author: WEBSTER, J.

text:
    The UNIVERSITY OF FLORIDA, BOARD OF TRUSTEES, Appellant, v. Salahattin M. SANAL, M.D., Appellee.
    No. 1D02-833.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2003.

      John F. Dickinson and Margaret A. Philips of Constangy, Brooks & Smith, LLC, Jacksonville, for Appellant.
    M. Scott Thomas and Gregory A. Lawrence of Thomas & Lawrence, P.A., Jacksonville, for Appellee.
   WEBSTER, J.

The University of Florida seeks review of a summary final judgment entered against it on its complaint seeking enforcement of an agreement not to compete included in a contract by which it employed Dr. Sanal. Because we conclude that the trial court correctly determined that the University failed to carry its burden to prove that a “legitimate business interest,” as that term is defined in section 542.335(l)(b), Florida Statutes (1999), supported enforcement of the non-compete agreement, we affirm.

On appeal, the parties do not dispute either the operative facts or the applicable law. Rather, the University argues that the trial court misconstrued the controlling statute and, as a result, reached an erroneous conclusion. The standard of review for this pure question of law is de novo. E.g., Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000) (“It is well established that the construction of statutes ... is a question of law that is reviewable de novo ”).

The University hired Dr. Sanal (who is a physician specializing in hematology and oncology) in August 1999 as a clinical associate professor of medicine in the division of hematology/oncology at the University of Florida Health Science Center/Jacksonville. The written employment contract specified that Dr. Sanal’s responsibilities would “include teaching, research, patient care and some administrative duties.” It also contained the following non-compete provision:

Upon termination of your employment with the University, whether through your resignation, your retirement from employment with the University, or the non-renewal or termination of this or any succeeding agreement, you (including an organization in which you are a shareholder, partner, employee or agent) agree that for a period of two years from the termination, you will not engage in a community based clinical practice within a radius of fifty miles from any location which has been the situs of your major faculty clinical teaching assignment with [sic] the two years preceding the date of termination.

Dr. Sanal’s employment with the University ended on July 20, 2001. On July 23, 2001, Dr. Sanal began working with Jacksonville Oncology Group as a hematologist/oncologist treating disease processes comparable to those he treated while employed by the University. Jacksonville Oncology Group is “a community based clinical practice” located less than 50 miles from the University’s Jacksonville facility.

The University filed its complaint seeking preliminary and permanent injunctive relief pursuant to section 542.335, Florida Statutes, alleging that Dr. Sanal was violating the non-compete agreement and causing irreparable injury to its “legitimate business interests,” which it identified as “substantial relationships with prospective and existing patients within the geographic area defined by the [a]greement.” Dr. Sanal filed an answer in which he denied the foregoing allegations, and asserted, as an affirmative defense, that the non-compete agreement was “not reasonably necessary to protect any legitimate business interest of the [University] and [wa]s, therefore, unenforceable as a matter of law.” Subsequently, Dr. Sanal filed a motion for summary judgment, in which he claimed that “[t]he undisputed record before th[e] [c]ourt demonstrate^] that the subject non-competition covenant [wa]s not supported by any legitimate business interest and [wa]s, therefore, void and unenforceable.”

The University was unable to establish that Dr. Sanal had provided care to any of its former patients since joining Jacksonville Oncology Group. It was unable to identify a single patient treated by Dr. Sanal during his employment with it who had followed him for continuing care. It was unable to identify any patient who was unaccounted for, such that it would have reason to believe that the patient had left the University to follow Dr. Sanal. Moreover, the University had not realized any marked decrease in its hematology/oncology patient population since Dr. Sanal had begun working for Jacksonville Oncology Group. In fact, it was undisputed that Dr. Sanal had treated only established patients of Jacksonville Oncology Group or new patients referred to the Group under the name of a senior member of the Group.

Unable to establish that any relationship with any existing patient had been affected, the University argued that it was, nevertheless, entitled to injunctive relief because it “ha[d] a legitimate, protectible business interest in its prospective patient base.” However, it presented no evidence to identify any specific prospective patients. Rather, the University’s position appears to have been that “its prospective patient base” included all persons residing within a 50-mile radius of its Jacksonville facility, because they might need the services of a hematologist/oncologist in the future.

The trial court concluded that Dr. Sanal was “practicing medicine in violation of the terms of the non-compete agreement.” However, it concluded, further, that the University had failed to establish that it had any “legitimate business interest,” as that term is defined in section 542.335(l)(b), Florida Statutes, that would be affected unless the relief requested by the University was granted. Rather, it concluded that the University was essentially seeking to eliminate “generic competition in the medical marketplace,” a result not permitted by section 542.335. Accordingly, the trial court denied the University’s request for temporary injunctive relief, and granted Dr. Sanal’s motion for summary judgment. In doing so, however, the trial court stated that its actions were not intended to prevent the University “from filing another action in the event that [Dr. Sanal] either actively or passively solicits business from patients he formerly treated while employed by [the University].” This appeal follows.

The parties agree that the outcome of this appeal is controlled by section 542.335(l)(b)3, Florida Statutes (1999), which, to the extent pertinent, reads:

(1) ... [Enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of business, is not prohibited. In any action concerning enforcement of a restrictive covenant:
(b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term “legitimate business interest” includes, but is not limited to:
3. Substantial relationships with specific prospective or existing customers, patients, or clients.
Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.

The parties disagree, however, as to how this language should be read. The University contends that subparagraph 3 should be construed as including within the term “prospective patients” all persons residing within a given geographic area, because they might need medical care in the future. Dr. Sanal, on the other hand, argues that the term “prospective patients” is modified by the adjective “specific”; that the phrase “specific prospective patients” is clear and unambiguous; and that we must, therefore, apply that language accordingly. We agree with Dr. Sanal.

The issue thus limited appears to be one of first impression. We have been unable to find any cases which either address the issue directly or provide meaningful insight. Although the parties have cited cases which they contend support their respective positions, we find them all to be inapposite. The University cites three cases: Gold Coast Media, Inc. v. Meltzer, 751 So.2d 645 (Fla. 3d DCA 1999), involved only whether the language of the non-compete agreement was intended to bring that agreement into play following voluntary termination by the employee as well as following involuntary termination; Infinity Radio, Inc. v. Whitby, 780 So.2d 248 (Fla. 4th DCA 2001), involved only whether the agreement sought to be enforced was one that had been assigned by a previous party or an entirely new agreement; and, in Tusa v. Roffe, 791 So.2d 512 (Fla. 4th DCA 2001), it appears that the holding is merely that protecting relationships with existing customers would constitute a “legitimate business interest” pursuant to section 542.335(l)(b)3, and that the court remanded for further proceedings as to one defendant consistent with that holding. Austin v. Mid State Fire Equipment of Central Florida, Inc., 727 So.2d 1097 (Fla. 5th DCA 1999), and Anich Industries, Inc. v. Raney, 751 So.2d 767 (Fla. 5th DCA 2000), the two cases cited by Dr. Sanal, are, likewise, unhelpful.

We can discern no ambiguity in the language of section 542.335(l)(b)3. It strikes us as relatively clear that the adjective “specific” used to modify “prospective patients” was intended to have its plain or ordinary meaning of “particular.” In such a situation, there is nothing to construe. See, e.g., A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 1144, 137 So. 157, 159 (1931) (“The intention and meaning of the Legislature must primarily be determined from the language of the statute itself and not from conjectures aliunde. When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.”). Courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968). Moreover, the construction advocated by the University would render meaningless the words “[sjubstantial relationships” at the beginning of subpara-graph 3 because one cannot have “substantial relationships” with “prospective patients” who are unidentified, and unidentifiable. Accordingly, we hold that, to qualify as a “legitimate business interest” pursuant to section 542.335(l)(b)3, a “relationship” with a “prospective patient” must be, in addition to “substantial,” one with a particular, identifiable, individual.

We note that such a result appears to be consistent with what the principal senate sponsor and the bar’s principal drafter of section 542.335 have said they intended. In an article written for The Florida Bar Journal shortly after the adoption of section 542.335, Senator John Grant and Thomas Steele stated that a plaintiff seeking to enforce a restrictive covenant should be entitled to do so only if “it can demonstrate that the defendant has misappropriated (or threatens to misappropriate) identifiable assets” of the plaintiffs business. John A. Grant, Jr. & Thomas T. Steele, Restrictive Covenants: Florida Returns to the Original “Unfair Competition” Approach for the 21st Century, Fla. B.J., Nov. 1996, at 53, 54 (emphasis added). According to Grant and Steele, the statute was not intended to “unnecessarily impede competition, the ability of competitors to hire experienced workers, or the efforts of employees to secure better-paying positions.” Id. at 55.

To be entitled to the injunctive relief it sought, the University was obliged to prove that, absent such a remedy, it would suffer irreparable injury to a “legitimate business interest,” as that term is defined in section 542.335(l)(b). Because it failed to establish either that Dr. Sanal had interfered with “[sjubstantial relationships with specific prospective ... patients” or that he had threatened to do so, the University failed to carry that burden. Accordingly, the trial court correctly entered summary final judgment in Dr. Sanal’s favor on the cause of action stated in the University’s complaint.

AFFIRMED.

