text:
    STATE of Florida, Appellant, v. C.A.J., a child, Appellee.
    No. 4D03-4618.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellee.
   GROSS, J.

Based on C.D. v. State, 865 So.2d 605 (Fla. 4th DCA 2004) (en banc), which was not available to the trial court at the time it ruled, we reverse the dismissal of delinquency petitions for failure to comply with the speedy trial rule.

C.A.J. was arrested for a number of offenses on June 16, 2003. The state filed ten petitions for delinquency on August 28, 2003. The petitions were served on the child on September 3, 2003. C.A.J. was arraigned on October 28, 2003. On the same day, he filed what was, in effect, a motion for discharge under the speedy trial rule.

The trial court held a hearing on the motion on Monday, November 3, 2003, six days after the motion was filed. At the conclusion of the hearing, the trial court entered a written order reserving ruling and allowing both parties to submit proposed orders by November 5.

On November 6, 2003, nine days after the child filed the motion, the trial court dismissed all ten petitions for violating the speedy trial rule. The court focused on the failure to arraign the child within ninety days of his arrest, the failure to appoint counsel until October 28, and the fact that neither the child nor counsel was at fault for the delay in bringing the case to trial.

The dismissal of the petitions is contrary to C.D., which established a “bright-line” rule under Florida Rule of Juvenile Procedure 8.090. There we wrote:

When a juvenile is taken into custody, the State is given ninety days to bring the case to trial. When that does not occur, the juvenile may file a motion for discharge. The court must then set a hearing within five days to review the factors in subsection (d). If none of them apply, the State is given a ten-day window period within which to try the case. If the State fails to bring the case to trial within those ten days, the juvenile is discharged. If one of the factors in subsection (d) is found to exist, then the State is given ninety days within which to try the case.

Id. at 610 (following Rule 8.090(m)(l)-(3)). Here, after the child filed his motion for discharge on October 28, the trial court held a hearing on November 3. By dismissing the case three days later, the trial court improperly denied the state the opportunity to bring the case to trial by November 12, within fifteen days of the October 28 motion for discharge.

Acknowledging C.D. and its effect on the speedy trial rule, the child contends that the case is inapplicable because the trial court did not issue a written ruling within five days of the filing of the motion for discharge. Because the trial court’s order was not issued until November 6, the child argues that the petitions must be dismissed.

However, the child cites to no rule that imposes the requirement that the trial court issue its ruling within five days of the filing of the motion for discharge. Rule 8.090(m)(3) requires only that the court “hold a hearing on the motion” for discharge “[n]o later than 5 days from the date of the filing” of the motion. Rule 8.090(m)(3) mentions only one order, the one requiring that the child “be brought to trial within 10 days” if none of the “reasons set forth in subdivision (d)” of the rule are applicable. The rule does not specify when the trial court “shall order” that the child is brought to trial within ten days.

The intent of Rule 8.090(m) is to require trial within fifteen days of the filing of the motion for discharge; so long as the trial court’s order does not violate this time limit, the timing of the order setting trial is legally insignificant.

Here, the trial court held a hearing six days after the child filed a motion for discharge and dismissed the petitions three days later. The state complied with the plain language of Rule 8.090(m)(3), such that it was prepared to bring the case to trial within fifteen days of the October 28 filing of the motion for discharge.

REVERSED AND REMANDED.

STEVENSON and HAZOURI, JJ., concur.

      . The fifth day after the motion was filed (October 28, 2003), fell on a Sunday. The court held a hearing the next day.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Joshua S. SLADE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1415.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

STONE, KLEIN and STEVENSON, JJ., concur.


text:
    James COWART, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-243.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Leonard v. State, 760 So.2d 114 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000); Robinson v. State, 373 So.2d 898 (Fla.1979).

POLEN, KLEIN and STEVENSON, JJ., concur.


text:
    Jorge LOPEZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D03-4810, 4D03-4811.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898, 902 (Fla.1979).

