author: STONE, J.

text:
    Vincent SCANES, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1324.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Rehearing Denied Aug. 4, 2004.

      Vincent Scanes, Polk City, pro se.
    No appearance required for appellee.
   STONE, J.

We affirm an order summarily denying Scanes’ motion to correct an illegal sentence filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure.

Following a jury trial, Scanes was declared a habitual felony offender and sentenced concurrently to thirty years in prison on two second-degree felonies.

Scanes contends that his thirty-year sentences exceed the appropriate statutory maximum for second-degree felonies because the trial court did not orally sentence him “as ” a habitual felony offender. Specifically, the court held him to be a habitual felony offender and concurrently sentenced him to the enhanced sentence, but did not state that the thirty-year sentences were imposed on Scanes “as” a habitual felony offender.

The transcript reflects:

.... I declare and find the Defendant to be a habitual felony offender pursuant to Florida Statute 775.084.
The Court herein sentences the Defendant as to Count I and Count II each to thirty years in the Florida State Prison and to run concurrent and not consecutive to each other with credit for time served....

In Evans v. State, 675 So.2d 1012, 1015 (Fla. 4th DCA 1996), this court held that the trial court’s clarification of sentence two days after oral pronouncement, to reflect the defendant’s habitual offender status, was a violation of the defendant’s double jeopardy rights and constituted reversible error. There, , the oral pronouncement clearly did not reflect the trial court’s intention to sentence Evans as a habitual offender, notwithstanding the fact that the trial court’s failure to include the habitual sentencing in its oral pronouncement may well have been an oversight. Id.

In Ashley v. State, 850 So.2d 1265, 1266 (Fla.2003), the trial court, three days after sentencing the defendant as a habitual felony offender, imposed a habitual violent felony offender sentence along with a mandatory minimum. There, the supreme court concluded that the later sentence was a double jeopardy violation. Id. at 1269.

Here, it is clear from the plea colloquy, the written habitual felony offender finding, and the written sentence, that the trial court intended to, and did, contemporaneously sentence Scanes as a habitual felony offender. “Magic words” are not necessary to establish what the sentencing court intended. See O’Neal v. State, 862 So.2d 91, 91-92 (Fla. 2d DCA 2003); Yates v. State, 823 So.2d 273, 274 (Fla. 5th DCA 2002), rev. denied, 842 So.2d 848 (Fla.2003).

GUNTHER and STEVENSON, JJ„ concur.

      . We recognize that this court has declared that the only kinds of illegal sentence challenges cognizable under the rule “are those that are illegal because they exceed the maximum ..., those that were unconstitutionally increased after they had been imposed, ... those for which no record, earned jail credit was given,” Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999), holding modified by Austin v. State, 756 So.2d 1080 (Fla. 4th DCA 2000), and habitual sentencing imposed for an offense not subject to habitualization as a matter of law under any set of factual circumstances. See Carter v. State, 786 So.2d 1173 (Fla.2001). We consider the issue raised here to be a claim that the sentence was “unconstitutionally increased” after it was imposed. We also distinguish this claim from those asserting a discrepancy between the oral and written sentence, which must be alleged in a timely motion under rule 3.850. See Gardner v. State, 707 So.2d 945 (Fla. 4th DCA 1998).


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Tiffany Sue ROSE, Clifford Lavond Green, Thomas Antwan Mayfield, Appellees.
    Nos. 2D03-3943, 2D03-4480, 2D03-4510.
    District Court of Appeal of Florida, Second District.
    June 30, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellants.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellees.
   WHATLEY, Judge.

The State appeals the orders dismissing the informations filed against Tiffany Sue Rose, Clifford Lavond Green, and Thomas Antwan Mayfield (the Appellees) charging them with violating section 812.155(3), Florida Statutes (2001), for failing to return leased property valued at $300 or more to the lessor with the intent to defraud. The trial court found in its order that the statute is unconstitutional because it creates a special law, which is prohibited by article III, section 11(a) of the Florida Constitution. We reverse.

The issue of whether a statute is a special law or a general law is subject to de novo review. Schrader v. Florida Keys Aqueduct Auth., 840 So.2d 1050 (Fla.2003). Statutes are presumed to be constitutional, and all reasonable doubts as to their validity are resolved in favor of their constitutionality. In re Estate of Caldwell, 247 So.2d 1 (Fla.1971).

The Florida Supreme Court has explained the distinction between special and general laws as follows:

[A] special law is one relating to, or designed to operate upon, particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal; a local law is one relating to, or designed to operate only in, a specifieally indicated part of the state, or one that purports to operate within classified territory when classification is not permissible or the classification adopted is illegal.
A general law operates universally throughout the state, or uniformly upon subjects as they may exist throughout the state, or uniformly within permissible classifications by population of counties or otherwise, or is a law relating to a state function or instrumentality.

State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237, 240 (1934), quoted in Schrader, 840 So.2d at 1055 (citations omitted).

In moving to dismiss the informa-tions filed against them, the Appellees argued that section 812.155(3) is a special law pertaining to three of the twenty-one subjects about which section 11(a) of the Florida Constitution prohibits special laws: rules of evidence in any court, punishment for a crime, and conditions precedent to bringing any civil or criminal proceeding. Art. Ill, § 11(a)(3), (4), (7). At the hearing on the motions to dismiss, the Appel-lees pointed out that section 812.155(7) requires as a prerequisite to prosecution that a notice must be printed on all rental agreements advising lessees that the failure to return property and pay all amounts due upon expiration of the rental period is prima facie evidence of intent to defraud punishable as either a misdemeanor or a felony. The Appellees argued that the legislature added this condition precedent at the behest of the Rental Dealers’ Association and that the legislature was helping the Association write its contracts. They further noted that the statute sets forth a punishment for the offense and establishes that failure to return property within five days of receiving a demand therefor is prima facie evidence of fraudulent intent. The Appellees concluded that the statute was a prohibited special law.

None of the points raised by the Appel-lees reveal section 812.155 to be a prohibited special law — it does not operate only upon particular persons or things nor does it operate only in a specially indicated part of the state. See Harris, 120 Fla. 555, 163 So. 237. Rather, section 812.155(3) operates on all those persons who fail to return leased property under the circumstances specified in the statute. See Dep’t of Legal Affairs v. Sanford-Orlando Kennel Club, Inc., 434 So.2d 879, 881 (Fla.1983) (“A general law operates uniformly ... because every person brought under the law is affected by it in a uniform fashion.”).

Accordingly, we hold that section 812.155(3) is not a constitutionally prohibited special law, and we reverse the order dismissing the informations filed against the Appellees and remand for further proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA and SALCINES, JJ., Concur.

      . Section 812.155(3) makes it a second-degree misdemeanor to fail to return property valued at less than $300.


author: CASANUEVA, Judge.

text:
    Clyde Alfonso WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2662.
    District Court of Appeal of Florida, Second District.
    June 30, 2004.
    James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Clyde Alfonso Washington was tried before the bench for possession of cocaine and possession of a firearm by a convicted felon. The trial court found him guilty of both crimes and, further, that he actually possessed the firearm. Based on this finding, the trial court imposed a minimum mandatory sentence of three years pursuant to the 10/20/Life statute, section 775.087(2)(a)l, Florida Statutes (2002). See Bundrage v. State, 814 So.2d 1133 (Fla. 2d DCA 2002). We affirm in part and reverse in part.

Although Mr. Washington’s possession of the firearm may be termed “actual,” it was not found on his person. Rather, it was found in his bedroom closet during the execution of a search warrant. Mr. Washington, although admitting later that he had put the firearm there several weeks earlier, was standing outside his home when the police officers arrived with the search warrant, and he remained there during the ensuing search. We agree with our sister court in Johnson v. State, 855 So.2d 218, 222 (Fla. 5th DCA 2003), that the proper construction of the 10/20/Life statute requires that the firearm be carried on the person before the minimum mandatory term is applicable. The State has properly conceded this error in Mr. Washington’s sentencing.

We affirm the convictions and overall sentence, reverse the minimum mandatory portion of the sentence, and remand for the trial court to strike the minimum mandatory designation. Mr. Washington need not be present when the trial court corrects the sentencing documents. See Irons v. State, 851 So.2d 798 (Fla. 2d DCA 2003).

WHATLEY and SALCINES, JJ., Concur.


author: SCHWARTZ, Chief Judge.

text:
    Christopher K. McCOY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1615.
    District Court of Appeal of Florida, Third District.
    June 30, 2004.
    Bennett H. Brummer, Public Defender and Roy D. Wasson and Annabel Majew-ski, Special Assistant Public Defenders, for appellant.
    Charles J. Crist, Jr., Attorney General and John D. Barker, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEPHERD, JJ.
   SCHWARTZ, Chief Judge.

Of the issues presented in this appeal from a conviction and 360-month sentence for armed robbery and related offenses, none have merit. The only one which warrants discussion arises from the undisputed fact that the guidelines scoresheet erroneously included points for prior juvenile adjudications. See Bryant v. State, 626 So.2d 1062 (Fla. 2d DCA 1993).

We do not require a new sentencing on this ground, however, because it is clear that the trial judge would have imposed the same sentence, which was well below the maximum permitted by both the correct and the incorrect scores, even upon a proper scoresheet. It is therefore unnecessary formally to choose between what we might otherwise think is the preferable view of the First District in Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001), that affirmance notwithstanding an excessive score is required unless it affirmatively appears that a remand would result in a lower actual sentence, and the conflicting position of the Second District in Anderson v. State, 865 So.2d 640 (Fla. 2d DCA 2004) and Wilson v. State, 877 So.2d 27 (Fla. 2d DCA Case no. 2D03-4313, opinion filed, May 28, 2004), that affir-mance results only when, as is true in this case, it is clear that the court would impose the same sentence if the scoresheet were corrected.

