text:
    Jack Bruce KATZ, Appellant, v. N.M.E. HOSPITALS, INC. d/b/a West Boca Medical Center, Roger A. Levy, M.D. and Roger A. Levy, P.A., Appellees.
    No. 4D02-933.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Barbara Greenblatt of Barbara Green-blatt, P.A., Boca Raton, for appellant.
    Louise H. McMurrary and James C. Sawran of McIntosh, Sawran, Peltz & Car-taya, P.A., Miami, for Appellee-NME Hospitals, Inc. d/b/a West Boca Medical Center.
   PER CURIAM.

Barbara Greenblatt challenges an order compelling her to appear for a deposition duces tecum in aid of execution of an award of attorney’s fees. We treat this appeal as a petition for writ of certiorari and deny it.

This case began when Jack Bruce Katz (Katz) filed a medical malpractice action against respondent, NME Hospitals, Inc. (NME), and certain physicians, based on medical treatment Katz received in 1994. After ruling in favor of NME, the trial court rendered an order awarding attorneys’ fees and costs to NME and providing that Katz and his attorney, Barbara Greenblatt (Greenblatt), would share the $292,410.75 fee obligation equally. NME served Greenblatt with a Subpoena Duces Tecum in Aid of Execution requesting copies of various financial documents and statements and requiring Greenblatt to appear for deposition. Greenblatt objected to the subpoena, essentially claiming that the subpoena was based on an unenforceable judgment and that the trial court lacked jurisdiction to issue the subpoena because of various pending appeals.

After numerous attempts by Greenblatt to postpone or avoid production of the documents and deposition and a failure to appear, NME moved to compel her compliance. Following the hearing, the trial court overruled Greenblatt’s objections and ordered her to appear for deposition, produce all documents under the duces tecum, and pay $55.00 for failure to appear at her previous deposition.

Because Greenblatt seeks review of a non-final discovery order compelling her appearance and production at a deposition duces tecum, the only remedy available to her is a writ of certiorari. See Martin Johnson, Inc. v. Savage, 509 So.2d 1097, 1099-100 (Fla.1987). However, she has failed to make the necessary showing of a departure from the essential requirements of law causing material harm for which there is no adequate remedy on final appeal. See Bared & Co. v. McGuire, 670 So.2d 158, 157 (Fla. 4th DCA 1996)(stating that “[i]t is only if the petition demonstrates harm that cannot be corrected on final appeal that we have the power to exercise discretion to grant or withhold the writ. It must be made, at least prima facie, clear in the petition that the harm is incurable by final appeal.”).

In this case, the challenged order is one that compels discovery in aid of execution of an unsuperseded order awarding fees. Absent a supersedeas bond or order staying further proceedings in relation to the judgment, judgment creditors are entitled to pursue execution and collection of the judgment. See Bernstein v. Bernstein, 48 So.2d 356 (Fla.1949); Mellon United Nat’l Bank v. Cochran, 776 So.2d 964, 964 (Fla. 3d DCA 2000); Starkey v. Linn, 727 So.2d 386, 388 (Fla. 5th DCA 1999); Randolph v. Randolph, 618 So.2d 770, 771 (Fla. 5th DCA 1993); Finst Dev., Inc. v. Bemaor, 449 So.2d 290, 291 (Fla. 3d DCA 1983). Thus, the trial judge’s enforcement of discovery in aid of execution was proper.

Further, we find no merit in Green-blatt’s arguments that the fee award is unenforceable because the underlying judgment is void for various reasons. Here, where the judgment had not been vacated pursuant to Florida Rule of Civil Procedure 1.540, the trial court could properly enter the award of fees under section 57.105, Florida Statutes, during the pen-dency of appeal of the underlying judgment. See Bernstein v. Berrin, 516 So.2d 1042, 1042 (Fla. 2d DCA 1987)(holding that a notice of appeal does not divest the trial court of jurisdiction to enter a fee award); Ruby Mountain Constr. & Dev. Corp. v. Raymond, 409 So.2d 525, 526 (Fla. 5th DCA 1982)(finding that discovery and enforcement permissible pending appeal of unsuperseded judgment); see also Wyatt v. State, 652 So.2d 453, 453-54 (Fla. 4th DCA 1995)(explaining that a motion for fees may be considered while an appeal is pending, even if there has been no specific reservation of jurisdiction).

We also reject Greenblatt’s suggestion that an item listed in the subpoena duces tecum, i.e., the request for “schedules” showing accounts receivable, would violate attorney-client privileges. Green-blatt did not file a privilege log to support a finding that any particular documents might contain privileged information. Nor did she request an in camera review of such schedules as may exist. Accordingly, the trial judge lacked a basis to protect an asserted privilege and properly compelled production.

Based on the foregoing, we deny the petition for writ of certiorari.

WARNER, STEVENSON and TAYLOR, JJ., concur.

      . This review follows numerous prior appeals to this court concerning the malpractice action.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Christopher Bryant MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D00-3819.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2002.

      Nancy A. Daniels, Public Defender, Nancy L. Showalter, Assistant Public Defender, Tallahassee, for Appellant.
    Richard E. Doran, Attorney General, Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION

PER CURIAM.

Appellant’s motion is granted to the extent it seeks rehearing; this court’s opinion released on August 28, 2002, is withdrawn; and the following opinion is substituted therefor. Appellant’s motion is denied, however, to the extent it seeks rehearing en banc and certification.

Appellant, Christopher Bryant Mosley, has raised five issues concerning his convictions for aggravated assault on a law enforcement officer with a deadly weapon, armed burglary of a conveyance, and grand theft auto while armed. We reverse the burglary conviction, because the charge was tried in the wrong venue, and affirm the remaining convictions without comment.

Appellant unlawfully entered an automobile owned by James Jones while it was parked at a service station in Orange County, on January 28, 1998. Forty-two days later, on March 11, 1998, appellant was apprehended while driving the vehicle in Columbia County following a high-speed chase from an armed robbery that occurred in Gainesville, Alachua County. The case was tried in Columbia County.

In objecting to venue on the burglary charge, appellant argued that the only burglary theory applicable to his case is unlawful entry, and that venue was not proper in Columbia County, because the unlawful entry occurred in Orange County. In rejecting appellant’s position, the trial court was persuaded by the state’s argument, based on State v. Stephens, 608 So.2d 905 (Fla. 5th DCA 1992) (on reh’g), that the burglary occurred in Columbia County, because appellant “remained in” the vehicle while in that county.

In Stephens, the defendant broke into a car in Volusia County and led Volusia County deputy sheriffs on a high-speed chase into Seminole County, where Seminole County deputies captured and arrested him. Id. at 906 n. 2. Stephens argued on appeal that the “remaining in” language of section 810.02(1), Florida Statutes, did not apply in his case, because he unlawfully broke into the car in Volusia County. He contended that the “remaining in” theory of burglary would apply only if, after lawfully entering the car, he formed the intent to steal the car and remained unlawfully therein after the owner had ordered him out of the car. Id. at 907.

In concluding that “remaining in” is a continuing act for venue purposes, the Fifth District distinguished several cases addressing the “remaining in” theory, all of which involved lawful initial entry that subsequently became unlawful. The court concluded that those cases “do not address the question of whether burglary can also be proved under this statute by alleging and proving that a defendant not only unlawfully entered a conveyance, but also unlawfully remained there, with the unlawful intent to steal it.” Id. at 907 n. 11.

Appellant argues on appeal that the basis for the Stephens decision has been nullified by Delgado v. State, 776 So.2d 233 (Fla.2000) (revised opinion), as well as other decisions that rely on Delgado. In Delgado, the Florida Supreme Court recognized that there are two methods by which burglary can be committed, ie., unlawful entry with the intent to commit a crime, or remaining in a structure or conveyance with the intent to commit a crime therein. The issue before the court was “whether the phrase ‘remaining in’ found in Florida’s burglary statute should be limited to situations where the suspect enters lawfully and subsequently secretes himself or herself from the host.” Id. at 238. After considering the common-law roots and evolution of the crime of burglary, the court concluded that the “remaining in” burglary theory applied “only in situations where the remaining in was done surreptitiously.” Id. at 240. Although the Florida Legislature subsequently enacted section 810.015, Florida Statutes (2001), which states that the Florida Supreme Court improperly interpreted the burglary statute in Delgado and nullifies its holding, the legislature cannot nullify a judicial decision retroactively, and because the supreme court has not expressly receded from Delgado, this court is bound to apply its holding in this direct appeal. See Foster v. State, 27 Fla. L. Weekly D1360, — So.2d-, 2002 WL 1285453 (Fla. 1st DCA June 12, 2002); Braggs v. State, 815 So.2d 657 (Fla. 3d DCA 2002) (en banc), review granted, 829 So.2d 919 (Fla.2002) (consolidated with State v. Ruiz, for the purpose of oral argument).

It is apparent from reading Delgado, as well as the cases from which the court receded therein, such as Raleigh v. State, 705 So.2d 1324 (Fla.1997); Jimenez v. State, 703 So.2d 437 (Fla.1997); and Ray v. State, 522 So.2d 963 (Fla. 3d DCA 1988), that the “remaining in” theory of burglary applies when the facts show a lawful entry. See also Johnekins v. State, 823 So.2d 253, 257 (Fla. 3d DCA 2002) (“There was no evidence of consensual entry of the car, so a ‘remaining in’ theory did not apply.”). This conclusion is also evident from the clarifying amendments made to the 2001 version of section 810.02(l)(b), which defines burglary as either (1) unlawful entry with intent to commit a crime therein, or (2) lawful initial entry and remaining in with intent to commit a crime when the remaining in is surreptitious, after permission has been withdrawn, or to commit a forcible crime.

Because the facts in Stephens involved an unlawful entry, we conclude that the Fifth District incorrectly found that venue in Seminole County was proper under the “remaining in” theory of burglary. Therefore, we decline to follow Stephens and certify conflict with that decision.