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


text:
    Gerald HERTZ, Faye Hertz and A.W.I. Financial, Inc., Appellants, v. P.T. MULTIMARMER ALAM, an Indonesian corporation, Appellee.
    No. 4D03-4449.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.
    Shelly J. Stirrat and Michael J. McClus-key of Fox, Wackeen, Dungey, Sweet, Beard, Sobel & McCluskey, L.L.P., Stuart, for appellants.
    Julie K. Oldehoff of Oldehoff Law Offices, P.A., Stuart, for appellee.
   PER CURIAM.

AFFIRMED. See Fisher v. John Carter and Associates, Inc., 864 So.2d 493 (Fla. 4th DCA 2004).

GUNTHER, TAYLOR and HAZOURI, JJ., concur.


author: FARMER, C.J.

text:
    Joakim JOANIDES, Appellant, v. Lisette JUBIS, and Danlis, Inc., a Florida Corporation, Appellees.
    No. 4D03-4250.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.
    Maurice Graham of Maurice Graham, P.A., Oakland Park, for appellant.
    Lindsey A. Payne of Goren Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellees.
   FARMER, C.J.

Joanides challenges an order dismissing his complaint on due process grounds — ■ that he was not given notice that the motion to dismiss would be considered at the hearing. The trial court entered the order in spite of the lack of notice to the plaintiff. We reverse.

Plaintiff had filed a motion to strike a memorandum of law submitted in support of defendants’ pending motion to dismiss. Plaintiff served a notice of hearing on the motion calendar, specifying only his motion to strike. The notice said nothing about the pending motion to dismiss. Defendants did not file any notice that the pending motion to dismiss would also be considered at the hearing on plaintiffs motion to strike the memorandum. The court nevertheless decided the motion to dismiss and entered an order granting it.

Defendants concede they did not give any notice that the motion to dismiss would also be considered, as required by the plain language of the rule. There were no extraordinary circumstances justifying the lack of notice. See Ingaglio v. Ennis, 443 So.2d 459 (Fla. 4th DCA 1984) (error in considering oral motion when only written motions had been noticed for hearing); see also Harreld v. Harreld, 682 So.2d 635 (Fla. 2d DCA 1996) (parties served with notice must have actual notice and time to prepare); Hilton v. Florio, 317 So.2d 83 (Fla. 3d DCA 1975) (error for court to dismiss counterclaim where defendants were given no notice of hearing on motion to dismiss).

REVERSED.

WARNER and SHAHOOD, JJ., concur.


text:
    Donnie HAMMETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3154.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 2004.
    Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).

WARNER, GROSS, JJ., and SILVERMAN, SCOTT, Associate Judge, concur.


text:
    Bruce TROW, Appellant, v. Murray SAMS, Jr., and Sams, Lister & Hollon, P.A., Appellees.
    No. 3D03-2332.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2004.
    Adams Coogler Watson Merkel Barry & Kelner, West Palm Beach; Marjorie Gada-rian Graham, for appellant.
    Sams Martin Lister and Alvarez, for appellees.

      Before LEW and RAMIREZ, JJ., and DAUKSCH, JAMES C., JR., Senior Judge.
   PER CURIAM.

Plaintiff appeals from an order granting the defendants’ motion to dismiss for lack of prosecution. Because the record on its face establishes that there was record activity in the year preceding the filing of the motion, we reverse. Gelb v. Miranda, 456 So.2d 548 (Fla. 3d DCA 1984); Kenet v. Stein, 326 So.2d 36 (Fla. 3d DCA 1976).

REVERSED AND REMANDED.


text:
    Charles BRUNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3405.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2004.
    Charles Brunson, in proper person.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before LEW, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. Johnson v. State, 786 So.2d 1162 (Fla.2001).


author: ORFINGER, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. Suzanne BONHAM, Advanta Mortgage, etc., et al., Respondents.
    No. 5D04-2752.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2004.

      Lee Craig and David I. Wynne of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Petitioner.
    Kevin Knight of Debeaubien, Knight, Simmons, Mantzaris & Neal LLP, Orlando, and Gerald R. Saffioti, Jr., of Gerald R. Saffioti, Jr., Esq. LLC, Winter Park, for Respondent, Suzanne Bonham.
   ORFINGER, J.