Affirmed.

      . The record of the sentencing establishes that the trial court deliberately chose the 360 month term as properly reflecting the term appropriate both for the defendant and the offense:

        To the extent that I didn't give the State their 474 or 457 state months, I'm hoping that, by the time Mr. McCoy turns in his late 30's early 40's, he will have gotten his GED, gotten alcohol counseling and at that time may be willing to be a useful member of society or not, in his 40's rather than his 50’s, as the State has desired.

      . It seems to us that Hummel is in accordance not only, as the First District states, with Heggs v. State, 759 So.2d 620 (Fla.2000), but with the general rule that it is the duty of the appellant to make harmful error clearly appear.

      . We may also observe that the differential in the permitted terms of imprisonment between the right and the wrong scoresheet appears to fall within the permissible percentage deviation suggested by Judge Altenbernd in his quasi-legislative view that the line between reversal and affirmance is to be drawn according to the magnitude of the mistake. See Anderson v. State, 865 So.2d 640, 643-44 (Fla. 2d DCA 2004)(Altenbernd, C.J., concurring).


author: PER CURIAM.

text:
    Martin S. ROSENBLOOM, Esq., Petitioner, v. GUARDIANSHIP OF Benjamin SCHLEIDER, Respondent.
    No. 4D04-1449.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Rehearing Denied Aug. 4, 2004.
    Frederick A. Goldstein, Ft. Lauderdale, for petitioner.
    Steven G. Glickstein, Tamarac, for respondent.
   PER CURIAM.

This petition for writ of prohibition is granted as the trial court lost jurisdiction to consider the untimely motion for rehearing filed by respondent. Pressler v. Pressler, 588 So.2d 74 (Fla. 4th DCA 1991) and cases cited; Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1, 4 (Fla.1970) (order granting untimely motion for rehearing is “null, void, and completely without effect”).

FARMER, C.J., KLEIN and TAYLOR, JJ., concur.


author: WALLACE, Judge.

text:
    Ronald E. DAHLY, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, and Eric Olsen, Richard Coffey, Julia Hermelbracht, Sue Gray, and Harriett Powell, Appellees.
    No. 2D03-3116.
    District Court of Appeal of Florida, Second District.
    July 2, 2004.

      Ronald E. Dahly, pro se.
    Viviana I. Pedroso of Harbsmeier, De-Zayas, Appel & Harden, L.L.P., Lakeland, for Appellees.
   WALLACE, Judge.

Ronald E. Dahly appeals the partial summary judgment entered in favor of the Department of Children and Family Services, Richard Coffey, Eric Olsen, Julia Hermelbracht, Sue Gray, and Harriett Powell (collectively, “the appellees”) in his lawsuit arising from investigations by the Department of Health and Rehabilitative Services. We affirm the partial summary judgment to the extent that it is a final, appealable order.

Facts and Procedural History

From May 1992 until May 1995, Dahly served as executive director of a nonprofit organization known as “Wheelhouse,” which provided group homes and training programs to developmentally disabled adults in Lakeland, Florida. Although Wheelhouse was a private entity, it received funding and operated under the control and guidance of the Department of Children and Family Services, formerly known as the Department of Health and Rehabilitative Services (“the Department”). In 1998, Dahly filed a civil action for damages against the Department, several of its employees, and other individuals. In 2000, Dahly filed a twelve-count revised second amended complaint alleging, among other things, that Department officials, acting in their personal capacities, committed tortious conduct leading to the filing of criminal charges against Dahly and deprived Dahly of his constitutionally protected rights in connection with his termination as Wheelhouse’s executive director. Additionally, the complaint alleged negligence by the Department during the course of these events.

In 2001, the trial court granted summary judgment on nine counts pertaining to the appellees. However, the trial court’s order lacked specific findings of fact and conclusions of law to permit appellate review on the merits. In 2002, this court reversed the summary judgment and remanded for the trial court to enter an order stating the grounds that support summary judgment on each count. Dahly v. Dep’t of Children & Family Servs., 826 So.2d 532, 533 (Fla. 2d DCA 2002).

On remand, the trial court vacated its prior order, and the appellees filed a second amended motion for partial summary-judgment. After a hearing on the motion in May 2003, the trial court granted summary judgment in favor of the appellees on all counts pertaining to them except count six, which sought to hold Coffey and Olsen liable for malicious prosecution. This appeal followed.

Rule 9.110(k)

Our authority to review a partial summary judgment is derived from Florida Rule of Appellate Procedure 9.110(k). The order under review finally adjudicated eight of the twelve counts of Dahly’s revised second amended complaint. Three counts remain pending below. When an appeal is taken from a summary judgment that does not dispose of all of the parties or causes of action in a lawsuit, this court applies a three-part test to determine our authority under rule 9.110(k) to review the judgment: (1) Could the cause of action disposed of by the partial summary judgment be maintained independently of the other remaining causes of action? (2) Were one or more parties removed from the action when the partial summary judgment was entered? (3) Are the counts separately disposed of based on the same or different facts? Szewczyk v. Bayshore Props., 456 So.2d 1294, 1296 (Fla. 2d DCA 1984).

We have applied this test to each of the causes of action at issue in this appeal and conclude that we are not authorized to review the summary judgment entered in favor of Coffey and Olsen on count seven of Dahly’s complaint because of its relationship to count six pending below. Count seven is an action for defamation against Coffey and Olsen for statements they made in the course of investigations into Medicaid mismanagement or fraud at Wheelhouse. Count six is an action for malicious prosecution against Coffey and Olsen for their role in the Medicaid fraud investigation leading to Dahly’s arrest for grand theft, a charge which was later dismissed and expunged from Dahly’s record. The trial court found that a genuine issue of fact existed with regard to count six and declined to grant summary judgment.

Counts six and seven are interrelated, arising from essentially the same operative facts and involving the same defendants and similar proof to satisfy the respective elements of each cause of action. Therefore, the summary judgment entered on count seven was nonfinal and nonap-pealable, and we do not have authority under rule 9.110(k) to review it at this time. We express no opinion on the merits thereof. Except for the rulings on counts six and seven, the judgment under review is final and appealable in all respects.

Standard of Review

An order granting final summary judgment is subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). A party moving for a summary judgment must conclusively demonstrate that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510; Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). Once the moving party meets his burden, then the party opposing entry of a summary judgment must prove the existence of genuine triable issues. Holl, 191 So.2d at 43-44. If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party, and summary judgment must be denied. Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000). When considering the documents drafted by Dahly, a pro se litigant below and in this appeal, we have looked to the substance of his arguments and of the allegations of his “admittedly cumbersome” complaint.

Analysis

Dahly challenges the entry of summary judgment in favor of the appellees on counts four, five, nine, ten, and twelve of his revised second amended complaint. Count four alleged negligent performance of a mandatory duty against Coffey, a Department official with supervisory authority over Wheelhouse. The gist of count four was twofold: First, Coffey was negligent for authorizing a specific policy affecting residents at a Wheelhouse group home. Second, Coffey made false statements to Department investigators and the State Attorney when they investigated a complaint of abuse arising from the implementation of that policy. The investigation led to the filing of criminal charges against Dahly. He was subsequently acquitted of the charges.

Coffey is entitled to summary judgment on this count for two reasons: First, Dahly did not demonstrate that Coffey owed him a legal duty of care with respect to authorizing policies at Wheelhouse or with respect to Coffey’s participation in the abuse investigation and prosecution. Second, to the extent the substance of count four alleges a cause of action for defamation against Coffey for statements he made in connection with the abuse investigation and prosecution, the record conclusively demonstrates that Coffey is entitled to qualified immunity. Coffey clearly satisfied his initial burden to demonstrate that all of the statements at issue were qualifiedly privileged communications under the test set forth in Nodar v. Galbreath, 462 So.2d 803, 809 (Fla.1984). The burden then shifted to Dahly to demonstrate the possible existence of any triable issue that Coffey was not entitled to the presumption of good faith to which such qualifiedly privileged communications are accorded. See Thomas v. Tampa Bay Downs, Inc., 761 So.2d 401, 404 (Fla. 2d DCA 2000). This Dahly failed to do. When viewed in a light most favorable to Dahly, Coffey’s statements were not true. However, this fact alone was not sufficient to preclude summary judgment in Coffey’s favor on count four.

Counts nine and ten concern a different abuse investigation at Wheelhouse and involve Hermelbracht, Powell, and Gray. Hermelbracht, an investigator for the Department’s Adult Protective Services, investigated whether neglect by Wheelhouse was responsible for the death of one resident and an injury to another. Powell, a Department District Operations and Program Manager, wrote a letter to Wheelhouse’s board of directors that allegedly forced Wheelhouse to terminate Dahly immediately and to require that Wheelhouse not allow him to have any contact with Wheelhouse clients or staff members. Gray was the Department’s District Administrator. Dahly alleged that Hermel-bracht, Powell, and Gray violated his constitutionally protected rights in violation of 42 U.S.C. § 1983 (1994) and that they conspired to deprive him of such rights in violation of 42 U.S.C. § 1985. Viewing the facts in a light most favorable to Dahly, we find that Dahly failed to demonstrate the possible existence of any triable issue that Hermelbracht or Gray did anything to violate his constitutionally protected rights. Thus, Hermelbracht and Gray are entitled to summary judgment on counts nine and ten. The remaining question is whether Powell, by writing the letter to Wheelhouse’s board, may be held liable for a violation of § 1983.