VAN NORTWICK and PADOVANO, JJ., concur.


source: Caselaw Access Project

author: NESBITT, Senior Judge.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. R.C.S., a juvenile, Appellee.
    No. 3D02-1011.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 2003.
    Charlie Crist, Attorney General,, and Linda S. Katz, Assistant Attorney General for appellant.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellee.
    Before GREEN and FLETCHER, JJ, and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

The State appeals a final order entered by the trial court placing juvenile R.C.S. on probation, and ordering, among other things, that the juvenile complete 100 hours of community service. The State maintains that the trial court erred in failing to sentence the juvenile to a minimum period of fifteen days in a secured detention facility, as required by section 790.22(9)(a), Florida Statutes (2001).

The juvenile entered a plea of nolo con-tendere to armed burglary with a firearm and theft of a firearm. At the disposition hearing which followed, the juvenile’s counsel attempted to go behind the plea and claim that the boy was only in constructive possession of the firearm at issue because he acted solely as a lookout. Thus, counsel maintained, the mandatory detention provision of section 790.22(9)(a), did not have to be applied. Over the State’s objection, the trial judge accepted the juvenile’s position, and failed to enter the mandatory detention. The State claims that in so ruling, the trial court committed per se reversible error, and we agree.

We are of the view that the legislature purposely intended the mandatory minimum detention provision of that section to act as an example of what might lie ahead should one persist in further criminal activity. We reject the juvenile’s argument that we should analogize section 790.22(9), with section 775.087(1), Florida Statutes (1999). Moreover, we do not think there is any ambiguity present because the subsection at issue expressly provides for such penalty for the “use” of a firearm. Here, even though the juvenile acted only as a lookout, he was involved in a crime which involved the use of a weapon. This was sufficient to mandate the minimum fifteen day detention at issue. Accordingly, we reverse the order under review and remand for additional sentencing.

      . Section 790.22 provides in part:
      (9) Notwithstanding s. 985.214, if the minor is found to have committed an offense that involves the use or possession of a firearm, as defined in s. 790.001, other than a violation of subsection (3), or an offense during the commission of which the minor possessed a firearm, and the minor is not committed to a residential commitment program of the Department of Juvenile Justice, in addition to any other punishment provided by law, the court shall order:
      (a) For a first offense, that the minor shall serve a minimum period of detention of 15 days in a secure detention facility; and
      1. Perform 100 hours of community service; and may
      2. Be placed on community control or in a nonresidential commitment program. (Emphasis added.)

      . See State v. Rodriguez, 602 So.2d 1270 (Fla.1992)(concluding defendant's sentence could not be enhanced under section 775.087(1), without evidence of personal possession of the weapon at issue).


author: PER CURIAM.

text:
    Winston PITTS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-4141.
    District Court of Appeal of Florida, First District.
    Feb. 3, 2003.
    Petitioner Winston Pitts, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Winston Pitts filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. We treat the notice of appeal as a petition for certiorari and deny the petition. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

BOOTH, WOLF, and KAHN, JJ., concur.


text:
    Flavio CHAVEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-309.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2003.
    James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Flavio Chavez, pro se.

      Charlie Crist, Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, Tampa, for Appellee.
   PER CURIAM.

Flavio Chavez appeals an order revoking his probation. We affirm the order. We remand, however, for the trial court to correct a scrivener’s error in the new sentences imposed after the revocation of probation. On page three of the new judgment and sentences, the court noted that the sentences imposed applied to counts I through IV. In fact, the sentences applied to counts I through III. Count IV was a misdemeanor for which Mr. Chavez was initially sentenced to time served.

ALTENBERND, C.J., and STRINGER and DAVIS, JJ., Concur.


author: FLETCHER, Judge.

text:
    Melvin NAIRN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1596.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 2003.
    Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Michael J. Neimand and Paulette R. Taylor, Assistant Attorneys General, for appellee.

      Before SCHWARTZ, C.J., and FLETCHER and SHEVIN, JJ.
   FLETCHER, Judge.

Melvin Nairn was convicted of robbery and sentenced to thirty years in state prison with a mandatory minimum of fifteen years. We affirm the conviction but we reverse the sentence and remand with directions to impose a sentence of 18 years.

At the sentencing hearing following Nairn’s trial and conviction, the trial judge offered Nairn an eighteen year prison term in “exchange” for Nairn’s giving up his right to appeal. Nairn rejected the trial judge’s offer, immediately after which the trial judge sentenced Nairn to the maximum penalty of thirty years. Our review of the record reveals nothing to explain the wherefore between the eighteen year offer and the thirty year sentence imposed moments after Nairn’s rejection, with the exception of Nairn’s refusal to give up his right of appeal.

Setting aside the trial court’s possible over-entanglement in plea bargaining, see State v. Warner, 762 So.2d 507 (Fla.2000), the sole sentencing issue is whether the thirty year sentence is a “vindictive” one, and we have concluded that it is. As used in the sentencing process the word “vindictive” has lost its dictionary definitions. See American Heritage Dictionary 1430 (1969 ed.)(“disposed to seek revenge”; “unforgiving; bitter; spiteful”). The sentencing term “vindictive” has become a “term of art,” describing the legal effect of a given objective course of action, generally not implying any personal or subjective animosity on the part of the trial judge. See Frazier v. State, 467 So.2d 447 (Fla. 3d DCA), rev. dismissed, (Fla.1985). That being the case a defendant challenging a sentence as being vindictive may not need to demonstrate that the sentencing judge was acting out of any degree of malice. Rather, the defendant can succeed by showing events such as that described in Charles v. State, 816 So.2d 731, 735 (Fla. 3d DCA 2002)(foot-notes omitted):

“Having all of this information before him, [the trial judge] offered defendant what he obviously believed was a fair sentence, given all relevant and material factors. The very thorough record in this case is devoid of any indication as to what facts or considerations could possibly have come into play at the time of sentencing that warranted a sentence four times more severe than the judge’s original offer. Because the reasons for this significantly greater sentence do not affirmatively appear in the record so as to assure the absence of vindictiveness, we reverse the fifty-year sentence and remand with directions to impose the twelve-year sentence as a habitual violent offender offered by the trial judge at the conclusion of all the evidence.”

A defendant’s refusal to waive his/ her right to appeal is not a valid reason to impose a greater sentence. There being nothing in the record to show that the imposed sentence is not vindictive, the sentence is reversed and the cause is remanded with directions to impose a sentence of eighteen years.


text:
    Gary F. CURLEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-5188.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2003.

      Gary F. Curlee, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(5)(C).

ALLEN, C.J., WOLF and PADOYANO, JJ., concur.


author: BENTON, J.

text:
    Paul J. BRUNO, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2498.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Paul J. Bruno appeals an order summarily denying his timely motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. The motion raises several claims, but only two merit discussion on appeal. We hold that his sentence for lewd and lascivious assaults in violation of section 800.04, Florida Statutes (1997), is illegal, and must be set aside on remand, insofar as it requires him to submit to castration. We also hold that the motion adequately alleges a claim of ineffective assistance of counsel by asserting that his plea was the product of his lawyer’s misadvice about how much time he would have to serve in prison. The trial court has not attached portions of the record to its order that conclusively refute this claim. We therefore reverse and remand on this claim, as well. We affirm otherwise.

I.

After he was charged with five counts of lewd and lascivious assault in violation of section 800.04, Florida Statutes (1997), the state proposed a plea bargain under which Mr. Bruno could elect between adjudication on all five counts and a sentence of 256 months’ incarceration, or adjudication on four counts and a sentence of 188 months’ incarceration plus surgical castration. Mr. Bruno accepted the state’s offer and elected the latter option. The trial court then pronounced a sentence of 188 months’ incarceration and ordered that he undergo surgical castration.

II.

As the state concedes on appeal, no statute authorized castration, chemical or surgical, for convictions under section 800.04, Florida Statutes (1997). While section 794.0235(1), Florida Statutes (1997), purported to authorize sentencing a defendant to treatment with medroxyprogester-one acetate, it did so only in the event of a conviction for sexual battery under section 794.011, Florida Statutes (1997), which was not charged in the present case. An offense under section 800.04, Florida Statutes (1997), can involve much less serious conduct than sexual battery under section 794.011, including, we have held, “verbal conduct.” See Morris v. State, 789 So.2d 1032, 1033 (Fla. 1st DCA 2001) (en banc) (upholding a conviction under section 800.04 based on a “verbal interchange with the victim”).

An illegal sentence cannot be imposed, even as part of a negotiated plea agreement. See, e.g., Wright v. State, 743 So.2d 103, 103 (Fla. 1st DCA 1999) (“A trial court is not authorized to impose an illegal sentence, even pursuant to a plea agreement. See Williams v. State, 500 So.2d 501 (Fla.1986).”). Because neither section 794.0235(1), Florida Statutes (1997), nor any other provision of Florida law authorizes castration as punishment for lewd and lascivious conduct in violation of section 800.04, Florida Statutes (1997), appellant’s sentence is illegal to the extent it purports to require his castration. See Carter v. State, 786 So.2d 1173, 1178 (Fla.2001) (“To be illegal within the meaning of rule 3.800(a) the sentence must impose a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.” (quoting Blakley v. State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999))); State v. Mancino, 714 So.2d 429, 433 (Fla.1998) (“A sentence that patently fails to comport with statutory or constitutional limitations is by definition ‘illegal.’ ”). This illegality is subject to correction at any time, including collaterally. The requirement that Mr. Bruno undergo surgical castration must be set aside on remand.

