author: PER CURIAM. HAZOURI, J.,

text:
    Vishna PERSAD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-989.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Rehearing Denied Dec. 3, 2003.
    Michael D. Gelety, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to any issues properly addressed pursuant to rule 3.850, Florida Rules of Criminal Procedure.

STONE and SHAHOOD, JJ„ concur.

HAZOURI, J., concurs specially with opinion.

HAZOURI, J.,

concurring specially.

Although I concur in affirming the denial of a motion for new trial, I write to express my grave concerns as to whether the weight of the evidence supports the conviction.

Following a jury trial, Vishna Persad, was convicted of aggravated battery with a firearm causing great bodily harm. Per-sad sought a new trial asserting that the verdict was contrary to the weight of the evidence. The motion for a new trial was denied and Persad was sentenced to forty-three years in the Department of Corrections with a minimum mandatory sentence of twenty-five years for the use of a firearm.

Upon my review of the record, it appears that Persad was convicted based upon the questionable identification made by only one of five eyewitnesses. The identification was based upon a photo lineup using a photograph of Persad which was taken approximately seven years prior to the incident in question, when Persad was only seventeen years old. The remaining four eyewitnesses either could not identify Persad as the perpetrator or identified someone other than Persad.

At the time of the trial, Persad had long hair and a full beard but in the photograph used in the photo lineup Persad had short cropped hair and only a pencil thin mustache. The defense presented witnesses who testified that at the time of the incident in question, Persad had long hair and a beard. The defense also presented three alibi witnesses that testified that at the time of the incident, Persad was participating in a study group preparing for a final examination for an organic chemistry course at Florida Atlantic University and could not have been at the scene of the incident at the time it occurred. The only evidence connecting Persad to the crime was the testimony of a single eyewitness. There was no physical evidence to connect Persad to the crime.

The standard of review for a motion for new trial is an abuse of discretion. In order to demonstrate an abuse of discretion, the non-prevailing party must establish that no reasonable person would take the view taken by the trial court. Thus a trial court is generally accorded broad discretion in deciding whether to grant a motion for new trial. See Moore v. State, 800 So.2d 747 (Fla. 5th DCA 2001).

Persad’s argument on appeal is that the trial judge used an incorrect legal standard in ruling on his motion for new trial. Persad contends that the standard used by the trial judge was the sufficiency of the evidence as opposed to the weight of the evidence as required in Florida Rule of Criminal Procedure 3.600(a)(2). A review of the transcript of the hearing on the motion for new trial tends to support Persad’s position that the trial judge was reluctant to reweigh the evidence as required by the Florida Supreme Court decision in Tibbs v. State , 397 So.2d 1120 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982), as reflected by the following colloquy:

THE COURT: Let me ask you this question: Assuming I agreed with you and I concluded that the jury was wrong and there was no basis for the jury to, on this evidence, return a verdict of guilty, so you say, well, are you going to give him a new trial, what’s the point?
You are going to have the same names, you are going to have the same evidence, and if the next jury convicts, you are going to be here saying the same thing to me, well, Judge, you can’t possibly allow this verdict to stand because it’s insufficient, as a matter of law, you have to set it aside and give him a new trial and, then, so we keep giving him a new trial until you get an acquittal.
I mean, what is the point of having a new trial if you are telling me that I have to make the decision and my decision is what counts. I mean, how, what is the point of having a new trial? The evidence is not going to be any different the next time around.
MR. LANTZ: And I clearly—
THE COURT: It can’t get any better for the state.
MR. LANTZ: And I clearly think you will need to read Tibbs on that because Tibbs is the one that explains what the purpose is on a Motion for a New Trial and what this court does, and what it says is that judges have historically granted new trials in the interest of justice where the record, though, technically sufficient, raises so much doubt that the conviction cannot in conscience be upheld, and it also goes on to state that the—
THE COURT: I understand that. I am trying to understand what’s the point of having a new trial?
MR. LANTZ: Clearly, what’s the point of having a new trial is that in the interest of justice.
THE COURT: Why shouldn’t I just acquit him and, say, it’s over because they can’t possibly prove it in a new trial because the evidence is going to be the same, and you are going to tell me, if there is another conviction, it should be set aside again because there is no way that this evidence should sustain a verdict.
THE COURT: You are telling me that I am not supposed to now make the decision based upon the weight of the evidence in the light most favorable to the state, I am supposed to sit as the 7th juror and I am supposed to make an independent decision as to whether or not I believe the evidence was sufficient to sustain a verdict and, if I don’t think that, then I have to grant a new trial and so what am I saying, if I agree with you and I do that and I say, you are right, Mr. Lantz, there is insufficient evidence in my independent judgment to sustain this verdict, that the jury was, deceived, however, you want to characterize it, into believing the evidence and there were so many, too many inconsistencies in the case to sustain a conviction beyond a reasonable doubt, so, therefore, your client is entitled to a new trial, that’s what you want me to do.
MR. LANTZ: Exactly.
THE COURT: If I do that, so then, we are going to have a new trial, so the state is going to present the same evidence, the same witnesses, the same, I assume, the same testimony. I assume the testimony isn’t going to change. I assume there are going to be same inconsistencies, the same issues that you are raising over and over again, you are going to have the same witnesses testify about the alibi and everything else and, then, if that jury returns a verdict of guilty, you are going to be right back here, standing there saying, Judge, the evidence is insufficient, you have to set aside the jury’s verdict, give him a new trial.
We are going to do another trial and then we are going to go through the same thing and, isn’t it, under your theory, all we have to do is keep having trials until there is an acquittal?

At the conclusion of the hearing on the motion for new trial the trial judge indicated that he would take the motion for new trial under advisement and enter an order. Approximately a month and a half later he entered an order denying Persad’s motion for new trial and stated as follows:

THIS MATTER came before the Court upon the motion of the Defendant, Vishna Persad, for a new trial. A hearing was conducted before the Court. After considering the evidence presented at trial, the argument of counsel, and otherwise being duly advised in the premises, it is hereby
ORDERED AND ADJUDGED that the Defendant’s motion for a new trial is denied. The Court finds that the verdict was not contrary to law or to the weight of the evidence.

Although the above referenced colloquy suggests that the trial judge was reluctant to reweigh the evidence, the order denying Persad’s motion for a new trial reflects that the trial judge found that the verdict was not contrary to the weight of the evidence. Since I cannot say that no reasonable trial judge could find that the weight of the evidence was sufficient to support this verdict, I am compelled to affirm.

      . In Tibbs, the Court explained the distinction as follows:
      The weight and the sufficiency of evidence are, in theory, two distinct concepts most often relevant at the trial court level. Sufficiency is a test of adequacy. Sufficient evidence is "such evidence, in character, weight, or amount, as will legally justify the judicial or official action demanded.” Black’s Law Dictionary 1285 (5th ed.1979). In the criminal law, a finding that the evidence is legally insufficient means that the prosecution has failed to prove the defendant's guilt beyond a reasonable doubt. Burks v. United States, 437 U.S. 1, 16 n. 10, 98 S.Ct. 2141, 2150 n. 10, 57 L.Ed.2d 1 (1978). Weight, at least in theory, is a somewhat more subjective concept. The "weight of the evidence” is the "balance or preponderance of evidence.” Black’s Law Dictionary 1429 (5th ed.1979). It is a determination of the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other. See In re Estate of Brackett, 109 So.2d 375 (Fla. 2d DCA 1959).

        Tibbs, 397 So.2d at 1123.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Collie T. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1739.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Collie T. Edwards, Belle Glade, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The trial court’s order denying Edwards’s post-conviction motion is affirmed. As to his claim that his attorney was ineffective for failing to call certain witnesses, in order to set forth a facially sufficient claim, a post-conviction motion must allege that the witness was available to testify. See Catis v. State, 741 So.2d 1140 (Fla. 4th DCA 1998), rev. denied, 735 So.2d 1284 (Fla.1999); Nelson v. State, 816 So.2d 694 (Fla. 5th DCA 2002); Puig v. State, 636 So.2d 121 (Fla. 3d DCA 1994); Highsmith v. State, 617 So.2d 825 (Fla. 1st DCA 1993).

Accordingly, we certify conflict with Odom v. State, 770 So.2d 195 (Fla. 2d DCA 2000).

STONE, HAZOURI and MAY, JJ„ concur.


text:
    Kathryn YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3780.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Kathryn Young, Brooksville, pro se.
    No appearance required for appellee.
   PER CURIAM.

The summary denial of Appellant’s rule 3.850 motion for postconviction relief is affirmed, but without prejudice to her filing a sworn petition for belated appeal of her conviction and sentence entered September 26, 2001, pursuant to Florida Rule of Appellate Procedure 9.141(c), within thirty days from the issuance of the mandate in the instant case.

POLEN, SHAHOOD and MAY, JJ., concur.


text:
    Christopher CREASE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3970.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Christopher Crease, Fort Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s right to refile a rule 3.800(a) motion raising his claim of entitlement to credit for time served, affirmatively stating where in the court file or jail records the information concerning his jail service can be found. Appellant may attach such supporting information to his motion. Phillips v. State, 798 So.2d 796 (Fla. 4th DCA 2001); Acquaotta v. State, 791 So.2d 1251 (Fla. 4th DCA 2001); Skullestad v. State, 790 So.2d 516 (Fla. 4th DCA 2001).

KLEIN, SHAHOOD and TAYLOR, JJ., concur.


text:
    Dwayne BOATWRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3358.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Dwayne Boatwright, Crawfordville, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Dwayne Boatwright appeals an order of the trial court which summarily denied his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a).