Powell, as a mid-level Department official, belongs to the broad class of state executive officials who are entitled to assert qualified immunity in opposition to a federal civil rights lawsuit. Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity from a federal civil rights claim means that government officials performing discretionary functions are shielded from personal liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Id at 818, 102 S.Ct. 2727. Powell clearly satisfied her initial burden to demonstrate that she was performing a discretionary function as a Department official when she communicated with the Wheelhouse board. The burden then shifted to Dahly to demonstrate the possible existence of any triable issue that Powell’s conduct violated Dahly’s clearly established statutory or constitutional rights. See Stephens v. Geoghegan, 702 So.2d 517, 526 (Fla. 2d DCA 1997) (describing the two-step analysis of a qualified immunity defense). Dahly failed to establish the existence of any constitutionally guaranteed right that Powell’s conduct may have violated.

In count nine, Dahly contended that his sudden termination violated his Fourteenth Amendment due process right to some form of pre-termination notice and an opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542-47, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (holding that a public employee who can be discharged only for cause is entitled to at least some informal due process before he can be terminated). A public employee may establish the existence of a constitutional due process right by showing a legitimate expectation of continued employment, which must arise from “existing rules or understandings that stem from an independent source such as state law.” Id. at 538, 105 S.Ct. 1487. Dahly did not show that he had a legitimate expectation of continued employment as Wheelhouse’s executive director by virtue of a statute, contract, or some other rule providing that he could have been terminated only for cause, nor did he show that he was otherwise entitled to pre-termi-nation due process.

In count ten, Dahly contended that Powell’s letter directing the Wheelhouse board not to allow Dahly to associate with Wheelhouse clients or staff violated Dahly’s First Amendment right to free association. However, Dahly did not allege that he suffered adverse employment consequences for engaging in speech related to a political, social, or other concern to the community, nor did he allege an abridgment of his freedom to associate for the purpose of engaging in protected speech or religious activities or his freedom to enter into intimate or private relationships. See Bd. of Regents v. Snyder, 826 So.2d 382, 388 (Fla. 2d DCA 2002) (applying Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)); Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Because Dahly failed to establish the existence of any clearly established constitutional right affected by Powell’s conduct, Powell is entitled to summary judgment on counts nine and ten.

Counts five and twelve allege that the Department negligently supervised Coffey, Olsen, Hermelbracht, Gray, and Powell during the course of the events described in Dahly’s complaint. A governmental entity may be liable for negligence only where there is either an underlying common law duty or statutory duty of care with respect to the alleged negligent conduct. Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 917 (Fla.1985). “How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care.” Id. at 919 (identifying the categories of governmental activity that do not give rise to a duty of care). Taking as true Dahly’s allegations of misconduct by the Department’s agents, they were exercising discretionary power as Department officials. Thus the Department did not owe Dahly a duty of care with respect to its agents’ conduct. Although Dahly describes the Department’s responsibility to supervise its agents as a mandatory statutory duty, the nature of the power exercised by the Department’s agents remained discretionary. Because Dahly failed to demonstrate the possible existence of any triable issue concerning the Department’s negligence, it is entitled to summary judgment on counts five and twelve without the need for it to assert the doctrine of sovereign immunity to avoid liability. See Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989).

Conclusion

Consistent with our authority under rule 9.110(k), the final summary judgment entered in favor of the appellees is affirmed with regard to counts one, four, five, nine, ten, eleven, and twelve. We recognize as nonfinal the summary judgment entered in favor of Coffey and Olsen on count seven and do not review it at this time.

Affirmed.

FULMER and CASANUEVA, JJ„ concur.

      . See also Dahly v. Dep't of Children & Family Servs., 845 So.2d 350 (Fla. 2d DCA 2003) (ruling on Dahly's motion for review of an appellate costs order).

      . In addition to count six against Coffey and Olsen, it appears from the record that counts two and three against former Wheelhouse employee Oscar Sansoni remained pending in the trial court at the time of the entry of the partial summary judgment under review. Count eight against former Department employee Judy Carter was dismissed prior to the entry of the judgment under review.

      . Apparently, Dahly conceded to the trial court that summary judgment was proper with regard to count one, alleging negligent performance of a mandatory duty against the Department, and count eleven, alleging libel against Hermelbracht, Gray, and Powell. On appeal, Dahly does not challenge the entry of summary judgment on these counts.

      . The record does not conclusively demonstrate that Coffey was entitled to absolute immunity. See Fridovich v. Fridovich, 598 So.2d 65, 69 (Fla.1992) (holding that absolute immunity extends to statements made in the course of judicial proceedings but not to preliminary investigations prior to the institution of criminal charges).


author: PALMER, J.

text:
    Napoleon POWERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1389.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    Napoleon Powers, Lowell, pro se.
    No Appearance for Appellee.
   PALMER, J.

Napoleon Powers (defendant) appeals the summary denial of his rule 3.850 motion, arguing that his procedural due process rights were violated when he was designated as a sexual predator. He relies on Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), in which the Third District held Florida’s Sexual Predator Act to be unconstitutional on the basis that it fails to provide minimal due process. However, this court has held that the Act is constitutional and does not violate a defendant’s procedural due process rights. See Rickman v. State, 871 So.2d 310 (Fla. 5th DCA 2004). The other district courts are in accord. See Allen v. State, 29 Fla. L. Weekly D892, - So.2d -, 2004 WL 784677 (Fla. 2d DCA April 14, 2004); Frazier v. State, 29 Fla. L. Weekly D369, — So.2d -, 2004 WL 221043 (Fla. 1st DCA Feb.6, 2004); Dejesus v. State, 862 So.2d 847 (Fla. 4th DCA 2003).

Accordingly, we affirm the denial of the defendant’s rule 3.850 motion and certify conflict with Espindola.

AFFIRMED; CONFLICT CERTIFIED.

SAWAYA, C.J. and TORPY, J., concur.

      . See Fla. R.Crim. P. 3.850.


text:
    Salem LEFILS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1776.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2004.
    Salem Lefils, Orlando, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. Ray v. State, 782 So.2d 468 (Fla. 2d DCA 2001), review denied, 819 So.2d 138 (Fla.2002).

PLEUS, PALMER and MONACO, JJ., concur.


text:
    Louis Jeffery HOGGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1983.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2004.
    Louis Jeffery Hoggs, Bowling Green, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Polk v. State, 820 So.2d 456 (Fla. 5th DCA 2002); Freeman v. State, 773 So.2d 110 (Fla. 5th DCA 2000).

PALMER, ORFINGER and MONACO, JJ., concur.


text:
    Vernon JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1869.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2004.
    Vernon Jackson, Bushnell, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Ray v. State, 782 So.2d 468 (Fla. 2d DCA 2001), review denied, 819 So.2d 138 (Fla.2002).

GRIFFIN, PALMER and MONACO, JJ., concur.


author: HAZOURI, J.

text:
    Cornet McNARRIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1156.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      Carey Haughwout, Public Defender, Peggy Natale, Assistant Public Defender, and Christine Geraghty, Certified Legal Intern, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Cornet McNarrin was charged with two counts of exploitation of an elderly person or disabled adult in violation of sections 825.103(1) and (2), Florida Statutes (2002). Count I arises from an incident that occurred on May 18, 2001. Count II arises from an incident that occurred on May 23, 2001. The jury found McNarrin not guilty on Count I, but guilty on Count II. McNarrin argues that this court should reverse the conviction on Count II because the State failed to present sufficient evidence to establish the necessary intent. We agree.

McNarrin was employed as a caregiver for Frances Debrovner, a ninety-two year old woman. On May 23, 2001, McNarrin went by herself to a Bank of America branch located in Lauderdale Lakes. She presented a check signed by Mrs. Debrovner made out to “cash” in the amount of $6,000. The bank accepted the check and McNarrin received the cash. The State alleged that McNarrin exploited Mrs. Debrovner with the intent to deprive her of the funds received on that date in violation of section 825.103. McNarrin’s defense at trial was that she cashed the $6,000 at Mrs. Debrovner’s request because Mrs. Debrovner wanted to open an account with the assisted living facility where she was residing.

Section 825.103 defines “exploitation of an elderly person” as follows:

(a) Knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:
1. Stands in a position of trust and confidence with the elderly person or disabled adult; or
2. Has a business relationship with the elderly person or disabled adult; or
(b) Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent.

Pursuant to the language in the statute, intent is a necessary element under both subsections.

At trial, the State presented only circumstantial evidence to establish McNarrin’s intent. Where the only proof of guilt is circumstantial, a special standard of review applies. A conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187 (Fla.1989); Dupree v. State, 705 So.2d 90, 94 (Fla. 4th DCA 1998). A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.

This case is controlled by Everett v. State, 831 So.2d 738 (Fla. 4th DCA 2002). In Everett, the defendant was charged with exploitation of the elderly and grand theft. Id. at 739. The evidence at trial established that the defendant had gone with her godmother, an elderly woman, to the bank and closed out one of the woman’s accounts. They received $38,604.79 from the account. Id. at 740. Department of Children and Families (DCF) investigators became suspicious. When DCF questioned the defendant, she claimed that she used these funds to fix the woman’s home. The defendant was able to provide receipts for about half of the funds spent, but was unable to account for the other half. She told the DCF investigators that she had no knowledge of the whereabouts of the rest of the money. However, at trial, the defendant alleged that she had returned the unaccounted for money to the woman who had then probably sent the money to a psychic. The jury convicted her on the exploitation of the elderly count.

