text:
    James Robert REDDING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1084.
    District Court of Appeal of Florida, Second District.
    June 27, 2003.
   STRINGER, Judge.

James Robert Redding, Jr. challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Redding sought credit for time served while being held in a Texas jail on a warrant issued in this case. We reverse because the trial court did not attach records or set forth any grounds supporting the denial of credit.

In the motion for correction of sentence, Redding alleged that he had been arrested on October 15, 2001, in Hidalgo County, Texas, on a fugitive warrant issued in Collier County, Florida, for violation of probation. Redding claimed that he was held in Texas solely on the Florida warrant. In his motion, Redding requested jail time credit from October 15, 2001, until December 7, 2001.

The trial court, in its order denying relief, cited McRae v. State, 820 So.2d 1048 (Fla. 2d DCA 2002), asserting that the awarding of credit for time served out of state is within the sound discretion of the trial court. This is correct. However, McRae also held that the exercise of this discretion is not unbridled; when the trial court denies credit, the trial court must attach documentation or state the reasons for denying the credit. Id. at 1049. Because the trial court gave no indication as to any reason for the denial of credit and did not attach to the order any records supporting the denial, we reverse. On remand, the trial court should attach to its order pertinent documents or state in the order its reasons supporting the denial of credit. Otherwise, an appropriate amount of credit shall be determined and awarded. See Heuton v. State, 790 So.2d 1204 (Fla. 2d DCA 2001).

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ„ concur.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Kenneth Edward DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-726.
    District Court of Appeal of Florida, Second District.
    June 27, 2003.
   DAVIS, Judge.

Kenneth Edward Davis appeals the summary denial of his motion for postcon-viction relief. In his motion, Davis alleged three instances of ineffective assistance of counsel. We affirm the trial court’s denial of relief on all three claims; however, we write to clarify one issue.

Davis was convicted at jury trial of attempted robbery with a firearm, false imprisonment, and aggravated battery with a firearm. He argues that his trial counsel was ineffective for not objecting to the trial court’s failure to administer the oath to the jury venire requiring them to give truthful answers during the voir dire proceedings.

See Fla. R.Crim. P. 3.300(a). He cites Fernandez v. State, 814 So.2d 459 (Fla. 4th DCA 2001), as support. Fernandez concluded that such an allegation is facially sufficient if the trial transcript shows that the oath was not administered at trial and is inconclusive as to whether the oath was given prior to the prospective jurors being brought to the courtroom for trial. In Fernandez, the court remanded the issue to the trial court for an evidentiary hearing to determine whether the oath was in fact administered.

However, the First District took a different approach in Lott v. State, 826 So.2d 457 (Fla. 1st DCA 2002). Lott also claimed that his attorney was ineffective because he failed to object when the trial judge did not administer the required oath. However, in affirming the denial of relief, Judge Padovano concluded that since Lott had failed to allege that the oath was never given, he failed to state a facially sufficient claim for postconviction relief. We agree with Judge Padovano’s reasoning.

In order to demonstrate ineffective assistance of counsel, the movant must establish that counsel’s performance was deficient and that the deficiency so prejudiced the movant that he or she was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, Davis has failed to state a facially sufficient claim on each of the prongs.

Previously, this court has recognized that in many trial courts the preliminary oath is administered in the jury assembly room or at some other location when all of the prospective jurors for the several trials to be held in the courthouse on that day are assembled. See Pena v. State, 829 So.2d 289 (Fla. 2d DCA 2002); Gonsalves v. State, 830 So.2d 265 (Fla. 2d DCA 2002). As such, we agree with Judge Padovano’s conclusion in Lott:

It may well be that the defendant’s counsel said nothing about the oath before the questioning on voir dire in the courtroom, because she knew that it had been given already. The defendant has failed to account for this entirely innocent explanation of his lawyer’s conduct. Consequently, he has not made a facially sufficient claim that her performance was deficient.

Lott, 826 So.2d at 458-59.

Thus, Davis’ failure here to allege that the oath was never administered rendered his motion facially insufficient as to the deficient performance prong of Strickland.

Furthermore, to state a facially sufficient claim, Davis must also allege that the attorney’s omission resulted in some harm. That is, he must allege that as a result of the attorney’s silence, the oath was not given and that an unsworn juror provided false-information that would have made a difference in the trial. He makes no such allegation, and accordingly, has failed to state a facially sufficient claim as to the prejudice prong of the Strickland test.

We acknowledge that our reasoning as to the sufficiency of the allegation as to the deficient performance prong appears to be in conflict with Fernandez. Accordingly, we certify conflict with Fernandez as to this issue.

Affirmed, conflict certified.

FULMER and KELLY, JJ., concur.


author: PER CURIAM.

text:
    Lisa Ann FRANKS, Appellant, v. Robert Earl FRANKS, Appellee.
    No. 5D02-3937.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2003.
    Hans Charles Feige, Palm Coast, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See, e.g., Baum v. Baum, 831 So.2d 791 (Fla. 5th DCA 2002).

GRIFFIN, ORFINGER and MONACO, JJ., concur.


text:
    Jerry HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3819.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2003.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

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

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


text:
    James MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3745.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Terry v. State, 777 So.2d 1093 (Fla. 5th DCA 2001).

GRIFFIN, MONACO and TORPY, JJ, concur.


text:
    T.M., A CHILD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3362, 5D02-3424.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2003.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

SHARP, W„ ORFINGER and TORPY, JJ, concur.


text:
    Kenneth SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2987.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    STATE of Florida, Appellant, v. Barry Keith BREWER, Jr., Appellee.
    No. 5D02-2273.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002); B.H. v. State, 505 So.2d 14 (Fla. 3d DCA 1987).

SHARP, W„ PETERSON and PALMER, JJ., concur.


text:
    Rosa ARMESTO, Appellant, v. FLORIDA BOARD OF BAR EXAMINERS, Appellee.
    No. 1D02-4944.
    District Court of Appeal of Florida, First District.
    July 2, 2003.
    Rosa Armesto, appellant, pro se.
    No appearance for appellee.
   PER CURIAM.

DISMISSED. See Browning v. New Hope South, 785 So.2d 732 (Fla. 1st DCA 2001).

WOLF, C.J., and WEBSTER, JJ., concur; BENTON, J., dissents.


author: BROWNING, J.

text:
    Brian Michael GRIFFIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4664.
    District Court of Appeal of Florida, First District.
    July 2, 2003.

      Nancy A. Daniels, Public Defender; and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
   REVISED OPINION ON MOTION FOR REHEARING OR REHEARING EN BANC

BROWNING, J.

We hereby withdraw our previously reported decision in Griffis v. State, 28 Fla. L. Weekly D945 (Fla. 1st DCA Apr.10, 2008), and substitute the following opinion. Following the death of his 4-month-old daughter from injuries consistent with “shaken baby” syndrome, Brian Michael Griffis (Appellant) was charged with second-degree murder by violent shaking, in violation of section 782.04(2), Florida Statutes (1999) (Count One); and with aggravated child abuse by unlawfully committing aggravated battery; or willfully torturing, maliciously punishing, or willfully and unlawfully caging her; or knowingly or willfully abusing the child and in so doing causing great bodily harm, permanent disability, or permanent disfigurement to a child under age 18, in violation of section 827.03(2), Florida Statutes (1999) (Count Two). The defense relied on the theory that Appellant had not been the only custodian of the infant over the several days before her death. The jury found Appellant not guilty on Count One, and guilty on Count Two of the lesser-included offense of child abuse. Appellant argues that the trial court erred in failing to instruct the jury accurately on the elements of child abuse, thereby allowing him to be convicted of an uncharged crime. Appellant contends also that if we reverse on this first issue, then we also must reverse the orders revoking his probation because those orders are based solely on the reversed conviction. See Stevens v. State, 409 So.2d 1051 (Fla.1982); Farley v. State, 740 So.2d 5 (Fla. 1st DCA 1999). Concluding that the erroneous jury instruction constitutes fundamental error under Reed v. State, 837 So.2d 366 (Fla.2002), we reverse Appellant’s conviction and sentence and remand for a new trial. Although the conviction we are reversing was not the sole basis for revoking probation, we remand for further consideration of the revocation issue, for the record does not indicate whether the trial court would have revoked probation and imposed the same sentence in the absence of the conviction. Thomas v. State, 453 So.2d 156 (Fla. 1st DCA 1984); Bates v. State, 424 So.2d 927 (Fla. 1st DCA 1983).

The provision under which the State charged the Count Two offense reads:

827.03 Abuse, aggravated abuse, and neglect of a child; penalties.—
(2) “Aggravated child abuse” occurs when a person:
(a) Commits aggravated battery on a child;
(b) Willfully tortures, maliciously punishes, or willfully and unlawfully cages a child; or
(c) Knowingly or willfully abuses a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child.
A person who commits aggravated child abuse commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Without a contemporaneous objection, the trial court started reading to the jury the then-standard instruction on the lesser-included offense in Count Two:

The only lesser crime indicated in the definition of aggravated child abuse is child abuse. Before you can find the defendant guilty of child abuse, the state must prove the following four elements. Number one, Brian Griffis willfully by culpable negligence or knowingly inflicted or permitted the infliction of physical injury to Alexis Griffis. Number two, in so doing, Brian Griffis caused Alexis Griffis great bodily harm. Number three, Brian Griffis was a parent of Alexis Griffis. Number four, Alexis Griffis was under the age of 18 years.