In his motion, appellant sought credit against his prison sentence in a year 2000 prosecution, but attached a letter suggesting that the forty-one days of credit sought were actually demanded in an earlier, separate prosecution for time when a detainer warrant was placed on him. The motion and letter are confusing, and otherwise defective for failure to allege that the court records on their face demonstrate entitlement to the relief sought. This is regarded as a fatal flaw in a rule 3.800(a) motion for credit. See Milne v. State, 807 So.2d 725 (Fla. 4th DCA 2002); Skullestad v. State, 790 So.2d 516 (Fla. 4th DCA 2001); Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998).

Therefore, we affirm the trial court order of summary denial, but without prejudice to any right appellant may have in the earlier prosecution to file a facially sufficient motion for jail credit under rule 3.800(a).

AFFIRMED.

GUNTHER, POLEN and GROSS, JJ., concur.


text:
    Dewey WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1102.
    District Court of Appeal of Florida, First District.
    Nov. 13, 2003.
    Appellant, Pro se.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Dewey Wilson, appeals the dismissal of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant was convicted of burglary of a dwelling, petit theft, possession of marijuana, and possession of drug paraphernalia. Appellant appealed and his convictions were affirmed by this Court. Wilson v. State, 827 So.2d 984 (Fla. 1st DCA 2002). Appellant then filed a motion for postconviction relief that the circuit court “dismissed/denied.” Appellant filed a second motion for postconviction relief that the circuit court “dismissed/denied” as successive or an abuse of process. Appellant raises three claims in this appeal. We address only Appellant’s first claim. The other two claims are rejected without further comment.

Appellant contends the circuit court erred by dismissing his second motion as successive when the court denied his first motion in part as legally insufficient and did not adjudicate his motion on the merits. We agree. Florida Rule of Criminal Procedure 3.850(f) provides that “[a] second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits .... ” (Emphasis added). This Court has repeatedly held that a motion for postconviction relief cannot be dismissed or denied as successive when the previous motion was dismissed or denied as legally insufficient and the grounds raised were not previously adjudicated on their merits. See Nunez-Medina v. State, 817 So.2d 937 (Fla. 1st DCA 2002); Browning v. State, 687 So.2d 950 (Fla. 1st DCA 1997).

Although the circuit court erred in dismissing Appellant’s second postconviction motion as successive, we affirm-because Appellant’s claims are facially insufficient to warrant relief. See Parker v. State, 603 So.2d 616 (Fla. 1st DCA 1992)(affirming the order denying postcon-viction relief on grounds other than those relied on by the trial court); Freeman v. State, 589 So.2d 368 (Fla. 1st DCA 1991)(same).

AFFIRMED.

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


text:
    Gabriel M. MATALON, Appellant, v. Terrell G. LEE, Appellee.
    Nos. 4D01-3800, 4D01-4102.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A., Hollywood, for appellant.
    Patrick B. Flanagan of Flanagan, Ma-niotis, Berger & Ryan, P.A., West Palm Beach, for appellee.
   PER CURIAM.

In our slip opinion filed June 11, 2003, we reserved jurisdiction on Lee’s cross-appeal of the order that granted him his attorney’s fees pursuant to section 768.79, Florida Statutes (2001), but refused to apply a multiplier to said award, pending the Florida Supreme Court’s resolution in Allstate Insurance Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001), rev. granted, 826 So.2d 992 (Table) (Fla.2002). The Florida Supreme Court has now issued its opinion, holding that a contingency multiplier may not be applied to a fee award pursuant to section 768.79. Sarkis v. Allstate Ins. Co., 28 Fla. L. Weekly S740, — So.2d —, 2003 WL 22250352 (Fla. Oct. 2, 2003). Consequently, we hereby affirm Lee’s cross-appeal.

AFFIRMED.

GUNTHER, POLEN and SHAHOOD, JJ., concur.

      . Matalon v. Lee, 847 So.2d 1077 (Fla. 4th DCA 2003).


author: TAYLOR, J.

text:
    Lyndon SHAPRAY, Appellant, v. Arnold J. HOFFMAN, as Trustee, Howard Shapray and Donald Shapray, Appellees.
    No. 4D02-1926.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellant.
    Peter A. Sachs and Theodore S. Kypr-eos of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for Appellee-Ar-nold J. Hoffman, as Trustee.
   TAYLOR, J.

We affirm the probate court’s final judgment granting the trustee’s petition for administration, denying the decedent’s grandson’s cross-petition for administration, and granting the trustee’s request to eject'the grandson from the decedent’s apartment. We find no abuse of discretion in the trial court’s denial of the grandson’s request for a second continuance. Further, we find no error in the court’s conducting a non-jury trial on the ejectment action, as the grandson waived his right to a jury trial by participating in the four-day non-jury trial without objection.

The personal representative filed a petition for administration of the decedent’s 1999 will. The will directed the residue of the estate to pass to a trust, which the decedent also created in 1999. The trust provided for distribution of the trust corpus to charities upon the decedent’s death. At the time of her death, the decedent’s only remaining asset was an apartment located in Palm Beach and occupied by her grandson, Lyndon Shapray. Shapray filed a cross-petition for administration of a 2000 will, which he prepared, and which the decedent purportedly executed, when the two were residing together in the decedent’s apartment. Thereafter, the personal representative/trustee filed a complaint for construction of the 1999 trust and Sha-pray’s ejectment from the decedent’s apartment. In response, Shapray challenged the validity of the 1999 trust and demanded a jury trial for issues triable to a jury.

For trial purposes, the court consolidated the two probate proceedings and the ejectment action. The case was twice set for a non-jury trial. Noting Shapra/s original demand for a jury trial and the court’s setting of a non-jury trial, the personal representative/trustee filed and served a “Motion for Clarification.” The trial court did not issue an order regarding the motion, and Shapray did not pursue clarification as to the non-jury setting. Over several months, Shapray failed to object to two orders setting these matters for a non-jury trial. More important, he actively participated in a four-day non-jury trial without objecting to the absence of a jury.

It is well-settled that the affirmative act of participating in a non-jury trial without raising an objection constitutes waiver of the right to jury trial. See Del-Rena, Inc. v. KFM, Inc., 789 So.2d 397 (Fla. 4th DCA 2001)(citing Barth v. Fla. State Constructors Serv., Inc., 327 So.2d 13, 15 (Fla.1976)); Baron Auctioneer, Inc. v. Ball, 674 So.2d 212, 214 (Fla. 4th DCA 1996).

In this case, Shapray’s conduct pri- or to and during trial evinced his acquiescence to the trial proceeding non-jury. Shapray failed to object to the non-jury trial, despite having sufficient notice that the case was scheduled to be tried without a jury. He was put on notice that the ejectment issue would be tried along with the probate action by the consolidation order and the pre-trial stipulation listing these issues for trial. Yet, he actively participated in the trial without ever raising an objection to the case proceeding without a jury. His failure to object at any time prior to or during trial constitutes a waiver of the jury issue.

AFFIRMED.

STEVENSON and GROSS, JJ., concur.


text:
    Vernon M. LESLIE, Jr., Appellant, v. Kathleen M. LESLIE, Vernon M. Leslie, et al, Appellees.
    No. 4D02-3143.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.

      Vernon M. Leslie, Jr., Okeechobee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauder-dale, for Appellee-State of Florida.
   PER CURIAM.

This is an appeal from an order denying a motion to transport, which we treat as an order denying a petition for writ of habeas corpus ad testifcandum. We reverse the order denying relief and remand for further proceedings.

Appellant, in state custody, is a beneficiary under his grandmother’s will. Appellant’s mother and father take positions adverse to Appellant with respect to potential estate claims against them. His mother is the personal representative of the estate. An administrator ad litem, appointed to investigate such claims, concluded that the claims against Appellant’s mother and father should not be pursued.

A hearing was set to close out the estate and pay fees and costs. Appellant sought to attend the hearing to present evidence or testimony. His previous requests to attend hearings in these proceedings had been granted and concluded without incident.

In denying the motion to transport, the trial court concluded that Appellant, incarcerated for attempted murder, was a security risk, as he was not scheduled for release for three more years. The court also relied on the report of the administrator ad litem, in whom the court placed a high degree of confidence, and determined that Appellant’s presence was unlikely to affect the outcome. The court also deemed the expense and inconvenience of transporting Appellant to be unwarranted.

In granting a related writ of prohibition, this court concluded that the trial court’s comments, praising the administrator ad litem and appearing to pre-judge the outcome, required recusal. See Leslie v. Leslie, 840 So.2d 1097 (Fla. 4th DCA 2003).

Patently, the trial court’s decision to deny transport was, in part, based on grounds that we have deemed so prejudicial as to mandate recusal. However, the interest of the inmate in appearing in person and the probability of success are only two of the factors to consider in ruling on a motion to transport. See Brown v. Sheriff of Broward County, 502 So.2d 88 (Fla. 4th DCA 1987). The others are inconvenience, security, potential risk, the substantiality of the matter at issue, and the possibility of delaying the hearing. Id.

We note that even if the trial court could have validly denied leave to appear on the additional grounds, the availability of alternative means of accommodations should have been considered to enable Appellant to have a meaningful opportunity to be heard. See Leslie, 840 So.2d at 1098-99. These alternatives could include provision for deposition, affidavit, or telephonic participation in the hearing.

On remand, the trial court shall vacate any orders arising from the hearing at which Appellant was not afforded a meaningful opportunity to be heard and shall reconsider his motion to transport.