On appeal, this court reversed on the basis that the state failed to present competent substantial evidence of exploitation from which the jury could exclude every reasonable, hypothesis except that of guilt. Id. at 741. The state presented no evidence contrary to the defendant’s theory that she used the missing money as claimed and returned the unaccounted-for money to the woman. This court stated:

Although there was evidence here that Everett knew of the victim’s failing mental capacity, there simply was no evidence from which the jury could reasonably conclude that Everett exploited the victim either by obtaining, or trying to obtain, the victim’s funds with the intent of temporarily or permanently depriving the victim of them. Here, there were no deposits into the defendant’s bank accounts, no unexplained sudden acquisition of property in the defendant’s name. In the end, Everett stated that any money which was not accounted for by a receipt, or her own recollection, was given to Frederick. The State presented no evidence inconsistent with this claim.

Id. at 742. Therefore, the state’s evidence was insufficient to legally establish that the defendant obtained or used the funds with the intent to temporarily or permanently deprive the woman of the funds. Id.

Similar to Everett, the State failed to present evidence regarding any deposits in McNarrin’s bank account or evidence regarding any unexplained sudden acquisition of property in McNarrin’s name. In addition, the State failed to present evidence from the assisted living facility to establish that Mrs. Debrovner did not in fact open up an account after May 23rd. It would appear a simple task for the State to have presented evidence that the $6,000 was never deposited in Mrs. Debrovner’s assisted living account. Therefore, we hold that the State failed to present evidence from which the jury could exclude every reasonable hypotheses except that of guilt. We reverse the conviction and direct the trial court to enter a judgment of acquittal on Count II and discharge McNarrin.

REVERSED.

GUNTHER and STEVENSON, JJ., concur.


text:
    Robert Henry MARTIN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D01-631, 4D02-4291.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Carey Haughwout, Public Defender, and Benjamin W. Maserang, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

On appeal, Robert Henry Martin alleges errors in the calculation of his sentence. He also argues that the trial court erred in denying his motion to vacate his guilty plea. Because we find that the trial court erred in calculating Martin’s sentence in regard to the scoring of his primary offense, we reverse and remand. We affirm on all other issues.

Martin pleaded guilty to six counts relating to events that occurred on May 11, 1997. Counts one through five were for the attempted second degree murder of a law enforcement officer with a firearm. The sixth count was for discharging a machine gun. The trial court entered a sentencing order in which it imposed concurrent life sentences on all counts and an eight-year mandatory minimum for possession of a firearm.

Martin then filed his first motion to correct his sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging a Heggs claim. The State conceded that Martin’s sentence was affected by Heggs and the trial court held a new sentencing hearing. After the hearing, the court again imposed concurrent life sentences on all counts and an eight-year mandatory minimum. The scoresheet reflects that this was a guidelines departure sentence. The departure was based on the trial court’s finding that the “[ojffense created substantial risk of death or great bodily harm to many persons or to one or more small children” and the “[ojffense [was] committed in order to prevent or avoid arrest, to impede or prevent prosecution for the conduct underlying the arrest, or to effect an escape from custody.” Martin then filed his notice of appeal as to this sentence with this court.

While the appeal was pending, Martin filed a second motion to correct sentence pursuant to rule 3.800(b)(2), arguing that the scoresheet used to sentence him on the Heggs claim contained errors. The trial court issued a new sentencing order after considering Martin’s motion to correct sentence. Martin was sentenced to six concurrent forty-eight year sentences and an eight-year mandatory minimum. The scoresheet from this sentencing reflects that a guidelines sentence was imposed. However, the trial court indicated at the hearing that the previously announced departure sentence was still in place. After this sentence was entered, Martin filed another motion to correct his sentence pursuant to rule 3.800(b)(2), alleging a calculation error. The trial court entered an agreed order on Martin’s motion to correct his sentence calculation error. The trial court imposed a sentence of five concurrent thirty-nine year sentences and an eight-year mandatory minimum. The only indication in the record is that this was a guidelines sentence.

The State has asserted that any scoresheet errors are harmless because the trial court imposed a departure sentence. Florida courts have recognized that a scoresheet error can be harmless if the trial court would have imposed the same sentence despite the error. Mooney v. State, 864 So.2d 60, 61 (Fla. 4th DCA 2003); Rubin v. State, 734 So.2d 1089, 1090 (Fla. 3d DCA 1999); see also Raley v. State, 675 So.2d 170, 175 (Fla. 5th DCA 1996) (stating that “[a] defendant’s sentence need not be reversed on the claim of a scoresheet error when a valid departure sentence was imposed”). The State’s argument rests on its contention that the trial court imposed a departure sentence. However, the record reveals that the most recent sentencing order imposes a guidelines sentence. Thus, this argument is without merit.

Martin has argued that the trial court incorrectly applied our decision in Peters v. State, 830 So.2d 191 (Fla. 4th DCA 2002) (en banc), because it scored all five counts for attempted second degree murder of a law enforcement officer with a firearm as primary offenses in calculating Martin’s sentence.- We agree and reverse and remand.

In Peters, this court stated “[w]e now hold that multiple counts of an identical charge, which is the primary offense, should be included as additional under primary offenses and not calculated as ‘additional offenses at conviction.’ ” Id. at 194. However, this holding applies to defendants sentenced under Florida Rule of Criminal Procedure 3.701, not defendants like Martin who were sentenced under Florida Rule of Criminal Procedure 3.702.

In Peters, this court, in determining the issue, first looked at Florida Rule of Criminal Procedure 3.701(d) which provides a definition of “primary offense” and discusses how various offenses should be scored under the guidelines. Id. at 193.

The relevant portion of rule 3.701(d) specifically states:

(3) “Primary offense” is defined as the offense at conviction that, when scored on the guidelines scoresheet, recommends the most severe sanction. In the case of multiple offenses, the primary offense is determined in the following manner:
(A) A separate guidelines scoresheet shall be prepared scoring each offense at conviction as the “primary offense at conviction” with the other offenses at conviction scored as “additional offenses at conviction.”
(B) The guidelines scoresheet that recommends the most severe sentence range shall be the scoresheet to be utilized by the sentencing judge pursuant to these guidelines.
(4) All other offenses for which the offender is convicted and that are pending before the court for sentencing at the same time shall be scored as additional offenses based on their degree and the number of counts of each.

This court found that this language in rule 3.701(d) was ambiguous as to whether additional counts of the same offense should be scored as primary offenses. Id. However, upon an examination of Florida Rule of Criminal Procedure 3.988(c), which provides a grid that is to be applied in conjunction with rule 3.701 and Peters’s specific charge of robbery, and the Sentencing Guidelines Commission Notes regarding the 1988 Amendments, this court found that it was clear that multiple counts were to be charged as primary offenses. Id. This court stated that the grid provided in rule 3.988(c) “clearly anticipated multiple counts of the same offense under ‘primary offense’ as it contains specific points for each of four counts of a primary offense and provides a method for calculating points when the counts exceed four in number.” Id. Furthermore, the Commission Note stated that “ ‘[i]n the event of multiple counts of the same distinct offense and degree of felony being scored as primary offense, it shall be scored as additional counts of the primary offense.’ ” Id. at 194. (quoting Sentencing Guidelines Commission Notes, Fla. R.Crim. P. 3.701(d)(4)). However, unlike the situation in Peters, in this case, the sentencing guidelines under rule 3.701 do not apply.

It is undisputed in this case that Martin is one of those defendants under Heggs who should be sentenced under the 1994 Sentencing Guidelines. Thus, as Martin is to be sentenced under the 1994 guidelines, Florida Rule of Criminal Procedure 3.702, which is specific to the 1994 guidelines, applies.

Unlike rule 3.701 discussed in Peters, rule 3.702(d)(3) states that a “ ‘[p]rimary offense’ is the offense pending for sentencing that results in the highest number of total sentence points. Only one offense may be scored as the primary offense.” (Emphasis added). The use of the words “one offense” would not appear to include multiple counts of the same offense. See Campbell v. State, 586 So.2d 84, 85 (Fla. 4th DCA 1991) (finding that the defendant should not be charged with two counts of possession of contraband in a state prison based on the possession of excess currency because “when there is a single occurrence of possession of excess currency as proscribed by the state, regardless of the amount involved, it is but one offense”); Waldecker v. State, 707 So.2d 777, 778 (Fla. 2d DCA 1998) (“Waldecker failed to stop at only one accident resulting in injury or death, even though more than one person was injured. This was but one offense; conviction on two counts violates the constitutional prohibition against double jeopardy.”); see also Black’s Law Dictionary 314 (5th ed.1979) (defining a count in part as “[a] separate and independent claim”).