This instruction is erroneous, first, because it would allow a jury to find a defendant guilty of child abuse by acting “willfully by culpable negligence” to inflict or permit the infliction of physical injury to the victim. This language is contradictory to other language in the instruction that correctly indicates child abuse is an “intent” crime under statutory subsection (1), which states:

(1) “Child abuse” means:
(a) Intentional infliction of physical or mental injury upon a child;
(b) An intentional act that could reasonably be expected to result in physical or mental injury to a child; or
(c) Active encouragement of any person to commit an act that results or could reasonably be expected to result in physical or mental injury to a child. A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Although culpable negligence contemplates gross recklessness and a disregard of the consequences likely to result from one’s actions to such an extent that intent might be suspected or inferred, see Taylor v. State, 444 So.2d 931, 934 & n. 3 (Fla.1983), and Rodriguez v. State, 443 So.2d 286 (Fla. 3d DCA 1983), culpable negligence does not specifically involve an intent element. Tyson v. State, 646 So.2d 816 (Fla. 1st DCA 1994); Black’s Law Dictionary 1056-57 (7th ed.1999). At best, instructing the jury to determine whether Appellant acted “willfully by culpable negligence” created confusion as to whether intent is an essential element of the crime. This error lowered the State’s burden of proof on a vigorously disputed essential element by possibly misleading the jury to believe it did not have to find intent to injure on Appellant’s part in order to convict him of child abuse. Because the jury used a general verdict, the specific findings underlying the factual basis of the guilty verdict are not in the record.

Culpable negligence is an element of “neglect of a child,” which was not charged. § 827.03(3)(b), Fla. Stat. (1999). Apparently, the trial judge immediately suspected an error in mid-instruction, for she asked aloud: “Culpable — is this in the right place?” Defense counsel answered “Yes, Your Honor.” Given this assurance, the court continued reading the instruction as follows:

Culpable negligence, each of us has a duty to act reasonably towards others. If there is a violation of that duty without any conscious intention to harm, that violation is negligence, but culpable negligence is more than a failure to use ordinary care towards others. In order for negligence to be culpable, it must be gross and flagrant.
Culpable negligence is a course of conduct showing reckless disregard of human life or of the safety of persons exposed to its dangerous effects or such an entire want of care as to raise a presumption of a conscious indifference to consequences or which shows wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known or reasonably should have known was likely to cause death or great bodily injury....

This additional emphasis on culpable negligence, albeit with defense counsel’s apparent blessings, could have confused the jury further. Second, the instruction given is erroneous because it includes causing “great bodily harm” to the victim as an element of child abuse, whereas it is not an element. § 827.03(1), Fla. Stat.

At the commencement of sentencing, defense counsel orally made a motion to vacate the conviction for child abuse in Count Two, on the grounds that the State’s information had failed to allege culpable negligence and that the instruction erroneously expanded the elements of the crime by including culpable negligence. Counsel noted that child abuse is a permissive, not mandatory, lesser-included offense of aggravated child abuse, such that the permissive lesser-included offense is proper only if all the elements are alleged in the charging document. The defense asserted that the instruction on child abuse is inconsistent with the statute also in that great bodily harm is not an element of child abuse. In summary, Appellant’s lawyer contended that Appellant had been improperly found guilty of an uncharged crime. Counsel asserted that the failure to make a contemporaneous objection to the erroneous jury instruction did not create a preservation problem, for the mistake rises to the level of fundamental error. See Dixon v. State, 823 So.2d 792 (Fla. 2d DCA 2001) (finding that error in giving jury instruction on charge of. battery on a law-enforcement officer that permitted conviction if defendant caused victim great bodily harm, when defendant was charged only with intentional touching battery, was fundamental error, where general verdict rendered it impossible to tell whether defendant was found guilty of charged offense). The prosecutor responded that the standard instruction given is the preferred one, but that if there was an error, the defense shouldered part of the blame. The State asserted that a mistrial and a new trial, not dismissal, were the proper remedies in the event the trial court found fundamental error. Defense counsel replied that the State could not re-try Appellant for second-degree murder or aggravated child abuse because double jeopardy had attached to those offenses. Counsel asked that the judgment of conviction be vacated. The trial court ruled that the legal issue had been adequately raised and “should properly be addressed by the District Court of Appeal.” The attorneys were invited to submit memoranda on the subject, but the defense’s request for an interlocutory appeal on this issue was denied.

Although a trial court generally can rely on standard jury instructions, the approval of such instructions by the Supreme Court of Florida does not automatically mean such instructions are correct. See, e.g., Chicone v. State, 684 So.2d 736 (Fla.1996); Yohn v. State, 476 So.2d 123, 127 (Fla.1985). In fact, the erroneous instruction in question was amended in 2002, after Appellant’s trial, and now essentially tracks the child-abuse statute without the offending language. Fla. Std. Jury Instr. (Crim.) 16.3.

Jury instructions are subject to the contemporaneous objection rule, and absent such an objection at the trial, errors in instructions cannot be raised on appeal unless fundamental error occurred. State v. Delva, 575 So.2d 643, 644 (Fla.1991); Castor v. State, 365 So.2d 701 (Fla.1978). A defendant has a fundamental right to have a court correctly and intelligently instruct the jury on the essential, material elements of the crime charged and required to be proven by competent evidence. Delva, 575 So.2d at 644; Gerds v. State, 64 So.2d 915 (Fla.1953). A defendant cannot be convicted of a crime that was not charged. Dixon, 823 So.2d at 794; O’Bryan v. State, 692 So.2d 290 (Fla. 1st DCA 1997). Fundamental error occurs when the court fails to instruct on an element of the crime that was disputed at trial. Reed, 837 So.2d at 369; Delva, 575 So.2d at 644-45; Simmons v. State, 780 So.2d 263, 266 (Fla. 4th DCA 2001). Likewise, expanding the definition of a crime beyond that which is charged in the information, resulting in a conviction of a crime not charged, is fundamental error. Dixon, 823 So.2d at 794; Zwick v. State, 730 So.2d 759 (Fla. 5th DCA 1999). Accordingly, giving the inaccurate and misleading instruction on the elements of child abuse, which allowed Appellant’s conviction of a non-existent crime, constitutes fundamental error. Reed, 837 So.2d at 369 (stating that irrespective of whether the evidence of guilt is overwhelming or whether the prosecutor has or has not made inaccurate instruction a feature of the trial, it is fundamental error if inaccurately defined element is disputed at trial and inaccurate definition is pertinent or material to what jury must consider in order to convict); Mosely v. State, 682 So.2d 605 (Fla. 1st DCA 1996) (finding fundamental error where jury instruction was not simply misleading, but permitted defendant to be convicted of non-existent crime); Ward v. State, 655 So.2d 1290 (Fla. 5th DCA 1995).

Child abuse under section 827.03(l)(a) requires intentional infliction of physical or mental injury upon a child and is a third-degree felony, whereas neglect of a child under section 827.03(3)(b) is a crime of omission constituting a second-degree felony. The elements of child abuse include knowingly or willfully abusing a child without causing great bodily harm. The elements of neglect of a child include willfully or by culpable negligence causing great bodily harm. The erroneous instructions blended the elements of these two offenses. Great bodily harm is an element of aggravated child abuse under section 827.03(2)(c) and child neglect under section 827.03(3)(b), but not of child abuse. § 827.03(1). Culpable negligence is an element of child neglect, but not of child abuse. Because the court instructed on each of these elements, the instructions conformed to neither the child abuse nor the child neglect statute, and it is unclear of which offense the jury found Appellant guilty. The information did not allege either neglect or culpable negligence, and section 827.03(3) is not a proper lesser offense. A.J. v. State, 721 So.2d 761 (Fla. 2d DCA 1998); Mohammed v. State, 561 So.2d 384 (Fla. 1st DCA 1990). The instructions did not necessarily make it harder to convict Appellant, for child abuse requires- an intentional act, knowing or willful, yet the jury was allowed to find that the abuse was not intentional but, instead, constituted culpable negligence. Being inherently harmful, fundamental error is not subject to harmless error review. Reed, 837 So.2d at 369-70. Thus, the confusing and erroneous instruction given, and the effect thereof, distinguish this case from Key v. State, 779 So.2d 525 (Fla. 2d DCA 2001) (finding defendant convicted of third-degree child abuse was not prejudiced by erroneous jury instruction that included element of great bodily harm, for erroneous instruction required proof of greater injury than correct instruction required), and Raford v. State, 792 So.2d 476 (Fla. 4th DCA 2001).

Appellant correctly notes that where the underlying guilty verdict is reversed, the general rule requires a probation revocation order based solely on that verdict and conviction to be reversed too. See, e.g., Stevens, 409 So.2d at 1051; Farley, 740 So.2d at 5. The instant record distinguishes this case from those two decisions. The amended sworn affidavits alleged that Appellant had violated Conditions (5), (1), (2), and (10) of his probation agreement. Condition (5) stated: “You will live without1 violating the law.” The alleged violations of this condition were the acts leading to and including his arrest for murder and aggravated child abuse. Condition (1) stated: “You shall submit a full and truthful report to your officer on the form provided for that purpose each month as directed by your officer.” The affidavit alleged that Appellant had failed to submit written monthly reports for the period July-December 1999. Condition (2) required Appellant to pay $25.00 monthly to the State of Florida for the cost of supervision unless otherwise waived, plus a $2.00 monthly surcharge pursuant to section 948.09(l)(a)2., Florida Statutes (1999). The affidavit alleged that Appellant had failed to make adequate payment and was in arrears in the amount of $225.00. Condition (10) required Appellant to pay restitution, fines, costs, and/or fees, plus a 4% administrative processing fee pursuant to section 945.31, Florida Statutes (1999), to the Florida Department of Corrections. The affidavit alleged that Appellant had not made all the required payments and was in arrears in the amount of $34.34. The violation of probation was heard simultaneously with the trial. The trial court orally announced that the guilty verdict constituted “evidence that the court would consider in terms of the violations of probation.” In the written revocation orders, the trial court stated that Appellant had violated all the conditions contained in the affidavits in question. Thus, the record refutes the claim that the revocation of probation was based solely on the reversed conviction. Because the record does not indicate whether the trial court would have revoked probation and imposed the same sentence, absent the conviction we are reversing, we remand for the trial court for further consideration of the revocation issue. Thomas, 453 So.2d at 156; Bates, 424 So.2d at 927.