The state may, but need not, acquiesce in the sentence it bargained for, thus modified. But we have held: “When a sentence is illegal, and such a sentence was the product [as here] of a negotiated plea agreement, the state has the option of either agreeing to the appellant’s resen-tencing, or withdrawing from the plea agreement and proceeding to trial on the original charges. Williams v. State, 650 So.2d 1054, 1055 (Fla. 1st DCA 1995).” White v. State, 828 So.2d 491, 492 (Fla. 1st DCA 2002); see also West v. State, 818 So.2d 637, 638 (Fla. 1st DCA 2002); Bell v. State, 795 So.2d 1140, 1141 (Fla. 1st DCA 2001); Rainey v. State, 741 So.2d 1207, 1208 (Fla. 1st DCA 1999); Forshee v. State, 579 So.2d 388, 389 (Fla. 2d DCA 1991); Jolly v. State, 392 So.2d 54, 56 (Fla. 5th DCA 1981).

III.

The motion also alleges that defense counsel affirmatively misadvised appellant as to the length of time he would actually have to serve in prison. It asserts that defense counsel told him he would serve nine to ten years at most, and that he relied on this advice in entering his plea, only to learn later that he would have to serve at least 13.3 years. See § 944.275(4)(b)3., Fla. Stat. (1997) (barring any award of gain-time that would reduce a prison sentence below 85% of the term pronounced at sentencing). These allegations are sufficient to state a claim of ineffective assistance of counsel. See State v. Leroux, 689 So.2d 235, 236-37 (Fla.1996); Brazeail v. State, 821 So.2d 364, 367-68 (Fla. 1st DCA 2002); Little v. State, 673 So.2d 151, 151 (Fla. 1st DCA 1996). Nothing in the plea colloquy or the plea agreement refutes this claim.

IV.

Accordingly, we reverse the order under review insofar as it fails to set aside the castration provision in appellant’s sentence and remand with directions that the trial court excise that provision.

In the event the state does not elect to withdraw from the plea agreement, the trial court should also conduct an eviden-tiary hearing on the ineffective assistance claim of affirmative misadvice, unless the record conclusively refutes the claim, in which case it should attach pertinent portions of the record to the order on remand.

The order under review is otherwise affirmed.

ALLEN, C.J., and HAWKES, J., concur.

      . Then as now, section 794.0235 provides:
      (1) Notwithstanding any other law, the court:
      (a) May sentence a defendant to be treated with medroxyprogesterone acetate (MPA), according to a schedule of administration monitored by the Department of Corrections, if the defendant is convicted of sexual battery as described in s. 794.011.
      (b) Shall sentence a defendant to be treated with medroxyprogesterone acetate (MPA), according to a schedule of administration monitored by the Department of Corrections, if the defendant is convicted of sexual battery as described in s. 794.011 and the defendant has a prior conviction of sexual battery under s. 794.011.
      If the court sentences a defendant to be treated with medroxyprogesterone acetate (MPA), the penalty may not be imposed in lieu of, or reduce, any other penalty prescribed under s. 794.011. However, in lieu of treatment with medroxyprogesterone acetate (MPA), the court may order the defendant to undergo physical castration upon written motion by the defendant providing the defendant's intelligent, knowing, and voluntary consent to physical castration as an alternative penalty.
      (2)(a) An order of the court sentencing a defendant to medroxyprogesterone acetate (MPA) treatment under subsection (1), shall be contingent upon a determination by a court appointed medical expert, that the defendant is an appropriate candidate for treatment. Such determination is to be made not later than 60 days from the imposition of sentence. Notwithstanding the statutory maximum periods of incarceration as provided in s. 775.082, an order of the court sentencing a defendant to me-droxyprogesterone acetate (MPA) treatment shall specify the duration of treatment for a specific term of years, or in the discretion of the court, up to the life of the defendant.

        (b) In all cases involving defendants sentenced to a period of incarceration, the administration of treatment with medroxy-progesterone acetate (MPA) shall commence not later than one week prior to the defendant's release from prison or other institution.
      (3) The Department of Corrections shall provide the services necessary to administer medroxyprogesterone acetate (MPA) treatment. Nothing contained in this section shall be construed to require the continued administration of medroxyprogesterone acetate (MPA) treatment when it is not medically appropriate.
      (4) As used in this section, the term “pri- or conviction" means a conviction for which sentence was imposed separately pri- or to the imposition of the sentence for the current offense and which was sentenced separately from any other conviction that is to be counted as a prior conviction under this section.
      (5)If a defendant whom the court has sentenced to be treated with medroxypro-gesterone acetate (MPA) fails or refuses to:
      (a) Appear as required by the Department of Corrections for purposes of administering the medroxyprogesterone acetate (MPA); or
      (b) Allow the administration of medroxy-progesterone acetate (MPA),
      the defendant is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Of course, if the state elects to withdraw from the plea agreement and go to trial, the claim is moot.


text:
    Willie C. MACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2560.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2003.
    Willie C. Mack, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Willie C. Mack, appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We find that all but one of the grounds asserted by Mack are without merit. See Floyd v. State, 808 So.2d 175 (Fla.2002). Because we find that Mack stated a facially sufficient claim of ineffective assistance of counsel for failure to investigate or call alibi witnesses which was not conclusively refuted by the record attachments to the trial court’s denial, we reverse and remand with directions to attach additional portions of the record conclusively refuting Mack’s claim, or to conduct an evidentiary hearing.

DAVIS, BROWNING and POLSTON, JJ., concur.


text:
    Nezra Ted McCARTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-2831.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2003.
    Nezra Ted McCarty, pro se, petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal of the judgment and sentence imposed on March 14, 2002, in Wakulla County Circuit Court case number 01-57-CFA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). The court notes that in accordance with the lower tribunal’s order regarding petitioner’s entitlement to a belated appeal, the Public Defender has been appointed to represent petitioner on appeal.

ALLEN, C.J., WOLF and PADOVANO, JJ., concur.


author: WARNER, J. GROSS, J.,

text:
    Brennan LANDINGUIN and Amy Landinguin, Appellants, v. Jacquelyn CARNEAL and Blane Carneal, Appellees.
    No. 4D02-4124.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2003.

      Mitchell Haymes of Law Offices of Glantz & Glantz, P.A., Plantation, for appellants.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, for ap-pellees.
   WARNER, J.

A child’s parents challenge an order denying their motion to dissolve an ex parte temporary custody order granting the child’s grandparents custody of the child pending determination of their petition for temporary custody. Because the sworn allegations and affidavits were insufficient to grant the temporary custody orders, we reverse.

On July 25, 2002, the grandparents filed a petition for temporary custody of the child pursuant to section 751.03, Florida Statutes (2001), which allows extended family members to seek temporary custody of minor children. Simultaneously, the grandparents filed an ex parte motion for temporary injunction to prevent removal of the child.

The petition for temporary custody alleged the child has resided with the grandparents since June 2001, and has spent various periods of time and occasional holidays with her father. The grandparents have been solely responsible for the child’s financial and emotional care. The petition alleged the father is attending college in Chicago, and because of his rigorous course of study, he cannot provide proper care for the child at this time. According to the petition, the mother has spent httle time with the child since the parents separated in May, 1999. The grandparents want to provide health insurance and to enroll the child in school at Calvary Chapel where the grandmother teaches.

The ex parte motion for temporary injunction asserted that no notice should be given to the parents because they would act on their stated intent to remove the child from Florida.

Prior to the service of the custody petition on the parents, the trial court granted the grandparents’ ex parte motion for temporary injunction, directing that the child remain in the custody of the grandparents and not be removed from Bro-ward County until further order of the court. Despite this order, they allowed the child to travel to Chicago with the father for a vacation. After service of the petition, the parents declined to send the child back to Florida, prompting the grandparents to file a verified emergency ex parte motion for injunction and child pick-up order. Without alleging specific facts, the motion simply alleged the child will be irreparably harmed if she were not returned to her grandparents. The trial court signed the order, and the next day, with the assistance of the Chicago police, the grandparents took the child from the parents and returned to Florida.

The parents filed a motion to dissolve the temporary injunction and pick-up order, arguing the petition and affidavits were legally insufficient to grant custody to the grandparents. A temporarily assigned judge denied the motion and returned the motion to the regular assigned judge for an evidentiary hearing.

Sections 751.02 and 751.03 provide a mechanism for family members to provide for the welfare of minor children by obtaining temporary custody of the children when parents are unable to do so without the intervention of the state. However, where one parent objects to the granting of custody,

[T]he court shall grant the petition only upon a finding, by clear and convincing evidence, that the child’s parent or parents are unfit to provide the care and control of the child. In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in chapter 39.

§ 751.05(3), Fla. Stat. (2001) (emphasis added).

