author: PLEUS, J.

text:
    Ray Michael LOCKLEAR, Appellant, v. FLORIDA FISH & WILDLIFE CONSERVATION COMMISSION, Appellee.
    No. 5D03-2655.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2004.

      James F. Cummins, Inverness, for Appellant.
    Charles L. Shelter, Deputy General Counsel and Elise M. Matthes, Assistant General Counsel, Tallahassee, for Appel-lee.
   PLEUS, J.

Ray Locklear appeals from a final order of the Florida Fish & Wildlife Conservation Commission (“the Commission”) imposing sanctions (monetary fine and license suspension) upon him following his convictions in county court for certain illegal gill net fishing-related offenses. Locklear contends that the administratively imposed sanctions constitute a double jeopardy violation and further are grossly disproportionate to the violations committed.

Review of these legal issues is de novo. See State v. Glatzmayer, 789 So.2d 297 (Fla.2001).

Locklear was convicted in Citrus County Court for violations of section 370.021(3), 370.092(2), 370.06(2), Florida Statutes, and Rule 68B-4008(2)(b), Florida Administrative Code, occurring on August 30, 2001. These violations related to illegal gill net fishing activities. Locklear was fined $517.00 and given probation and community control.

Locklear was thereafter convicted in Pi-nellas County Court of additional gill net violations which occurred on February 17, 2002. He was fined $700.00, placed on six months probation and ordered to complete 50 hours of community service. The Commission then notified Locklear that given this additional violation, it was suspending his commercial salt water fishing license for 12 months and imposing a fine of $5,000.00, pursuant to section 370.021(3)(b), Florida Statutes. Locklear requested a hearing and following the hearing, the sanctions were sustained.

Locklear argues that the Commission’s assessment of a fine and license suspension following his convictions and punishments in county court for the underlying misconduct amounts to a double jeopardy violation. He maintains that the administrative action does not qualify as a civil or remedial sanction but rather is entirely punitive in nature.

In a case involving the interplay between administrative sanctions and a criminal prosecution for the same conduct, the United States Supreme Court explained in Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), that the Double Jeopardy Clause does not prohibit imposition of any additional sanction that could, in common parlance, be described as punishment and instead protects only against imposition of multiple criminal punishments for the same offense. The Hudson Court reaffirmed its earlier analysis contained in United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980). Ward held that inquiry into whether a statutory penalty is civil or criminal proceeds on two levels. Id. at 248, 100 S.Ct. 2636. First, a court determines whether the legislature, in adopting the penalizing mechanism, indicated expressly or impliedly a preference for one label or another. Id. Second, where the legislature has indicated an intention to establish a civil penalty, the court inquires into whether the statutory scheme on its face is so punitive in either purpose or effect as to negate that intention. Id. at 248-49, 100 S.Ct. 2636.

Locklear’s fine and suspension were imposed by the Commission pursuant to section 370.021(3)(b)2, Florida Statutes, which provides:

(3) PENALTIES FOR USE OF ILLEGAL NETS.—
(b) In addition to being subject to the other penalties provided in this chapter, any violation of s. 16(b), Art. X of the State Constitution, or any rules of the commission which implement the gear prohibitions and restrictions specified therein shall be considered a major violation; and any person, firm, or corporation receiving any judicial disposition other than acquittal or dismissal of such violation shall be subject to the following additional penalties:
2. For a second major violation under this paragraph charged within 7 years of a previous judicial disposition, which results in a second judicial disposition other than acquittal or dismissal, a civil penalty of $5,000 and suspension of all saltwater products license privileges for 12 months shall be imposed.

The legislature, by using the term “civil penalty” intended the fine and license suspension to be civil, not criminal, sanctions. In fact, section 370.021(12) provides:

LICENSES AND ENTITIES SUBJECT TO PENALTIES. — For purposes of imposing license or permit suspensions or revocations authorized by this chapter, the license or permit under which the violation was committed is subject to suspension or revocation by the commission. For purposes of assessing monetary civil or administrative penalties authorized by this chapter, the person, firm, or corporation cited and subsequently receiving a judicial disposition of other than dismissal or acquittal in a court of law is subject to the monetary penalty assessment by the commission that the license or permit has been cited in a major violation and is now subject to suspension or revocation should the license or permit be cited for subsequent major violations.

