text:
    Cornelius WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3261.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Scott W. Sakin of Scott W. Sakin, P.A., Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Cornelius Wells appeals an order summarily denying his motion for post-conviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, and the denial of his motion for rehearing. He was convicted of two third-degree felonies after entering a no contest plea; in the instant post-conviction motion he claimed his defense counsel was ineffective in failing to move to dismiss or for discharge based on the expiration of the speedy trial period, and that his plea was involuntary because he would have instructed counsel to move for discharge if he was properly advised that he could. We reverse and remand.

The chronology of the case is as follows: Wells was arrested for the instant offenses on July 17, 2002, thus triggering the running of the speedy trial period; he posted bond and was released on July 22, 2002. On August 8, 2002, the State announced a “no information,” his bond was discharged, and the bondsman allegedly advised him that the prosecution was terminated, with no one advising him of any obligation to notify the clerk of the court of any new address. On November 15, 2002, Wells moved to a different address, still within Broward County, without notifying the clerk of the court. On November 19, 2002, the State filed the information charging him with the two counts to which he would eventually enter his plea; the record appears to reflect that a capias initially was issued but then was withdrawn, and a notation in the file indicates it was “never sent never served.” Wells alleged he was not notified that charges had been filed, nor was he served process. On November 26, 2002, a “Notice of Court Date” was mailed to Wells’s former address, to notify him that his appearance was required for arraignment in the instant case on December 17, 2002. He did not appear at the arraignment and a no-bond capias was issued for his arrest. On January 8, 2003, the 175-day felony speedy trial period of rule 3.191(a) ran. Wells was arrested on the no bond capias on April 7, 2003, 262 days after the date of his first arrest. He was appointed counsel on April 15, 2003, and entered the challenged plea on May 6, 2003.

Although ordinarily a defendant cannot demonstrate he or she was prejudiced by counsel’s failure to move for discharge under the speedy trial rules without establishing that the State could not bring the defendant to trial within the fifteen-day recapture period provided by rule 3.191(p)(3), compare Dexter v. State, 837 So.2d 595 (Fla. 2d DCA 2003), Wells relied on cases which provide that the State is not entitled to the fifteen-day recapture period if, within the speedy trial period, the defendant was neither re-arrested on the charges nor notified that the charges were filed, preventing the defendant from being able to move for discharge when the period expired: Cordero v. State, 686 So.2d 737 (Fla. 3d DCA 1997); State v. Morris, 662 So.2d 378 (Fla. 4th DCA 1995); Dedol-chow v. State, 675 So.2d 955 (Fla. 4th DCA 1996); State v. Gantt, 688 So.2d 1012 (Fla. 3d DCA 1997); Wills v. Wilson, 586 So.2d 468 (Fla. 3d DCA 1991).

We reject the State’s argument that Wells waived any claim of ineffective assistance of counsel in failing to assert his speedy trial rights when he entered his plea, distinguishing Cambrick v. State, 593 So.2d 613, 614 (Fla. 2d DCA 1992) (where the defendant asserted ineffective assistance of counsel in failing to move for speedy trial discharge, noting that the defendant waived his speedy trial rights by entering a no contest plea, but recognizing this was not dispositive of the issue of voluntariness of his plea), because Wells did challenge the voluntariness of his plea. He argued that, had counsel discussed the possibility of moving for discharge, he would have instructed his assistant public defender to do so rather than enter the plea. See Jenrette v. State, 761 So.2d 414 (Fla. 2d DCA 2000) (holding defendant did not waive claim of ineffective assistance of counsel by pleading guilty, where he alleged he would not have pleaded guilty if his counsel had moved to suppress his confession; a trial attorney’s failure to investigate a defense which results in an ill-advised guilty plea is a facially sufficient attack upon a conviction).

The trial court addressed the ineffectiveness claim on the merits and ultimately denied the motion because it agreed with the State’s argument, made at a non-evi-dentiary hearing, that the notice which had been sent by regular mail to Wells’s previous address — the one he had given when first arrested — constituted sufficient notice to him of the filing of the charges. That legal determination was erroneous. See Fla. R.Crim. P. 3.131(j) (requiring issuance of capias upon filing of information, if person named is neither in custody nor at large on bail); § 932.48, Fla. Stat. (requiring clerk to issue capias upon filing of information); State v. Gross, 874 So.2d 1292 (Fla. 4th DCA 2004) (affirming an order which, this court’s records reflect, granted the defendant’s motion for speedy trial discharge, where, after the State filed a no information, the charges were refiled but the defendant was notified of his arraignment only by mail to his last known address and he received no actual notice until after the running of the speedy trial time period); Datema v. Barad, 372 So.2d 193 (Fla. 3d DCA 1979) and cases cited therein (non-appearance does not constitute evidence of non-availability for trial when a defendant who is not in custody or on bail fails to appear pursuant to written notice instead of service of capias).

Accordingly, as the attachments to the trial court’s order did not conclusively refute Wells’s claim for relief, we reverse and remand for an evidentiary hearing or the attachment of portions of the record which do conclusively refute the claim.

FARMER, C.J., GUNTHER and SHAHOOD, JJ., concur.

      . While the instant appeal was pending, this court released C.D. v. State, 865 So.2d 605 (Fla. 4th DCA 2004) (en banc), in which, in the juvenile delinquency context, this court receded from its prior cases interpreting the juvenile speedy trial rule, rule 8.090, where the State fails to serve or arraign the juvenile within ninety days from arrest. The cases receded from were based on cases such as Cordero and Moms. See, e.g., D.D. v. State, 817 So.2d 930, 932 (Fla. 4th DCA 2002), receded from by C.D. However, the opinion in C.D. did not evince an intention to apply the rationale of that case to adult criminal cases like Cordero and Morris, and thus far it does not appear that any Florida appellate court has done so.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Elizabeth J. KATES, Petitioner, v. Nathan Louis SEIDENMAN, a/k/a Nick Seidenman, Respondent.
    No. 4D03-4658.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.

      Elizabeth J. Kates, Pompano Beach, pro se.
    Richard H. Gaines of Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A., Ft. Lauderdale, for respondent.
   PER CURIAM.

Petitioner, Elizabeth Kates, seeks a writ of prohibition following an order denying her motion' to disqualify the trial judge. Upon review of the verified motion, we conclude that Petitioner is entitled to the writ.

According to Petitioner, the judge made the following comments in court, without a court reporter, at the start of, during, and at the conclusion of the hearing for temporary alimony and attorney’s fees:

Why are you here. Why hasn’t this settled. It’s been 19 months.... This is a short-term marriage, and they’re not his kids.
This isn’t an alimony case. There’s no child support. This is only an equitable distribution case. There are no marital assets, only debts. Why haven’t you gone to mediation and settled this?
What are you doing here? You should feel lucky because if I were to give you any alimony, that would mean he was paying your mortgage and I would have to give him a special equity in your house.
* * *
She has a J.D. and an L.L.M. There’s nothing to rehabilitate. What kind of education does she think she needs? She’s not entitled to rehabilitative alimony. She’s not going to get any rehabilitative alimony.
She’s a lawyer and he’s a computer security analyst. Why isn’t she working.

Petitioner further alleged that the trial judge, when informed that a lengthy mediation had taken place, responded:

Well, I’m not going to be giving her anything, not fees or alimony. I’m ordering nothing. So now you know where this case is going to go and handle it accordingly.

A motion to disqualify is legally sufficient if it alleges facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1334 (Fla.1990).

While a trial judge may form mental impressions and opinions during the course of hearing evidence in a case, the judge is not permitted to pre-judge the case. Leslie v. Leslie, 840 So.2d 1097, 1098 (Fla. 4th DCA 2003)(citing Barnett v. Barnett, 727 So.2d 311, 312 (Fla. 2d DCA 1999)). In Irwin v. Marko, 417 So.2d 1108, 1109 (Fla. 4th DCA 1982), this court said:

It is clear that the respondent Marko has made certain comments on the record in this cause indicating that he intends to grant the subject motion for attorney’s fees and to award an amount in the six figures; these comments were made prior to any hearing below on the said motion. As such, we think the respondent judge has created the appearance of having prejudged the attorney’s fee issue in advance of hearing it and, accordingly, is required by our law to recuse himself. See, e.g., State v. Steele, 348 So.2d 398 (Fla. 3d DCA 1977), and authorities collected.

See also Martin v. State, 804 So.2d 360 (Fla. 4th DCA 2001); Gonzalez v. Goldstein, 633 So.2d 1183, 1184 (Fla. 4th DCA 1994).

Respondent points out that the judge did not make the alleged comments prior to the presentation of evidence; rather, made her findings “after the parties’ presentation.” Taking the motion’s sworn allegations of fact as true, the comments were made during a hearing for temporary support. If true, the comments create an appearance that the judge has pre-judged Petitioner’s claim for rehabilitative and permanent alimony, issues that were not before the court at the hearing for temporary relief.