In Richardson v. Richardson, 766 So.2d 1036 (Fla.2000), the supreme court considered the grandparents’ standing to seek custody of a grandchild where a parent objected to the custody. The court reaffirmed its rulings in Von Eiff v. Azicri, 720 So.2d 510 (Fla.1998), and Beagle v. Beagle, 678 So.2d 1271 (Fla.1996), stating:

Florida’s Constitution guarantees a right to privacy and [ ] such right includes a parent’s fundamental right to rear his or her child free from governmental intrusion and control. We further explained that “the state can satisfy the compelling state interest standard [only] when it acts to prevent demonstrable harm to a child.” Accordingly, we held that a trial court may not intrude upon the parent-child relationship by awarding visitation rights to a grandparent without evidence of a demonstrable harm to the child.

Richardson, 766 So.2d at 1039 (quoting Von Eiff, 720 So.2d at 515 (citations omitted)).

While the grandparents here are seeking temporary custody under a different statute, that law recognizes the holdings of Beagle and Von Eiff that one seeking temporary custody over the objection of the parent must show that the parent is unfit. See § 751.05(3). In other words, the grandparents must satisfy the same burden the state must satisfy in a dependency proceeding under chapter 39. Neither the grandparents petition nor their affidavits in support of their ex -parte motions allege any facts constituting abuse, abandonment or neglect by the parents within the meaning of that chapter.

It is well settled, moreover, that the grandparents’ motion for an ex parte temporary injunction should have been entered only if their complaint or affidavit established the following criteria: “(1) the likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) considerations of the public interest.” Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002) (emphasis added). See also City of Boca Raton v. Boca Raton Airport Auth., 768 So.2d 1191, 1193 (Fla. 4th DCA 2000); Duryea v. Slater, 677 So.2d 79, 81 (Fla. 2d DCA 1996). Because the grandparents’ complaint and motions failed to satisfy the criteria for issuance of an ex parte injunction, the court also erred for this reason in awarding temporary custody to the grandparents and denying the parents’ motion to dissolve.

At the hearing on the motion to dissolve, the grandparents suggested they could show “abandonment.” While section 751.05(1) provides for an evidentiary hearing on the issue of temporary custody, here the grandparents have failed to allege sufficient facts to justify temporary custody over the parents’ objection. The parents have a constitutional right to raise their child.

Finally, the parents challenged the jurisdiction of the court to hear this case at all. However, whether the court has jurisdiction depends upon factual determinations which it must make. Therefore, prohibition is not a remedy at this point in the litigation.

We reverse the orders granting the grandparents’ temporary custody and the pick-up order and remand for further proceedings.

FARMER, J., concurs.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I concur in the majority opinion. The facts of this case obviously do not support the extraordinary remedy of an ex parte temporary injunction, which is “antithetical to precious due process rights.” City of Boca Raton v. Boca Raton Airport Auth., 768 So.2d 1191, 1192 (Fla. 4th DCA 2000) (quoting Smith v. Knight, 679 So.2d 359, 361 (Fla. 4th DCA 1996)). Therefore, I would grant the parents’ motion for appellate attorney’s fees under section 57.105(1), Florida Statutes (2002).


author: NORTHCUTT, Judge.

text:
    Robert L. DORMINEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4342.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.
   NORTHCUTT, Judge.

Robert L. Dorminey appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Dorminey raises three claims. We affirm the denial of claim one, but we reverse and remand as to the remaining two claims.

In 1991, Dorminey was sentenced as a habitual felony offender to a split sentence of five years in prison followed by five years’ probation on a charge of grand theft of a motor vehicle. After serving the prison portion of the sentence, Dorminey was placed on probation. He subsequently violated the probation and was sentenced to one year and one day in prison with jail credit for 161 days.

Dorminey first claims that the time he served on probation must be credited toward his violation of probation sentence. The circuit court correctly denied this claim because credit for time served on the probation portion of a split sentence cannot be applied against a new prison sentence imposed on the violation of probation. See Young v. State, 697 So.2d 75 (Fla.1997). Accordingly, we affirm the denial of this claim.

Dorminey also seeks credit for the time he served on the prison portion of the split sentence. He contends he would be entitled to immediate release if awarded the proper amount of prison credit. The circuit court stated that such a claim is not within its province. We disagree. Claims for prison credit are cognizable under rule 3.800(a). See Wiggins v. State, 817 So.2d 1016 (Fla. 2d DCA 2002). Therefore, we reverse and remand for the circuit court to expeditiously consider. Dorminey’s claim for prison credit.

Last, Dorminey claims that he is entitled to additional jail credit because he was arrested on the Hillsborough County violation of probation warrant on March 6, 2002, in Duval County. The trial court recites an arrest date of April 4, 2002, and attaches records from Hillsborough County but fails to address Dorminey’s claim regarding the arrest in Duval County. Therefore, we reverse and remand for consideration of this claim in light of the Florida Supreme Court’s decision in Gethers v. State, 28 Fla. L. Weekly S44 (Fla. Jan. 16, 2003).

In his initial brief on appeal, Dorminey raises several claims that were not raised in his motion to the circuit court. We decline to address them. However, our affirmance is without prejudice to any right Dorminey may have to raise these claims in a facially sufficient rule 3.800(a) motion.

Affirmed in part, reversed in part, and remanded.

FULMER and DAVIS, JJ., Concur.


text:
    James Lee EARLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3668.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2003.
    James F. Cummins, Inverness, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Saffor v. State, 660 So.2d 668 (Fla.1995); Thompson v. State, 743 So.2d 607 (Fla. 4th DCA 1999).

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


text:
    Joseph DIDIO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-938.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2003.
    James B. Gibson, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See, W.L.H. v. State, 702 So.2d 1347 (Fla. 5th DCA 1997); Marasa v. State, 394 So.2d 544 (Fla. 5th DCA 1981); McBride v. State, 191 So.2d 70 (Fla. 1st DCA 1966).

AFFIRMED.

PETERSON, MONACO and TORPY, JJ., concur.


text:
    Kevin James AHEARN, Appellant, v. Lawrence N. HENRY, Appellee.
    No. 5D02-1265.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2003.
    John D. Harrington, of Bradham, Blevins & Bayliss, P.A., St. Petersburg, for Appellant.
    Mary Sherris, of Bogin, Munns & Munns, Orlando, for Appellee.
   PER CURIAM.

See Suarez-Burgos v. Morhaim, 745 So.2d 368 (Fla. 4th DCA 1999).

AFFIRMED.

THOMPSON, C.J., PALMER, and TORPY, JJ., concur.


text:
    C.V., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1816.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2003.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

THOMPSON, C.J., SHARP, W., and TORPY, JJ., concur.


text:
    Wilbert PRESSLEY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2661.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2003.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Bowen v. State, 833 So.2d 288 (5th DCA 2002); Simmons v. State, 824 So.2d 327 (Fla. 1st DCA 2002).

THOMPSON, C.J., SAWAYA and MONACO, JJ., concur.


text:
    Clinton ADAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3833.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2003.
    Clinton Adams, Jr., Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Montague, 682 So.2d 1085 (Fla.1996).

THOMPSON, C.J., PLEUS and PALMER, JJ., concur.


text:
    Paul ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3923.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2003.
    James Russo, Public Defender, and Basil Freeman, Assistant Public Defender, Viera, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

See, Major v. State, 814 So.2d 424 (Fla.2002).

AFFIRMED.

PETERSON, SAWAYA and ORFINGER, JJ., concur.


text:
    Odell SWAYZER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-18.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2003.
    Odell Swayzer, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

See Alvarez v. State, 358 So.2d 10, 12 (Fla.1978).

PETERSON, GRIFFIN and SAWAYA, JJ., concur.


text:
    Marcus D. SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-102.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2003.
    Marcus D. Shaw, Mayo, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Ayo v. State, 708 So.2d 692 (Fla. 5th DCA 1998).

THOMPSON, C.J., SHARP, W., and PETERSON, JJ., concur.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Leroy OFFILL, Appellee.
    No. 2D01-5273.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
    James Marion Moorman, Public Defender, Bartow, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

The State challenges the trial court’s dismissal of criminal charges against Leroy Offill. The trial court dismissed the charges pursuant to Florida Rule of Criminal Procedure 3.213(a). We reverse and remand for an appropriate evidentiary hearing.

We note initially that the trial court entered two orders of dismissal, the second and more detailed of which we may not consider due to the trial court’s lack of jurisdiction to enter it. In the first order, filed on November 6, 2001, the court simply stated that it was granting the defendant’s motion to dismiss for expiration of the five-year period since entry of the incompetency order. The second order, filed on January 9, 2002, was more detailed, specifying that (1) Offill had previously been found incompetent to proceed to trial due to a mental illness and was unlikely to be restored to competency as defined in section 916.106(11), Florida Statutes (2002); (2) the charges were dismissed without prejudice pursuant to rule 3.213(a); and (3) because Offill had been conditionally released and monitored by Mental Health Care, Inc., and had complied with treatment, he was released from the jurisdiction of the court.

However, before the court entered the January 9, 2002, order, the State filed its notice of appeal on November 6, 2001, thus divesting the trial court of jurisdiction. Although the trial court attempted to regain jurisdiction by making its January 2002 order nunc pro tunc to October 22, 2001, that attempt was ineffective. See Holland v. State, 634 So.2d 813 (Fla. 1st DCA 1994). Accordingly, the specific findings contained in the January 2002 order are null and void, leaving the earlier November 6, 2001, order as the only order on appeal.