STONE, POLEN, JJ. and ROSENBERG, ROBERT, Associate Judge, concur.


author: KLEIN, J.

text:
    James W. SLUSHER, Jr., Appellant, v. MARTIN COUNTY and South Florida Water Management District, Appellees.
    No. 4D02-3779.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Howard K. Heims of Littman, Sherlock & Heims, P.A., Stuart, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Janice M. McLean, Assistant Attorney General, West Palm Beach, and John J. Fumero, General Counsel, and Douglas Maclaughlin, Managing Attorney, West Palm Beach, for appellee South Florida Water Management District.
    Stephen Fry, County Attorney and David A. Acton, Senior Assistant County Attorney, Stuart, for appellee Martin County.
   KLEIN, J.

Appellant owns a home on a few acres with a pond about 90 feet wide, 120 feet long, and ten feet deep. When Martin County began operating a well it had drilled next to appellant’s property, it caused all of the water to be drained from the pond. Appellant alleged in this administrative proceeding that South Florida Water Management District should not have issued a permit for the well, because of the adverse affect on his pond. His petition was denied, but we reverse.

The facts, which are not disputed, begin with the construction of this home in 1980 by the original owner who testified that the pond was created at that time in order to raise fish. A berm was constructed around the pond in order to prevent water from overflowing. The pond had fish in it when appellant purchased it in 1994 and he has restocked it. The operation of Martin County’s well resulted in the water being drained from appellant’s pond.

Appellant filed a petition for administrative hearing challenging the permit issued to Martin County by the District. The District adopted the judge’s findings and conclusions that, notwithstanding the adverse effect on appellant’s pond, the permit was properly issued. We reverse because the District misinterpreted its rules. § 120.68(7)(e)(2), Fla. Stat. (2002).

Rule 40E-2.301(f) of the Florida Administrative Code, which applies to wells, provides:

Conditions for Issuance of Permits.
(1) In order to obtain a permit, permit renewal, or permit modification under this chapter, an applicant must give reasonable assurances that the proposed water use at the time the permit application is deemed complete:
(f) Will not interfere with presently existing legal uses ... (Emphasis added).

The District determined that the pond was not a “presently existing legal use” within the meaning of this rule.

Section 1.8 of the Basis of Review for Water Use Applications Within the South Florida Water Management District, (which is incorporated into the District’s rules by reference through rule 40E-2.091, Florida Administrative Code), defines “existing legal use” of water as follows:

A water use that is authorized under a District water use permit or is existing and exempt from permit requirements.

The District conceded that no permit is necessary for this pond. The District, however, concluded that the above definition of “existing legal use” should be read as “existing and [expressly] exempt from permit requirements.” If that had been the intention of the rule drafters, it would have been a simple matter to use the term “expressly” or to state with more specificity the exemptions. The definition, however, is clear and does not support the District’s interpretation.

The District argues that deference should be given to its interpretation of the statute or rule it is charged with enforcing, Verizon Fla., Inc. v. Jacobs, 810 So.2d 906 (Fla.2002); however, that principle does not apply where, as in this case, the statute or rule is “unambiguous and conveys a clear and ordinary meaning.” Id. at 908; Starr Tyme, Inc. v. Cohen, 659 So.2d 1064 (Fla.1995).

The District also concluded that appellant was not entitled to relief because of section 3.6 of the Basis of Review which provides:

The issuance of a permit shall be denied if the withdrawal of water would cause an unmitigated adverse impact on an adjacent land use that existed at the time of permit application or that exists at the time of an application for permit modification. Adverse impact on land uses include:
A. Significant reduction in water levels in an adjacent surface water body, including impoundments, to the extent that the designed junction of the water body is impaired ... (Emphasis added).

Impoundment is defined as “any lake, reservoir, or other containment of surface water occupying a depression or bed in the earth’s surface and having a discernable shoreline.” § 373.019(8), Fla. Stat. (2002) and section 1.8 of the Basis of Review. The District agreed that this pond was an impoundment, but concluded that the “designed function” had not been impaired. The agency came to that conclusion based on its expert speculating, with no knowledge of the facts, that this was an excavation made solely to avoid having to bring in fill to raise the level of the house. He advanced this theory based on the fact that the house was built on fill one or two feet above ground level. The expert conceded, however, that the designed function was subsequently changed to fish pond.

Because it was undisputed that the fish pond was a designed function, the possibility that the original reason for the excavation may have been for some other purpose is irrelevant under section 3.6 of the Basis of Review. Section 3.6 does not say “original designed function.” Even if it had been relevant, the testimony of the District’s expert, who admitted he was speculating, was not competent substantial evidence to support a finding that it was done solely to raise the house. As we noted earlier, the original owner testified it was solely for the purpose of having a fish pond, and this was not disputed.

The District’s conclusion that the permit should be granted is therefore inconsistent with its own rules and unsupported by substantial competent evidence. §§ 120.68(7)(e)(2) and 120.68(7)(b), Fla. Stat. (2002). Reversed.

GUNTHER and GROSS, JJ., concur.

      . This will not necessarily result in Martin County’s well being shut down. The ALJ found that appellant's pond could be lined with a naturally occurring clay known as ben-tonite, which would solve the problem with no harmful effects.


text:
    Scott A. HUITT, Appellant, v. Helen HSIA, Appellee.
    No. 4D03-211.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.

      Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Warren B. Brams of Warren B. Brams, P.A., West Palm Beach, for appellant.
    Steven L. Winig of Brody, Cohen & Winig, P.A., West Palm Beach, for appel-lee.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

We withdraw our opinion filed on October 8, 2003 and substitute the following opinion. We agree with the Appellant’s contention that the trial court erred in adopting the domestic relations commissioner’s finding that the mother’s religion was a factor in determining that the child’s quality of life would improve if she relocated with the Appellee.

In Huitt v. Hsia, 848 So.2d 459 (Fla. 4th DCA 2003), our previous decision involving these very same litigants, we held that disqualification of the commissioner was warranted because her report stated the mother’s religious beliefs and the father’s lack thereof were a factor in her recommendation favoring the mother. As the trial court erroneously adopted the commissioner’s finding on this point, we reverse the order denying Huitt’s motion for temporary custody and remand for further proceedings. In all other respects we affirm.

REVERSED IN PART, AFFIRMED IN PART and REMANDED for further proceedings.

FARMER, C.J., GUNTHER and GROSS, JJ., concur.


text:
    Kurt DETERMANN and Stanley Bach, Appellants, v. ANSER, INC., a Florida corporation, and Anser Therma Technologies, Inc., a Florida corporation, Appellees.
    No. 4D02-4755.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    John J. Anastasio, Port St. Lucie, for appellants.
    Harold G. Melville, Fort Pierce, for ap-pellees.
   PER CURIAM.

We affirm the trial court’s order assessing attorney’s fees against appellants pursuant to section 57.105, Florida Statutes, as we find appellants’ arguments to be without merit. To the extent appellants argue that chapter 99-225, which amended section 57.105, is unconstitutional as violative of the single subject rule, we align ourselves with the first and third districts, which have rejected similar arguments. See Budget Rent-A-Car Systems v. Eddie Bennett, 847 So.2d 579 (Fla. 3d DCA 2003); Enterprise Leasing Co. v. Hughes, 833 So.2d 832 (Fla. 1st DCA 2002).

AFFIRMED.

STONE, POLEN and HAZOURI, JJ., concur.


author: STEVENSON, J.

text:
    T.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4283.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

T.H., a minor, appeals his adjudication and disposition for possession of a weapon on school property. We affirm the adjudication of delinquency, but reverse the disposition.

T.H. argues that neither the BB gun nor the paint ball gun found in his book-bag meet the statutory definition of a “firearm” or “weapon.” Both this court and the Second District have previously held that a BB gun has the capacity to inflict great bodily harm and, therefore, qualifies as a deadly weapon. See In re W.M., 491 So.2d 1263 (Fla. 4th DCA 1986); Depasquale v. State, 438 So.2d 159 (Fla. 2d DCA 1983). Further, here, Officer Ortiz testified that a shot from a BB gun can damage an eye and, if shot at close range, can penetrate the skin. The trial court did not err in finding that the BB gun was a weapon within the meaning of section 790.115(2)(b), Florida Statutes (2002), which prohibits the possession of such objects on school grounds.

T.H. also argues that the trial court erred in failing to order a predisposition report prior to committing him to a level six residential facility. We agree that this was error. Section 985.229, Florida Statutes (2002), requires that the court order and consider a predisposition report if residential commitment is anticipated or recommended. See M.B. v. State, 720 So.2d 321 (Fla. 4th DCA 1998). The State invites this court to affirm the level six commitment, arguing that although there was no predisposition report, the Department of Juvenile Justice (DJJ) performed a multi-disciplinary staffing and representatives from the DJJ and the Department of Children and Families orally advised the court about the outcome of the staffing. In view of the mandatory language of the statute, such testimony, although properly considered, cannot serve as a substitute for the predisposition report in this case. See F.W. v. State, 777 So.2d 1100 (Fla. 2d DCA 2001). Here, the public defender represented to the court that she had no notice of the staffing, and there was nothing in the record to show that her office had been provided notice.

Accordingly, the adjudication of delinquency is affirmed. The disposition order is reversed and this case remanded with directions that the trial court either (1) obtain an on-the-record waiver of a predisposition report or (2) order and consider a predisposition report prior to final disposition.

