text:
    Frank H. MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-490.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 2003.
   DAVIS, Judge.

Frank H. Mills 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, Mills alleged that his habitual violent felony offender (HVFO) sentences are illegal based on this court’s opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), which held chapter 99-188, Laws of Florida, unconstitutional in violation of the single subject rule. The legislature attempted to cure the constitutional violation by retroactively reenacting the provisions found in chapter 99-188. However, this court held the retroactive reenactment to be invalid in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

In its response, the State concedes that Mills qualified as an HVFO under the amendments to section 775.084, Florida Statutes (Supp.1998), in chapter 99-188, but Mills did not qualify as an HVFO under the valid version of section 775.084 in effect at the time of the offenses. Compare ch. 99-188, § 3, at 1043, Laws of Fla., toith § 775.084(l)(b)(2)b, Fla. Stat. (Supp. 1998). Although the State disagrees with the holdings in Taylor and Green, the State concedes that Taylor and Green require that the HVFO designations be stricken from Mills’ sentences. We agree that this is the proper remedy. Therefore, we reverse the trial court’s order of denial and remand for correction of Mills’ sentences. On remand, if Mills does not qualify as an HVFO under the 1998 version of section 775.084, the trial court shall strike the HVFO designations and minimum mandatory terms from Mills’ sentences.

We certify conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, No. SC03-413, 854 So.2d 659 (Fla.2003), which held that chapter 99-188 does not violate the single subject rule. As we did in Green, we certify conflict with Carlson v. State, 27 Fla. L. Weekly D2162 (Fla. 5th DCA Oct.4, 2002); Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002); and Jones v. State, 27 Fla. L. Weekly D2377 (Fla. 5th DCA Nov.1, 2002), and we note possible conflict with Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002), and Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002).

Reversed and remanded.

WHATLEY and CANADY, JJ„ Concur.


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Robert P. BAILEY, Respondent.
    No. 2D03-1735.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2003.

      Enoch J. Whitney, General Counsel, and Rhonda F. Goodman, Assistant General Counsel, Miami, for Petitioner.
    Jacqulyn Mack of The Mack Law Firm, Englewood, for Respondent.
   VILLANTI, Judge.

The Department of Highway Safety and Motor Vehicles (the Department) petitions this court for a writ of certiorari to quash the circuit court’s order determining that the administrative hearing officer had insufficient evidence to deny Robert Bailey’s application for a hardship driving permit and ordering the Department to reinstate Bailey’s license. Because the circuit court exceeded its scope of review by ordering that Bailey’s license be reinstated, we grant the Department’s petition, quash the circuit court’s order, and remand with instructions.

Bailey’s license was permanently revoked after he acquired his fourth conviction, in 1991, for driving under the influence (DUI). In 2001, Bailey sought a hardship driving permit, which the Department denied in light of the 1998 amendments to chapter 322, Florida Statutes, which precluded a person having four or more DUI convictions from ever obtaining a hardship permit. However, the Department was unable to locate a certified copy of Bailey’s 1975 DUI conviction; therefore, it had certified records of only three DUI convictions and one computerized driving record. Nevertheless, the Department denied Bailey’s permit request, and Bailey thereafter petitioned the circuit court for a writ of certiorari. The circuit court granted the petition, determining that the hearing officer had insufficient evidence to sustain the permanent revocation of Bailey’s license. The circuit court also ordered the license reinstated.

When the circuit court entered its order, the supreme court had not yet decided Florida Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003). Therefore, the circuit court’s focus appropriately was on whether the Department’s computerized driving record, without a certified record of conviction, was sufficient evidence of a DUI conviction to deny Bailey’s hardship license. Because the Critchfield decision makes the circuit court’s analysis on this issue moot, we do not discuss whether the circuit court applied the correct law in determining the computerized driving record was not sufficient evidence of Bailey’s conviction. It is clear that, in light of Critchfield, even if the computerized driving record is sufficient evidence of Bailey’s DUI conviction, Bailey may still apply for a hardship permit. See Jackson v. Dep’t of Highway Safety & Motor Vehicles, 848 So.2d 1165, 1165 (Fla. 2d DCA 2003) (citing Henderson v. Antonacci, 62 So.2d 5 (Fla.1952), for the proposition that when an amended statute is declared unconstitutional, the statute stands as it was prior to the amendment).

However, the circuit court did exceed the scope of certiorari review when it ordered the Department to reinstate Bailey’s license. The circuit court’s review should have been limited to whether the hearing officer afforded Bailey procedural due process and observed the essential requirements of the law and whether the administrative findings were supported by competent, substantial evidence. See Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995); Vichich v. Dep’t of Highway Safety & Motor Vehicles, 799 So.2d 1069, 1073 (Fla. 2d DCA 2001). From the record before us, it is unclear whether the hearing officer made any factual findings other than that Bailey had four DUI convictions. On remand, the circuit court must determine, in light of the criteria set out in section 322.271(4), Florida Statutes (1997), whether the hearing officer’s findings were supported by competent, substantial evidence and whether, in light of those findings, the hearing officer abused his discretion in denying Bailey’s hardship permit.

Therefore, we grant the Department’s petition, quash the circuit court’s order, and remand for the circuit court to determine whether the hearing officer’s denial of Bailey’s permit amounted to an abuse of discretion. Alternatively, if the record does not contain the factual findings relevant to Bailey’s eligibility for a hardship permit under former section 322.271(4), the circuit court should order the hearing officer to enter an appropriate order or hold another hearing to make the necessary findings in light of this opinion.

Petition for writ of certiorari granted, order quashed, and case remanded for further proceedings.

DAVIS and CANADY, JJ., concur.

      . The Florida Supreme Court has since determined that this amendment is unconstitutional as a violation of the "single subject” rule of the Florida Constitution. Fla. Dep't of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003).

      .We review the circuit court’s order to determine whether it afforded the Department procedural due process and applied the correct law. See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003); Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000); State, Dep’t of Highway Safety & Motor Vehicles v. Porter, 791 So.2d 32 (Fla. 2d DCA 2001) (stating the appropriate standard for second-tier certiorari review by a district court).

      .Section 322.271(4)(a), Florida Statutes (1997), requires a petitioner for a hardship permit to demonstrate that he or she:
      1. Has not been arrested for a drug-related offense during the 5 years preceding the filing of the petition;
      2. Has not driven a motor vehicle without a license for at least 5 years prior to the hearing;
      3. Has been drug-free for at least 5 years prior to the hearing; and
      4. Has completed a DUI program licensed by the department.


author: COVINGTON, Judge.

text:
    Simon McLEAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5499.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2003.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   COVINGTON, Judge.

On appeal, Simon McLean contends that the trial court erred in improperly imposing a discretionary cost at his sentencing. We agree and remand for further proceedings.

McLean pleaded guilty to three charges, including aggravated assault on a law enforcement officer, fleeing and eluding, and reckless driving, specifically reserving his right to appeal. At sentencing, the trial court imposed a $150 discretionary court improvement trust fund cost pursuant to section 939.18, Florida Statutes (2001). Section 939.18 permits a court to impose an additional court cost if “it finds that the person has the ability to pay the additional assessment.” McLean timely filed a rule 3.800(b) motion to correct a sentencing error, preserving the issue for appeal. Carter v. State, 791 So.2d 525, 527 (Fla. 1st DCA 2001).

Here, the trial court did not consider McLean’s financial resources or orally announce the imposition of the discretionary cost assessed against McLean. In deciding whether to assess the discretionary cost, a court is to consider the financial resources of the defendant as well as other relevant factors. Huesca v. State, 841 So.2d 585, 586 (Fla. 2d DCA 2003); Edwards v. State, 814 So.2d 1197, 1198 (Fla. 2d DCA 2002). Trial courts also are obligated “to orally announce the imposition of discretionary costs.” Huesca, 841 So.2d at 586.

Thus, it was improper for the trial court to impose the $150 discretionary cost. Accordingly, we strike the imposition of the $150 discretionary cost and remand for further proceedings. On remand, the trial court may assess the discretionary cost if it properly considers McLean’s financial resources and orally announces the imposition of the cost. Id.

Remanded for further proceedings consistent with this opinion.

ALTENBERND, C.J., and WALLACE, J., Concur.


author: GRIFFIN, J.

text:
    Michael PERSAUD, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2159.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Paula C. Coffman, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

GRIFFIN, J.

After a jury trial, Michael Persaud was convicted of robbery with a firearm. At sentencing, the trial court departed upward from the sentencing guidelines and entered an order sentencing him to life in prison with a three-year mandatory minimum. He sought review of the trial court’s order summarily denying his Rule 3.850motion for post-conviction relief. He also sought review of the order refusing to transfer the ineffective assistance of appellate counsel claim contained in his Rule 3.850motion to this court, which is its proper forum. The trial court had denied the motion to transfer on the ground that the motion was untimely filed. We issued a per curiam affirmance.

Persaud seeks rehearing, claiming entitlement to a written opinion because he was “deprived of a merits determination” on the timeliness issue. Although we adhere to our view that this appeal is properly decided without an opinion, we grant the motion for rehearing to discuss the timeliness issue.

The trial court reasoned that the motion was untimely because it was filed on October 19, 2000, more than two years after issuance of this court’s mandate on September 10, 1998, which followed the issuance of our opinion in Persaud’s direct appeal. Issuance of the mandate is the usual date from which to measure the two-year time period. If this court writes an opinion, however, and the defendant seeks discretionary review in the Supreme Court of Florida, the time for filing post-conviction motions is tolled until proceedings in the supreme court are concluded. Rector v. State, 668 So.2d 1104 (Fla. 4th DCA 1996); Brown v. State, 617 So.2d 1105 (Fla. 1st DCA 1993). Here, the mandate issued on September 10, 1998; however, timely review of our opinion was sought in the supreme court. The Supreme Court of Florida denied review on October 20, 1999, and the motion for post-conviction relief was filed on October 19, 2000. As such, it was timely filed. The trial court was wrong to refuse to transfer it and we have treated it as having been transferred to this court. The motion for ineffective assistance of appellate counsel is, however, completely devoid of any merit. Nor is there any merit to the illegal sentence claim based on Heggs v. State, 759 So.2d 620 (Fla.2000). Accordingly, we affirm.