We REVERSE the conviction and remand the case for a new trial; we REVERSE the probation revocation orders and remand for further proceedings on the revocation question.

DAVIS and POLSTON, JJ., CONCUR.


text:
    Jason D. LANGLEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-481.
    District Court of Appeal of Florida, Second District.
    July 2, 2003.

      Ben Kay, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Seavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Jason D. Langley appeals his conviction for trafficking in phenethylamine and the three-year sentence imposed for the offense. After the circuit court denied Mr. Langley’s dispositive motion to suppress evidence, Mr. Langley entered a negotiated plea of no contest to this charge in exchange for a sentence of three years’ imprisonment. We affirm without comment the denial of Mr. Langley’s motion to suppress. Although we affirm Mr. Langley’s sentence, this affirmance is without prejudice to his filing a facially sufficient motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 challenging the imposition of a three-year minimum mandatory term in this case.

The trial court imposed a three-year minimum mandatory sentence, even though the written plea agreement does not contain reference to a minimum mandatory term. On appeal, Mr. Langley argues that his sentence must be reversed based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002) (holding chapter 99-188, Laws of Florida, which required mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates single-subject rule of Florida Constitution); see also Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003) (holding that reenactment of sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate Ex Post Facto Clauses of United States and Florida Constitutions). Mr. Langley did not preserve this issue for review either at sentencing or by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

We decline to strike the minimum mandatory term at this time because Mr. Langley’s sentence was the result of a negotiated plea. A reversal of this sentence would provide the State with an opportunity to withdraw from the plea and proceed to trial. See Casey v. State, 788 So.2d 1121, 1122 (Fla. 2d DCA 2001). We therefore affirm the sentence imposed but without prejudice to Mr. Langley’s right to file a facially sufficient motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850, if he determines that this is in his best interest. See Karo v. State, 849 So.2d 351, 2003 WL 2003719 (Fla. 2d DCA May 2, 2003) (explaining that facially sufficient claim for relief pursuant to Taylor requires alleging date of offense and that amendments held unconstitutional in Taylor affected statute under which sentence was imposed); Casey, 788 So.2d at 1122 (explaining that when improper sentence is result of negotiated plea, relief must be sought pursuant to rule 3.850 because evidentiary hearing is required to determine whether state gave up something in negotiated plea and would therefore be entitled to withdraw from plea if sentence was corrected).

Affirmed.

ALTENBERND, C.J., and SALCINES and VILLANTI, JJ., concur.


text:
    Thomas A. DLABAL, M.D; Thomas A. Dlabal, M.D., P.A. and Orthopaedic Associates, P.A., Appellants, v. Carol Kay ABRELL and Fort Walton Beach Medical Center, Inc., Appellees.
    No. 1D03-1663.
    District Court of Appeal of Florida, First District.
    July 2, 2003.
    Jesse F. Súber and Laura Beth Fara-gasso of Henry, Buchanan, Hudson, Súber & Carter, P.A., Tallahassee, for Appellants.
    Stanley Bruce Powell of Powell & Swan-ick, Niceville, and Pamela K. Frazier of Lozier, Thames & Frazier, Pensacola, for Appellees.
   PER CURIAM.

Having considered the appellants’ response to the Court’s order of May 5, 2003, we dismiss this appeal as premature. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974); City of Tallahassee v. Big Bend PBA, 703 So.2d 1066, 1069 (Fla. 1st DCA 1997). The appellants sought review of an order on a complaint for a pure bill of discovery. However, as this order requires production of medical records for the purpose of conducting an in camera inspection, additional judicial labor remains to be done and the order is not final. Cf. Adventist Health System/Sunbelt, Inc. v. Hegwood, 569 So.2d 1295 (Fla. 5th DCA 1990).

KAHN, VAN NORTWICK and BROWNING, JJ., concur.


text:
    Richard and Patricia LEE, Appellants, v. Bert HARTSFIELD as Leon County Property Appraiser; John F. Chafin as Tax Collector Leon County; and Jim Zingale, as Executive Director of the Florida Department of Revenue, Appellees.
    No. 1D02-3481.
    District Court of Appeal of Florida, First District.
    July 2, 2003.

      J. Riley Davis of Katz, Kutter, Aider-man, Bryant & Yon, P.A., Tallahassee, for Appellants.
    James J. Dean of Messer, Caparello & Self, P.A., Tallahassee, for Appellee Bert Hartsfield as Leon County Property Appraiser.
    Charlie Crist, Attorney General, and Mark T. Aliff, Assistant Attorney General, Tallahassee, for Appellee Department of Revenue.
   PER CURIAM.

Richard and Patricia Lee appeal a final summary judgment in which the trial court ruled that, pursuant to section 194.171(2), Florida Statutes (1999), it lacked subject matter jurisdiction over the Lees’ action for declaratory and injunctive relief challenging the authority of the Leon County Property Appraiser to correct the assessment of their property. We agree with the trial court that the fundamental nature of the appellant’s lawsuit is a challenge of an assessment and, thus, it is governed by the sixty day non-claim statute. See § 194.171(2), Fla. Stat. (1999). As the court explained in Department of Revenue v. Stafford, 646 So.2d 803, 805 (Fla. 4th DCA 1994), regardless of how the complaint is couched, when a taxpayer is challenging the assessment on grounds that it was “unjust, capricious, arbitrary and illegal,” the action is cognizable only under the strictures of section 194.171, which allows a suit to be filed only within 60 days from the date the assessment roll is certified for collection. See also Markham v. Neptune Hollywood Beach Club, 527 So.2d 814 (Fla.1988)(holding the 60-day claim period applicable to a constitutional challenge of an assessment and of the statute authorizing the assessment); State, Dept. of Revenue v. Gerald Sohn, P.A., 654 So.2d 249, 250(Fla. 1st DCA 1995)(citing Stafford with approval); Nikolits v. Delaney, 719 So.2d 348 (Fla. 4th DCA 1998)(holding claim that an assessment is made in violation of section 193.155 is an action to contest an assessment and is governed by section 194.171(2)).

Accordingly, we affirm.

KAHN, VAN NORTWICK and BROWNING, JJ., concur.


text:
    S.M., mother of M.M. and I.M., children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-4616.
    District Court of Appeal of Florida, First District.
    July 2, 2003.
    Connie Renee Clay, Esquire, Jacksonville, for Appellant.
    M. Paul Sanders, Assistant General Counsel, Jacksonville, for Appellee.
   PER CURIAM.

The Department did not meet its statutory duties in this case because it did not make “reasonable efforts” to reunite the mother and her children, as required by section 39.806(l)(e), Florida Statutes (2002). For this reason, we reverse the order terminating the mother’s parental rights.

WOLF, C.J., and ERVIN, J., concur; BENTON, J., dissents.


text:
    Sharon WHITEHEAD, Appellant, v. The CITY OF GAINESVILLE, Florida, a Municipal corporation; Norman Botsford, in his official capacity as Chief of the Gainesville Police Department and A.D. Willis in his individual capacity, Appellees.
    No. 1D03-0792.
    District Court of Appeal of Florida, First District.
    July 2, 2003.
    Marian B. Rush of Rush & Glassman, Gainesville, for Appellant.
    John D. Jopling of Dell, Graham, Will-cox & Barber, Gainesville, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 27, 2003, the Court has determined that it lacks jurisdiction to review the orders on appeal. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

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


author: WHATLEY, Judge.

text:
    Willie S. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5562.
    District Court of Appeal of Florida, Second District.
    July 2, 2003.
   WHATLEY, Judge.

Willie Williams appeals the order summarily denying his second amended petition for a writ of habeas corpus for immediate emergency release. The clerk of the circuit court has been unable to locate the petition, and neither the State nor Williams responded to our request that they supplement the record with a copy of the petition if they had one in their possession. This court cannot properly review the order being appealed without a copy of the petition that is the subject of that order. Accordingly, we reverse the order and permit Williams thirty days from the date of the mandate in this case within which to file another postconviction motion raising the same grounds set forth in his second amended petition.

Reversed and remanded.

ALTENBERND, C.J., and STRINGER, J., concur.


author: NORTHCUTT, Judge.

text:
    In the Interest of A.C., J.C., J.C., and L.C., children. L.C., Appellant, v. Department of Children and Family Services, Appellee.
    Nos. 2D02-341, 2D02-2727.
    District Court of Appeal of Florida, Second District.
    July 2, 2003.
    J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   NORTHCUTT, Judge.

In these consolidated appeals, L.C. challenges dependency adjudications of his four children, three sons and one daughter, based solely on his daughter’s allegation that he sexually abused her.

There was insufficient evidence to support the boys’ dependency based on an alleged risk of future harm by the father. As the Florida Supreme Court held in In re M.F., 770 So.2d 1189, 1194 (Fla.2000):

A simple showing by DCF that a parent committed a sex act on one child does not by itself constitute proof that the parent poses a substantial risk of imminent abuse or neglect to the child’s sibling, as required by the statute. While the commission of such an act may be highly relevant, it is not automatically dispositive of the issue of dependency. A court instead should focus on all the circumstances surrounding the petition in each case.

Here, the dependency petition did not allege, nor did the Department prove, any circumstances that placed the sons at risk. We therefore reverse the adjudication of dependency as to the three sons.

