text:
    James E. RICHARDSON, Sr., Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D03-2377.
    District Court of Appeal of Florida, First District.
    April 20, 2004.
    James E. Richardson, Sr., pro se, petitioner.
    Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for respondent.
   PER CURIAM.

We review by petition for writ of certio-rari an order of the Circuit Court for Liberty County which denied the petition for writ of habeas corpus of James E. Richardson, Sr. We have jurisdiction in accordance with Sheley v. Florida Parole Comm'n, 720 So.2d 216 (Fla.1998) and deny relief.

After serving a portion of his prison sentence, Richardson was conditionally released in January 1999. He was arrested in 2002 and charged with tampering with evidence, possession of cocaine, and possession of drug paraphernalia. The State Attorney declined to prosecute on these new charges but the Parole Commission sought to revoke conditional release as a result of the same conduct. An evidentia-ry hearing was held and the hearing officer recommended that Richardson be found not guilty of violating the terms and conditions of his release and restored to supervision. The Commission, however, rejected this recommendation and revoked conditional release.

With regard to petitioner’s claim that the Commission’s handling of his case contravenes this court’s holding in Tedder v. Florida Parole Comm'n, 842 So.2d 1022 (Fla. 1st DCA 2003), this issue was raised for the first time in Richardson’s circuit court reply and, for that reason, the circuit court did not depart from the essential requirements of law when relief was not granted on this ground. We find that the other issues presented to the circuit court were without merit.

The petition for writ of certiorari is accordingly denied. This disposition is without prejudice to Richardson’s right to file another challenge to the Commission’s action in the appropriate circuit court based on Tedder,

PETITION FOR WRIT OF CERTIO-RARI DENIED.

BOOTH, PADOVANO and BROWNING, JJ., concur.

      . We note that Richardson’s circuit court petition was filed before publication of Tedder.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mathew ARMITAGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1088.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2004.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Boler v. State, 678 So.2d 319 (Fla.1996); State v. Enmund, 476 So.2d 165 (Fla.1985).

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


text:
    Mark David VICTOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2405.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2004.
    James B. Gibson, Public Defender, and James R. Wulehak, Assistant Public Defender, Daytona Beach, for Appellant.
    Mark David Victor, Avon Park, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Kearse v. State, 858 So.2d 1247 (Fla. 5th DCA 2003); Angulo v. State, 857 So.2d 355 (Fla. 5th DCA 2003).

SHARP, W., MONACO and TORPY, JJ., concur.


text:
    Robert Lee WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-542.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2004.
    Robert Lee White, Polk City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Delidle v. State, 866 So.2d 748 (Fla. 5th DCA 2004).

SHARP, W., PLEUS and TORPY, JJ., concur.


text:
    Xavier BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1002.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2004.
    Xavier Barnes, Century, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Harvey v. Dugger, 656 So.2d 1253 (Fla.1995); Knight v. State, 394 So.2d 997 (Fla.1981).

SHARP, W., GRIFFIN and TORPY, JJ., concur.


text:
    James R. DEMICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-977.
    District Court of Appeal of Florida, First District.
    April 21, 2004.
    James R. Demick, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

As we have held before, the Florida Sexual Predators Act, does not deny procedural due process under the Florida Constitution. White v. State, 866 So.2d 703 (Fla. 4th DCA 2003), Reyes v. State, 854 So.2d 816 (Fla. 4th DCA 2003), Jones v. State, 855 So.2d 715 (Fla. 4th DCA 2003). See also Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2003); Martin v. State, 864 So.2d 589, 589 (Fla. 5th DCA 2004); Givens v. State, 851 So.2d 813 (Fla. 2d DCA 2003). Accordingly, we affirm the order denying relief. Again, we certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

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


author: GROSS, J.

text:
    Ulysses GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4196.
    District Court of Appeal of Florida, First District.
    April 21, 2004.
    Rehearing Denied May 18, 2004.

      Michael D. Gelety, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Ulysses Gonzalez was convicted of eight crimes involving sexual activity with his sister-in-law, who was under the age of fourteen at the times the crimes occurred. We affirm and write to address one issue.

At trial, Gonzalez sought to introduce the testimony of his wife, the victim’s sister, that the victim had the reputation within the family for telling falsehoods. The trial court sustained the state’s objection, ruling that the victim’s reputation within the family was “too narrow, not a sufficient community” to be permissible.