State Farm Florida Insurance Company seeks certiorari review of an order denying its motion to consolidate two civil actions. The two civil actions have a common plaintiff, Suzanne Bonham, but different defendants. For the reasons that follow, we deny the petition.

Ms. Bonham purchased a house that she claims had concealed structural damage. As a result, she filed a lawsuit alleging that the seller, Advanta Mortgage Corp., and the broker, Arvida Realty Services, failed to disclose material information about the home, and actively concealed damage to the residence caused by sinkhole activity. In a separate action, Bon-ham filed suit against State Farm, seeking a declaration of her rights under a homeowner’s insurance policy issued by State Farm, and damages. State Farm denied coverage based on its belief that there was no sinkhole on the property, and that any damage was the result of earth movement unrelated to sinkhole activity, and, thus, not covered under the policy.

State Farm then filed a motion to consolidate the two cases, and asserted that the actions concern a common question of fact, and consolidation would avoid redundant judicial labor. State Farm also argued that consolidation would avoid the possibility of inconsistent verdicts. After the trial court denied consolidation, State Farm sought certiorari review here.

An order denying a motion to consolidate is reviewable by certiorari. However, such a ruling falls within the sound discretion of the trial court, and should not be disturbed except where an abuse of discretion is shown. The mere possibility of different juries arriving at a different conclusion on a fact common to two lawsuits does not alone mandate consolidation. See Friedman v. DeSota Park N. Condo. Ass’n, 678 So.2d 391 (Fla. 4th DCA 1996). As with all non-final orders, a petitioner seeking certiorari relief must show a departure from the essential requirements of law resulting in material injury that cannot be rectified on plenary appeal. See e.g., Lynch v. State, 409 So.2d 133, 134 (Fla. 5th DCA 1982).

The key facts alleged in the broker lawsuit are easily summarized. Advanta acquired the residence through a foreclosure proceeding. It then placed the property for sale with Arvida, a broker in the area. Bonham purchased the property through Arvida in 2001. Bonham contends that she did not realize, nor did Arvida and Advanta disclose, that the property had suffered damage as a result of an apparent sinkhole approximately nine years earlier and that significant repair work had been done on the property thereafter.

Within a month after closing on the property, Bonham noticed that the home had significant cracks. After conducting further investigation, Bonham discovered that efforts had been made to conceal the cracks, including painting the interior of the house and sealing various cracks. Bonham’s third amended complaint against the broker (as the seller has settled with Bonham) alleges fraud in the inducement. Bonham sought to recover damages for the diminution in value of the property and repair costs.

In Bonham’s lawsuit against State Farm, the primary issue is whether any sinkhole damage occurred to the property during the policy period. The timing of the damage is significant because the insurance policy would not cover damages caused by a sinkhole that occurred prior to the policy period.

In deciding whether to consolidate cases, a trial court must consider: (1) whether the trial process will be accelerated due to the consolidation; (2) whether unnecessary costs and delays can be avoided by consolidation; (3) whether there is the possibility for inconsistent verdicts; (4) whether consolidation would eliminate du-plicative trials that involve substantially the same core of operative facts and questions of law; and (5) whether consolidation would deprive a party of a substantive right. See generally Fla. R. Civ. P. 1.270(a). Certiorari relief has been granted where a lower court refused to consolidate personal injury and wrongful death actions, which arose out of the same motor vehicle accident, to avoid the possibility of inconsistent verdicts. See Maharaj v. Grossman, 619 So.2d 399 (Fla. 4th DCA 1993); Tommie v. LaChance, 412 So.2d 439 (Fla. 4th DCA 1982). But see Pages v. Dominguez By & Through Dominguez, 652 So.2d 864 (Fla. 4th DCA 1995) (consolidation not required simply because separate actions arose out of same accident).

At the time the motion for consolidation was filed by State Farm, the insurance lawsuit was on a trial docket and the broker lawsuit was still in the pleading stages. Therefore, consolidation would not accelerate the trial proceedings in the insurance action. It also does not appear that consolidating the broker lawsuit and the insurance lawsuit would save State Farm any significant costs, as State Farm is named as a defendant in only one of the actions. Bonham might benefit if there was only one trial, but she opposes consolidation. In any event, litigation expenses and the costs of going to trial are not the type of harm that alone justify review by certiorari. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987).