L.C. also challenges his daughter’s dependency, contending that evidence of her ulterior motive to fabricate renders the evidence insufficient. While we may have reservations about the truthfulness of the girl’s allegations, we cannot question the trial court’s assessment of her credibility because it was in a superior position to evaluate her testimony. Accordingly, we affirm the dependency adjudication of the daughter.

Affirmed in part, reversed in part, and remanded for further proceedings.

ALTENBERND, C.J., and CASANUEVA, J., concur.


author: SALCINES, Judge.

text:
    DeWayne McQUAID, Appellant, v. Marcela Lynn McQUAID, Appellee.
    No. 2D02-3605.
    District Court of Appeal of Florida, Second District.
    July 2, 2003.
    Richard J. Feinberg, Melbourne, for Appellant.
    Debra A. Rowe, Fort Myers, for Appel-lee.
   SALCINES, Judge.

DeWayne McQuaid (the Former Husband) appeals a final judgment dissolving his marriage to Marcela Lynn McQuaid (the Former Wife). We affirm in part, and reverse and remand in part.

The Former Husband challenges the trial court’s determinations that certain property was the Former Wife’s nonmarital property and that certain debts were marital liabilities. He also challenges the trial court’s award of lump sum alimony to the Former Wife. The factual findings made by the trial court support its designation of the disputed assets and liabilities; thus, we affirm the final judgment in that regard.

The trial court, however, failed to explain its rationale for awarding lump sum alimony to the Former Wife. It appears that the trial court most likely utilized that award as part of the equitable distribution, but based upon the record before this court, we cannot determine whether that was the trial court’s intent and whether the award was proper. As correctly argued by the Former Husband, the final judgment fails to set forth the necessary findings supporting the award of lump sum alimony or the amount of that award. See

§ 61.075(3)(d), Fla. Stat. (2001); see also Staton v. Staton, 710 So.2d 744 (Fla. 2d DCA 1998).

Accordingly, because the final judgment is facially insufficient in regard to the trial court’s award of lump sum alimony, we reverse and remand this matter to the trial court to make the requisite findings. In the event the trial court is unable to recall the facts proven at trial, it may, in its discretion, take additional testimony as necessary in order to support its findings.

Reversed and remanded for further proceedings consistent herewith.

COVINGTON and VILLANTI, JJ., concur.


text:
    Tamara C. TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-505.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

We affirm without prejudice to the defendant raising the issue of ineffective assistance of trial counsel in a rule 3.850 motion.

Affirmed.


author: PER CURIAM. GREEN, J.

text:
    Bienendido GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3031.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Affirmed. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).

GREEN, J.

(specially concurring).

The doctrine of stare decisis compels me to join in the affirmance of this cause, but I continue to adhere to the view that Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), was correct in its conclusion that Chapter Law 99-188, Laws of Florida, violates the single subject rule of the Florida Constitution, accord Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct. 4, 2002).


text:
    RONEY PLAZA ASSOCIATES, LTD., Appellant, v. Anthony HENRY and Lynette Henry, Appellees.
    No. 3D02-1677.
    District Court of Appeal of Florida, Third District.
    July 2, 2003.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson, and Alan H. Fein, and Anastasia I. Kokotis, Miami, for appellant.
    Robert C. Maland, Miami; Philip D. Parrish, for appellees.
    Before LEVY, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Appellant, Roney Plaza Associates, Ltd. (“Roney”), appeals from the denial of its motion to vacate judgment and default. The record reflects that Roney demonstrated a meritorious defense to the action, established excusable neglect for its failure to respond to the complaint and notice of trial, and acted with due diligence in moving to set aside the default judgment. Thus it was an abuse of discretion for the trial court to refuse to set aside the default, and we reverse the order denying Roney’s motion to vacate judgment and default. See North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962); Royal Caribbean Cruises, Ltd. v. Traveler, 699 So.2d 847 (Fla. 3d DCA 1997); Electric Engineering Co., Inc. v. General Elec. Can., Inc., 610 So.2d 51 (Fla. 3d DCA 1992).

Reversed.


author: WARNER, J. MAY, J., FARMER, J.,

text:
    STATE of Florida, Appellant, v. Roger R. DEMARS, Appellee.
    No. 4D01-4950.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellee.
   WARNER, J.

In granting a motion to discharge appel-lee Demars from felony petit theft charges, the trial court followed Bryant v. State, 757 So.2d 617, 618 (Fla. 4th DCA 2000), in which we determined that the trial court should have treated a motion for speedy trial discharge as a notice of expiration of speedy -trial time and set a hearing within five days of the notice as required by Florida Rule of Criminal Procedure 3.191(p). Because the hearing in this case was not set until fifteen days after the motion was filed, leaving no time within the window created in the rule to try Demars, the court ordered his discharge. We recede from Bryant and instead adopt the reasoning of Clark v. State, 698 So.2d 1274 (Fla. 3d DCA 1997), which determined that a motion for discharge should not be treated as a notice of expiration of speedy trial, triggering the five day hearing. We therefore reverse.

After having first been arrested for a misdemeanor, which the state nolle prossed, the state refiled the information against Demars and arraigned him on the charge of felony petit theft, 213 days from Demars’ original misdemeanor arrest, well past the speedy trial period. See Fla. R.Crim. P. 3.191(a). A month and a half later, Demars filed a motion for discharge, alleging the state failed to bring him to trial within the speedy trial period. Eleven days later the state moved to strike Demars’ motion, because he failed to file a notice of expiration of speedy trial pursuant to Rule 3.191(p)(2). Both motions were heard by the trial court four days later, fifteen days after the filing of the motion for discharge. Bound by Bryant, the trial court granted the motion for discharge, and the state appeals.

The facts of Bryant are very similar to this case. The state had filed an information against Bryant naming a female victim. It later amended this same information naming only a male victim. This case apparently languished for over a year. Prompted by a motion for discharge due to speedy trial, the state nol prossed the information and refiled an information alleging the same charges and dates but only as to the female victim. A month later, Bryant filed a motion to discharge the newly filed information based upon speedy trial. Three months later the court denied the motion. See id. at 617-18. We concluded that although the amended information constituted a nol prosse as to the original charges regarding the female victim, the speedy trial time continued to run, citing State v. Agee, 622 So.2d 473, 475 (Fla.1993). Therefore, when the state refiled the information, the time for speedy trial had run, similar to the facts of this case. We then said:

The trial court should have treated appellant’s motion for discharge as a notice of expiration of speedy trial period and set a hearing within five days. See Fla. R.Crim. P. 3.191(p). At which point, unless the trial court found that discharge was inappropriate for reasons set forth in the Florida Rule of Criminal Procedure 3.191(j) it should have ordered that appellant be brought to trial within ten days. See id. Since the trial court took no action in response to appellant’s motion for discharge other than to deny it, appellant was entitled to a discharge.

Bryant, 757 So.2d at 618.

This same factual scenario was present in Clark, 698 So.2d 1274, where the defendant filed a motion for discharge, not a notice of expiration of speedy trial. The court determined that because the defendant failed to file the requisite “notice” he was not entitled to discharge. See id. at 1275. The court rejected the defendant’s contention that refusing to treat the motion as the “notice” elevates form over substance. The court stated:

In accordance with the precise purpose a “notice” is designed to serve under the scheme carefully crafted by rule 3.191(p), the filing of a document which is so designated alerts the clerk and the prosecution that the case must immediately be brought to the attention of the court by placing it on its calendar within a day or two so that the recapture period may be complied with. On the other hand, since a “motion to discharge” may not be granted unless it is well taken when filed, there is no necessity for scheduling it at any particular time. As defense counsel may well have anticipated, that is exactly what, as a direct result of the fact that a “motion” and not a “notice” was filed, occurred below.... Having thus attempted, as it were, to entrap the clerk, the prosecution and the court into depriving him of rights which he did not appropriately assert, the defendant cannot now argue that it does not matter that he did not claim them in the way required by the rule itself.

Id. at 1275 (citations omitted); accord, Dabkowski v. State, 711 So.2d 1219, 1220 (Fla. 5th DCA 1998).

We agree with the reasoning in Clark, that a notice, not a motion, is required to trigger the expiration of recapture period. Rule 3.191(p)(2) states:

At any time after the expiration of the prescribed time period, the defendant may file a separate pleading entitled “Notice of Expiration of Speedy Trial Time,” and serve a copy on the prosecuting authority.

(Emphasis added). Because the trial court is responsible for setting an immediate hearing, the notice must be brought to the court’s attention. When the notice is styled as a motion for discharge, a clerk accepting it for filing may not distinguish it from the myriad of motions filed in the clerk’s office. We cannot expect the non-lawyer personnel of the clerk’s office to pour over motions to determine whether they seek a speedy trial discharge, requiring the court’s immediate attention. Moreover, even the state attorney’s office may not treat a motion for discharge with the same urgency as a notice. Strict compliance with the rule is a practical necessity-

Although we might harmonize Bryant with our result here by allowing a trial court to treat a motion for discharge as a notice of expiration of speedy trial when the trial court becomes “aware” of it, that approach is fraught with the possibility of inconsistent results. We fear that we would be inviting a multitude of disputes as to exactly when a trial judge became “aware” that a motion for discharge constituted an assertion that the speedy trial time had expired. The rule is specific and easy for defense counsel to follow. We see no need to complicate the process by permitting other means of compliance.

We therefore reverse the order of discharge and remand for further proceedings.

GUNTHER, KLEIN, STEVENSON, SHAHOOD, GROSS and TAYLOR, concur.

MAY, J., concurs specially with opinion, in which POLEN, J., and STONE, J., concur.

FARMER, C.J., dissents with opinion.

HAZOURI, J., recused.

