text:
    Lovitto MELECIO, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0037.
    District Court of Appeal of Florida, First District.
    June 24, 2004.

      Daniel T. O’Connell, Gainesville, for Appellant.
    Charles J. Crist, Jr., Attorney General and Charlie McCoy, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Lovitto Melecio, appeals his conviction and sentence of robbery with a firearm, attempted robbery and two counts of conspiracy to commit armed robbery. Appellant raises several issues on appeal, only one of which we find meritorious.

Appellant contends, and the State concedes, that the record establishes the existence of a single conspiracy, as opposed to two separate and distinct conspiracies. The State argues, however, that the error is harmless because eliminating one of three, concurrent 15-year sentences — all concurrent to a life sentence. — would have no effect on appellant’s time in prison. Florida courts generally do not adhere to the concurrent sentence doctrine, which is essentially what the State is advocating. Leonard v. State, 760 So.2d 114 (Fla.2000); Seccia v. State, 786 So.2d 12 (Fla. 1st DCA 2001); Grant v. State, 756 So.2d 1042 (Fla. 2nd DCA 2000). Accordingly, we reverse appellant’s conviction as to Count VI, which charges a second conspiracy, and vacate appellant’s adjudication and sentence on that count.

WOLF, C.J., BROWNING, and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ricky M. LICHARDELLO, Appellant, v. BANKERS TRUST COMPANY OF CALIFORNIA, N.A., as Custodian or Trustee, Appellee.
    No. 1D02-5089.
    District Court of Appeal of Florida, First District.
    June 24, 2004.
    Appellant pro se.
    Mark Broderick of Echevarria & Associates, P.A., Tampa, for Appellee.
   PER CURIAM.

Appellant’s amended notice of appeal states that he seeks review of a trial court order rendered on September 23, 2002. Because his original notice of appeal was not filed until November 26, 2002, this appeal is untimely. Accordingly, the appeal is dismissed for lack of jurisdiction.

APPEAL DISMISSED.

WEBSTER, VAN NORTWICK and POLSTON, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    COIN-O-MATIC, INC., Appellant Cross-Appellee, v. CORNERSTONE RESIDENTIAL MANAGEMENT, INC., Appellee Cross-Appellant.
    No. 3D03-2637.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    David J. Schottenfeld, Plantation, for appellant.
    Ainslee R. Ferdie, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEPHERD, JJ.
   SCHWARTZ, Chief Judge.

This case involves a dispute between Coin-O-Matic, the plaintiff-counter defendant below, a provider of coin laundry services, and the defendant-counter plaintiff Cornerstone, the operator of an apartment complex on which Coin-O-Matic’s equipment was located.

I.

The trial court found first (a) that a 1993 agreement between Coin-O-Matic and the then owner of the building had been superseded by a 2001 contract between the present parties and (b) that Cornerstone had anticipatorily breached the 2001 agreement by refusing to permit Coin-O-Matic to perform. Coin-O-Matic claims error, however, in the entry of a judgment for that breach, which was in its favor but for only $1.00. Because, we find that the trial court properly invalidated the liquidated damages clause of the contract which would have called for a judgment of $553,766.40, see Secrist v. National Service Industries, Inc., 395 So.2d 1280 (Fla. 2d DCA 1981), and there was no attempt to establish actual damages, this judgment is affirmed.

On the other hand, the trial judge awarded the apartment house $20,607.75 on a counterclaim for its share of monies Coin-O-Matic collected from the machines during the period of July through October 2001, none of which it had remitted to Cornerstone. We reject Coin-O-Matic’s challenge to this ruling.

II.

The trial judge also awarded attorney’s fees to each side ($19,993.00 to Coin-O-Matic; $2,500.00 to Cornerstone) on the theory that each had recovered on the particular contract on which it sued and was therefore entitled to recover under its respective attorney’s fee provision. We find error in both of these awards.

Treating Cornerstone’s award first, we conclude that it cannot be justified because its recovery was based essentially on a claim of unjust enrichment, rather than the 1993 agreement which the trial court specifically and correctly found was no longer in existence. Hence, that fee must be vacated. See H & S Corporation v. U.S. Fidelity & Guar. Co., 667 So.2d 393 (Fla. 1st DCA 1995); Bay Lincoln-Mercury Dodge, Inc. v. Transouth Mortgage Corp. of Florida, 531 So.2d 1027 (Fla. 1st DCA 1988).

Coin-O-Matic’s fee award, on the other hand, was based on the attorney’s fee provision in the 2001 agreement, upon which it succeeded, but which provided only as follows:

Should the Lessee resort to the use of an attorney regarding any matter arising from this lease the Lessee shall be entitled to recover from the Lessor its reasonable attorney’s fees, court costs and related expenses.

It is obvious that this clause, which in essence provides for fees whenever the lessee (or, under section 57.105(7), Florida Statutes (2003), the lessor as well) so much as telephones a lawyer, is illusory and unenforceable. See Office Pavilion South Florida, Inc. v. ASAL Products, Inc., 849 So.2d 367 (Fla. 4th DCA 2003), review denied, 861 So.2d 428 (Fla.2003); Ocean Dunes of Hutchinson Island Development Corp. v. Colangelo, 463 So.2d 437 (Fla. 4th DCA 1985); 2 Corbin on Contracts § 5.28 at 142 (revised ed.1995).

Affirmed in part, vacated in part.

      . Cornerstone’s attack on this ruling is likewise without merit.

      . In addition, the 1993 attorney's fee provision is almost identical to, and therefore suffers from the same fatal malady as the 2001 contract, as discussed below.

      . Our determination as to the inapplicability and unenforceability respectively of each of the fee provisions makes it unnecessary to determine whether either or both of the awards is impermissible under a "prevailing party” analysis. See Payne v. Cudjoe Gardens Property Owners Ass'n, 875 So.2d 669 (Fla. 3d DCA 2004). Nor need we consider whether the amounts of the awards are justified by the record.


author: SAWAYA, C.J.

text:
    Willie Mack WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2965.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.

      James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, C.J.

Willie Mack Woods appeals the sentence imposed for violation of probation and the order denying his motion to withdraw his plea. Specifically, Woods argues that the trial court did not have jurisdiction more than sixty days after the original sentence was imposed to order payment of attorney’s fees for the services provided by Woods’ public defender and that the trial court erred in denying his motion to withdraw his plea to the charge of violation of probation because it was coerced and was entered without the presence of his attorney.

This appeal involves sentences imposed for various offenses in two separate cases. In April 2002, Woods entered a plea of guilty to the offenses charged in Case Number 00-1280 and was sentenced to 324 days in jail with credit for time served, followed by three years of probation that included the condition that Woods pay court costs and $290 for public defender fees. In May 2002, Woods entered a plea of guilty to the offenses charged in Case Number 00-1258 and received a sentence of 341 days in jail with credit for time served, followed by probation.

On May 23, 2002, Woods committed a new law violation. He was subsequently arrested for violation of probation on May 28, 2002. Woods appeared at his violation of probation hearing on August 15, 2002, and entered an admission to the violation. The presiding judge was Judge Draper. The exchange between the trial judge, Woods and defense counsel indicates a degree of frustration on the part of the judge but, nonetheless, the plea was finally accepted and Woods was sentenced to five years in prison in Case Number 00-1280, with credit for time served. His probation in that case was revoked, and he was ordered to pay the unpaid costs and fees through the Collection Court at the rate of $75 per month. In Case Number 00-1258, Woods was placed back on probation for two years consecutive to the five-year prison sentence and ordered to pay the costs and fees in that case as conditions of probation.

On August 27, 2002, Woods filed a motion to withdraw his plea in both cases and a motion to recuse the trial judge. A hearing on these motions was conducted on September 13, 2002, by another judge who took the motion to withdraw the plea under advisement to allow him time to review the transcripts. On that same day, Woods filed his notice of appeal. On September 18, 2002, a hearing was held on a motion for supplemental attorney’s fees that is not included in the record on appeal. Fearing that he did not have jurisdiction to award supplemental fees, the trial judge took the matter under advisement and, on September 20, 2002, resumed the hearing and ordered that Woods pay an additional $1,350.60 in Case Number 00-1258 as a condition of his probation and additional fees in the amount of $2,236.50 in Case Number 00-1280 as a condition of his probation. Although the record is not clear, it appears that the supplemental fees ordered in Case Number 00-1280 were ordered paid as a condition of the probation in Case Number 00-1258. What is clear, however, is that rather than issuing a civil hen pursuant to section 938.29(2), Florida Statutes (2002), the trial court attempted to make payment of the supplemental fees a part of Woods’ criminal sentence.

Woods contends that it was improper to modify his sentence by ordering payment of these fees more than sixty days after his original sentence was imposed. We reject this argument because, when a defendant is sentenced for violation of probation, the trial court may impose any sentence that could have originally been imposed without violating the proscription against double jeopardy. § 948.06(1), Fla. Stat (2002); Lippman v. State, 633 So.2d 1061 (Fla.1994); Brown v. State, 826 So.2d 1101 (Fla. 5th DCA 2002). Therefore, the trial court could order payment of the additional fees at the time Woods was sentenced for violating his probation provided the pertinent rule and statute governing awards of public defender fees were complied with. See § 938.29, Fla. Stat. (2002); Fla. R.Crim. P. 3.720.

Rule 3.720 requires that as soon as practicable after the determination of guilt, the trial court must conduct a sentencing hearing. During this hearing,

[i]f the accused was represented by a public defender or special assistant public defender, the court shall notify the accused of the imposition of a hen pursuant to section 27.56, Florida Statutes. The amount of the lien shall be given and a judgment entered in that amount against the accused. Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.