Section 90.609, Florida Statutes (2002) permits a party to attack the credibility of a witness “by evidence in the form of reputation” relating to truthfulness. Before a reputation witness may testify under section 90.609, “a foundation must first be laid to establish” that the reputation witness “is aware of the witness’s reputation for truthfulness in the community.” Lott v. State, 695 So.2d 1239, 1242 (Fla.1997). The “community from which the reputation testimony is drawn [must be] sufficiently broad to provide the witness with adequate knowledge to give a reliable assessment.” Larzelere v. State, 676 So.2d 394, 399 (Fla.1996).

A person’s family is too narrow a segment of the community to be the source of reputation testimony under section 90.609. In Lott, the defendant sought to question a key witness’s brother about the witness’s reputation in the family for truthfulness. The testimony proffered by the brother indicated that his testimony was “based on his and his family’s personal experiences with [the witness] rather than on any broad-based knowledge of the community’s opinion of [the witness’s] reputation for truthfulness.” Lott, 695 So.2d at 1242. The supreme court held that the trial court did not abuse its discretion in refusing to admit the testimony. Lott compels a similar ruling in this case.

Gonzalez argues that because the victim was only fifteen years old at the time of trial, she “must necessarily have [had] a restricted ‘community’ in which her reputation for truthfulness would be legitimately known.”

However, a witness’s youth does not contract the breadth of “community” necessary for section 90.609 impeachment. “Reputation is the composite description of what people in a substantial segment of a particular community have said or are saying about an individual. The evidence is thought to be reliable because it is a distillation of those views.” ChaRles W. Eh-RHARDt, Florida Evtoenoe § 609.1, at 501 (2002 ed.). The breadth of a community in which a reputation is formed enhances the reliability of the reputation evidence. For this reason, the supreme court has written that “reputation evidence ‘must be based on discussions among a broad group of people so that it accurately reflects the person’s character, rather than the biased opinions or comments of ... a narrow segment of the community.’ ” Larzelere, 676 So.2d at 400 (citation omitted).

AFFIRMED.

WARNER and STEVENSON, JJ., concur.


author: DAVIS, Judge.

text:
    Jeb BUSH, Governor of the State of Florida, Appellant, v. Michael SCHIAVO, as Guardian of the Person of Theresa Marie Schiavo, Appellee.
    No. 2D03-5123.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
    Kenneth L. Connor of Wilkes & McHugh, P.A., Tampa, for Appellant.
    George J. Felos of Felos & Felos, P.A., Dunedin; Randall C. Marshall of American Civil Liberties Union of Florida, Miami; and Thomas J. Perrelli, Robert M. Portman, and Nicole G. Berner of Jenner & Block LLP, Washington, D.C., for Ap-pellee.
   DAVIS, Judge.

Jeb Bush, Governor of the State of Florida, challenges the trial court’s order denying his motion to dismiss the underlying cause of action for lack of jurisdiction and improper venue. The Governor argued that the trial court lacked jurisdiction because the plaintiff, Michael Schiavo, as guardian of the person of his wife, Theresa Marie Schiavo, had failed to serve him with process. The Governor also argued that the proper venue for the suit was Leon County, not Pinellas County where it had been brought. The trial court denied the Governor’s motion to dismiss, finding that the Governor, through counsel, had submitted to the jurisdiction of the court by participating in the hearing on Mr. Schiavo’s motion for emergency injunction and that based on the sword-wielder doctrine, Pinellas County was the proper venue. We agree and affirm the trial court’s order.

Mr. Schiavo had previously obtained the trial court’s authorization to remove the nutrition and hydration tubes sustaining his wife, who has been found to be in a persistent vegetative state. On appeal, this court affirmed the trial court’s order, see In re Guardianship of Schiavo, 851 So.2d 182 (Fla. 2d DCA 2003), and on October 15, 2003, the tubes were removed. On October 21, 2003, the Florida Legislature enacted chapter 2003-418, Laws of Florida, popularly known as “Terri’s Law,” which authorized the Governor to stay the trial court’s order. Pursuant to that statute, the Governor entered a stay and directed that the nutrition and hydration tubes be reinserted. That same day, Mr. Schiavo filed an action for a judgment declaring that chapter 2003-418 is unconstitutional. He also asked the trial court to enter a temporary injunction to prohibit the Governor from enforcing the statute.

When Mr. Schiavo filed his petition for declaratory judgment on October 21, 2003, he requested an immediate hearing on the issue of the temporary injunction. Although Mr. Schiavo’s counsel sent copies of the petition and a notice of hearing to the Attorney General and counsel for the Governor by facsimile transmission on that day, actual personal service on the Governor was not accomplished until November 20, 2003.