Petitioner has demonstrated entitlement to prohibition relief. Therefore, we grant the petition but withhold issuance of the actual writ on the presumption that the trial judge will voluntarily comply with this court’s opinion and a successor judge will be appointed.

STONE, KLEIN and TAYLOR, JJ„ concur.


author: POLEN, J.

text:
    Edwin L. DEASON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1467.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 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 Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Edwin Deason, has timely appealed guilty verdicts from a jury trial for cruelty to animals and attempted inhumane slaughter of an animal due to the exclusion of evidence which tended to support Deason’s theory of defense. We reverse for the reason that follows.

On December 9, 2002, Deason was in Boca Raton at a home where pigs were maintained in the backyard. Accompanying Deason were his long-time girlfriend Tammy O’Brien, Carolyn Leonelli, John Grady, and Laurie Grady. According to O’Brien, all of the above mentioned individuals were in front of the house when they heard a pig squealing in the backyard. Everyone, including Deason, proceeded to the backyard whereupon O’Brien was the last to arrive. Upon her somewhat delayed arrival in the backyard, she saw Deason on one side of the cage and another individual, Bob “Big Bob” Weh-rheim, on the other side of the cage. According to O’Brien, the pig had already been stabbed and Big Bob handed Deason a knife. Leonelli corroborated this story for the most part. Notably, she added that she witnessed Big Bob retrieve a knife and walk to the backyard before all of the commotion began.

Deputy Robert Catalano was the first to respond to the scene and heard the pig squealing from the backyard. Catalano observed Big Bob lying on his stomach attempting to pull the injured pig out of the cage. Catalano saw a knife, although not the one used to stab the pig, in Big Bob’s hand. Big Bob was initially detained and questioned, but then released. According to Catalano, Deason, who was still present at the scene, was wearing clothes which were soiled in mud, pig feces and what appeared to be blood stains. Deason allegedly made a comment about wanting pork chops. Catalano acknowledged that he did not take the statements of any of the other individuals present at the scene. Notwithstanding, Catalano arrested Deason based on the sum total of his investigation.

Deputy Christine Kimball allegedly heard Deason say “yes I cut the pig, so what.” However, the other two deputies at the scene, who were both present at the time of the alleged statement, failed to hear Deason make such a remark. There was also another minor inconsistency in Kimball’s story because she testified that other than the smell of alcohol on Deason’s breath, there was no odor on his person. Kimball found the knife used to stab the pig in a flower pot with the wooden handle sticking out. Kimball could not recall if she spoke with any of the specific individuals present on the scene with the exception of Big Bob.

Animal control was eventually called and the pig was euthanized due to the extent of its injuries. Deason was later charged by amended information with cruelty to animals and attempted inhumane slaughter of an animal. Prior to proceeding to trial, the State moved to suppress evidence of “whether or not any other defendants have been charged in this case with a crime.” The trial court ruled such evidence would be excluded. However, Deason argued his theory of the case was:

only one person committed the crime on this day, not multiple people, and that one person was someone else who wasn’t arrested.... I’m not trying to blame the State for their decision of who they charged, just they — the wrong person was arrested for this crime, not the person who committed the crime.

The trial court permitted this limited argument to be made at trial.

The trial began and the State presented a neighbor and Deputies Catalano and Kimball as well as two animal control workers. There was no “smoking gun” evidence against Deason. No one testified they saw Deason stab the pig. The only physical evidence was the reference to blood on Deason’s clothes. Deason presented Leonelli and O’Brien. Deason also recalled Catalano and attempted to elicit testimony that Big Bob was a confidential informant for the Palm Beach Sheriffs Office in unrelated cases. The purpose of this evidence would be to establish bias on the part of the deputies. The State immediately objected on relevancy grounds. During a sidebar, the State argued that this evidence goes back to the motion in limine of why the State did not charge Big Bob. The trial court ultimately sustained the State’s objection. The jury was instructed and returned guilty verdicts on both charges. Deason was sentenced to ninety days in jail followed by one year of probation.

Deason’s sole issue on appeal is that the trial court erred by prohibiting him from establishing bias on behalf of the deputies by introducing relevant evidence that Big Bob was a confidential informant in unrelated cases. We agree with Deason. “An accused has a right to present [relevant] evidence in his own defense.” Zanicchi v. State, 679 So.2d 40, 41 (Fla. 4th DCA 1996)(eiting Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)). “Relevant evidence is evidence tending to prove or disprove a material fact.” § 90.401, Fla. Stat. We wish to make it clear that evidence of any involvement of a confidential informant is not per se admissible. Rather, the holding of this case is limited exclusively to the very specific facts of this case.

Deason’s defense at trial was that he did not stab the pig. Contrarily, Deason asserted that Big Bob did the stabbing. In support of this defense, Deason presented two witnesses who corroborated this story. Likewise, Deason argues that the fact that Big Bob was a confidential informant for the police tends to show a bias on the deputies’ behalf in trying to protect their interests in Big Bob. Whether this establishes bias is a question to be resolved by a jury, but this evidence was without doubt relevant. When the deputies arrived, it was Big Bob who was interacting with the injured pig. Big Bob was immediately detained, questioned and then released.

Thereafter, according to the deputies’ own accounts, Deason was arrested based on the sum total of the investigation. However, neither deputy took witness statements from any of the other individuals present at the scene. Moreover, there was, at best, contradicting evidence from Big Bob pointing to Deason as the perpetrator. As such, it remains a mystery exactly what the sum total of the deputies’ investigation consisted of, other than Big Bob’s statements. However, from an objective vantage point, it appears quite possible that the jury could find the deputies selectively focused their investigation, ignoring any leads which could implicate Big Bob. Accordingly, the excluded evidence would tend to support Deason’s theory of defense. Nor do we find that this evidence would be so prejudicial that it would need to be excluded because its probative value is substantially outweighed by some perceived danger. See § 90.403, Fla. Stat. Consequently, the trial court abused its discretion and thus reversibly erred by excluding this evidence. We reverse and remand for a new trial consistent with this opinion.

REVERSED.

STONE and SHAHOOD, JJ., concur.


text:
    Barry ROSENBLUM, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D04-1617.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Barry Rosenblum, Wilton Manors, pro se.
    John D. Maher, Tallahassee, for appel-lee.
   PER CURIAM.

Affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a). Questions of credibility of witnesses are matters for the hearing officer. The appellate court cannot reweigh the evidence presented.

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


text:
    James SECOR, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D04-837, 4D04-838.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney ’ General, West Palm Beach, for appellee.
   PER CURIAM.

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

STEVENSON, SHAHOOD and TAYLOR, JJ., concur.


text:
    Ronald W. HOUCHINS and Martha Romero-Huertas, Appellants, v. STATE FARM INSURANCE COMPANY, Appellee.
    No. 4D04-879.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Ronald W. Houchins and Martha Romero-Huertas, Margate, pro se.
    Frances F. Guasch of Luis E. Ordonez & Associates, Miami, for appellee.
   PER CURIAM.

Appellants argue the trial court’s dismissal of their complaint for failing to attend calendar call or obtain substitute counsel as ordered by the court was error because the court failed to make a finding that appellants’ failure to comply was willful or contumacious. Appellee agrees and concedes error. We therefore reverse and remand for further proceedings. See Townsend v. Feinberg, 659 So.2d 1218, 1219 (Fla. 4th DCA 1995) (“Prior to exercising its discretion to grant dismissal based on failure to comply with a court order, the court must make a finding that the failure to comply was willful or contumacious.”).

GUNTHER, WARNER and HAZOURI, JJ., concur.


text:
    Randall L. KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3595.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    Robert Augustus Harper, Esquire and Michael Robert Ufferman, Esquire of the Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See Moore v. State, 880 So.2d 826 (Fla. 1st DCA 2004); Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2003), review pending, No. SC03-2219 (Fla. Dec.18, 2003). Contra Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), review pending, No. SC03-2103 (Fla. Nov. 10, 2003).

BENTON, BROWNING, and POLSTON, JJ., CONCUR.


text:
    Tammy SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-807.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Edward C. Hill, Jr., Special Counsel, Office of Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant in this direct criminal appeal challenges her convictions for possession of a controlled substance. We affirm. We note, however, that the appellant raises an issue over which this court does not have jurisdiction. See Wild v. Dozier, 672 So.2d 16 (Fla.1996). Consequently, this opinion is not dispositive as to that issue.