Fla. R.Crim. P. 3.720(d)(1). In the event the defendant requests a hearing to contest the amount of the lien, “the court shall set a hearing date within 30 days of the date of sentencing.” Fla. R.Crim. P. 3.720(d)(2). The Committee Notes appended to rule 3.720 state that this thirty-day rule “is designed to complete all lien requirements established by section 27.56, Florida Statutes, before defendants are removed from the jurisdiction of the trial court.” Similarly, section 938.29(6), Florida Statutes (2002) (formerly section 27.56, Florida Statutes), provides:

The court having jurisdiction of the defendant-recipient may, at such stage of the proceedings as the court may deem appropriate, determine the value of the services of the public defender, special assistant public defender, or appointed private legal counsel and costs, at which time the defendant-recipient or parent, after adequate notice thereof, shall have opportunity to be heard and offer objection to the determination, and to be represented by counsel, with due opportunity to exercise and be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law.

This court has held that reversal is required if the trial court orders payment of public defender fees without proper compliance with rule 3.720 and section 938.29. Wines v. State, 690 So.2d 684, 684 (Fla. 5th DCA 1997) (citing Fraim v. State, 678 So.2d 527 (Fla. 5th DCA 1996); Andino v. State, 676 So.2d 493 (Fla. 5th DCA 1996)). The rule and statute were not complied with here because Woods was not given notice of the supplemental fees at the violation of probation sentencing hearing, was not given notice of his right to contest the fees, and the fee hearing was held more than thirty days after Woods was sentenced for violation of his probation. However, Woods neither objected at the hearing to imposition of the fees based on noncompliance with the rule and statute nor challenged the error via a 3.800(b) motion.

Although Woods did not object at the sentencing hearing and did not file a rule 3.800(b) motion, lack of jurisdiction may not be cured by consent, it is not subject to waiver and it can be raised at any time, including the first time on direct appeal. This raises the issue whether the thirty-day requirement of rule 3.720(d)(2) is jurisdictional. Whether a rule or statute contains jurisdictional requirements is sometimes not an easy issue to resolve. But it is not necessary for us to engage in protracted analysis in order to resolve this issue because the trial court lacked jurisdiction to proceed with the hearing and award the supplemental fees for an entirely different reason.

Woods contends that the trial court did not have jurisdiction to order payment of the additional fees after the notice of appeal had been filed. There is a split of authority regarding this issue. The Fourth District Court has adopted the view that jurisdiction remains with the trial court. See Lee v. State, 785 So.2d 603 (Fla. 4th DCA 2001); Wyatt v. State, 652 So.2d 453 (Fla. 4th DCA 1995). The Second District Court adopts the view that the trial court is divested of jurisdiction. See Kit v. State, 705 So.2d 1011 (Fla. 2d DCA 1998); Sewar v. State, 640 So.2d 1203 (Fla. 2d DCA 1994). We adopt the view espoused by the Second District Court as the better-reasoned approach and hold that the trial court loses jurisdiction to conduct a fee hearing and render an order making payment a condition of probation after the defendant files a notice of appeal contesting his sentence and conviction. Moreover, we believe that this view comports with analogous decisions from this court holding that restitution may not be ordered after a notice of appeal is filed even though the trial court reserved jurisdiction to consider the amount of restitution at sentencing. See Kern v. State, 726 So.2d 353, 354 (Fla. 5th DCA 1999) (“The trial court had no jurisdiction to conduct a restitution hearing or enter restitution orders after Kern filed a notice of appeal, even though the court previously ordered restitution and properly reserved jurisdiction to hold a restitution hearing.”) (citing Pearson v. State, 686 So.2d 721 (Fla. 2d DCA 1997); Nguyen v. State, 655 So.2d 1249 (Fla. 1st DCA 1995)); see also Torres v. State, 812 So.2d 610 (Fla. 1st DCA 2002). Hence, the order awarding fees and requiring that they be paid as a condition of Woods’ probation must be reversed.

Woods also contends that the trial court erred in denying his motion to withdraw his plea to the charge of violation of probation because his conflict attorney, Ms. Gillard, was not present and the plea was coerced. We resolve this issue based on the abuse of discretion standard of review. See Cella v. State, 831 So.2d 716 (Fla. 5th DCA 2002). The record reveals that while Ms. Gillard was not present at the violation of probation hearing, Woods was represented by Mr. Lippman, an attorney with the Public Defender’s Office, who was familiar with Woods’ case and had witnesses present and prepared to testify had a hearing been necessary. Moreover, Ms. Gillard had not filed a notice of appearance in the case. The plea was discussed between Mr. Lippman and Woods during at least two pauses noted in the transcript and thereafter Woods announced that he wished to accept the offer.

Our review of the transcript of the hearing regarding the motion to withdraw reveals that the underlying reason for Woods’ argument is not so much that Ms. Gillard was not present than it is that Judge Draper was. Judge Draper’s presence instilled a fear in Woods that because she was familiar with him and his criminal background, Judge Draper would impose a harsher sentence than another judge not so familiar with Woods had Woods proceeded with an evidentiary hearing. However, a defendant may not claim coercion to accept a plea offer based on his or her fear that a harsher sentence will be imposed after a hearing or trial as long as the trial judge does not announce or insinuate that sentencing post-trial will be more severe than the plea offered by the State. See Williams v. State, 316 So.2d 267, 271 (Fla.1975) (“A guilty plea is not deemed coerced because a defendant is influenced by the fear of a possibly higher penalty for the crime charged in the event the State is put to its proof, provided there is no specific threat or statement made by the judge or prosecutor.”) (citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)); see also Jackson v. State, 801 So.2d 1024 (Fla. 5th DCA 2001). We therefore reject the argument advanced by Woods that his plea should be withdrawn because he was not represented by counsel or because his plea was coerced. Based on our review of this record, the trial court did not abuse its discretion in denying Woods’ motion to withdraw his plea.

We reverse the orders awarding the supplemental fees and requiring that Woods pay them as a condition of his probation. We otherwise affirm Woods’ sentence and conviction.

AFFIRMED in part; REVERSED in part.

GRIFFIN and PLEUS, JJ., concur.

      . The trial court could have simply issued a lien that was essentially a civil judgment for the amount of the fees. See Bull v. State, 548 So.2d 1103, 1105 (Fla.1989) ("The assessment of fees and costs and the imposition of a lien is a civil proceeding which is reduced to a civil judgment. Further, enforcement of the lien is also a civil proceeding by the county, not a criminal prosecution by the state.”). However, pursuant to section 938.29(l)(c), Florida Statutes (2002), the trial court elected to make payment of the supplemental fees a condition of Woods' probation. This fact dispels the notion advanced by the State that this was a proceeding independent of Woods’ criminal sentencing. Hence we confine this opinion to the instance where the trial court makes payment of the fees a part of the criminal sentence by requiring payment as a condition of probation and express no opinion regarding instances where the trial court simply issues a civil judgment for the fees. We also note, parenthetically, that the 2002 version of section 938.29(l)(a), which is applicable in the instant case, was amended in 2003 to eliminate the requirement that the assessment of the fees be made at the sentencing hearing. § 938.29(l)(a), Fla. Stat. (2003).

      . Section 27.56(7), Florida Statutes (1989), was substantially similar and provided:

        The court having jurisdiction of the defendant-recipient may, at such stage of the proceedings as the court may deem appropriate, determine the value of the services of the public defender ... at which time the defendant-recipient or parent, after adequate notice thereof, shall have opportunity to be heard and offer objection to the determination, and to be represented by counsel, with due opportunity to exercise and be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law.

      . In State v. Dodson, 760 So.2d 145 (Fla.2000), the court held that the wrongful imposition of a public defender's lien does not constitute fundamental error that may be challenged on direct appeal without having been presented to the trial court via a rule 3.800(b) motion. Subsequent to Dodson, the court in Brannon v. State, 850 So.2d 452, 456 (Fla.2003), held that "for defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.” Hence even fundamental sentencing errors must be preserved under the rule in order to allow a defendant the right to seek relief via a direct appeal.

      . See Fla. R.App. P. 9.140(b)(2)(A)(ii)a. ("A defendant who pleads guilty or nolo conten-dere may otherwise directly appeal only ... the lower tribunal’s lack of subject matter jurisdiction....”); Otero v. State, 793 So.2d 1115 (Fla. 4th DCA 2001); Winter v. State, 781 So.2d 1111 (Fla. 1st DCA), review denied, 799 So.2d 219 (Fla.2001); Harrell v. State, 721 So.2d 1185, 1186-87 (Fla. 5th DCA 1998) (citing C.W. v. State, 637 So.2d 28, 29 (Fla. 2d DCA 1994); Booker v. State, 497 So.2d 957 (Fla. 1st DCA 1986); Page v. State, 376 So.2d 901, 904 (Fla. 2d DCA 1979); Wesley v. State, 375 So.2d 1093, 1094 (Fla. 3d DCA 1979); Waters v. State, 354 So.2d 1277, 1278 (Fla. 2d DCA 1978); Solomon v. State, 341 So.2d 537 (Fla. 2d DCA 1977)). In J.D. v. State, 849 So.2d 458 (Fla. 4th DCA 2003), the court stated that "a lack of jurisdiction constitutes fundamental error from which this court may grant relief even when presented for the first time on appeal.” Id. at 460 (citing Holiday v. State, 753 So.2d 1264, 1269 (Fla.2000) ("The doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.”); Saka v. Saka, 831 So.2d 709 (Fla. 3d DCA 2002); Cesaire v. State, 811 So.2d 816, 817 (Fla. 4th DCA 2002)); see also Morgan v. State, 757 So.2d 618 (Fla. 2d DCA 2000); Hoffman v. State, 729 So.2d 421 (Fla. 1st DCA 1999).


text:
    Richard L. HOWARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1158.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Richard L. Howard, in proper person.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and SHEVIN, JJ.
   PER CURIAM.