AFFIRMED.

PETERSON and THOMPSON, JJ„ concur.


text:
    James E. JONES, Appellant, v. FLORIDA ex rel. CITY OF WINTER HAVEN, a Florida municipal corporation, Appellee.
    No. 2D02-3711.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2003.
    Christopher Desrochers, Winter Haven, for Appellant.
    Frederick J. Murphy, Jr., of Boswell & Dunlap LLP, Bartow, for Appellee.
   VILLANTI, Judge.

James E. Jones challenges the final summary judgment entered in favor of the City of Winter Haven in this foreclosure action based on a code enforcement lien. Because we find that genuine issues of material fact preclude entry of final summary judgment, we reverse and remand for further proceedings.

In June 2000, the City of Winter Haven Code Enforcement Board (“the Board”) held a hearing to determine whether property owned by Banker’s Trust Company of California, N.A. (“Banker’s Trust”), was in violation of various sections of the Winter Haven Code of Ordinances. By order dated June 28, 2000, the Board found the property in violation and gave Banker’s Trust until July 28, 2000, to bring the property into compliance with the code. The order finding violation provided that if the property was not brought into compliance by July 28, 2000, Banker’s Trust would be liable for a fine of $200 per day “for each day the violation continues to exist.”

On September 19, 2000, Jones purchased the property from Banker’s Trust. It appears that as part of the purchase agreement, Jones was obligated to indemnify Banker’s Trust for any fines imposed against the property as a consequence of the June 28, 2000, Order Finding Violation.

Shortly thereafter, Jones contacted the City to discuss his intentions concerning the property. According to Jones, as a result of these discussions, the City agreed that it would issue the necessary permits if Jones hired a licensed contractor to make the needed repairs. In addition, the City agreed that once the permits were issued, the code violation fines would stop accruing and the City would seek a lien for only the amount due as of the date the permits were issued.

At approximately that same time, Jones’s agent, Gordon Miller, approached the Board on behalf of Jones to request mitigation of the fines accruing on the property. According to an affidavit signed by Miller, he was assured by the Board that when the property was brought into compliance, Jones could petition for a reduction of the fines. Miller’s affidavit states that “[t]he clear implication was made that, if the building was brought into compliance, the fines would be reduced to costs and the lien discharged upon payment of the costs.” In reliance on the representations by the City and the Board, Jones obtained at least some of the necessary permits and spent over $40,000 improving the property.

Subsequently, on January 23, 2001, the Board entered an Order Imposing Fine in the amount of $25,800, which represented 129 days of continued violation. This Order was entered after a code enforcement officer notified the Board that the property continued in violation. However, no hearing was held on the issue of whether the violations, in fact, continued, and the Board provided no notice of its intent to enter the Order Imposing Fine to either Banker’s Trust or Jones. Once the City recorded a certified copy of the Order Imposing Fine, it became a lien against the property by operation of law. See § 162.09(3), Fla. Stat. (2000). Despite the City’s and the Board’s knowledge of Jones’s ownership of the property, there is no indication that a copy of the Order Imposing Fine was provided to him prior to its being recorded.

On May 3, 2001, the Board entered a Supplemental Order Imposing Fine against Jones’s property. The Supplemental Order made a factual finding that the code violations had continued and that an additional fine of $22,400 was due for 112 additional days of violation. As with the Order Imposing Fine, the Supplemental Order was entered based solely on the affidavit of a code enforcement officer. There is no indication that any hearing was held, that the City or the Board provided any notice to either Banker’s Trust or Jones before entering the Supplemental Order, or that the Supplemental Order was provided to Jones. Also as with the Order Imposing Fine, the Supplemental Order became a lien against the property once it was recorded in the public records.

As best we can tell from the limited record before us, at some point after the Order Imposing Fine was recorded, the City brought an action against Banker’s Trust seeking to enforce that Order. Banker’s Trust brought Jones into the action as a third-party defendant based on the indemnity agreement arising out of Jones’s purchase of the property. Despite knowing that Jones was the current record owner of the property, the City took no steps to make Jones a codefendant in the action. On July 17, 2001, the trial court granted final summary judgment in favor of the City in the action against Banker’s Trust, specifically finding that the Order Imposing Fine was enforceable against Banker’s Trust and finding that the total fine as of May 2, 2001, was $55,600.

On August 30, 2001, the City filed this current action against Jones to foreclose on the code enforcement liens. In his answer to the foreclosure complaint, Jones raised two affirmative defenses. First, Jones alleged that the City had repealed some of the code provisions that were allegedly violated and that therefore he could not have had a “continuing violation” after the date of repeal. Second, Jones alleged, inter alia, that the City had agreed to stop imposing the fine when the permits were issued, that the City was estopped from collecting any fines after that date, and “that the City would not foreclose upon the liens at issue if he brought the property into compliance.” In addition to the affirmative defenses, Jones filed a “counterpetition” asserting essentially the same facts and seeking to quiet title to the property in light of the recorded liens. In response, the City filed a motion to dismiss Jones’s counterpetition. The City neither replied to Jones’s affirmative defenses nor moved to strike them.

In May 2002, the City filed a motion for final summary judgment in the foreclosure action. Attached to the motion was a summary of the “facts admitted in defendant’s answer” and an affidavit from Tanya Willis, one of the City’s Code Enforcement Officers, dated May 6, 2002. According to Willis’s affidavit, the City had incurred $576 in costs in pursuing the foreclosure. Her affidavit also asserted that the total fine due was $86,200, representing the fines imposed by the Order Imposing Fine and the Supplemental Order, as well as fines for an additional 190 days from March 27, 2001, until October 2, 2001. No documents were attached to the affidavit.

Jones filed a response to the motion for summary judgment, arguing that the City had not refuted the facts alleged in his affirmative defenses and therefore was not entitled to summary judgment as a matter of law. He attached the affidavit of Gordon Miller, as well as a copy of the Code Enforcement Department’s “Inspection Log,” which provides some factual support for Miller’s affidavit concerning the City’s agreement to stop the fines.

At the hearing on the City’s motion, the City asserted that Jones could not challenge the liens because he did not appeal from either the Order Imposing Fine or the Supplemental Order. Jones asserted that the two orders were entered in violation of his due process rights and that he should not be prevented from challenging the propriety of the fines in the foreclosure action. He also argued that fact questions concerning his affirmative defenses precluded entry of summary judgment. The trial court subsequently entered final summary judgment of foreclosure in favor of the City, finding the total lien amount due and owing to be $86,776, entering judgment against Jones for that amount, and setting a foreclosure sale date. The foreclosure sale was stayed pending this appeal.

In this appeal, Jones contends that entry of the final summary judgment was improper because genuine issues of material fact exist concerning the issues alleged in his affirmative defenses. We agree. In order to be entitled to summary judgment as a matter of law, the party seeking summary judgment must not only establish that no genuine issues of material fact exist as to the party’s claims but must also either factually refute the affirmative defenses or establish that they are legally insufficient. Manassas Invs., Inc. v. O’Hanrahan, 817 So.2d 1080, 1080 (Fla. 2d DCA 2002); Knight Energy Sews., Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995). Moreover, in the context of a foreclosure action, summary judgment is generally inappropriate if the defendant raises the issue of estoppel and factual disputes exist concerning the sufficiency of the defense. Parker v. Dinsmore Co., 443 So.2d 356 (Fla. 1st DCA 1983). “Summary judgment is particularly unsuitable in those cases where ‘the facts and circumstances indicate a possibility of an estop-pel or a waiver.’ ” Id. at 358 (quoting 22 Fla. Jur.2d Estoppel and Waiver § 9 (1980)).

In this case, Jones raised as an affirmative defense the issue of whether the City was estopped from bringing the foreclosure action. However, the City took absolutely no steps to address the factual assertions made by Jones and Miller or to establish that the estoppel defense was legally insufficient. Because the City did not conclusively refute Jones’s estoppel defense, final summary judgment in favor of the City was improper.

The City argues that Jones’s defenses were barred as a matter of law by the doctrine of res judicata. The City contends that Jones had the opportunity to raise these defenses in the City’s separate action against Banker’s Trust and that his failure to do so waives those defenses. We disagree. In order for res judicata to apply, four conditions must exist: (1) identity of the thing sued for, (2) identity of the cause of action, (3) identity of the parties to the action, and (4) identity of the quality or capacity of the persons for or against whom the claim is made. Donahue v. Davis, 68 So.2d 163, 169 (Fla.1953); Holt v. Brown’s Repair Serv., Inc., 780 So.2d 180, 181-82 (Fla. 2d DCA 2001); Essenson v. Polo Club Assocs., 688 So.2d 981, 983 (Fla. 2d DCA 1997); Gold v. Bankier, 840 So.2d 395, 397 (Fla. 4th DCA 2003).

Here, neither the thing sued for nor the cause of action was the same in the City’s case against Banker’s Trust as in this case against Jones. The City’s case against Banker’s Trust sought the legal remedy of money damages for alleged code violations. The City’s case against Jones seeks the equitable remedy of foreclosure based on liens against Jones’s property. Jones’s equitable defenses to a foreclosure action are not relevant in an action seeking solely a money judgment for damages. Because foreclosure of the lien was not at issue in the City’s action against Banker’s Trust, Jones did not waive his equitable defenses to this foreclosure action by failing to participate in the action for money damages.