We next observe that the statute addressing this situation, section 916.145, Florida Statutes (2001), appears to conflict with the corresponding rule of criminal procedure, rule 3.213, concerning the presumption that applies to competency determinations. Section 916.145 provides that the court shall dismiss the charges after the expiration of five years unless the court specifies why it believes the defendant will become competent in the foreseeable future. By contrast, the rule provides that after the expiration of five years, the court shall dismiss the charges if it finds, after a hearing, that (1) the defendant remains incompetent to stand trial, (2) there is no substantial probability that the defendant will become mentally competent to stand trial, and (3) the defendant does not meet the criteria for commitment. Fla. R.Crim. P. 3.213.

The distinction between the statute and the rule is procedural in nature since the difference is based on allocation of the presumption. While the statute presumes continued incompetence upon the passage of five years, the rule seems to presume competence upon the passage of five years unless continued incompetence can be shown by competent evidence. The rule further requires a hearing for consideration of such evidence.

Because matters of procedure are generally governed by rule while matters of substance are governed by statute, Hart v. State, 405 So.2d 1048 (Fla. 4th DCA 1981), and the distinction here is procedural, we conclude that rule 3.213 controls. This rule, however, requires the trial court to hold a hearing and make findings in three specific areas before dismissing the charges. The record on appeal reveals that the hearing conducted here did not address any of the rule’s three specific issues. The order on appeal also did not contain the appropriate findings. Accordingly, we reverse and remand with directions to the trial court to conduct an evidentiary hearing and make the required findings in support of its determination.

We also note that the order on appeal lacks the required language that would dismiss the charges without prejudice to the State refiling them if the defendant subsequently becomes competent. See State v. Johns, 651 So.2d 1227 (Fla. 2d DCA 1995).

As a final note, we observe that, due to the apparent conflict between the rule and the statute, resolution of this issue would be helpful to the courts that are subsequently faced with this issue.

Reversed and remanded.

SALCINES and STRINGER, JJ„ Concur.


author: STRINGER, Judge.

text:
    Joseph KEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4772.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.

      James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Joseph Key seeks review of his sentence of 62.1 months’ incarceration, which the trial court entered on remand from his direct appeal. Because the trial court abused its discretion in assessing forty points for severe victim injury, we reverse.

In September 1998 the State charged Key with the first-degree murder and aggravated child abuse of his girlfriend’s three-year-old daughter. The evidence showed that the cause of death was blunt trauma to the back. The child’s injuries included damage to the pancreas and intestines, a liver and spleen that were torn in half, a broken rib, and contusions to the head. At trial the State alleged that Key delivered these injuries to the child during a severe beating. Key admitted to hitting the child on her back, but asserted that the child’s injuries resulted from a fall down the stairs.

The jury acquitted Key of murder and aggravated child abuse and convicted him of the lesser-included crimes of misdemeanor battery and child abuse. The trial court sentenced Key to time served for battery and 97.27 months’ incarceration for child abuse. This sentence was a guidelines sentence, and the trial court assessed 120 victim injury points for the child’s death on his guidelines scoresheet.

Key appealed the trial court’s assessment of victim injury points for death, and this court reversed with directions that the court could assess “other appropriate victim injury points.” Key v. State, 779 So.2d 525, 526 (Fla. 2d DCA 2000), review denied, 794 So.2d 605 (Fla.2001). On remand, the trial court assessed forty points for severe victim injury. Key then filed the present appeal, arguing that the trial court abused its discretion in finding Key responsible for severe victim injury.

The trial court’s assessment of victim injury points is reviewed for an abuse of discretion. Ely v. State, 719 So .2d 11, 13 (Fla. 2d DCA 1998); Gregory v. State, 666 So.2d 222, 223 (Fla. 2d DCA 1995). Severe victim injury merits forty points, moderate victim injury merits eighteen points, and slight victim injury merits four points. Fla. R.Crim. P. 3.991(a) (1997). Victim injury points may not be assessed for a crime of which the defendant is acquitted. Fla. R.Crim. P. 3.702(d)(5). In this case, Key was acquitted of not only first-degree murder and aggravated child abuse, which were the crimes charged on the information, but also second-degree murder, manslaughter, and aggravated battery, which are lesser-included crimes that were charged in the jury instructions.

The difference between the statutory definitions of misdemeanor battery and aggravated battery is that aggravated battery requires great bodily harm or use of a deadly weapon. §§ 784.03, 784.045, Fla. Stat. (1997). There were no weapons involved in this case, so the jury must have rejected the State’s assertion that Key caused great bodily harm. Similarly, the jury’s acquittal of aggravated child abuse and conviction for child abuse necessarily precludes a finding of great bodily harm. § 827.03(1), (2), Fla. Stat. (1997).

Because the jury necessarily concluded that Key did not cause great bodily harm, he cannot be assessed victim injury points for great bodily harm. The question becomes whether great bodily harm is something greater than severe victim injury for which the trial court assessed forty victim injury points. “ ‘Great bodily harm defines itself and means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery.’ ” Coronado v. State, 654 So.2d 1267, 1270 (Fla. 2d DCA 1995) (quoting Owens v. State, 289 So.2d 472, 474 (Fla. 2d DCA 1974)). The term is not statutorily defined. Under principles of lenity, we must resolve doubts about the meanings of the terms in the appellant’s favor. Poole v. State, 753 So.2d 698, 698 (Fla. 4th DCA 2000). Thus, we conclude that a rejection of great bodily harm precludes a finding of severe victim injury.

The trial court therefore abused its discretion in assessing forty points for severe victim injury, and we reverse Key’s sentence and remand for resentencing. Although Key may not be assessed severe victim injury points as a matter of law, we conclude that the State presented sufficient evidence to support a finding of moderate victim injury. Thus, on remand the court shall assess eighteen points for moderate victim injury.

Reversed and remanded.

SALCINES and SILBERMAN, JJ„ Concur.

      . We reject Key's argument that the assessment of victim injury points is contra to Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the issue has not been preserved for review. See Marshall v. State, 789 So.2d 969, 970 (Fla.2001); Sheffield v. State, 789 So.2d 340 (Fla.2001).

      . It should be noted that the jury was erroneously given an instruction on child abuse that included the element of “great bodily harm.” On direct appeal, this court recognized that the instruction was given in error, but concluded that the error was harmless. Key v. State, 779 So.2d 525, 526 (Fla. 2d DCA 2000), review denied, 794 So.2d 605 (Fla.2001). In accordance with this finding, we conclude that Key may not be assessed victim injury points for a finding of great bodily harm based on the erroneous jury instruction.


author: JACOBUS, BRUCE W„ Associate Judge.

text:
    Sayed M. HARUN, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D01-3875.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.

      Sayed M. Harun, Greenacres, pro se.
    Terry P. Verduin, Acting Assistant District 9 Legal Counsel, Department of Children and Families, West Palm Beach, for appellee.
   JACOBUS, BRUCE W„ Associate Judge.

Appellant, Sayed M. Harun, appeals a final administrative order entered by the Florida Department of Children and Families (DCF) which denied Harun Medicaid benefits. We reverse and remand the case to the lower court to make further findings of fact.

On June 23, 2000, Harun applied to DCF for benefits through Florida’s AFDC-Related Medically Needy Program because his limited insurance coverage failed to cover all of the medical expenses that he incurred when he had four heart bypass surgeries the prior month. DCF initially denied Harun’s request because he failed to provide the documentation necessary to verify his eligibility. Harun alleges that he timely provided all documents to DCF, except for information pertaining to his wife’s 401k plan which he had difficulty obtaining due to his illness and his wife’s inability to speak English. When he finally obtained this information, Harun alleges that DCF informed him that his file had been closed.

On August 25, 2000, Harun apphed for a second time to DCF for benefits. However, Harun again became ill and was readmitted to the hospital. Due to his hospitalization, Harun missed an interview with DCF which resulted in the denial of benefits. On February 6, 2002, Harun submitted a third application to DCF. DCF approved this application finding that all eligibility requirements were met, but DCF denied benefits because DCF’s administrative rules extend Medicaid eligibility only three months retroactively. On March 3, 2001, Harun’s DCF caseworker explained in writing that the denial of benefits was due to Harun’s failure “to follow through” on eligibility.

Harun appealed the denial to DCF’s Office of Appeal Hearings, and on July 10, 2001, the hearing officer affirmed the denial of benefits, stating that because Harun was extended twenty additional days to submit documentation, “the petitioner’s claim that he was unable to return the documents timely due to illness is not valid.”

Section 120.68(1), Florida Statutes (2001), authorizes judicial review of final administrative orders. Competent substantial evidence must support the findings of fact made by the administrative law judge. See § 120.68(7)(b); Axilrod v. Dep’t of Children & Family Servs., 799 So.2d 1103, 1108 (Fla. 4th DCA 2001). Moreover, appellate courts may “set aside agency action” when an agency has erroneously interpreted a provision of law, or has exercised its discretion in a manner inconsistent with agency rules. See § 120.68(7)(d), (e)2.; Schrimsher v. Sch. Bd. of Palm Beach County, 694 So.2d 856, 861 (Fla. 4th DCA 1997); Marrero v. Dep’t of Prof'l Regulation Bd. of Psychological Exam’rs., 622 So.2d 1109, 1113 (Fla. 1st DCA 1993). We must remand the case because the hearing officer failed to make necessary findings of fact and based on the appellate record it appears that DCF exercised its discretion in a manner inconsistent with agency rules.