The fine assessments and license or permit suspensions are matters for the Commission to determine and are administrative, not criminal sanctions. See State v. Bowling, 712 So.2d 798 (Fla. 2d DCA 1998) (upholding grand theft prosecution of construction contractor who claimed that $5,000 civil fine and revocation of state license by Construction Industry Licensing Board for incident created double jeopardy bar to criminal prosecution).

Further, the sanctions are not so punitive as to render the statute criminal. Generally the revocation of a license is deemed free of punitive criminal intent, the purpose instead being the protection of the public welfare. See Bowling, 712 So.2d at 800;. Haas v. Department of Business and Professional Regulation, 699 So.2d 863 (Fla. 5th DCA 1997); Borrego v. Agency for Health Care Admin., 675 So.2d 666 (Fla. 1st DCA 1996). The obvious purpose of the license suspension here is to protect our state waters from illegal fishing activities. Likewise, the payment of a monetary fine is a well established civil remedy. Bowling. No double jeopardy violation has been established.

Locklear, relying on criminal law decisions, additionally argues that citizens are protected by the Eighth Amendment from extreme sanctions which are grossly disproportionate to the crime charged. See Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 886 (1991); Hall v. State, 823 So.2d 757 (Fla.2002); Morrow v. State, 856 So.2d 1043 (Fla. 5th DCA 2003). He claims the sanctions imposed by the Commission, pursuant to section 370.021(3)(b)2, when combined with the criminal sanctions, created a punishment that was grossly disproportionate to the offenses.

It is an elementary principle of administrative law that so long as a penalty imposed by an administrative agency is within the permissible range of statutory law, an appellate court will not disturb the penalty unless the administrative findings are reversed in whole or in part. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1979); Clark v. Department of Professional Regulation, Board of Medical Examiners, 463 So.2d 328 (Fla. 5th DCA 1985). Locklear does not argue that the penalty exceeds the permissible range of statutory law.

Locklear’s claim that the combined penalties violate the Eighth Amendment lacks merit. In Hall, the Florida Supreme Court explained that the Eighth Amendment does not require:

strict proportionality between crimes and sentences. Rather, it forbids only extreme sanctions that are ‘grossly disproportionate’ to the crime. Harmelin, 501 U.S. at 1001 [111 S.Ct. 2680] (Kennedy, J. concurring). Moreover, ‘outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.’

823 So.2d at 760.

Locklear does not explain how a $5,000 fine following his second conviction for illegal gill net fishing activities is grossly disproportionate to the crime. Well-settled Florida decisional authority provides that a statutorily authorized civil fine will not be deemed so excessive as to be cruel or unusual unless it is so great as to shock the conscience of reasonable men or is patently and unreasonably harsh or oppressive. Amos v. Gunn, 84 Fla. 285, 94 So. 615 (1922). See also State v. Champe, 373 So.2d 874 (Fla.1978). The fine imposed here in no way approaches this extreme level.

AFFIRMED:

ORFINGER and TORPY, JJ., concur.

      . Indeed, the penalty is within the range set by the legislature in section 370.021. Under such circumstances, the wisdom of the penalty assessed is a matter entirely within the ambit of the Commission. See Wax v. Horne, 844 So.2d 797 (Fla. 4th DCA 2003).


source: Caselaw Access Project

author: THOMPSON, J.

license: Public Domain

text:
    R.M., Father of R.M., Jr., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-3855.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2004.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Department of Children and Families, Orlando, for Appellee.
   THOMPSON, J.

R.M. appeals the adjudication of dependency of his son, R.M., Jr. We affirm.

The dependency petition was filed in July 2003, after the father smashed the window of a car and injured the mother and father’s seven-month-old daughter. The shattered glass flew onto the mother, who was holding the daughter, and into the daughter’s eye. The daughter was adjudicated dependent in a separate proceeding. In the order adjudicating R.M., Jr., dependent, the court found that, with reckless disregard for the safety of the mother and the daughter, the father “swung a stick and smashed the car window immediately adjacent to where the mother ... [and daughter] were sitting....” The court also found that on another occasion, in February, 2002, the father threatened the mother with a gun. Additionally, the court found that in February 2001, when the mother was pregnant with the daughter, the parents engaged in a physical confrontation and that out of concern for the fetus, the mother went to the emergency room of a hospital where a police officer noted that she had a swollen lip.