The Florida Constitution gives a defendant the right to be tried in the county where the crime takes place. See Art. I, § 16, Fla. Const. When the acts constituting the crime are committed in two or more counties, however, the trial may be held in any county where any of the criminal acts occurred. See § 910.05, Fla. Stat. (1997). Venue is an essential element of the crime charged, and if the defendant can show that the crime did not occur in the venue alleged in the charging document, or that the prosecution has not presented sufficient proof that the crime occurred in the county where the trial was held, the conviction cannot stand. See Tucker v. State, 459 So.2d 306, 308 (Fla.1984).

Turning to the facts of this case, we agree with appellant that there is no evidence of burglary by unlawful entry of the vehicle in Columbia County so as to permit trial in Columbia County. The record shows that the Columbia County officers received a BOLO which advised them that the highway patrol was in pursuit of a stolen car that had just been involved in an armed robbery in Gainesville, Alachua County. The Columbia County officers joined the hot pursuit and arrested appellant when he drove into a ditch in Columbia County. Thus, as appellant asserts, there is absolutely no evidence that he unlawfully entered the car in Columbia County; rather he was pursued nonstop from one county to another while already in the vehicle.

As explained above, because this case involves an unlawful entry, the “remaining in” theory of burglary is inapplicable and cannot form a basis for venue in Columbia County. Venue was therefore improper in Columbia County, and the burglary conviction must be reversed. See id. at 308.

We affirm appellant’s remaining convictions. Because, however, reversal of the burglary conviction may impact the sentences imposed on the other convictions, we reverse the sentences for such convictions and remand the case as to them for resentencing.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

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


text:
    Calvin SWAIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-668.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 2003.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

      Charlie Crist, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Calvin Swain appeals sentences he received in seven separate cases after being accorded postconviction relief. Based upon the State’s concession of error, we reverse the sentences in trial court case numbers 94-10608, 95-16854, 97-2544, 97-11112, 97-11118, and 97-20542 and remand for resentencing.

First, as the State concedes, the sentences in case numbers 94-10608 and 95-16854 were initially true split sentences and thus cannot now exceed the suspended portion of the initial sentence. See Poore v. State, 531 So.2d 161, 164 (Fla.1988). Thus, in these cases, Mr. Swain cannot be sentenced in excess of three years, with credit for time actually served. See Dennison v. State, 801 So.2d 209 (Fla. 2d DCA 2001).

Second, case numbers 94-10608, 95-16854, 97-2544, and 97-11113 were properly scored on a 1994 scoresheet. Thereafter, the trial court imposed the sentences in the 1997 cases consecutive to the sentences in the 1994 and 1995 cases. Under the applicable sentencing scheme, although the sentences could be imposed consecutively, the combined term of incarceration could not exceed the guidelines without reason for a departure. See Fla. R.Crim. P. 3.702(d)(19). In this case, the consecutive sentences exceed the guidelines. Moreover, the State concedes that the trial court erred in including eighteen points for possession of a firearm on the 1994 scoresheet applicable to each of these offenses. See White v. State, 714 So.2d 440, 444 (Fla.1998).

Finally, as to case numbers 97-11112 and 97-20542, the trial court erroneously included twelve points for community sanction violation when there was no community sanction violation applicable to that scoresheet. See Copeland v. State, 765 So.2d 216, 216 (Fla. 1st DCA 2000).

We therefore reverse and remand for resentencing pursuant to this opinion. Because the resentencing may result in much shorter sentences and Mr. Swain has served a significant portion of these sentences, the trial court shall conduct resen-tencing within thirty days from the date this court issues its mandate.

Reversed and remanded.

ALTENBERND, STRINGER and DAVIS, JJ., Concur.


author: GREEN, OLIVER L., Senior Judge.

text:
    STATE of Florida, Appellant, v. Reinaldo VALDES, Jr., Appellee.
    No. 2D01-4834.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.
    John Thor White, St. Petersburg, for Appellee.
   GREEN, OLIVER L., Senior Judge.

The State appeals the downward departure sentence imposed on Reinaldo Valdes, Jr., for two counts of possession of cocaine and two counts of possession of marijuana. Because the trial court’s stated reason for departure is invalid, we reverse.

The State charged Valdes with two counts of possession of cocaine and two counts of possession of marijuana. Valdes filed motions to suppress the drugs seized from him, contending that the searches that produced these drugs were illegal.

At the start of the hearing scheduled to address these motions, counsel for Valdes told the trial court that Valdes would be willing to plead to the charges in exchange for a sentence below the lowest permissible sentence allowed by the Criminal Punishment Code. In requesting the departure sentence, counsel for Valdes admitted that there was no legal basis for the court to depart downward but argued that the lowest permissible sentence under the Criminal Punishment Code was excessive because it “overscored the severity” of Valdes’ criminal history. Counsel pointed out that Valdes had pleaded guilty nine years earlier to aggravated assault and robbery with a firearm, that adjudication had been withheld in that case, that Valdes had received a youthful offender sentence of three years’ probation, and that Valdes had successfully completed his probation. Counsel argued that since that time, Valdes’ criminal history had been minor.

The State objected to any potential downward departure sentence. The State noted that since Valdes had completed his youthful offender sentence, he had never gone more than a year without being charged with a crime in Pinellas County. The State specifically requested a sentence under the Criminal Punishment Code, noting that the lowest permissible sentence was 23.2 prison months and that it would be satisfied with that sentence.

After hearing these arguments, the trial court engaged Valdes’ counsel in a discussion about the downward departure reasons allowed by the federal sentencing guidelines. The trial court then offered Valdes a sentence of sixteen months in prison in exchange for a plea of no contest. The State again objected and asked the trial court to state its reason for departure on the record. The trial court stated that it was offering the downward departure sentence because the sentence produced by the Criminal Punishment Code overrepresented the seriousness of Valdes’ prior criminal record. Valdes accepted the trial court’s plea offer and pleaded no contest to the charges. The trial court sentenced Valdes to sixteen months in prison pursuant to its offer. The State then brought this appeal, arguing that the trial court’s reason for departing downward was invalid.

In Hendrix v. State, 475 So.2d 1218 (Fla.1985), the trial court imposed an upward departure sentence after finding that such a sentence was justified by Hendrix’s prior record. On appeal, Hendrix contended that the upward departure was improper because his prior record had already been taken into account by the sentencing guidelines. In reversing for imposition of a guidelines sentence, the supreme court stated:

[T]he guidelines were adopted to establish a “uniform set of standards to guide the sentencing judge” and “to eliminate unwarranted variation in the sentencing process by reducing the subjectivity in interpreting specific offense- and offender-related criteria and in defining their relative importance in the sentencing decision.” [In Re Rules of Criminal Procedure (Sentencing Guidelines), 489 So.2d 848,] 849 [ (Fla.1983) ]; Fla. R.Crim. Pro. 3.701(b).
In the instant case the trial judge departed from the guidelines based on the defendant’s prior criminal convictions. This was not a proper reason for departing. The guidelines have factored in prior criminal records in order to arrive at a presumptive sentence.... To allow the trial judge to depart from the guidelines based upon a factor which has already been weighed in arriving at a presumptive' sentence would in effect be counting the convictions twice which is contrary to the spirit and intent of the guidelines.

Id. at 1219-20.

While Hendrix dealt with the trial court departing upward on the basis of prior convictions already reflected by the recommended sentence under the guidelines, the same considerations arise when a trial court departs downward on the basis of prior convictions already accounted for by the Criminal Punishment Code. A trial court may not depart downward based on its belief that the lowest permissible sentence is too harsh in accounting for the defendant’s prior record because the Criminal Punishment Code scoresheet has already taken the defendant’s prior record into account. See State v. Lerman, 624 So.2d 849, 849 (Fla. 2d DCA 1993) (reversing a downward departure sentence that was based on the trial court’s disagreement with the recommended sentence derived from the sentencing guidelines); State v. Baker, 498 So.2d 1031, 1032 (Fla. 1st DCA 1986) (reversing a downward departure sentence imposed because the trial court believed that the recommended sentence under the guidelines was too harsh and noting that “though the guidelines aren’t meant to usurp all of the judge’s discretion, it is improper to depart based on the trial court’s perception that the recommended sentence under the guidelines is not commensurate with the seriousness of the crime”). A downward departure on this basis represents nothing more than the trial court’s disagreement with the weight the Criminal Punishment Code has given to prior convictions.

In this case, the trial court’s sole reason for imposing the downward departure sentence was its belief that the Criminal Punishment Code overstated the seriousness of Valdes’ prior convictions. Under Hendrix, Lerman, and Baker, this is an improper reason for sentencing below the lowest permissible sentence. Therefore, we reverse Valdes’ sentence. Because the trial court induced Valdes’ plea with the offer of a downward departure sentence, on remand Valdes must be given the opportunity to either withdraw his plea or accept a sentence pursuant to the Criminal Punishment Code.

Reversed and remanded.

ALTENBERND and COVINGTON, JJ., Concur.


author: FULMER, Judge.

text:
    Dale Everette INMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2898.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 2003.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Dale Inman appeals his sentence imposed for trafficking in amphetamine. We reverse and remand with directions to the trial court to strike the $50,000 fine.

After Inman entered a guilty plea to trafficking in amphetamine, the trial court sentenced him as a youthful offender to two years’ community control followed by three years’ probation. The trial court questioned whether it was required to impose the statutorily mandated $50,000 fine under the trafficking statute, section 893.135(l)(f)(l)(a), Florida Statutes (1997). Ultimately, the court determined that the fine was mandatory.

We agree with Inman’s argument on appeal that because the trial court elected a youthful offender sanction, the fine was not authorized. The youthful offender statute specifically states that the penalty authorized therein is “[i]n lieu of other criminal penalties authorized by law.” § 958.04(2), Fla. Stat. (1999). Although we have not previously addressed the imposition of a mandatory fíne when a youthful offender sentence is imposed, we have consistently held that other minimum mandatory sentencing provisions are not applicable to a youthful offender sentence. See State v. Wooten, 782 So.2d 408 (Fla. 2d DCA 2001); Ellis v. State, 475 So.2d 1021 (Fla. 2d DCA 1985). These cases make clear that the youthful offender sentencing provisions preempt the statutory penalties for the substantive offense. Therefore, because the $50,000 fine is not authorized under the youthful offender statute, we reverse and remand for the trial court to delete the fine.