Although there is a possibility of inconsistent verdicts, the lawsuits are different causes of action based on unrelated theories and feature different measures of damages. It is true that a common issue in both actions is whether and when there was sinkhole activity on the property. However, the core facts underlying both lawsuits are different. The broker lawsuit focuses on the concealment of information concerning sinkhole activity, which allegedly occurred prior to the purchase of the property, while the insurance litigation is concerned with whether any sinkhole loss occurred during the policy period. Thus, this case is not analogous to those in which separate lawsuits and causes of action arise out of a single motor vehicle accident.

We conclude that the trial court did not abuse its discretion and the denial of consolidation does not constitute a departure from the essential requirements of law. State Farm has not shown that the court’s failure to consolidate the two lawsuits has caused it material harm resulting in irreparable injury. Accordingly, we deny the petition. See Friedman (although there may be a single common factual issue in two lawsuits, consolidation is not appropriate where the majority of disputed facts and legal issues are disparate).

PETITION FOR CERTIORARI DENIED.

PLEUS and MONACO, JJ., concur.

      . Advanta settled with Bonham, leaving only Arvida as a defendant in that action.


author: MONACO, J.

text:
    Lillian SPALDING, Appellant, v. George SPALDING, Appellee.
    No. 5D03-4061.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2004.

      Lillian Spalding, Gainesville, Pro Se.
    A.J. Rohe, III, of Law Office of A.J. Rohe, III, Tavares, for Appellee.
   MONACO, J.

While there are a number of issues raised in this appeal by the appellant, Lillian Spalding (the “Former Wife”), only a single error needs to be redressed. We conclude that the trial court did not properly apply those parts of the Uniform Interstate Family Support Act (“UIFSA”), Chapter 88, Florida Statutes (2003), dealing with the capacity of trial courts to modify foreign alimony judgments, and reverse on that single point.

The Foi-mer Wife and the appellee, George Spalding (the “Former Husband”), were divorced in Massachusetts in 2001. The terms of this dissolution judgment, among other things, required the Former Husband to pay the Former Wife child support, as well as $100.00 per week as alimony. In 2002, the Former Husband filed a Notice of Registration of Foreign Judgment of Divorce in Florida in accordance with UIFSA, in which he claimed a substantial change of circumstances, and sought a downward modification of child support and alimony. The matter of child support was resolved in 2003, at least temporarily, by a stipulation of the parties modifying child support, and an order implementing the terms of the stipulation. As to alimony, however, the order suspended collection, but did not at that time reduce or terminate it. Some time later the Former Husband asked the court to modify his spousal support obligation by reducing the amount he was required to pay to the Former Wife as alimony.

The effect of registration under UIFSA of an out-of-state support or income-withholding order for purposes of enforcement is defined in section 88.6031, Florida Statutes (2003):

(1) A support order or income-withholding order issued in another state is registered when the order is filed in the registering tribunal of this state.
(2) A registered order issued in another state is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.
(3) Except as otherwise provided in this article, a tribunal of this state shall recognize and enforce, but may not modify a registered order if the issuing tribunal had jurisdiction.

The Former Wife, who opposed any reduction, argued that under section 88.2061(3), Florida Statutes (2003), the Commonwealth of Massachusetts retained exclusive jurisdiction over the alimony order. That statute reads as follows:

A tribunal of this state which lacks continuing exclusive jurisdiction over a spousal support order may not serve as a responding tribunal to modify a spousal support order of another state.

“Continuing exclusive jurisdiction,” a defined term under UIFSA, is described in section 88.2051, Florida Statutes (2003). While the statute defines the term as it applies to a variety of marital support orders, subsection (6) deals specifically with spousal support obligations, as follows:

(6) A tribunal of this state issuing a support order consistent with the law of this state has continuing exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. A tribunal of this state may not modify a spousal support order issued by a tribunal of another state having continuing exclusive jurisdiction over that order under the law of that state.