Here, Jones has raised an affirmative defense that, if proven at trial, would defeat the City’s foreclosure action. Because genuine issues of material fact exist concerning this defense, final summary judgment was improper. Accordingly, we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

FULMER and DAVIS, JJ., Concur.

      . We note that the total fine imposed by the January 23, 2001, Order Imposing Fine and the May 2, 2001, Supplemental Order is only $48,200. No explanation is provided for this $7400 difference even though both the orders and the final summary judgment purportedly account for the accrued fines as of May 2, 2001.


author: PER CURIAM.

text:
    Roger C. EVERETT, Appellant, v. Lori Rene EVERETT, Appellee.
    No. 2D02-1381.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2003.
    Terence S. Moore, Tampa, for Appellant.
    John P. Flanagan, Jr., Brandon, for Ap-pellee.
   PER CURIAM.

Affirmed.

FULMER, J., and THREADGILL, EDWARD F., Senior Judge, concur.

VILLANTI, J., dissents.


text:
    Paul PRIDGEON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2528.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.
    George W. Blow, III, Live Oak, for petitioner.
    Charlie Crist, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Paul Pridgeon petitions this court for a belated appeal of denial of his motion for postconviction relief. The motion raised five claims and an order issued on July 30, 2001, which denied four of the claims and deferred the fifth issue to another judge. A motion for rehearing was denied on October 29, 2001. Neither order advised petitioner of his right to appeal or the time for doing so as required by Florida Rule of Criminal Procedure 3.850(g).

This court was concerned that the issue of a belated appeal was premature because no appealable order had yet been entered by the trial court, as the fifth issue was not resolved by the order of July 30, 2001. Upon further consideration, however, it has been determined that the order of October 29, 2001, completely disposed of all issues presented in the motion for post-conviction relief and that it was a final order which concluded the proceedings in the lower tribunal. The issue of entitlement to a belated appeal is therefore properly before this court at this time.

The petition is granted and Paul Prid-geon is hereby afforded a belated appeal from denial of postconviction relief in case number 97-08-CF in the Circuit Court for Lafayette County. See State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50 (Fla.1975). Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, and shall be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

ALLEN, DAVIS and BENTON, JJ., concur.


author: SALCINES, Judge.

text:
    Karl I. NELSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3692.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2003.
    Rehearing Denied Dec. 17, 2003.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Karl I. Nelson appeals the departure sentence imposed by the trial court upon his resentencing under the dictates of Heggs v. State, 759 So.2d 620 (Fla.2000). Nelson also appeals the trial court’s denial of two motions to correct sentencing error filed pursuant to Florida Rule of Criminal Procedure 3.800(b). The trial court’s orders denying the motions to correct sentencing error are affirmed without further discussion. However, because the reason given by the trial court for the imposition of the upward departure sentence was not supported by the record, Nelson’s sentences are reversed.

Nelson was convicted of two counts of manslaughter while under the influence of alcohol, a chemical substance, or a controlled substance (DUI manslaughter); two counts of driving under the influence of alcohol, a chemical substance, or a controlled substance causing serious bodily injury (DUI causing serious bodily injury); and driving while license suspended or revoked. The offenses occurred in December 1995. He was sentenced to two terms of fifteen years’ imprisonment for the DUI manslaughter convictions and to two terms of five, years’ imprisonment for the DUI causing serious bodily injury convictions. The sentences were made to run consecutively for a total of forty years’ imprisonment. This original sentence was not a departure sentence.

In August 2000, Nelson filed a motion to correct illegal sentence based on Heggs. The State conceded that Nelson was entitled to be resentenced under the 1994 guidelines. At the resentencing hearing, the trial court determined that a departure sentence should be imposed and again sentenced Nelson to consecutive sentences for a total of forty years’ imprisonment. The trial court’s written reason for departure was that Nelson “is not amenable to rehabilitation or supervision, as evidenced by an escalating pattern of criminal conduct as described in s. 921.001(8).”

A Heggs resentencing entitled Nelson to a de novo sentencing hearing. See Trotter v. State, 825 So.2d 362, 367-68 (Fla.2002). Upon resentencing, the trial court had discretion to impose an upward departure sentence that did not exceed the original sentence. See Bull v. State, 782 So.2d 921, 922 (Fla. 2d DCA 2001). However, any departure must have been supported by written reasons existing at the time of the original sentencing. See id.

In this appeal, Nelson argues the reason given for his departure sentence was inappropriate because his prior record did not constitute an escalating pattern of criminal conduct. Such a pattern would be demonstrated by (1) a progression from nonviolent to violent crimes, (2) a progression of increasingly violent crimes, or (3) a pattern of increasingly serious criminal activity. See Ewell v. State, 852 So.2d 436, 437 (Fla. 5th DCA 2003).

The State forthrightly concedes that the evidence presented to the trial court did not support the trial court’s reason for imposing the departure sentence. We agree. The trial court abused'its discretion, and Nelson’s sentences must be reversed.

We note that at the resentencing hearing there was confusion as to whether Nelson’s prior record involved a conviction for sale of cocaine or a conviction for “solicitation to purchase cocaine.” The State had a “printout” of Nelson’s prior record but did not have official documentation to confirm that the prior conviction in question was for sale of cocaine. On remand, at the resentencing hearing, the State shall have all documentation necessary to evidence Nelson’s prior record.

Nelson’s sentences are reversed. This case is remanded for the imposition of sentences which are within the appropriate guidelines range in accordance with the dictates of this opinion.

Affirmed in part, reversed in part, and remanded with directions.

KELLY and WALLACE, JJ., concur.

      . The information indicates that the driving while license suspended or revoked charge was a first-degree misdemeanor. § 322.34(l)(b), (2)(a), Fla. Stat. (1995). The record before this court does not indicate the term of the sentence originally imposed for that offense. Upon resentencing, the trial court imposed a sentence of time served.


author: ALTENBERND, Chief Judge.

text:
    Melissa J. SMILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5228.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.

      John S. Lynch, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Melissa Smiley appeals a judgment for trafficking in methamphetamine and a sentence of a minimum mandatory term of seven years’ imprisonment. We affirm the conviction without further comment. We reverse the sentence and remand for re-sentencing.

Ms. Smiley was sentenced to a minimum mandatory term of seven years’ imprisonment for trafficking in methamphetamine pursuant to section 893.135(l)(f)l b, Florida Statutes (1999). While this appeal was pending, Ms. Smiley filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that her sentence was improper based on this court’s opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

Taylor held that chapter 99-188, Laws of Florida, which amended section 893.135(l)(f)l b to require the minimum mandatory prison term, is unconstitutional because it violated the single-subject rule of the Florida Constitution. Id. In 2002, the Florida Legislature separately reenacted the provisions originally contained in chapter 99-188 as chapters 02-208 through 02-212, Laws of Florida. See Green v. State, 839 So.2d 748, 750 (Fla. 2d DCA 2003). However, in Green, this court held that the reenacted sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto clauses of the United States and Florida Constitutions.

Challenges to the constitutionality of chapter 99-188 may be raised when the offense occurred within the “window period” between July 1, 1999, the date chapter 99-188 became effective, and April 29, 2002, the effective date of chapters 02-208 through 02-212. Id. Because Ms. Smiley committed her offense on November 19 to 20, 1999, within the Taylor window, her sentence should not have included the seven-year minimum mandatory term.

Ms. Smiley raised this issue while her direct appeal was pending by filing a motion to correct sentence pursuant to rule 3.800(b)(2). The circuit court denied Ms. Smiley’s motion, citing Witt v. State, 387 So.2d 922 (Fla.1980) (establishing an analysis to apply in determining when changes in decisional law should be retroactively applied to provide postconviction relief). The circuit court reasoned that Ms. Smiley’s sentence was “final” on October 25, 2001, when it was entered. The circuit court thus treated the motion as one filed pursuant to rule 3.800(a), which governs postconviction motions to correct sentences.

However, Ms. Smiley’s sentence was not final on October 25, 2001, or on January 23, 2002, when this court’s opinion in Taylor was issued, because Ms. Smiley had a pending direct appeal challenging the sentence. Her motion to correct the sentence was not a postconviction motion, but a trial court motion filed during the pendency of her direct appeal to preserve the sentencing issue for review in the direct appeal. Therefore, this court’s decisions in Taylor and Green apply to Ms. Smiley’s sentence.

We reverse the sentence and remand for resentencing under the laws in effect on the dates of Ms. Smiley’s offense. See Reeves v. State, 845 So.2d 962 (Fla. 2d DCA 2003). As we did in Green, we certify conflict with Carlson v. State, 27 Fla. L. Weekly D2162, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), and Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002), and we note possible conflict with Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002), and Green v. State, 832 So.2d 199 (Fla. 4th DCA 2002). We also certify conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, 854 So.2d 659 (Fla.2003) (table decision), which held that chapter 99-188 does not violate the single-subject rule.

Reversed and remanded.

SILBERMAN and WALLACE, JJ„ Concur.

      . Although Witt has no application in this direct appeal, we do not decide whether the
        Witt analysis is appropriate in postconviction cases raising the unconstitutionality of chapter 99-188 or the retroactive application of chapters 02-208 to 02-212. That issue is currently pending before this court in a series of other cases.


text:
    Anthony SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3556.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In this Anders appeal, counsel for Anthony Smith contends that remand is required to correct several sentencing errors related to Smith’s guilty plea to three counts of robbery in circuit court case number CRC01-03019CFANO. Of the three points Smith raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), we agree with only one: the written sentencing order should be corrected to conform to the trial court’s oral pronouncement. Otherwise, the convictions and sentences are affirmed.