Reversed and remanded with directions.

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


text:
    R.D., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2123.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 2003.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Robert J. Krauss, Sr. Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

R.D. appeals his delinquency adjudication for robbery. We reverse because the trial court erred in excluding a defense witness without first conducting a Richardson hearing.

At the start of the adjudicatory hearing and in response to a question by the trial judge, R.D.’s counsel indicated that she was going to call two witnesses. The trial court asked all witnesses to stand and be sworn. After the witnesses were sworn, the State objected to the defense using a witness who was not disclosed in discovery. Counsel for R.D. explained that the witness had information regarding R.D.’s appearance at the time of the robbery. Counsel stated: “[the witness] has been here all morning and I have advised counsel for the State of his presence and of our intent of calling him as a witness.” The trial court ruled that the witness would not be permitted to testify because the defense had not previously disclosed the witness to the State.

The State presented testimony of a loss prevention detective for Marshall’s Department Store who positively identified R.D. as one of two people who stole merchandise from the men’s department and engaged in a physical altercation with the detective before fleeing from the store. The detective indicated that R.D. had changed his appearance between the robbery and the adjudicatory hearing and explained that R.D. wore his hair in dreadlocks during the robbery. R.D. testified that he was misidentified, that he was not involved in the robbery, and that he did not wear his hair in dreadlocks on the date of the robbery.

When a trial court is alerted to a possible discovery violation, the trial court is required to make an adequate inquiry into the totality of the circumstances, including whether the violation was inadvertent or willful, whether it was trivial or substantial, and most important, whether it prejudiced the opposition’s ability to prepare for trial. See Richardson v. State, 246 So.2d 771, 775 (Fla.1971). Reversal is required when the trial court fails to make a sufficient Richardson inquiry and the error is not harmless. See Livigni v. State, 725 So.2d 1150 (Fla. 2d DCA 1998); Comer v. State, 730 So.2d 769 (Fla. 1st DCA 1999); C.D.B. v. State, 662 So.2d 738 (Fla. 1st DCA 1995).

We are unable to conclude on this record that the trial court’s failure to conduct a Richardson inquiry before excluding the defense witness was harmless beyond a reasonable doubt.

Reversed and remanded for a new adjudicatory hearing.

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

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: DAVIS, Judge.

text:
    Richard Alan McCUNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-821.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.

      James Marion Moorman, Public Defender, Bartow, and James C. Banks and Theresa A. Marvin, Special Assistant Public Defenders, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Richard McCune challenges his conviction for aggravated battery. He argues that the trial court erred by admitting certain evidence. We find no error in the trial court’s admission of the contents of letters and telephone calls from McCune to the victim, his wife, following the incident. We write, however, to address the issue of certain hearsay statements that were admitted into evidence.

McCune was charged with the aggravated battery of his wife. At jury trial, several witnesses testified as to the incident, but only the victim gave a first-hand account of a fight. The emergency medical technician (EMT) who responded to the incident testified as a defense witness that she was dispatched to help an individual who had fallen in the roadway. Upon arriving, she found Mrs. McCune, whom she knew. Mrs. McCune advised the EMT that she had fallen in the parking lot. McCune also presented other evidence that after the incident, the victim indicated that she had fallen. Based on this evidence and the fact that McCune did not testify, the credibility of the victim became critical.

The contested hearsay testimony came from a neighbor of the McCunes who appeared as a defense witness. While the bulk of her testimony consisted of her observations of McCune talking to his wife and helping her across the street, at the outset of her testimony, she stated:

The grand kids [sic] woke me up tossing around on the floor. And when I walked out of the bedroom door and asked them what was going on, they told me that Rickey and Kelly were having a fight.

On cross-examination, over McCune’s objection, the trial court allowed the following question by the State and answer by the witness:

Q: Ms. Jenks, isn’t it a fact, ma'am, that what Charley Gray told you was Richard is beating up Kelly? Rickey is beating up Kelly, isn’t that what she told you when she alerted you?
A: Yes, sir.

Although McCune objected that this was inadmissible hearsay testimony, the trial court overruled the objection and admitted the testimony under the doctrine of completeness. The trial court denied McCune’s subsequent motion for a mistrial.

The witness’ statement quoting her grandchild was hearsay. See § 90.801, Fla. Stat. (2000). However, whether the trial court’s ruling on the doctrine of completeness was correct is a question we need not consider, for even if it was error to admit the statement, we find it to be harmless error. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). This was a defense witness, and McCune’s attorney already had elicited a hearsay statement from her that McCune and his wife were fighting. The defense theory of this case was that the victim was injured when she fell. Since McCune’s witness previously contradicted this defense with a hearsay statement, the second hearsay statement elicited by the State was harmless. If McCune’s defense was one of self-defense that admitted an altercation, the second statement may have been prejudicial. However, in this case, even if it was error to admit the statement, the error was harmless.

Affirmed.

BLUE, C.J., and KELLY, J., Concur.

      . Under the doctrine of completeness when a party introduces part of a statement, confession, or admission, the opposing party is ordinarily entitled to bring out the remainder of the statement. This rule is not absolute and 'the correct standard is whether, in the interest of fairness, the remaining portions of the statements should have been contemporaneously provided to the jury.’

        Ramirez v. State, 739 So.2d 568, 580 (Fla.1999) (internal citations omitted) (quoting Larzelere v. State, 676 So.2d 394, 402 (Fla.1996)).


author: ALTENBERND, Judge.

text:
    Nicole STOLETZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2401.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Nicole Stoletz appeals her convictions for driving under the influence (DUI) and felony driving while license suspended (habitual), challenging only the trial court’s order requiring the permanent revocation of her driver’s license. We affirm the lifetime revocation of Ms. Stoletz’s license because both sections 316.655(2) and 322.28(2)(a)(2), Florida Statutes (1999), permit the court to do so, and nothing in section 322.28(2) prohibits such a revocation. On this point, we certify conflict with Whipple v. State, 789 So.2d 1132 (Fla. 4th DCA 2001). We remand to the trial court, however, for the correction of a scrivener’s error in Ms. Stoletz’s sentence for DUI.

Early in the dark morning hours of August 6, 1999, an accident left two cars disabled in the middle of the roadway on U.S. 41 in Manatee County. Juanita Leve-ro, a home health care worker who had witnessed the accident, approached one of the vehicles to render aid. She was joined by another bystander, Brian Wilson. Ms. Stoletz was driving south on U.S. 41 approaching the accident. She was unable to stop her car in time to avoid hitting the disabled vehicles in the roadway. This accident took the life of Ms. Levero and resulted in Mr. Wilson losing one of his legs. It also caused additional injuries to one of the occupants of the disabled vehicles. Ms. Stoletz had a blood alcohol level of 0.241.

Ms. Stoletz was charged with one count of DUI causing death, two counts of DUI causing serious bodily injury, and one count of felony driving while license suspended (habitual). Ms. Stoletz entered a plea of no contest to the charge of felony driving while license suspended. At the trial on the remaining DUI charges, the jury was apparently unconvinced that Ms. Stoletz’s impairment was a contributory cause of this accident. Thus, the jury convicted Ms. Stoletz of the lesser-included offense of DUI.

The trial court sentenced Ms. Stoletz to five years’ imprisonment for felony driving while license suspended, followed by one year of probation for DUI, a special condition of which was nine months’ incarceration in county jail. The trial court also permanently revoked Ms. Stoletz’s driving privileges pursuant to section 316.655(2).

On appeal, Ms. Stoletz argues that the trial court had no authority to permanently revoke her driver’s license because section 322.28(2) prescribes specific lengths of time for license revocation or suspension, depending upon a person’s prior DUI record. This was Ms. Stoletz’s second conviction for DUI. Section 322.28(2)(a)(2) requires a five-year license revocation for a second DUI conviction; section 322.28(2)(e) requires a permanent revocation of a driver’s license only after a fourth conviction for DUI. Ms. Stoletz argues that section 322.28(2) prohibited the trial court from imposing a lifetime revocation for a second DUI conviction. Moreover, she argues that the specific provisions in section 322.28(2), relating to the crime of DUI, control over section 316.655(2), a catch-all provision relating to state uniform traffic control. Section 316.655(2) allows a trial court to suspend or revoke a defendant’s license following a conviction for any offense in chapter 316 if the totality of the circumstances merits a suspension or revocation.

In support of her argument, Ms. Stoletz cites Whipple, 789 So.2d 1132. In Whipple, the Fourth District concluded that the trial court could not permanently revoke Mr. Whipple’s driver’s license after his second DUI conviction under section 316.655, because the more specific statute, section 322.28(2)(a)(2), controlled. Whipple, 789 So.2d at 1136. The court concluded that section 322.28(2)(a)(2) was clear and unambiguous and a more specific statute than the “catch-all” provision of section 316.655. Id. The Fourth District reasoned that section 322.28(2) indicated “the legislature did not contemplate the permanent revocation of a driver’s license without the requisite number of DUI convictions.” Id. at 1137.

We cannot agree with Whipple. Rather, we conclude that there is no conflict between sections 316.655(2) and 322.28(2)(a)(2), and that both permit the trial court’s permanent revocation of Sto-letz’s license. Section 322.28(2) provides that upon a conviction of a driver for DUI, the trial court shall revoke the driver’s license of the defendant “in accordance with the following provisions.” Subsection 322.28(2)(a)(2) states:

Upon a second conviction for an offense that occurs within a period of 5 years after the date of a prior conviction for a violation of the provisions of s. 316.193 or former s. 316.1931 or a combination of such sections, the driver’s license or driving privilege shall be revoked for not less than 5 years.