BOOTH, BARFIELD and ALLEN, JJ., CONCUR.


author: WOLF, C.J.

text:
    G.E. FINANCIAL ASSURANCE and Sedgwick Claims Management Services, Inc., Appellants/Cross-appellees, v. Bobbie Lynn COX, Appellee/Cross-appellant.
    No. 1D03-0405.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    Robert A. LeVine, of Newman, LeVine & Metzler, P.A., Tampa, for appellants/cross-appellees.
    Ivan Matusek, of Matusek, McKnight, Poluse & Cangro, P.A., St. Petersburg, for appellee/cross-appellant.
   WOLF, C.J.

G.E. Financial Assurance and Sedgwick Claims Management Services, Inc. challenge an award of psychiatric treatment and temporary benefits to the claimant, Bobbie Lynn Cox. We find there was competent substantial evidence to support such awards and affirm without further comment.

On cross-appeal, claimant raises three issues. We affirm as to all, but we briefly address one of the issues: whether the employer/carrier was estopped from denying permanent impairment. Because the issue of estoppel was not addressed by the JCC, we decline to address that issue for the first time on appeal. Claimant may raise that issue in the future if the question of entitlement to permanent benefits is litigated.

BROWNING and HAWKES, JJ., concur.

      . The JCC acknowledged the estoppel argument, but she failed to address it; specifically, the JCC indicated that the issue of permanency had been withdrawn from her consideration by the claimant.

      . We would note that the JCC found that there is no medical evidence that claimant attained maximum medical improvement as a result of the psychiatric condition, and as such, she found the claimant has not reached overall maximum medical improvement.


text:
    Adam Jerome DURR, Petitioner, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Respondent.
    No. 1D04-3115.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    Adam Jerome Durr, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Denhart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

BOOTH, WEBSTER and DAVIS, JJ., concur.


text:
    Barry JOHNSON, Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.
    No. 1D04-2154.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    James V. Cook, Tallahassee, for Appellant.
    Fern Rosenwasser, Tallahassee, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 25, 2004, the Court has determined that the second motion for rehearing was not authorized, and therefore did not delay rendition of the underlying Order Dismissing Cause Sua Sponte. Specifically, although the April 6, 2004, order denying rehearing provided an alternative basis for the disposition, it reaffirmed the original determination. Thus, the order did not change the entire basis for the previous ruling. C.f. Dade Federal Savings & Loan Ass’n v. Smith, 403 So.2d 995, 999 (Fla. 1st DCA 1981)(determining that second motion for rehearing was authorized in the limited circumstances where the ruling on a first motion for rehearing changes the entire basis of the previous ruling). Accordingly, the instant appeal is hereby dismissed as untimely.

BOOTH, WEBSTER, and DAVIS, JJ., concur.


text:
    Dana D. RIPLEY, Appellant, v. CITY OF LAKE CITY, Appellee.
    No. 1D04-1695.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    Andrea Bateman, Winter Park, for Appellant.
    Herbert Darby and M. Blair Payne of Darby, Peele, Bowdoin & Payne, Lake City, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of June 11, 2004, as well as the appellant’s supplemental Response to Order filed on July 16, 2004, this appeal is hereby DISMISSED. This dismissal is without prejudice to the appellant’s right to file an appeal when a final administrative order disposing of the appellant’s claims has been rendered.

BOOTH, WEBSTER and DAVIS, JJ., concur.


text:
    Roderick B. WETMORE, Petitioner, v. Sharon REID, Guardian for James Reid, Pennsylvania Manufacturers’ Association Insurance Company, and Terrance Jackson, Respondents.
    No. 1D04-1403.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    E.T. Fernandez, III, of Inman & Fernandez, P.A., Jacksonville, for petitioner.
    Roosevelt Randolph, of Knowles & Randolph, P.A., Tallahassee, for respondent Jackson; Larry K. White, of Flowers & White LLC, Tallahassee, for respondent Reid; Bradford A. Thomas, Miami; and Matthew Minno, Tallahassee, for respondents.
   PER CURIAM.

Petitioner, a defendant in the trial court, contends that the order of consolidation dated October 20, 2003, was entered without notice to the defendants. Respondents do not oppose the entry of a writ of certio-rari to allow a rehearing on the issue of consolidation, nor do they controvert the facts raised within the petition. We, therefore, grant the petition for certiorari, quash the order denying the motion for rehearing, and require the trial court to address the issue raised in the motion after a properly noticed hearing where all parties have a full opportunity to be heard.

WOLF, C.J., KAHN and LEWIS, JJ., concur.

      . The trial court denied petitioner's request for rehearing on the order of consolidation ■ without holding a hearing even though it is readily apparent from the record that the plaintiffs did not provide notice to the defendants of the requested consolidation, the motion did not contain adequate certificates of service, and copies of the order consolidating the cases were not served on the defendants; furthermore, the order of consolidation incorrectly reflects that all parties agreed to the consolidation. The trial court should address how these circumstances were allowed to occur and take steps to assure that this does not happen again.


text:
    Kenneth ELLISON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2777.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    Nancy A. Daniels, Public Defender, and Carl McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, Robert R. Wheeler, Bureau Chief, Criminal Appeals, and Man R. Dakan, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

AFFIRMED. Walker v. State, 853 So.2d 498 (Fla. 1st DCA 2003).

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


author: PER CURIAM,

text:
    Richard Wayne JOSEPH, Appellant, v. Melissa Whitley JOSEPH, Appellee.
    No. 1D03-1510.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2004.
    Samuel S. Jacobson, of Bledsoe, Jacobson, Schmidt, Roberson & Wright, Jacksonville, for Appellant.

      Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   PER CURIAM,

The trial judge erred in dismissing the appellant’s petition for modification of alimony. The trial judge had jurisdiction to consider the petition pursuant to Florida Rule of Appellant Procedure 9.600(c). Atlas v. Atlas, 708 So.2d 296 (Fla. 4th DCA 1998); Merlan v. Merhige, 690 So.2d 678 (Fla. 3d DCA 1997). See also Davies v. Davies, 833 So.2d 167 (Fla. 1st DCA 2002) (Browning, J., concurring).

REVERSED and REMANDED for further proceedings.

BARFIELD and VAN NORTWICK, JJ., concur; and WOLF, C.J., concurs in result.

      . Appellee’s reliance on Campbell v. Campbell, 436 So.2d 374 (Fla. 5th DCA 1983), is misplaced. Although the majority in Campbell set aside the order of modification for lack of jurisdiction, it was also noted that "once jurisdiction is revested in the trial court, it may enter an order on the petition for modification retroactive to the date on which it was filed, if it is of the continued opinion that changed circumstances warrant that relief.” 436 So.2d at 377. The motion in Campbell was not dismissed.


author: THOMPSON, J.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Cephus E. PENN, Appellee/Cross-Appellant.
    No. 5D03-78.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.
    . Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    Tee Persad, Orlando, for Appel-lee/Cross-Appellant.
   THOMPSON, J.

The State of Florida appeals a judgment withholding adjudication. Because of errors raised by Penn on cross-appeal, we reverse and remand for a new trial.

Penn was convicted of resisting an officer without violence. At trial, police officer Gary Johndro testified that he stopped Penn because he saw Penris vehicle exit from behind a closed business in an area where burglaries had occurred in the past and because the vehicle swerved after exiting the business. Johndro testified that he asked Penn for his driver’s license and registration, but that instead of complying, Penn asked Johndro why he stopped him. Johndro testified that Penn was hostile and refused to give Johndro any information. Johndro informed Penn that he was required to provide the information and gave Penn the option of providing his name and birth date. Johndro testified that he gave Penn several opportunities to provide an identification card or his name, but that Penn became louder and more agitated.

Because Penn continued to refuse to comply with Johndro’s request, Johndro decided to arrest Penn. Johndro testified that Penn refused to exit the vehicle. Johndro opened the car door, but Penn, continuing to argue, would not remove his hands from the steering wheel. Johndro testified that at some point during his attempt to remove Penn from the vehicle, Penn knocked Johndro’s hand away and grasped the steering wheel again. When back-up arrived, Penris right foot was still in the vehicle and his left foot was on the ground, and Johndro was still attempting to remove Penn from the vehicle. Johndro testified that Officer Bowman helped him remove Penn from the vehicle and arrest him.

Filiz Varnam, Johndro’s girlfriend, testified that she was riding with Johndro the evening that he stopped Penn. Varnam heard Johndro ask Penn for his license and registration several times, but Penn refused to comply. After Varnam saw Penris car door open, she heard Johndro tell Penn that he was being placed under arrest. Varnam testified that at one point, the vehicle looked as if it were about to be driven away, but it stopped.

Penn testified that he did not swerve as he exited the business. Penn testified that Johndro kept asking for his driver’s license and registration, but Penn continued to ask why he had been stopped. Johndro, who seemed angry, said he was the one asking the questions, and that Penn could give Johndro his driver’s license and registration or go to jail. Penn testified that Johndro then walked away from Penn’s vehicle, called for back-up, and returned to the car with a flashlight. Once the backup arrived, Johndro opened the door and began grabbing him. Penn stated that his foot left the brake when Johndro began pulling him, and Johndro told Penn to put the car in park. Penn put the car in park and Johndro pulled him from the car. Penn stated that the other officer grabbed Penn from behind when Johndro pulled him out of the car.