AFFIRMED in part, REVERSED in part, and REMANDED.

POLEN and SHAHOOD, JJ., concur.


text:
    James RICH, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4187.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse Appellant’s sentence as a habitual violent felony offender, under section 775.084(1)(b), Florida Statutes, and remand for re-sentencing.

At the sentencing hearing, the state relied upon either Appellant’s last release from state prison or the fact that Appellant was on probation within five years of committing the instant offense. Because the state is required to provide record evidence of the dates in question, we cannot affirm on this record, notwithstanding that the dates are likely to be within the required time frame.

We recognize that it appears from the date of the offense and the prosecutor’s comments to the court that such is the case, and that Appellant was on probation following his release from prison when he committed this crime. However, this statement by counsel, alone, is insufficient to meet the state’s burden. See, e.g., Sanders v. State, 765 So.2d 161 (Fla. 2d DCA 2000). Further, although the record shows that the prosecution asked the court to take judicial notice of a court file, the record is silent as to the content of that file or whether the court, in fact, did so.

As we cannot determine what evidence was before the trial court, on remand, the court may again consider imposing a habitual violent felony offender sentence.

STONE, POLEN, JJ., and ROSENBERG, ROBERT, Associate Judge, concur.


author: FARMER, C.J.

text:
    David FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1269.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2003.
    Debra Kay Cohen, North Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

We affirm in spite of defendant’s attack on the validity of the Three-Strike Violent Felony Offender Act, chapter 99-188, Laws of Florida. We have resolved the issue of a single subject violation in favor of the constitutionality of the Act. Hernandez-Molina v. State, No. 03-215, 860 So.2d 483, 2003 WL 22715773 (Fla. 4th DCA Nov. 19, 2003). In affirming this case, we also certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), as we did in Hernandez-Molina.

GUNTHER and STONE, JJ., concur.


author: BARFIELD, J.

text:
    Timothy C. THORSEN, Appellant, v. Lisa E. THORSEN, Appellee.
    No. 1D02-4029.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2003.

      E. Jane Brehany, Pensacola, for Appellant.
    Ross A. Keene, of Beroset & Keene, Pensacola, for Appellee.
   BARFIELD, J.

Timothy C. Thorsen (Appellant) appeals portions of a final judgment dissolving his marriage to Lisa E. Thorsen (Appellee). We affirm the award of permanent periodic alimony to Appellee and the designation of Appellee as primary residential parent. We also find that the trial judge did not abuse her discretion in ordering the sale of a boat. We reverse, however, the portions of the final judgment regarding application of proceeds from the sale of the boat and the award of one-half of the equity in the home to Appellant.

At the time of the final hearing, foreclosure proceedings were pending with regard to the marital home. The trial judge attempted to allocate assets and liabilities both in the event the marital home was sold as a result of the foreclosure proceedings or in the event the parties were able to retain the home. In the findings of fact, the trial judge stated that Appellee would be responsible for the entire debt on the home if the parties retained the asset and that Appellant would be entitled to one-half of the equity in the home as of September 2002 which could be paid from Appellee’s one-half of the profit from the sale of the boat, if any, or in such a manner as agreed to in writing by the parties. In the decretal portion of the order, the trial judge ordered that if the parties were able to retain the home, Ap-pellee would be responsible for the debt owed on the home, Appellant would be awarded one-half of the equity in the home as of September 2002, and that the boat be sold and any proceeds (after payment of the loan for which the boat was used as collateral) be applied toward a debt secured by a second mortgage on the marital home. The final judgment is ambiguous regarding application of the net proceeds from the sale of the boat.

Additionally, there is no specific provision in the decretal portion of the judgment stating how or when Appellee must pay Appellant his one-half of the equity in the home, and it appears extremely unlikely based on the final hearing that the parties themselves will be able to agree. If any net proceeds are paid on the debt encumbering the home, it is unclear how Appellee would pay Appellant his one-half equity in the home. At the time of the final hearing, Appellee’s net income was $1,833.00 per month. The boat and the marital home were the only two assets with any real value. The trial judge observed in the final judgment that she did not believe Appellee would be able to maintain the mortgage payments unless she found different employment.

The final judgment is also ambiguous regarding allocation of marital debt. In the decretal portion of the order, the trial judge first states that Appellee will be responsible for the debt owed on the home if the home is retained, but later states that the debt secured by a second mortgage on the home will be split equally.

We therefore reverse the final judgment with regard to the distribution of proceeds from sale of the boat, allocation of debt owed on the home, and payment of Appellant’s one-half equity in the marital home. We remand with instructions for the trial judge to make specific rulings regarding these issues. The trial judge may receive any additional evidence deemed necessary for the proper resolution of the issues.

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

BENTON and VAN NORTWICK, JJ., concur.

      . Appellant represents in his brief that the parties were able to save the home from foreclosure and that Appellee continues to reside in the home. Although the trial judge did not abuse her discretion in ordering the sale of the boat, the trial judge may choose to reconsider this portion of the final judgment on remand depending on current circumstances.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Jennifer MASKER, Appellee.
    No. 5D03-2092.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellant.
    David D. Ege, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

This is the State’s appeal of the trial court’s order suppressing evidence consisting of urine test results on the authority of State v. Bodden, 27 Fla. L. Weekly D2382, — So.2d —, 2002 WL 31421575 (Fla. 2d DCA Oct.30, 2002), review granted, 853 So.2d 1071 (Fla.2003). We recently decided State v. Pierre, 854 So.2d 231 (Fla. 5th DCA 2003), in which we disagreed with Bodden, reversed the suppression order and certified conflict with Bodden. Following Pierre, we again reverse the appealed order and certify conflict with Bodden.

REVERSED and REMANDED.

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

      . This case was certified to be one of great public importance. See Fla. R.App. P. 9.160(e)(2).


text:
    Joel WILLIAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4078.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2003.

      Nancy A. Daniels, Public Defender and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Bryan Jordan, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We conclude that the defendant’s convictions for both trafficking in cocaine and possession of cocaine with intent to sell violate the double jeopardy clause of the Fifth Amendment to the United States Constitution. Consequently, we remand the case to the trial court with instructions to vacate one of these convictions.

The parties agree that a sentence for trafficking in cocaine and possession of the same cocaine with intent to sell would violate the double jeopardy clause, see Ford v. State, 749 So.2d 570, 571 (Fla. 5th DCA 2000); Johnson v. State, 712 So.2d 380 (Fla.1998), and that this is an issue that can be raised for the first time on direct appeal. See State v. Johnson, 483 So.2d 420, 421-423 (Fla.1986). The state argues that this defendant may not raise the double jeopardy violation, however, because he entered a plea to both offenses pursuant to a bargained — rather than a general — plea agreement. See Novaton v. State, 634 So.2d 607, 609 (Fla.1994).

While it is generally true that a defendant who enters a guilty plea may not challenge his convictions on double jeopardy grounds, an exception exists for situations in which the plea is a general one with no agreement as to the sentence the defendant will receive. See id. An agreement to a specific sentence or a specific sentencing benefit is a key element distinguishing a bargained plea agreement from a general one. Because this element is missing in the instant case, we conclude that the plea was not bargained for, but was merely an open plea.

The defendant entered a plea of guilty to both offenses without any agreement as to the sentences. The state had previously offered the defendant a formal substantial assistance plea agreement, but it withdrew this offer before the defendant decided to enter his plea. During the plea hearing, the state represented to the court that there was no substantial assistance agreement, but that it would not interfere if the defendant “could work something out” with law enforcement. The judge made it clear to the defendant that there was no guarantee that he would receive a more lenient sentence if he worked with law enforcement, and that he would have no right to withdraw the plea once it was entered and accepted.

Given these facts, we conclude that the plea in this case was essentially an open plea. Although the defendant was given the opportunity to assist the drug task force on the chance that he might receive a more lenient sentence, there was no actual agreement regarding the sentence he would receive. Therefore, the exception for bargained plea agreements is not available, and the court must apply the general rule that both convictions violate the double jeopardy clause. See Novaton.

Remanded.

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

      . The exception also requires that the double jeopardy violation must be apparent from the record and that there must be no waiver of the violation. See Novaton, 634 So.2d at 609. The state does not dispute that these two additional elements exist in the present case.


author: PETERSON, J.

text:
    Andre’ PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2912.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.

      Andre’ Pittman, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PETERSON, J.

Andre Pittman appeals the trial court’s denial of his motion pursuant to Florida Rule of Criminal Procedure 3.800(a). Pittman alleges that the written sentence in his case conflicts with the trial court’s oral pronouncement and is therefore illegal. More specifically, he claims that the trial court orally sentenced him to 20 years, without stating that he was being sentenced as an habitual felony offender, but that the written sentence imposes an habitual felony offender sentence. He also claims that his non-habitual offender 20 year sentence exceeds the statutory maximum of 15 years for a second degree felony.

Pittman attached to his motion a copy of the written habitual offender sentence and a copy of two pages from the sentencing transcript in which the sentencing judge orally imposed a 20 year sentence without mentioning the habitual offender status. He also attached a copy of an unsigned guideline scoresheet showing a sentence range of 42.7 months to 71.2 months.

The State points out that Pittman challenged his habitual offender sentence in his direct appeal and in his prior rule 3.800(a) motion on grounds that he did not qualify for habitualization, but never argued that he was not, in fact, orally sentenced as an habitual offender. Therefore, the State urges that Pittman’s current position is inconsistent with his prior attacks and that he should be collaterally estopped from making this inconsistent claim. The trial court agreed, finding that the inconsistency was “dealt with on many previous occasions,” and ruled that the issue was barred by collateral estoppel.