MAY, J.,

specially concurring.

I concur with the result in this case. I write only to express my view that this court need not recede from Bryant v. State, 757 So.2d 617 (Fla. 4th DCA 2000) to achieve’ the result. I agree with the majority that the “filing” in the clerk’s office of a motion for discharge cannot be the “trigger” for a five-day hearing or the ten-day recapture period because unlike a notice of expiration of speedy trial, it does not put the trial court on “notice.” I further agree that the clerk’s office should not be required to determine if a motion for discharge requires the court’s immediate attention. I also acknowledge that the 1992 amendment to Florida Rule of Criminal Procedure 3.191 appears to have renamed an initial motion for discharge, replacing it with the term “notice of expiration of speedy trial.” I don’t agree, however, that the remedy set forth in subsection (p) is inapplicable to the motion for discharge in this case.

Florida Rule of Criminal Procedure 3.191(p) provides the “Remedy for Failure to Try Defendant within the Specified Time.” I would hold that this remedy is available whether an initial motion for discharge is filed and called to the court’s attention or a “notice of expiration of speedy trial” is filed. As noted by the majority, the Florida Rules of Juvenile Procedure more clearly delineate the process to be followed when a motion for discharge is filed. By our opinion today, we have effectively eliminated the remedy set forth in subsection (p) when the defendant files a motion for discharge prior to filing a notice of expiration of speedy trial.

A review of the evolution of Florida Rule of Criminal Procedure 3.191 over the last couple of decades reveals why the remedy set forth in subsection (p) should be applied to the motion for discharge filed in this case. In 1984, the rule provided for the immediate discharge of the defendant if not tried within 180 days unless the court found the delay to be attributable to the defendant pursuant to subsection (d)(3). The 1984 amendment to the rule took effect in 1985 and provided a “remedy” subsection. No longer was a discharge automatic. Rather, the remedy subsection was designed “to provide the state attorney with 15 days within which to bring a defendant to trial from the date of the filing of the motion for discharge.” Fla. R.Crim. P. 3.191 cmt. (1985). Interestingly, the fifteen-day period began to run from the filing of the motion “regardless of whether the judge hears the motion.” Id.

The next significant change in the rule occurred as a result of the 1992 amendment. The comment to that amendment states “the committee recommends the rule be amended to differentiate between 2 separate and distinct pleadings now referred to as 'motion for discharge.’ The initial ‘motion for discharge’ has been renamed ‘notice of expiration of speedy trial time.’ ” Prior to this amendment the remedy subsection spoke only in terms of a motion for discharge. As a result of the amendment, the remedy subsection (changed from (i) to (p)) now uses the term “notice of expiration of speedy trial” in place of a “motion for discharge.”

The commentary makes clear that an initial “motion for discharge” is now to be labeled a “notice of expiration of speedy trial.” However, subsection (j), which must be reviewed before the remedy can be applied, still speaks in terms of a motion for discharge. The rule therefore continues to create confusion.

For this reason, I believe that an initial motion for discharge should be treated just like a notice of expiration of speedy trial as contemplated by the 1992 amendment. However, the remedy for an initial motion should only be “triggered” when the motion for discharge is brought to the court’s attention on the record. This can occur as a result of a hearing set by the defendant or by the motion being called to the court’s attention during a status conference. When that occurs, the court should conduct a hearing within five days to be followed by the ten-day recapture period as set forth in subsection (p) of rule 3.191 when appropriate. The confusion created by the title of the document should not give way to the substantive nature of the pleading. Regardless of what it is called, subsection (p) provides the remedy. If the state cannot try the case within the specified time frame, then upon the filing of a motion for discharge, the court must consider the factors set forth in subsection (j). If none of them apply, then the defendant shall be tried within 10 days or discharged.

In Bryant, our court held that the trial court erred in denying a motion for discharge outright without providing for a hearing within five days, as set forth in Florida Rule of Criminal Procedure 3.191. In my view, that is all that Bryant required and is in accordance with the commentary to the rule. Bryant did not state that the five-day hearing deadline was triggered by the “filing” of the motion for discharge. Rather, it reiterated the proper remedy when a trial court “considers” an initial motion for discharge.

For these reasons, I agree with the result reached by the majority, but not its reasoning. I do not believe it is necessary for the court to recede from Bryant.

POLEN and STONE, JJ., concur.

FARMER, J.,

dissenting.

If a tree falls in the forest, and no one hears it fall, can anyone say that it never fell? If defendant files a motion for discharge with the Clerk, and no one looks at it, can anyone say that it was not filed? In today’s case, the state argues that the philosophical conundrum should be answered that the tree was never felled, that the motion was never filed. As ontology this is all quite refutable; as jurisprudence it is impossible.

I take the state’s argument to imply that nothing exists in the criminal court files until it has been called to the attention of the trial judge through a hearing duly noticed. While notices of hearing are indispensable, I do not understand why the absence of one negates the very existence of what has been filed but not set for hearing.

Surely a defendant filing a motion for a speedy trial discharge must serve the prosecutor with the paper. After such a filing, why isn’t the burden then on the prosecutor to take heed of the motion, thence to deduce that a defendant may have to be discharged if action is not promptly taken? Why does the state believe that such a motion — one that surely alerts the prosecutor that the time for a speedy trial is in danger of lapsing — does not exist for that purpose? Why indeed.

I would hold the prosecution to knowing what the motion so obviously imports. If a speedy trial discharge is the consequence, I would not shrink from it. So be it. Rules set outcomes. Here the outcome follows from the purpose behind the speedy trial rule.

I cannot subscribe to this Through The Looking Glass world the state would have us construct.

      . We note that under the Rules of Juvenile Procedure, there is no requirement for a Notice of Expiration of Speedy Trial. Instead, the respondent may file a motion for discharge and simultaneously file a notice of hearing, both of which shall be served on the prosecutor. See Rule 8.090(m)(2). As the Committee Notes explain, "[t]his rule requires a notice of hearing at the time of filing the motion of discharge to ensure that the child’s motion is heard in a timely manner.” This requirement is not part of the Rules of Criminal Procedure, but as this case indicates, placing the responsibility on the defendant asserting his right to a rule-based speedy trial discharge would also ensure that the defendant’s motion is timely heard.


author: GROSS, J.

text:
    Angelo WELLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-898.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, 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.
   GROSS, J.

Appellant entered no contest pleas in two cases in 1993. In the first case, he pled to burglary of a dwelling and grand theft; in the second, to armed burglary and grand theft. On each burglary count, he was sentenced to ten years in prison, with the sentences to run concurrently. On each grand theft count, he received concurrent sentences of five years probation, consecutive to the prison sentences.

On February 22, 1999, appellant was released from prison and began his time on probation. On February 26, 2001, his probation officer filed an affidavit of violation of probation. After a hearing, the trial court found him guilty of violating his probation and sentenced him to five years on each count, to run concurrently, with 114 days of jail credit.

We affirm the finding of violation of probation.

As to his sentence, appellant argues that he is entitled to receive credit for time served in prison against the violation of probation sentence, pursuant to Tripp v. State, 622 So.2d 941 (Fla.1993). In its two-sentence response to appellant’s argument, the state notes its disagreement with Hodgdon v. State, 789 So.2d 958 (Fla.2001), but observes that if this court “finds Hodgdon applicable, [it] should remand for the trial court to award the proper credit to Appellant.”

An advanced degree in mathematics would be helpful in analyzing the cases following Tripp. In this case, the sentence was within the maximum permitted by the sentencing guidelines. However, State v. Witherspoon, 810 So.2d 871 (Fla.2002) teaches that when “a defendant is originally sentenced consecutively on a single scoresheet,” the holding of Tripp requires “the granting of credit for time served in prison where the defendant’s newly imposed sentence upon revocation of probation does not exceed the maximum permitted by the sentencing guidelines.” Id. at 872. In Hodgdon, the supreme court clarified Tripp to “emphasize that a defendant who violates probation on multiple counts imposed consecutive to a prison term is entitled to credit for the time served on the prison term as to the entire sentence imposed on the probation violation, not against each individual count on which probation was violated.” 789 So.2d at 963.

It appears that application of Hodgdon and Witherspoon to this case will result in the “windfall” to appellant which the supreme court said that “Tripp was never intended to provide.” Hodgdon, 789 So.2d at 963. Nonetheless, in Cook v. State, 645 So.2d 436, 438 n. 5 (Fla.1994), the supreme court placed the burden on the judge at the original sentencing to structure a sentence that would survive Tripp; there the supreme court “explained how the trial court could have achieved its desired result of having Cook serve an additional three and a half years in prison on his probation violation while giving Cook the credit he was entitled to under Tripp.” Hodgdon, 789 So.2d at 962-63 (discussing Cook).

Accordingly, we reverse the sentence and remand to the trial court for resen-tencing in accordance with Tripp, Cook, Hodgdon, and Witherspoon.

KLEIN and SHAHOOD, JJ., concur.


author: SHAHOOD, J.

text:
    Michael TANNIHILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-644.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

■ Appellant, Michael Tannihill, was convicted of sexual battery with slight force and lewd or lascivious battery, based on the same act of oral penetration or union. We affirm in part and reverse in part.

Appellant raises five issues on appeal. We affirm on three of those issues and reverse and remand for resentencing on the remaining issues.

Appellant’s first issue, that the trial court erred in overruling his objection to the prosecutor’s closing argument, is affirmed pursuant to Austin v. State, 700 So.2d 1233 (Fla. 4th DCA 1997). We find that the prosecutor’s comment was a fair response to defense counsel’s suggestion that the victim’s tears during his testimony were not genuine.