The jury found Penn not guilty of battery on a law enforcement officer, but guilty of the lesser offense of resisting an officer without violence. The trial court withheld adjudication, waived costs, and imposed a fine of $50.

On appeal, the state argues that the trial court erred in failing to impose a period of probation in connection with withholding adjudication. We agree with the state’s contention. See Wiltzer v. State, 756 So.2d 1063 (Fla. 4th DCA 2000) (holding that pursuant to Rule 3.670, Florida Rules of Criminal Procedure, it is improper for a trial court to withhold adjudication but decline to order probation). However, we must reverse and remand for a new trial based on errors committed by the trial court.

First, we agree with Penn’s argument on cross-appeal that the trial court erred in denying his requested special jury instruction that “the Defendant has the legal right to resist an unlawful arrest without violence.” See Jones v. State, 584 So.2d 190 (Fla. 5th DCA 1991) (holding that the trial court erred by not instructing the jury that the defendant could resist an unlawful arrest without violence).

Additionally, we conclude that the trial court’s repeated comments on the consistency of Officer Johndro’s testimony to be error. Penn attempted to impeach Johndro’s testimony with asserted inconsistent statements. When the prosecutor objected, the trial court commented: “I’m not sure what the contradiction is here.” When defense counsel resumed his cross-examination, the prosecutor objected on the same grounds. The court stated, “Go ahead. We’ll see if maybe an inconsistency will creep in here.” Defense counsel resumed his cross-examination on this issue, and the prosecutor again objected. The judge then said, “I’ve not heard any significant deviation from what he said yesterday.” The trial court’s statements were made in the presence of the jury.

It is improper for a trial court to comment on a witness’s alleged inconsistent statements. See McCrae v. State, 549 So.2d 1122 (Fla. 3d DCA 1989). In McCrae, defense counsel sought to impeach a witness with an allegedly inconsistent statement, and in response, the trial judge stated, “I don’t believe it is inconsistent, and I don’t believe it is material to this issue, and I’m not going to let you get into it, it is not an inconsistent statement.” Id. at 1123. In reversing, the district court held:

Further, the referenced comment concerning the allegedly inconsistent statement constituted an improper comment upon the credibility of the prosecution’s sole witness. We repeat and reaffirm the firmly established rule in Florida that the trial judge should avoid making directly to or within the hearing of the jury, any remark which is capable of conveying directly or indirectly, expressly, inferentially, or by innuendo, any intimation as to what view he or she thinks of the case or as to what opinion the judge holds concerning the weight, character, or credibility of any evidence adduced.

Id. (citations omitted).

The additional points raised by Penn on cross-appeal are either not preserved for appellate review or are without merit. For the reasons set forth in this opinion, the judgment is reversed, and the case is remanded for a new trial.

REVERSED and REMANDED.

PALMER and MONACO, JJ., concur.

      . There was testimony that this was permissible under the police department’s policy.

      . We express no opinion on any impact Hiibel v. Sixth Judicial Dist. Court of Nevada, ■— U.S. -, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004), might have on this case.


author: PER CURIAM. SAWAYA, C.J.,

text:
    STATE of Florida, Appellant, v. Richard DUCHARME, Appellee.
    No. 5D03-3433.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

ON MOTION TO VACATE STAY

Richard Ducharme has filed a motion to vacate an automatic stay which was entered by the trial court pursuant to rule 9.310(b)(2), Florida Rules of Appellate Procedure. The stay was imposed upon an order entered by the trial court which dismissed the civil commitment petition which the State had filed against Duc-harme under the Jimmy Ryce Act, sections 394.910-394.931, Florida Statutes (2000). Concluding that the automatic stay provisions of rule 9.310(b)(2) are inapplicable to this case, we grant the motion. However, pursuant to our inherent authority to issue discretionary stays, we stay the effect of the trial court’s dismissal order to allow the State the opportunity to seek a discretionary stay in the trial court pursuant to Florida Rule of Appellate Procedure 9.310(a).

The State sought Ducharme’s civil commitment under the provision of Florida’s Jimmy Ryce Act. After conducting adversary hearings, the trial court found that probable cause existed to believe that Duc-harme should be detained under the Act. Thereafter, Ducharme filed a motion to dismiss the case on the basis that his continued detention was improper since his sentence had expired several days before the date the State filed its commitment petition. The trial court denied the dismissal motion concluding that, under the Jimmy Ryce Act, the trial court possessed jurisdiction over the case since Ducharme had been in state custody when the petition was filed, even though he had been “wrongly” in custody. Soon thereafter, the Florida Supreme Court held in State v. Atkinson, 831 So.2d 172 (Fla.2002), that the Jimmy Ryce Act applies only to persons in lawful custody. Ducharme then renewed his dismissal motion citing to Atkinson. Upon review, the trial court granted the motion and directed Duc-harme’s release. The State immediately filed its notice of appeal and invoked the stay provisions set forth in rule 9.310.

Ducharme challenges his continued detention arguing that the automatic stay provisions of rule 9.310(b) are not applicable to cases involving detention under the Jimmy Ryce Act. The State responds by arguing that the case of State v. Mitchell, 848 So.2d 1209 (Fla. 1st DCA 2003), supports its position that the automatic stay provisions of rule 9.310(b)(2) are applicable in this case. The State is correct that the majority in Mitchell held that the automatic stay provision of rule 9.310 applies to State appeals of orders dismissing commitment proceedings filed under the Jimmy Ryce Act. However, we find the reasoning of Judge Padovano’s dissent in Mitchell to be more persuasive than the position adopted by the majority. In that dissent, Judge Padovano concluded “that confinement under the Jimmy Ryce Act must rest on something more substantial than the effect of a mechanical rule that goes into effect by the unilateral action of the State.” Id. at 1212. We agree with Judge Padovano that rule 9.310(b)(2) was never intended to apply to matters involving involuntary civil commitments:

The original purpose of the rule was to enable the state to maintain the status quo while avoiding the unnecessary expense of providing a supersedeas bond. A litigant who obtains a money judgment against the state should have no fear that the judgment will be uncollectible if the state losés the appeal. The state will always be subject to the jurisdiction of the court and a bond is not required because the state is a solvent litigant. These considerations, which prompted the adoption of the automatic stay provision in rule 9.310(b)(2), are not even remotely applicable to an involuntary commitment proceeding.

Id. at 1213 (footnote omitted). Due to our disagreement with the majority opinion on this issue, we certify conflict with Mitchell. Also, we certify the following question to the Florida Supreme Court as being a matter of great public importance:

WHETHER THE AUTOMATIC STAY PROVISION SET FORTH IN RULE 9.310 OF THE FLORIDA RULES OF APPELLATE PROCEDURE APPLIES TO CIVIL COMMITMENT PROCEEDINGS INSTITUTED UNDER THE JIMMY RYCE ACT.

Motion GRANTED; Discretionary stay ENTERED; Conflict CERTIFIED; Question CERTIFIED.

PLEUS and PALMER, JJ., concur.

SAWAYA, C.J., concurs in part, dissents in part, with opinion.

SAWAYA, C.J.,

concurring in part, dissenting in part.

This case amply demonstrates why a stay pending review in the appellate court may be necessary in proceedings under the Jimmy Ryce Act [the Act], My review of this record leads me to conclude that there is a likelihood that the trial court erred in dismissing the commitment proceedings and that Ducharme is not under any legal constraints that will keep him in Florida to face commitment proceedings should this court reverse the trial court’s order. In my view, it is essential that a stay be entered in order to preserve the status quo until this court has the opportunity to finally resolve the issues in the main appeal directed to the propriety of the dismissal order. I agree with the majority that this court should stay the trial court’s order of dismissal that orders the release of Ducharme, and I further concur with the majority that the issue of whether the automatic stay provisions of rule 9.310(b), Florida Rules of Appellate Procedure, should apply to proceedings under the Act should be certified to the Florida Supreme Court as a matter of great public importance. However, I disagree that the stay should be temporary and that this case should be remanded to the trial court to decide whether a permanent stay should be entered pending the outcome of the main appeal. I will now explain why I have come to this conclusion.

Rule 9.310 governs stays in appellate proceedings, and under this rule it appears that there may be three avenues we may follow in deciding whether a stay of the order of dismissal is appropriate in the instant case: 1) grant a temporary stay and remand the case to the trial court to consider a discretionary stay of its order of dismissal pursuant to rule 9.310(a); 2) grant a permanent stay pending review pursuant to this court’s authority to issue stays of lower court orders under review; or 3) affirm the trial court’s application of the automatic stay provisions of rule 9.310(b) to Jimmy Ryce proceedings in accordance with State v. Mitchell, 848 So.2d 1209 (Fla. 1st DCA 2003).