At a sentencing hearing before Judge Luce, Smith pleaded guilty to three counts of robbery in case number CRC01-03019CFANO, one count of robbery in case number CRC01-06072CFANO, and one count of robbery in case number CRC01-06073CFANO. The information in CRC01-03019CFANO had alleged a total of eight counts arising from criminal acts that included robbery at gunpoint. Prior to the sentencing hearing before Judge Luce, Smith was tried and convicted on counts one and eight, for which he received thirty-year sentences to be served concurrently. Also prior to the sentencing hearing, Smith was separately tried and convicted on count five, for which he received a life sentence to be served concurrently with the sentence for count one. Count seven is not at issue in this appeal.

At the sentencing hearing, count six in CRC01-03019CFANO was disposed of when Smith pleaded guilty to petit theft and was sentenced to time served. Five counts of robbery remained: counts two, three, and four in CRC01-03019CFANO; the single count in CRC01-06072CFANO; and the single count in CRC01-06073CFA-NO. Judge Luce proposed to sentence Smith to ten years for each count of robbery to be served consecutively for a total of fifty years. This fifty-year sentence, in turn, would run concurrently with the sentences imposed after Smith’s two previous trials. Smith agreed to this sentence and entered his plea.

The written sentencing order correctly reflects the imposition of a ten-year sentence for each of counts two, three, and four for robbery, and it correctly reflects that the sentence imposed for count four shall run consecutively to the sentence imposed for count three and the sentence imposed for count three shall run consecutively to the sentence imposed for count two. However, it states that the sentence imposed for count two “shall run consecutive with the sentence set forth in count 1.” Judge Luce intended the five consecutive sentences for the five robbery counts before him to run concurrently with the sentences imposed after Smith’s previous trials, including the thirty-year sentence imposed for count one. Therefore, consistent with the trial court’s oral pronouncement, the written sentencing order should be corrected to reflect that the sentence imposed for count two shall run concurrently with the sentence imposed for count one. See Tatum v. State, 805 So.2d 949, 949 (Fla. 2d DCA 2001). Smith need not be present for this correction of sentence. See Windisch v. State, 709 So.2d 606, 607 (Fla. 2d DCA 1998).

Convictions affirmed; remanded to correct written sentencing order.

FULMER and WALLACE, JJ„ and DANAHY, PAUL W., Senior Judge, concur.

      . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Appellate Court Response to Anders Briefs, 581 So.2d 149 (Fla. 1991).

      . It appears from the record that the trial court did not rule on the motion within sixty days. Accordingly, we treat the motion as denied. See O’Neill v. State, 841 So.2d 629, 629 (Fla. 2d DCA 2003); Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001).


text:
    Anthony SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3560.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

In this Anders appeal, counsel for Anthony Smith contends that remand is required to correct several sentencing errors related to Smith’s guilty plea to one count of robbery in case number CRC01-06073CFANO. Of the three points Smith raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), we agree with only one — the written sentencing order should be corrected to conform to the trial court’s oral pronouncement. Otherwise, the conviction and sentence are affirmed.

At a sentencing hearing before Judge Luce, Smith pleaded guilty to one count of robbery in case number CRC01-06073CFANO, one count of robbery in case number CRC01-06072CFANO, and three counts of robbery in case number CRC01-03019CFANO. The information in CRC01-03019CFANO had alleged a total of eight counts arising from criminal acts that included robbery at gunpoint. Prior to the sentencing hearing before Judge Luce, Smith was tried and convicted on counts one and eight in CRC01-03019CFANO, for which he received thirty-year sentences to be served concurrently. Also prior to the sentencing hearing, Smith was separately tried and convicted on count five, for which he received a life sentence to be served concurrently with the sentence for count one. Count seven is not at issue in this appeal.

At the sentencing hearing, count six in CRC01-03019CFANO was disposed of when Smith pleaded guilty to petit theft and was sentenced to time served. Five counts of robbery remained: counts two, three, and four in CRC01-03019CFANO; the single count in CRC01-06072CFANO; and the single count in CRC01-06073CFA-NO. Judge Luce proposed to sentence Smith to ten years for each count of robbery, each term to be served consecutively for a total of fifty years. This fifty-year sentence, in turn, would run concurrently with the sentences imposed after Smith’s two previous trials. Smith agreed to this sentence and entered his plea.

The written sentencing order correctly reflects imposition of the ten-year sentence for robbery. Further, this sentencing order correctly states that the sentence shall run consecutively to the sentence imposed in CRC01-06072CFANO. However, it states that the sentence “shall run consecutive with the following ... sentenee[]: CRC01-03019CFANO.” It does not distinguish between the sentences in CRC01-03019CFANO that are to be served concurrently and those that are to be served consecutively. Therefore, consistent with the trial court’s oral pronouncement, the written sentencing order must be corrected to reflect that the sentence imposed shall run consecutively to the sentences imposed for counts two, three, and four in CRC01-03019CFANO and concurrently with the sentences imposed for counts one, five, and eight in CRC01-03019CFANO. See Tatum v. State, 805 So.2d 949, 949 (Fla. 2d DCA 2001). Smith need not be present for this correction of sentence. See Windisch v. State, 709 So.2d 606, 607 (Fla. 2d DCA 1998).

Conviction affirmed; remanded to correct written sentencing order.

FULMER and WALLACE, JJ., and DANAHY, PAUL W., Senior Judge, Concur.

      . See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Appellate Court Response to Anders Briefs, 581 So.2d 149 (Fla.1991).

      . It appears from the record that the trial court did not rule on the motion within sixty days. Accordingly, we treat the motion as denied. See O'Neill v. State, 841 So.2d 629, 629 (Fla. 2d DCA 2003); Jackson v. State, 793 So.2d 117, 118 (Fla. 2d DCA 2001).


text:
    Robert EY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2811.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.
   PER CURIAM.

Affirmed. See Alexander v. State, 830 So.2d 899 (Fla. 2d DCA 2002); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); McGee v. State, 684 So.2d 241 (Fla. 2d DCA 1996). As this court did in Alexander, 830 So.2d at 899-90, we certify the same question of great public importance, to wit:

WHETHER ALLEGATIONS OF AFFIRMATIVE MISADVICE BY TRIAL COUNSEL ON THE SENTENCE ENHANCING CONSEQUENCES OF A DEFENDANT’S PLEA FOR FUTURE CRIMINAL BEHAVIOR IN AN OTHERWISE FACIALLY SUFFICIENT MOTION ARE COGNIZABLE AS AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.

Affirmed; question certified.

FULMER, KELLY, and WALLACE, JJ., Concur.


text:
    Edward V. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3981.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 25, 2003, the Court has determined that the notice of appeal was not timely filed. Thus, the Court lacks jurisdiction to review the order on appeal. Accordingly, the appeal is hereby dismissed.

DISMISSED.

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


author: NORTHCUTT, Judge.

text:
    Anna K. OSLER, Appellant/Cross-Appellee, v. Ruth COLLINS, Appellee/Cross-Appellant.
    No. 2D02-934.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.

      Curtright C. Truitt, Kamila A. Losey, and Keith Kyle of Curtright C. Truitt, P.A., Fort Myers, for Appellant/Cross-Ap-pellee.
    Bruce L. Schemer of Associates & Bruce L. Schemer, Fort Myers, and Thomas M. Pflaum, Micanopy, for Appellee/Cross-Ap-pellant.
   NORTHCUTT, Judge.

This case began with an automobile accident in which Ruth Collins was injured. Collins was a passenger in a car owned and driven by Anna Osier. Collins sued Osier and received a jury verdict for her medical expenses and pain and suffering. Osier has voluntarily dismissed her appeal. Therefore, only Collins’s cross-appeal remains pending. Collins claims that the trial court erred in setting off from her recovery amounts that Osier’s insurer, Hastings Insurance Company, previously paid Collins under the policy’s personal injury protection coverage. We agree that the trial court erred and reverse.

Osier and Collins both live part-time in Florida. Osier’s main residence is in Michigan, and her insurance policy was issued in that state and complies with Michigan law. The policy has no maximum dollar limitation for medical expenses under the PIP coverage, and the insurer must pay all reasonable and necessary medical expenses incurred. At the time of the accident, Collins did not own a vehicle and had no automobile coverage of her own. As a passenger in Osier’s car, she received first-party PIP benefits from Osier’s insurer, Hastings.

The jurors awarded Collins $188,000 for past medical expenses, $12,000 for future medical expenses, $70,000 for past pain and suffering, and $70,000 for future pain and suffering, for a total verdict of $840,000. They also found that she was ten percent comparatively negligent. The trial court reduced the verdict by the percentage of Collins’s comparative negligence. It then set off $169,574.16 for medical bills Hastings had paid pursuant to the PIP policy and entered a judgment against Osier for $136,425.84, plus taxable costs.

Collins argues that because the Hastings policy was issued in Michigan, that state’s law should control the manner in which Hastings may recover the benefits it paid her. The policy was issued in Michigan and incorporates Michigan law, so we construe the terms of the insurance contract under the law of that state. See Sturiano v. Brooks, 523 So.2d 1126, 1128-29 (Fla.1988). But this case involves an automobile accident that occurred in Florida. The trial took place in a Florida court and Florida law governed Collins’s negligence claim against Osier. Hastings’s remedy, recovery against Collins’s judgment for medical payments, is controlled by the law of the forum, Florida. See Wingold v. Horowitz, 292 So.2d 585, 586 (Fla.1974) (noting the well established rule in Florida that “remedies and procedure are governed exclusively by the lex fori”); Brown v. Case, 80 Fla. 703, 86 So. 684, 685 (1920); see also Restatement (Second) of Conflicts of Law §§ 122, 585 (1971).