Richard Howard appeals the trial court’s denial of his Motion for Post-Conviction Relief. See Fla. R.Crim. P. 3.850. We reverse only on the issue of whether Howard’s plea agreement was voluntary.

According to Howard, his attorney erroneously advised him that he could receive gain time on his ten-year mandatory minimum sentence. As the record does not conclusively refute Howard’s claim, he is entitled to an evidentiary hearing on the matter, for which we remand this case to the trial court. See State v. Leroux, 689 So.2d 235 (Fla.1996); Bell v. State, 746 So.2d 515 (Fla. 3d DCA 1999).

We affirm the denial of the Rule 3.850 motion in all other respects.

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


text:
    Shannon Demetrious GERALD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-623.
    District Court of Appeal of Florida, Third District.
    Aug. 4, 2004.
    Shannon Demetrious Gerald, in proper person.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before COPE, GREEN and SHEVIN, JJ.
   Confession of Error

PER CURIAM.

Shannon Demetrious Gerald appeals an order denying his motion to correct illegal sentence whereby he sought additional credit for time served. Pursuant to the State’s confession of error, we remand for further proceedings.

Defendant-appellant Gerald served a split sentence of incarceration followed by community control. He violated community control and was sentenced to six years in prison. The sentencing order granted credit for 468 days of jail time served, but did not award credit for time previously served in the Florida Department of Corrections.

The State concedes that the defendant is entitled to credit for prison time previously served on the case on which he is incarcerated. Under the applicable statute, the sentencing order should reflect that the defendant is being awarded prison credit, and the calculation of the time previously served in the Department of Corrections is left to the Department to compute. See § 921.0017, Fla. Stat. (1997); Newman v. State, 866 So.2d 751 (Fla. 5th DCA 2004); Andrews v. State, 822 So.2d 540 (Fla. 2d DCA 2002).

We therefore reverse the order now before us and remand for further proceedings consistent herewith. The defendant need not be present.

Reversed and remanded.

      . Miami-Dade County Circuit Court case number 98-33400.


author: PLEUS, J.

text:
    Herbert WILLIAMS, Appellant, v. ALBERTSON’S, INC., Appellee.
    No. 5D03-3166.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.

      Thomas E. Pryor, Jr., of Thomas E. Pryor, Jr., P.A., Orlando, for Appellant.
    A. Craig Cameron and Billie L. Bellamy of Cameron, Hodges, Coleman, Lapointe & Wright, P.A., Orlando, for Appellee.

      . Herbert Williams is a woman.

   PLEUS, J.

Williams appeals an order dismissing with prejudice her negligence complaint against Albertson’s, Inc., for failure to file it within the four year statute of limitations (Williams filed one day late). Williams argues that the lower court erred in dismissing her complaint because an emergency prevented her attorney from timely filing and therefore, the court should have allowed the complaint under the doctrine of equitable tolling. We conclude that equitable tolling does not apply and that the lower court correctly dismissed the complaint. Accordingly, we affirm.

On or about April 3, 1999, Williams entered Albertson’s and allegedly fell on a wet floor. She filed a negligence complaint against Albertson’s on April 4, 2003, one day beyond the four year statute of limitations. Albertson’s filed a motion to dismiss alleging that the complaint was not filed within the applicable statute of limitations. Williams’ counsel filed an objection to the motion to dismiss alleging that:

1. Plaintiff would have filed her case by April 3, 2003, but plaintiffs lawyer was contacted by another lawyer, Charles Barfield, who had the tires slashed on his car, a white Toyota Corolla.
2. Plaintiffs lawyer was there while the Orange County Sheriffs Office through one of his deputies conducted an investigation and then when that was finished Plaintiffs lawyer drove Mr. Barfield’s wife, Wendy Barfield to work.
3. Then Plaintiffs lawyer assisted Mr. Barfield during that day.

The trial court granted the motion to dismiss with prejudice for failure to file the complaint within four years.

The standard of review of an order granting a motion to dismiss is de novo. Apostolico v. Orlando Regional Health Care Systems, Inc., 871 So.2d 283 (Fla. 5th DCA 2004).

Section 95.11(3)(a), Florida Statutes, requires an áction for negligence to be filed within four years. Williams admits she filed her complaint one day late, but argues that she should have been excused because her attorney was busy helping another attorney in an emergency. She argues that these facts are sufficient to excuse the late filing under the doctrine of equitable tolling.

The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period.
Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.

Machules v. Dep’t of Admin., 523 So.2d 1132, 1133-34 (Fla.1988) (footnotes omitted, emphasis added). In the instant case, there were no allegations or evidence that Williams’ attorney was misled or lulled into inaction or that he timely asserted his client’s rights mistakenly in the wrong forum.

Thus, the only possible basis for asserting this doctrine would be that Williams was “in some extraordinary way prevented from asserting [her] rights.” An example of such an extraordinary circumstance preventing someone from asserting his rights occurred in Middleton v. Silverman, 430 So.2d 981 (Fla. 3d DCA 1983). In that case, the Dade County Courthouse closed due to a civil disturbance in Miami. The appellate court noted that the plaintiff attempted to file within the limitations period but was frustrated in his attempt by the courthouse closure.

The instant case is clearly distinguishable. Williams’ attorney made no attempt to file within the limitations period and the courthouse was open. Instead, the attorney chose to help another attorney with a personal matter on the last day to file. As Albertson’s notes, these facts are closer to those in Whiting v. Florida Department of Law Enforcement, 849 So.2d 1149 (Fla. 5th DCA 2003). In Whiting, the appellant attempted to fax his notice of appeal on the last day to file. After two unsuccessful attempts to- fax, the appellant “elected” to try-again the next day. This Court held those facts were insufficient to allow the late filing under the doctrine of equitable tolling. Like the appellant in Whiting, Williams’ attorney “elected” to help a fellow attorney in a personal situation instead of filing a complaint on Williams’ behalf.

The remaining cases cited by Williams are also distinguishable because they involve situations where the courthouse was closed on a weekend or holiday on the last day to file. See Thorney v. Clough, 438 So.2d 985 [Fla. 3d DCA 1983) (weekend and legal holiday); Moorey v. Eytchison & Hoppes, Inc., 338 So.2d 558 (Fla. 2d DCA 1976) (weekend); Herrero v. Black & Decker Mfg. Co., 275 So.2d 54 (Fla. 3d DCA) (weekend), approved by Black & Decker Mfg. Co. v. Herrero, 281 So.2d 18 (Fla.1973).

AFFIRMED.

SAWAYA, C.J., and PETERSON, J., concur.

      . Williams alleges that a hearing on the motion to dismiss took place and that the lower court refused to allow her witness to testify. The court's order confirms there was a hearing, but no transcript of the hearing appears ■in the record on appeal.


text:
    William Arden ENGLAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1357.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.

      William Arden England, Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

William Arden England appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion. England argues that his sentence is illegal because the trial court failed to orally pronounce four special conditions of probation that were included in the written probation order. We agree and reverse those portions of the trial court’s order indicated herein.

The 1988 sentencing documents show that the sentencing court imposed, in writing only, conditions of probation (1) prohibiting England from frequenting bars or liquor lounges without permission; (2) requiring England to obtain psychiatric/mental health counseling; (3) requiring England to attend alcohol/drug rehabilitation programs; and (4) requiring England to submit to physical and chemical examinations to determine use of controlled drugs. Although these conditions appear on the written sentencing form, a review of the sentencing transcript shows that none of these conditions was orally imposed and no attachment indicates that England agreed to the imposition of special conditions of probation as part of a plea agreement. See, e.g., Garcia v. State, 722 So.2d 905 (Fla. 3d DCA 1998) (holding that special condition' prohibiting defendant from practicing law was part of plea agreement and defendant waived any right to object when he entered the agreement). When these conditions are properly analyzed as special conditions of probation, the failure of the sentencing court to orally impose these special conditions at sentencing requires that they be stricken. See Maddox v. State, 760 So.2d 89 (Fla.2000); State v. Williams, 712 So.2d 762 (Fla.1998); Frasilus v. State, 840 So.2d 1117 (Fla. 5th DCA 2003).

When reviewing England’s rule 3.800(a) motion, the trial court reached a contrary result based upon its conclusion that the four conditions challenged by England were authorized by statute and therefore were properly imposed even though they were not orally pronounced. The trial court based its conclusion on section 948.03, Florida Statutes (1987), which lists the general conditions of probation that need not be orally imposed and ends with the statement that “the enumeration of specific kinds of terms and conditions shall not prevent the court from adding thereto such other or others as it considers proper.” § 948.03(7), Fla. Stat. (1987). The trial court broadly interpreted the quoted provision of the statute to incorporate the conditions imposed upon England as general conditions of probation. We cannot agree that this “catch-all” provision converts any unlisted condition into a general condition that need not be orally pronounced.

In addition to its analysis of section 948.03, the trial court found that the condition imposing psychiatric evaluation and mental health counseling on England was specifically authorized by section 948.03(6). This statute requires a court to order diagnosis, evaluation and treatment for persons convicted of committing lewd and lascivious assault or act on a child or in the presence of a child; sexual battery of a child; or exploitation of a child. As a general condition of probation authorized by section 948.03, no oral statement of the condition at sentencing would have been required. Had the attachments provided by the trial court established that England was convicted of sexual battery on a child, this court would have affirmed the imposition of this condition upon England as a general condition of probation. However, the attached judgment only confirms that England was convicted of sexual battery on a person 12 years or older, in violation of section 794.011(3), Florida Statutes (1987). It does not show that the victim in England’s case was, in fact, a child. The burden is on the trial court to attach portions of the record conclusively refuting a facially sufficient claim in a rule 3.800(a) motion. See Thomas v. State, 854 So.2d 743 (Fla. 5th DCA 2003).