After a number of additional hearings and other proceedings, the trial court eventually concluded that it had the authority to modify the out-of-state alimony order, and cited this court’s decision in Fabio v. Monell, 594 So.2d 782 (Fla. 5th DCA 1992), as authority for its determination. When the trial court subsequently reduced the amount of alimony required of the Former Husband, and did so retroactively to the date the Former Husband filed his petition to reduce alimony, the Former Wife appealed.

Our analysis necessarily begins with the recognition that the Former Husband sought relief from his marital support obligations in the courts of Florida when he registered the Massachusetts divorce judgment in Florida pursuant to UIFSA. Having done so, he is bound by the terms of that legislation. Sections 88.2051, 88.2061(3) and 88.6031, Florida Statutes (2003), three of the provisions of UIFSA implicated by the dispute between the parties in this appeal, lend considerable weight to the Former Wife’s position. UIFSA makes a clear distinction between the terms “support order,” “child support order,” and “spousal support order.” The Florida statute, as well as the Massachusetts version of UIFSA provides that a tribunal of the state issuing a support order, consistent with the law of the state, has “continuing exclusive jurisdiction” over a “child support” order as long as the state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, or until appropriate consents of the affected individuals are filed. See § 88.2051(l)(a) and (b), Fla. Stat. (2003). Provisions governing the procedures to be followed in the modification of child support orders are found in section 88.2051(2), (3) and (4). Under subsection (6) of that statute, however, a court of this state may not modify a “spousal support order” issued by a tribunal of another state having “continuing exclusive jurisdiction” over that order throughout the existence of the support obligation. See § 88.2051(6), Fla. Stat. (2003); see also Vinnik v. Vinnik, 831 So.2d 1271 (Fla. 4th DCA 2002). Similarly, under section 88.2061(3), a court of Florida that lacks continuing exclusive jurisdiction over a spousal support order may enforce out-of-state spousal support orders, but may not serve as a responding tribunal to modify a spousal support order of another state. See Vinnik, 831 So.2d at 1273; see also Marriage of Rassier, 96 Cal.App.4th 1431, 118 Cal.Rptr.2d 113 (2002); Hibbitts v. Hibbitts, 749 A.2d 975 (Pa.Super.Ct.2000); Marriage of Erickson, 98 Wash.App. 892, 991 P.2d 123 (2000); State, Dept. of Human Servs. v. Jacoby, 975 P.2d 939 (Utah Ct.App.1999). A distinction between child support orders and spousal support orders is clearly recognized by the legislation.

A party seeking to enforce an out-of-state spousal support order or income withholding order commences the process by registering the order in this state for “enforcement.” See § 88.6011, Fla. Stat. (2003). The effect of registration for enforcement purposes is that a registered order issued by a court in another state is enforceable in the same manner and is subject to the same procedures as an order issued by a court of this state. Except as otherwise provided under Chapter 88, a court of this state must recognize and enforce, “but may not modify” a registered order if the issuing tribunal had jurisdiction. See § 88.6031(3), Fla. Stat. (2003). Since the trial court in the present case modified the spousal support order, and since that modification appears to contravene the unambiguous language of the statute, we must reverse.

For two reasons Fabio v. Monell, supra, the case relied upon by the trial court, does not provide support for the modification of the alimony ordered in the present case. First of all, Fabio was decided in 1992, five years before the effective date of UIFSA in Florida. Secondly, Fabio interpreted the domestication of a judgment under Chapter 55, Florida Statutes, and not under UIFSA. Because the Former Husband commenced the registration process under UIFSA, we need not address here the relationship between the two statutes, or whether UIFSA supersedes Chapter 55 in matters of support.

In all other respects we approve the actions of the trial court. We reverse, however, that part of the trial court’s order modifying the Massachusetts spousal support order awarding alimony to the Former Wife, and remand for further proceedings in that regard.

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, CJ., and PETERSON, J., concur.