In order to determine which Florida statute controls Hastings’s recovery, we must examine the terms of Osier’s automobile policy. The general provisions state that Hastings has a right of reimbursement if it makes “a payment under [the] policy and the person to or for whom payment is made recovers damages from another.... ” In the section addressing PIP coverage, that right of reimbursement is “subject to any applicable limitations in the Michigan Insurance Code.” Section 500.3116(2), Michigan Compiled Laws (1956), states:

A ... reimbursement for personal protection insurance benefits paid or payable under this chapter shall be made only if recovery is realized upon a tort claim arising from an accident occurring outside this state.... If personal protection insurance benefits have already been received, the claimant shall repay to the insurers out of the recovery a sum equal to the benefits received, but not more than the recovery exclusive of reasonable attorneys’ fees and other reasonable expenses incurred in effecting the recovery. The insurer shall have a lien on the recovery to this extent.

Section 500.3116 of the Michigan statutes is similar to older versions of Florida’s personal injury protection statute. See § 627.736(3), Fla. Stat. (1971) (providing a PIP insurer rights of reimbursement and indemnification). The present Florida PIP statute states that “in all cases in which a jury is required to fix damages, the court shall instruct the jury that the plaintiff shall not recover such special damages for personal injury benefits paid or payable.” § 627.736(3), Fla. Stat. (2000). The jury was not so instructed in the trial below because the Florida PIP statute does not apply in this case. Hastings’s policy did not insure a vehicle registered in Florida, § 627.723, .736(1). Moreover, by incorporating Michigan law into its policy, Hastings has the right to a lien on a claimant’s recovery from a tortfeasor. Cf § 627.736(3) (“No insurer shall have a lien on any recovery in tort by judgment, settlement, or otherwise for personal injury protection benefits.... ”).

Although the Florida PIP statute does not apply, Hastings is a collateral source provider as defined in section 768.76(2)(a), Florida Statutes (2000). See also Olson v. N. Cole Constr. Inc., 681 So.2d 799, 800 (Fla. 2d DCA 1996). Because the policy contains a right of reimbursement, section 768.76(4) controls. Under that subsection, a provider’s right of reimbursement

shall be limited to the actual amount of collateral sources recovered by the claimant from a tortfeasor, minus its pro rata share of .costs and attorney’s fees incurred by the claimant in recovering such collateral sources from the tortfea-sor. In determining the provider’s pro rata share of those costs and attorney’s fees, the provider shall have deducted from its recovery a percentage amount equal to the percentage of the judgment or settlement which is for costs and attorney’s fees.

The trial court treated Hastings as a collateral source provider but nevertheless erred when setting off Hastings’s payments to Collins. Instead of proceeding under section 768.76(4), quoted above, the court apparently applied section 768.76(1). But that subsection does not pertain where, as here, the collateral source provider has a right of reimbursement. § 768.76(1) (“[T]here shall be no reduction for collateral sources for which a subrogation or reimbursement right exists.”). The difference between section 768.76(1) and 768.76(4) is that the former adjusts the claimant’s damages award, whereas the latter adjusts the amount of the collateral source provider’s reimbursement. Compare § 768.71(1) (providing that “the court shall reduce the amount of [the claimant’s] award by the total of all amounts which have been paid for the benefit of the claimant ... from all collateral sources”), with § 768.76(4) (stating a collateral source provider’s “right of reimbursement shall be limited to the actual amount of collateral sources recovered”).

Here, the circuit court reduced the verdict by Collins’s percentage of negligence, then subtracted the collateral source payment and entered judgment for that amount. That is the procedure for reduction of the award under section 768.76(1), but it was not the correct calculation in this case. Under section 768.76(4), which applies here, Osier was entitled to her full judgment, against which Hastings could claim reimbursement calculated in the following way. First, the court must determine the amount of the collateral sources Collins recovered from Osier. This is calculated by reducing the amount Hastings paid, $169,574.16, by ten percent for Collins’s comparative negligence, yielding a subtotal of $152,616.74. The court must then reduce that amount by forty percent, the contingency fee percentage Collins’s lawyers charged her, which reduces Hastings’s reimbursement to $91,570.05. After that, the court must determine what costs are chargeable, pro rate those costs, and subtract the appropriate amount from Hastings’s reimbursement. See, e.g., Sutton v. Ashcraft, 671 So.2d 301, 302 (Fla. 5th DCA 1996).

We reverse the judgment and remand for further proceedings in accordance with this opinion. We reject Collins’s contention that the trial court erred in-establishing the amount of the collateral source payments as $169,574.16, and we affirm that finding without further discussion.

Affirmed in part, reversed in part and remanded.

ALTENBERND, C.J., and KELLY, J., Concur.


author: FULMER, Judge.

text:
    Donneco KING, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1905.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Donneco King appeals an order that denied his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procédure 3.850, after the trial court had granted relief. Because the trial court lacked authority to reconsider the orders that granted King’s motion, we reverse.

In 1997, King entered negotiated pleas of no contest in seven cases. King later filed a motion for postconviction relief raising three grounds: (1) ineffective assistance because defense counsel allegedly told King to lie during the plea colloquy; (2) ineffective assistance because defense counsel allegedly failed to investigate a sanity defense and King’s competency; and (3) due process violations because King was not present at two pretrial conferences and did not waive his presence. The trial court set an evidentiary hearing and appointed counsel for King.

At the hearing on Friday, February 16, 2001, the trial court allowed King to withdraw his pleas without hearing evidence. Although the prosecutor was present, she did not object. The trial court then entered written orders vacating the pleas, judgments, and sentences. Later that day, after King and his attorney had left, an “unidentified speaker” objected on the State’s behalf because the trial court granted postconviction relief without an order to show cause or an evidentiary hearing. The trial court told the State that it would hear the issue on Monday.

A brief hearing was held on Monday with King’s attorney and the prosecutor. There is no indication that King was present. The prosecutor asked the trial court to revisit the issue and hold an evidentiary hearing before vacating King’s pleas. The trial court then stated that “I think I might have been hasty and possibly in error in allowing Mr. King to withdraw his plea without giving the State an opportunity to have an evidentiary hearing.” The trial court orally set aside its prior orders but did not enter written orders.

The trial court set an evidentiary hearing for April 20, 2001. But on May 19, 2001, King was declared incompetent to proceed. Apparently, nothing occurred in the case until a hearing was held on March 20, 2002, before a successor judge.

At that hearing, the prosecutor, King’s appointed counsel, and the trial court were all of the opinion that King’s pleas had been withdrawn. The trial court stated that the options were either a new plea or a trial because the State had not appealed the prior orders withdrawing King’s pleas. Despite this accurate recital of the present posture of the case, the trial court later decided to grant the State’s oral motion to vacate the prior orders. This action was taken over King’s objections.

Having vacated the orders allowing King to withdraw his pleas, the trial court held an evidentiary hearing and denied King’s motion for postconviction relief. The trial court’s order addressed only King’s claim that defense counsel told him to lie during the plea colloquy.

King argues on appeal that the trial court lacked authority to vacate the prior orders. We agree. Florida Rule of Criminal Procedure 3.010 mandates that “[tjhese rules shall govern the procedure in all criminal proceedings in state courts including ... proceedings under rule 3.850.” Rule 3.850(g) does not allow the State to file a motion for rehearing; it only provides that “[t]he movant may file a motion for rehearing of any order denying a motion under this rule within 15 days of the date of service of the order.” Although the State is allowed to appeal an order granting postconviction relief, see State v. Lasley, 507 So.2d 711 (Fla. 2d DCA 1987), the State did not do so in this case. Nor does rule 3.850 contain a provision allowing the trial court to order rehearing on its own initiative. Cf Fla. R. Civ. P. 1.530(d) (“Not later than 10 days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial....”).

In Shelby Mutual Insurance Co. v. Pearson, 236 So.2d 1, 3 (Fla.1970), the Florida Supreme Court held in a civil case that “the trial court has no authority to alter, modify or vacate an order or judgment” except in the manner and time frame provided by the applicable rules of procedure. The supreme court rejected the argument that the trial court has jurisdiction to correct its own judgments at any time. Id. at 3-4.

The holding in Shelby Mutual Insurance Co. has been applied to criminal cases. When the State appealed an order granting postconviction relief six months after the postconviction motion had been denied, the Fifth District reversed because the trial court lacked jurisdiction to enter the later order. State v. Anderson, 821 So.2d 1206, 1209 (Fla. 5th DCA 2002) (“There is simply no rule or statutory authority for a trial court to reconsider the merits of an unappealed final order denying post conviction relief some six months after its rendition.”). See also Morris v. State, 630 So.2d 232 (Fla. 3d DCA 1994). Because the State is not allowed to file a motion for rehearing under rule 3.850, the trial court lacked the authority to grant the State’s motion and vacate the final, unappealed orders allowing King to withdraw his pleas.

Therefore, we reverse the order denying postconviction relief and remand for the State to proceed as if a plea had never been entered. See State v. McClain, 509 So.2d 1360, 1361 (Fla. 2d DCA 1987) (‘When the court set aside McClain’s original plea, it was as if a plea had never been entered ab initio, and the state had the option of prosecuting the defendant on the original charges.”) (citations omitted); Williams v. State, 762 So.2d 990, 991 (Fla. 4th DCA 2000) (“When a plea of guilty or nolo contendere is withdrawn and accepted by the court, it is as if the plea had never been entered ab initio.”). We note that King’s competency has been a recurring issue in all of the proceedings and should be appropriately addressed during the proceedings on remand.