A sentence is illegal if it imposes a punishment that no judge under the entire body of sentencing statutes could inflict under any factual circumstances. See State v. McBride, 848 So.2d 287 (Fla.2003); Carter v. State, 786 So.2d 1173, 1178 (Fla.2001). The Second District Court of Appeal in Cote v. State, 841 So.2d 488 (Fla. 2d DCA 2003), held that a judge is never authorized to impose a written sentence that increases the length of the sentence beyond the term orally pronounced and an attack on such a sentence is cognizable in a rule 3.800(a) motion. See also Polite v. State, 847 So.2d 1156 (Fla. 5th DCA 2003); Thomas v. State, 778 So.2d 429 (Fla. 5th DCA 2001) but see Luckey v. State, 811 So.2d 802 (Fla. 1st DCA 2002).

We disagree with the State that Pittman is estopped from raising the illegality of his sentence in his current rule 3.800(a) motion. As explained in McBride, collateral estoppel prevents identical parties from relitigating the same issues, but the record in the instant case does not establish that the issue raised now was previously litigated. The State appears to be arguing that a defendant is barred from raising an illegal sentence argument by failing to challenge it in a prior postconviction motion. It is clear, however, that a defendant may not agree to the imposition of an illegal sentence. See, e.g., Gonzales v. State, 816 So.2d 720 (Fla. 5th DCA 2002); Butler v. State, 774 So.2d 925 (Fla. 5th DCA 2001), approved, 838 So.2d 554 (Fla.2003); Wilson v. State, 752 So.2d 1227 (Fla. 5th DCA 2000). The State’s argument also runs counter to rule 3.800(a) which allows correction of an illegal sentence at any time and does not bar the filing of successive motions raising new claims. See McBride, 848 So.2d 287. Although it appears from the trial court’s earlier order that there may be portions of the sentencing transcript which would establish that the trial court did, in fact, sentence defendant as an habitual offender (but merely failed to repeat the designation when repeating the sentence at the end of the hearing), the trial court did not attach any portion of the transcript to this order.

We vacate the trial court’s order and remand so that the trial court can either attach portions of the record refuting Pittman’s claim or enter a corrected sentence that does not exceed the statutory maximum for a second degree felony.

ORDER VACATED AND REMANDED.

THOMPSON and TORPY, JJ„ concur.

      . Pittman was tried and convicted of attempted armed robbery with a firearm and was sentenced to 20 years as an habitual felony offender. His convictions were affirmed on appeal. See Pittman v. State, 736 So.2d 1205 (Fla. 5th DCA 1999). He then filed a rule 3.850 motion raising 23 claims. The motion was denied after an evidentiary hearing on one issue. On appeal, this court affirmed the denial of all but two claims and reversed and remanded for attachments of records or an evidentiary hearing. See Pittman v. State, 814 So.2d 1257 (Fla. 5th DCA 2002). The trial court again denied these two issues and this court per curiam affirmed. See Pittman v. State, 837 So.2d 999 (Fla. 5th DCA 2002).


author: WEBSTER, J.

text:
    FLORIDA FARM BUREAU GENERAL INSURANCE COMPANY, a Florida corporation, Appellant, v. Bobbi L. FISHER, Appellee.
    No. 1D02-5098.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2003.
    David J. Anderson, Jacksonville, for Appellant.
    S. Perry Penland, Jr., of S. Perry Pen-land, Jr., P.A., Jacksonville, for Appellee.
   WEBSTER, J.

Appellant seeks review of a summary-final judgment in a declaratory judgment action, holding that appellee is entitled to uninsured motorist benefits pursuant to an insurance policy issued by appellant to appellee’s mother. “Generally, interpretation of an insurance contract is a question of law, to be decided by the court.” Lee v. Montgomery, 624 So.2d 850, 851 (Fla. 1st DCA 1993). Such is the case here and, accordingly, our standard of review is de novo. Am. Equity Ins. Co. v. Van Ginhoven, 788 So.2d 388, 390 (Fla. 5th DCA 2001). By its clear terms, the policy affords uninsured motorist coverage only to (1) a “named insured”; (2) a spouse of a “named insured” “residing in the same household”; (3) a person related to the “named insured” or resident spouse “by blood, marriage or adoption” who resides in the same household; and (4) any other person occupying a “covered auto” of the “named insured” or resident spouse. It is equally clear that appellee does not fit within any of those categories. Accordingly, notwithstanding appellee’s ingenious argument to the contrary, she is not entitled to uninsured motorist benefits pursuant to the insurance policy issued by appellant. Because the trial court’s holding to the contrary is erroneous as a matter of law, we reverse and remand with directions that the trial court vacate the summary judgment entered in favor of appellee and enter summary judgment in favor of appellant.

REVERSED and REMANDED, with directions.

BARFIELD and BROWNING, JJ., concur.


text:
    Solomon N. FISHER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-326.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2003.

      Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Solomon N. Fisher, appeals an order modifying the terms of his probation. Fisher argues two points on appeal. First, he argues that the trial court erred in conducting a violation of community control hearing when he had never been sentenced to community control. Next, he argues that the trial court improperly modified the terms of his probation absent a finding that a violation of probation had occurred. On appeal, the State agrees that the trial court erred in modifying Fisher’s probation. We find that Fisher is entitled to relief on the first issue and therefore decline to address the second issue.

Fisher was arrested and charged with home invasion robbery while serving a five-year period of probation imposed in 1998. After a jury trial, Fisher was acquitted of the robbery charges. Upon his acquittal, Fisher remained in jail pending his violation of probation hearing. The trial court subsequently granted Fisher’s request for a bond reduction and released him on the condition that he comply with community control restrictions and wear a GPS bracelet.

Prior to Fisher’s VOP hearing, a probation officer assigned to Fisher’s ease determined that Fisher had exceeded the geographical limitations of his community control and filed a violation of community control affidavit. Upon conclusion of the VOP hearing, the trial court determined that Fisher was not guilty of violating his 1998 probation but was guilty of violating community control. As a result, the trial court entered an order modifying Fisher’s probation requiring him to serve six months of GPS-monitored community control followed by twelve months of conventional community control.

Fisher has never been sentenced to community control. The trial court’s order granting Fisher’s request for bond reduction can only be seen as placing restrictions upon his “travel, association, or place of abode” in accordance with Florida Rule of Criminal Procedure 3.131(b)(1)(C). As such, revocation of Fisher’s bond would have been the appropriate sanction. The trial court had no jurisdiction to conduct a violation of community control hearing and impose sanctions. Cf. Laster v. State, 805 So.2d 909 (Fla. 2d DCA 2001) (holding that the trial court could not sentence defendant for probation violation if defendant never received probation); Otero v. State, 793 So.2d 1115, 1115 (Fla. 4th DCA 2001) (holding that the trial court did not have jurisdiction to revoke defendant’s probation absent evidence that probation was part of his sentence); Tatum v. State, 736 So.2d 1214, 1214 (Fla. 1st DCA 1999) (holding that the trial court lacked jurisdiction to revoke probation after probationary period had expired).

Accordingly, we REVERSE and REMAND with directions for the trial court to vacate the order modifying Fisher’s probation.

ERVIN, BOOTH, and KAHN, JJ, concur.


author: ORFINGER, J.

text:
    Jean Alfredo BERNARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3760.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.

      Richard S. Rhodes, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Jean Alfredo Bernard appeals a restitution order entered following his plea of nolo contendere to dealing in stolen property, specifically a cable television box belonging to Time Warner Communications. Such boxes allow subscribers to access pay-per-view programming.

At the restitution hearing, a security manager for Time Warner testified that ten cable boxes, three of which had stickers identifying them as the property of Time Warner, and four remote controls, were recovered from Bernard’s apartment. Time Warner requested restitution of $830,400 for loss of cable service revenue. Over Bernard’s hearsay objection, the Time Warner security manager testified that Bernard told a non-testifying police officer that he sold twenty cable boxes over a five-year period. No evidence was introduced that these twenty cable boxes were the property of Time Warner or that they were ever used to receive unauthorized cable signals. Time Warner calculated its damages by assuming that all twenty cable boxes were used on pay-per-view channels twenty-four hours a day, at a rate of $240 per day, from the time of Bernard’s arrest to the date of the hearing. The only evidence that any cable box was used was Bernard’s testimony in court that he used one cable box for about one month. Defense counsel objected to the inclusion of loss of cable service revenue as being outside the scope of what Bernard had been charged with and pled to. Following the hearing, the trial court entered a restitution order totaling $832,114.28.

To its credit, the State filed a timely Motion to Correct Sentence, pointing out that Bernard had been charged with and pled nolo contendere to a crime regarding only one cable box. The State’s motion correctly observed that the trial court imposed restitution for the loss of cable service revenue relating to the nineteen other cable boxes Bernard allegedly admitted selling. The State argued that the restitution order should be amended to reflect only the amount lost as a result of the single cable box referenced in the information. In support of its argument, the State cited Noland v. State, 734 So.2d 464, 466 (Fla. 5th DCA 1999), which held that restitution cannot be ordered for a theft not encompassed within the charge contained in the information or for items outside the scope of the criminal prosecution. Therefore, the State argued that the restitution order relating to the loss of cable service revenue should be applied only to the theft of cable services for the single cable box Bernard admitted hooking up. Accordingly, the State concluded that the restitution award should be reduced to $43,634.28. Because the trial court failed to timely rule on the State’s Motion to Correct Sentence, the motion was deemed denied and this appeal ensued. See Fla. R.Crim. P. 3.800(b)(2).