      . Mass. Gen. Laws Ch. 209D, § 2-205(a)(l) (2004).


author: FULMER, Judge.

text:
    Todd F. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3512.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2004.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Todd F. Williams appeals from the revocation of his probation. He asserts that the written order of revocation does not conform to the trial court’s oral pronouncement and that the trial court found him in violation of two nonexistent conditions. We affirm the revocation but reverse and remand for correction of the written order.

Williams is correct in his assertions that the written order revoking probation does not conform to the oral pronouncement and that the oral pronouncement indicates that Williams violated nonexistent conditions. Williams was accused of violating conditions 3, 5 (twice), 9,17, and 24 (twice). The trial court indicated orally that Williams had violated conditions 3, 9, 35, and 36, but had not violated conditions 1, 17, and 24. There are no conditions 35 and 36 on the original order of supervision. The written revocation order includes all conditions that Williams was alleged to have violated including those that the trial court, in its oral pronouncement, specifically found that Williams had not violated.

The State concedes that remand is necessary but asserts that the transcript is incorrect in referring to violations of conditions 35 and 36. We reverse and remand for the trial court to resolve the discrepancy and, if necessary, to correct the record as to the actual oral pronouncement of the conditions that were violated. See Cunningham v. State, 818 So.2d 685, 686 (Fla. 2d DCA 2002); Henderson v. State, 701 So.2d 911, 912 (Fla. 4th DCA 1997). We reject Williams’ contention that the trial court should be directed to reconsider the revocation because, given the violations shown here, there is no reasonable possibility that the outcome would be different. Cf. Melecio v. State, 662 So.2d 408 (Fla. 1st DCA 1995) (remanding for reconsideration where only one violation was adequately shown by the record).

Affirmed in part, reversed in part, and remanded.

DAVIS and KELLY, JJ., Concur.


author: PLEUS, J.

text:
    Sean ASHMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-210.
    District Court of Appeal of Florida, Fifth District.
    Nov. 19, 2004.

      James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, J.

This is a double jeopardy case. Ashman appeals his Orange County convictions for two counts of lddnapping. He argues that the kidnapping convictions violated double jeopardy because he was previously charged and convicted of kidnapping in Polk County for the same incident. We agree and reverse the Orange County kidnapping convictions.

Ashman entered the victim’s Orange County residence just before midnight on December 22, 2002. He took the victim at gunpoint from her residence to her car where he ordered the victim to drive from Orlando to Polk County. The victim drove to a location in Polk County where Ash-man repeatedly sexually battered her in the back of the vehicle. At one point, the victim attempted to escape but Ashman caught her, choked her and carried her back to the car. Ashman attempted to sexually batter her again while the victim pretended she was unconscious. Later, the victim was able to call police who responded and apprehended Ashman.

Ashman was charged with and convicted of, in Polk County Case No. CF02-08268A-XX, armed kidnapping, attempted murder, and several counts of sexual battery. The Second District Court of Appeal per curiam affirmed Ashman’s convictions at Ashman v. State, 871 So.2d 218 (Fla. 2d DCA 2004) (table).

Concurrent to the Polk County investigation and prosecution, Orange County initiated an investigation of the same incident. The Orange County probable cause affidavit relates the same events described in the Polk County arrest affidavit. Ash-man was formally charged by information in Orange County with two counts of kidnapping, armed burglary of a dwelling and aggravated stalking.

Ashman raised the double jeopardy issue below but the trial court denied his motion to dismiss. The jury found Ash-man guilty as found on all counts.

On appeal, Ashman argues that the two Orange County kidnapping convictions and sentences violated his double jeopardy rights because he was previously convicted for these same offenses in Polk County. The State concedes that if the Orange County kidnapping convictions relate to the same episode as the Polk County kidnapping convictions, then the Orange County convictions would be improper. The State acknowledges the following authorities. Section 910.11(2), Florida Statutes (2003) states, “When a person may be tried for an offense in two or more counties, a conviction or acquittal in one county shall be a bar to prosecution for the same offense in another county.” In Adams v. State, 659 So.2d 396 (Fla. 2d DCA 1995), the court noted that even though a kidnapping was committed in more than one county, it was still one offense. In Nash v. State, 547 So.2d 147 (Fla. 4th DCA 1989), the court held pursuant to section 910.11(2), that a defendant’s conviction for grand theft in the county in which he stole automobile and in the county to which he drove automobile violated double jeopardy. See also Beatty v. Maryland, 468 A.2d 663, 668 (Md.1983) (holding that where victim seized in one county and transported to another county, only one kidnapping occurred).