Reversed and remanded.

WHATLEY and COVINGTON, JJ., Concur.


author: DAVIS, Judge.

text:
    Marquel D. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3827.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
    James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Marquel D. Williams challenges his convictions and sentences for delivery of cocaine and possession of cocaine. Because the State failed to introduce the cocaine into evidence at trial and did not explain such failure, we reverse.

The Florida Supreme Court has held that “when a defendant is charged with possession of a controlled substance, that substance, if available, must be introduced into evidence but ... a defendant who fails to object to its nonintroduction may not be heard to complain of the error on appeal.” G.E.G. v. State, 417 So.2d 975, 977 (Fla.1982). Here, Williams’ counsel raised the nonintroduction while moving for judgment of acquittal. When the trial court denied the motion, nothing more was said by the trial court or either party regarding the introduction of the cocaine. See Ortiz v. State, 843 So.2d 313, 314 (Fla. 2d DCA 2003) (holding evidence insufficient where “defense counsel raised the nonintroduction of the cocaine, and neither the FDLE lab chemist nor the officer who discovered the cocaine testified that [it] was not available”); Mack v. State, 711 So.2d 1154, 1154 (Fla. 2d DCA 1998) (“After [defense] counsel made this argument, the State offered no excuse or explanation why it had not introduced the cocaine.”).

We accordingly reverse Williams’ convictions and remand with directions to discharge Williams.

Reversed and remanded.

NORTHCUTT and STRINGER, JJ., concur.


text:
    Billy Ray TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4666.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Billy Ray Taylor challenges the denial of his motion to withdraw plea, which was filed before sentencing. Because the record shows that the trial court engaged in coercive plea negotiations at the time that Taylor entered his plea, we reverse.

At a pretrial hearing in March 2002, the trial judge initiated a plea discussion. When Taylor indicated he did not want to accept the State’s offer, the trial judge instructed the State that it was not to make Taylor any better offers in the future. After more discussion, the trial court recessed for five minutes for Taylor to think about his decision, and when the court reconvened, Taylor entered his plea pursuant to the State’s offer. During the plea colloquy, the court told Taylor: “if you want a trial, you would be looking at more time than what you are getting this week; do you understand that?”

In April 2002, Taylor’s counsel moved to withdraw citing irreconcilable differences. In May 2002, Taylor, through new counsel, filed a motion to withdraw plea, which quoted the trial judge at the plea hearing advising Taylor that he would not get a better offer from the State and the present offer would not be extended again. After a hearing, the trial court denied the motion in July 2002. In September 2002, Taylor was sentenced.

We review the denial of a motion to withdraw plea under an abuse of discretion standard. Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003). A motion to withdraw plea filed before sentencing is governed by Florida Rule of Criminal Procedure 3.170(f), which provides:

Withdrawal of Plea of Guilty. The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty. The fact that a defendant may have entered a plea of guilty and later withdrawn the plea may not be used against the defendant in a trial of that cause.

Under this rule, a trial court is required to allow withdrawal of a plea if a defendant establishes good cause. Caddo v. State, 806 So.2d 520, 521 (Fla. 2d DCA 2001). Upon a lesser showing than good cause, the rule allows the court to use its discretion. Roberts v. State, 670 So.2d 1042, 1045 (Fla. 4th DCA 1996) (quoting Yesnes v. State, 440 So.2d 628, 634 (Fla. 1st DCA 1983)). “Threats and coercion, if established, are grounds that would support withdrawal of a guilty plea.” Caddo, 806 So.2d at 521 (citing Clay v. State, 82 Fla. 83, 89 So. 353, 355 (1921); Canada v. State, 144 Fla. 633, 198 So. 220, 223 (1940)).

In State v. Warner, 762 So.2d 507 (Fla.2000), the supreme court delineated minimum safeguards that are to be followed by a judge participating in the plea negotiation process. The court stated that judicial involvement in the plea bargaining process must be limited to minimize the potential coercive effect on the defendant, to retain the function of the judge as a neutral arbiter, and to preserve the public perception of the judge as an impartial dispenser of justice. Id. at 513. A trial court must not initiate a plea dialogue; rather, it may participate in such discussions at the request of a party. Id. Further, “[t]o avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial.” Id. at 514.

The record indicates that the trial court initiated the plea discussion and the trial court’s statements strongly implied that Taylor would receive a harsher sentence if he did not accept the plea at that time. The trial court’s comments also suggested the possibility of a harsher sentence if Taylor exercised his right to trial. As a result of the trial court’s failure to follow the Warner guidelines, Taylor established good cause for withdrawing his plea and the denial of his motion was an abuse of discretion. Accordingly, we reverse and remand for further proceedings to allow Taylor to withdraw his plea.

Reversed and remanded.

WALLACE, J„ and DANAHY, PAUL W., SENIOR JUDGE, concur.


author: SALCINES, Judge. FULMER, Judge,

text:
    John Anthony MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-606.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
   SALCINES, Judge.

John Anthony Moore appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand the denial of Moore’s claim of ineffective assistance of counsel in regard to the failure to seek a severance for trial. This claim is not conclusively refuted by the record. We otherwise affirm the denial of the remaining grounds of error without further discussion.

A fourteen-count information was filed which included charges against Moore, Joe Johnson, Karen Johnson, and Mark Larue. The counts for racketeering, conspiracy to racketeer, conspiracy to traffic in 400 grams or more of cocaine, and trafficking in 400 grams or more of cocaine were lodged against all four defendants. Eight counts of the information were lodged against Joe and Karen Johnson, one count was lodged against Joe Johnson alone, and one count was lodged against Karen Johnson alone.

The racketeeáng charge set forth 348 predicate acts against the defendants. Of those 348 acts, Moore was allegedly involved in twenty acts of selling, possessing, delivering, and/or purchasing cocaine. The conspiracy to racketeer count also realleged these 348 predicate acts.

The trial court entered a judgment of acquittal as to two counts, and Moore was ultimately found by the jury to be guilty of conspiracy to racketeer and conspiracy to traffic in 400 grams or more of cocaine. His convictions were affirmed on appeal. Moore v. State, 806 So.2d 477 (Fla. 2d DCA 2001).

In his motion for postconviction relief, Moore asserted that his trial counsel was ineffective for failing to move for severance of his trial from that of the John-sons. Moore asserted that he was found “guilty by association” with the Johnsons as they had been charged with an additional ten unrelated counts in which Moore had no involvement. In support of his motion, Moore attached the affidavit of Stephen Grogoza, who was the defense counsel for Joe Johnson. In the affidavit, Attorney Grogoza stated:

2. During the months before the trial and also during the nine day trial, I continually complained to Donald Schold [Moore’s trial counsel] about his lack of preparation....
4. Further, Mr. Schold did not file any pre-trial motions, such as moving to sever Mr. Moore’s trial from the Johnsons’ trial. In my opinion, this was a necessary motion because the vast bulk of the 6,000 pages of discovery related to the Johnsons only and only a very small portion related to Mr. Moore.
5. I discussed this tactic and guilt by association with Mr. Schold, however, he did not want to move to sever because he felt that since I was prepared for trial, he would be able to follow my lead rather than to do the trial himself and go through all of that discovery.

In order to plead an ineffective assistance of counsel claim, “[t]he defendant must allege specific facts that, when considering the totality of the circumstances, are not conclusively rebutted by the record and that demonstrate a deficiency on the part of counsel which is detrimental to the defendant.” Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). The standard of review in appeals from summary denials of rule 3.850 motions is set forth in Florida Rule of Appellate Procedure 9.141(b)(2)(D): “[UJnless the record shows conclusively that the appellant is entitled to no relief, the order [denying the motion] shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”

In Cherry v. State, 835 So.2d 1205 (Fla. 4th DCA 2003), the appellate court reversed that portion of the trial court’s order which summarily denied a rule 3.850 motion asserting ineffective assistance of counsel for failure to file a motion to sever. The Fourth District stated, “A motion to sever should be granted when the evidence sought to be admitted applies only to a co-defendant, but which may improperly influence the jury as to the charge against the other defendant.” Id. at 1207. The appellate court continued:

Even though [the codefendant’s] defense was not hostile toward appellant’s, neither incriminated the other, and the state did not make an argument that appellant was guilty by association with [the codefendant], the record attachments do not conclusively refute the possibility that the jury utilized the evidence against Wilson in convicting appellant.... [T]he records do not conclusively refute the allegation that appellant’s attorney should have sought a severance ... and that his failure to do so prejudiced the outcome of the case against appellant.

Id. In a direct appeal reviewing the denial of a motion to sever, this court noted that severance is not necessary “when all the relevant evidence regarding the criminal offense is presented in such a manner that the jury can distinguish the evidence relating to each defendant’s acts, conduct, statements, and can then apply the law intelligently and without confusion to determine the individual defendant’s guilt or innocence.” McLean v. State, 754 So.2d 176, 178-79 (Fla. 2d DCA 2000) (quoting McCray v. State, 416 So.2d 804, 806 (Fla.1982)).

In the present case, it appears that the evidence relating to the ten counts in the information charged only against the John-sons may have improperly influenced the jury as to the charges against Moore. The trial court’s order which summarily denied the motion did not direct this court to the portions of the record which would demonstrate that the evidence was presented by the State in such a manner as to avoid jury confusion and, as Moore has alleged, guilt by association.

Accordingly, we reverse the denial of this ground of error and remand for further consideration. On remand, if the trial court again determines that denial of this ground of error is appropriate, it shall attach the portions of the record which conclusively refute Moore’s allegations. If the claim is not conclusively refuted by the record, the trial court must conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

VILLANTI, J., concurs.

FULMER, J., concurs in part and dissents in part with opinion.