The restitution statute, section 775.089(l)(a), Florida Statutes (2002), provides in pertinent part:

In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode.

Before ordering restitution, the trial court “must find that loss or damage is causally connected to the offense and bears a significant relationship to the offense.” Glaubius v. State, 688 So.2d 913, 915 (Fla.1997). The causation and significant relationship tests work in conjunction with, and not independently of, each other. See State v. Williams, 520 So.2d 276, 277 (Fla.1988). The trial court has the discretion to take into account all appropriate factors in arriving at a fair amount that will adequately compensate a victim for his or her loss and further the purposes of restitution. State v. Hawthorne, 573 So.2d 330, 333 (Fla.1991).

While it is the State’s burden to present evidence to support the value of restitution, see Glaubius, 688 So.2d at 915-16, where competent evidence exists to support a restitution award, an appellate court will not interfere with the reasonable exercise of the trial court’s discretion. Hercule v. State, 655 So.2d 1256, 1257 (Fla. 3d DCA 1995). However, a defendant cannot be required to pay restitution in excess of the damage his criminal conduct caused the victim. Fresneda v. State, 347 So.2d 1021, 1022 (Fla.1977).

Bernard pled nolo contendere to dealing in one stolen cable box. Bernard was not charged under section 812.15, Florida Statutes (2002), which makes the unauthorized reception of cable television services a crime. However, the trial court was authorized to order restitution for the loss or damage “causally connected to the offense and bearing a significant relationship to the offense.” Glaubius, 688 So.2d at 915.

The trial court did not abuse its discretion by ordering restitution for Time Warner’s lost revenue related to Bernard’s admitted use of one stolen cable box. See Watson v. State, 699 So.2d 835 (Fla. 3d DCA 1997) (holding that victim’s lost income was caused by theft of mixing boards and was proper item for restitution). Notwithstanding, we conclude, and the State conceded at oral argument, that the $788,880 award for loss of cable service revenue relating to the additional nineteen cable boxes must be reversed. Because Bernard was only charged in connection with selling one cable box, he can only be ordered to pay restitution for damages stemming from that offense. See Faulkner v. State, 582 So.2d 783 (Fla. 5th DCA 1991) (holding that defendant charged with dealing in stolen property consisting of one rifle could not be ordered to pay restitution for second, unrecovered rifle; loss of second rifle was not caused by charged offense); Noland, 734 So.2d at 466 (stating that restitution cannot be ordered for a theft not encompassed within the charge contained in the information or for items outside the scope of the criminal prosecution). Therefore, the amount of the restitution ordered relating to theft of cable services should be reduced by $788,880, the amount attributable to the nineteen boxes not charged in the information.

Any loss of cable service revenue stemming from Bernard’s criminal episode with the single cable box charged in the information arguably falls within the scope of section 775.089(l)(a)2. as “[djamage or loss related to the defendant s criminal episode.” However, even as to that single box, ordering restitution for the loss of service from the date of Bernard’s arrest to the date of his plea was an abuse of discretion. After Bernard was arrested, the cable box was recovered. Consequently, no one could have been illegally intercepting cable services with the box following his arrest.

Restitution awards cannot be speculative. See Glaubius, 688 So.2d at 913. The only evidence in the record of anyone actually intercepting cable services with any of the cable boxes was Bernard’s testimony that he hooked up his stolen box for about one month. In the absence of any other time period being established, and based upon Bernard’s testimony, we conclude that the court should properly order restitution based on thirty days of service at $240 per day for a total of $7,200.

We reverse in part the restitution order and remand with instructions to reduce the amount of the restitution award to a total of $8,914.28.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

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

      . § 812.019(1), Fla. Stat. (2001).

      . This amount reflects $41,520 for the theft of cable services on the single cable box charged in the information and includes the amount of investigatory costs of $1,714.28, as set forth in the original restitution order.

      . It is with some hesitation that we approve the $240 per day rate for the loss of cable service. We do so because pay-per-view charges are for access, and do not depend upon actual use or viewing. Bernard had access to such services for thirty days regardless of his actual usage.

      . This amount reflects the sum of the investigative costs in the amount of $1,714.28, and $7,200 for loss of revenue for cable services on the single cable box for thirty days.


author: MONACO, J.

text:
    Michael CARRION, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-3410.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.

      Robert Wesley, Public Defender, and Steven S. Graves, Assistant Public Defender, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   MONACO, J.

Michael Carrion seeks a writ of prohibition to prevent the trial court from proceeding with his criminal trial before he has had a mental health evaluation. In view of the due process implications raised by the facts, we elect to treat the petition as one seeking certiorari, and grant the writ.

Mr. Carrion was charged with a life felony, and the public defender’s office was appointed to represent him. Subsequently, the trial court entered an order recognizing that reasonable grounds had been presented to question Mr. Carrion’s competency to proceed with a trial. In the order the court appointed two mental health experts to examine Mr. Carrion to address the issue of competency, as well as the issue of sanity at the time of the alleged offense. There are a number of theories put forth regarding why Mr. Carrion was never examined, including that the mental health experts never received a copy of the order appointing them. In any event, the examination has never been performed.

In early September the case was assigned to a different attorney in the Public Defender’s Office. Shortly thereafter the State filed an amended witness list, and the case was set for a pre-trial conference. At the pre-trial conference Mr. Carrion’s newly appointed counsel moved for a continuance because discovery was not completed. The trial court denied the motion and set the case for trial. While preparing for trial, defense counsel learned that the mental health evaluations were never conducted. He immediately presented a written motion for continuance based on the lack of mental health evaluations. At the hearing on this motion the trial court again denied the continuance, apparently because Mr. Carrion had now returned to school. The court concluded that if Mr. Carrion could “function in the community at that level, he should be here for trial.” We granted a stay pending our review of this case.

Rule 3.210(a) of the Florida Rules of Criminal Procedure, reads, in part, as follows:

A person accused of an offense ... who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.

A trial, of course, is defined in subpara-graph (a)(1) of the rule as a “material stage.” The rule then prescribes the methodology for determining competency to proceed, saying in subparagraph (b) that if at any material stage of a criminal proceeding a court has reasonable grounds to believe that the defendant is not mentally competent to proceed, “the court shall immediately enter its order setting a time for a hearing to determine the defendant’s mental condition,” and appoint the appropriate experts to examine the defendant. There does not appear to be any discretion on the part of the trial court once it makes the determination that there are reasonable grounds to believe the defendant is not mentally competent. If the trial judge has reasonable grounds to believe that a criminal defendant is not competent to proceed, then the court must conduct a competency hearing. See Kelly v. State, 797 So.2d 1278, 1280 (Fla. 4th DCA 2001).

The reason for this rule is founded in a fundamental concept that has been recognized both by the United States Supreme Court and the Florida Supreme Court. Where the evidence presented entitles a criminal defendant to a competency hearing, the failure to hold such a hearing deprives the defendant of his constitutional right to a fair trial, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Jones v. State, 740 So.2d 520 (Fla.1999); see also Broomfield v. State, 788 So.2d 1043 (Fla. 2d DCA), review denied, 800 So.2d 616 (Fla.2001). Our jurisprudence teaches that we do not proceed against mentally incompetent persons.

In the present case the trial judge actually entered a written order invoking the competency proceedings described in Rule 3.210. Obviously, the trial judge had been presented with reasonable grounds to question the mental competency of Mr. Carrion at a pretrial stage. Once having come to this conclusion, he was required by the rule to follow the prescribed procedure and to hold a competency hearing. The judge’s subsequent extemporaneous evaluation of competency based on the petitioner’s return to school is insufficient to ensure that Mr. Carrion is not deprived of his due process right not to be tried while incompetent. See Brockman v. State, 852 So.2d 330 (Fla. 2d DCA 2003); Warren v. State, 543 So.2d 315 (Fla. 5th DCA 1989).

The State argues that writ relief is not available in this case because the petitioner has an adequate legal remedy; namely, that he can appeal if convicted. The supreme court has concluded on a number of occasions, however, that a hearing to determine whether a criminal defendant was competent at the time of trial cannot be held retroactively. See, e.g., Tingle v. State, 536 So.2d 202, 204 (Fla.1988); Scott v. State, 420 So.2d 595, 598 (Fla.1982). This matter takes on even greater moment where, as here, the trial court has previously determined that a competency examination is appropriate. As we find that all requisites to the granting of a petition for writ of certiorari are satisfied, see Carrow v. The Florida Bar, 848 So.2d 1283 (Fla. 2d DCA), review dismissed, 858 So.2d 330 (Fla. Oct. 1, 2003), we grant the petition and stay the trial of this case contingent upon the holding of a competency hearing.

PETITION GRANTED.

THOMPSON and TORPY, JJ„ concur.


text:
    M.A.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1628.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Nery G. Winter, Orlando, for Appellant.
    No appearance, for Appellee.
   ORFINGER, J.

M.A.W., a child, appeals the trial court’s order finding him guilty of three counts of third-degree felony battery, but withholding the adjudication of delinquency. While the evidence of MAW.’s guilt was in conflict, the trial court’s finding of guilt is supported by competent, substantial evidence. However, we do conclude that the trial court erred in ordering M.A.W.’s family to undergo a psychological evaluation and to avoid any contact with the victims or their families.