(Emphasis supplied.) Thus, nothing in section 322.28(2)(a)(2) prohibits a court from imposing a term of suspension or revocation longer than five years for a second conviction for DUI, and section 316.655(2) specifically permits a court to do so. There is no argument in this case that the trial court abused its discretion in determining that the totality of the circumstances here justified the lifetime revocation of Ms. Stoletz’s license under section 316.655(2).

We affirm the order,permanently revoking Ms. Stoletz’s license. We certify conflict with Whipple, 789 So.2d 1132. We remand to the trial court, however, to correct a scrivener’s error in Ms. Stoletz’s written sentence for DUI. The trial court imposed a Villery sentence for this charge of twelve months’ probation, a special condition of which was nine months’ incarceration. See Poore v. State, 531 So.2d 161, 164 (Fla.1988) (defining Villery sentence and citing Villery v. Fla. Parole & Probation Comm’n, 396 So.2d 1107 (Fla.1981)). However, on the form for the written judgment, the trial court inadvertently checked the boxes relating to split sentences, thus effectively imposing an illegal sentence of nine months’ county jail followed by twelve months’ probation. On remand, the trial court shall correct this scrivener’s error.

Affirmed, conflict certified. Remanded to correct scrivener’s error in sentence.

WHATLEY and SILBERMAN, JJ„ Concur.


author: COVINGTON, Judge.

text:
    Joseph Anthony AHEDO, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2971.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant. '
    Charlie Crist, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appellee.
   COVINGTON, Judge.

Joseph A. Ahedo challenges his judgment of conviction and sentence on the charge of armed burglary of a dwelling. Ahedo had pleaded guilty while reserving the right to appeal the trial court’s denial of his motion to suppress confession. We affirm the trial court’s denial of Ahedo’s motion to suppress. However, in light of issues presented concerning Ahedo’s competency, we remand for resentencing.

On May 9, 1999, at 9 a.m., officers of the Tampa Police Department placed Ahedo under arrest for carrying a concealed firearm. About thirty minutes after his arrest, Corporal Dale Osada read Miranda warnings to Ahedo. Indicating that he understood his Miranda rights, Ahedo invoked his right to remain silent and said that he wanted to speak to a lawyer first. Corporal Osada wrote “refused” on the Tampa Police Department consent and release form where Ahedo’s signature was to have been placed. Other than asking him questions such as his name, height, and weight, after Ahedo invoked his rights, officers did not attempt to further question him.

Officer A.J. Peterson took Ahedo to the sector office about four blocks away from the arrest site. Ahedo was placed in a holding cell while the officers completed their paperwork and prepared to transport him to the jail. About an hour and a half to two hours after his arrest, Ahedo told Officer Peterson that he wanted to speak to Corporal Osada.

In light of the fact that Ahedo had wanted to speak to him “about what was going on,” Corporal Osada returned to meet with Ahedo at 11:02 a.m. Corporal Osada noted, “As a normal part of my protocol, I believe I told him that he did invoke and requested that I was clear that he wanted to speak with me about this incident, at which time he answered in an affirmative manner.” However, Corporal Osada did not read Ahedo his rights again, nor did he ask Ahedo to sign a form. During the course of the conversation, Ahedo told Corporal Osada that he had taken a .857 handgun, two shotguns, a rifle, as well as some other items from a burglary in Sarasota. Ahedo described the house that he had stolen the items from and said that he had been trying to sell the firearms at the time of his arrest. He also stated that the woman who was with him at the time of the arrest had no knowledge of the burglary. Corporal Osada believed that Ahedo was admitting to the crime because he did not want his girlfriend charged.

The information Ahedo gave to the Tampa Police Department was provided to the Sarasota County Sheriffs Office. On May 26, 1999, Detective Dwight Burns of the Sarasota County Sheriffs Office went to the Hillsborough County Jail to speak with Ahedo. Detective Burns informed Ahedo of his Miranda rights, and Ahedo agreed to make a statement. Detective Burns and Ahedo spoke for several minutes concerning the burglary. In their conversation, Ahedo admitted that he took a couple of shotguns and a .357 that he later sold at a truck stop. In addition, Ahedo told Detective Burns that he wanted to make sure that his girlfriend was not implicated. At no time did Ahedo ask for counsel.

Ahedo filed a motion to suppress both his statement to Corporal Osada as well as his statement to Detective Burns. Finding that Ahedo had “initiated conversation with law enforcement officers,” the trial court denied the motion to suppress. We agree.

Once an accused has invoked his right to counsel during an interrogation, he may not be subjected to additional police questioning “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Here, all substantive questioning ceased once Ahedo invoked his rights. It was Ahedo himself, however, who reinitiated contact with the police. Ahedo was in a holding cell in the presence of Officer Peterson. However, Ahedo asked to speak with Corporal Osada. It was Corporal Osada who had given Ahedo his Miranda warnings less than two hours earlier.

Ahedo argues that his request to speak with Corporal Osada about “what was going on” was not an invitation for conversation about the investigation and, even if it were, that the State failed to show a knowing and intelligent waiver of Ahedo’s previously asserted rights. However, case law does not support Ahedo’s position. In Francis v. State, 808 So.2d 110, 127 (Fla. 2001), cert. denied, — U.S. -, 123 S.Ct. 696, 154 L.Ed.2d 635 (2002), the court rejected Francis’ contention that his knock on the door “to find out what was going on” did not become initiation of contact with the police. In reaching its decision, the court in Francis relied on the United States Supreme Court decision in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). The Bradshaw Court, in its plurality opinion, stated:

Although ambiguous, the respondent’s question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation.

Id. at 1045-46, 103 S.Ct. 2830. As examples of inquiries by an accused “relating to routine incidents of the custodial relationship,” the Bradshaw Court cited “a request for a drink of water or a request to use a telephone.” Id. Here, under the circumstances presented, it is easy to see how Corporal Osada could have reasonably interpreted Ahedo’s request to discuss “what was going on” as an inquiry relating to the criminal investigation.

Even though Corporal Osada did not readvise Ahedo of his Miranda rights or have him sign a waiver before taking his statement, this, in and of itself, does not mean that Ahedo’s waiver was invalid. See, e.g., Johnson v. State, 660 So.2d 637, 642 (Fla.1995) (“There is no requirement of additional warnings during the same period of interrogation where it is clear detainees are aware of their rights.... ”); Escobar v. State, 699 So.2d 988, 994 (Fla.1997) (no need for additional warnings when incriminating “statement was made approximately six hours after the first statement”), abrogated on other grounds, Connor v. State, 803 So.2d 598 (Fla.2001). There is no indication that the initial Miranda warnings were incorrectly stated or that Ahedo failed to understand them. Rather, Ahedo’s request to speak with Corporal Osada, the officer who had originally advised Ahedo of his rights less than two hours before, lends support to the notion that Ahedo was fully cognizant of his rights.

Likewise, the statements made to Detective Burns were properly admitted. Detective Burns advised Ahedo of his Miranda rights before and during a taped statement concerning the burglary. At no time during the questioning did Ahedo indicate that he wanted to invoke his rights. Thus, we affirm the trial court’s ruling as to the admissibility of Ahedo’s statements.

After the trial court denied Ahedo’s motion to suppress, Ahedo changed his plea to guilty without the benefit of a negotiated sentence. Sentencing was set for December 29, 2000. However, on October 18, 2000, Ahedo’s lawyer’s request to withdraw was granted, and Ahedo was permitted to represent himself. At the December 29, 2000, sentencing hearing, Ahedo consented to the appointment of new counsel, and the hearing was continued. Ahedo’s new counsel requested the appointment of a mental health expert to perform an evaluation pursuant to Florida Rule of Criminal Procedure 3.216(a). Ahe-do was examined by the expert, and at the June 6, 2001, hearing, defense counsel informed the court that, preliminarily, the expert did “not believe that there [was] an issue of competency.” However, the expert had not had the opportunity to complete his report because he was not able to review the “rather extensive psychiatric and psychological records ... that are in the custody of the Department of Corree-tions.” Based on the fact that the expert had not been able to render an opinion, Ahedo’s lawyer told the court that he would not be able to proceed with sentencing. Consequently, the trial court informed Ahedo that the sentencing was going to be continued until the report could be completed. Ahedo was asked to sign a release so that the medical records could be more easily obtained.

Despite the court’s willingness to continue the sentencing, Ahedo persisted in his request that he be sentenced that day. His lawyer announced that if the hearing was not continued, he would move to withdraw from the case. The trial court recognized the difficult situation it faced and commented, “But I’m real concerned about this particular issue. I’m going to go ahead and continue this.” Notwithstanding its concerns, the trial court did not continue the sentencing hearing. The trial court allowed Ahedo’s lawyer to withdraw and sentenced Ahedo to a mandatory life sentence.

Ahedo contends on appeal that the trial court’s Faretta hearing was inadequate and that he should not have been sentenced when there were questions remaining regarding his competence. The focus in conducting a waiver of counsel hearing should be on the defendant’s competence to waive counsel, not on his competence to represent himself. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); State v. Bowen, 698 So.2d 248, 251 (Fla.1997).

The record reveals that at the September 8, 2000, plea hearing, the trial court did inquire as to Ahedo’s age, educational level, ability to understand English, as well as his medical, psychiatric, and pharmacological history. Nevertheless, at the time of the June 6, 2001, hearing, issues remained as to Ahedo’s competency. An expert had been appointed by the trial court to examine Ahedo. However, the expert’s report had not been finalized because of his inability to review Ahedo’s extensive psychiatric and psychological records. The expert’s completed report, including review of Ahedo’s medical records, should have been considered before Ahedo was sentenced. Thus, although the trial court was placed in a difficult position because of Ahedo’s insistence that he be sentenced that day, it was error for the court to have sentenced Ahedo without the benefit of the appointed expert’s complete report.

In light of the foregoing, this matter is remanded for resentencing. This will allow the mental health expert the opportunity to review all of Ahedo’s medical records in issuing an opinion as to Ahedo’s competency. In all other respects the judgment of the trial court is affirmed.