Notwithstanding its concession, the State asks this Court to remand the matter back to the trial court “for a more complete review of appellant’s claims ... to determine if the Polk County kidnapping conviction is based upon the same act as that which led to the two new Orange County charges and convictions.” The State notes that, “the only details of the Polk County charges and convictions before this Court comes from attachments to the Initial Brief.” We find remand for this purpose to be unnecessary.

We take judicial notice of the certified copies of Ashman’s Polk County judgments and sentences, information and probable cause affidavit. The documents are sufficient for us to conclude that the Orange County kidnapping convictions arose from the same criminal episode as the Polk County convictions. The infor-mations and probable cause affidavits from both counties describe the same defendant, same victim, same date, and same underlying factual allegations. Based on the above mentioned authorities, the Orange County kidnapping convictions and sentences violate Ashman’s double jeopardy rights because he was previously convicted of the same offense in Polk County.

Because of our holding, we need not address Ashman’s alternative argument. We reverse Ashman’s two Orange County kidnapping convictions, affirm the remaining convictions for armed burglary of a dwelling and aggravated stalking, and remand for resentencing.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

■ ORFINGER and TORPY, JJ„ concur.

      . The Polk County information alleges that the kidnapping occurred "on or about December 22, 2002” while the Orange County information alleges that the kidnapping occurred "between the 20th day of December 2002 and the 23d day of December 2002.”


author: DAVIS, Judge.

text:
    Mary Ellen DiGIACOMO, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4165.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2004.
    James Marion Moorman, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Mary Ellen DiGiacomo challenges her convictions and sentences for four counts of selling an unregistered security and four counts of sale of a security by an unregistered dealer. We affirm.

DiGiacomo was charged in a fifty-three-count information for her involvement in twenty-six separate transactions. For each of these alleged transactions, she was charged with one count of sale of an unregistered security and one count of sale of a security by an unregistered dealer. In addition to these fifty-two counts, the State alleged one count of securities fraud. On appeal, DiGiacomo challenges only the charges related to four specified transactions.

At the conclusion of the State’s case, DiGiaeomo’s trial counsel made a “boilerplate” motion for judgment of acquittal as to all counts for failure to present a prima facie case. The trial court denied the motion. Because the motion for judgment of acquittal was general and did not address the specific grounds raised on appeal, these issues are not preserved for appellate review. See Miller v. State, 712 So.2d 451 (Fla. 2d DCA 1998).

Affirmed.

SALCINES, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: SILBERMAN, Judge.

text:
    Raymond SANCHEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5808.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2004.
    James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Raymond Sanchez appeals from his convictions and sentences for second-degree murder with a firearm and kidnaping. We affirm his convictions without comment. However, Sanchez correctly notes that in certain of the sentencing documents the trial court cited the wrong statute as the basis for imposing $2.50 in costs. The State acknowledges that remand is appropriate for correction of the sentencing documents for counts I and II to reflect that the costs were imposed pursuant to section 938.04 Florida Statutes (1999), instead of section 960.25. Accordingly, we remand for correction of the sentencing documents to reflect the proper statutory authority.

Affirmed and remanded with directions.

WHATLEY and SALCINES, JJ., concur.


author: CANADY, Judge.

text:
    William BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-875.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2004.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

William Bailey appeals the nonsummary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Bailey sought relief on several grounds as well as a belated appeal. The trial court denied all of Bailey’s claims. We affirm the denial of the postconviction claims without discussion but write to address his request for belated appeal.