At 8:30 p.m. on October 21, 2003, the trial court conducted a hearing on Mr. Schiavo’s request for a temporary injunction; counsel for both the Governor and the Attorney General appeared telephoni-cally. During that hearing, the issue of the propriety of an injunction was fully argued. On behalf of the Governor and the Attorney General, counsel contended that there was no emergency that necessitated entry of an injunction and that the parties should be given additional time to brief the issues raised by the petition. The trial court agreed with these arguments, denied Mr. Schiavo’s request for an injunction, and set a schedule for the parties to file briefs. Counsel representing the Governor and the Attorney General agreed to prepare a proposed order reflecting the trial court’s ruling at the hearing, which the trial court subsequently entered.

At no time during the hearing did the Governor’s counsel object to the trial court’s jurisdiction or Mr. Schiavo’s failure to effect personal service on his client. Instead, counsel proceeded to argue the merits of the injunction and requested a briefing schedule.

We conclude that by participating in the hearing through counsel and receiving material benefits as a result of that participation, the Governor submitted to the jurisdiction of the trial court. See First Wis. Nat’l Bank of Milwaukee v. Donian, 343 So.2d 943, 945 (Fla. 2d DCA 1977) (“[W]e must determine whether the Donians by their actions before the court obtained some relief or material benefit sufficient to constitute a submission by them to the court’s jurisdiction.”). In the instant case, the trial court’s decision to deny the injunction and grant the request for an opportunity to file briefs with the court indicates that the Governor did obtain material benefits by his participation in the hearing. This participation, especially in the absence of any mention of an objection to jurisdiction due to the lack of service of process, constitutes a submission to the court’s jurisdiction and a waiver of any objection. “If a party takes some step in the proceedings which amounts to a submission to the court’s jurisdiction, then it is deemed that the party waived his right to challenge the court’s jurisdiction regardless of the party’s intent not to concede jurisdiction.” Cumberland Software, Inc. v. Great Am. Mortgage Corp., 507 So.2d 794, 795 (Fla. 4th DCA 1987) (citing Sternberg v. Sternberg, 139 Fla. 219, 190 So. 486 (1939)).

The Governor also sought dismissal of Mr. Schiavo’s petition based on improper venue. In an action against a governmental agency, venue normally lies in the agency’s home county. Fish & Wildlife Conservation Comm’n v. Wilkinson, 799 So.2d 258 (Fla. 2d DCA 2001). Thus, the Governor asserts that the proper venue for Mr. Schiavo’s action is Leon County. However, an exception to the home county rule is found in what is known as the “sword-wielder doctrine.” This exception allows a plaintiff to file an action against a State agency in a county other than the agency’s home county if the action is an attempt to “shield [the plaintiff] from an attack upon the plaintiff by the state’s sword.” Id. at 260. In the instant case, Mr. Schiavo alleges that the State has invaded the constitutional right of privacy of his wife in Pinellas County, where she resides. Although the purpose of the action is to obtain a judgment declaring that the statute is unconstitutional, the primary result of such a decision would be to preclude the Governor from further involvement in the care being given to Mrs. Schiavo in Pinellas County. Accordingly, we agree that the sword-wielder doctrine applies and conclude that Pinellas County is the proper venue for the litigation.

Affirmed.

FULMER and WALLACE, JJ., Concur.


text:
    MIAMI-DADE COUNTY, Appellant/Cross-Appellee, v. Violeta McDERMOTT, Appellee/Cross-Appellant.
    No. 1D03-0999.
    District Court of Appeal of Florida, First District.
    April 26, 2004.
    Robert A. Ginsburg, Miami-Dade County Attorney; Douglas W. Rice, Assistant County Attorney, Miami, for Appellant/Cross-Appellee.
    L. Barry Keyfetz, Esquire of L. Barry Keyfetz, Miami, for Appellee/Cross-Appel-lant.
   PER CURIAM.

Miami-Dade County seeks reversal of an order of the judge of compensation claims awarding claimant temporary total disability and permanent impairment workers’ compensation benefits. On cross-appeal, claimant argues that the judge of compensation claims erred in denying her claim that a penalty should be added to the temporary total disability benefits awarded, pursuant to section 440.20(6), Florida Statutes (1997).

We affirm on the main appeal. See Mercy Hosp. v. Holmes, 679 So.2d 860, 860 (Fla. 1st DCA 1996) (“[T]he standard of review in worker’s compensation cases is whether competent substantial evidence supports the decision below, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below.”).