Section 409.902, Florida Statutes (2001), assigns the responsibility of determining Medicaid eligibility to DCF. Chapter 65A-1.205, Florida Administrative Code, outlines the procedure that DCF must follow in determining eligibility for Medicaid benefits. With regard to verifying an applicant’s eligibility, rule 65A-1.205(l)(d), Florida Administrative Code, provides in pertinent part:

If the eligibility specialist determines at the interview or at any time during the application process that additional information or verification is required, or that an assistance group member is required to register for employment services, the specialist must grant the assistance group 10 calendar days to furnish the required documentation or to comply with the requirements.... If the verification or information is difficult for the person to obtain, the eligibility specialist must provide assistance in obtaining the verification or information when requested or when it appears necessary. ...

(Emphasis added). DCF was required when it appeared necessary to provide assistance to Harun in obtaining the remaining documents so that his Medicaid eligibility could be verified. The hearing officer made no findings of fact as to whether DCF complied with this rule, despite the rule’s requirement for DCF to do this. Therefore, this case is remanded for the hearing officer to make findings of fact as to whether DCF complied with rule 65A-1.205(l)(d) requiring DCF not to just offer, but actually provide assistance to Harun “when it appears necessary.”

Moreover, rule 65A-1.205(l)(d) also expressly provides for an extension of time to submit original verification documents upon the applicant’s request if “there are extenuating circumstances justifying an additional extension ... such as sickness.” Here, Harun was granted one ten-day extension of time; however, he was not granted any additional extensions of time despite his apparent good faith effort to provide the documents in a timely fashion being ultimately prevented from meeting the deadline due to his own illness and his wife’s language barrier.

REVERSED AND REMANDED.

STONE and MAY, JJ., concur.


text:
    Nicole T. BERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2619.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Bennett H. Brummer, Public Defender and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112(Fla. 3d DCA 2003). Conflict certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 802 (Fla.2002).


text:
    Christopher LYONS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2047.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Carey Haughwout, Public Defender, and Nancy B. Jack, Assistant Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This appeal arises from a trial court finding Christopher Lyons guilty of robbery. As a result of his conviction, Lyons was sentenced to five years in prison followed by five years probation. Additionally, at sentencing the court orally pronounced a public defender fee of an unspecified amount and court costs of $255.00. Subsequently, in the written orders of supervision, the court imposed the following fees, $50.00 “victim costs on counts,” $200.00 “trust fund,” $5.00 “assessment,” $30.00 “drug testing fee,” and a $700.00 “P.D. fee.”

A notice of appeal was timely filed. During the pendency of the appeal, Lyons filed a motion to correct the sentencing error contesting the imposition of the various fees without oral pronouncement and without specifying the statutory authority on which the fees were based. In addition, the motion challenged the constitutionality of the Florida Criminal Punishment Code. In response, the trial court waived the $700.00 P.D. fee, and denied the motion on all other grounds. We vacate the portion of the order imposing the $30.00 drug testing fee, but affirm the order on all other grounds.

Lyons raises three arguments on appeal. Initially Lyons contends that the trial court erred by imposing drug testing costs without having had orally pronounced such a requirement at sentencing. We agree.

The Florida Supreme Court has unequivocally held, “the requirement that a defendant pay for drug testing is a special condition of probation which the trial court must pronounce orally at sentencing.” State v. Williams, 712 So.2d 762, 763 (Fla.1998). The condition that Lyons pay the drug testing fee was not pronounced orally at his sentencing and is hereby stricken.

Lyons next contends that the trial court erred by imposing costs and fees without specifying the statutory authority upon which they were based. We reject this argument. To support his position Lyons points to Sutton v. State, 635 So.2d 1032 (Fla. 2d DCA 1994). This court has previously discussed at length why we find Sutton unpersuasive. See I.B. v. State, 806 So.2d 610 (Fla. 4th DCA 2002). Moreover, although the court did not specify the statutory authority the costs and fees were based on, Lyons himself acknowledges the statutory authority for the various fees and costs imposed.

Last, Lyons alleges that the Florida Criminal Punishment Code is unconstitutional. We also reject this argument as the Florida Supreme Court has recently rejected it as well. See Hall v. State, 823 So.2d 757 (Fla.2002).

POLEN, C.J., SHAHOOD and GROSS, JJ., concur.


author: HAZOURI, J.

text:
    Keydrum BLUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1558.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Barbara A. Zappi, Assistant Attorney General, Fort Lauderdale, for appellee.
   HAZOURI, J.

Keydrum Blue (Blue) was charged by information with robbery with a firearm (Count I), burglary of a dwelling (Count II) and resisting arrest without violence (Count III) resulting from a bank robbery and the subsequent series of events occurring on May 5, 1999. In February 2000, based on a court ordered evaluation, the trial court found Blue to be incompetent to stand trial. In November 2000, based on information from the Department of Children and Families that Blue no longer met the criteria for continued commitment, the trial court set a date for a competency hearing. At that hearing, the trial court did not conduct a competency determination but instead acquiesced to Blue’s counsel’s request for a confidential evaluation of Blue. On January 22, 2001, the parties indicated they were ready for trial and the trial commenced on January 29, 2001. However, there was never a written order finding Blue to be competent to stand trial.

The jury found Blue guilty of grand theft, (a lesser included offense of robbery with a firearm), trespass, (a lesser included offense of burglary of a dwelling), and resisting arrest without violence. Blue was determined to be a habitual felony offender and sentenced to ten years in prison.

Blue asserts four points on appeal: l)the failure to adjudge him competent prior to trial violated due process; 2) the court erred in denying defense counsel’s motion to suppress because he was detained without a founded suspicion and later arrested without probable cause; 3) the trial court erred in denying his motion for judgment of acquittal on count III, obstructing a law enforcement officer without violence, as the officer was not in the lawful performance of a legal duty and, therefore, Blue was not lawfully detained and had a right to walk or run away and not cooperate with the officer’s questioning; and 4)the trial court erred in sentencing him as a habitual felony offender because the State’s evidence of habitual felony offender qualifications was insufficient without fingerprint evidence.

In his first point on appeal, Blue argues that after the trial court found that he was incompetent to stand trial, there had to be a subsequent finding that he had regained his competency in order to proceed. The State concedes that Blue is correct and agrees that Blue’s conviction and sentence should be reversed and the matter remanded for a new trial after a competency hearing is held and Blue is found to be competent to proceed to trial. We agree that Blue’s argument is a correct statement of law and accept the State’s concession. Therefore, we reverse Blue’s conviction and sentence and remand for a new trial after a competency hearing is held and once Blue is adjudged competent to proceed to trial. See Jackson v. State, 810 So.2d 545 (Fla. 4th DCA 2002). Although we reverse for a new trial on this basis, we also address points two and three.

Blue contends that the trial court erred in denying his motion to suppress. Appellate courts should accord a presumption of correctness to the trial court’s rulings on motions to suppress with regard to the trial court’s determination of historical facts, but should independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution. See Connor v. State, 803 So.2d 598, 608 (Fla.2001).

At the hearing on the motion to suppress, Detective Bader testified that when he first approached Blue on May 5, 1999, he only intended to talk to Blue and ask him some questions. He did not think that Blue was the suspect because Blue did not match the description given in the BOLO. Blue had come from the direction of where the robbery had occurred and the detective wanted to ask him if he had seen anything. The detective approached Blue and asked him if he could speak to him. Blue then put down the crate that he was carrying and walked over to the detective. He answered a few questions but gave conflicting answers over what he claimed to have seen. The detective sensed that something was not right and he noticed Blue beginning to get very nervous. Blue turned around and picked up the crate. The detective said, “Wait a minute, I just want to find out what you saw down there.” Blue started to walk away and again the detective said, “wait a minute.” At that point, Blue began running. The detective yelled for him to stop. The detective began to chase Blue and Blue dropped the crate as he was running away. The crate was later recovered and found to contain a T-shirt “mask” linking Blue to the bank robbery. In his motion to suppress, Blue requested the trial court suppress from use as evidence the crate and its contents.

As the basis for his motion, Blue argues that his initial stop was an illegal detention by Detective Bader without a founded suspicion and in violation of the Fourth Amendment. Blue argues that even if the initial questioning was a consensual encounter, the transaction transformed into a Fourth Amendment seizure during the course of the questioning. Therefore, Blue argues that the crate and its contents should be suppressed since he dropped the crate during an alleged illegal seizure.

The instant case is very similar to State v. Bartee, 623 So.2d 458 (Fla.1993). In Bartee, a police officer approached Bartee and asked him if he had seen a suspect who had fled from the officer. Id. at 459. Bartee gave an answer, but appeared very nervous and hesitant to talk to the officer. After a brief conversation, Bartee took off running. The officer chased Bartee and told him to stop. As Bartee was running away, he discarded a pill bottle. The officer retrieved the bottle which contained crack cocaine. The trial court found that because the officer lacked probable cause to chase Bartee or to order him to stop, the acts constituted a Fourth Amendment seizure. The trial court granted Bartee’s motion to suppress because it determined that Bartee’s act of throwing the pill bottle was a result of the officer’s unlawful conduct.