Next, we hold that appellant’s prison releasee reoffender sentence is not in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), see McDowell v. State, 789 So.2d 956 (Fla.2001), and that his habitual violent felony sentence does not violate Apprendi. See Gordon v. State, 787 So.2d 892 (Fla. 4th DCA 2001). These issues have been thoroughly addressed and resolved by this court in prior opinions; therefore, we will forego extensive discussion here.

We next address the double jeopardy issue raised by appellant. Appellant correctly argues, and the state agrees, that his convictions for both sexual battery with slight force and lewd and lascivious battery based on the same act of oral penetration or union violate his right against double jeopardy. See Fjord v. State, 634 So.2d 714 (Fla. 4th DCA 1994). Contrary to the state’s assertions that the issue has been waived, a violation of double jeopardy is a fundamental error which can be raised for the first time on appeal. See Haynes v. State, 828 So.2d 457, 458 (Fla. 4th DCA 2002); see also Rios v. State, 791 So.2d 1208 (Fla. 5th DCA 2001)(convictions for sexual battery and lewd and lascivious act reversed based on double jeopardy even though appellant did not object to the sentencing error and did not raise the issue in a motion to correct sentence).

Finally, appellant also argues that his scoresheet is inaccurate because it includes points for two counts of penetration instead of one. He was charged with and tried for sexual battery — threatened use of a deadly weapon on a child (anal sex)(count I), sexual battery — threatened use of a deadly weapon on a child (oral sex)(count II), lewd or lascivious battery on a child (anal sex)(count III), and lewd or lascivious battery on a child (oral sex)(count IV). The jury acquitted him of all charges involving anal sex and convicted him of only those offenses involving a single act of oral sex.

The state does not deny the scoresheet contains an error, but argues that any error is irrelevant because appellant was not sentenced according to the scoresheet, but rather, was sentenced as a prison re-leasee reoffender and habitual violent felony offender. See, e.g., Arce v. State, 762 So.2d 1003 (Fla. 4th DCA 2000)(holding that a habitual offender sentence is not subject to the sentencing guidelines; therefore, appellant not entitled to relief pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000)). But for the fact that appellant’s conviction for lewd and lascivious act must be reversed and appellant must be resentenced, we would agree with the state that the error is irrelevant. On remand and resentencing, however, the error may be relevant; therefore, appellant’s score-sheet should be corrected to reflect only 80 additional points for one count of sexual penetration.

Accordingly, we reverse appellant’s conviction for lewd and lascivious act and remand for resentencing. On all other issues, we affirm.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RE-SENTENCING.

KLEIN and GROSS, JJ., concur.


author: JENNIFER D. BAILEY, Associate Judge.

text:
    CONSOLIDATED INSURANCE SERVICES, Appellant, v. Nakisha FREEMAN, Clarence Freeman, her husband, Elizabeth Davis, Greater Bethel Christian School, and Foriest Williams, Appellees.
    No. 4D02-684.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.

      Keith J. Lambdin of Lambdin & Rosser, P.A., Plantation, for appellant.
    William W. Price of William W. Price, P.A., and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellee Elizabeth Davis.
   JENNIFER D. BAILEY, Associate Judge.

Consolidated Insurance Services, Inc. (“Consolidated”) appeals from a final summary judgment granting Elizabeth Davis’(“Davis”) summary judgment motion and entering judgment for damages, attorney’s fees and costs. Consolidated alleges the trial court erred in ruling that the “law of the case” doctrine determined Consolidated’s liability and in granting attorney’s fees in the case.

This case arose from an October 1995 traffic accident in which Greater Bethel Christian School’s (“Bethel”) van hit Davis’ car. Prior to the accident, National Indemnity Company (“NIC”) sent Bethel a notice of non-renewal indicating that the automobile insurance policy on the van was about to expire. Bethel submitted a renewal application and a premium payment to Consolidated, Bethel’s insurance broker, prior to termination, but Consolidated failed to timely renew. As a result, NIC denied coverage for the Davis accident because its policy had terminated in August 1995.

Davis brought suit against Bethel and its driver for negligence and against Consolidated for negligent procurement. While Davis’ action was pending, Consolidated filed a declaratory judgment action against NIC seeking to determine whether Consolidated’s actions had bound NIC coverage. The trial court in the declaratory judgment action found Consolidated to be NIC’s agent. Thus, Consolidated’s representations to Bethel bound NIC to provide coverage. NIC appealed, and we reversed. See Nat’l. Indem. Co. v. Consol. Ins. Servs., 778 So.2d 404, 408 (Fla. 4th DCA 2001).

During the pending appeal, Davis’ automobile negligence case went to trial, resulting in a jury verdict against Bethel and Consolidated. The trial court entered judgment on the verdict and granted $7,000 in costs and $145,790 in attorney’s fees against Bethel, Consolidated, and based upon the declaratory judgment ruling, against NIC. Upon reversal of the declaratory judgment, the trial court vacated the judgment against NIC but let the verdict stand against Consolidated.

Davis then filed a summary judgment motion against Consolidated, alleging it negligently failed to procure or renew the policy. Consolidated also moved for summary judgment alleging the coverage issue was res judicata where this court’s opinion determined the lack of coverage was due to Bethel’s failure to take appropriate action to renew the policy. In support of her motion, Davis presented unrebutted evidence that when Bethel delivered its premium check to Consolidated, it represented to Bethel it would renew Bethel’s policy with NIC. Consolidated later admitted in a letter to Bethel it failed to timely renew its policy with NIC. Based upon this evidence, the trial court granted Davis’ summary judgment, from which Consolidated has appealed.

Consolidated argues that this court’s opinion in the declaratory judgment action established the law of the case for Davis’ negligent procurement action. This argument misapprehends the “law of the case” doctrine, which merely provides that questions of law decided on appeal must govern all subsequent proceedings in the case. See Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001). The issue adjudicated in Consolidated’s declaratory judgment, and resolved in the appeal, was the legal relationship between Consolidated and NIC, not the relationship between Consolidated and Bethel or Davis. Davis’ negligent procurement action claims that Consolidated should have timely renewed Bethel’s insurance policy. The declaratory judgment action merely determined that Bethel’s delivery of payment and application to Consolidated did not trigger any obligation by NIC based upon the legal relationship between them.

An appellate court’s prior decisions foreclose reconsideration by the trial court so long as the operative facts continue to be the facts of the case. Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla. 2nd DCA 1965). In NIC’s appeal, this court determined that there was no evidence of agency or apparent agency which would support the claim that Consolidated was NIC’s agent for purposes of binding coverage. We remanded for entry of a judgment in favor of NIC. The opinion is binding only as to the relationship between NIC and Consolidated. The opinion did not address the relationship between Bethel and Consolidated, which forms the basis of the negligent procurement action. Indeed, the extent of Consolidated’s duties to procure insurance on behalf of Bethel has never been addressed on appeal. Therefore, Consolidated’s argument fails. Additionally, Consolidated failed to oppose Davis’ summary judgment motion with any evidence of its proper handling of the renewal. Finding no genuine issues of material fact as to Consolidated’s failure to procure insurance for Bethel, the trial court’s summary judgment is affirmed.

Consolidated also appeals the trial court’s award of attorney’s fees in favor of Davis. Consolidated argues that an award of fees is improper where Consolidated was not included in any offer of judgment. The trial court, however, did not make an award of fees pursuant to the offer of judgment statute; therefore, we reject this argument.

Davis argues that the trial court properly awarded fees to her as the prevailing party in a negligent procurement suit. “The fundamental rule in Florida is that attorneys’ fees are in derogation of the common law and will only be granted pursuant to a contractual agreement or statutory authority. Any statute allowing an award of fees will be strictly construed.” Sheridan v. Greenberg, 391 So.2d 234, 236 (Fla. 3rd DCA 1980). In insurance-related cases, attorney’s fees may be granted,

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of any appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

§ 627.428(1), Fla. Stat. (1999) (emphasis added). However, under this statute, Davis’ fees cannot be shifted to Consolidated. Strictly construing this statute, the Florida Supreme Court has held that only the persons named in the statute are entitled to recover attorney’s fees, including the contracting insured, the insured’s estate, specifically named beneficiaries, and third parties who have coverage through assignment. See Roberts v. Carter, 350 So.2d 78, 79 (Fla.1977). Plaintiffs such as Davis are not entitled to attorney’s fees under the statute.

An exception to the rule that only those named in section 627.428 are entitled to attorney’s fees is where fees are an element of damages in the tort action. See Sheridan, 391 So.2d at 237. In a negligent procurement action, the insured’s damages may include a claim for attorney’s fees against its agent because, if the agent had successfully contracted for coverage, a defense would have been provided under the policy. The agent’s failure to secure that coverage forces the insured to fund its own defense and is, therefore, a legitimate component of damages. See Duncanson v. Serv. First, Inc., 157 So.2d 696, 699 (Fla. 3rd DCA 1963); Bitz v. Ed Knox Clu & Assocs., 721 So.2d 823, 824 (Fla. 3rd DCA 1998). Davis’ attorney’s fees are not a component of her damages here because she was not forced to incur those fees as a result of her agent’s failure to procure insurance coverage. She has no contractual agreement or statutory right to have Consolidated, Bethel or NIC pay her fees. See Sheridan, 391 So.2d at 237. Rather, Bethel may have a cognizable claim for attorney’s fees against Consolidated. Davis, however, does not. For that reason, we reverse the trial court’s award of Davis’ attorney’s fees against Consolidated.

Affirmed in part, reversed in part.

KLEIN and STEVENSON, JJ., concur.


author: KLEIN, J.

text:
    Dietayvious TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1757.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of robbery with a firearm and sentenced to life in prison as a prison releasee reoffender. He argues that the trial court erred in not conducting a hearing on the necessity of his being shackled during his trial. We affirm because appellant did not ask for a hearing.