Under chapter 39, a dependent child is one who has been abandoned, abused, or neglected by the child’s parent or parents or legal custodians. § 39.01(14)(a), Fla. Stat. (2002). A dependent child is also one who is “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” § 39.01(14)(f), Fla. Stat. (2002). “ ‘Abuse’ means any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2), Fla. Stat. (2002). “Harm” to a child’s health or welfare can occur when any person inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. Such injury includes willful acts that produce cuts and lacerations. § 39.01(30)(a)l.h., Fla. Stat. (2002). The term “willful” refers to the intent to perform an action, not to the intent to achieve a result or to cause an injury. § 39.01(30)(a), Fla. Stat. (2002).

The father argues that the Department of Children and Family Services (“the department”) did not prove that R.M., Jr., was dependent because there was no showing that he was “at substantial risk of imminent abuse.” In a dependency proceeding, the department must establish its allegations by a preponderance of the evidence. In re M.F., 770 So.2d 1189, 1192 (Fla.2000). A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law, and its ruling is supported by competent, substantial evidence in the record. Id. Competent, substantial evidence is tantamount to legally sufficient evidence. Id.

The father cites M.N. v. Department of Children and Families, 826 So.2d 445 (Fla. 5th DCA 2002), in which we held that the abuse of a child unrelated to the father was an insufficient showing that the child’s sibling, the natural child of the father, was dependent. This court pointed out that an incident of abuse of one child is insufficient by itself to establish a substantial risk of imminent abuse to another child. Id. at 447-48 (citing In re M.F., 770 So.2d 1189 (Fla.2000)). We explained that in M.F., the supreme court eschewed a per se rule that would allow a finding of dependency based solely on a father’s conviction for sexual battery on one child and instead adopted the more flexible approach established in a line of decisions from this court, which requires additional proof of risk to the current child. Id. at 448 (citing M.F., 770 So.2d at 1193 n. 12, 1194).

We held in M.N., and in cases cited in M.N., that there had to be a nexus between the abuse of one sibling and the allegation that another sibling will be abused. Id. at 447-48. In other words, there must be a showing that the circumstances surrounding an act of abuse on one child is predictive of a similar act on the other child. See N.S. v. Dep’t. of Children & Families, 857 So.2d 1000 (Fla. 5th DCA 2003) (reversing dependency order where there was no showing that the abuse or neglect of one “troubled” child predicted abusive or neglectful behavior toward the younger children). Although the commission of an act of abuse on one child may be highly relevant, it is not automatically dis-positive of the issue of dependency. M.F., 770 So.2d at 1194. A court instead should focus on all the circumstances surrounding the petition in each case. Id.

In M.N., the father and mother lived with their child and the mother’s child by a different man. The mother consented to her child’s being adjudicated dependent and at issue was whether the child of both parents was dependent. The father admitted striking the mother’s child on the buttocks out of frustration, but denied causing him to fall down the steps. Id. at 446. There was no evidence of any other abuse to the mother’s child and there was no evidence of abuse to the child in issue. Although the father’s intellectual ability was below average, there was no evidence that he had a mental illness, and his intellectual ability did not make abuse of another child highly probable. Id. at 448. We held that the record did not contain competent, substantial evidence establishing a substantial risk of imminent abuse of the father’s own child based on the prior abuse of the mother’s child.

Similarly, in D.H. v. Department of Children and Families, 769 So.2d 424 (Fla. 4th DCA 2000), the father challenged an order declaring his small daughter dependent based upon one instance of physical abuse of the daughter’s half-sister. There was no allegation of abuse against the daughter. Citing Fetters v. Department of Health and Rehabilitative Services, 589 So.2d 959, 959 (Fla. 5th DCA 1991), the court held that the evidence was legally insufficient to declare a father’s natural child dependent where he physically abused his step-child and had emotional and psychological problems, but where there was no evidence that he had abused his natural child. Furthermore, the court pointed out that there was no evidence that the father was prone to violent behavior or that he had an emotional or mental condition that indicated a probability that he would direct abuse at his natural child.