The Florida Supreme Court reversed and held that the chase and call for Bartee to stop did not constitute a seizure and therefore the cocaine found in the bottle should not have been suppressed. Id. The Court relied on California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), to support this conclusion. In applying Hodari, the Court noted that the crucial issue in Hodari was whether at the time the defendant dropped the cocaine, he was seized within the meaning of the Fourth Amendment. The Florida Supreme Court went on to state:

Although the Court assumed that the police pursuit was a ‘show of authority’ calling upon Hodari D. to halt, the Court held that Hodari D. had not been seized as contemplated by the fourth amendment at the time of the abandonment, since at this point in time, he had not been tackled or otherwise ‘submitted to the show of authority.’ Therefore, the recovery of the cocaine that had been abandoned while he was running was not the fruit of an unlawful seizure.

Bartee, 623 So.2d at 459.

Blue argues that the instant case is distinguishable because he did submit to Detective Bader’s request to come over and answer some questions. Also, Blue argues that Detective Bader positioned his car as an obstacle on the sidewalk in Blue’s path, thereby constituting a seizure. We disagree.

A seizure occurs when a person is physically subdued by police or submits to an officer’s show of authority. The determinative issue in the instant case is whether Blue abandoned the crate prior to the seizure/submission to authority or after the seizure. This court addressed this issue in State v. Woods, 680 So.2d 630 (Fla. 4th DCA 1996). In Woods, the police officer approached the defendant who proceeded to walk away. Id. at 631. The officer yelled for the defendant to stop, but the defendant did not stop. The officer began to chase the defendant who dropped two baggies of crack cocaine and a handgun. This court relied on Hodari and held: “[A]n unlawful seizure takes place only if the person either willingly obeys or is physically forced to obey the police request. As such, there is no unlawful seizure when the person ‘drops then stops’, even where the drop occurs after an order to stop.” Woods, 680 So.2d at 631.

In the instant case, Blue willingly walked over to Detective Bader when the detective first called to him. However, this does not mean that Blue submitted to his authority. A citizen may voluntarily respond to questioning or refuse to do so, but is still free to leave. At this point, Blue was free to leave. Even when Blue started to run away, despite the fact that Detective Badar called for him to stop, he still had not been seized under the law. Therefore, the recovery of the crate was not due to an illegal seizure, but rather Blue’s abandonment. The trial court did not err in denying the motion to suppress the crate and its contents.

The motion to suppress also requested the trial court to suppress from use as evidence currency found on Blue after his arrest. As the basis for this argument, Blue contends that at the time the officers arrested him, there was no probable cause for the arrest and, therefore, the money found on him during the arrest should be excluded.

At the hearing, Detective Bader testified that while Blue was running away, he saw him jump over three fences and enter three separate yards. At this point the detective was on the radio trying to get some help. The police officers that responded to the call set up a three or four block perimeter around the area. One of the officers who responded, Deputy Lord, was stopped by a woman in the area where Blue had been seen fleeing. The woman told him that she observed a black man jump over the fence and immediately thereafter she heard a window break. The officers surrounded the building (a residential duplex) and saw that one of the windows to the back bedroom was broken. At that point, the officers did not know if anyone was actually in the duplex. The officers entered the duplex and arrested Blue. During his arrest, they searched him and found a large amount of currency.

At the time Blue was arrested, the officers did not know the contents of the crate that Blue had previously dropped. The only things the officers knew was that Blue had run from Detective Bader through several yards, jumped at least three fences, and that a woman told an officer that she saw a black man run through her yard and then heard a window break.

Blue argues that at the time of his arrest, the officers had no reasonable belief that he had committed an armed robbery, burglary, trespass or obstructing an officer in the lawful performance of his legal duty.

Probable cause to arrest exists when the totality of the facts and circumstances within the officer’s knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it. See State v. Cortez, 705 So.2d 676, 678 (Fla. 3d DCA 1998). The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based. “An officer is permitted to take a realistic view of the facts in making a probable cause determination, ‘for probable cause is a matter of practicalities, not technicalities.’ ” Id. (quoting State v. Russell, 659 So.2d 465, 468 (Fla. 3d DCA 1995)).

The State contends that there was sufficient evidence based on the witness’ statements to constitute probable cause. In addition, the State argues that the officers did not know that the duplex was empty and that they had a reasonable belief that someone had entered the duplex to commit an offense. We agree.

In State v. Cote, 547 So.2d 993 (Fla. 4th DCA 1989), the police officer saw two defendants dressed in dark colored clothes and carrying a bag, emerge from behind a house. Id. at 994. They walked hurriedly and jumped over a fence bordering a nearby residence. The officer found them crouched behind shrubbery near the residence and told them they were under arrest. The defendants fled and the officer chased them. The officer finally found them hiding and placed them under arrest. At that point, the officers did not know that a burglary had occurred. Id. at 995. The defendants moved for suppression of the items found on them at the time of their arrest on the basis that the officer did not have probable cause to arrest them.

This court noted that although flight alone will not provide probable cause that a crime is being committed, it can provide additional support for the officer’s assessment that the defendants were involved in criminal activity. Id. n. 1. This court held that probable cause existed and stated, “The defendants’ actions speak for themselves in that regard and the reasonable inferences to be drawn from their actions all support the officer’s conclusion that there was probable cause to arrest for loitering and prowling, and trespass, as well as suspicion of burglary.” Id.

In the instant case, taking into consideration all the circumstances including Blue’s flight, his actions in jumping over numerous fences, the statements from the witness that she saw a black man run through her yard and then heard a window breaking, and the fact that the officers saw a broken window in the duplex gave the officers probable cause to believe that Blue had committed or was committing a crime. Therefore, the trial court did not err in denying the motion to suppress.

As to point three, Blue argues that the trial court erred in denying his motion for judgment of acquittal as the evidence was insufficient to establish the charge of obstructing an officer without violence because Blue was entitled to stop answering the detective’s questions and walk away. We agree.

A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the state that a jury might fairly and reasonably infer from the evidence. See R.T.L. v. State, 764 So.2d 871, 872 (Fla. 4th DCA 2000). We must review the record to determine whether there is sufficient evidence to support the jury’s verdict. Id. For a conviction for resisting an officer without violence, the State must show that: (1) the officer was engaged in the lawful execution of a legal duty; and (2) the action by the defendant constituted obstruction or resistance of the lawful duty. See Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001).

In Slydell, police officers, while patrolling for trespassers, saw the defendant and did not recognize him as being a resident of the neighborhood. Id. at 669. As the officers approached the defendant to investigate him for trespassing, the defendant began to walk the other way. The defendant appeared to be trying to hide something in his hand. When the officer asked him what was in his hand, the defendant ran away. Id. at 670. The officer grabbed the defendant and forced him to the ground and in the process recovered several pieces of crack cocaine. The defendant was convicted of resisting an officer without violence which this court reversed and remanded with instructions to discharge the defendant as to this charge.

In Slydell, when the officers first approached the defendant, their contact was not an investigative stop, it was a consensual encounter. For a consensual encounter, the officers did not need a founded suspicion of criminal activity. Id. at 673. They were authorized to approach him and ask him a few questions however, the defendant was also free to ignore the officers and walk away. We held that once the officers gave chase and subdued the defendant, the encounter became a stop or seizure. “Because the officers lacked objective reasons for believing that appellant was engaged in criminal activity, they lacked authority to stop and detain appellant. Thus, when appellant ran away from the officers, he was not unlawfully opposing or obstructing them in the lawful execution of a legal duty.” Id. at 674.

The facts in the instant case are very similar to those in Slydell. When Detective Bader first approached Blue, he did not have a reasonable suspicion that Blue had committed a crime. However since it was a consensual encounter, he did not need a reasonable suspicion for his initial contact. Since it was only a consensual encounter, Blue was also free to ignore the detective and walk away. Therefore, under our holding in Slydell, when Blue ran away he was not unlawfully opposing or obstructing Detective Bader in the lawful execution of a legal duty.

The State cites to Francis v. State, 736 So.2d 97 (Fla. 4th DCA 1999), for support. In Francis, the defendant was charged with resisting an officer without violence. The police officer had come to the defendant’s home in response to a 911 call. Id. at 98. When he got to the house, the defendant intervened and stepped in front of him, telling him that “everything’s okay” and that his services were not needed. The officer then found a boy that had been badly abused in another room. This court stated that it was undisputed that the officer was engaged in the lawful execution of a legal duty when he was investigating the 911 call. Id. at 99 n. 1. The defendant argued that her statement that everything was fine was per se insufficient to constitute obstruction. This court held that her statement in addition to her blocking the officer’s path satisfied the requirement of obstruction.

In the instant case, since Blue was free to walk away, his actions cannot constitute obstruction. Otherwise, if Blue could be convicted of obstructing without violence, then he was not really free to walk away at all. The only remaining issue is whether his false statements to Detective Bader could constitute obstruction. Blue’s conduct does not rise to the level of obstruction. For the above stated reason, the trial court erred in denying the motion for judgment of acquittal for resisting arrest without violence. Therefore, we direct the trial court to enter a judgment of acquittal as to Count III.