On the cross-appeal, we reverse the denial of penalties called for by section 440.20(6), and remand with directions that all penalties be imposed. See Greenberg v. Cardiology Surgical Ass'n, 855 So.2d 234, 238 (Fla. 1st DCA 2003) (“Accordingly, ... we read the statute as requiring a payment of twenty percent penalty on all non-award compensation installments not paid within the seven-day grace period.”).

Affirmed in part, reversed in part, and remanded.

WEBSTER, BENTON, and PADOVANO, JJ., concur.


text:
    Elvie Clarence MARTIN, Jr., Petitioner, v. Nancy Lee MARTIN n/k/a Nancy Lee Henderson, Respondent.
    No. 1D03-4917.
    District Court of Appeal of Florida, First District.
    April 28, 2004.
    Elvie Clarence Martin, Jr., petitioner, pro se.
    No appearance for respondent.
   PER CURIAM.

In light of the circuit court’s recent issuance of an order scheduling a hearing on petitioner’s exceptions to the report and recommendation of the general master, we conclude that the granting of mandamus relief is not warranted. However, we do encourage the circuit court to promptly conclude the matters pending before it.

KAHN, VAN NORTWICK and POLSTON, JJ., concur.


author: WHATLEY, Judge.

text:
    Herschel UPSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2211.
    District Court of Appeal of Florida, Second District.
    April 28, 2004.

      James Marion Moorman, Public Defender, and David H. Foxman, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Mum Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

Herschel Upshaw appeals his conviction of first-degree murder. We reverse because the trial court abused its discretion in denying Upshaw’s request for an independent act jury instruction.

Upshaw was indicted along with two co-defendants, Tessa Robinson and Jessica Hill, for first-degree murder and robbery with a firearm. Upshaw was the only one of the defendants to testify at his trial, and he testified to the following. He was approached by his codefendants about robbing a man whom Hill’s mother had dated and who Hill said had a lot of money. Upshaw’s role was to provide the guns, which were for their protection, and to keep the victim under control. Prior to executing the robbery, Hill said she was going to kill the victim, but neither Up-shaw nor Robinson took her seriously. During the robbery, Upshaw grabbed the victim and put him on the floor. He assured the victim that they just wanted his money, and they were not going to hurt him. At one point, Hill suggested they take the victim with them to the ATM to obtain money from his account, but Up-shaw protested and said that it was too risky to ride around with the victim and that he came along only to rob him. When the women finished going through the house and taking items, Robinson walked outside to the car. As Upshaw walked out the door, he heard gunshots and turned to see Hill standing over the victim and pointing a gun at him. As the three fled, Upshaw asked Hill why she had killed the victim and told her that the lolling was stupid. Hill responded that Upshaw did not know how long she had waited to kill the victim. Upshaw learned a couple of days later that Hill was motivated to kill the victim because he had allegedly raped her when she was younger.

We agree with Upshaw that the trial court abused its discretion in denying his request for the independent act jury instruction. “The ‘independent act’ doctrine arises when one cofelon, who previously participated in a common plan, does not participate in acts committed by his cofelon, ‘which fall outside of, and are foreign to, the common design of the original collaboration.’ ” Pittman v. State, 841 So.2d 690, 692 (Fla. 2d DCA 2003) (quoting Ray v. State, 755 So.2d 604, 609 (Fla. 2000)). A defendant who does not participate in the independent act of his cofelon is exonerated from any punishment imposed for the independent act. Id.

Whether the independent act instruction should be given depends on the evidence.

“Where there is any evidence introduced at trial which supports the theory of the defense, a defendant is entitled to have the jury instructed on the law applicable to his theory of defense when he so requests.” Bryant v. State, 412 So.2d 347, 350 (Fla.1982) (citing Motley v. State, 155 Fla. 545, 20 So.2d 798 (1945)). A defendant is entitled to an instruction on his theory of defense “however flimsy” the evidence is which supports that theory, Vazquez v. State, 518 So.2d 1348, 1350 (Fla. 4th DCA 1987), or however “weak or improbable his testimony may have been” [sic] Holley v. State, 423 So.2d 562, 564 (Fla. 1st DCA 1982). It is for the jury, not the court, to determine what weight to give the defendant’s evidence.

Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998).

Here, Upshaw’s testimony that he heard the gunshots that killed the victim as he was leaving the victim’s house and that he did not learn of Hill’s motivation to kill the victim until after the robbery supported his theory that he thought Hill was kidding when she mentioned killing the victim.