The instant case differs substantially from the above cases. First and foremost, the father is prone to violent behavior. The mother admitted that in the four years of their relationship, she had reported the father to the police six times. Although she testified that these reports did not involve domestic violence, the court did not believe her attempts to exonerate the father and found that the father threatened her with a gun on one occasion and attacked her on another occasion despite the fact that she was pregnant. Second, the suggestion in the above cases is that although a person might be willing to abuse a step-child, the person would probably act with more restraint when dealing with a natural child. In the instant case, however, both children are the father’s issue, so there can be no expectation that the father would be more restrained when in the of R.M., Jr.’s company. Indeed, the daughter was not the subject of the attack by the father. The father had been targeting the mother and/or her male friend on the most recent occasion, and the mother was his target in the past. The daughter was victimized only because she was with the mother. It is reasonable to assume that these young children will be with the mother most of the time in the coming years, and given the mother’s willingness to put herself in harm’s way and the father’s propensity for violence no matter who is present, we conclude that the trial court correctly applied the law in declaring R.M., Jr. dependent, and that the ruling was supported by competent, substantial evidence.

AFFIRMED.

MONACO and TORPY, JJ., concur.


author: GRIFFIN, J. THOMPSON, J.,

text:
    Charles O. DAVIS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-771.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2004.

      Charles 0. Davis, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   ON MOTION FOR REHEARING

GRIFFIN, J.

Petitioner, Charles 0. Davis, Jr. [“Davis”], filed this petition for writ of habeas corpus pursuant to Florida Rule Appellate Procedure 9.141(c), alleging that his appellate counsel was ineffective for failing to argue on direct appeal that the trial court erred by overruling his objection and by giving a jury instruction based on section 776.041, Florida Statutes, effectively negating his defense of self-defense. The Fourth District Court of Appeal subsequently decided in Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), that it was error to give the instruction in analogous circumstances. Several other consistent decisions have since been issued by district courts of appeal, including this court’s decision in Cleveland v. State, 29 Fla. L. Weekly D1627 (Fla. 5th DCA July 9, 2004), in which we agreed that the giving of this instruction is fundamental error, serious enough to be remediable even in the absence of objection at trial. We initially denied this petition based on Hopkins v. State, 743 So.2d 171 (Fla. 5th DCA 1999), but on motion for rehearing, we withdraw our earlier order, grant the petition and allow a belated appeal limited to this issue.

Davis was charged with aggravated battery on a person sixty-five years of age or older. The incident occurred on July 14, 1999. Davis says that the evidence at trial showed that he acted in self-defense. According to Davis, he had invited the victim, Carl Russell, over to his apartment for drinks. Russell refused to leave when Davis was ready to go to bed, so Davis hid the bottle of vodka from which they had been drinking and lay down on the couch to sleep. He claims Russell began to poke him with an umbrella, which Davis grabbed, accidentally striking Russell in the head or face.

Over defense objection, the trial court instructed the jury:

The use of force not likely to cause death or great bodily ’harm is not justifiable if you find Charles Davis was attempting to commit or committing an aggravated battery upon an elderly person over the age of 65 years....

Davis timely objected at trial that the instruction, which was based on section 776.041(1), Florida Statutes (2001), was circular and improper, as the statute precluded the use of force only where the person claiming self-defense was engaged in the commission of another independent “forcible felony.” He argued that the instruction improperly told the jury that the very act (aggravated battery) he sought to justify precluded a finding of justification. After a rather detailed discussion between the trial judge and counsel of the available case authorities, the trial court overruled the objection. Davis was found guilty as charged. Davis had private counsel at trial; on appeal he had new appointed counsel. The jury instruction issue was not raised on direct appeal.

Davis filed a rule 3.850 motion for post-conviction relief, erroneously arguing that his trial counsel was ineffective. The denial of this motion was affirmed on appeal because the issue had been raised by trial counsel and was considered by the trial court.

Now, in his petition for belated appeal, Davis correctly argues that appellate counsel was ineffective in failing to raise the issue on direct appeal. See Fair v. Crosby, 858 So.2d 1103 (Fla. 4th DCA 2003); Estevez v. Crosby, 858 So.2d 376 (Fla. 4th DCA 2003). Unlike Fair and Estevez, we need not consider whether appellate counsel could be ineffective for failing to raise this issue on direct appeal as fundamental error because the error in this case was well preserved.