Affirmed in part and remanded for re-sentencing.

BLUE, C.J., and GREEN, OLIVER L., Senior Judge, Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


author: PER CURIAM. BLUE, Chief Judge,

text:
    William PAYNE, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D01-2111, 2D01-2163.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Davis G. Anderson Jr., Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed.

WHATLEY and SILBERMAN, JJ., Concur.

BLUE, C.J., Dissents with opinion.

BLUE, Chief Judge,

Dissenting.

I respectfully dissent. I in no way condone Mr. Payne’s profane outburst, but that does not excuse the trial court’s failure to provide a proper hearing in compliance with Florida Rule of Criminal Procedure 8.830 before adjudicating Mr. Payne in direct contempt and ordering a sentence of five months and twenty-nine days. The trial court also failed to enter a written order until forty-five days after the oral pronouncement and sentence.

Assuming the contempt sentence was concurrent with the sentence imposed for the violation of probation (for which there is no record support), it could be argued— no harm, no foul. However, this does not excuse what I perceive to be a procedural failure.


text:
    Jesus Antonio BADILLO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-790.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2003.
    James Marion Moorman, Public Defender, Bartow, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Jesus Badillo challenges the revocation of his probation, arguing that the trial court revoked his probation without conducting an evidentiary hearing or accepting an admission to the violation. We affirm the revocation without comment.

However, because the trial court did not enter a written revocation order setting forth the express probationary conditions that it found Badillo had violated, we remand for entry of an appropriate order. See McAffee v. State, 779 So.2d 299 (Fla. 2d DCA 1999).

Affirmed; remanded.

SALCINES and STRINGER, JJ., Concur.


text:
    Michael A. CORDES, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3369.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2003.
    James Marion Moorman, Public Defender, and Raymond Dix, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Michael Cordes appeals an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, which was entered after an evidentiary hearing. The motion alleged that counsel was ineffective in advising Mr. Cordes to enter a plea of no contest to five felony charges. We conclude that the appeal is timely and that we have jurisdiction. We reverse because Mr. Cordes established that his counsel was ineffective in advising him to enter the plea and this advice prejudiced Mr. Cordes.

Mr. Cordes was charged by an information filed on February 13, 1998, with six offenses. The counts alleged the following crimes occurred on the specified dates: count 1, driving while license suspended on October 24, 1997; count 2, felony unauthorized possession of a driver’s license on October 24, 1997; count 3, forgery of a driver’s license form on July 7, 1992; count 4, forgery of a driver’s license form on April 24, 1990; count 5, false statement in application for a driver’s license on July 7, 1992; and count 6, false statement in application for a driver’s license on April 24, 1990. Although the first count was a misdemeanor, counts 2 through 6 were charged as felony offenses. On June 3, 1998, relying on his counsel’s advice, Mr. Cordes entered an open plea of no contest to all of the charges.

Thereafter, Mr. Cordes filed a timely motion for postconviction relief, alleging that his counsel was ineffective for failing to investigate and advise him of the defense of statute of limitations for four of the felony charges. At an evidentiary hearing on this claim, it was undisputed that the statute of limitations would have barred Mr. Cordes’ convictions for counts 4 and 6. See § 775.16(2)(b), Fla. Stat. (1989) (requiring prosecution for second- and third-degree felonies to commence within three years). As to counts 3 and 5, there was dispute as to whether the statute of limitations may have been extended by section 775.15(3)(a), Florida Statutes (1989), which allows the statute of limitations to be extended to as much as six years when fraud is a material element of the offense. However, section 775.15(3)(a) only permits the limitations period to extend to one year after the discovery of the offense by the “aggrieved party,” and it was unclear when these offenses were “discovered.”

In addition, during this hearing the State discovered that count 2, which had been charged as a felony, was properly a misdemeanor charge given the type of violation that had occurred. On its own initiative, the State agreed to have the court vacate the conviction on count 2, and the State then dismissed this charge. Therefore, this count is no longer at issue and Mr. Cordes faces only the four potential felony convictions at issue in his motion for postconviction relief.

At the conclusion of the evidentiary hearing, the trial court denied Mr. Cordes’ motion for postconviction relief. The trial court held that the issues were waived when Mr. Cordes entered his plea.

Mr. Cordes did not waive his claim for ineffective assistance of counsel when he entered his plea. See Jenrette v. State, 761 So.2d 414 (Fla. 2d DCA 2000) (citing Williams v. State, 717 So.2d 1066 (Fla. 2d DCA 1998)). Moreover, Mr. Cordes established his counsel was ineffective for failing to investigate or pursue a defense of statute of limitations prior to advising Mr. Cordes to enter a plea of no contest to these four charges.

To prove a claim for ineffective assistance of counsel, a defendant must establish both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test established by Strickland applies to requests to withdraw pleas based upon allegations of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). However, in such cases, the “prejudice prong” of Strickland is satisfied by proof “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366 (footnote omitted). It is not necessary to prove that an absolute defense existed to the charge. Mason v. State, 742 So.2d 370 (Fla. 1st DCA 1999). The existence of an absolute defense, however, would lend credence to a claim that the defendant would not have entered a plea but for his counsel’s deficient advice.

Mr. Cordes established that his counsel was ineffective for failing to investigate the statute of limitations for his crimes. The face of the information revealed that the statute of limitations absolutely barred at least two of the charges, and may have barred four. Mr. Cordes also established that he would not have entered a plea of no contest to all of the felony charges had his counsel investigated this defense and informed him of it. We therefore reverse the order denying postconviction relief. On remand, Mr. Cordes’ felony convictions shall be set aside and he may seek to dismiss the charges that are barred by the statute of limitations.

Because it is not clear whether counts 3 and 5 are barred by the statute of limitations, on remand the State may be able to proceed on those charges. In this appeal, Mr. Cordes has argued that the trial court erred in departing from the 1992 sentencing scoresheet based upon a subsequent escape conviction. See Lambert v. State, 545 So.2d 838 (Fla.1989); Tesney v. State, 647 So.2d 222 (Fla. 2d DCA 1994); Shaw v. State, 615 So.2d 209 (Fla. 2d DCA 1993). The only case cited by the State to support such a result, Jones v. State, 571 So.2d 56 (Fla. 2d DCA 1990), appears distinguishable because it involved a violation of probation by committing the new “unscorea-ble” offense of murder. If Mr. Cordes is convicted of any charges on remand, the trial court must review the appropriate sentencing scheme in place on the date of Mr. Cordes’ offenses in light of these arguments.

Reversed and remanded for proceedings consistent with this opinion.

NORTHCUTT and DAVIS, JJ., Concur.

      . In his postconviction motion, Mr. Cordes did not challenge his conviction for count 1, misdemeanor driving while license suspended.


text:
    Bradley SPARKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3496.
    District Court of Appeal of Florida, Second District.
    Jan. 22, 2003.
    James Marion Moorman, Public Defender, Bartow, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.

      Charlie Crist, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Bradley Sparks appeals his convictions for possession of methamphetamines and possession of marijuana. He argues that the trial court erred in denying his motion to suppress. We agree and reverse.

A Polk County Sheriffs deputy stopped Sparks’ vehicle because a headlight was not working. The deputy asked Sparks for his driver’s license and registration, and Sparks complied. The deputy then asked for consent to search the vehicle. Sparks initially agreed but then withdrew the consent. The deputy stopped his search and called for the assistance of a canine unit. Upon the unit’s arrival, the dog alerted and narcotics were discovered.

Sparks moved to suppress the narcotics, arguing that the deputy had improperly detained him while awaiting the canine unit. Although there was some dispute as to how long the deputy required Sparks to wait for the arrival of the canine unit, the trial court found that the wait was twenty minutes. The trial court concluded that the wait of twenty minutes was reasonable and denied the motion to suppress. The trial court erred in this finding.

“[A] person may not be detained for a traffic violation for any longer than necessary to issue a citation.” Summerall v. State, 777 So.2d 1060, 1061 (Fla. 2d DCA 2001). The testimony in this case indicates that once the citation was completed, Sparks was detained for some period of time. Although the deputy was unclear as to the time that elapsed, he did acknowledge that he completed writing the citation for the headlight prior to the arrival of the canine unit and that he did not give Sparks the citation or otherwise indicate to him that he was free to leave. Accordingly, the time between the completion of the writing of the citation and the arrival of the canine unit was an illegal detention. The trial court, therefore, erred by denying the motion to suppress.

Reversed and remanded.

BLUE, C.J., and COVINGTON, J., Concur.


text:
    In the Interest of A.T.G., a child. J.G. and L.S., natural parents, Appellants, v. Department of Children and Family Services, Appellee.
    No. 2D02-2143.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellants.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   PER CURIAM.

J.G. and L.S. challenge the trial court’s order terminating their parental rights to their son, A.T.G., after J.G. and L.S. failed to personally appear at a continued advisory hearing. As the Department of Children and Family Services properly concedes, neither J.G. nor L.S. received proper written notice of the advisory hearing as required by section 39.801(3)(a), Florida Statutes (2001). Therefore, we reverse the order terminating their parental rights and remand for further proceedings.

Reversed and remanded.

ALTENBERND, CASANUEVA, and SALCINES, JJ., concur.


author: KELLY, Judge.

text:
    Gloria F. BOOTH, Appellant, v. Douglas A. BOOTH, Appellee.
    No. 2D01-5694.
    District Court of Appeal of Florida, Second District.
    Jan. 24, 2003.
    Susan J. Silverman, Sarasota, for Appellant.
    Lawrence C. Tórnese of Reegler & Tór-nese, P.A., Venice, for Appellee.
   KELLY, Judge.

Gloria Booth (the mother) appeals from an order modifying child custody. We reverse the order only to the extent that it fails to specify the mother’s visitation rights.