FULMER, Judge,

Concurring in part and dissenting in part.

In his motion, Moore raised three grounds, two of which the majority concludes the trial court properly denied. I join the majority in this conclusion. However, I do not agree that the trial court erred by denying Moore’s claim of ineffective assistance for failure of his counsel to move for a severance.

In order to obtain relief on a claim of ineffective assistance of counsel, a defendant must “show that counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test.” Id. at 693, 104 S.Ct. 2052. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In his motion, Moore alleges that his counsel was ineffective in failing to file a motion to sever. However, Moore fails to allege how he was prejudiced in being tried with his codefendants. The conclusory allegation that he was found “guilty by association” because his codefendants were charged with unrelated counts does not meet the Strickland standard for demonstrating ineffective assistance because Moore has failed to identify any evidence or argument presented at trial that would support his conclusory allegation.

The majority cites to Cherry, 835 So.2d 1205, in support of its reversal but fails to acknowledge that, in that case, Cherry identified evidence that was presented by his codefendant and evidence that was presented against his codefendant that was prejudicial to Cherry’s defense because it contradicted testimony Cherry presented in his own defense. Moore’s motion makes no reference to any evidence or testimony presented at trial.

By its reversal, the majority concludes that Moore’s motion is facially sufficient but fails to identify any factual allegations in Moore’s motion that are sufficient to satisfy the prejudice prong of Strickland. And, notwithstanding the fact that our record does not contain the trial transcript, the majority concludes that “it appears that the evidence relating to the ten counts in the information charged only against the Johnsons may have improperly influenced the jury as to the charges against Moore.” In the absence of further explanation as to the basis of this conclusion and because Moore’s motion does not contain allegations of specific facts demonstrating prejudice, I do not understand how the trial court can attach portions of the record to refute the majority’s conclusion of possible “improper influence.” Likewise, I fail to understand what the trial court could consider at an evidentiary hearing to refute the allegations of Moore’s motion that the majority deems sufficient to allege prejudice.

In its order, the trial court stated:
The Defendant has failed to allege any substantial differences between his position and the positions of his co-Defendant as to the issue of severing the trials, and has provided nothing to demonstrate that had his counsel moved to sever, the Court would have granted that motion having previously denied similar motions filed by both co-Defendants. This ground fails to state a basis for relief under Strickland.

For the reasons I have explained, I agree with the trial court’s rulings and would affirm.

      . The charges against Joe and Karen Johnson included: (count 2) racketeering; (count 5) money laundering; (counts 7 and 8) possession of cocaine with intent to sell; (count 9) obtaining mortgage by false representation; (count 10) grand, theft, more than $100,000; (count 11) communications fraud, first-degree felony; and (count 12) communications fraud, third-degree felony.

      . Joe Johnson was charged individually with possession of a firearm by a convicted felon.

      . Karen Johnson was charged individually with a continuing criminal enterprise.

      . Codefendant Mark Larue was not tried with Moore and the Johnsons. Mr. Larue was a fugitive until shortly before trial. His trial counsel was granted a continuance which resulted in a separate trial being conducted.


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    Calvin McQUEEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1697.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
   DAVIS, Judge.

Calvin McQueen appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand to the trial court.

Following McQueen’s arrest, the State filed a two count information. Approximately seventeen months later, the State filed an amended information which added count three. McQueen then entered a plea to counts one and three, and the State nolle prossed count two. Upon sentencing, the trial court awarded McQueen the 526 days that he had been in custody as. credit on count one; however, the court only awarded 13 days’ credit on count three.

In his posteonvietion motion, McQueen claimed that he was entitled to the same amount of jail credit on both counts one and three of the amended information. The trial court summarily denied the motion, finding that McQueen was not in custody for the conduct alleged in count three until that count was added by the filing of the amended information. McQueen, however, contended that count three was a lesser included offense of count two of the original information and that the same facts and discovery evidence led to both charges. Accordingly, McQueen argued that he was in custody for the acts alleged in count three from the time of his original arrest.

Because the record before us does not refute McQueen’s claim, we reverse and remand. On remand, the trial court shall either correct McQueen’s sentence by awarding him the additional jail credit on count three or attach portions of the record conclusively refuting his claim.

Reversed and remanded.

FULMER and KELLY, JJ., concur.


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    Cleo STINYARD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1730.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
   NORTHCUTT, Judge.

Cleo Stinyard Jr. appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion as to all of his claims, with one exception. On one claim, we reverse and remand for further proceedings.

Stinyard pleaded guilty to aggravated assault, battery on a law enforcement officer, depriving officer of means of protection, resisting officer with violence, and felony criminal mischief. The trial court sentenced Stinyard to concurrent five-year prison terms on all counts.

Stinyard’s motion for postconviction relief alleged that his trial counsel was ineffective for failing to inform him of and investigate an insanity defense. Stinyard claimed that he is a paranoid schizophrenic and that he had not taken his medication at the time of the offenses. He alleged that his counsel was aware of Stinyard’s history of mental illness and the facts surrounding the offense, but counsel never investigated an insanity defense or informed him that such a defense was an option. This is a facially sufficient claim. See Forster v. State, 779 So.2d 550 (Fla. 2d DCA 2001); Easley v. State, 742 So.2d 463 (Fla. 2d DCA 1999). The circuit court did not specifically address this claim when denying Stinyard’s motion, nor did the court provide any record attachments to refute it. In fact, the transcript of Stin-yard’s plea colloquy contains admissions by his counsel that counsel did not fully investigate insanity as a possible defense. Therefore, we reverse and remand for an evidentiary hearing on this claim.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KELLY, JJ., concur.


text:
    Kimberly Ann TINKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3032.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
   DAVIS, Judge.

Kimberly Ann Tinker challenges the trial court’s order summarily denying her request for jail credit pursuant to Florida Rule of Criminal Procedure 3.800. An affidavit of violation of probation was filed against Tinker bearing the ease numbers of both cases for which Tinker was serving probation. However, it appears that due to a clerical error, only one of the case numbers appeared on the arrest warrant. Therefore, Tinker was technically taken into custody on only one of the cases and, at sentencing, received credit for time served only in the one case.

Our review of the record indicates that she was arraigned on the affidavit for both cases at the same arraignment hearing, admitted to violating the terms of both probation orders at the same court appearance, and was sentenced for both violations on the same day based on a single score-sheet. The order finding the violation of probation contained both case numbers, and the trial court imposed the same sentence for each case, the sentences to be served concurrently.

Although Tinker was entitled to credit against each sentence she received for the time she spent in jail on the charge leading to the sentence, see Keene v. State, 500 So.2d 592 (Fla. 2d DCA 1986), due to the mistake on the warrant, the trial court only credited her with the time she spent in jail on one of the violations. This was error. Accordingly, we conclude that Tinker was actually being held for violating her probation in both cases and, but for the mistake on the warrant, would have received credit for the time she served in jail awaiting the disposition of the cases on both case numbers. Therefore, we reverse the trial court’s order denying Tinker the credit and remand with instructions to grant the relief requested.

Reversed and remanded.

FULMER and WALLACE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    CAMP ILLAHEE INVESTORS, INC., a North Carolina Corporation, Appellant, v. Michael BLACKMAN and Patrice Blackman, Individually and as the Parents, Natural Guardians and next best friends of Olivia Blackman and Sophie Blackman, minor children, and Frank Tindall and Elizabeth Tindall, Appellees.
    No. 2D02-4324.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2003.

      J. Gregory Giannuzzi of Rissman, Weis-berg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellant.
    Jeffrey A. Blau, Tampa, for Appellees Michael Blackman and Patrice Blackman, Individually and as the Parents, Natural Guardians and next best friends of Olivia Blackman and Sophie Blackman, minor children.
    No appearance for Appellees Frank Tin-dall and Elizabeth Tindall.
   SILBERMAN, Judge.

Camp Illahee Investors, Inc., a North Carolina corporation, appeals a nonfinal order that denied its motion to dismiss for lack of personal jurisdiction. Because jurisdiction was not established under Florida’s long-arm statute, we reverse.

Appellees Michael and Patrice Black-man, individually and on behalf of their minor daughters, sued Camp Illahee and its owners, Frank and Elizabeth Tindall, for alleged torts committed in North Carolina while the Blackmans’ two daughters were attending summer camp in 2001. In their first amended complaint, the Black-mans alleged that while their daughters were at the camp, someone placed an “anonymous child abuse call” to a county department of social services in North Carolina, whose representatives then interviewed the Blackmans’ daughters. The Blackmans alleged that the “Defendants had a duty, after being informed that the North Carolina County Department of Social Services desired to interview the Plaintiffs’ minor children, to notify the Plaintiffs of the fact that the minor children were to be interviewed by the North Carolina County Department of Social Services about possible child abuse.” The Blackmans also alleged that a junior counselor battered one of the daughters “by stepping on her feet and inflicting other physical injuries and mental abuse” on her.

Camp Illahee filed a motion to dismiss and asserted, among other grounds, that it was not subject to the jurisdiction of a Florida court and, even if jurisdiction existed in Florida, that North Carolina was an adequate alternative forum. Camp Illa-hee further argued that it was immune from suit under North Carolina law and that Florida’s impact rule required dismissal.

Camp Illahee submitted affidavits from the Tindalls, the owners and operators of the camp. The affidavits reflect that Camp Illahee is a North Carolina corporation; the summer camp is located in North Carolina; Camp Illahee has no offices in Florida; it has no employees in Florida, although some of the employees who work at the camp during the summer are from Florida; Camp Illahee does no advertising in Florida by newspapers, radio, or television, but it has a one and one-half page posting on its internet website advising of “fall reunion and video shows.”