The State argues that appellate counsel was not ineffective because, as of the date of Davis’ appeal, no case had clearly held that section 776.041 was inapplicable if the only felony involved was the felony comprising the use of self-defense. The State notes that Giles was not decided until December 18, 2002. However, the holding in Giles was clearly foreshadowed by Perkins v. State, 576 So.2d 1310 (Fla.1991), one of the cases that the trial court considered during the charge conference. In Perkins, the Third District certified the following question to the Florida Supreme Court:

Is the defense of self defense available for a killing that occurred when both the defendant and the decedent were engaged in an attempt to traffic in cocaine and the decedent was the first to use deadly force?

After finding that trafficking in cocaine was not a “forcible felony” within the meaning of section 776.041(1), Florida Statutes, the supreme court decided that self-defense was an available defense. Perkins therefore suggests that self-defense was a valid and available defense only when the felony at issue was the felony that was committed in self-defense.

The issue was even addressed directly in a compelling dissent by Judge Schwartz as far back as 1992. There (relying on Perkins ) he explained:

[T]he statute applies only when the person claiming self-defense is engaged in another, independent “forcible felony” at the time. See Perkins v. State, 576 So.2d 1310 (Fla.1991). Thus an armed robber cannot claim that he shot the intended victim in justifiably defending himself from an armed attack by the victim himself. Section 776.041(1) plainly does not apply when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense.

McGahee v. State, 600 So.2d 9, 11 (Fla. 3d DCA 1992) (Schwartz, C.J., dissenting).

Marshall v. State, 604 So.2d 799 (Fla.1992), relied upon by the dissent, does not authorize the giving of this instruction in the context of a single act. Marshall simply authorized the giving of the forcible felony instruction in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony. Barnes v. State, 868 So.2d 606, 607 (Fla. 1st DCA 2004); Giles. In Marshall, the defendant had been charged both with burglary and aggravated battery, as underlying felonies on charges of felony murder and third-degree murder. Marshall recognized that the defendant could not claim self-defense for the killing if he was engaged in the commission of a second, independent felony (either a burglary or an aggravated battery) when the killing occurred. Here, Davis was charged with only one offense — aggravated battery. To instruct the jury that the defense of self-defense was not available if he was attempting to commit the same aggravated battery he used in self-defense was circular and improper. Where a preserved issue such as this appears in the appellate record, has facial merit, has some support in the case law, and is not foreclosed by controlling case law, it should be raised.

We grant Davis a belated appeal because appellate counsel was ineffective in failing to raise in his direct appeal the preserved issue of whether giving the jury instruction at issue constituted reversible error.

PETITION GRANTED.

ORFINGER, J., concurs.

THOMPSON, J., dissents, with opinion.

THOMPSON, J.,

dissenting.

I respectfully dissent. The motion for rehearing on the petition for a belated appeal should be denied. The basis of this court’s opinion is that appellate counsel should have argued “on direct appeal that the trial court erred by overruling his objection and by giving a jury instruction based on section 778.041, Florida Statues, effectively negating his defense of self-defense.” The majority writes that appellate counsel should have anticipated the subsequent ruling of the Fourth District Court of Appeal in Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), because it was foreshadowed in Perkins v. State, 576 So.2d 1310 (Fla.1991), a case which was presented to the trial court. In my opinion, appellate counsel cannot be found ineffective for failing to anticipate a rule of law announced after a client’s appeal.

In Hopkins v. State, 743 So.2d 171 (Fla. 5th DCA 1999), this court considered two Florida Supreme Court decisions on the speedy trial rule. Hopkins appealed the denial of his 3.850 motion, which alleged ineffective assistance of counsel. The basis of the argument was that his attorney, Fromang, was ineffective for moving for continuances instead of demanding a speedy trial. Hopkins based his argument on cases decided by the Florida Supreme Court months after his attorney obtained the continuances. Judge Warren Cobb affirmed the denial of the motion and wrote:

It would be unreasonable for us to hold Fromang to a standard of prescience that three out of seven supreme court justices could not meet.

Id. at 173. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (holding that to obtain relief, a defendant must show that counsel’s representation fell below an objective standard of reasonableness).