The parties were divorced in November 1999. The final judgment of dissolution provided for shared parental responsibility and designated the mother as the primary residential parent. In April 2001, Douglas Booth (the father) petitioned for modification of the final judgment requesting that he be designated as the primary residential parent. The petition also asked the court to order appropriate visitation. The trial court granted the petition and awarded custody to the father.

The mother asserts a variety of challenges to the trial court’s decision to award custody to the father. We find merit only in her contention that because of its lack of specificity, the visitation provision of the order modifying custody effectively deprived her of visitation altogether. The trial court’s order provided the following:

[The mother] shall be entitled to reasonable visitation with the minor children; however, citing the differences that have recently arose between the children and their mother, the trauma she has caused them, the strained relationship and considering their ages and maturity, the Court recognizes that it will not be feasible to order guideline visitation at this point in time merely because the children themselves will not in all likelihood intend to comply with it. The Court shall order [the mother] to continue with her counseling with Dr. Cortman in order to assist her in coping with her new role as a nonresidential parent and to set aside any hostilities she may hold towards the children and their father.

We agree with the mother that while the trial court granted visitation rights, it effectively rescinded those rights by failing to specify when she could exercise those rights.

The order in this case is comparable to an order we reversed in Waugh v. Waugh, 705 So.2d 659, 659 (Fla. 2d DCA 1998), in which we stated that “[o]nce the trial court granted the appellant visitation rights, it was incumbent upon the trial court to specify the method and manner by which the appellant would exercise those rights.” As we did in Waugh, we reverse and remand for entry of a more specific order that either denies visitation rights or specifies when and under what conditions visitation will occur. We affirm the trial court’s order in all other respects.

Affirmed in part; reversed in part; remanded.

BLUE, C.J., and DAVIS, J., Concur.


author: KLEIN, J.

text:
    Cecil FIELDER and Stacey Fielder, Appellants, v. WEINSTEIN DESIGN GROUP, INC., Appellee.
    No. 4D02-1810.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied May 1, 2003.
    Daniel S. Rosenbaum and John M. Sira-cusa of Becker & Poliakoff, P.A., West Palm Beach, for appellants.
    Lee Milich of Lee Milich, P.A., Ft. Lauderdale, for appellee.
   KLEIN, J.

The Fielders contracted with Weinstein for interior design services on their home and paid Weinstein $1.36 million, with' outstanding invoices of $26,636. In this action Weinstein sought payment for its outstanding invoices, and the Fielders counterclaimed for over $400,000 based on improper charges. We reverse the trial court’s ruling that the Fielders were not the prevailing parties on the claim brought against them.

A net judgment was entered in favor of Mrs. Fielder in the amount of $5,636, but Mr. Fielder was dismissed because he was not a party to the contract. Because Mr. Fielder was not a party to the contract, he cannot recover prevailing party’s fees nor can such fees be assessed against him. Hanna v. Beverly Enterprises-Florida, 738 So.2d 424 (Fla. 4th DCA 1999); Fla. Med. Ctr. v. McCoy, 657 So.2d 1248 (Fla. 4th DCA 1995); Stewart v. Tasnet, Inc., 718 So.2d 820 (Fla. 2d DCA 1998).

Mrs. Fielder argues that the trial court committed legal error in holding that she was not the prevailing party in Wein-stein’s claim against her, because she prevailed on the significant issues as to that claim. Moritz v. Hoyt Enters., Inc., 604 So.2d 807 (Fla.1992); Prosperi v.Code, Inc., 626 So.2d 1360 (Fla.1993).

Weinstein’s claim against the Fielders was for unpaid bills for merchandise. The primary issue litigated in the counterclaim was whether Weinstein had improperly added overhead, profit or supervision charges in various percentages in statements which had been paid by the Fielders. Because these claims were distinct, there can be a prevailing party on each claim. Folta v. Bolton, 493 So.2d 440 (Fla.1986).

Although there is ample evidence to support the trial court’s conclusion that the Fielders did not prevail on their counterclaim, there is no evidence to support the conclusion that the Fielders did not prevail on the claim Weinstein brought against them. On that claim Weinstein, as we noted earlier, sued for $26,636. During the arbitration it reduced the amount it was seeking to $10,527. The dispute involved furniture or other decorating objects which the Fielders had not ordered and did not want, but which Weinstein refused to take back. The arbitrator ordered Weinstein to take the items back and, when all was said and done, the trial court entered judgment in favor of the Fielders for $5,636. The Fielders thus prevailed as a matter of law on Weinstein’s claim against them.

We therefore reverse and remand for the trial court to award Mrs. Fielder prevailing party attorney’s fees for her defense of Weinstein’s claim against her. Mr. Fielder, as we indicated earlier, can neither be required to pay nor can he recover prevailing party attorney’s fees because he was not a party to the contract.

STEVENSON, J., and BAILEY, JENNIFER D., Associate Judge, concur.


text:
    STATE of Florida, Petitioner, v. Reginaldo MARQUES, Respondent.
    No. 4D02-4778.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied March 25, 2003.

      Charlie Crist, Attorney General, Tallahassee and Marett W. Hanna, Assistant Attorney General, West Palm Beach, for petitioner.
    No response required for respondent.
   KLEIN, J.

The state asks us to review by certiorari a decision of the circuit court, sitting in its appellate capacity, which affirmed a dismissal of DUI and related traffic violations. The county court dismissed the case for prosecutorial misconduct, the facts of which are not relevant.

The county court’s dismissal was affirmed in an opinion by the circuit court, which found no abuse of discretion in the dismissal of the charges. The state apparently acknowledges that abuse of discretion was the standard of review because that standard was applied in at least two of the cases relied on by the state, State v. Evans, 418 So.2d 459 (Fla. 4th DCA 1982), and State v. J.G., 740 So.2d 84 (Fla. 3d DCA 1999).

Our standard of review of a decision of a circuit court sitting in its appellate capacity is whether there has been a violation of clearly established principles of law resulting in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000) and cases cited. Where, as here, the standard of review in the circuit court sitting in its appellate capacity is abuse of discretion, it is difficult to conceive how an affirmance by the circuit court could ever be the serious type of error contemplated by Ivey, Haines City Comty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995), and Combs v. State, 436 So.2d 93 (Fla.1983). We therefore deny the petition.

FARMER and MAY, JJ., concur.


author: STONE, J.

text:
    LRX, INC., d/b/a “Lease Doctors,” and Alan Marcus, Appellant/Cross-Appellees, v. HORIZON ASSOCIATES JOINT VENTURE, through its joint venturers, HORIZON-ANF, INC., and WWL Holdings, Inc., Appellees/Cross-Appellants.
    No. 4D01-672.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied May 7, 2003.

      Joel S. Perwin of Podhurst Orseck Jo-sefsburg Eaton Meadow Olin & Perwin, Roy D. Wasson, and Joseph A. Glick, Miami, for appellants/cross-appellees.
    Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., and James W. Dawson of Fazio, Dawson, DiSalvo, Cannon, Abers, Podrecca & Fazio, Fort Laud-erdale, for Appellee/Cross-appellant-Hori-zon Associates.
    Arthur J. England, Jr. of Greenberg Traurig, P.A., Miami, and Jerold I. Budney of Greenberg Traurig, P.A., Fort Lauder-dale, for Appellee/Cross-appellanL-WWL Holdings, Inc.
   STONE, J.

We reverse a post-trial order that set aside a jury verdict entered in favor of the plaintiffs, LRX, Inc. and Alan Marcus. The order granted Horizon’s motion for directed verdict on LRX’s claim for libel and awarded a new trial on claims of slander and tortious interference.

LRX conducts a lease auditing business in which it represents tenants under commercial leases and determines whether rent and expense charges are in keeping with the lease terms. An LRX principal, Alan Marcus, was a suspended attorney at the time in question. In 1991, he had pled guilty to a felony count on charges that he embezzled money from settlement funds provided by a client. He was suspended from the practice of law for three years. See The Florida Bar v. Marcus, 616 So.2d 975 (Fla.1993).

LRX represented seven tenants of the landlord, Horizon Associates Joint Venture (Horizon), and determined that Horizon had overcharged them. Marcus sent a report to Horizon demanding payment of the overcharges. Horizon responded with a letter claiming that certain statements in the report constituted the unauthorized practice of law, adding that “your three years suspension for misappropriation of client funds (said sanction imposed in lieu of disbarment due to mitigation factors of cocaine addiction, plea of guilty to felony count, rehabilitation, restitution, and delay in resolving matter), remains in effect.” The letter went on to state, “[I] trust that these tenants, whom you refer to as your ‘clients,’ are already aware of your Unconditional Guilty Plea to misappropriating at least $39,000.00 via your having misrepresented to you [sic] insurance company client....”

Horizon delivered copies of the letter and the supreme court opinion to each of the seven tenants. One of the tenants testified that Nelson Fernandez, the person responsible for daily operations at the Horizon building, delivered a copy of the letter. He testified that Fernandez declared he was going to have Marcus disbarred because “he was suspended and he’s practicing — he’s giving legal advise [sic] and he’s practicing law now.” Fernandez was going to “make sure he never practices again.” The witness added that Fernandez described Marcus as “unethical” and “incompetent.” Another tenant testified that Fernandez made statements to him that Marcus was “dishonest, that he didn’t have any integrity, he couldn’t understand why we would do business with such a person.”

Horizon also filed two complaints with the Florida Bar, asserting that Marcus was engaged in the unauthorized practice of law. The bar dismissed the complaints a year later.

After initially filing an action for libel and tortious interference, Horizon voluntarily dismissed its complaint, but not before LRX and Marcus counterclaimed for slander (based on the oral statements made by Fernandez), libel (based on the letter and bar complaint), and tortious interference with business relationships.

The jury verdict, finding that Horizon had libeled, slandered, and tortiously interfered with LRX and Marcus, was for $2,925,000.00 in compensatory damages and punitive damages in the amount of $3,437,500.00. Horizon’s subsequent motion for judgment notwithstanding the verdict, however, was granted as to libel, count II, and a new trial was granted as to counts I and III, for slander and tortious interference.