I concede that granting a temporary stay and remanding this case to the trial court to consider whether to grant a permanent stay pending review of the issues in the main appeal may be appropriate. However, I do not consider it the best course for us to follow. In my view, based on the record I have reviewed, we should exercise our authority to grant a permanent stay until the main appeal is resolved, making remand to the trial court unnecessary. This will save time and judicial resources because the trial court will not have to resolve an issue we may properly decide in the instant proceedings and it may save judicial resources of this court in the future because we will not be required to review the trial court’s decision after remand in a subsequent appeal by the losing party.

This court and others have held that an appellate court has authority pursuant to rule 9.310 to issue a stay pending review to preserve the status quo until the issues raised in the main appeal are resolved. See Perez v. Perez, 769 So.2d 389, 397 (Fla. 3d DCA 1999), review denied, 763 So.2d 1044 (Fla.2000); Offerman v. Offerman, 643 So.2d 1184 (Fla. 5th DCA 1994). As the court noted in Perez:

This Court has authority to issue á stay under Rule 9.310®, Florida Rules of Appellate Procedure, for the purpose of preserving the status quo during an appellate proceeding. Once a stay is issued, the stay remains in effect until the appellate court mandate is issued. Factors which are considered by this Court in deciding whether to grant a stay include the moving party’s likelihood of success on the merits, and the likelihood of harm should a stay not be granted.

769 So.2d at 391 n. 4 (citations omitted). I have reviewed the record in the instant proceedings, and it is clear to me that there is a likelihood that the State will be successful in obtaining a decision from this court reversing the order of dismissal and that there is a likelihood of severe harm to the State in proceeding with the commitment proceedings if Ducharme is released and the order of dismissal that caused his release is subsequently reversed.

Commitment proceedings were instituted against Ducharme pursuant to section 394.9135, Florida Statutes (2000). Section 394.9135 applies when the release from total confinement of the person to be committed becomes “immediate for any reason.” § 394.9135(1), Fla. Stat. (2000) (emphasis added). In my view, a typical example of such a release would be the trial court’s acceptance of a plea from a defendant and the imposition of a sentence to credit for time served. The procedure established by section 394.9135 requires that in instances such as this, the person will be transferred to the Department of Children and Family Services for evaluation and a determination whether to file a petition. § 394.9135(1), Fla. Stat. (2000). The state will have 72 hours after transfer within which to assess the individual to determine whether he or she meets the criteria for a sexually violent predator. § 394.9135(2), Fla. Stat. (2000). The state will then have 48 hours after receipt of the assessment report to subsequently file the commitment petition. § 394.9135(3), Fla. Stat. (2000). If a petition is filed and the trial judge determines that there is probable cause to believe that the person is a sexually violent predator under the statutory definition, “the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part.” § 394.9135(3), Fla. Stat. (2000). I read this part of the statute to be mandatory. Moreover, the provisions of section 394.9135 are not jurisdictional, and noncompliance by the state does not prevent it from instituting proceedings under the Act. § 394.9135(4), Fla. Stat. (2000).

It appears to me that the State complied with the requirements of section 394.9135. When he entered his plea and was sentenced to a term of incarceration in the Department of Corrections with credit for time served, Ducharme was transferred to the Department of Children and Families and evaluated, and a petition was filed in accordance with section 394.9135. Moreover, Ducharme was afforded an adversarial probable cause hearing that resulted in a finding that he met the criteria of a sexually violent predator under the Act. Ducharme, therefore, is required to remain in a secure facility pursuant to section 394.9135(3) and may not be released. Accordingly, I conclude that Ducharme remains in lawful custody under section 394.9135 and that his due process constitutional rights have not been violated. Even if the statute was not complied with by the State, dismissal is inappropriate because the requirements of the statute are not jurisdictional. I, therefore, conclude that there is a very good likelihood that the State will prevail in the instant appeal. I will next address the likelihood of harm to the State if a stay is not granted pending the outcome of the main appeal.

The stated purpose of the Act is to create a civil commitment procedure for “a small but extremely dangerous number of sexually violent predators [that] exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment under the Baker Act.” § 394.910, Fla. Stat. (2002). The Legislature determined that “sexually violent predators have antisocial personality features which are unamenable to existing mental illness treatment modalities, and those features render them likely to engage in criminal, sexually violent behavior.” Id. Moreover, the Legislature found that such a commitment procedure was necessary because the likelihood that a sexually violent predator will repeat acts of sexual violence is high. Id. Hence “[t]he purpose of the Act is to protect society from ‘repeat acts of predatory sexual violence’ and to provide ‘long-term care and treatment of sexually violent predators.’ ” Sirmons v. Regier, 846 So.2d 1151, 1153 (Fla. 2d DCA 2003) (quoting § 394.910, Fla. Stat. (2002)).

The purpose of a stay is to allow maintenance of the status quo until this court decides whether the trial court properly dismissed the underlying action. In my view, application of a stay pending review by this court fosters the stated purpose of the Act, especially in light of the fact that the trial court has found that probable cause exists to classify Ducharme as a violent sexual predator.

It is important to remember that if he is released before his commitment trial, Duc-harme is under no legal constraint to remain in the state of Florida. His sentence has expired, and he is not on probation or any other form of supervision. Given the fact that proceedings under the Act are civil, there is no legal requirement' that Ducharme actually attend his commitment trial. Equally important, I am not aware of any law that would allow Ducharme’s extradition back to this state to face a civil action if he does in fact leave Florida. Quite frankly, if Ducharme did voluntarily stay in Florida to await the outcome of these proceedings, especially in light of the trial court’s finding of probable cause that he meets the criteria for a sexually violent predator, one could reasonably wonder whether he is in need of even more extensive mental health treatment than would otherwise be necessary. It is therefore clear that the lack of any legal authority to force Ducharme to attend his commitment trial if released prior thereto, or to have him extradited if he leaves Florida, provide ample reasons to conclude that there is a very good likelihood of harm to the State in the event a permanent stay pending the outcome of the main appeal is not granted. I therefore conclude that this court should issue a permanent stay order in the instant case until the main issues in this appeal are resolved and that remand to the trial court to decide this issue is not necessary.

As to the third approach, the majority adopts the- dissent in State v. Mitchell, 848 So.2d 1209 (Fla. 1st DCA 2003), holding that application of the automatic stay provisions of Florida Rule of Appellate Procedure 9.310(b)(2) violates Ducharme’s constitutional due process rights. The majority in Mitchell, on the other hand, held that the rule does apply to appeals instituted by the state to review orders rendered in proceedings under the Apt-The majority decision in Mitchell is premised on the fact that proceedings under the Act are civil actions rather than criminal proceedings and the rule by its plain language therefore applies. Of the three approaches I have mentioned under rule 9.310, I agree with the majority that the majority decision in Mitchell is not the approach that should be adopted by this court. Accordingly, we have expressed conflict with Mitchell and certified a question of great public importance regarding the applicability of the automatic stay provisions of rule 9.310 to proceedings under the Act. Therefore, I will discuss some factors not mentioned in the majority decision in Mitchell that militate in favor of application of the automatic stay provisions of the rule to proceedings under the Act in the hopes that the discussion may be of some benefit to the Florida Supreme Court should it decide to resolve the issue.

The dissent in Mitchell argues that the automatic stay provisions of the rule were never intended to apply to proceedings under the Act because the rule was adopted long before the Act was enacted. But simply because the Act may not have been envisioned by the Florida Supreme Court at the time it adopted the rule does not necessarily mean that the automatic stay provisions of the rule should not be applied to proceedings under the Act. Rather, it is necessary to look at the purpose of the rule — to maintain the status quo pending the outcome of the main appeal — and the stated purpose of the Act which is to protect society from those found to be dangerous sexual violent predators and to provide those individuals the necessary treatment for their disorder. Certainly it could be argued, especially in cases where a finding of probable cause to believe that a person is a violent sexual offender under the Act has been made by a trial court, that maintaining the status quo of leaving the individual in a treatment facility where he or she will continue to receive treatment pending the outcome of the appeal comports with the purpose of the rule and the stated goals of the Act. Moreover, it could be legitimately argued that the rule is applicable according to its clear and unambiguous provisions.