On appeal, Bailey argues that the trial court erred in denying his request for belated appeal. A petition for belated appeal must be filed in the appellate court to which the appeal should have been taken. See Fla. RApp. P. 9.141(c)(2). Therefore, the trial court was without jurisdiction to either grant or deny Bailey’s request for belated appeal. The trial court’s denial is harmless, however, because while his post-conviction motion and request for belated appeal were pending in the trial court, Bailey filed a petition for belated appeal in this court, which was properly considered and denied. Bailey v. State, 2D03-3007 (Fla. 2d DCA April 22, 2004).

Affirmed.

ALTENBERND, C.J., and SALCINES, J., Concur.


text:
    Christopher KOSKI, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1814.
    District Court of Appeal of Florida, Second District.
    Dec. 1, 2004.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right Koski may have to challenge the voluntariness of his plea or the effectiveness of his counsel by filing a timely, facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

CASANUEVA and STRINGER, JJ., and DANAHY, PAUL W., Senior Judge, Concur.


author: L CALOGERO, C.J.,

text:
    FORUM FOR EQUALITY PAC, a Registered Louisiana Political Action Committee, Laurence E. Best, Jeanne M. Leblanc, and William A. Schultz v. CITY OF NEW ORLEANS and The Honorable W. Fox McKeithen, in his Official Capacity as Secretary of State of Louisiana Only, and not Individually.
    No. 2004-C-2185.
    Supreme Court of Louisiana.
    Sept. 2, 2004.
    CALOGERO, C.J., Concurs and Assigns Reasons.
   L CALOGERO, C.J.,

concurring.

While I might prefer to have the constitutional challenges which plaintiffs present resolved by this court in advance of the election, I cannot say that the holding of the court of appeal, to the effect that the issue is premature and cannot be raised until after the election passes, is erroneous.

I concur in order to point out that, of the issues the plaintiffs raise, the most serious argument is that the proposed amendment violates La. Const, art. XIII, § 1(B), which prohibits the presentation of more than one object in a single amendment.

| ^Plaintiffs argue that the proposed amendment compels voters to decide with a single vote whether to deny to gay couples both the right to marry and the right to enter into such arrangements as civil unions, and does not permit voters to decide to allow one and not the other. There are a significant number of voters who would support permitting gay couples to form civil unions, even though they would deny these couples the right to marry. Recent poll results, which support a reasonable presumption, indicate that more than 30% of adults nationwide agree with the statement, “Gay couples should be allowed to form civil unions but not legally marry.” See CBS News/New York Times Poll (July 11-15, 2004), available at http://mDiu.pollingreport.com/civil.htm. The court may yet have to address this constitutional question in a post-election challenge.

      . As the court of appeal noted, La.Rev.Stat. 18:1405(C) specifically provides that "[a]n action contesting an election on a proposed constitutional amendment shall he instituted within ten days after promulgation of the results of the election ...." (emphasis added). The election code does not provide for any means to challenge a proposed amendment before the election. The plaintiffs contend that, in the absence of a specific provision permitting a pre-election challenge, the court should look to the Code of Civil Procedure to fill the gap. The court's own jurisprudence provides some support for the idea that the court may entertain election challenges before the beginning of the statutory period the election code prescribes. See, e.g., McGee v. Lee, 328 So.2d 159, 162 (La.1976) (holding that a statute stating that "[n]o contest shall be entertained unless brought within two days after the official promulgation of the result of the election” only prescribed a time after which suit could not be brought, but was not intended to prevent a challenge before the beginning of the statutory term); Knight v. Ragan, 31 La. Ann. 289, 1879 WL 7092, at *1 (La. 1879) (same). However, there is no authority that definitively grants the court the ability to decide a challenge to a proposed constitutional amendment before the election. Yet see Graham v. Jones, 198 La. 507, 3 So.2d 761, 767 (1941) (affirming the right of the judicial department generally to review whether the legislature has complied with constitutional requirements in attempting to amend the constitution).

      . Besides prohibiting two persons of the same sex to marry, the amendment prohibits the recognition of any "legal status identical or substantially similar to that of marriage for unmarried individuals.” This language could potentially foreclose not only civil unions, but also domestic partnership arrangements like those the City of New Orleans presently recognizes for purposes of allocating certain employee benefits. See New Orleans Municipal Code §§ 87-1 to 87-8.