Neither can the condition requiring England to submit to physical and chemical examinations to determine any use of controlled drugs be upheld under any alternative analysis. Drug testing was not added as a general condition of probation until after England was convicted. See Ch. 88-122, Laws of Fla. At the time of England’s offense, drug testing was not a general condition and therefore had to be orally imposed to be sustainable. Similarly, the condition prohibiting England from frequenting bars is a special condition that should have been orally pronounced. See, e.g., Story v. State, 866 So.2d 702 (Fla. 2d DCA 2003); Murphy v. State, 704 So.2d 1116 (Fla. 2d DCA 1998).

As the attachments provided by the trial court fail to establish that the conditions of probation were mandated by statute or were orally pronounced, or alternatively, that England expressly agreed to the special conditions, the trial court’s order is reversed and the case remanded. Should the trial court again deny England’s motion, the trial court must attach the portions of the record that conclusively refute his claims.

AFFIRMED in part; REVERSED in part; REMANDED.

THOMPSON and PLEUS, JJ., concur.

      . A rule 3.800(a) motion is the proper vehicle to address a discrepancy between the oral pronouncement of a sentence and the written order of sentence. See Berthiaume v. State, 864 So.2d 1257 (Fla. 5th DCA 2004); see also Cote v. State, 841 So.2d 488 (Fla. 2d DCA 2003) (holding that written sentence that provided for probation consecutive to jail time and varied from oral pronouncement that jail time be a condition of probation was illegal sentence). But see Rinderer v. State, 857 So.2d 955 (Fla. 4th DCA 2003) (finding that discrepancy between written and oral sentence is not cognizable in a rule 3.800(a) motion).

      . The trial court agreed with England that another condition of probation regarding restitution had to be struck and that the written sentence imposing a 30-year term of probation had to be corrected to conform to the oral pronouncement 'imposing a 20-year term of probation. We affirm that portion of the order on review without further comment.

      . Throughout its order, the trial cpurt referenced both the 1985 and 1987 statutes because, consecutive to the 40-year sentence he received in one 1987 case, England was also sentenced to concurrent terms of probation in a 1985 case and an additional 1987 case. Because the pertinent statutory language appears in both the 1985 and 1987 statutes, this opinion cites to only the 1987 statutes for ease of reference.

      . Although the attached record does establish that England was declared to be a mentally disordered sex offender pursuant to section 917.016, Florida Statutes (1987), that statute only gives the trial court the discretion to order treatment for a sex offender placed on probation. Treatment is not mandated. Thus, when treatment is imposed as a condition of probation, it constitutes a special condition, which must be orally pronounced.


author: SHARP, W„ J.

text:
    Dennis BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1177.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 2004.
    Dennis Baker, Mayo, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W„ J.

Baker appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he seeks to collaterally attack his conviction and sentence of fifteen years, for robbery with a mask. His conviction and sentence were affirmed on direct appeal. Baker v. State, 845 So.2d 211 (Fla. 5th DCA 2003). He argues in this proceeding that his trial counsel was ineffective for the following reasons: for failing to attack the credibility of the state’s witness, the co-defendant; for “unprofessionally” advising him to enter a guilty plea; and for advising him to plead to a fifteen-year cap with the promise of a youthful offender sentence when Baker did not qualify because of his age. We affirm.

With regard to the first ground, a guilty plea cuts off inquiry into all issues arising prior to the plea. See Stano v. State, 520 So.2d 278, 280 (Fla.1988); Bodden v. State, 766 So.2d 416, 417 (Fla. 4th DCA 2000). Any further attack on the credibility of Baker’s co-defendant was rendered pointless by his guilty plea.

As to Baker’s second point, that his counsel was “unprofessional” when he advised him to plead guilty in a case where the proof against him was largely circumstantial, this allegation is too general to present a claim of professional inadequacy on the part of trial counsel. We also observe, based on the record, that by entering his plea, Baker avoided the possibility of being convicted of armed robbery and thereby facing a longer potential sentence.

The third ground raised by Baker gives us some concern. He alleges that his counsel promised him a youthful offender sentence when he was not eligible for such a sentence. There is no mention in the plea transcript or the written plea agreement of a possible youthful offender sentence. The court advised that it could sentence Baker to any term up to fifteen years. However, Baker was not asked if any other promises had been made to him, other than a fifteen-year cap.

As the state points out in this case, Baker did not allege that he would not have entered his guilty plea had he known he would not be sentenced as a youthful offender. See Grosvenor v. State, 874 So.2d 1176 (Fla.2004) (to establish prejudice in a plea case, the defendant must demonstrate a reasonable probability that, but for counsel’s error, defendant would not have entered a plea). However, in plea cases, inaccurate advice by counsel as to the length of a sentence can be a basis for post-conviction relief when not conclusively refuted by the record. State v. Leroux, 689 So.2d 235 (Fla.1996); Fisher v. State, 824 So.2d 1050 (Fla. 3d DCA 2002). The essence of a challenge to the voluntariness of a plea is that trial counsel was ineffective in some way by misinforming the defendant as to sentencing rights or options, thus establishing that the defendant did not enter a knowing and voluntary plea. See Barnhill v. State, 828 So.2d 405, 407 (Fla. 5th DCA 2002).

Under these circumstances, we think Baker’s motion comes close to stating sufficient grounds for collateral relief, which would merit a remand to the trial court to either attach portions of the record conclusively refuting his allegations or to hold an evidentiary hearing. The state concedes that had Baker also alleged that but for the misadviee by counsel he would not have entered his plea, and that he seeks to withdraw it, an evidentiary hearing would be required. Accordingly we affirm without prejudice to Baker to file an amended motion which contains those essential allegations.

AFFIRMED.

SAWAYA, CJ„ and TORPY, J„ concur.

      . §§ 812.13(2)(c), 775.0845(2)(b), Fla. Stat. (2001).


text:
    Albert Jones RICHEY, Appellant, v. MODULAR DESIGNS, INC., Appellee.
    No. 1D03-1386.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.

      Arthur G. Sartorius, III, Jacksonville, for Appellant.
    Alan D. Henderson of Henderson Keas-ler Law Firm, Jacksonville, for Appellee.
   PER CURIAM.

Albert Jones Richey appeals an order granting the motion of Modular Designs, Inc., for judgment notwithstanding the verdict on the grounds that the appellant’s cause of action was barred by two-year statute of limitations, section 95.11(4)(c), Florida Statutes (2000); that the cause of action was barred by the Statute of Frauds, section 725.01, Florida Statutes (2000); and that the jury’s award of damages was not sustained by the evidence. For the reasons that follow, we reverse.

Richey, a former employee of Modular Designs, sued his former employer on June 4, 2001 for breach of an oral employment agreement seeking damages for unpaid bonuses and commissions earned when he allegedly produced new customers for Modular Designs and for his unpaid wages for the last week of his employment. Richey, a salaried employee with the title “Operations Manager” for most of his employment, was returned to an hourly wage of $16 per hour in August 2000. He terminated his employment on December 28, 2000. After a jury trial, the jury returned a verdict finding that Modular Designs had breached its oral agreement with Richey. The jury awarded Richey damages of $3,000 for unpaid commissions and $475 in unpaid wages, but determined that Modular Designs was not liable for any unpaid bonuses.

The two-year provision of section 95.11(4)(c) applies to “[a]n action to recover wages or overtime or damages or penalties concerning payment of wages and overtime.” In Broward Builders Exchange, Inc. v. Goehring, 231 So.2d 513, 514 (Fla.1970), (quoting Blick v. Mercantile Trust & Deposit Co., 113 Md. 487, 77 A. 844 (1910)), the Florida Supreme Court explained that “[t]he word salary imports a specific contract for a specific sum for a specified period of time, while wages are compensation for services by the day or week.” Appellant’s action for his last week of unpaid wages was instituted within two years of the date the wages allegedly became payable in late December 2000 and, thus, was not barred by section 95.11(4)(c).

Turning to Richey’s claim for unpaid commissions, we agree with him that, as a salaried employee suing for unpaid commissions, the four-year statute of limitations in section 95.11(3)(k), Florida Statutes (2000) is applicable to his claim for commissions. Cabanas v. Womack & Bass, P.A., 706 So.2d 68, 69 (Fla. 3d DCA 1998); Barnes Surgical Specialties, Inc. v. Bradshaw, 549 So.2d 1189, 1190 (Fla. 2d DCA 1989). The record contains no evidence that the four-year statute of limitations bars recovery here. See Town of Miami Springs v. Lawrence, 102 So.2d 143, 146 (Fla.1958).

As for the application of the statute of frauds, Richey’s employment contract was terminable at will with an indefinite duration and his claim was for commissions earned based upon past services performed. Further, the record is devoid of evidence that the parties intended the contract to last beyond a year. Accordingly, the statute of frauds does not bar recovery here. Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937); Collier v. Brooks, 632 So.2d 149, 158 (Fla. 1st DCA 1994); see also Heffernan v. Keith, 127 So.2d 903, 904 (Fla. 3d DCA 1961).

Finally, in considering whether the trial court erred in granting the motion for judgment notwithstanding the verdict on the ground of insufficient evidence, we start with the caution that “[mjotions for judgment notwithstanding the verdict, like motions for directed verdict, should be resolved with extreme caution.” Stirling v. Sapp, 229 So.2d 850, 852 (Fla.1969). In considering such a motion, all inferences of fact should be construed most strictly in favor of the non-moving party. Id.; see also, Jackson County Hospital Corp. v. Aldrich, 835 So.2d 318, 325 (Fla. 1st DCA 2002). A jury verdict “must be sustained if it is supported by competent, substantial evidence.” Aldrich, 835 So.2d at 826. A trial court is authorized to grant a motion for judgment notwithstanding the verdict “only if there is no evidence or reasonable inferences to support the opposing position.” Stirling, 229 So.2d at 852 (emphasis theirs).