The Florida Supreme Court declared some time ago that it “is bound by the rules prescribed by it as much so as attorneys, and it must construe them as statutes are constructed.” Syndicate Props, v. Hotel Floridian Co., 94 Fla. 899, 114 So. 441, 443 (1927) (citations omitted). Based on this pronouncement, decisions of more recent vintage apply the rules of statutory construction to the rules of court promulgated by the Florida Supreme Court. See Brown v. State, 715 So.2d 241, 243 (Fla.1998); Castillo v. Vlaminck de Castillo, 771 So.2d 609, 610 (Fla. 3d DCA 2000) (“Court rules are construed under the same principles of construction that apply to statutes.”) (citations omitted); Rowe v. State, 394 So.2d 1059 (Fla. 1st DCA 1981).

The decisions are legion in which the Florida courts have applied the fundamental rule of construction that provides that a statute or rule must be enforced according to its plain and unambiguous language, even when the court is convinced that the Legislature may have intended something different. I need refer to no others than some of the more recent decisions emanating from the Florida Supreme Court. For example, in Florida Department of Revenue v. Florida Municipal Power Agency, 789 So.2d 320 (Fla.2001), the court stated:

If the language of the statute is clear and unambiguous, courts enforce the law according to its terms and there is no need to resort to rules of statutory construction. “Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992) (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694-95 (1918)).

Id. at 323 (footnote omitted); see also State v. Ruiz, 863 So.2d 1205, 1209 (Fla.2003). In State v. Jett, 626 So.2d 691 (Fla.1993), the court explained:

It is a settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language. While the dissent’s view below has much to commend it, we find that the decision whether or not to engraft that view into the Florida Statutes is for the legislature. We trust that if the legislature did not intend the result mandated by the statute’s plain language, the legislature itself will amend the statute at the next opportunity.

Id. at 693; see also M.W. v. Davis, 756 So.2d 90, 101 (Fla.2000); McLaughlin v. State, 721 So.2d 1170 (Fla.1998); Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (observing that “ ‘[wjhen the language of. the statute is clear and unambiguous ,and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.’ ”) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)); Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318 (Fla. 1st DCA 2002).

The argument follows that the trial and district courts must therefore apply the rule according to its plain and unambiguous language and not as they would like for it to apply or think that it ought to apply. The rule simply, plainly and unambiguously states that “[t]he timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the state ... seeks review. .. .’’ Fla. R.App. P. 9.310(b)(2). Other than criminal cases, there are no other exceptions. As the majority noted in Mitchell, proceedings under the Act are civil rather than criminal. Failure to apply the rule pursuant to its clear and unambiguous terms may violate the well-accepted rule of construction discussed above. Therefore, the argument may be made that trial and appellate courts should apply the rule according to its unambiguous language and leave it to the Florida Supreme Court to change it if it intends the rule to exclude proceedings under the Act.

I also note that while the rule provides for an automatic stay, the rule also provides that “[o]n motion, the lower tribunal or the court may extend a stay, impose any lawful conditions, or vac.ate the stay.” Fla. R.App. P. 9.130(b)(2). Hence, if the stay is automatically applied, the person subject to the stay may file a motion in the trial court or this court to vacate it, thereby rendering the continued application of the stay a matter of discretion.

Moreover, the concept of the automatic stay pending review is not foreign to the Act. I note that automatic stay provisions are contained in section 394.9215, Florida Statutes (2002), which provides that individuals held in a secure facility may file a petition for writ of habeas corpus alleging that the conditions of confinement violate their statutory or constitutional rights and the trial court may release the individual if it finds that no other relief will remedy the violations. The state 'has the right to appeal such an order and the statute specifically provides for an automatic stay pending review of the order by the appellate court. Hence, an individual whose statutory or constitutional rights are found by a trial court to be violated must nevertheless remain in that same secure facility because the order of release is stayed pending review by the appellate court. It therefore could legitimately be argued that it is appropriate to stay the order of dismissal rendered in a commitment proceeding properly brought under section 394.9135, especially when a finding of probable cause has been made by the trial court that the person meets the criteria of a sexually violent predator.

To conclude, while there are compelling arguments that may be made in favor of application of the automatic stay provisions of the rule to proceedings under the Act, especially where a finding of probable cause has been made by the trial court that the individual qualifies as a violent sexual predator, I do not believe this approach should be adopted by this court. Of the other two approaches I have discussed that are appropriate for this court to adopt, in the instant case, I believe that we should order a permanent stay pursuant to our authority to do so after considering the likelihood of the State’s success in the main appeal and the harm that may be caused absent a stay. I believe this will save time and judicial resources.

In other cases, the trial court, upon proper motion, will have to initially decide whether a stay is appropriate, subject to review by the appellate courts. Given the abuse of discretion standard of review appellate courts will have to apply to review stay orders, it is important that trial courts be very careful and vigilant in deciding whether a stay should be granted in proceeding under the Act. If the motion for stay is not made in the trial court, a motion may be made in the appellate court, which may decide to either grant or deny a stay after application of the weighing process I have applied in the instant case. I believe that this approach, when compared to the approach adopted by the court in Mitchell, better balances the due process rights of individuals subject to commitment proceedings under the Act with the rights of the state to commit sexually violent predators in order to protect society from their dangerous conduct and provide them the treatment they so desperately need for their disorder. While the balance we strike may not be perfect, it seems to be the best we can do with the rules of procedure we must apply to guide us in our determination.

      . Rule 9.310 provides in relevant part:
      Rule 9.310 Stay Pending Review

      [b](2) Public Bodies; Public officers.

      The timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the State, any public officer in an official capacity, board, commission or other public body seeks review. ...
      Fla. R.App. P. 9.310.

      . See Gilliam v. State, 268 So.2d 379 (Fla.1972).

      . Rule 9.310(a) authorizes the trial court, in its discretion, to grant a stay of its order pending appeal "conditioned on the posting of a good and sufficient bond, other conditions, or both.” On remand, the burden will then be where it belongs, on the State, as the party bringing the appeal, to establish that grounds exist warranting the imposition of a stay. If guch a motion is filed by the State, within 10 days, our discretionary stay shall remain in effect until the trial court rules on such motion.

      .The trial court dismissed the State's petition because the trial court found that after Duc-harme entered his plea and was sentenced to credit for time served, he was no longer in lawful custody at the time the commitment proceedings were instituted and, pursuant to the decision in State v. Atkinson, 831 So.2d 172 (Fla.2002), the trial court did not have jurisdiction to proceed with the commitment proceedings. Any reliance on Atkinson to support the conclusion that Ducharme was illegally detained after his plea and sentence is misplaced. See Tanguay v. State, 880 So.2d 533 (Fla. 2004). In Atkinson, the defendant was incarcerated when the Act went into effect on January 1, 1999, and the court held that the Act applied to all inmates in lawful custody on that date who fit within the definitions of the statute. Because the defendant had been sentenced under the 1995 sentencing guidelines, which the court in Heggs v. State, 759 So.2d 620 (Fla.2000), declared unconstitutional, he was resentenced on May 25, 2000, to 21 months, nunc pro tunc. The effect of the resentencing order was that the defendant’s prison term had already expired by June 25, 1998, which was a date prior to the effective date of the Act. Two weeks after the resentencing, the state filed a petition for the defendant's commitment under the Act. The Florida Supreme Court held that "the Ryce Act is limited to persons who were in lawful custody on its effective date." 831 So.2d at 174. Therefore, because of the re-sentencing, which caused the defendant's sentence to expire prior to the effective date of the Act, the court held that the defendant should be immediately released. Ducharme argues that the decision in Atkinson should be extended to apply to him. But unlike the defendant in Atkinson, Ducharme was in lawful custody on or after January 1, 1999, which was the effective date of the Act. See Tanguay.

      . The status quo in the instant case is that Ducharme remain in civil commitment and receive treatment pending this appeal.

      . The finding that Ducharme meets the criteria for a sexually violent predator is based on his rather extensive criminal history involving crimes of deviant sexual behavior and violence and the results of psychological evaluations. The record reveals that in 1976, Duc-harme was convicted in Michigan of gross indecency and third-degree penetration of a fifteen-year-old male victim. A few months later, Ducharme was. convicted of burglary and assault with intent to commit murder for shooting his boyfriend's suspected lover in the head. In 1985, Ducharme was convicted of aggravated assault arising from forced sexual activity with another male victim. Ducharme was subsequently convicted, again in Michigan, for criminal sexual conduct and remained incarcerated on this charge from. October 27, 1987, through April 24, 2000. After release from prison in 2000, Ducharme was brought back to Florida where he was charged with violating his probation stemming from convictions for two counts of aggravated assault involving forced sexual activity with an unwilling victim. In my view, this case exemplifies why the Legislature enacted section 394.9135(3), Florida Statutes, which provides that once probable cause has been established that a person is a sexually violent predator, he or she must remain in a secure facility and shall not be released.

      . The authority to extradite fugitives from justice emanates from Article IV, Section 2, United States Constitution, and only applies to those charged with "treason, felony or other crime.” § 941.02, Fla. Stat. (2002); see also Josey v. Galloway, 482 So.2d 376 (Fla. 1st DCA 1985).