Accordingly, we affirm Upshaw’s conviction of robbery with a firearm but reverse his conviction of first-degree murder and remand for a new trial. Our reversal of Upshaw’s murder conviction will necessitate his resentencing for the robbery.

Reversed and remanded with instructions.

CASANUEVA and NORTHCUTT, JJ., Concur.


text:
    David CABRERIZA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2211.
    District Court of Appeal of Florida, Third District.
    April 28, 2004.
    David Cabreriza, proper person.
    Charles J. Crist, Jr., Attorney General, and Jill Traína, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

David Cabreriza (“the defendant”) appeals the trial court’s denial of his motion to correct illegal sentence. As the State properly concedes, the trial court erred in scoring the first degree murder as an offense for conviction on the sentencing guideline scoresheet, since the guidelines apply only to noncapital felonies. See Doak v. State, 671 So.2d 845 (Fla. 2d DCA 1996); Stuart v. State, 536 So.2d 363 (Fla. 2d DCA 1988). The first degree murder charge should not have been reflected as the primary offense on the defendant’s scoresheet. Armed robbery and armed burglary should have been the only offenses listed

Accordingly, we reverse and remand for resentencing. In all other respects, the order below is affirmed. On remand, the defendant’s first degree murder conviction may be considered by the trial court as a reason for departing from the guidelines. See Stuart, 536 So.2d at 364.

Affirmed in part; reversed and remanded in part.


text:
    A.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1345.
    District Court of Appeal of Florida, Third District.
    April 28, 2004.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, and Adrienne Sampson, Certified Legal Intern (Fort Lauderdale), for appel-lee.
    Before GERSTEN, GODERICH, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Jeffries v. State, 797 So.2d 573 (Fla.2001).


author: WELLS, Judge.

text:
    JUPITER MORTGAGE CORP., Appellant/Cross appellee, v. BANK OF AMERICA, N.A., Appellee/Cross-appellant.
    No. 3D03-574.
    District Court of Appeal of Florida, Third District.
    April 28, 2004.
    Gary Bareus, Pembroke Pines, for appellant/cross-appellee.
    Rones and Navarro and Victor K. Rones, North Miami Beach, for appel-lee/cross-appellant.
    Before SCHWARTZ, C.J., and SHEVIN and WELLS, JJ.
   WELLS, Judge.

Jupiter Mortgage Corporation appeals from a final summary judgment awarding recovery in favor of Bank of America, N.A., under the terms of a business note and security mortgage. We affirm the judgment because the record indisputably shows that an officer of Jupiter’s predecessor in interest was authorized both to sign the note on the predecessor/eorporation’s behalf and to borrow the principal amount ($50,000) stated in the note. We also affirm the trial court’s order denying Jupiter’s motion to recuse.

Bank of America cross-appeals claiming that the trial court failed to award it the full amount ($61,454.26) loaned to Jupiter’s predecessor. In light of the undisputed evidence that the bank advanced this amount to Jupiter’s predecessor, we remand for the modification of the final judgment to award to Bank of America the full amount loaned and unpaid, plus interest and late charges, if appropriate.

Affirmed and remanded for further proceedings consistent with this opinion.

      . The judgment can also be sustained because the loan was ratified by Jupiter’s predecessor. See Spurrier v. United Bank, 359 So.2d 908, 910 (Fla. 1st DCA 1978) (confirming that a corporation ratified the purportedly unauthorized signatures of a corporate officer on two promissory notes when it accepted the benefits of the note).


author: SHARP, W., J.

text:
    Dwain L. WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-959.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    Dwain L. White, Daytona Beach, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

White appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking post-conviction relief. We affirm because this motion is successive and untimely.

As the trial court noted below, White has filed numerous frivolous and successive post-conviction motions attacking his 12-year sentence, which he received after he failed to appear for sentencing and thus violated the plea agreement and conditions of his release. The current motion is so grossly successive the trial court warned him that he could be prohibited from submitting any further pro se filings regarding his case. We echo that warning. See State v. Spencer, 751 So.2d 47 (Fla.1999).

In addition, this 3.850 motion is untimely. White was sentenced on November 4, 1998. His judgment and sentence were affirmed on August 17, 1999. The mandate issued September 3, 1999. A 3.850 motion must be filed within two years of the time the judgment and sentence become final. See Fla. R.Crim. P. 3.850(b). That would be September 3, 1999, in this case. This motion was not filed until January 23, 2004, more than two years too late.