The initial decision to shackle appellant in this case was made by the sheriff, not the court. That was the procedure occurring in the two controlling cases as well. Bello v. State, 547 So.2d 914, 918 (Fla.1989); Finney v. State, 660 So.2d 674 (Fla.1995).

In Finney, the Florida Supreme Court held that, in order to preserve a shackling issue for appeal, the defendant must ask the court for an inquiry on the necessity of the shackling. As the court explained:

We also reject Finney’s claim that the trial court erred when it failed to inquire into the reasons why he was shackled during the penalty phase of the trial. Finney relies on this Court’s decision in Bello v. State, 547 So.2d 914 (Fla.1989). In Bello, we held that where defense counsel objects to and requests inquiry into the necessity for shackling the defendant during the penalty phase of a capital trial, the trial court must not defer to the sheriffs apparent judgment that such restraint is needed without first inquiring into the reasons for that decision. 547 So.2d at 918.
At the beginning of the penalty phase in this case, defense counsel requested that Finney’s shackles be removed. The judge asked, “That is a security measure that the Sheriffs Office would like?” To which the bailiff responded, “Yes.” The judge then denied defense counsel’s request and pointed out that the shackles were obscured by a board and could be removed during a recess before Finney took the witness stand. Defense counsel responded that Finney had agreed to behave throughout the proceeding. The judge then told counsel that the decision was in the sheriffs area of expertise and she would support that decision. No further inquiry was made. Unlike defense counsel in Bello, counsel in this case acquiesced to proceeding without further inquiry. No objection was made to the court’s decision to defer to the sheriff on the matter, nor did counsel request that the court inquire into the reasons for the sheriffs decision. Because the specific claim raised here was never raised to the trial court, the claim is not preserved for appeal.

Finney, 660 So.2d at 682-83.

In the present case, the defendant did not ask the court to make inquiry into the necessity for shackles, as the defendant did in Bello, but failed to do in Finney. The entire discussion in regard to the shackling, which occurred before the jury was brought in, was as follows:

MR. MCNAMEE: Also Mr. Taylor is shackled at the moment.
THE COURT: He will stay shackled.
MR. MCNAMEE: We would object to that. My concern is the noise that the shackles make.
THE COURT: Sir, he will stay shackled. There’s a skirt on the table and that’s the purpose of the skirt.
MR. MCNAMEE: There’s another issue regarding should Mr. Taylor testify.... The procedure for Mr. Taylor to testify is the jury be sent out and he just ends up magically in the stand. If that’s the case, I want every witness to be treated the same way including Mr. Taylor.
THE COURT: Denied.

Finney’s requirement that the defendant request an inquiry as to the need for shackling is consistent with the principle that the burden of demonstrating error is on the defendant. Goodwin v. State, 751 So.2d 587, 544 (Fla.1999). In this case, as in Finney, appellant has failed to demonstrate that the trial court committed an error, because the record is devoid of any information as to why appellant was shackled.

Although it is unnecessary to our conclusion, we also note that there is no indication that the jury knew that the appellant was shackled. Defense counsel expressed concern about the shackling in the event appellant testified, but that contingency did not occur. Accordingly there was no prejudice. Sireci v. Moore, 825 So.2d 882 (Fla.2002)(no prejudice where jury did not see defendant in shackles). Affirmed.

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


author: STONE, J.

text:
    Daniel FERTILIEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2538.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.

      Carey Haughwout, Public Defender, and Anthony Calvello, 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.
   STONE, J.

We affirm Fertilien’s conviction and sentence. At the conclusion of the jury trial on charges of trafficking in cocaine, resisting arrest without violence, and bribery, it was noticed that the verdict form failed to include the word “guilty” as to count I. Nevertheless, the jury had checked the space that otherwise indicated he was guilty of trafficking in cocaine

When the verdict was being read, the court recognized the error and attempted to correct it by inserting the omitted term “guilty” and re-read the verdict as to count I, indicating that the jury had found Fer-tilien guilty. When polled, the jurors agreed that the verdict as read was their verdict. Outside the presence of the jury, defense counsel asked the court to amend the verdict form to read “Guilty.” The court proposed to have the jury return to clarify whether the verdict was guilty. Defense counsel agreed, initially, but after talking to Fertilien, moved for mistrial. The court denied the motion and then asked the members of the jury to return to the courtroom. In open court, each member of the jury was asked whether she or he had found Fertilien guilty or not guilty of trafficking in cocaine. They all indicated that they had found the defendant guilty.

Notwithstanding that Fertilien never requested that the jury return to the jury room for further deliberation, he argues here that the trial court should have sent the jury back into the jury room for further deliberations, rather than ask the jury to confirm their verdict in open court.

A ruling on a motion for mistrial is within the sound discretion of the trial court. Cole v. State, 701 So.2d 845, 853 (Fla.1997). Here, Fertilien was not so prejudiced by the defect in the verdict that the error, in the manner it was addressed, deprived him of a fair trial. It has long been recognized that “mere inaccuracy of expression will not vitiate the verdict if the intention of the jury is clearly manifest in the language used.” See Herring v. State, 131 Fla. 627, 180 So. 15, 15 (1938)(holding that jury verdict which read, ‘We the jury, ... find the defendant Robert H. Herring, guilty, $238.81” was sufficient where defendant had been charged with embezzlement of the sum of $238.81).

Here, it is clear from the verdict form that the jury intended to find Fertilien guilty of the offense for which he was charged. The verdict form instructed the jury to “select only one” of the statements listed on the form. As to count I, the jury could have placed a mark in front of the statement, “not guilty” as it did for the other two counts. Instead, the jury placed a check mark next to the charge “Trafficking in Cocaine.” Further, when polled, the jury confirmed that it had submitted a verdict of guilty, as to count I.

Fertilien urges this court to construe Esskuchen v. State, 756 So.2d 156 (Fla. 5th DCA 2000), as mandating that failure to have a verdict resubmitted to the jury for further deliberations when the verdict contains a clerical error is fundamental error. In Esskuchen, the defendant argued that it was too late to correct an error in the verdict form once the verdict was read. The Fifth District rejected this argument and held that “a clerical error in the verdict form which becomes apparent before the jury is polled or discharged may be resubmitted to the jury for clarification.” Id. at 158.

We see nothing in Esskuchen that proscribes the method used by the trial court, here, in clarifying the jury’s verdict.

We conclude that there is no single method of resolving an error in the verdict form. As such, the trial court did not abuse its discretion by denying the motion for mistrial. Further, Fertilien did not demonstrate that the court’s failure to resubmit the corrected verdict to the jury for further deliberations was fundamental error.

STEVENSON and MAY, JJ., concur.


text:
    SWAROVSKI NORTH AMERICA, LTD., a Rhode Island corporation, and Swarovski Retail Ventures Ltd., Inc., a Rhode Island corporation, Appellants, v. HOUSE OF CHINA, CRYSTAL & SILVER, INC., a Florida corporation, Appellee.
    No. 4D02-3907.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    John W. Little, III, P.A., and Barbara Bolton Litten of Steel Hector & Davis LLP, West Palm Beach, for appellants Swarovski North America, Ltd. and Swar-ovski Retail Ventures, Ltd., Inc.
    Laurence T. Adelman and Jeffrey A. Adelman of Laurence T. Adelman, P.A., Coral Springs, for appellee House of China, Crystal & Silver, Inc.
   PER CURIAM.

This is an appeal from a non-final order denying the appellants’ motion to dismiss for improper venue. The motion was based on a mandatory forum selection clause contained in the contract document out of which this litigation arose. The clause required any judicial proceeding arising therefrom to be brought only in a court located in the State of Rhode Island. We reverse.

The appellant is a manufacturer and distributor of lead crystal products with its principal place of business in Rhode Island. The appellee is a Florida retailer. The two entered into a written contract which contained unambiguous forum selection provisions in which the parties agreed that any litigation arising out of the business relationship would be brought only in the state or federal court within Rhode Island. In Bombardier Capital Inc. v. Progressive Marketing Group, Inc., 801 So.2d 131 (Fla. 4th DCA 2001), with facts very similar to the instant case, this court held that unambiguous mandatory forum selection clauses contained in contract documents are presumptively valid and should be enforced in the absence of a showing that enforcement would be unreasonable or unjust. The appellee has failed to show that the enforcement of the venue clause would be unreasonable or unjust. We, therefore, direct the trial court to enter an order dismissing the appellee’s amended complaint for improper venue.

GUNTHER, HAZOURI and MAY, JJ„ concur.

      . The trial court granted the appellants’ motion to dismiss two counts of the amended complaint that alleged a breach of contract. The two remaining counts involved allegations of tortious interference with a business relationship.


text:
    Blake J. CASPER, d/b/a Caspers Industries, L.L.C., Appellant, v. Lynn GREENSTEIN and Mark Greenstein, Appellees.
    No. 4D03-57.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Allen S. McConnaughhay, Tallahassee, for appellant.
    Ronald M. Simon, P.A., Miami, and Bambi G. Blum of Bambi G. Blum, P.A., Miami, for appellees.
   PER CURIAM.

We withdraw the previous opinion filed on May 21, 2003 and substitute the following.

Appellee plaintiffs sued appellant, as well as McDonald’s Corporation, as a result of a slip and fall in one of appellant’s stores in Leon County. The only basis on which venue could be proper in Palm Beach County, where this suit was filed, was if McDonalds was a party. Mc-Donalds’ motion for summary judgment was granted, with leave for plaintiffs to amend. Because McDonalds remains a party at this time, we must affirm, but we do so without prejudice to renewal of the motion to dismiss or transfer venue to Leon County, in the event McDonalds is no longer a party.