Here, without detailing the evidence in this record, although the evidence is thin, we find that the record contains competent, substantial evidence sufficient to support the jury’s verdict. In particular, Modular Designs’ admission that Richey was responsible for obtaining two new accounts, Wal-Mart and N.A.S. JAX, together with various other evidence in the record and the reasonable inferences from such evidence as to the company’s business practices, constitute sufficient evidence to support the jury’s award of $3,000 for unpaid commissions.

REVERSED and REMANDED for reinstatement of the jury’s verdict.

BARFIELD, VAN NORTWICK and PADOVANO, JJ., concur.


author: HAZOURI, J.

text:
    Wendy BETTS, on behalf of herself and all others similarly situated, Appellant, v. McKENZIE CHECK ADVANCE OF FLORIDA, LLC, d/b/a National Cash Advance, Steve A. McKenzie, and Brenda G. McKenzie, and unknown entities and individuals, Appellees.
    No. 4D03-3268.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.

      Christopher C. Casper of James, Hoyer, Newcomer & Smiljanich, P.A., Tampa, E. Clayton Yates of Law Office of E. Clayton Yates, P.A., Fort Pierce, and Richard A. Fisher of Richard Fisher Law Office, Cleveland, TN, for appellant.
    Virginia B. Townes of Akerman Senter-fitt, Orlando, for appellee McKenzie Check Advance of Florida, LLC, d/b/a National Cash Advance.
    Claudia Callaway of Paul, Hastings, Ja-nofsky & Walker, LLC, Washington, D.C., for appellees Steve A. McKenzie and Brenda G. McKenzie.
   HAZOURI, J.

This case is one in a growing number of cases addressing the “Money Transmitters’ Code” (the Code), Chapter 560, Florida Statutes, and its effect on the check cashing industry. The primary issue presented is whether the Code, as it existed in 1997, either authorized or prohibited the transactions which occurred between appellant, Wendy Betts (Betts), and appellee, National Cash Advance (NCA). A secondary issue is the interplay between Florida’s usury laws and the Code and what, if any, is the effect of these statutes on modern check cashing practices.

Procedurally, we are asked to review the trial court’s grant of summary judgment in favor of NCA in Betts’s class action lawsuit asserting claims for violation of Florida’s usury laws and other laws established to insure consumer protection. We disagree with the authority upon which the trial court’s decision was based, reverse the summary judgment, and remand for further proceedings.

I. Factual Background

Betts’s business relationship with NCA began in August 1997 when she gave NCA two checks, each in the amount of $115. In return, she received $200 in cash and NCA’s promise to defer presentment of the checks for a specified time. Approximately one week later, Betts redeemed the checks for cash. Less than one week later, Betts gave NCA three more checks, each for $115, in exchange for $300 and the same promise by NCA. Approximately two weeks later, Betts replaced the checks with three new checks, which she ultimately replaced with cash two weeks thereafter. A number of similar transactions subsequently took place, with Betts continuing to replace one check with another check, each time paying a fee, until December 1997 when she redeemed all checks with cash.

In check-cashing jargon, the transactions between Betts and NCA are characterized as “deferred presentment” and “rollover” transactions. In a deferred presentment transaction, the lender accepts a check in the amount of the loan plus a fee. The lender cashes the check, retains the fee, and gives the customer the remainder. In addition, the lender agrees not to deposit the check for an agreed-upon time. If, prior to the expiration of the loan term, the customer elects to redeem the check with cash, he or she may do so, with no further obligation to the lender. See Lynn Drysdale & Kathleen E. Krest, The Two-Tiered Consumer Financial Services Marketplace: The Fringe Banking System and Its Challenge to Current Thinking About the Role of Usury Laws in Today’s Society, 51 S.C.L.Rev. 589, 600 (2000).

If, on the other hand, the customer is unable to redeem the check with cash, he or she may elect a rollover transaction or extension of the term. In this scenario, the customer replaces one check with another check prior to the expiration of the loan term and pays an additional fee (usually ten percent of the face amount of the check plus a five dollar verification fee). The acceptance by the lender of the substituted check, results in an extension of the-loan term. In many cases, a customer'will “roll over” the loan term many times before either redeeming the check for cash or defaulting and suffering additional penalties for insufficient funds when the lender presents the check to the bank and it is returned unpaid.

Such practices are apparently the norm in the check-cashing industry and have become a topic of much debate. Some view the relationship betweén check casher and consumer as the provision of a valuable financial service, i.e., a short-term loan or cash advance, to one who might not otherwise have access to such services. See id. Others take the position that the check casher is a predatory lender of money at usurious rates who takes advantage of low-income and financially strapped consumers, which leads to their financial ruin. See id. at 592-99.

Opponents of these practices argue that these transactions are not check cashing, but rather, are short-term loan agreements and the fees are, essentially, interest. See id. at 619-20. With the average loan term under these situations being two weeks, and the average fee with each renewal or rollover being ten percent of the loan amount plus five dollars, opponents argue that the annual percentage rate is grossly in excess of the interest cap established by the usury laws. Id. Lenders rebuke the characterization that this is a “debt treadmill” arguing, instead, that “such lending [i]s a bridge enabling passage through temporary [financial] setbacks.” Id. at 605; see also Scott Andrew Schaaf, From Checks to Cash: The Regulation of the Payday Lending Industry, 5 N.C. Banking Inst. 339, 346 (2001).

II. Statutory Overview

Traditionally, transactions involving the lending of money for a fee or at a particular rate of interest fall under the purview of the usury laws. See generally § 687.02(1), Fla. Stat. (1997) (defining “usurious contracts” as “[a]ll contracts for the payment of interest upon any loan, advance of money, line of credit, or forbearance to enforce the collection of any debt, ... at a higher rate of interest than the equivalent of 18 percent per annum simple interest”). Arguably, the transactions described above could be characterized as usurious. They are contracts for the advance of money which result in an effective rate of interest (cost to use the lender’s money) well above the interest cap. Florida, however, is now one of twenty-three states which permits these transactions subject to strict regulation. See Schaaf, supra, at 358; see also Chapter 560, Fla. Stat. (2001).

With the passage of the Code in 1994, the Legislature sought to regulate the practices of the money transmitter industry. See § 560.102, Fla. Stat. (Supp.1994). From the Code’s inception, regulation of the check-cashing industry was contemplated within this scheme. See § 560.103(10), Fla. Stat. (Supp.1994) (“ ‘Money transmitter’ means any person located in or doing business in this state who acts as a payment instrument seller, foreign currency exchanger, check casher, or funds transmitter”); see also § 560.301 (titled, “Check Cashing and Foreign Currency Exchange Act”). The Code establishes registration and record-keeping requirements as well as imposes a cap on the fees a check casher may charge. See §§ 560.303, 560.309, 560.310, Fla. Stat. (Supp.1994).

The 1994 version of the Code did not specifically address or authorize deferred presentment or rollover transactions. In 2001, however, the Legislature amended the Code, adding a fourth part, specifically addressing deferred presentment. See § 560.401 (“Deferred Presentment Act”), Fla. Stat. (2001). A “deferred presentment transaction” is defined as “providing currency or a payment instrument in exchange for a person’s check and agreeing to hold that person’s check for a period of time prior to presentment, deposit, or redemption.” § 560.402(6), Fla. Stat. (2001). In the amended version of the statute, the Legislature expressly authorized deferred presentment transactions subject to the lender’s compliance with strict record-keeping, notice, and Truth-in-Lending disclosure requirements. See § 560.404, et. seq., Fla. Stat. (2001). The statute limits the face amount of the check taken for deferred presentment to not more than $500 and caps the fee at ten percent. See §§ 560.404(5) & (6), Fla. Stat. (2001). The statute expressly prohibits the post-dating of checks and any rollover or extension of a deferred presentment agreement. See §§ 560.404(12), (14) & (18), Fla. Stat. (2001).

III. Interpretation of the Code:

A. Department of Banking and Finance Regulations

In both versions of the Code, the Legislature granted the Department of Banking and Finance (the Department) “general regulatory powers” limited, by express statutory language, to “[o]nly such rule-making power and administrative discretion ... as is necessary, in order that the supervision and regulation of money transmitters may be flexible and readily responsive to changes in economic conditions.” § 560.102(1), (2)(h), Fla. Stat. (Supp.1994) and Fla. Stat. (2001). To that end, the Department has supervisory, investigatory, enforcement, and disciplinary powers. See §§ 560.105, 560.108; 560.109, 560.112, 560.113, 560.114, Fla. Stat. (Supp.1994) and Fla. Stat. (2001). Among the Department’s supervisory powers is the “[pjower to issue and publish rules, orders, and declaratory statements, disseminate information, and otherwise exercise its discretion to effectuate the purposes, policies, and provisions of the code and to interpret and implement the provisions of the code.” § 560.105(3), Fla. Stat. (Supp.1994).

In September 1997, the Department issued rules interpreting the Code. By these rules, the Department expressly approved deferred presentment transactions subject to certain restrictions, which were also imposed by the rules. See Fla. Admin. Code, Part VIII, Ch. 3C-560, (1997). The rules permitted a check casher to accept a post-dated check, and capped the transaction fees at ten percent and the verification fees at five dollars. See Fla. Admin. Code R. 3C-560.801, 560.803, 560.905 (1997).

B. Betts v. Ace Cash Express, Inc.

Prior to the transactions involved in this case, the only other court in Florida to address these issues was the Fifth District Court of Appeal in Betts v. Ace Cash Express, Inc., 827 So.2d 294 (Fla. 5th DCA 2002). That case was also a class action suit brought by Betts against another check casher with whom she had transacted business; the facts are very similar to those in this case. There, as here, Betts alleged that Ace Cash’s check-cashing activities, particularly, the company’s deferred presentment practices, violated the state’s usury laws. See id. at 295-96. As in this case, the date of the transactions preceded the 2001 amendment to the statute.