Although an unlawful sentence may be challenged at any time, White has not established he received an illegal sentence. Further, rule 3.850 does not permit the same plea and sentencing issues to be raised successively. See Fla. R.Crim. P. 3.850(f).

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

      . See generally, Quarterman v. State, 527 So.2d 1380 (Fla. 1988).

      . White v. State, 741 So.2d 510 (Fla. 5th DCA 1999) (Appeal No. 98-3058).


author: SAWAYA, C.J.

text:
    Calvin SLEDGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-330.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.

      James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, C.J.

Calvin Sledge appeals his judgments and sentences for battery on a law enforcement officer and resisting an officer without violence. We reverse and remand for a hearing to determine whether Sledge is competent to proceed to trial.

On September 12, 2001, after the State filed its information charging him with various crimes, Sledge was adjudicated incompetent to proceed to trial and committed to the Department of Children and Families (DCF) for hospitalization. The record reveals that Sledge was again found incompetent on March 4, 2002.

On April 12, 2002, following Sledge’s most recent clinical evaluation, DCF wrote a letter stating that Sledge was competent to proceed. Rather than conducting a formal hearing to determine whether Sledge was competent, the trial judge simply set a trial date and proceeded to trial. The jury returned verdicts of guilty, and Sledge was sentenced to a term of incarceration as a prison releasee reoffender.

Florida Rule of Criminal Procedure 3.210(a) provides that “[a] person accused of an offense ... who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.” Moreover, once adjudicated incompetent, “the legal status of a defendant cannot be adjudicated from incompetent to competent without a hearing.” Alexander v. State, 380 So.2d 1188, 1190 (Fla. 5th DCA 1980); see also Samson v. State, 853 So.2d 1116 (Fla. 4th DCA 2003). Therefore, once a defendant is found incompetent to stand trial, there must be a “subsequent finding that he ha[s] regained his competency in order to proceed.” Blue v. State, 837 So.2d 541, 543 (Fla. 4th DCA 2003) (reversing and remanding for a new trial after a competency hearing is held and the defendant adjudged competent to proceed to trial); see also Jackson v. State, 810 So.2d 545 (Fla. 4th DCA 2002) (holding that a judicial determination of incompetence remains valid until there is a subsequent judicial determination that the defendant is competent to proceed); Downing v. State, 617 So.2d 864 (Fla. 1st DCA 1993) (remanding with instructions that the petitioner receive a hearing on continued incompetency).

We note, parenthetically, that the State properly concedes that the trial court should have determined whether Sledge was competent before proceeding with the trial. Therefore, we reverse Sledge’s convictions and sentences and remand for a competency hearing and a new trial should Sledge be found competent to proceed.

REVERSED AND REMANDED.

PALMER and MONACO, JJ., concur.


author: GRIFFIN, J.

text:
    Robert Grant CAMERON, Appellant, v. Carlene Evan DICKEY, n/k/a Carlene Evan Allen, Appellee.
    No. 5D03-2037.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2004.
    Robert Grant Cameron, Daytona Beach, pro se.
    No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Robert Grant Cameron, III, [“Cameron”], appeals the support and visitation provisions of the trial court’s final judgment of paternity. Appellant is pro se on appeal. Construing his brief liberally, he raises four issues on appeal: (1) his attorney was negligent; (2) the trial court erred in setting the amount of child support; (3) the trial court abused its discretion in denying his motion for rehearing and not reconsidering the final judgment; and (4) the trial court erred in ordering supervised visitation.

On November 1, 2001, Cameron filed a petition to determine the paternity of his son, born March 25, 2001. Cameron requested that he be designated the primary residential parent because the mother had been unwilling to allow visitation, and that the court allow visitation from 8:00 p.m. Sunday to 8:00 p.m. Thursday because of his work schedule. Cameron filed a family law financial affidavit stating that he worked as a groundskeeper for a golf course, his rate of pay was $7.00 per hour, and his gross monthly wages were $1,200, with a net monthly income of $906.

In her answer, Carlene Evan Dickey, the child’s mother, requested that the court designate her as primary residential parent and requested that Cameron’s visitation with the infant be supervised, citing Cameron’s use of illegal drugs and alcohol.

Because Cameron’s appellate issues mostly involve questions of fact, we gave him the opportunity to supplement the appellate record with a transcript of the evi-dentiary hearing, but he has not done so. Without a record, we have no basis to reverse the trial court’s findings. We can also say that his claims of attorney negligence are not cognizable on appeal, and the trial court’s scheme of accelerating visitation is well within its discretion. The visitation schedule appears to represent a cautious but optimistic view of Cameron’s ability to parent under difficult circumstances, including the mother’s marriage. To his credit, Cameron has completed parenting classes and appears to want to be a positive influence in his son’s life.