However, even if “one offense” was construed to include multiple counts, this language is at least ambiguous and under the rule of lenity should be construed “most favorably to the accused.” § 775.021(1), Fla. Stat. (1997); see also Lewis v. State, 574 So.2d 245, 246 (Fla. 2d DCA 1991) (applying the rule of lenity to the guidelines in the Florida Rules of Criminal Procedure). Furthermore, the grid and the Commission Note this court relied on in Peters to find that multiple counts should be scored as primary offenses are not applicable to rule 3.702. The form associated with rule 3.702, located in rule 3.990, is unlike the grids in rule 3.988 in that it does not show a calculation method where there are additional counts of a primary offense. In fact, the form applicable to rule 3.702 located in rule 3.990 only has one blank for the primary offense. In addition, the Commission Note mentioned above is not stated in regard to rule 3.702. Thus, Peters does not apply to this situation and only one of Martin’s attempted murder counts should have been scored as a primary offense.

Accordingly, we reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

GUNTHER, STEVENSON and TAYLOR, JJ., concur.

      . In Heggs v. State, 759 So.2d 620 (Fla.2000), the Florida Supreme Court found that the 1995 Sentencing Guidelines were unconstitutional as the statute enacting them violated the single subject rule. Id. at 627. Thus, if a defendant whose offense was committed within the Heggs window period is adversely affected by the 1995 amendments made to the sentencing guidelines, he or she can make a Heggs claim and be resentenced under the 1994 guidelines. Id.


author: POLEN, J.

text:
    Walter CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-655.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.

      Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

This appeal arises out of a traffic stop at 2:30 a.m. on February 18, 2001. Appellant, Walter Clark, was clocked by radar at 89 miles per hour on Miramar Parkway in Broward County. Clark’s vehicle came to a stop whereupon he was asked for his license, registration and insurance. Soon thereafter, Clark took off running and the Miramar Police screamed stop and then took chase. The three officers on the scene finally caught up with and attempted to restrain Clark. At some point during the altercation, Clark struck one of the officers and his own momentum caused him to fall on that same officer. Now atop that officer, Clark bit him on the face, leaving a permanent scar.

Clark was charged in a five-count information with aggravated battery on a law enforcement officer, resisting arrest with violence, depriving an officer of means of protection, battery on a law enforcement officer and resisting arrest without violence. After a jury trial, Clark was convicted on aggravated battery on a police officer, two counts of resisting arrest without violence (one count was as a lesser included offense of resisting arrest with violence) and battery on a law enforcement officer. Clark was sentenced to fifteen years as a habitual offender for the aggravated battery charge, five concurrent years on the battery charge, and time served on the resisting arrest charges. For the reasons that follow, we reverse Clark’s conviction on the battery charge and remand for resentencing.

Clark argues that the trial court violated his double jeopardy rights by convicting him for battery and aggravated battery for actions arising out of the same incident. Contrarily, the State contends that the act of biting and the act of striking Officer Girona were separate and distinct criminal acts. “The proper analysis to determine whether offenses arise from the same criminal episode requires consideration of the following factors: 1) whether separate victims are involved; 2) whether the crimes occurred in separate locations; and 3) whether there has been a temporal break between the incidents.” Russo v. State, 804 So.2d 419, 420-21 (Fla. 4th DCA 2001) (citing Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001)). In Russo, this court held that Russo’s conduct of threatening the victim with a beer bottle and swinging a shovel at him was a single continuous incident, and thus double jeopardy barred a second aggravated assault conviction, where there was no temporal break, there was only one victim, and all of Russo’s conduct occurred at one location. Id. at 422. See Olivard v. State, 831 So.2d 823 (Fla. 4th DCA 2002)(Only one conviction could stand against defendant convicted of battery and aggravated battery, where defendant committed both against same victim, in same location, within seconds of each offense, and defendant’s actions were within course of one continuous episode attacking victim); Campbell-Eley v. State, 718 So.2d 327 (Fla. 4th DCA 1998) (Conviction for second-degree murder and aggravated battery on pregnant woman based on same homicidal assault violated double jeopardy, where stab wounds occurred in rapid succession and were part of violent acts that led to murder).

The events which took place at bar are relatively clear. After the officers finally caught up with Clark, following his running away from them, Officer Girona lowered his shoulder and struck Clark in the center of his back. Clark thereafter turned around and struck Officer Girona, knocking him to the ground. Clark’s momentum also caused him to fall to the ground on top of Officer Girona. The two landed face to face and Clark bit Officer Girona’s face. We find this entire sequence of events was but one criminal episode, involving the same victim, at the same location, without a temporal break between the incidents. As such, the trial court violated Clark’s double jeopardy rights. Consequently, Clark’s battery conviction must be vacated, and Clark must be resentenced. See Tannihill v. State, 848 So.2d 442, 444 (Fla. 4th DCA 2003) (Error in defendant’s sentencing score-sheet, which included points for two counts of an offense instead of one, was not irrelevant, where appellate court’s reversal of one of defendant’s convictions, on double jeopardy grounds, required resentencing on remand). We find Clark’s remaining arguments to be unpersuasive and uphold the convictions as to the other charges.

REVERSED.

GUNTHER and GROSS, JJ., concur.


text:
    Peter METAXOTOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1881.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Peter Metaxotos, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Peter Metaxotos was convicted and sentenced for attempted first degree murder, armed burglary, and sexual battery with a deadly weapon in a 1998 prosecution. In this appeal from an order denying his motion for post-conviction relief, the defendant argues that his automatic designation as a sexual predator under Florida’s Sexual Predator Act, § 775.21, Fla. Stat., without a hearing on the actual risk of future offenses he poses, violates his procedural process rights. We affirm. See Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003). See also Frazier v. State 29 Fla. L. Weekly D369, — So.2d -, 2004 WL 221043 (Fla. 1st DCA Feb.6, 2004); Miller v. State, 861 So.2d 1283 (Fla. 5th DCA 2004); Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), rev. granted, 859 So.2d 514 (Fla.2003). We certify conflict with the third district in Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

POLEN, KLEIN and TAYLOR, JJ., concur.


author: TAYLOR, J.

text:
    Thomas Shelton POISAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1890.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Thomas Shelton Poisal, Orlando, pro se.
    No appearance required for appellee.
   TAYLOR, J.

Poisal appeals an order summarily denying his rule 3.850 motion, in which he alleged, inter alia, that his plea was involuntary because of misadvice given him by his attorney. According to Poisal, his attorney told him that if he pled guilty to one count of robbery, he would be sentenced to a year in jail and some probation. Poisal entered a plea and was sentenced to four years incarceration followed by threé years of probation.

In his motion for post-conviction relief, Poisal did not allege that he would not have entered the plea had he been given correct advice of counsel. Without this allegation, the motion is legally deficient. We therefore affirm the summary denial of his motion. Our affirmance, however, is without prejudice to his ability to file an amended 3.850 motion. See Roldan v. State, 695 So.2d 864 (Fla. 4th DCA 1997); Days v. State, 637 So.2d 66 (Fla. 1st DCA 1994).

We find no merit in the other claims raised by appellant for post-conviction relief. Thus, any amended rule 3.850 motion filed by appellant shall be limited to his claim of ineffective assistance of counsel based on misadvice concerning the consequences of his plea.

AFFIRMED, without prejudice.

STONE and KLEIN, JJ., concur.


text:
    Mark Lee DACOSTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2321.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Mark Lee DaCosta, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. DaCosta v. State, 842 So.2d 935 (Fla. 4th DCA 2003).

GROSS, TAYLOR and MAY, JJ., concur.


text:
    Aaron Jason DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2395.
    District Court of Appeal of Florida, Fourth District.
    July 7, 2004.
    Aaron Jason Davis, Clermont, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s right to seek relief with the Department of Corrections and, after exhaustion of administrative remedies there, by mandamus petition filed in the circuit court if appropriate. See generally, Carter v. State, 786 So.2d 1173 (Fla.2001); Perkins v. State, 839 So.2d 796 (Fla. 4th DCA 2003).

POLEN, KLEIN and MAY, JJ., concur.


text:
    Lucious STRINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2386.
    District Court of Appeal of Florida, First District.
    July 7, 2004.
    Lucious Stringer, Chattahoochee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s right to file a timely and verified motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 alleging involuntary plea and/or ineffective assistance of trial counsel. See Hoggs v. State, 857 So.2d 358 (Fla. 5th DCA 2003); Harris v. State, 801 So.2d 973 (Fla. 2d DCA 2001).

STONE, POLEN and KLEIN, JJ., concur.


text:
    Jim JENSEN, Appellant, v. SIERRA GRILL, INC., Appellee.
    No. 3D03-440.
    District Court of Appeal of Florida, Third District.
    July 7, 2004.
    Harke & Clasby and David J. Maher and Lance A. Harke, Miami, for appellant.
    McGrane, Nosich & Ganz and Ruben V. Chavez, for appellee.
    Before COPE, LEVY, and GREEN, JJ.
   PER CURIAM.

In November of 2000, Jim Jensen, the plaintiff below, brought suit against Mark Rice, the Spring Football League, SFL FL, Inc. d/b/a The Miami Tropics, Primex Capital, and Sierra Grill, Inc. (collectively “the defendants”) for breach of contract and fraud arising out of an employment agreement to provide services as head coach and general manager of the Miami Tropics.

Plaintiffs claims stem from his contention that the defendants, specifically, Mark Rice and the Spring Football League, failed to compensate him for his services as required under the employment agreement. Count II of the Complaint alleges a Fraudulent Inducement claim against all of the defendants. Specifically, plaintiff alleges that the accounts of Primex Capital and Sierra Grill, Inc. were used to effectuate the fraud by using those accounts to transfer money to pay plaintiff and other vendors. The Complaint alleges that the trial court “has personal jurisdiction over defendant Sierra Grill, Inc. because defendant committed a tortious act within this [S]tate, pursuant to [section 48.193(b), Florida Statutes].”