As to point four, since Blue’s conviction and sentence are being reversed, we need not address whether Blue was properly sentenced as a habitual felony offender.

Affirmed in part and reversed in part.

TAYLOR and MAY, JJ., concur.

      . Detective Bader had received a "be on the look out” for a bank robbery suspect in the area.

      . The Information states that the conduct constituting the offense was Blue's fleeing, it does not state that the conduct was the false information provided.


text:
    Silvino SUAREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-285.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Leonard v. State, 760 So.2d 114 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000); Robinson v. State, 373 So.2d 898, 902 (Fla.1979); Garrett v. State, 788 So.2d 328 (Fla. 4th DCA 2001).

STONE, WARNER and MAY, JJ., concur.


author: FARMER, J.

text:
    Adele ZAKIAN, Appellant, v. Charles ZAKIAN, Appellee.
    No. 4D02-1025.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Scott Kramer and Thomas J. Ali of Kramer, Ali, Fleck, Carothers, Hughes, Gelb & Bornstein, Jupiter, for appellant.

      Kellie J. Killebrew, Riviera Beach, for appellee.
   FARMER, J.

We affirm the trial court’s resolution of the underlying dispute as to health care expenses. The record supports the trial court’s finding that the former husband “has provided the most equivalent health insurance coverage available to the fonner wife and has paid all premiums.” We therefore write further only to address the issue of attorney’s fees.

In their 1995 divorce, the Zakians entered into a settlement agreement with the following provision:

“Should either party fail to abide by the terms of this Agreement, the defaulting party will indemnify the other for all reasonable expenses and costs including attorney’s fees incurred in the enforcement of this Agreement.”

This agreement was incorporated into the final judgment. The issue is whether the former wife is entitled to the full amount of the attorney’s fees she incurred in connection with this proceeding.

As we recently said in regard to a similar attorney’s fee agreement: “It is well settled that a marital settlement agreement is to be interpreted like any other contract and is construed as a matter of law.” Coe v. Abdo, 790 So.2d 1276, 1279 (Fla. 4th DCA 2001). The former wife argues that basically this provision is indistinguishable from an ordinary “prevailing party” attorney fee agreement and should be so construed. Alternatively, she argues that she should be entitled to all of her fees under section 61.16. See § 61.16, Fla. Stat. (2001). We disagree.

We do not read this particular provision to base entitlement to fees on whether the party prevailed, although the party would have to successfully enforce performance against the defaulting party. Here the parties’ agreement tied the contractual obligation to pay fees to whether one of them has “defaulted” on a duty or obligation arising under their settlement agreement. The record shows that the former husband withheld payment of certain health care expenses because he thought he was being “overbilled” for the amount he was actually obligated to pay under their agreement. The former wife brought proceedings in court to enforce the health care expense obligation. At some point while the proceeding was pending he delivered a check in full payment to his attorney, but the attorney did not pay the disputed expenses until the very day of the “trial” on the enforcement claim. In short, the former husband defaulted by not paying certain health care expenses, and the former wife was forced to prosecute this enforcement action through a trial on her claim.

Now, it is true that the former wife took the position in the enforcement proceeding that more was due than the amount the former husband said was overpaid. In other words, she attempted to have their settlement agreement interpreted so as to force her ex-spouse to pay more health care expenses than the court ultimately concluded the parties had agreed he should pay. It is also true that the attorney fee provision in the settlement agreement limits the obligation to “all reasonable ... attorney’s fees incurred in the enforcement” of the agreement. Hence, we agree with him that in no event should he be forced under their agreement to pay attorney’s fees relating to her unsuccessful attempt to have the health expense provision read more broadly. Nevertheless, she is entitled to “all reasonable attorney’s fees incurred in enforcing” the obligation to pay the expenses the former husband withheld. For the same reasons, we reject the former husband’s cross appeal that he should be relieved of paying any fees because the former wife is as able as he to pay her own fees. Even if the record supported his argument as to her ability to pay, we conclude that fees in this case could be awarded only under the agreement, not under section 61.16.

In awarding fees, the trial court relied on the general master’s finding that “the former wife incurred attorney’s fees for this action totaling $750 (3.0 hours at $250 per hour).” The trial court then added that “the former husband has a greater ability to pay attorney’s fees than does the former wife.” This last sentence rather strongly implies that the court made the award of fees under section 61.16 rather than under the parties’ settlement agreement. Whether the court would have awarded a different amount if it thought that fees were governed by the agreement rather than the statute is unknowable, as the parties have done nothing to address the matter.

In the end, we cannot say that the former wife has shown prejudicial error in the attorney’s fee award. While the record may support her argument that the fee award should have been based solely on the agreement, she has failed to show that this legal error as to the source of entitlement to fees resulted in a smaller award than would have resulted if the proper basis had been stated. In either instance, the former wife was still entitled" only to fees incurred for enforcing her legal entitlement to the former husband’s default as to certain health care expenses. Even if section 61.16 might in general allow a trial court to award fees for a failed effort to modify a health care expense obligation, the amount actually awarded suggests that in this instance the court limited fees to only those reasonably incurred to enforce the obligation found to be actually due. We cannot say that this outcome offends the provision under which fees are properly awarded.

AFFIRMED.

KLEIN, J., and LEVIN, STEVEN J., Associate Judge, concur.


author: STEVENSON, J.

text:
    STATE of Florida, Appellant, v. T.D., a child, Appellee.
    No. 4D01-1368.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.

      Charlie Crist, Attorney General, Tallahassee, Donna M. Hoffmann and Judy Hy-man, Assistant Attorneys General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellee.
   STEVENSON, J.

T.D., a minor, was charged with aggravated battery on a pregnant woman. When the victim failed to appear for trial, the judge nonetheless insisted that the State proceed. After the State failed to produce any witnesses, the trial judge pronounced T.D. “not guilty.” The State seeks to appeal the order of the trial judge, arguing that the order is in the nature of a dismissal — not a judgment of acquittal — and that the dismissal was too harsh a sanction. T.D., on the other hand, argues that the order is properly viewed as a judgment of acquittal from which the State cannot appeal. We agree with the State that the order is in the nature of a dismissal, but we affirm the trial court’s exercise of discretion in dismissing the case.

T.D.’s crime was to be tried by the trial judge. And, in the case of a bench trial, jeopardy attaches when the court begins to hear evidence. See, e.g., R.M. v. State, 603 So.2d 64, 65 (Fla. 3d DCA 1992). In Bernard v. State, 261 So.2d 133, 135 (Fla.1972), our supreme court held that a court begins to hear evidence when “the first witness is actually placed on the stand and begins to testify.” Here, no witness ever took the stand. Consequently, jeopardy would not have attached and the trial judge’s disposition of the charge cannot be viewed as a judgment of acquittal. But cf. D.L.B. v. Kirk, 551 So.2d 611, 612 (Fla. 5th DCA 1989)(holding that an order of dismissal based on the State’s failure to present evidence at an adjudicatory hearing is “similar” to a judgment of acquittal and, if not successfully appealed by the State, will operate as an estoppel against the refiling of the same charge).

Generally, the courts have held that “it is inappropriate to sanction the state for failure of a witness to appear by dismissing the case when other means to secure the witness’s participation, such as continuance, exist.” State v. White, 792 So.2d 606, 607 (Fla. 4th DCA 2001); State v. S.M.F., 546 So.2d 20, 21 (Fla. 3d DCA 1989). Here, the record suggests that not only had the victim previously failed to appear for deposition, but that it was the victim’s failure to appear at trial the first time around that resulted in the State’s nolle prosse of the charges and the refiling of the case presently before the court. This time, the State told the trial judge that the victim had been subpoenaed but had a problem with child care. The trial court noted that this was a juvenile case and that continued delay was “prejudicial” to the child:

Court: And I’m ready to call the first witness. Where’s the first witness?
State: The State’s not going to call a witness, Judge.
Court: All right. That’s it?
State: I’m not resting either. I’m not calling witnesses or going forward on the trial based upon the Defense’s motion [for speedy trial] and based upon the circumstances. If Your Honor wants to dismiss the case, that’s up to you.
Court: This is total nonsense. I want you to call your first witness. Just tell me — Who’s your first witness?
State: Judge, the State’s not going to call any witnesses.

Obviously frustrated by the State’s failure to call a witness to the stand, ask that the court compel the victim’s attendance, or forthrightly request a continuance, the trial court then entered its “directed verdict” or rather dismissal in this case. Here, we cannot conclude that the trial court abused its discretion in dismissing the charges. Cf. State v. White, 792 So.2d 606, 607 (Fla. 4th DCA 2001)(holding that dismissal was appropriate where the victim was absent from trial and the State gave the trial court no assurances that it would serve the victim and go forward with the case if it were continued).

AFFIRMED.

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


text:
    Cyrus B. SWEET, Barbara Sweet, Elizabeth D. Freeman, and Arthur Freeman, Appellants, v. FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    Nos. 4D00-3834, 4D00-3835.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Phillip J. Sheehe of Sheehe & Vendittel-li, P.A., Miami, for appellants.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P.A., Miami, for appel-lee.
   PER CURIAM.

Affirmed. See Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040 (Fla. 4th DCA 2003).

STONE, GROSS and HAZOURI, JJ., concur.