KLEIN, SHAHOOD and GROSS, JJ., concur.


text:
    Dexter RAMDAMAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2755.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order revoking the appellant’s probation but remand for the trial court to enter a written order in accordance with its oral pronouncement. See Taramona v. State, 707 So.2d 1194 (Fla. 3d DCA 1998).

GUNTHER, POLEN and HAZOURI, JJ., concur.


text:
    Joseph DELILLO, Appellant, v. Catherine DELILLO, Appellee.
    No. 4D02-1788.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Irene Annunziata of The Law Office of Irene Annunziata, P.A., Fort Lauderdale, for appellant.
    Catherine DeLillo, Plantation, pro se.
   SHAHOOD, J.

We affirm as to the tax issue, but reverse and remand the award of attorney’s fees because the trial court did not make findings concerning the former wife’s need and the former husband’s ability to pay fees and costs. Moreover, the former wife was awarded an amount of fees that was different than that testified to at the hearing.

The prevailing law requires the trial court in a dissolution proceeding to assess the needs of the party seeking fees and the financial resources of both parties and award reasonable fees accordingly. See Rosen v. Rosen, 696 So.2d 697, 698 (Fla.1997); § 61.16, Fla. Stat. (2002). The trial court must make findings to substantiate the awards and allow for meaningful review. See Hernandez v. Riley, 821 So.2d 456 (Fla. 1st DCA 2002); see also Simpson v. Simpson, 780 So.2d 985 (Fla. 5th DCA 2001)(the trial court must make findings as to a reasonable hourly rate and the number of hours reasonably expended).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS.

WARNER and KLEIN, JJ., concur.


text:
    Carlo LEONARDO, Appellant, v. Arthur FREEMAN, Appellee.
    No. 4D01-3365.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    John G. George of John G. George, P.A., Fort Lauderdale, for appellant.
    Austin Carr of Austin Carr, P.A., Coral Gables, for appellee.
   PER CURIAM.

Affirmed. See Hochstadt v. Orange Broadcast, 588 So.2d 51 (Fla. 3d DCA 1991)(holding that appellant was collaterally estopped from relitigating in state court the same issues that were first litigated in the federal bankruptcy action).

KLEIN, GROSS and TAYLOR, JJ., concur.


text:
    Edward DORCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-440.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.

      Glenn H. Mitchell, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFranee, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction for aggravated assault. We reject appellant’s contention that fundamental error occurred when the court received the jury verdict in his absence. By his failure to notify either the bailiff or his lawyer of his whereabouts during a recess, appellant voluntarily absented himself from the presence of the court within the meaning of Florida Rule of Criminal Procedure 3.180(c). Appellant’s attorney did not object to the taking of the verdict in appellant’s absence. Nor did appellant attempt to make any record in the trial court of his reason for not being present so as to demonstrate that he did not voluntarily absent himself under the rule.

WARNER, POLEN and GROSS, JJ., concur.


text:
    Sammy ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-835.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFranee, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s convictions, but, upon proper concession by the State, reverse his sentence and remand for resen-tencing, during which the trial court will again have discretion to sentence appellant as a habitual offender upon proper proof of convictions and findings of fact required by statute. See Cameron v. State, 807 So.2d 744 (Fla. 4th DCA 2002); Montgomery v. State, 770 So.2d 236 (Fla. 4th DCA 2000); and Harris v. State, 737 So.2d 1159 (Fla. 4th DCA 1999).

AFFIRMED in part; REVERSED and REMANDED, in part.

TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    Stephen JUNDA, Appellant, v. Maria C. DIEZ, Appellee.
    No. 4D02-5079.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for appellant.
    Michael B. Rubin of the Law Offices of Michael B. Rubin, Stuart, for appellee.
   PER CURIAM.

Appellant Stephen Junda (“Junda”) and Maria Diez (“Diez”) were married on December 27, 1995. Diez filed for dissolution of their marriage on November 30, 1998. On December 3, 1999, the trial court granted Junda’s motion to amend the pleadings to seek an annulment on the ground that Diez, a native of Venezuela, was still married to her husband in that country.

Approximately sixteen months later, on April 12, 2001, a final hearing was held. Because Diez was unable to provide documentary evidence that her Venezuelan marriage had been terminated by divorce, the trial court granted Diez a continuance to allow her 45 days leave to present this evidence. Within the time allowed, Diez filed a document purporting to be evidence of her Venezuelan divorce. The trial court rejected this evidence and entered a final judgment of annulment on July 3, 2001. Diez neither filed a motion for rehearing nor an appeal. Junda then remarried on November 16, 2001.

A year after the final judgment, on July 3, 2002, Diez filed a motion for relief under Florida Rule of Civil Procedure 1.540(b) on the ground that she was in possession of “newly” discovered evidence, i.e., a divorce document certified by an expert witness, a Venezuelan attorney. Diez requested that the court set aside the judgment of annulment. At the November 4, 2002 hearing, the trial court ruled that Diez’s newly discovered evidence was sufficient to set aside the annulment. Without adequate notice to Junda, the trial court immediately proceeded on the merits of the dissolution claim. On December 5, 2002, a final judgment of dissolution was entered.

We agree with Junda’s contention that the trial court’s decision to vacate the annulment and instead grant a dissolution was reversible error. That judgments of trial courts are presumed final is axiomatic in our system of justice. See Bane v. Bane, 775 So.2d 938, 941 (Fla.2000). This finality is eroded by vacating judgments based on a claim of newly discovered evidence, and consequently, this remedy should be seldom granted and only when the party seeking relief has exercised due diligence. See Brown v. McMillian, 737 So.2d 570, 571 (Fla. 1st DCA 1999).

In the instant case, Diez failed to exercise due diligence in obtaining the necessary documentation and is not entitled to relief under Rule 1.540(b). Diez has never claimed that the trial court erred in denying her adequate time to obtain the necessary documentation of her Venezuelan divorce prior to entering the annulment judgment. Instead, Diez argues that evidence of her Venezuelan divorce is “newly” discovered.

The record of the April 12 and November 4 hearings reveal testimony and discussion concerning the inefficiencies of the Venezuelan legal system and the economic hardship that would be imposed upon Diez by a search for the appropriate documentation. Diez was aware both that Venezuela archived documentation of divorces and that some official record of her divorce was available. This is obvious from the record, because Diez originally obtained a decree that was for another couple and later provided the trial judge with a decree that may have been for her marriage, but was entirely unauthenticated. Thus, the existence of the necessary documentary evidence was known to Diez at the time of the initial hearing and cannot logically be deemed to be newly discovered by Diez after the entry of the annulment judgment.

For Diez to claim on the eve of the expiration of the Rule 1.540(b) filing period that evidence of her divorce and related expert testimony was “newly” discovered is disingenuous at best. The vagaries of the Venezuelan legal system and economic hardship do not justify Diez’s failure to exercise due diligence in obtaining evidence she obviously knew existed at the time of the initial hearing in this matter.

Given the length of time the case was pending, the fact that Diez knew of the existence of the necessary documentation before the initial trial, the lack of the exercise of due diligence by Diez, the continuance granted for Diez to obtain the necessary documentation, the failure of Diez to request any additional time, and the rules and precedent of our legal system, we conclude that the trial court abused its discretion in granting Diez’s 1.540(b) motion on the grounds of newly discovered evidence.

REVERSED AND REMANDED FOR RE-ENTRY OF THE FINAL JUDGMENT OF ANNULMENT.

GUNTHER, KLEIN and TAYLOR, JJ., concur.


text:
    Dolores P. ZAINTZ, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Facs Group Inc., Appellees.
    No. 4D03-1168.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Dolores P. Zaintz, Miramar, pro se.
    No appearance required for appellees.
   PER CURIAM.

Affirmed summarily pursuant to Florida Rule of Appellate Procedure 9.315.

GUNTHER, POLEN and STEVENSON, JJ., concur.


text:
    Karina E. ANGULO, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, State of Florida, and Advance America Cash Advance, Appellee.
    No. 4D03-1423.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.
    Karina E. Angulo, Hialeah, pro se.
    John D. Maher, Tallahassee, for Unemployment Appeals Commission.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

WARNER, FARMER and STEVENSON, JJ., concur.


text:
    Scott A. HUITT, Petitioner, v. Helen HSIA, Respondent.
    No. 4D03-714.
    District Court of Appeal of Florida, Fourth District.
    July 2, 2003.

      Lynn G. Waxman of Lynn G. Waxman, P.A., and Warren B. Brams of Warren B. Brams, P.A., West Palm Beach, for petitioner.
    Steven L. Winig of Brody, Cohen & Winig, P.A., West Palm Beach, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny respondent’s motion for rehearing, but substitute the following for our May 20, 2003, slip opinion, correcting a factual misstatement:

The former husband filed this petition for writ of certiorari to review an order denying the disqualification of a domestic relations commissioner hearing the former wife’s motion to modify custody and to relocate the parties’ child to Virginia where she lives. He sought the commissioner’s disqualification from future proceedings on the ground that he feared the commissioner was biased against him. The commissioner stated in her report that a factor in her recommendation in favor of the mother was the mother’s religious beliefs and the father’s lack thereof.

The Florida Code of Judicial Conduct Canon 3B(5), provides:

A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including ... bias or prejudice based upon ... religion.... This section does not preclude the consideration of ... religion ... when [it is an] [ ] issue[ ] in the proceeding.

Because the parties’ religious differences were not an issue in the proceeding, the commissioner’s questioning and statements would reasonably cause the father to fear the commissioner was personally biased against him on the basis of religion. We grant the petition, and on remand, the case shall be assigned to a different commissioner.

WARNER, POLEN and TAYLOR, JJ., concur.