The Fifth District rejected Betts’s argument that the transactions constituted loans which violated Florida’s usury statute holding, instead, that the transactions were authorized by Chapter 560, Florida Statutes (2000), and that the charges were fees authorized by the statute. See id. In so doing, the court placed substantial weight and emphasis on the rules promulgated by the Department interpreting the Code, as well as an advisory opinion issued by the Department in February 1995, which was solicited by the Florida Check Cashiers Association. See id. at 296-97. In the letter, the Department authorized “deferred deposit” transactions provided they were “offered and managed pursuant to the provisions of Chapter 560, Florida Statutes, and specifically within the fee caps contained within section 560.309(4), Florida Statutes.” See id. at 297. The Ace Cash court affirmed the dismissal of Betts’s complaint, holding as follows:

After considering the Department’s advisory opinion solicited by the FCAA in advance of any deferred presentment transactions between the Plaintiffs and the Defendants, the subsequent authorization of the practice by the Florida Legislature, and the absence of any prohibition against the practice in the interim we disagree with the Plaintiffs’ characterization of the initial transaction as a loan. See State v. Cotton, 769 So.2d 345, 349 (Fla.2000) (later statutory amendment is clarification of legislative intent).

Id.

Although the Ace Cash court was apparently not called Upon to consider the legality of rollover transactions, it nevertheless engaged in that analysis. See id. at 297-300. The court noted that the 2001 version of the Code, the same version the court relied upon to retroactively approve deferred presentment transactions, expressly prohibited rollover transactions. See id. at 297. Despite that prohibition, the Ace Cash court concluded that rollover transactions were voluntary transactions entered into by customers with choices and lenders who were willing to accommodate. See id. at 298-99. The court concluded that Chapter 560 was the Legislature’s attempt to “find workable restrictions for an originally broad statute without drying up the well for those who are in need of financial assistance even though it may be an expensive source.” Id. at 299; accord Fastfunding The Company, Inc. v. Betts, 852 So.2d 353 (Fla. 5th DCA 2003) (rejecting Betts’s usury law violation arguments based upon the rationale in Ace Cash).

IV. Legal Analysis and Application to the Present Case

The trial court in this case relied upon Ace Cash in granting summary judgment in favor of NCA. For the reasons discussed below, we disagree with the Fifth District’s decision in Ace Cash, reverse the final judgment in this case, and remand for further proceedings.

For purposes of the analysis, the characterization of the transactions is important. There is no question that what takes place is something more than simple cheek cashing. In a deferred presentment transaction, the customer is advanced money in exchange for a check which the lender agrees not to immediately cash. In exchange for agreeing to defer presentment of the check, the lender exacts a fee. As Betts argues in this case, one might wonder why anyone would utilize the services of a “check casher” and pay for what he or she could otherwise obtain for free at a bank. Clearly, it is because the customer does not have the funds readily available to honor the check. Thus, there can be no question that what takes place is essentially an advance of money or a short-term loan. See Party Yards, Inc. v. Templeton, 751 So.2d 121, 122 (Fla. 5th DCA 2000) (“In usury cases, courts look to substance over form because the purpose of usury statute is to protect the needy borrower by penalizing the unconscionable lender.”).

In 1997, when the transactions between Betts and NCA took place, the Code did not specifically address or authorize deferred presentment or rollover transactions. Chapter 687, Florida Statutes (1997)(the Usury Statute) did, however, govern lending practices, and particularly, “[a]ll contracts for the payment of interest upon any loan, advance of money, line of credit, or forbearance to enforce the collection of any debt.” § 687.02(1), Fla. Stat. (1997). According to the Usury Statute, such contracts were considered usurious if they resulted in a rate of interest higher than “18 percent per annum simple interest.” Id. There is no dispute that the cost Betts paid to use the money for a specified time, i.e., the term of the deferred presentment period, far exceeded the simple interest rate of 18 percent annually and violated the Usury Statute.

When asked to consider whether these transactions were usurious, however, the Department did not rely upon the Usury Statute in the absence of express authorizing language in the Code. Rather, the Department issued rules creating exceptions to the Code and expanded the impact of the Code. We recognize that the Legislature empowered the Department with the authority to interpret the Code, issue rules and regulations, and oversee the Code’s implementation. Moreover, we realize that the Department’s interpretation is entitled to great weight. See Gay v. Can. Dry Bottling Co. of Fla., 59 So.2d 788, 790 (Fla.1952) (noting that, “the contemporaneous administrative construction of the enactment by those charged with its enforcement and interpretation is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized”). The Department’s authority in this regard, however, is not unbridled.

Section 120.52(8), Florida Statutes (1997), states:

(8) “Invalid exercise of delegated legislative authority” means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
(b) The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(3)(a)l;
(c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)l;
A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute.

Among the original stated purposes of the Code is the desire to promote “[t]he safe and sound conduct of the business of money transmitters” and to protect “the interests of the public in the money transmitter system.” § 560.102, Fla. Stat. (Supp.1994). To that end, the Legislature gave the Department “[o)nly such rule-making power and administrative discretion ... as is necessary, in order that the supervision and regulation of money transmitters may be flexible and readily responsive to changes in economic conditions, in technology, and in money transmitter practices.” § 560.102(h), Fla. Stat. (Supp. 1994). In the pre-2001 version of the Code, the Legislature clearly defined the activities in which check cashers and money transmitters are allowed to engage. See § 560.103(3), (10), Fla. Stat. (1994). As discussed above, deferred presentment transactions were not contemplated in the framework of selling and exchanging payment instruments. Further support of this conclusion is the fact that, in amending the Code in 2001, the Legislature added a separate and distinct part to the Code, Part IV, specifically addressing deferred presentment transactions.

Thus, we conclude that deferred presentment transactions were never intended by the Legislature to be an activity authorized by the pre-2001 Code. Therefore, the Legislature did not delegate to the Department the authority to either approve or regulate these types of transactions. Consequently, in issuing rules approving deferred presentment transactions, the Department exceeded its authority.

We turn now to the conclusion drawn by the majority in Ace Cash, that the Legislature’s subsequent amendment to the Code to encompass deferred presentment transactions is a statement of its prior intent. Ace Cash, 827 So.2d at 297. We reject this conclusion. Although it is sometimes appropriate to consider a subsequent amendment to clarify original legislative intent “if such amendment was enacted soon after a controversy regarding the statute’s interpretation arose,” see Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985); it is inappropriate to use an amendment for this purpose when it was enacted ten years after the original enactment. See Parole Comm’n v. Cooper, 701 So.2d 543 (Fla.1997). In this case, the original enactment of the Code was in 1994. The amendment which authorized deferred presentment transactions and prohibited rollover transactions occurred in 2001.

Additionally, as previously noted, the 2001 amendment was not merely a modification of the prior act done for the purpose of clarifying that deferred presentments were, in fact, contemplated in the original version. Rather, it resulted in the addition of an entirely new and separate part of the Code addressing only deferred presentments and rollovers. See § 560.401, et. seq., Fla. Stat. (2001)(“Deferred Presentment Act”). With the passage of the 2001 amendment, the Legislature went well beyond simply approving the transactions and imposing a fee cap. In addition, it established strict and detailed guidelines for those who wish to engage in deferred presentment transactions. Moreover, the amended Code expressly prohibits rollovers in any form. See § 560.404(18), Fla. Stat. (2001). Clearly, by amending the Code, the Legislature sought to add greater consumer protections, which were not previously in place. We find Judge Griffin’s dissent most persuasive on this point wherein she stated:

Nor am I persuaded that the passage of the “Deferred Presentment Act” in October 2001 was intended by the legislature to confirm the prior legality of the practice. Indeed, it appears the legislation undertook to regulate and limit these schemes. Further, the statute appears to recognize that these transactions are, in fact, loans.

Ace Cash, 827 So.2d at 299 (Griffin, J., dissenting).

Conclusion

We conclude that deferred presentment transactions and rollovers were not contemplated in the original version of the Code. Absent an express legislative authorization for these types of transactions, the Department exceeded its authority in expanding the purpose and intent of the Code with the passage of rules interpreting the Code to the contrary. At the time the transactions between Betts and NCA took place, the framework within which to consider their legality was the Usury Statute. Accordingly, it was error for the trial court to enter final summary judgment in favor of NCA on Betts’s claims. This cause is reversed and remanded for further proceedings. We certify conflict with Ace Cash.

REVERSED AND REMANDED.

STONE and POLEN, JJ., concur.

      . See Betts v. Ace Cash Express, Inc., 827 So.2d 294 (Fla. 5th DCA 2002).

      . The fee was 10% of the face amount of the check plus a $5 verification fee to cover the cost of verifying the financial information of the person cashing the check.

      . A typical loan term will be two weeks, with the expiration date being on the customer’s payday. For that reason, these transactions have come to be called “payday loans.” See Drysdale & Krest, supra, at 600-01. It has been reported that “the average customer makes eleven transactions a year.” Scott Andrew Schaaf, From Checks to Cash: The Regulation of the Payday Lending Industry, 5 N.C. Banking Inst. 339, 346 (2001).

      . One author estimates that a $100 loan with a two-week loan term that is continually extended or rolled over could result in annual percentage rates ranging from 390% to 871%. See Drysdale & Krest, supra, at 602.

      . The trial court was bound to follow the Fifth District’s decision in Ace Cash. See generally Stanfill v. State, 384 So.2d 141, 143 (Fla.1980) C'[t]he decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by” the supreme court); Weiman v. McHaffie, 470 So.2d 682, 684 (Fla.1985) (stating, in the absence of in-terdistrict conflict, all Florida trial courts are bound by decisions of district courts); see also State v. Hayes, 333 So.2d 51, 53 (Fla. 4th DCA 1976) (holding that trial courts are bound to first follow decisions of the district court in the district where the court is located; alternatively, if "the only case on point on a district court level is from a district other than the one in which the trial court is located, the trial court [is] required to follow that decision”).