It does appear that the provision for child support contains a legal error on its face. The financial affidavit Cameron filed on April 29, 2003, stated that he was then employed by Daytona Auto Dealers and his pay rate was $7.00 per hour. His gross monthly salary was $1,120, with a net monthly income of $888.

The court found that:

The father’s pay stub through March 30, 2003 reflects year-to-date gross wages of $6,304.55 (Exhibit 1), approximately 2,275.00 per month; his amended financial affidavit filed April 29, 2003 reflects gross wages of only $1,120.00 per month, a discrepancy that the father attributes to a back injury he suffered in March 2003. At the time of his amended affidavit, he was working “light duty” and only part-time. He voluntarily left Day-tona Auto Auction in early May 2003. The father testified that he is able-bodied now, but he is not actively seeking full-time employment. He lives with his parents, and his monthly living expenses are quite nominal. He is capable of earning at his March level of $2,275.00 per month, and the court imputes the income to him as required by § 61.30(2)(b), Florida Statutes.

Cameron’s total child' support payment was ordered to be $436.25/month. The court also found that Cameron had not provided support since the couple had separated two months after the child was born and, therefore, awarded retroactive child support in the amount of $10,346.40.

As the trial court explained, the decision to impute income was based on Cameron’s March 30, 2003, pay stub. The court then determined that retroactive support should be ordered and mathematical calculation confirms that it was the imputed income figure that was applied retroactively. Pursuant to section 61.30(17)(a), Florida Statutes, however, retroactive support is awardable according to the guidelines “subject to the obligor’s demonstration of his or her actual income ... during the retroactive period.” It is plain from the record, as well as from the trial court’s own judgment, that Cameron’s actual income during the retroactive period was different from the amount imputed. Retroactive support must be recalculated.

AFFIRMED in part; REVERSED in part; and REMANDED.

THOMPSON and PLEUS, JJ., concur.


text:
    Torrence Windell ALLEN, Appellant, v. Michael MOORE, Secretary, Department of Corrections, and Alfred Solomon, Warden, Apalachee Correctional Institution, Appellees.
    No. 1D02-1929.
    District Court of Appeal of Florida, First District.
    April 30, 2004.
    Torrence W. Allen, pro se, Indiantown, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Torrence Allen challenges the circuit court’s denial of a habeas corpus petition in which Allen sought review of a decision of the Department of Corrections upholding certain disciplinary reports and revoking gain time. The trial court denied the petition because, as the trial court correctly observed, Allen did not allege he was entitled to immediate release, a prerequisite of a habeas corpus petition. We are nevertheless constrained to quash the order. A petition for writ of mandamus is the appropriate vehicle for review of a prison disciplinary proceeding. See, e.g, Woullard v. Bishop, 734 So.2d 1151, 1152 (Fla. 1st DCA 1999). The circuit court should have treated Allen’s petition for habeas corpus as a petition for writ mandamus, and if facially sufficient, should have required the Department of Corrections to show cause with regard to the allegations in the petition. See Ashley v. Moore, 767 So.2d 491 (Fla. 1st DCA 2000).

Order of Dismissal QUASHED, case REMANDED.

KAHN, WEBSTER and BROWNING, JJ., concur.


text:
    Leonard METAYER, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4966.
    District Court of Appeal of Florida, First District.
    April 30, 2004.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Kott v. State, 518 So.2d 957 (Fla. 1st DCA 1988); Parker v. State, 570 So.2d 1053 (Fla. 1st DCA 1990); Moore v. State, 778 So.2d 1054 (Fla. 4th DCA 2001).

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    Angie MORRIS, Appellant, v. DOLLAR TREE STORE and Specialty Risk Services, Appellees.
    No. 1D03-2562.
    District Court of Appeal of Florida, First District.
    April 30, 2004.
    T. Rhett Smith, Esquire and Teresa E. Liles, Esquire of Smith & Janes, P.A., Pensacola, for Appellant.

      Mary L. Wakeman, Esquire of McCon-naughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellees.
   PER CURIAM.

Appellant challenges an order of the Judge of Compensation Claims denying her reimbursement of expenses associated with service by certified mail. We reverse and remand to the trial court for reconsideration in light of the recent decision in Morris v. Dollar Tree Store, 869 So.2d 704 (Fla. 1st DCA 2004).