Mrs. Tindall’s affidavit also reflects that she travels to various states to engage in the reunion and video shows, which are designed to have “the children get together to talk about Camp, and to become excited for camp the next summer.” The reunions take place in the homes of camp families, and the families receive a discount in the camp fee for hosting the reunions. The discounts amounted to .15% of Camp Ulahee’s gross revenues in 2000 and .08% in 2001. In 2000 and 2001, 22% of the campers were from Florida.

Although Camp Illahee argues that its motion to dismiss could properly have been granted on any of the grounds raised in its motion, the key issue is whether the trial court had long-arm jurisdiction over Camp Illahee. Our standard of review on the issue of personal jurisdiction over a foreign corporation is de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000). Additionally, we are required to strictly construe Florida’s long-arm statute. See Esberger v. First Fla. Bus. Consultants, Inc., 338 So.2d 561, 562 (Fla. 2d DCA 1976).

The pertinent facts relating to jurisdiction are not in dispute. The determination of whether the trial court has personal jurisdiction over Camp Illahee turns on “whether (1) there are sufficient jurisdictional facts to bring the action within the purview of the long-arm statute; and (2) the nonresident defendant involved has sufficient minimum contacts with Florida to satisfy constitutional due process requirements.” Kin Yong Lung Indus. Co. v. Temple, 816 So.2d 663, 666 (Fla. 2d DCA 2002); see also Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989).

In its order denying the motion to dismiss, the trial court did not discuss this two-prong test. Instead, it simply stated, “Jurisdiction as to Camp Illahee Investors, Inc. will remain in Florida pursuant to the doctrine of forum non conveniens, as set forth in Fla. R. Civ. P. 1.061.” However, before reaching the issue of forum non conveniens under Florida Rule of Civil Procedure 1.061, the trial court was required to first determine whether it had in personam jurisdiction in accordance with the two-prong test. See La Reunion Francaise, S.A. v. La Costena, 818 So.2d 657, 659 (Fla. 3d DCA 2002) (concluding that there was no personal jurisdiction over the foreign defendant and, therefore, no need to reach other issues raised in the motion to dismiss, including the issue of forum non conveniens).

After reviewing the record and the applicable statutory language in light of the required two-prong jurisdictional analysis, we conclude that the trial court should have dismissed the Blackmans’ first amended complaint for lack of in personam jurisdiction. The allegations of the first amended complaint establish that the only possible bases for jurisdiction are under sections 48.193(l)(a) or 48.193(2) of the long-arm statute. Section 48.193(l)(a) provides as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.

Section 48.193(2) states as follows:

A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

In the trial court, the Blackmans asserted that because Mrs. Tindall came to Florida one week a year for the reunion and video shows, Camp Illahee was conducting business in Florida. They also argued that the families that hosted the reunions were agents of Camp Illahee.

Concerning the agency argument, nothing in the record reflects that either an apparent or actual agency relationship existed between the host families and Camp Illahee. In particular, there was no showing that Camp Illahee made any representations that the host families were the agents of Camp Illahee, or that Camp Illahee, as principal, exercised control over the families, as agents. See Ilgen v. Henderson Props., Inc., 683 So.2d 513, 514-15 (Fla. 2d DCA 1996) (discussing the elements necessary to establish apparent or actual agency); State v. Am. Tobacco Co., 707 So.2d 851, 854 (Fla. 4th DCA 1998) (stating that control by the principal over the agent is a necessary element of agency).

The Blackmans’ second argument is premised on section 48.193(1), which confers jurisdiction for “any cause of action arising from the doing of’ any of the enumerated items, such as conducting business in Florida. By its terms, section 48.193(1) requires connexity between the defendant’s activities and the cause of action. Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.2002). Here, the record reflects that the connexity requirement has not been met because the Blackmans’ claims did not arise from the reunions and video shows that took place in Florida during one week per year. Rather, the claims arose out of alleged torts that occurred in North Carolina while the Blackmans’ daughters attended the camp.

Even if the undisputed facts fell within the ambit of section 48.193(1), Camp Illahee must have sufficient minimum contacts with Florida to satisfy due process requirements. See Venetian Salami, 554 So.2d at 500. The test is whether Camp Illahee’s conduct is such that it “should reasonably anticipate being haled into court” in Florida. See Venetian Salami, 554 So.2d at 500 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)); see also Emerson v. Cole, 847 So.2d 606, 608 (Fla. 2d DCA 2003). We agree with Camp Illahee that the limited contact between it and Florida as a result of the yearly reunion and video shows is insufficient to establish that it could reasonably anticipate being haled into court in Florida for the allegedly tortious conduct occurring in North Carolina.

A second potential basis for jurisdiction is section 48.193(2), which provides that a defendant is subject to a Florida court’s jurisdiction when the defendant “is engaged in substantial and not isolated activity within this state ... whether or not the claim arises from that activity.” This section “does not require connexity between a defendant’s activities and the cause of action.” Woods v. Nova Cos. Belize Ltd., 739 So.2d 617, 620 (Fla. 4th DCA 1999). Additionally, if the defendant’s activities meet the requirements of this section, the due process requirement of minimum contacts is fulfilled. Id. However, the record before us does not support a conclusion that Camp Illahee’s conduct constitutes substantial activity in Florida. See deMco Techs., Inc. v. C.S. Engineered Castings, Inc., 769 So.2d 1128, 1132 (Fla. 3d DCA 2000) (stating that sporadic sales in Florida could not provide jurisdiction for litigation regarding an unrelated promissory note); Price v. Point Marine, Inc., 610 So.2d 1339, 1341 (Fla. 1st DCA 1992) (noting that sporadic activities or visits to Florida consisting of the occasional solicitation of business in Florida do not constitute “substantial and not isolated activity”).

Because the undisputed facts do not demonstrate a basis for jurisdiction under Florida’s long-arm statute, we reverse and remand with directions that the trial court dismiss the Blackmans’ claims without prejudice to their refiling the claims in the appropriate jurisdiction. In light of our conclusion regarding the lack of in person-am jurisdiction, the other grounds asserted by Camp Illahee in support of reversal are moot.

Reversed and remanded with directions.

STRINGER, J„ and THREADGILL, EDWARD F., Senior Judge, Concur.

      . The trial court dismissed the Tindalls from the litigation, and the Blackmans have not appealed that ruling.


text:
    J.D.F., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5150.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 2003.
    Scott K. Spivack of Scott K. Spivack, P.A., Lakeland, for Appellant. ¡

    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   COVINGTON, Judge.

J.D.F. appeals the trial court’s order adjudicating him delinquent and committing him to the Department of Juvenile Justice. The trial court’s order was entered after J.D.F. had admitted violating probation and had accepted negotiated pleas to sexual battery on a child less than twelve years of age and to petit theft. We reverse.

After the trial court accepted J.D.F.’s pleas, it held a separate disposition hearing. At the start of the hearing, J.D.F.’s counsel advised the trial court that J.D.F. wished to withdraw his pleas based on allegations that she misled him regarding the consequences of his pleas. J.D.F.’s counsel asked the court to appoint a conflict-free attorney to represent him on his motion to withdraw the pleas. The trial judge immediately denied the motion, stating that he was holding J.D.F. to his answers in the plea colloquy. The judge added that if J.D.F. wished to address the issue on appeal, he would appoint separate counsel for that purpose. The trial court then proceeded to disposition.

DENIAL OF MOTION TO WITHDRAW AND APPOINTMENT OF CONFLICT-FREE COUNSEL

J.D.F. argues that the trial court erred in denying his trial counsel’s motion to withdraw and for the court to appoint conflict-free counsel. We agree.

In Roberts v. State, 670 So.2d 1042, 1044 (Fla. 4th DCA 1996), in which the facts are similar to those here, the Fourth District held that “a trial court reversibly errs in refusing to allow a public defender to withdraw based on counsel’s perceived conflict between his client’s and his own interests.” In reversing, the Fourth District stated that the trial court’s denial of Roberts’ counsel’s motion to withdraw placed counsel in an actual conflict of interest with his client, who consequently “did not have a conflict-free attorney advocating for withdrawal of his guilty plea.” Id. at 1045. See also Bible v. State, 779 So.2d 517 (Fla. 2d DCA 2000) (reversing denial of motion to withdraw plea and remanding for new hearing because conflict-free counsel was not appointed). Likewise in this case, the trial court’s erroneous denial of J.D.F.’s counsel’s motion deprived J.D.F. of a conflict-free attorney to advocate for withdrawal of his plea.

SUFFICIENCY OF MOTION TO WITHDRAW PLEA

The State argues that the motion to withdraw J.D.F.’s plea was insufficient because J.D.F. did not explain what his counsel told him that he thought was misleading. However, the State’s argument fails because the trial court denied the oral motion without giving J.D.F. a chance to explain his grounds for wanting to withdraw his plea. In Gunn v. State, 643 So.2d 677 (Fla. 4th DCA 1994), the Fourth District held the trial court erred in immediately denying Gunn’s oral motion to withdraw his plea without giving him a chance to show any good cause for the motion. Id. at 679. The Gunn court stated that once that happened, Gunn and his counsel were not required to make further arguments on the motion. Id. The court held that “as a matter of fundamental due process, Gunn should have been given the opportunity to present argument and be heard on the motion to withdraw his guilty pleas.” Id. Similarly here, the trial court erred in immediately denying J.D.F.’s motion to withdraw his pleas without giving him an opportunity to present argument and be heard. Therefore, we vacate the order of commitment and remand for a hearing on J.D.F.’s motion to withdraw his pleas, for which the trial court shall appoint conflict-free counsel to represent J.D.F.

Reversed and remanded.

CANADY and WALLACE, JJ„ Concur.