      . According to Black's Law Dictionary, this is considered “interest.” See Black’s Law Dictionary 812 (6th ed.1990) (defining “interest” in this context as the “cost of using credit or funds of another”).


author: KLEIN, J.

text:
    Mark P. ARZUMAN, a/k/a Mark P. Arzoumanian, Appellant, v. The ESTATE OF Prince Bander BIN Saud Bin, etc., Appellee.
    No. 4D03-2406.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.
    Mark P. Arzuman, a/k/a Mark P. Arzou-manian, Boca Raton, pro se.
    Lawrence Bunin of Lawrence Bunin, P.A., Plantation, for appellee.
   KLEIN, J.

Appellant, a claimant against the appel-lee estate, appeals a final order granting the personal representative’s motion to disburse funds, approve final accounting, and discharge personal representative. He argues that the trial court erred in approving the settlement of a wrongful death claim in which the estate was a plaintiff, but we conclude that this appeal is not timely as to the order approving the settlement, which was a final order.

The decedent died in an airplane accident, and the estate filed a negligence suit which was settled for a total of $750,000. The settlement, which apportioned $700,000 to decedent’s mother and $50,000 to the estate, was approved by the court. The low amount to the estate resulted from the fact that the decedent reported no income. The aviation lawyer who obtained the recovery testified that the estate had no recoverable damages. Claimant, who had a pending lawsuit against the estate, filed an appeal from the March 2002 order approving the settlement, but subsequently dismissed it.

In April 2003, the personal representative filed a petition for discharge and approval of final accounting, noting that claimant’s lawsuit was still pending, but asserting that the estate would have no assets to pay any judgment claimant might obtain in the future. Following a hearing the court granted the petition, finding that if claimant obtained a judgment, it would be a class 8 claim under section 733.707, Florida Statutes, and that, after paying expenses having a higher priority, the estate would have no funds remaining. It is this order, which was entered in May 2003, which claimant has appealed, but his primary argument is that the court erred in approving the wrongful death settlement a year earlier.

The estate argues that claimant is not an “interested person” under section 731.201(21), Florida Statutes (2002), which defines interested person as:

any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.... The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

The closest case is Montgomery v. Cribb, 484 So.2d 73 (Fla. 2d DCA 1986), in which a claimant’s claim against an estate had been stricken, and the order striking the claim was on appeal. The second district held that the claimant was an interested party. We agree with that decision and conclude that claimant was an interested person.

The estate next argues that claimant was required to appeal the order approving the settlement when it was entered. Final orders in probate proceedings are defined under rule 9.110(a)(2), as orders which “finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”

We conclude that the order approving the settlement of the tort claim did “finally determine a right” of this claimant. Section 733.708, Florida Statutes (2002), which addresses the compromise of lawsuits filed by estates, provides that the probate court may authorize the settlement “if satisfied that the compromise will be for the best interest of the interested persons,” and that an order authorizing settlement “shall relieve the personal representative of liability or responsibility for the compromise.”

In this case once the order approving the settlement became final, the personal representative was, by statute, absolved of further responsibility. The order approving the settlement accordingly did finally determine a right of the claimant in that it resulted in the estate having no assets with which to pay his claim.

We are of course aware that, when we decide that an appellant should have appealed an earlier order, it can result in grave consequences. In probate cases, however, where the order of final- discharge may not be entered for years after the opening of an estate, interim appeals of orders which finally determine rights or obligations aré necessary for the orderly administration of the estate. If we were to review the order approving settlement at this late date, it is doubtful that any remedy would be available which would benefit claimant.

We have considered the issues which appellant has raised regarding the final order of discharge and find them to be without merit. Affirmed.

SHAHOOD, J„ and EMAS, KEVIN M., Associate Judge, concur.

      . Even if we had reviewed the order approving the settlement, we would have affirmed, because as we noted earlier, the estate had no damage recoverable in the wrongful death claim.


text:
    STATE of Florida, Appellant, v. Wilbert TAYLOR, Appellee.
    No. 4D03-819.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.
    - Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellant.
    Theresa Bland Edwards of Theresa Bland Edwards, P.A., Fort .Lauderdale, for appellee.
   PER CURIAM.

We affirm the trial court’s order suppressing appellant’s confession, which was obtained after detectives, in executing a search warrant of an apartment, handcuffed appellant and read him his Miranda, rights. The trial court concluded that appellant was illegally seized and suppressed his statement. The state’s argument on appeal is that the seizure of appellant was lawful because there were reasonable grounds to suspect that he was engaged in the unlawful activities on the premises for which the search warrant was issued. See Samuel v. State, 222 So.2d 3, 5 (Fla.1969). That is a factual determination, and we agree with the trial court that, without considering the admissions made in' the confession, the state failed to produce evidence tending to show that appellant was engaged in any illegal conduct on the premises. As there was no break in the causal chain from appellant’s seizure to his confession, the trial court correptly suppressed the confession. See Adams v. State, 830 So.2d 911, 914 (Fla. 3d DCA 2002).

WARNER, KLEIN and GROSS, JJ., concur.


author: STONE, J.

text:
    Maximillion A. FLORIO, Appellant, v. Robert Tyler ENG, Appellee.
    No. 4D03-1570.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.
    Arnold R. Ginsberg of Ginsberg & Schwartz, and Murray B. Epstein of Murray B. Epstein, P.A., Miami, for appellant.
    Frances F. Guasch of Luis E. Ordonez & Associates, Miami, for appellee.
   STONE, J.

Plaintiff appeals a judgment following a verdict in favor of Defendant. We reverse. The trial court denied Plaintiffs request to charge the jury on an essential issue in the ease where the evidence supported giving a charge on violation of section 316.084(2), Florida Statutes, governing vehicles passing on the right.

The parties disagree as to the accident details. Plaintiff was driving a truck, with an attached trailer, north on State Road 441 and was attempting to make a right turn into a driveway. Defendant maintains that he was following Plaintiffs truck, also heading north on the two lane road, when Plaintiff, without signaling, crossed into the southbound lane with only a rear wheel remaining in the northbound lane. Defendant testified that he passed because he thought Plaintiff, who entered the southbound lane, was turning left. Defendant acknowledged that, in passing, he drove off the road and onto the three foot wide shoulder, with 70% of his vehicle on the asphalt and 30% on the shoulder. When Defendant saw Plaintiff turn right, toward him, he tried to get out of the way and drove off the road, onto the grass and into the driveway, where the vehicles collided.

In contrast, Plaintiff and his passenger testified that the truck had signaled the right turn, did not cross into the left-hand southbound lane before turning, and Defendant tried to pass on the shoulder.

Plaintiff requested a jury instruction on section 316.084(2), which governs the circumstances when overtaking a vehicle on the right is permitted, arguing the evidence supports a charge advising the jury about the statute. Initially, Plaintiff requested that the court read only a portion of the statute, but at conference, in response to a court comment that if it gave the charge the whole statute should be included, Plaintiff agreed the entire statute should be read.

Section 316.084, provides:

(1)The driver of a vehicle may overtake and pass on the right of another vehicle only under the following conditions:
(a)When the vehicle overtaken is making or about to make a left turn;
(b) Upon a street or highway with unobstructed pavement not occupied by parked vehicles of sufficient width for two or more lines of moving traffic in each direction;
(c) Upon a one-way street, or upon any roadway on which traffic is restricted to one direction of movement, where the roadway is free from obstructions and of sufficient width for two or more lines of moving vehicles.
(2) The driver of a vehicle may overtake and pass another vehicle on the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the pavement or main-traveled portion of the roadway.
(3) A violation of this section is a noncriminal traffic infraction, punishable as a moving violation as provided in chapter 318.

Finding there was no evidence to support the instruction, the trial court denied the request for the jury instruction. While the witnesses disagree whether Defendant was “passing” prior to the accident, taking the testimony in the light most favorable to Plaintiff, his theory of the case clearly relates to the required instruction. We, therefore, conclude that the statute was relevant and material to the issues in the case.

A party is entitled to have the jury instructed on his theory of the case when the evidence, viewed in a light favorable thereto, substantially supports the theory even though that theory is controverted. Seaboard Coastline R.R. Co. v. Addison, 502 So.2d 1241, 1242 (Fla.1987).

Violations of state statutes governing motor vehicles are evidence of negligence. Id. at 1242 (holding that the violation of traffic ordinance is evidence of negligence, and when there is evidence of such violation, requesting party is entitled to have jury so instructed); see also Craig v. Sch. Bd. of Broward Co., 679 So.2d 1219, 1221 (Fla. 4th DCA 1996).

Failure to give a requested jury instruction constitutes reversible error where: (1) the requested instruction accurately states the law, (2) the facts in the case support the giving of the instruction, and (3) the instruction was necessary to allow the jury to properly resolve the issues in the case. See Wransky v. Dalfo, 801 So.2d 239, 243 (Fla. 4th DCA 2001).

We conclude that a failure to give an instruction on section 316.084 was an abuse of discretion. We, therefore, reverse and remand for a new trial.

FARMER, C.J. and MAY, J., concur.


author: MAY, J.

text:
    J.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4862.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

J.W. appeals a disposition order entered following a hearing on a violation of probation. He argues the trial court erred in: (1) finding him in violation of his order of probation; (2) entering a single disposition order instead of multiple orders; and (3) failing to enter a written order of revocation and make specific written findings of fact. We find no error in the court’s determination that the juvenile violated his probation, in the entry of a single disposition order, or in the lack of written findings. However, we reverse and remand the case to the trial court to correct some technical errors in the disposition order.