Before a court may order sanctions against the parents or guardian of a delinquent child, a petition for parental sanctions must be served on the parents or guardian in accordance with Florida Rule of Juvenile Procedure 8.031. That was not done here. Further, such an order would be inappropriate when, as here, adjudication of delinquency is withheld. See § 985.204, Fla. Stat. (2002).

We affirm the order under review, but remand this matter to the trial court with directions to strike that portion of the order that requires M.A.W.’s family (but not M.A.W.) to submit to a psychological evaluation and to refrain from contact with the victims or their families.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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

      . In full, section 985.204, provides:
      In carrying out the provisions of this chapter, the court may order the parent or legal guardian of a child adjudicated dependent, a child in need of services, or a delinquent child to attend a course of instruction in parenting skills, to accept counseling, or to receive other assistance from any agency in the community which notifies the clerk of the court of the availability of its services. Where appropriate, the court shall order both parents or guardians to receive such parental assistance.


author: SHARP, W., J.

text:
    Calvin K. McCULLOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1085.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Calvin K. McCullough, Crestview, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

McCullough appeals from the trial court’s order denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.800, to correct an illegal sentence. He seeks to challenge the propriety of his habitual offender sentence. We affirm because the motion is successive and without merit.

This same issue was presented to this court in Appeal No. 99-1081, when McCullough appealed from a summary denial of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800. This court affirmed without opinion. McCullough v. State, 736 So.2d 1204 (Fla. 5th DCA 1999). A defendant is not entitled to successive review of a specific issue which has already been decided against him. Anderson v. State, 779 So.2d 345 (Fla. 2d DCA 2000).

In this proceeding, McCullough simply adds the case of Ashley v. State, 850 So.2d 1265 (Fla.2003) as fresh authority for his argument. In that case the trial judge orally sentenced the defendant as an habitual felony offender. Three days later the defendant was returned to the court and resentenced as an habitual violent felony offender, and given a more onerous sentence. The Florida Supreme Court held this violated the defendant’s constitutional right against double jeopardy. It also held that the judge’s oral pronouncement controls, even if the judge is mistaken in pronouncing the defendant an habitual felony offender rather than an habitual violent felony offender.

In this case, McCullough was not resen-tenced, so Ashley is inapplicable. Further, the transcript from the sentencing hearing indicates the judge sufficiently “pronounced” McCullough an habitual offender, as the prior panel from this court concluded. The judge made the findings required for habitualizations and then he said: “[McCullough] is classified as an habitual felony offender and I will enter a written order with those findings of fact.”

We warn McCullough against filing additional improper and successive pleadings in this case. Should he choose to do so, this court will order him to show cause why he should not be barred from filing pleadings with this court challenging his conviction and sentence for this 1997 criminal case, in which he was convicted of carjacking and for which he received a thirty-year sentence as an habitual offender. See Noojin v. State, 855 So.2d 1157 (Fla. 5th DCA 2003); Camaroto v. State, 851 So.2d 772 (Fla. 5th DCA 2003); Thomas v. State, 824 So.2d 1061 (Fla. 5th DCA 2002).

AFFIRMED.

PETERSON and TORPY, JJ., concur.


text:
    Lawrence HOLLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-3038.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Lawrence Holley, Bristol, pro se.
    No Appearance for Respondent.
   SHARP, W., J.

Holley asks this court to issue a writ of mandamus directing the circuit court to render a written order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The record indicates a written order was signed by the circuit court and filed in open court. However, the order fails to comply with Florida Rule of Criminal Procedure 3.850(g), which requires “[a]ll orders denying motions for post-conviction relief shall include a statement that the movant has the right to appeal within 30 days of the rendition of the order.”

The time for bringing a timely appeal of this order has passed and the jurisdiction of the circuit court to enter a different order is questionable. Thus, mandamus is an inappropriate remedy. Cf. Rackley v. State, 758 So.2d 1250 (Fla. 5th DCA 2000) (mandamus to compel lower court to rule on pending motion denied where appeal of final order is pending on appeal and lower court has no jurisdiction). See also Stupelli v. Dimitrouleas, 616 So.2d 640 (Fla. 4th DCA 1993) (petition for writ of mandamus will not be granted when writ, if issued, would prove unavailing).

Under similar circumstances, this court has allowed a belated appeal when the trial court has issued an order which is not in compliance with rule 3.850(g). See, e.g., Kelly v. State, 740 So.2d 1260 (Fla. 5th DCA 1999); Wray v. State, 690 So.2d 687 (Fla. 5th DCA 1997); Lewis v. State, 678 So.2d 484 (Fla. 5th DCA 1996). See also Vlacos v. State, 730 So.2d 864 (Fla. 1st DCA 1999).

Accordingly, we elect to treat Holley’s petition for writ of mandamus as a petition for belated appeal and we order that the state show cause within 20 days why a belated appeal should not be granted in this case.

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


text:
    Andrew M. ODOM, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3295.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Andrew M. Odom, Okeechobee, pro se.
    No appearance for Appellee.
   MONACO, J.

Andrew Odom appeals the summary denial of his rule 3.800(a) motion. Mr. Odom was tried and convicted of robbery with a deadly weapon, and was sentenced in 1997, as an habitual felony offender to serve 20 years in state prison, followed by 20 years of probation. Mr. Odom asserts that the State improperly relied on his 1995 conviction for battery on a law enforcement officer as a predicate offense for habitualization. He argues that he had actually not been “sentenced” for that offense because although he was adjudicated guilty, he had only been placed on probation, and his probation had not been revoked at the time of the 1997 sentencing, even though a violation affidavit had been filed. Mr. Odom is wrong.

The habitualization statute at the time he was sentenced provided that “For the purposes of this section, the placing of a person on probation without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which he is to be sentenced was committed during such probationary period.” See § 775.084(2), Fla. Stat. (1995). As he had been adjudicated guilty of the earlier offense, it was properly treated as a predicate offense for habitualization. See Martin v. State, 795 So.2d 143, 145 (Fla. 3d DCA 2001); Render v. State, 742 So.2d 503 (Fla. 3d DCA 1999), review denied, 770 So.2d 160 (Fla.2000).

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

      . His conviction and sentence were affirmed by this court on direct appeal. See Odom v. State, 715 So.2d 1146 (Fla. 5th DCA 1998).


author: TORPY, J.

text:
    Richard F. SEIBERLICH, Appellant, v. Sherry E. WOLF, f/k/a Sherry E. Seiberlich, Appellee.
    No. 5D03-492.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Richard F. Seiberlich, Ocala, Pro se.
    No Appearance for Appellee.
   TORPY, J.

In this child support modification proceeding, Appellant sought a reduction in his support obligation based upon a reduction in his income and his having the child a “substantial amount of time” pursuant to a shared parental arrangement. The trial court granted the reduction based on Appellant’s income change but denied a further reduction due to the time sharing arrangement. Because the lower court based its decision to deny the further reduction on an incorrect legal premise, we reverse and remand this cause for further consideration.

In connection with their divorce proceeding, the parties entered into a settlement agreement in December of 2000, which was incorporated into a final judgment. Under the agreement, Appellee was given primary residential responsibility of the parties’ minor child, and Appellant was ordered to pay child support based upon the guidelines but without reduction due to substantial time sharing. Appellant was granted visitation amounting to slightly over 45% of the total overnights. In July of 2001, Appellant petitioned for a downward modification of his child support obligation alleging a substantial change in his circumstances and further requesting that the child support guidelines be followed.

On January 13, 2003, the trial court entered an order granting a reduction in child support but rejecting Appellant’s argument that he was entitled to a further reduction based on the fact that he met the statutory definition of having the child a “substantial amount of time.” § 61.30(ll)(b), Fla. Stat. (2001). The trial court’s reasoning was that Appellant chose “to settle the issues of child support and visitation by settlement agreement rather than try those issues to the court.” Apparently, the lower court believed that Appellant’s agreement to pay more support than required by law precluded him from seeking a modification. Appellant timely appeals this order.

The issues in this case are governed by section 61.30, Florida Statutes (2001), which provides in relevant part as follows:

61.30. Child support guidelines; retroactive child support
(l)(a) The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding for such support or in a proceeding for modification of an existing order for such support, whether the proceeding arises under this or another chapter. The trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. Notwithstanding the variance limitations of this section, the trier of fact shall order payment of child support which varies from the guideline amount as provided in paragraph (ll)(b) whenever any of the children are required by court order or mediation agreement to spend a substantial amount of time with the primary and secondary residential parents. This requirement applies to any living arrangement, whether temporary or permanent.

§ 61.30(1)(a), Fla. Stat. (2001) (emphasis supplied).

This section makes clear that the presumptive guideline amount must be applied in modification proceedings. Furthermore, the reduction in support due to substantial time sharing is mandatory. Migliore v. Harris, 848 So.2d 1250 (Fla. 4th DCA 2003); Santiago v. Santiago, 830 So.2d 922 (Fla. 4th DCA 2002). This case is unlike Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997), and its progeny, which preclude downward modification of support when the only basis for finding a change of circumstances is that the guideline formula results in lower payments. Here, the court found an independent basis for its determination that the circumstances had changed. Therefore, at that point, the court was obligated to consider all statutory criteria in arriving at the appropriate support amount including the time sharing arrangements. See Niemann v. Anderson, 834 So.2d 319 (Fla. 5th DCA 2003).

REVERSED and REMANDED.

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


text:
    STATE of Florida, Appellant, v. Ronald Alfred STANARD, Appellee.
    No. 5D03-458.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellee.
   GRIFFIN, J.

