no attempt was made to locate me through Peter Cagle, Esq.

See Torelli v. Travelers’ Indem. Co., 495 So.2d 837 (Fla. 3d DCA 1986)(failure to make inquiry of defendant’s known attorney compels reversal); see also, Gmaz v. King, 238 So.2d 511 (Fla. 2d DCA 1970)(plaintiff charged with matters of record in the prior proceedings in which she received tax deed).

We therefore reverse the order denying the motion to set aside the default judgment and remand this cause for further proceedings.

All other issues raised are moot.

REVERSED and REMANDED for proceedings consistent with this opinion.

GUNTHER and STEVENSON, JJ., concur.


author: MAY, J.

text:
    HYUNDAI MOTOR COMPANY, and Hyundai Motor America Corporation, Appellants, v. Anthony J. FERAYORNI, as Personal Representative of the Estate of Paulette Jo Ferayorni, Appellee.
    No. 4D03-2921.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.

      Joseph H. Lang, Jr., Carlton Fields, P.A., St. Petersburg, and Wendy F. Lumish, Carlton Fields, P.A., Miami, for appellants.
    Thomas D. Lardin of Thomas D. Lardin, P.A., Delray Beach, for appellee.
   MAY, J.

The defendant appeals an award of interest on a judgment resulting from multiple trials and appeals. It argues that the trial court erred in fixing the date and rate of interest as of the date of the ultimate verdict. We disagree and affirm.

The action arose from an automobile accident resulting in the death of a young girl in 1991. This court affirmed the defense verdict, but remanded the case for a new trial on the estate’s claim of strict liability failure to warn. Ferayorni v. Hyundai Motor Co., 711 So.2d 1167 (Fla. 4th DCA 1998). The second trial resulted in a $6.5 million jury verdict for the estate on November 6, 1999. Five days later, plaintiffs counsel submitted a judgment, which the court entered on November 11, 1999. The trial court then entered a remittitur of $3 million. The plaintiff did not accept the remittitur and appealed from an order granting a new trial on damages.

In Hyundai Motor Co. v. Ferayorni, 795 So.2d 126 (Fla. 4th DCA 2001), this court reversed and remanded the case for a new trial related to a Frye issue and certified conflict. The supreme court quashed this court’s decision and remanded the case for reconsideration. Ferayorni v. Hyundai Motor Co., 822 So.2d 502 (Fla.2002).

On remand, this court again reversed, but subsequently withdrew its opinion, affirmed on liability, but reversed the remittitur. Hyundai Motor Co. v. Ferayorni, 842 So.2d 905 (Fla. 4th DCA 2003). The defendant petitioned the supreme court, which declined jurisdiction.

The plaintiff then moved for entry of a final judgment. The plaintiff argued that interest should begin running from the date and at rate existing at the time of the jury’s verdict in 1999. The defendant argued that the plaintiff was not entitled to post-verdict, prejudgment interest in light of Amerace Corp. v. Stallings, 823 So.2d 110 (Fla.2002).

On June 23, 2003, the trial court entered a new final judgment and ordered interest to be paid at a rate of 10% from the date of the 1999 jury verdict. The defendant argues here that the supreme court’s recent pronouncement in Amerace dictates a reversal of the judgment as it relates to interest. It suggests that the opinion cannot be reconciled with Florida Rule of Appellate Procedure 9.340(c). We disagree.

We read Amerace more narrowly than the defendant. It appears to have carved out an exception to Florida Rule of Appellate Procedure 9.340. The rule provides: “If a judgment of reversal is entered that requires the entry of a money judgment on a verdict, the mandate shall be deemed to require such money judgment to be entered as of the date of the verdict.” Fla. R.App. P. 9.340(c). While the Amerace court held that interest was not recoverable until the judgment was entered, it did so without expressly overruling Green v. Rety, 616 So.2d 433 (Fla.1993) (adhering to the principle enunciated in rule 9.340 that interest runs from the date of the verdict).

In Amerace, the supreme court framed the issue as whether the plaintiff should be entitled to recover post-verdict interest in a personal injury action from the time period between a jury verdict and a final judgment. The court answered the question in the negative. But it was the facts of the case that illuminated the court’s decision. They revealed that it was the plaintiffs failure to timely request entry of a judgment that caused the delay in its entry. The court decided that the plaintiff should not be allowed to prosper from the delay caused by its own making by asking for interest to run from the date of the verdict. See Amerace, 823 So.2d at 114.

Green has long upheld the rule of appellate procedure requiring interest to be computed from the date of the verdict. See Green, 616 So.2d at 435. By declining to overrule Green, the supreme court has kept its stamp of approval on rule 9.340 in place, while acknowledging that interest will run from the date of the judgment if the delay is caused by a plaintiff failing to request entry of a judgment. We likewise do the same.

In this case, the plaintiff requested and obtained a final judgment five days following the verdict. The delay in entering the ultimate final judgment was not caused by the plaintiff, but by the length of the appellate process itself. Thus, the rule of appellate procedure, providing that interest be computed from the date of the verdict, prevails. Fla. R.App. P. 9.340(c). The judgment is affirmed.

AFFIRMED.

GUNTHER and TAYLOR, JJ., concur.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).