In the underlying case, J.W. pled no contest to throwing a deadly missile, a second degree felony, and criminal mischief, a misdemeanor. The court withheld adjudication and placed him on probation to terminate within ninety (90) days if he completed twenty-five (25) hours of community service and maintained contact with his probation officer. After violating his probation the first time, the court modified the probation conditions to delete community service and add the Spectrum day treatment program.

Seven months later, J.W.’s probation officer filed another petition for violation of probation and alleged that J.W. had committed new offenses, failed to perform community service, failed to attend Spectrum, and failed to contact his probation officer once a week and make face-to-face contact monthly. After an evidentiary hearing, during which the probation officer, J.W., and his mother testified, the court stated the following on the record:

I think clearly the State has proved the allegations contained in the violation, allegations 3 and 4, certainly far more than satisfying the conscience of the Court.... As far as the second condition of probation, his failure to contact the probation officer once a week by the phone and once a month in person, he’s indicated for the last 18 months he only contacted her one time. So I think clearly that’s a significant violation of probation. He’s violated that probation.

The court adjudicated J.W. delinquent and committed him to a level eight, high risk residential program. The court subsequently entered an order making specific findings of fact supporting the court’s deviation from the department’s recommended disposition. J.W. filed a motion to correct errors in the disposition order. That motion remains pending.

The record evidence supports the trial court’s finding of J.W.’s willful and substantial violation of probation. By his own admission, J.W. contacted his probation officer only once during the eighteen months of probation. Steiner v. State, 604 So.2d 1265 (Fla. 4th DCA 1992).

J.W. next argues the trial court erred by entering a single disposition order on the violation when there were two underlying counts in the petition of delinquency. The Second District Court of Appeal held “[w]hen multiple offenses constitute the basis for a delinquency adjudication, separate disposition orders for each offense must be used.” A.V.B. v. State, 715 So.2d 954 (Fla. 2d DCA 1998). We joined the second district in making this a requirement in B.H. v. State, 721 So.2d 1200 (Fla. 4th DCA 1998). We now recede from this requirement.

We continue to agree with the second district that a trial court must insure the disposition for each offense is clearly delineated in a disposition order. This is critical as the length of time for á commitment must not exceed the length of time an adult could have been sentenced for the same offense. However, we see no need for separate orders as long as the order reflects the disposition for each offense.

In this case, the disposition order fails to make that important distinction. We therefore reverse and remand the case to the trial court to correct this error, which may be done on the same disposition order as long as the disposition for each offense is properly delineated.

J.W. next contends, and the State concedes, that he is entitled to credit for time served in the juvenile detention center. We agree. See J.B. v. State, 829 So.2d 376 (Fla. 4th DCA 2002). As noted in C.C. v. State, 841 So.2d 657 (Fla. 4th DCA 2003), credit must be given, as it relates to the misdemeanor offense, so J.W. does not receive a disposition greater than the sentence he could have received as an adult.

Two other conditions in the disposition order warrant correction. First, one of the probation conditions requires J.W. to refrain from using or possessing alcoholic beverages or controlled substances. This condition fails to provide an exception for other controlled substances obtained in compliance with section 893.13(6)(a), Florida Statutes (2002). W.J. v. State, 688 So.2d 954 (Fla. 4th DCA 1997). Second, the probation condition regarding firearms must be modified to proscribe the possession of a firearm, electric weapon or a concealed weapon as specifically set forth in Section 790.23, Florida Statutes (2002). Id.

We affirm the findings and disposition in all other respects.

FARMER, C.J., GUNTHER, STONE, WARNER, POLEN, KLEIN, STEVENSON, SHAHOOD, GROSS and TAYLOR, JJ., concur.

HAZOURI, J., recused.

      . We are aware that J.W.’s primary argument on this issue is that because the order failed to indicate a time frame within which he was to complete the Spectrum day treatment program, he could not have violated that condition. However, because the court found J.W. had violated probation by failing to comply with the contact provisions, we decline to address the Spectrum issue.


text:
    Alberto OVIEDO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4381.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm Oviedo’s conviction for burglary of a dwelling, but reverse his habitual offender sentence because the evidence introduced during the sentencing hearing did not establish that he qualified for enhanced sentencing.

Oviedo contends, primarily, that the evidence at trial failed to establish that his entry into the victim’s dwelling was accomplished stealthily and, therefore, the court’s stealthy entry jury instruction constituted fundamental error.

According to the record, at 5:00 a.m., officers responded to a residential alarm. Seeing no one outside, the officers walked toward the rear of the home where Officer Leonard saw a van backed up to smashed-out sliding glass doors and two people standing inside the dwelling apparently moving appliances. Despite Officer Leonard’s order to stop, the men fled. One got into the van, and the other, Oviedo, attempted to escape on foot.

The other officer, Officer Calliehio, heard his colleague yell “stop, police,” followed by a vehicle accelerating. Officer Leonard fired his handgun at the van as it approached him, but it drove by, sideswiping him. Officer Calliehio located Oviedo as he rounded the corner of the house and a struggle ensued.

At the time of his arrest, Oviedo was wearing gloves and carrying a screwdriver. He also had a razor knife in his rear pocket. An inspection of the burglarized house revealed that the appliances had been moved and stacked next to the smashed-in sliding glass doors. Also recovered was a cordless drill laying beside the appliances, water covering the kitchen floor, and the alarm system was detached from the wall.

The victim testified that, when he left the house the day before, the door was locked, the appliances were in their proper places, and the glass doors were intact.

As part of the charge regarding burglary of a dwelling, the trial court instructed the jury on stealthy entry, as follows:

[pjroof of the entering of a structure stealthily and without the consent of the owner or occupant may justify a finding that the entering was with an intent to commit the crime if from all the surrounding facts and circumstances you are convinced beyond a reasonable doubt that the intent existed.

We conclude that the stealthy entry instruction is supported by the record. Here, the evidence showed that the burglarized home backed up to a lake and the house next door was under construction. Choosing a secluded location in order to avoid discovery may constitute “stealth” under the burglary statute. Baker v. State, 622 So.2d 1333, 1336 (Fla. 1st DCA 1993). See also S.D. v. State, 837 So.2d 1173, 1174 (Fla. 4th DCA 2003)(defining stealthy entry as any “secret, sly or clandestine act to avoid discovery and to gain entrance into or to remain ... without permission....”) Further, Oviedo failed to object to the jury instruction and we cannot say that, even if erroneous, the court’s instruction constituted fundamental error. See Daughtry v. State, 804 So.2d 426, 427 (Fla. 4th DCA 2001), rev. denied, 819 So.2d 134 (Fla.2002).

With respect to the sentence, although a prior conviction, identified as case number 84-8751, was entered into evidence, Oviedo did not stipulate that the conviction was applicable to him. Specifically, the name of the individual charged in that ease was referred to as Alberto Marquez Oviedo, while the charge in the instant case is against Alberto D. Oviedo. Further, there are no fingerprints in the 84-8751 packet containing the certified record of the conviction.

We affirm the conviction, but reverse the habitual offender sentence and remand for re-sentencing. If the state can prove that Oviedo is the person convicted in case number 84-8751, however, the state may again seek a habitual offender sentence. See Rivera v. State, 877 So.2d 787 (Fla. 4th DCA 2004).

POLEN and SHAHOOD, JJ., concur.


text:
    Lorelyn EVANS and Thomas Evans, her husband, Appellants, v. CITY OF MIRAMAR, Appellee.
    No. 4D03-3895.
    District Court of Appeal of Florida, Fourth District.
    Aug. 11, 2004.

      George R. Baise, Jr of George R. Baise, Jr., P.A., Bradenton, and Donald T. Norton of Cohen & Cohen, P.A., Hollywood, for appellants.
    Edward G. Guedes and Jamie A. Cole of Weiss Serota Helfman Pastoriza Guedes Cole & Boniske, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

We reverse a final summary judgment entered in favor of the defendant, City of Miramar. The record reflects issues of material fact sufficient to preclude summary judgment.

Mrs. Evans’ vehicle collided with a City of Miramar emergency vehicle, an SUV, that was proceeding through a red light at a busy intersection. According to Evans, she was driving on Pembroke Road when the light turned green and entered the intersection from the curb lane which was free of traffic. The city vehicle struck Evans’ car.

The vehicles in the other lanes had stopped to let the city vehicle pass. The driver of the city vehicle testified that he had put on his lights and siren, and entered the intersection, because he heard a radio dispatch that there was a fire in the area.

Section 316.072, Florida Statutes, governing obedience to traffic laws, includes a privilege, which provides:

(5) Authorized emergency vehicles.—
(a)l. The driver of an authorized emergency vehicle, when responding to an emergency call, when in the pursuit of an actual or suspected violator of the law, or when responding to a fire alarm, but not upon returning from a fire;
(b) The driver of a vehicle specified in paragraph (a), except when otherwise directed by a police officer, may:
2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
3. Exceed the maximum speed limits so long as the driver does not endanger life or property;
4. Disregard regulations governing direction or movement or turning in specified directions, so long as the driver does not endanger life or property.
(c) The foregoing provisions shall not relieve the driver of a vehicle specified in paragraph (a) from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his or her reckless disregard for the safety of others.

We recognize that there is substantial deposition evidence favorable to the city, including testimony that the driver of the city vehicle had used his lights and siren, and was stopped or had slowed down, before proceeding through the intersection. There remains, however, some question as to whether he should have seen Mrs. Evans’ vehicle and whether he proceeded into Mrs. Evans’ lane with due regard for safety of persons approaching in that lane.

Viewing the record in the light most favorable to Mrs. Evans, as the non-moving party, a fact issue remains. The summary judgment is, therefore, reversed and remanded for trial.

FARMER, C.J., STONE and MAY, JJ„ concur.