At the time the initial brief in this case was filed, the Giles line of cases did not exist. However, the Florida Supreme Court’s opinion in Marshall v. State, 604 So.2d 799 (Fla.1992), supported the use of the section 776.041(1), Florida Statutes, instruction where the underlying forcible felony is both battery and aggravated battery. Moreover, to the extent that the majority relies upon the “compelling dissent by Judge Schwartz,” I disagree that it has precedential value. See Munnerlyn v. Wingster, 825 So.2d 481, 483 (Fla. 5th DCA 2002) (holding that a dissenting opinion possesses no precedential value); see also Greene v. Massey, 384 So.2d 24, 27 (Fla.1980) (same). Furthermore, a dissent argues what the law should be, not what the law is. Thus, I would hold that appellate counsel was not ineffective for failing to anticipate the evolution in the law relating to this jury instruction.

      . The statute provides:
      776.041 Use of force by aggressor—
      The justification described in the preceding sections of this chapter is not available to a person who:
      (1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony....

      . Davis was convicted on June 15, 2001, filed his notice of appeal on August 7, 2001, and the mandate affirming the judgment and sentence was returned on April 8, 2002.


author: PER CURIAM.

text:
    Cynthia Faith HINTON, Appellant, v. John Truitt HINTON, Jr., Appellee.
    No. 5D03-4106.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2004.
    C. Michael Barnette, Daytona Beach, for Appellant.
    Catherine G. Swain of Catherine G. Swain, P.A., Daytona Beach, for Appellee.
   PER CURIAM.

The trial court’s order dated and filed November 18, 2003, is affirmed. We write to bring to the attention of the trial court that the order refers to an Exhibit “A” that was to be attached to the order but was inadvertently omitted. We remand for amendment of the order so that the missing Exhibit “A”, an amortization schedule, may be attached.

AFFIRMED and REMANDED.

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


author: SHARP, W., J.

text:
    Michael SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3152.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2004.

      Michael Smith, Chipley, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Smith appeals from the summary denial of his motion made pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence.- He was sentenced on December 19, 1997, for crimes including two robbery offenses and two kidnapping offenses. In his motion, he asserts that the two kidnapping convictions violated double jeopardy because the type of confinement that was alleged and proved was inherent in the robbery offenses. We affirm.

A double jeopardy argument is a challenge to the judgment, not the sentence. It also raises factual issues underlying the judgment, which if the double jeopardy argument has merit, cannot be determined on the face of the judgment. Thus, Rule 3.800(a) does not provide an appropriate remedy. Bryant v. State, 800 So.2d 692 (Fla. 5th DCA 2001), rev. denied, 819 So.2d 133 (Fla.2002) (claim that conviction for escape was improper because defendant was not under state confinement is an attack on the underlying judgment, not on the sentence, so Rule 3.800(a) relief is not available); State v. Moten, 698 So.2d 1345 (Fla. 5th DCA 1997), rev. denied, 799 So.2d 218 (Fla.2001) (defendant’s claim that he sold a controlled substance within 200 feet of public housing, not a public park as indicated in the judgment, is actually an attack on the conviction and is not cognizable under Rule 3.800(a)); Sanders v. State, 621 So.2d 723 (Fla. 5th DCA 1993), rev. denied, 629 So.2d 135 (Fla.1993) (double jeopardy challenge in a Rule 3.800(a) motion which is actually an attack on convictions cannot be addressed in a Rule 3.800(a) motion and would be time barred under Rule 3.850); State v. Spella, 567 So.2d 1051 (Fla. 5th DCA 1990). (double jeopardy claim is a challenge to the conviction, not the sentence, and is inappropriate for a Rule 3.800 proceeding.)

Nor can Smith’s motion be deemed to be one seeking relief under Rule 3.850, because it would be time barred. Smith was sentenced on December 19, 1997. He appealed and this court affirmed on December 15, 1998. More than two years have lapsed from the date his judgment became final before he filed this motion on July 12, 2004, under the “mail box” rule.

Smith also alleged that he had been resentenced on February 17, 2002, pursuant to Heggs v. State, 759 So.2d 620 (Fla. 2000). However, the resentencing did not affect the finality of his judgment. See Zeigler v. State, 632 So.2d 48, 50 (Fla.1993) (although defendant’s death penalty was vacated in 1988, the two-year period for attacking judgment by a 3.850 motion expired on January 1, 1987); Kissel v. State, 757 So.2d 631 (Fla. 5th DCA 2000) (although defendant was resentenced pursuant to a 3.800(a) motion, the two-year limitation period for issues raised in a 3.850 motion attacking the judgment commenced when the judgment became final, not when defendant was resentenced); Romahn v. State, 743 So.2d 104 (Fla. 5th DCA 1999) (a 3.850 motion which attacks an original plea must be filed within two years of when that plea became final, not after defendant is sentenced upon a revocation of probation).