A Motion to Dismiss and/or Stay Pending Arbitration was filed on behalf of all of the defendants, including Sierra Grill, on December 20, 2000, seeking arbitration pursuant to the employment agreement. The trial court granted the motion in part and referred the entire Complaint to arbitration on February 20, 2001. Plaintiff appealed the matter to this Court. This Court affirmed the Order for arbitration against the Miami Tropics, but reversed the Order as to the remaining defendants, including Sierra Grill.

On remand, plaintiff sought a status conference. After conference, the trial court ordered all defendants to file an Answer or response to the Complaint. Sierra Grill did not file any responsive pleadings, and did not respond to any discovery requests. Consequently, plaintiff sought a Default Judgment against Sierra Grill on April 26, 2002. The trial court entered an Order Granting Plaintiffs Motion for Final Default Judgment against Sierra Grill on May 23, 2002.

On May 24, 2002, Sierra Grill filed its “Motion to Set Aside Prior Appearance of Counsel on Behalf of Defendant, Sierra Grill, Inc., Any Orders and Pleadings Filed Thereby, and Motion to Dismiss Plaintiffs Complaint as a Result of Ineffective Service of Process.” The motion alleged, among other things, that previous counsel was never retained, nor authorized to enter an appearance on behalf of Sierra Grill. Additionally, Sierra Grill argued that Plaintiffs Complaint failed to set forth any jurisdictional facts which would support a finding that Florida’s long-arm statute applies to Sierra Grill. As a result, the Motion sought dismissal of plaintiffs Complaint against Sierra Grill for insufficiency of process and the absence of a jurisdictional basis upon which to assert jurisdiction over Sierra Grill. In support, Sierra Grill offered the Affidavit of its President, Charles Watkins, who indicated that he never authorized, nor entered into any agreement on behalf of Sierra Grill to employ the law firm of Zuckerman, Spaeder, Taylor & Evans. Additionally, Mr. Watkins indicated that Sierra Grill’s registered agent was never served with the original Complaint. The trial court granted Sierra Grill’s Motion to Set Aside the Prior Appearance of Counsel and its Motion to Dismiss. With respect to the appearance of counsel, the trial court found that the notice of appearance was filed on behalf of all of the defendants and that all correspondence was sent to Mark Rice. Additionally, the court found that while service was effectuated on Mark Rice and Primex Corporation in Texas, and the Spring Football League in North Carolina, service was never effectuated on Sierra Grill.

We find that the Record does not conclusively establish that the Zuckerman Spaeder firm was not authorized to act on behalf of Sierra Grill, and accordingly remand for further proceedings. “[Generally, there is a presumption that an attorney, as an officer of the court, is duly authorized to act for a client whom he professes to represent. In the absence of some pleading questioning the attorney’s acts ..., the presumption is conclusive.” Brooks v. Shore, 760 So.2d 1093 (Fla. 3d DCA 2000)(quoting Mendelsund v. Southern-Aire Coats of Florida, Inc., 210 So.2d 229, 231 (Fla. 3d DCA 1968)).

In Allbritton v. Stahlman, 683 So.2d 536 (Fla. 2d DCA 1996), however, the Court recognized that the presumption may be overcome when a party presents evidence that she or he did not authorize the representation of the attorney. Id at 537. The Court in Allbritton accepted the testimony of the co-defendant and the representing counsel who submitted affidavits regarding the lack of authorization. The Court reversed the final judgment for lack of jurisdiction “[b]ecause [the defendant] was never served with process and did not otherwise submit to the jurisdiction of the court.” Id. at 537 (citing Gonzalez v. Totalbank, 472 So.2d 861, 864-65 (Fla. 3d DCA 1985)). Moreover, this Court has previously acknowledged that an attorney is not authorized to represent any person without the consent of that person or someone with authority to represent that person. See Gonzalez v. Totalbank, 472 So.2d at 864. In Gonzalez, this Court found that Ms. Gonzalez never consented to the representation, and was never even aware of it. Consequently, the Court held that the attorney’s appearance on Ms. Gonzalez’ behalf cannot be deemed a waiver of any objection to the defective service. Gonzalez, 472 So.2d at 865.

In the instant case, the Record reflects that Zuckerman Spaeder purported to, and did in fact, represent all of the defendants. Additionally, the affidavit of Sierra Grill’s president fails to clearly establish when Sierra Grill was aware that it was a named defendant in a lawsuit and represented by the Zuckerman Spaeder firm. Moreover, the evidentiary Record is incomplete to the extent that there is no evidence showing who, in fact, hired the Zuckerman Spaeder firm, and whether the individual was authorized to act on behalf of Sierra Grill. To this end, we find that the trial court improperly stayed discovery in this matter. Finol v. Final, 869 So.2d 666 (Fla. 4th DCA 2004)(attorney-client privilege does not protect retainer agreements, nor billing and payment records). Indeed, since Sierra Grill takes the position that it was never represented by Zuckerman Spaeder with regard to this lawsuit, it necessarily follows that Sierra Grill has no basis on which to claim attorney-client privilege for communications with the Zuckerman firm relating to this case. Accordingly, we reverse the Order setting aside the prior appearance of counsel and dismissing the cause of action against Sierra Grill, and remand this matter with directions that plaintiff be permitted to seek discovery from the Zuckerman Spaeder firm, Sierra Grill, and persons with relevant knowledge for purposes of determining who authorized the firm to represent Sierra Grill, and to determine when, if at all, Sierra Grill became aware of the purported representation.

Reversed and remanded with directions.

      . On May 31, 2001, the defendants’ law firm sought to withdraw from the case, indicating that it was unable to contact its clients and that the defendants failed to make financial arrangements with the law firm.

      . On April 25, 2002, counsel for Sierra Grill, McGrane, Nosich & Ganz, filed a Notice of Appearance on behalf of Sierra Grill.


text:
    Robert Eugene McDANNOLD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1966.
    District Court of Appeal of Florida, First District.
    July 8, 2004.
    Robert McDannold, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Robert PATTERSON, Petitioner, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 1D04-1921.
    District Court of Appeal of Florida, First District.
    July 9, 2004.
    Robert Patterson, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. See Powell v. Florida Dep’t of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

BARFIELD, DAVIS and BENTON, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Kathryne L. CARLTON, Appellant, v. Durward W. CARLTON, Appellee.
    No. 2D03-1846.
    District Court of Appeal of Florida, Second District.
    July 9, 2004.

      Stanley M. Krawetz and Paula M. Mar-mion of Browning, Clayton & Krawetz, Sarasota, for Appellant.
    Sandra Sanders of Sandra Sanders, P.A., Arcadia, for Appellee.
   ALTENBERND, Chief Judge.

Kathryne L. Carlton appeals a final judgment that dissolved her forty-two-year marriage to Durward W. Carlton. This case involves two retired individuals in their early sixties, whose relatively modest assets and income must be divided in a way that can sustain their respective financial well-being for the remainder of their lives. Because the financial provisions in the final judgment ensure the financial well-being of the husband but put the wife’s financial future at serious risk, we reverse.

At the time of the final hearing, Mr. and Mrs. Carlton had four major marital assets that were listed in the final judgment and assigned the following values: (1) the marital home, valued at $189,000; (2) a Salo-mon Smith Barney account in the wife’s name valued at $52,000; (3) the husband’s pension valued at $248,259; and (4) a Salo-mon Smith Barney account in the husband’s name valued at $238,000. The wife had a nonmarital interest in real property valued at $150,000, while the husband had nonmarital real property consisting of ninety-nine acres valued at $210,000.

Both parties were retired. Thus, the only source of income available to each party, unconnected with the income produced by their assets, was social security. The wife received social security benefits of $555 per month and the husband received social security benefits of $1197 per month. At the time of trial, the husband received $1990.90 per month from his pension. The wife received nominal rental income of $79.31 from her nonmarital property. The parties’ other assets were not producing monthly income. Neither party yet qualified for medicare coverage, and the husband testified that he had been paying $1297 per month to maintain medical and dental insurance on both parties.

In the final judgment, the trial court (1) awarded the wife the marital home and the Salomon Smith Barney account in her name; (2) awarded the husband his pension; and (3) used the Salomon Smith Barney account in the husband’s name to equalize the property division, resulting in the wife receiving $132,350 of the value of the account and the husband receiving the remaining balance of $105,650. The trial court then denied the wife’s requests for alimony, for contribution to her health insurance expenses, and for contribution to her attorneys’ fees or costs.

Although the marital assets were divided equally so as to provide each party $380,149.50 worth of assets, the nature of the assets awarded to each party created a significant disparity in the parties’ financial situation. The distribution resulted in the husband having a gross monthly income of $3187.90 and the wife having a gross monthly income of $634.31. Each party had to pay their individual health insurance costs from their respective incomes. Although there was no evidence on how much individual medical insurance policies would cost for each party, the combined cost was almost $1300 per month. One might assume that the wife’s health insurance cost alone could easily exhaust her monthly income.

In Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the Florida Supreme Court explained:

Dissolution proceedings present a trial judge with the difficult problem of apportioning assets acquired by the parties and providing necessary support. The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in property, and an award of exclusive possession of property. As considered by the trial court, these remedies are interrelated; to the extent of their eventual use, the remedies are part of one overall scheme.
We recognize that a trial court need not equalize the financial position of the parties. However, a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be “shortchanged.”