      . As stated in Anglin v. Mayo, 88 So.2d 918 (Fla.1956):
      [The writ] is as old as the common law itself and is an integral part of our own democratic process. The procedure for the granting of this particular writ is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint.

        Id. at 919-20.


author: PLEUS, J.

text:
    S.M., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3011.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.

      James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

S.M. appeals a restitution order imposed against her. Because the State failed to present evidence that S.M. caused the damages sought, we reverse the restitution order.

S.M. was arrested for grand theft auto after she and two co-defendants were stopped in possession of a stolen vehicle. The State filed a delinquency petition charging S.M. with trespass in a conveyance to which S.M. pled nolo contendere. The car owner filed a restitution request seeking $1,500 in restitution for 100 compact discs and $1,147.71 for damage to the car and towing charges. Attached to the restitution request was an estimate of the value of the compact discs as well as receipts and estimates for the damage to the vehicle and towing charges.

At the disposition hearing, defense counsel objected to restitution and argued that there was no evidence to show that S.M. caused any of the damage involved. The lower court ordered restitution and reserved jurisdiction as to the amount, stating, “It’s my understanding that in a juvenile system there’s not a need for a direct cause-and-effect relationship for a restitution.”

At the restitution hearing, defense counsel again objected to restitution and to the “bills” in the amount of $2,647.71 on the ground that S.M. was charged with and pled to trespass, not theft, and that there was no evidence that S.M. caused damage to the vehicle or stole the CDs. The State did not call any witnesses at the hearing. Instead, the State simply stated, “We have a restitution request form here for $2,647.71, along with copies of the receipts for damages for the upholstery and the interior. At this time, Your Honor, the State would ask that this Court order restitution for the victims.” Defense counsel reiterated that there was no evidence upon which to order restitution, but over defense objection, the Court entered restitution in the amount of $1,897.71. This amount represented the sums requested for damage to the vehicle and towing charges as well as half of the amount requested for the CDs.

On appeal, S.M. correctly argues that the lower court abused its discretion in ordering restitution without any evidence that S.M. caused the damages sought. Section 985.231(l)(a)6., Florida Statutes (2002), gives the court authority to order restitution “for any damage or loss caused by the child’s offense.... ” Interpreting this statute, the court in J.R. v. State, 857 So.2d 983, 984 (Fla. 4th DCA 2003), stated that the general rule is that a juvenile may be ordered to pay restitution “for damages that bear a significant relationship to the convicted offense,” quoting D.M. v. State, 755 So.2d 752, 753 (Fla. 4th DCA 2000). In J.R., the defendant pled no contest to battery. At the sentencing hearing, the victim requested restitution to cover the cost of sneakers lost during or subsequent to the incident. Defense counsel objected on the grounds that the sneakers were not connected to the battery. The trial court ordered restitution for the sneakers. The appellate court reversed, stating:

The State has failed to present any evidence of a relationship between the appellant’s battery upon the victim and the victim’s loss of his sneakers. Although there may have been evidence, no evidence was presented and the trial judge ordered restitution without competent substantial evidence to support the award.... Section 775.089 contemplates an evidentiary hearing when there is a dispute as to restitution. Appellant objected below to the imposition of restitution and he was entitled to a hearing where the State would have the burden of proving a significant relationship between the offense and the loss. Accordingly, the order of restitution is hereby set aside and the cause remanded for a hearing on the restitution issue.

Id. at 985.

Similarly, in the instant case, S.M. was charged with trespass in a conveyance. At the restitution hearing, the State failed to present any evidence showing that S.M. was responsible for damaging the vehicle or stealing the CDs. Accordingly, the trial court abused its discretion in ordering restitution for these items without competent substantial evidence of a significant relationship between the offense and the loss. We reverse the restitution order and remand for a new restitution hearing. J.R.

REVERSED; REMANDED.

THOMPSON and MONACO, J.J., concur.


author: PALMER, J.

text:
    Dale WHITAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1907.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Dale Whitaker (defendant) appeals his judgment and sentence which were entered by the trial court after he plead nolo contendere to the charge of lewd and lascivious battery. Concluding that the trial court erred in allowing the defendant to withdraw his plea in only one of two cases which were the subject of one negotiated plea agreement, we reverse.

The State filed two separate informa-tions against the defendant alleging that he had committed the crimes of lewd and lascivious battery (and related counts) and sexual battery (and related counts) against two different minor victims. The parties entered into a plea agreement wherein the defendant agreed to plead no contest to one count in each case and, in return, the State agreed to nolle prosse the remaining charges and recommend concurrent sentences of five years imprisonment followed by ten years’ sex offender probation. The trial court accepted the plea and, with the agreement of the prosecutor, gave the defendant a Quarterman release pending sentencing.

Prior to sentencing, the defendant filed a motion to withdraw his plea alleging newly discovered evidence. The alleged newly discovered evidence was testimony from a witness who claimed to have had a conversation with the victim in one of the cases wherein she stated the defendant had not committed any crime against her.

After conducting an evidentiary hearing, the trial court entered an order granting the defendant’s motion to withdraw his plea in the case involving the victim who was the subject of the newly discovered evidence, but denied the motion to withdraw the plea which was entered in the other case on the basis that none of the purported newly discovered evidence related to the charges in that case. The defendant then filed a second motion to withdraw his plea, arguing that the trial court’s ruling was improper because the court failed to allow the defendant to withdraw his plea in both cases. The trial court denied the motion and then entered judgment on the plea which was entered in the second case and sentenced the defendant to a term of five years’ imprisonment.

The defendant appeals, arguing that the trial court reversibly erred in denying his request to withdraw both of his pleas since the pleas entered in both cases constituted “one negotiated settlement of his charges.” We agree.

In denying the defendant’s request to withdraw the plea entered in the second case, the trial court erroneously relied on the decision in Livolsi v. State, 451 So.2d 542 (Fla. 2d DCA 1984). While the court in Livolsi permitted the defendant to withdraw one of two pleas entered pursuant to a negotiated plea agreement in so doing the court only addressed the narrow issue of whether the defendant’s plea to one count was voluntarily and knowingly entered. The court did not address the broader issue (which is presented here) as to whether the trial court possessed the legal authority to essentially separate out portions of a defendant’s negotiated plea deal. We conclude that it did not.

In negotiating a plea deal, the parties (both the State and the defendant) generally intend to adjudicate together, essentially as a package, all the cases which are pending against the defendant. This intention is generally referred to by the courts as constituting the “benefit .of the bargain”. See generally Guynn v. State, 861 So.2d 449 (Fla. 1st DCA 2003). When a defendant successfully challenges and is permitted to withdraw a plea of nolo con-tendere or guilty which was entered as a result of a plea bargain, the negotiated plea bargain is “abrogated”. See Williams v. State, 762 So.2d 990 (Fla. 4th DCA 2000)(explaining that when a plea of guilty or nolo contendere is withdrawn and accepted by the court, it is as if the plea had never been entered ab initio); Bell v. State, 262 So.2d 244 (Fla. 4th DCA 1972)(holding that when defendant withdrew his plea of guilty and it was accepted by the court, it was as if a plea had never been entered ab initio).

Here, the record demonstrates that the parties entered into a negotiated plea agreement wherein the defendant agreed to plead no contest to one count in each case, and in return the State agreed to nolle prosse the remaining charges in each case and to recommend concurrent sentences of five years’ imprisonment followed by ten years’ sex offender probation. Applying the law cited above, the trial court erred in granting only a partial withdrawal of said plea.

Accordingly, the defendant’s judgments and sentences are vacated and this matter is remanded with instructions to the trial court to permit the defendant to withdraw his plea.

REVERSED and REMANDED.

PLEUS and ORFINGER, JJ„ concur.

      . See Quarterman v. State, 527 So.2d 1380 (Fla.1988).


text:
    Larry SLADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3266.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant, Larry Slade, appeals his judgment and sentence for possession of cocaine based upon his plea of nolo conten-dere. Mr. Slade, who reserved the right to appeal on the issue, argues that the trial court erred when it denied his motion to suppress the crack cocaine found inside of a cigar tube that he was carrying at the time that he was detained by a law enforcement officer. We conclude that Mr. Slade’s argument is well taken.

This case is almost identical to the facts underpinning our decision in R.R. v. State, 715 So.2d 1062 (Fla. 5th DCA 1998). We conclude, therefore, that the search of Mr. Slade should have been suppressed. Accordingly, on the basis of R.R., we reverse.

REVERSED and REMANDED.