The State of Florida appeals the downward departure sentence of appellee, Ronald Stanard [“Stanard”]. The State charged Stanard with one count of burglary of a structure- — non-dwelling—and one count of possession of burglary tools. According to the arrest affidavit, the owner of a bagel shop had opened the back door to the store to do some loading and had left it unattended. When he walked to the back of the store again, he noticed that the walk-in freezer door was cracked open. The owner observed Stanard exit the freezer carrying two top round roast beefs. The owner confronted Stanard, who put down the meat, explained that he was hungry and then rode off on a bicycle. Police arrested Stanard and found a pair of tin snips, a small flashlight, a cutting razor, and multi-purpose pliers in his pocket.

Stanard entered a plea of not guilty. Subsequently, he decided to change his plea. At the change of plea hearing, Sta-nard requested that he be sentenced to a drug-rehabilitation program at Phoenix House that he had previously attended. The trial court noted that would be a downward departure. Stanard maintained the departure was warranted because he had cooperated with the State, he had admitted to the crime, he had harmed no one, he hadn’t actually broken into the business, and he had committed the offense in an unsophisticated manner. Sta-nard said that he was on drugs at the time that he had committed the offense and that he was hungry.

The State objected to the downward departure. It pointed out that Stanard’s drug addiction could not be a mitigating factor pursuant to section 921.0016(4), Florida Statutes (2002). Moreover, the State argued that Stanard had not given the State any information that could help it.

The court noted that Stanard did not actually break into the store and when confronted was not violent. The court then said:

[h]e didn’t do what we generally consider a burglary. He didn’t hurt the person. Although he was face to face with him. And talked to him. Although it’s not — in and of itself. He’s crying out for help for his drug problem. I know that in and of itself is not sufficient. But if they want to take him out of Phoenix. And put him in prison. And have somebody out on the street that does need help. Then that’s up to the State.

After the hearing ended, the trial court placed on the record as an additional reason for the downward departure that Sta-nard was remorseful.

The trial court sentenced Stanard to drug-offender probation for a period of five years (count I) and five years of drug-offender probation (count II) to be served concurrently.

On appeal, the State argues that the trial court’s finding that Stanard did not commit what is “normally considered” a burglary is both incorrect and inconsistent with his plea of guilty to the crime. Further, the legislature had expressly eliminated drug abuse/addiction as a basis for mitigation for crimes that occurred after July 1, 1997. In addition, the State argues that there was no evidence that Stanard committed the crime in an unsophisticated manner or that it was an isolated incident. The trial court’s finding that Stanard was remorseful was, in and of itself, insufficient for a downward departure.

We are unable to affirm the trial court’s downward departure sentence. First, no statutory ground exists to support it. The one that comes closest, subsection 921.0016(4)(j), fails because there is no support for the “isolated incident” element. Nor is there a non-statutory ground justifying departure. The fact that Stanard harmed no one and failed to commit additional crimes cannot be a ground for a downward departure. Stanard pleaded guilty to a non-violent crime, burglary, and the law requires he receive a guidelines sentence for it.

We do reject the State’s argument that Stanard should not be allowed to withdraw his plea. Even though Stanard appeared to enter an “open plea,” he did so based on a clear signal from the judge that he would depart downward.

It appears that, since his sentencing, Stanard may have been on drug offender probation for almost one year. In the event he has succeeded on probation, we express no view as to whether that might be an appropriate ground for downward departure.

REVERSED and REMANDED.

SHARP, W., and TORPY, JJ„ concur.

      . § 810.02(1), (4), Fla. Stat. (2002).

      . § 810.06, Fla. Stat. (2002).


text:
    Aurelia RUIZ, Appellant, v. CITY OF ORLANDO, Appellee.
    No. 5D03-248.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Michael Manglardi, of Attorneys Trial Group, Orlando, for Appellant.
    Walter A. Ketcham, Jr., and Ramon Vazquez, of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for Appellee.
   GRIFFIN, J.

Appellant, Aurelia Ruiz [“Ruiz”], appeals the trial court’s dismissal of her suit against the City of Orlando [“the City”] because she had attempted to perpetrate a fraud on the court. Because the record does not establish fraud on the court, we reverse.

Seventy-two-year-old Ruiz filed a complaint against the City alleging that it negligently repaired or maintained a section of Mercado Ave. She claimed that she was injured when the vehicle in which she was a passenger hit a pothole, or dip, in the road.

When the City deposed Ruiz, she claimed to have suffered re-injury of a previous prolapsed vagina and a back injury. Defense counsel asked:

Q. Before your accident of September 5, 2000, had you ever suffered an injury to your back?
A. No.
Q. Had you ever been told that you had a compression fracture or a broken vertebra in your back before this accident?
A. No. I had an accident — excuse me. I had an accident in 1963, but it didn’t cause any injury to the back, it caused injury to the neck bone.
Q. Was it an auto accident?
A. Yeah.

Ruiz said she could not remember the name of the hospital on Long Island where she had been treated in 1963. When counsel asked Ruiz if she had ever had any back problems, as opposed to an “injury,” she replied “I have arthritis.” She testified that her family doctors treat her for the arthritis with painkillers.

The City filed a motion to dismiss with prejudice alleging that Ruiz had committed fraud regarding her medical history. The City alleged that in her July 31 deposition, Ruiz had denied that she had suffered a back injury prior to the September 5 accident. Although Ruiz had admitted to being' in an automobile accident in 1963, she said that only her neck, and not her back, had been injured. The City argued that Ruiz’ medical records proved that she had injured her “back” in the 1963 accident.

The City attached to its motion the excerpt from Ruiz’ deposition. The City also submitted a copy of a Florida Hospital Emergency Physician Record, which appears to have been completed based on information received from Mrs. (or Mr.) Ruiz on the day of the pothole accident. The phrase “prior back injury” is circled under the “past history” section and “1963” is written next to it. The phrase “prior back pain” was also circled with arthritis written underneath it. The report also contains a notation under “similar symptoms” that Ruiz had a history of arthritis.

The City also submitted a computer generated copy of a lumbrosacral spine exam done the day of the accident. Dr. Galen C. Le, M.D., a radiologist, found that Ruiz’ exam showed a “mild to moderate compression fracture of T12 upper endplate which is probably old ... There is mild narrowing of the L2-3 discs.... There is diffuse osteopenia. There is mild scoliosis of the lumbar spine, convexed to the left. Mild spurring is noted along the lumbar spine laterally.”

The City also submitted a patient history for Ruiz that was written in Spanish and dated June 11, 1993. A translator provided a written translation of several statements in which Ruiz stated that she had a previous automobile accident in which her neck and back “suffered much.”

Dr. F.J. Schroeder, an orthopedic surgeon who saw Ruiz after the accident, noted in his report that Ruiz’ x-rays reveal that she had a compression fracture at T-12, age undetermined. He also noted, however, that upon review of a lateral x-ray of the thoracolumbar spine which revealed the compression fracture at T-12, he suspected that it was acute.

Based on this record, the trial court found that Ruiz had committed fraud on the court and dismissed her lawsuit. During the hearing, the court remarked that Ruiz’ “lengthy medical records suggest to me that she was well aware of her back pain and that she deliberately concealed it. And when asked twice about it in this deposition, she declined to say that she had the back injury. She said she had arthritis.”

Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998), is the leading case in this district governing the dismissal of civil lawsuits based on fraud. In Cox, we anticipated, although we apparently underestimated, the seductive power of this remedy. We took pains to try to express how narrow it should be:

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994).

Id. at 46. Perhaps, by finding that the trial court’s order of dismissal in Cox was within the limits of the trial court’s discretion, we sent a mixed message. As Judge Casanueva pointed out in Jacob v. Henderson, 840 So.2d 1167, 1170 (Fla. 2d DCA 2003), the decisions of trial courts are given less deference when the record on which the decision is based is the same. In Cox, we expressed doubt about the trial court’s decision to dismiss, but because it was a very close case, we deferred to the trial judge’s judgment. 706 So.2d at 47.

Cox presented an extremely unusual fact pattern, wholly unlike the more conventional impeachment issues that have shown up in some more recent decisions, including this case. In Cox, there was a significant amount of evidence suggesting that the court could not even be confident of who the plaintiff was, much less what had happened to her. In that case, the false information given was pervasive, repeated and under oath.

Whatever facts may reach the narrow test set out in Cox, this case does not come close. Thus far, the record suggests only that Mrs. Ruiz has made conflicting statements. It is not proved that she has falsely testified to the true extent of her injuries in 1963 or that she is guilty of a knowing misrepresentation. As Judge Ca-sanueva noted about the Jacob dismissal, this evidence wouldn’t even support a summary judgment or directed verdict. As far as we can tell, Mrs. Ruiz was not re-deposed to admit, deny or explain the fraud claim and there is no other evidence in this record to show the true extent of her injuries in 1963.

Except in the most extreme cases, where it appears that the process of trial has itself been subverted, factual inconsistencies, even false statements are well managed through the use of impeachment and traditional discovery sanctions. See Amato v. Intindola, 854 So.2d 812 (Fla. 4th DCA 2003). The record in this case does not demonstrate clearly and convincingly a knowing and unreasonable scheme to interfere with the judicial system’s ability to impartially adjudicate the claim of Mrs. Ruiz. Id. We accordingly reverse and remand for reinstatement of the lawsuit.

REVERSED and REMANDED.

SHARP, W„ and PETERSON, JJ., concur.

      . Osteopenia is a decrease in bone mass.