Id. at 1202, 1204 (citation omitted); see also ch. 61, Fla. Stat. (2003). We conclude that the financial provisions in the final judgment in this case shortchanged the wife.

The division of property and the provision of adequate support for each party in this case is complicated by the fact that the singular most valuable asset of this marriage and the primary source of income is the husband’s pension. When a pension is the most valuable asset and the primary source of income in a marriage, the trial court is challenged to create financial provisions that adequately provide for the support of each party without unfairly “double dipping” — that is, treating a pension that is fully vested and paying out its benefits as both an asset for equitable distribution purposes and as a source for alimony, even after the other spouse has received their equitable share of that asset or an asset in exchange for that asset. See Diffenderfer v. Diffenderfer, 491 So.2d 265, 267-68 (Fla.1986).

Both Mr. and Mrs. Carlton are retired and no longer earning income from their labor. They are also relatively young retirees, and therefore their assets must support them for as long as they live — possibly another twenty years or longer. The husband’s pension is the one asset that will provide a stream of income for the life of the parties. In contrast, the marital home provides no income and generates significant expenses. The remaining financial accounts might provide some income, but it is not clear that a portion of these accounts alone, without the pension, could provide enough income to sustain one of the parties without spending the principal balance, and therefore the principal balance could be exhausted during one party’s lifetime.

By awarding the husband all of the pension in equitable distribution, the trial court has awarded the husband the one marital asset that can assure a continuing stream of income sufficient to provide for this couple for the rest of their lives. Further, the distribution results in a disparity in the monthly amount of income available to each party to meet their needs, a disparity that “shortchanges” the wife. As a result, the trial court abused its discretion in fashioning the financial provisions in the final judgment. A different financial scheme is required.

The husband argues that the resulting disparity in the parties’ income is not an abuse of discretion because the wife may use the funds awarded to her in the two Salomon Smith Barney accounts to produce the income necessary to meet her needs. There are some difficulties with this argument. First, the trial court made no findings as to the amount of income the wife could generate from her share of these accounts. The husband presented evidence that if he paid the wife $116,000 cash as part of a proposed distribution, that cash could produce $775 per month in income. However, neither party presented evidence as to the liquidity of the Salo-mon Smith Barney accounts and whether they could be converted into income-producing assets without any negative financial implications. Thus, the trial court could not determine what amount of income the wife might obtain from the investment of her remaining assets. Even if the assets could produce $775 in income, this would leave the wife only $1425 per month in income, which appears inadequate to meet her needs. Also, the husband would presumably then be able to produce a similar amount of income from the balance of the Salomon Smith Barney account awarded to him, thus maintaining the disparity in income.

Second, the wife presented uncontradict-ed testimony that she had been required to withdraw funds from the Salomon Smith Barney account in her name in order to support herself during the pendency of the litigation. Although the trial court may not have erred in valuing that account as of an earlier date than the date of trial, it could not attribute potential income to the wife from funds which no longer existed. In addition, because the trial court denied the wife’s request for attorneys’ fees, the wife’s liquid assets may be further depleted by her obligation to pay those fees.

As noted in Canakaris, 382 So.2d at 1202, and as specifically outlined in chapter 61, the trial court has numerous remedies available to adjust this financial distribution scheme to produce a more equitable result that protects the wife’s financial future. Because the trial court needs the flexibility that those remedies can provide, we do not mandate any particular scheme of distribution be imposed on remand. However, the final financial provisions in the judgment of dissolution of marriage should result in a distribution of assets and income that protects each party’s financial well-being throughout the remainder of their expected life span. Most likely, this will involve either dividing portions of the pension between the parties or treating the pension as income rather than a marital asset. The potential solution could also involve maintaining the marital home as a joint asset, with the parties remaining tenants in common and potentially awarding the wife the exclusive use and possession of the home. There is no reason that these parties should not enjoy relative comfort throughout their retirement from the marital assets they have acquired during their long-term marriage.

Because we are reversing the financial provisions in the final judgment, we need not address some of the issues raised by the wife regarding specific assets. However, we comment on two issues that may recur on remand. First, there is a dispute as to a sixty-foot roadway that apparently adjoins the husband’s nonmarital property and the marital home. This court has been unable to ascertain from the record the exact nature of this roadway: how it is titled, when it was acquired, whether its value was included in the appraisal of the marital home, and whether the legal description of the marital home in the provision of the final judgment that awarded the property to the wife included this roadway. On remand, the trial court may revisit this issue.

Second, there was uncontradicted testimony that the wife was named the irrevocable beneficiary of survivor benefits for the husband’s pension and that these benefits were fully vested. The husband presented expert testimony that those benefits had a present value of $15,872. The final judgment does not address this asset. Although the wife requested the final judgment specifically confirm her status as the irrevocable beneficiary of these benefits, at oral argument it was suggested that the wife would receive these benefits with or without a provision in the final judgment. On remand, the court can confirm whether the wife is the irrevocable beneficiary of the funds and whether provision must be made in the final judgment to confirm this.

The financial provisions of the final judgment are therefore reversed and remanded for further proceedings consistent with this opinion.

SALCINES and SILBERMAN, JJ., concur.

      . We note that in paragraph four of the "findings of fact" portion of the judgment, the trial court stated, "[T]he Wife has the need and the Husband has the ability to pay permanent periodic alimony.” However, in the "ordered and adjudged" portion of the judgment, the trial court denied the wife any alimony, attorneys' fees and costs, or contribution to her health insurance expenses “[d]ue to the fact that the marital assets have been divided equally and based upon the parties' respective incomes.”

      . We note that there is currently some controversy over whether Diffenderfer intended to prohibit "double-dipping” — distributing the value of an asset in equitable distribution and then factoring the income one or both parties receive from it in determining alimony. See Acker v. Acker, 821 So.2d 1088 (Fla. 3d DCA 2002), review granted, 842 So.2d 842 (Fla.2003); Lauro v. Lauro, 757 So.2d 523 (Fla. 4th DCA 2000). Compare McLean v. McLean, 652 So.2d 1178, 1181 (Fla. 2d DCA 1995), with Rogers v. Rogers, 622 So.2d 96 (Fla. 2d DCA 1993).

      . See § 61.075(l)(h), Fla. Stat. (2003).


author: CANADY, Judge.

text:
    Shannon CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-941.
    District Court of Appeal of Florida, Second District.
    July 9, 2004.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Shannon Clark appeals his convictions for burglary and attempted burglary and his sentences as a prison releasee reoffen-der. We affirm Clark’s convictions but reverse his sentences as a prison releasee reoffender.

Clark challenges his convictions on the ground that the trial court erred in precluding his assertion of a necessity offense. Clark’s claim fails because he did not establish that there was any basis for a necessity defense. Clark claimed that he committed the offenses charged against him in an effort to elude law enforcement officers who were seeking to apprehend him and that he was fleeing the officers because he had previously been subjected to physical abuse by other law enforcement officers. The previous acts of abuse claimed by Clark occurred more than six years prior to the date of the offenses at issue here. There was no evidence, however, showing that in committing the offenses charged against him Clark “reasonably believed that [his] action was necessary to avoid an imminent threatened harm.” Linnehan v. State, 454 So.2d 625, 626 (Fla. 2d DCA 1984) (quoting United States v. Cassidy, 616 F.2d 101, 102 (4th Cir.1979)). Even if Clark’s contention that he had been previously abused by law enforcement officers is accepted as true, that circumstance would as a matter of law be an insufficient basis for the defense of necessity. An experience of abuse by officers in the past would not give rise to a reasonable belief that eluding other law enforcement officers in subsequent encounters would be necessary to avoid an imminent threatened harm.

The State correctly concedes that the sentencing of Clark as a prison releas-ee reoffender was error under State v. Huggins, 802 So.2d 276 (Fla.2001). Under Huggins, section 775.082, Florida Statutes (2000) — the version of the Prison Releasee Reoffender Punishment Act in force at the time of Clark’s offenses — was “not applicable to a defendant ... convicted of burglary of an unoccupied dwelling.” Huggins, 802 So.2d at 276. Here, there was no showing that the dwelling Clark burglarized or the dwelling he attempted to burglarize was occupied.

The trial court concluded that the version of the Prison Releasee Reoffender Punishment Act adopted by the legislature in response to Huggins — and which extended the provisions of the statute to burglary of unoccupied dwellings-was applicable to Clark’s offenses. See ch. 1-239, § 1, at 2192, Laws of Fla. The amended version of the statute became effective on July 1, 2001. Clark’s offenses were committed on March 19, 2001. The trial court thus applied the amended version of the statute retroactively. The amended version of the statute, however, is not retroactively applicable. West v. State, 818 So.2d 637 (Fla. 1st DCA 2002); Saunders v. State, 823 So.2d 829 (Fla. 4th DCA 2002). Clark’s sentences therefore are reversed, and the case is remanded for resentencing.

Convictions affirmed, sentences reversed, and case remanded for resentenc-ing.

FULMER and VILLANTI, JJ., concur.


author: FULMER, Judge.

text:
    Carl BLUE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3482.
    District Court of Appeal of Florida, Second District.
    July 9, 2004.

      Brett McIntosh, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Carl Blue was convicted after a jury trial of throwing a deadly missile and aggravated assault. We reverse the conviction for throwing a deadly missile because the trial court erred in allowing the State to amend the Information to change an element of the offense after the State had rested its case.