THOMPSON, PLEUS, and MONACO, JJ., concur.


text:
    Eddie E. NEWINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3602.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.
    James B. Gibson, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Eddie E. Newingham appeals his designation as a sexual predator based solely upon his criminal conviction pursuant to section 775.21(4)(a)(l)(a), Florida Statutes. Newingham contends that the statute is unconstitutional because it violates the right to procedural due process. We affirm because we have held the statute constitutional. Metaxotos v. State, 876 So.2d 1261 (Fla. 4th DCA July 7, 2004); Johnson v. State, 875 So.2d 1281 (Fla. 5th DCA July 2, 2004); Martin v. State, 864 So.2d 589 (Fla. 5th DCA 2004); Miller v. State, 861 So.2d 1283 (Fla. 5th DCA 2004). As we have done previously, we certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.


author: GRIFFIN, J.

text:
    SEMINOLE COUNTY, Florida, Appellant, v. Pauline KOZIARA and Kathleen Derienzo, Appellees.
    No. 5D03-3959.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.

      Frederick H. Nelson, American Liberties Institute, Orlando, for Appellant.
    Steven G. Mason of Steven G. Mason, P.A., Orlando, for Appellees.
   GRIFFIN, J.

Seminole County appeals a final order denying it attorney’s fees and costs after its successful defense of Appellees’ constitutional challenge to an anti-nudity ordinance under 42 U.S.C. § 1983. Seminole County contends that the trial court erred in denying its motion because Appellees’ suit was frivolous. We affirm.

Seminole County sought attorney’s fees under either 42 U.S.C. section 1988 or section 57.105, Florida Statutes. Either statute requires a showing that the plaintiffs claim was frivolous, unsupported by material facts, or unsupported by the application of law to the material facts. See Torres v. City of Orlando, 264 F.Supp.2d 1046, 1049 (M.D.Fla.2003) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421-22, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)); § 57.105, Fla. Stat.; Read v. Taylor, 832 So.2d 219, 222 (Fla. 4th DCA 2002). In this case, the trial court found that Appellees’ claims did not meet the threshold, and we find no error.

Seminole County additionally contends that it was entitled to taxation of costs as the prevailing party below under either 42 U.S.C. section 1988 or section 57.041, Florida Statutes. The trial court apparently never entered a ruling on Seminole County’s Motion for Taxation of Costs, which was filed separately from the Motion for Attorney’s Fees and Costs denied by the trial court, so we remand for further proceedings on this issue. Although the trial court has determined in its decision on the motion for attorney’s fees and costs that Seminole County is not entitled to costs under the federal statute, the County is entitled to recover at least some costs under the state statute because section 57.041(1) “mandates that a party recovering a judgment is entitled, as a matter of right, to recover lawful court costs.” Tacher v. Mathews, 845 So.2d 832, 334 (Fla. 3d DCA 2003); Oriental Imports, Inc. v. Alilin, 559 So.2d 442, 443 (Fla. 5th DCA 1990). However, Seminole County may only recover costs pursuant to the Statewide Uniform Guidelines FOR Taxation of Costs in Civil Actions.

AFFIRMED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

THOMPSON and ORFINGER, JJ., concur.

      . Seminole County was represented in this case by an attorney with the American Liberties Institute, a non-profit organization which agreed to represent the County pro bono.

      . We note that at the hearing, the trial court indicated that it believed Seminole County's motion for taxation of costs did not "pass muster” because it did not contain an attached affidavit or supporting documentation; instead, the motion only contained an itemized list of costs expended. However, nothing in section 57.041, Florida Statutes or Florida Rule of Civil Procedure 1.525 requires supporting affidavits. See Silver Springs Properties, L.L.C. v. Era Murray Realties, Inc., 874 So.2d 712, 714 (Fla. 4th DCA 2004). If (as there almost never is) there is a genuine dispute over an identified item of taxable costs, the court should conduct a hearing to resolve the dispute.


text:
    Curtis JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1338.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.

      Curtis James, Bonifay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee,' and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Defendant, Curtis James, appeals the summary denial of his rule 3.850 motion. We affirm the denial of his motion, except as to ground five.

Defendant was tried and convicted of fleeing or attempting to elude a law enforcement officer with fights and sirens and with wanton disregard, a second degree felony. In ground five of his postcon-viction motion, defendant argues that his trial counsel was ineffective for failing to consult with defendant regarding the jury instructions for lesser included offenses and for failing to request an instruction for the lesser included offense of fleeing or attempting to elude an officer with fights and sirens, but without wanton disregard, a third degree felony.

The trial court denied this ground, pointing out that an instruction was given for the lesser offense of misdemeanor fleeing, but the jury nonetheless convicted defendant of the charged offense. The court concluded that there was no reasonable probability that the jury would have declined to follow the law and would have exercised its jury pardon power, and therefore prejudice was not established.

The trial court relied on Sanders v. State, 847 So.2d 504 (Fla. 1st DCA 2003), which held that a claim that counsel was ineffective for not requesting a jury instruction for a one-step-removed lesser included offense could not satisfy the requirement to show prejudice. However, in Vickery v. State, 869 So.2d 623 (Fla. 5th DCA 2004), this Court held that Sanders conflicts with this Court’s decisions holding that the failure of counsel to request a lesser included jury instruction states a colorable claim of ineffective assistance.

Although the State argues that counsel’s decision not to request the lesser included instruction was a strategic choice which should not be second guessed, such a determination should generally only be made after an evidentiary hearing. See State v. Williams, 797 So.2d 1235 (Fla.2001); Morrison v. State, 860 So.2d 458 (Fla. 1st DCA 2003). Therefore, we reverse the trial court’s order as to this ground only and remand for further consideration.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

PALMER and MONACO, JJ., concur.


author: ORFINGER, J.

text:
    Edward M. HOLLINS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-1462.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.

      Edward M. Hollins, East Palatka, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   ORFINGER, J.

Edward M. Hollins petitions for a belated appeal of a restitution order entered against him while his judgment and sentence was on direct appeal. In its response, the State properly concedes that the trial court was without jurisdiction to enter the restitution order because of the pending appeal. See Queen v. State, 832 So.2d 956, 958 (Fla. 5th DCA 2002) (citing Marro v. State, 803 So.2d 906 (Fla. 4th DCA 2002); Kern v. State, 726 So.2d 353 (Fla. 5th DCA 1999)).

Restitution is a mandated part of sentencing and must be imposed at the time of sentencing or within sixty days thereafter. State v. Sanderson, 625 So.2d 471, 473 (Fla.1993). If the court orders restitution at sentencing, or within sixty days thereafter, the court has the authority to reserve jurisdiction to determine the amount of restitution beyond the sixty-day period. State v. Hiscox, 677 So.2d 862 (Fla. 2d DCA 1996). In the instant case, while the court properly reserved jurisdiction at sentencing to impose restitution, the trial court was divested of jurisdiction to do so while Hollins’s direct appeal was pending. As a result, the restitution order entered against Hollins on July 8, 2003, is a nullity. Consequently, Hollins has no need for a belated appeal.

PETITION FOR BELATED APPEAL DENIED.

SHARP, W., J., concurs.

PETERSON, J., concurs with result only.


text:
    Trizell E. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2138.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.
    Trizell E. Johnson, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Trizell E. Johnson appeals the summary denial of his Rule 3.800(a) motion for credit for time served. We reverse. .

Johnson alleged that in Volusia County Circuit Court Case Nos. 98-31078 and 98-31079, he was sentenced as a youthful offender to a total of four years incarceration followed by two years probation. On 9 January 2003, Johnson admitted violating his probation, and on 3 February 2003, Johnson was sentenced to 22 months incarceration, with credit for 150 days served in the Department of Corrections (“DOC”). In his 3.800(a) motion, Johnson alleged that the trial court failed to direct the DOC to calculate his time served in prison prior to the revocation of probation. The trial court found Johnson’s motion to be facially insufficient because he did not allege that the error was apparent on the face of the record.

Attached to Johnson’s motion was a partial copy of his written sentence in Case No. 98-31079, which shows that the trial court did not check the box instructing the DOC to compute and apply credit for time previously served in state prison. See § 921.0017, Fla. Stat. (2003). Therefore, the error is apparent on the face of the record, and the trial court should have corrected the sentence. Although Johnson did not allege that the error was apparent on the face of the record, the attached written portion of his sentence showed he did not receive prison credit from the trial court. See Scott v. State, 872 So.2d 1011 (Fla. 5th DCA 2004) (defendant was entitled to prison credit following revocation of his probation, and sentencing court erred by not authorizing DOC to compute and apply credit for time served in state prison).

The order denying relief is REVERSED, and the case REMANDED to the trial court for the correction of defendant’s sentence.

PETERSON and GRIFFIN, JJ., concur.

      . Cf. Fritznerv. State, 864 So.2d 574 (Fla. 5th DCA 2004); McKowen v. State, 816 So.2d 1254 (Fla. 5th DCA 2002).