As to the libel claim, the court concluded that the comments in the letter constituted a statement of opinion. The court also held that the libel count could not stand on the ground that Horizon had falsely accused LRX and Marcus of a crime, where the crime, a misdemeanor, could not be deemed an “infamous crime.” As to the slander and tortious interference claims, the court held that because the libel count “so permeated and infected the other two Counts,” the interests of justice necessitate a new trial as to those counts. The trial court also stated additional grounds, concluding that the jury’s verdict was against the manifest weight of the evidence, that evidence of Horizon’s filing a grievance with the Florida Bar was privileged and should not have been presented to the jury, that certain testimony concerning lost profits should have been stricken, and that the jury’s verdict was excessive.

We reverse the judgment notwithstanding the verdict. “A motion for directed verdict should be granted only when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ as to the existence of a material fact, and the movant is entitled to a judgment as a matter of law.” Lester’s Diner II, Inc. v. Gilliam, 788 So.2d 283, 285 (Fla. 4th DCA 2000). We cannot agree that the letter charging Plaintiffs with the unauthorized practice of law was, as a matter of law, “pure opinion.” There are issues of fact as to whether the letter was based on false statements of fact and whether it implied knowledge of undisclosed facts.

Generally, an action for libel will lie for “a false and unprivileged publication by letter, or otherwise, which exposes a person to distrust, hatred, contempt, ridicule or obloquy or which causes such person to be avoided, or which has a tendency to injure such person in his office, occupation, business or employment.’ ” Thomas v. Jacksonville Television, Inc., 699 So.2d 800, 803 (Fla. 1st DCA 1997) (citations omitted). In other words, such a communication is “defamatory” if it tends to harm the reputation of another as to lower him or her in estimation of community or deter third persons from associating or dealing with the defamed party. Mile Marker v. Petersen Publ’g, L.L.C., 811 So.2d 841, 845 (Fla. 4th DCA 2002).

The trial court viewed the letter’s statements as pure opinion. Statements of pure opinion are not actionable under the First Amendment. Morse v. Ripken, 707 So.2d 921, 922 (Fla. 4th DCA 1998). The law draws a distinction, however, between pure expressions of opinion, which are constitutionally protected, and mixed expressions of opinion, which are not. Mixed opinion is based upon facts regarding a person or his conduct that are neither stated in the publication nor assumed to exist by a party exposed to the communication. Rather, the communicator implies that a concealed or undisclosed set of defamatory facts would confirm his opinion. Id.

The Supreme Court recognized that “[e]ven if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990); see also Anson v. Paxson Communications Corp., 736 So.2d 1209 (Fla. 4th DCA 1999)(holding that false remarks on a radio talk show were not automatically shielded from liability merely because they were opinions). One looks to the totality of the statement, the context in which it was published, and the words used to determine whether the statement is pure or mixed opinion. Hoch v. Rissman, Weisberg, Barrett, 742 So.2d 451, 460 (Fla. 5th DCA 1999).

The Horizon letter, as a matter of law, was not pure opinion, where it contains false assertions of fact. The letter included the following, in reference to an earlier LRX audit report which was not attached to, and did not accompany, the letter:

7. The following conduct on your and LRX’s part constitutes the unauthorized practice of law:
—expressly prohibiting Nelson Fernandez as landlord from communicating with his own tenants, under the guise that these tenants are now your “clients.” As you well know, even if this were in litigation, the parties themselves are permitted to communicate directly; it is only counsel that is prohibited from communicating with an opposing party;
—purporting to apply legal principles to particular fact situations, and giving legal advice regarding lease “disputes” and the “settlement” thereof, for a fee; and
—demanding (within 80 days) the “production” by Horizon of voluminous documentation and information, as if your demand letter were a request for production under Rule 1.350, Fla. R. Civ. P.

There is support for LRX’s claim that the three asserted factual bases for the accusation were false and that the letter implies knowledge of facts going beyond mere opinion. If the jury were to conclude that any of the characterizations in the letter were false, it would allow the jury to disregard the pure opinion defense.

As to the first claim, the fact-finder could conclude that the charge that LRX had prohibited the landlord from communicating with his tenants was a false statement of fact. The record reflects that the LRX lease audit report, on its face, does not expressly prohibit the landlord from communicating with the tenants. Rather, the reference is to a provision in which LRX stated that its clients “have authorized us to act on their behalf,” and requests that all communications “concerning the contents of this report” be directed to LRX so that an “agreeable resolution of this matter might be achieved.”

As to the second claim, the fact-finder could also conclude that the charge in the Horizon letter that Marcus, by the lease audit report, gave “legal advice regarding lease ‘disputes’ and the ‘settlement’ thereof, for a fee,” is a false statement of fact. The audit report states in one place that it was based on review “by our attorneys,” and in another upon “the advice of our legal counsel,” with no proof that Marcus was that counsel. It is LRX and Marcus’ position that by this, Horizon implied that it knows that LRX did not, in fact, have other lawyers handling the legal issues and that Marcus was acting in the capacity of attorney. No facts supporting such an implication are disclosed in the letter or supported by the evidence.

The jury could also conclude that the report does not, as claimed, give legal advice to clients, as it was directed by the tenants’ agent to a non-client, the landlord, and, if the letter implies other legal advice, it is silent as to any underlying fact. Therefore, on the evidence presented, the jury could conclude that the implication of underlying facts was untrue, incomplete, or both.

The third claim also contained a false statement of fact. The audit report did not demand, as claimed in the letter, that the requested documents must be produced by the landlord within thirty days. The report requested that documents be supplied, but no time limit was given. The only reference to a thirty day period had nothing to do with supplying documents, but simply expressed the “hope that this matter can be amicably resolved within thirty (30) days.” Therefore, a jury could conclude that this was an expression, in the Horizon letter, of inaccurate facts.

We have considered Stembridge v. Mintz, 652 So.2d 444 (Fla. 3d DCA 1995), and find it distinguishable. There, all of the underlying facts were accurately disclosed, whereas here, the underlying “facts” could be found to constitute material misstatements.

In addition to the statements accusing Marcus of unauthorized practice of law, a further implication that a jury may draw from the letter is that Marcus is a loathsome, dishonest character who cannot be trusted by clients; therefore, even if the foregoing statements in the letter were taken as true, there remains a genuine issue as to Horizon’s motives. Under Florida law, truth “is only a defense to defamation when the truth has been coupled with good motive.” Lipsig v. Ramlawi, 760 So.2d 170, 183 (Fla. 3d DCA 2000); see also Boyles v. Mid-Florida Television Corp., 431 So.2d 627 (Fla. 5th DCA 1983)(news reports concerning plaintiffs past conduct, including reprimands for taunting retarded patients and a prior investigation regarding another crime, timed to be broadcast within stories about another incident, the death of a retarded child, were actionable).

A jury could conclude that Horizon’s purpose was to destroy the tenants’ trust in Marcus, to Horizon’s financial advantage, by telling the LRX clients that Marcus’ past actions demonstrate traits of criminality and deceitfulness, and that Marcus was engaging in criminal acts in representing the clients. In expressing this, Horizon omitted any reference to favorable facts which could refute the impression of dishonesty, and which caused the supreme court to limit the penalty to a suspension. There is reference to cocaine addiction, for example, but it overlooks the steps taken to recover, including a referee’s finding that Marcus “has established a [rapport] and strong affiliation with Narcotics Anonymous Program over the last three years and continues this affiliation on a bi-weekly basis,” that he “successfully fulfilled a two-year contract with the Florida Lawyers Assistance Corporation and voluntarily continues to report to his assigned monitor,” and that he “has shown an active and helpful role in the recovery of other suffering addicts.” See Marcus, 616 So.2d at 976-77. It also failed to note that the term of his suspension period was expired and he was eligible to seek reinstatement to the bar.

Although Horizon claims the letter is truthful, the claim of truth does not assure Horizon of the shield of the defense where there was also evidence of improper motive sufficient to warrant a jury finding of defamation and to preclude a directed verdict.

We disagree with Horizon’s argument that because it was not pled, the alternate theory of libel could not serve as a basis for liability, where the record shows that it was tried by consent. “When issues not raised by the pleadings are tried by the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Fla. R. Civ. P. 1.190(b). An issue is tried by consent when there is no objection to the introduction of evidence on that issue. See Ferayorni v. Hyundai Motor Co., 711 So.2d 1167 (Fla. 4th DCA 1998). Here, there were no objections made to the introduction of the relevant evidence and, thus, liability on the basis that Horizon’s statements were coupled with improper motive was tried by consent.

Therefore, as to count II, libel, we reverse the judgment notwithstanding the verdict and remand to reinstate the verdict. As to the other counts, we remand for further consideration of Horizon’s motion for new trial. Although the trial court listed several reasons for granting the new trial, its order stressed the fact that a new trial was necessary because the libel count “so permeated and infected” the other counts. In light of our decision reversing the JNOV on the libel count, we remand so that the trial court can further evaluate those other reasons for granting the new trial on the slander and tortious interference claims. As to the other issues raised on direct and cross-appeal, we find no reversible error or abuse of discretion and affirm. See Castlewood Int’l Corp. v. La Fleur, 322 So.2d 520 (Fla.1975)(recognizing a stronger showing of abuse of discretion is required to overturn an order granting a new trial then is required to overturn an order denying a new trial); State Farm Fire and Cas. Co. v. Higgins, 788 So.2d 992 (Fla. 4th DCA 2001), rev. granted, 794 So.2d 604 (Fla.2001).

MAY, J., and JACOBUS, BRUCE W., Associate Judge, concur.


author: SALCINES, Judge.

text:
    Michael Allen AEBI, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3329.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.
   SALCINES, Judge.

Michael Aebi appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion on the first three grounds but reverse and remand for further proceedings on the remaining two grounds.

In 1999, Aebi pleaded guilty to delivery of cocaine in exchange for three years’ probation. In 2000, his probation was revoked after an evidentiary hearing, and he was sentenced to fifteen years in prison.