Count one of the Information charged that, on July 18, 2002, Blue did “throw a certain missile, or hurled or projected a stone or other hard substance, to-wit: TRAILOR [sic] HITCH, which would produce death or great bodily harm, at, within or into a building, contrary to section 790.19, Florida Statutes.... ” Blue moved for a judgment of acquittal at the end of the State’s case arguing that while the information charged him with throwing a deadly missile within or into a building, the evidence showed that Blue had thrown a deadly missile into an occupied vehicle. In response to the motion, the State moved to amend the Information, and the trial court granted the State’s motion. The trial court allowed the State to amend count one of the Information to delete the word “building” and insert in the words “train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car or vehicle of any kind that was being used or occupied by any person.”

Blue argues that the trial court erred in denying his motion for judgment of acquittal. He also argues that the trial court erred in allowing the amendment to the Information. We agree that the evidence did not support the charged offense and, thus, the trial court should have granted the motion for judgment of acquittal. See Long v. State, 92 So.2d 259, 260 (Fla.1957) (“The general rule is where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the indictment.”). We also agree with Blue that it was error for the trial court to allow the amendment to the charging document because the amendment was not a mere correction of a scrivener’s error but instead was a change to an element of the offense. By allowing the amendment, the trial court permitted the jury to find Blue guilty of a charge for which he was not on trial, which was a violation of due process. See Green v. State, 728 So.2d 779 (Fla. 4th DCA 1999) (reversing conviction because, by granting the State’s motion to amend at the conclusion of its case to change the name of the battery victim, the trial court allowed the jury to find appellant guilty of a crime for which he had not been charged); see also Stang v. State, 421 So.2d 147 (Fla.1982) (holding that State failed to carry its burden of demonstrating a lack of prejudice to defendant when it sought to amend statement of particulars at trial).

Accordingly, we reverse and remand for the trial court to grant the motion for judgment of acquittal on count one. Because our reversal will affect the criminal punishment code scoresheet, we direct the trial court to resentenee Blue for the aggravated assault conviction on remand after a new seoresheet is prepared.

Reversed and remanded.

SILBERMAN and COVINGTON, JJ., concur.


author: MONACO, J.

text:
    John Wesley MESSER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2738.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.
    James B. Gibson, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, John Wesley Messer, was convicted by a jury of one count of sexual activity with a child and two counts of lewd and lascivious molestation. The primary issue on this appeal concerns whether double jeopardy precludes conviction of, and sentencing on the two lewd and lascivious counts. After a careful review of the record we conclude that there was substantial competent evidence demonstrating that there was sufficient spatial and temporal differentiations between the multiple occurrences so that the jury could properly find that the appellant had time to pause, reflect and form a new criminal intent between the occurrences. See King v. State, 834 So.2d 311 (Fla. 5th DCA 2003); Morman v. State, 811 So.2d 714 (Fla. 2d DCA 2002); Eaddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001). Thus, the acts deemed by the jury to be lewd and lascivious molestations were sufficiently discrete to justify separate convictions and sentences for the two acts. Accordingly, there was no violation of constitutional double jeopardy, and we affirm the judgment and sentence.

AFFIRMED.

PLEUS and TORPY, JJ., concur.


text:
    Jose L. MARRERO, Appellant, v. WORLD INTERNATIONAL SECURITY, and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-2303.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.
    Jose L. Marrero, in proper person.
    John D. Maher, Tallahassee, for appel-lee, Florida Unemployment Appeals Commission.
    Before FLETCHER, SHEVIN and WELLS, JJ.
   PER CURIAM.

Based on the Unemployment Appeal Commission’s proper concession, the order dismissing Marrero’s appeal as untimely is reversed. This cause is hereby remanded for a new hearing as the recording of the prior hearing has been purged.

Reversed and remanded.


text:
    FOR SALE BY OWNER REALTY, INC., et al., Appellants, v. VILLAGE OF DORAL PLACE ASSOCIATION, INC., etc., Appellee.
    Nos. 04-205, 03-3357.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.
    Deborah Marks, North Miami; Larson & Jones, and Steven Jones, Miami Shores, for appellants.
    Boyd & Greene, Kelly N. Charles, and William Todd Boyd, for appellee.
    Before SCHWARTZ, C.J., and GODERICH, JJ., and DELL, John W., Senior Judge.
   PER CURIAM.

We affirm the order under review granting the temporary injunction. However, in doing so, we do not pass on the merits of the underlying action.

Affirmed.


text:
    Andrew HAYES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-446.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.
    Bennett H. Brummer, Public Defender, and May L. Cain, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin Kinney, Assistant Attorney General, for appellee.
    Before FLETCHER, SHEVIN and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. Wilson v. State, 753 So.2d 683 (Fla. 3d DCA 2000).


text:
    Karen E. RICHMOND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1415.
    District Court of Appeal of Florida, Third District.
    July 14, 2004.
    Karen Richmond, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   PER CURIAM.

Karen E. Richmond appeals an order denying her motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). To the extent that defendant-appellant Richmond argues for correction of the sentencing guidelines scoresheet, or that she should be re-scored on a different scoresheet, we affirm the order denying relief on authority of Richmond v. State, 867 So.2d 449 (Fla. 3d DCA 2004).

The defendant argues that she is not being awarded the correct amount of gain time under the gain time statute. See generally § 944.275, Fla. Stat. (2003). Under established precedent, the defendant must first exhaust her administrative remedies within the Department of Corrections before seeking judicial review. See Profitt v. State, 789 So.2d 1194, 1196 (Fla. 4th DCA 2001); Harris v. State, 713 So.2d 1106, 1106 (Fla. 4th DCA 1998).

Affirmed.


text:
    Christopher J. PATT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-407.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Christopher Patt (defendant) appeals the final order, entered by the trial court finding him guilty and sentencing him to prison for violating his community control. Concluding that the trial court erred by failing to issue a written order setting forth specific findings as to which conditions of the defendant’s community control had been violated, we remand for entry of a proper adjudication order.

The State filed an affidavit charging the defendant with violating his community control in several different ways. A hearing was held and testimony was presented as to each of those alleged violations. At the conclusion of the testimony, the trial court issued a ruling from the bench finding that the defendant had violated his community control and stating which of the conditions had been violated. The defendant contends that the trial court reversibly erred in failing to issue a written order setting forth said findings.

While our court has consistently ruled that an order revoking community control must state in writing the conditions which the trial court found to have been violated, see Brinson v. State, 866 So.2d 1268 (Fla. 5th DCA 2004); Barta v. State, 678 So.2d 923 (Fla. 5th DCA 1996); Forget v. State, 675 So.2d 259 (Fla. 5th DCA 1996), we recognize that the trial court made findings from the bench, supported by competent, substantial evidence, that would, if reduced to writing, have been adequate to sustain the trial court’s conclusion of a willful and substantial violation of community control. Therefore, we affirm the revocation of Patt’s community control and remand the matter for entry of a proper adjudication order.

AFFIRMED and REMANDED for entry of a proper adjudication order.

PETERSON and ORFINGER, JJ., concur.


text:
    William Raymond SIBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1839.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    William Raymond Sibley, Raiford, Pro Se.
    No appearance for Appellee.
   MONACO, J.

The appellant, William Raymond Sibley, appeals the order of the trial court denying his Rule 3.800(a) motion for correction of his sentence. We are unable to review this appeal because the trial court denied the motion by simply stamping “Denied” on the face of the motion, and dating and signing it. Neither the rubber stamp nor the record reflect the date of rendition of the court’s ruling. The document does not reflect when or whether it was filed with the Clerk of the lower tribunal as required by Rule 9.020(h), Florida Rules of Appellate Procedure.

A rubber stamped order such as the one used in the present case is not sufficient to invoke this court’s appellate jurisdiction. See Gibson v. State, 642 So.2d 43 (Fla. 2d DCA 1994); State v. Sullivan, 640 So.2d 77 (Fla. 2d DCA 1994). Without rendition, the order is not appealable. Rubber stamped orders might find some limited use in less consequential pretrial orders, but they are usually inappropriate for the disposition of motions filed under Rules 3.800 or 3.850. See Parnell v. State, 642 So.2d 1092 (Fla. 2d DCA 1994). They should never be used when it is essential to fix a point from which crucial time periods are to be calculated.

Accordingly, we dismiss the appeal and remand this matter to the trial court for reconsideration of Mr. Sibley’s motion and for rendition of an appropriate order.

DISMISSED and REMANDED with instructions.

PETERSON and PALMER, JJ, concur.


text:
    Kevin NICHOLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1817.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    Kevin Nichols, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Kevin Nichols shot and killed his victim and dumped his body in a trash can in the Halifax River. Nichols eventually entered a no contest plea to manslaughter with a firearm, a first-degree felony. Following an unsuccessful direct appeal, Nichols filed a Florida Rule of Criminal Procedure 3.850 motion, maintaining, among other things, that his plea was involuntary. Because he did not file a timely post-sentencing motion to withdraw his plea, the trial court correctly denied Nichols’ 3.850 motion. Any involuntary plea claim, when a previous motion has not been made to withdraw a plea, must be based on ineffective assistance of counsel, which Nichols failed to assert. See Barnhill v. State, 828 So.2d 405 (Fla. 5th DCA 2002).

We affirm the trial court’s order denying Nichols’ rule 3.850 motion, but remand for correction of a clerical error in the judgment so that it reflects that the crime for which Nichols was convicted was a first-degree felony, not a second-degree felony.

AFFIRMED and REMANDED for Correction.

SAWAYA, C.J., PALMER and ORFINGER, JJ., concur.