AFFIRMED.

THOMPSON and PLEUS, JJ., concur.

      . See Fla. R. Crim P. 3.850(b).

      . See Haag v. State, 591 So.2d 614 (Fla.1992).


author: PALMER, J.

text:
    Peggy ALDRICH, Personal Representative, Petitioner, v. ESTATE OF Grace M. ALDRICH, Respondent.
    No. 5D04-1539.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2004.
    Edward P. Jordan, II of Edward P. Jordan, II, P.A., Clermont, for Petitioner.
    Alex Finch of the Law Offices of Goldsmith, Grout & Lewis, P.A., Winter Park, for Respondent.
   PALMER, J.

Petitioners, Peggy and Earl Aldrich, seek certiorari review of an order which disqualifies their attorney from representing them or any other party in this contested probate proceeding based upon the finding that the attorney is a necessary and indispensable witness in this matter. We deny the petition.

In seeking certiorari relief, the Aldrieh-es contend that disqualification is unwarranted because their attorney is not an indispensable witness, that disqualification would work a substantial hardship on them, and that the trial court failed to properly conduct an evidentiary hearing to determine if their attorney was an indispensable witness. However, it is impossible for this court to determine whether the issues raised in this petition were properly presented below and whether the trial court ruled thereon because the Aldriches have failed to provide this court with a transcript of the hearing held below or an approved statement of the evidence and proceedings as authorized under Florida Rule of Appellate Procedure 9.200(b)(4). Although the Aldriches submitted affidavits and various deposition testimony to this court by way of an appendix to their petition, it is impossible to verify which attachments to the petition were actually introduced into evidence or considered by the trial court. As such, the Aldriches have failed to meet their burden of proof. See Colby Materials Inc., v. Caldwell Constr., Inc., 868 So.2d 584 (Fla. 5th DCA 2004)(holding that the failure to provide the court with either a transcript of the hearing or an approved statement of the evidence and proceedings pursuant to rule 9.200(b)(4) of the Florida Rules of Appellate Procedure results in a failure to sustain the burden of proving any error); Scotty’s, Inc. v. Olivieri, 713 So.2d 1020 (Fla. 5th DCA 1998)(holding that, absent transcript, the appellate court will assume that a sufficient showing was made to support the order entered below).

PETITION DENIED.

ORFINGER and MONACO, JJ., concur.


author: MONACO, J.

text:
    Corbblin BUSH, Appellant, v. STATE of Florida, et al., Appellee.
    No. 5D04-42.
    District Court of Appeal of Florida, Fifth District.
    Nov. 12, 2004.
    Corbblin Bush, Madison, Pro Se.
    No appearance for Appellee, State of Florida.
    Connie L. Beach, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee, Department of Corrections.
   MONACO, J.

Corbblin Bush appeals an order dismissing his petition for writ of mandamus in which he seeks further awards of overcrowding gain-time. Because his petition is filed in the wrong venue, we affirm.

A petition for writ of mandamus is a civil action. See Latisi v. Florida Parole and Prob. Comm., 382 So.2d 1355, 1356 (Fla. 1st DCA 1980). Section 47.011, Florida Statutes (2002), provides that venue in civil actions is in a county where any defendant resides, or where the cause of action accrues. The proper defendant in an action seeking additional awards of overcrowding gain-time credits is the Secretary of the Florida Department of Corrections, which is headquartered in Leon County, Florida. As Mr. Bush filed his petition in Seminole County, where he was sentenced, and not in Leon County, the trial court properly dismissed the action. See Roth v. Crosby, 884 So.2d 407 (Fla. 2d DCA 2004); Davidson v. Crosby, 883 So.2d 866 (Fla. 1st DCA 2004); Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004); Curry v. Wainwright, 419 So.2d 744 (Fla. 5th DCA 1982).

AFFIRMED.

THOMPSON and PLEUS, JJ., concur.