In his motion, Aebi claims that his defense counsel was ineffective in failing to investigate witnesses who could testify that he did not willfully and substantially violate his probation. The trial court summarily denied Aebi’s claim, finding that it was facially insufficient according to Tyler v. State, 793 So.2d 137 (Fla. 2d DCA 2001). We disagree. Aebi sufficiently identified the witnesses so that his attorney could have located them. He also describes the substance of their testimony by explaining how they could have testified that he did not willfully and substantially violate his probation. Furthermore, he alleges that the omission of their testimony prejudiced him because the court found that he willfully and substantially violated his probation. Therefore, Aebi has sufficiently alleged ineffective assistance of counsel for failure to investigate witnesses. See id. at 141. We reverse and remand for further proceedings as to this claim.

Aebi also claims that his counsel was ineffective in failing to properly advise him of the consequences of proceeding to a hearing on the violation of probation, causing him to reject a favorable plea offer from the State. A defendant is inherently prejudiced by his inability, due to his counsel’s neglect, to make an informed decision whether to plea bargain. Cottle v. State, 733 So.2d 963 (Fla.1999). Aebi alleges that he would have accepted a favorable plea offer if he had been properly advised by his counsel of the penalties he faced; therefore, he states a prima facie claim of ineffective assistance of counsel. See Eristma v. State, 766 So.2d 1095 (Fla. 2d DCA 2000). The trial court denied this claim on the basis that Aebi had been advised of the maximum sentence for the charge at his original sentencing in 1999. However, the plea colloquy from the 1999 hearing does not conclusively refute Aebi’s claim. It does not address whether Aebi was advised by counsel of the penalties he faced if he rejected the plea and proceeded to a hearing on the violation of probation. Since nothing in the record refutes this claim, we reverse and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

DAVIS and COVINGTON, JJ„ Concur.


author: STRINGER, Judge.

text:
    Jonathan Dye JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1024.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Jonathan Dye Jones seeks review of the trial court’s order denying his motion to suppress evidence found after he was stopped while riding on horseback. Jones argues that the trial court erroneously found that the stop was based on a founded suspicion of criminal activity. We agree and reverse.

This is an appeal from a no contest plea entered after Jones reserved the right to appeal the denial of a motion to suppress. On February 6, 2002, following the denial of his motion to suppress, Jones pleaded no contest to possession of cocaine, possession of paraphernalia, and carrying a concealed weapon. The trial court found that the motion was dispositive.

At the suppression hearing, Deputy Brandon Todd testified that at about 11:30 p.m. on August 1, 2001, he saw Jones on horseback riding at a full speed gallop down the street. Although there were pedestrians and traffic in the area, Deputy Todd did not see Jones actually impede traffic or endanger any pedestrians or motorists. The deputy stopped Jones for failing to have lights or reflectors and for operating without due regard for public safety.

When Deputy Todd stopped Jones, Jones dismounted, took off his jacket, and dropped the jacket on the ground. Deputy Todd saw that Jones had a rifle on his saddle. When the deputy asked Jones whether he had any other weapons on him, Jones lifted his pants leg to reveal a knife within his boot. Deputy Todd arrested Jones, and a search of the jacket that he had thrown down revealed a crack pipe.

The trial court found that, although there was no evidence that Jones endangered other people, “the sheer unusualness of a person riding a horse at 11:30 at night at a full gallop down a paved road is sufficient that it could cause a police officer to be suspicious as to what’s going on without the need to endanger other people.” The court added that the potential endangerment to other people also provided justification for the stop.

A trial court’s factual findings on a motion to suppress will not be overturned if supported by competent, substantial evidence. Caso v. State, 524 So.2d 422, 424 (Fla.1988). Application of the law to the facts found by the trial court is reviewed de novo. Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). In order for the stop of Jones to be proper, the police must have had a reasonable suspicion of criminal activity, Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), or probable cause to believe he committed a traffic infraction. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

In this case, there was no evidence that the police had a reasonable suspicion of criminal activity, and the trial court made no such finding. The trial court found that the stop was valid for two reasons: (1) “the sheer unusualness of a person riding a horse at 11:30 at night at a full gallop down a paved road”; and (2) the potential endangerment to others that resulted from this action. However, neither of these activities provides probable cause that Jones committed a traffic infraction.

Under section 316.073, Florida Statutes (2001), a person on horseback is not subject to the provisions regulating motor vehicles, but is subject to provisions applying to pedestrians. The State argues that the police had probable cause that Jones violated section 316.2045(1), Florida Statutes (2001), which prohibits willfully obstructing “the free, convenient, and normal use of any public street, highway, or road by impeding, hindering, stifling, retarding, or restraining traffic or passage thereon, by standing or approaching motor vehicles thereon, or by endangering the safe movement of vehicles or pedestrians traveling thereon.”

A violation of this statute requires either (1) impeding, hindering, stifling, or restraining traffic or passage or (2) endangering the safe movement of vehicles or pedestrians. See Underwood v. State, 801 So.2d 200, 202 (Fla. 4th DCA 2001) (holding that an officer lacked probable cause to stop the defendant for obstruction of traffic because there was no evidence that the defendant actually hindered or endangered the normal use of the street or had the intent to do so). In this case, the trial court expressly found that there was no evidence that Jones endangered others, and this finding is supported by Deputy Todd’s testimony to that effect. In addition, there is no evidence that Jones actually impeded any traffic or passage. Accordingly, the police did not have probable cause to believe that Jones had committed a traffic infraction.

Because the police did not have a reasonable suspicion of criminal activity or probable cause that Jones had committed a traffic infraction, the stop of Jones was illegal. Accordingly, any evidence seized as a result of the illegal stop should have been suppressed. Graham v. State, 60 So.2d 186, 188 (Fla.1952); Bowling v. State, 779 So.2d 613, 614 (Fla. 2d DCA 2001).

Reversed and remanded.

SALCINES and SILBERMAN, JJ., Concur.

      . The judgment erroneously states that Jones pleaded guilty to the charges.


author: CASANUEVA, Judge.

text:
    Nathaniel Earl ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D-02-809.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charlie Christ, Attorney General, Tallahassee, and Danilo Cruz Carino, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

We review a conviction and sentence following revocation of Nathaniel Earl Robinson’s probation. Mr. Robinson asserts that there was insufficient evidence for the trial court to find that he violated conditions five and seven of his probation. We agree and reverse.

The amended affidavit of violation of probation first alleged that Mr. Robinson tested positive for cannabinoid. The State called Mr. Robinson’s probation officer, Troy B. Miller, who testified that he took a urine sample from Mr. Robinson and shipped it to PharmChem Laboratory for analysis. Over a hearsay objection, he further testified that PharmChem’s report indicated that the sample tested positive but did not identify the substance which caused the positive result. The report itself was not admitted into evidence.

Although hearsay testimony is admissible in a probation revocation hearing, if the hearsay would not be admissible at a criminal trial, it is insufficient, standing alone, to establish a violation of probation. Gammon v. State, 778 So.2d 390 (Fla. 2d DCA 2001); Soto v. State, 727 So.2d 1044 (Fla. 2d DCA 1999). Here, Mr. Miller’s testimony was clearly hearsay that would have been inadmissible at a criminal trial. See § 90.803(6), Fla. Stat. (2001). Because no other evidence was brought forth to support the alleged violation, the evidence failed to establish it. Accordingly, we reverse the court’s determination that a violation of condition seven was established.

The State further alleged that Mr. Robinson also violated condition five of his probation by committing the offenses of possession of less than twenty grams of marijuana, possession of drug paraphernalia, and possession of less than twenty grams of marijuana with intent to distribute. The evidence the State presented to substantiate these crimes was that on July 12, 2001, around 1 a.m.,' a Charlotte County sheriffs deputy stopped a car carrying three people; Mr. Robinson was sitting in the front passenger seat. The deputy testified that after stopping the vehicle for speeding he observed the three occupants moving around. He called for a canine unit, which arrived about ten minutes later. The dog alerted on the vehicle. From underneath the front passenger seat, the deputy removed a brown bag that contained two small plastic baggies. Without administering a test of any type, but based on his training and experience, the deputy determined the baggies contained marijuana and arrested all three occupants. The State presented no evidence to show that Mr. Robinson owned, leased, or had ever driven the vehicle. Mr. Robinson claimed the driver’s girlfriend had rented the car and that he was asleep when it was stopped.

Based on C.M. v. State, 818 So.2d 554 (Fla. 2d DCA 2002), and Broers v. State, 606 So.2d 480 (Fla. 2d DCA 1992), we conclude that the evidence was insufficient to support revocation of Mr. Robinson’s probation. In C.M., we held that in a jointly-occupied vehicle, the interior of which was hazy with marijuana smoke, where baggies of marijuana were found beneath the floor mat where the defendant was sitting, there was insufficient evidence to find the defendant guilty of possession of marijuana. The State was unable to prove that the defendant knew of the presence of the marijuana, knew of its illicit nature, and had the ability to exercise control over it. Id. at 555. In Broers, during the execution of a search warrant for the defendant’s home, which she shared with her husband, their child, and four others, marijuana was found in the kitchen refrigerator. The defendant was present during the search and when her husband admitted the drugs were his. Based on this, the trial court revoked her probation Id. at 481. Despite her husband’s admission, we concluded:

Hence, the only inculpatory evidence disclosed by this record, evidence we find woefully inadequate to satisfy the state’s burden, is that [the defendant] occupied the drug-infested premises with others. The mere presence of marijuana, concealed from plain view, does not establish knowledge, especially when the harboring premises are jointly occupied.

Id. at 482 (emphasis added). The evidence the State presented of Mr. Robinson’s possession of the marijuana in the car was also woefully inadequate to satisfy its burden to prove that he possessed contraband or paraphernalia. Accordingly, we reverse and vacate the revocation order and remand for the trial court to restore Mr. Robinson to probation.

SALCINES and KELLY, JJ., Concur.