WEBSTER, BENTON, and PADOVANO, JJ., concur.


text:
    Gregory A. GLOVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4802.
    District Court of Appeal of Florida, First District.
    April 30, 2004.
    Nancy A. Daniels, Public Defender and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Felicia A. Wilcox, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Gregory A. Glover, appeals his conviction for armed robbery and his sentence of life without parole as a prison releasee reoffender (PRR). Appellant raises six allegations of error. We affirm appellant’s conviction and find merit only in Appellant’s allegation of sentencing error. We reverse and remand for resen-tencing.

Because the state relied solely on hearsay evidence regarding Appellant’s release date from prison, it failed to prove an essential requirement for sentencing pursuant to the PRR Act. See § 775.082(9), Fla. Stat. (2000); see also Sinclair v. State, 853 So.2d 551 (Fla. 1st DCA 2003)(holding evidence was legally insufficient to support imposition of sentences under the PRR Act where state relied solely on hearsay evidence regarding defendant’s release date from prison and failed to prove prior convictions were defendant’s); King v. State, 590 So.2d 1032(Fla. 1st DCA 1991)(holding probation officer’s testimony regarding defendant’s release date based on a Department of Corrections computer printout, was inadmissible hearsay because officer was not the “custodian” of records and had no knowledge regarding the method of preparation or the reliability of the printout).

On remand, the trial court may again sentence Appellant as a PRR if it makes the required findings and the evidence supports those findings. Reversed and remanded for resentencing.

BARFIELD, KAHN and HAWKES, JJ., concur.


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    Gregory Gerome JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0480.
    District Court of Appeal of Florida, First District.
    April 30, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Shasta W. Kruse, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s motion to correct illegal sentence. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, 854 So.2d 659 (Fla.2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

AFFIRMED.

KAHN, DAVIS, and PADOVANO, JJ., concur.


author: KAHN, J.

text:
    Gerald YARBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2345.
    District Court of Appeal of Florida, First District.
    May 4, 2004.

      Appellant Gerald Yarbrough, pro se, Crestview.
    Charles J. Crist, Jr., Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant, Gerald Yarbrough, challenges the trial court’s denial of his Rule 3.850 motion for post-conviction relief. Because we find that trial counsel’s failure to properly investigate a witness and secure her testimony at trial undermines confidence in appellant’s conviction for sexual battery, we reverse.

I. Background

On June 6, 1998, appellant was arrested for sexual battery. Soon thereafter, the trial court appointed the Office of the Public Defender to represent appellant. Appellant’s trial occurred on May 25, 1999. The State presented nine witnesses, the majority of whom offered testimony tending to show that appellant had sex with the victim. Because appellant offered a consent defense, we discuss only the testimony of the alleged victim and her nephew.

The victim, Ms. Taylor, testified that the attack occurred at around 7:00 a.m. After hearing her son talking to someone in another part of the house, she asked the son to tell the person to go away. She recalled that she fell asleep and awoke to see appellant standing inside her bedroom with the door closed behind him. According to Taylor, appellant climbed into her bed, held her arms, and had sex with her while she repeatedly told him no. After appellant finished, Taylor went to the kitchen to get something to drink and then returned to the bedroom. According to Taylor, appellant remained seated at the foot of the bed. She testified that when appellant eventually left the house, she went outside to go to her mother’s house but went back inside after seeing appellant’s car parked down the street. Upon reentering her house, she called her sister. When the sister arrived, Taylor called the police.

Ms. Taylor also testified that she knew appellant before the incident. She said that appellant had no weapon and did not strike or threaten her. She testified that she did not call out for help at any time even though her 17-year-old nephew was in the house with her. According to Taylor, she did not call for help because she feared her nephew would fight with appellant and get hurt.

The nephew testified he was asleep in the house at the time of the incident and never saw appellant. He saw his aunt come into the kitchen at one point but she said nothing and went back to her room. The nephew knew appellant and had seen him before at his grandmother’s house and at Taylor’s house. The nephew was a high school football player weighing 234 pounds.

The defense presented no witnesses. The jury returned a verdict finding appellant guilty of sexual battery. That same day, the trial court sentenced appellant to 10 years, 9 months imprisonment.

II. Appellant’s Motion for Post-conviction Relief

After voluntarily dismissing a direct appeal, appellant timely filed a Rule 3.850 motion for post-conviction relief. The motion alleged that trial counsel rendered ineffective assistance of counsel by failing to locate and interview exculpatory witnesses, failing to object to the prosecutor’s leading questions, and failing to properly cross-examine State’s witnesses.

The trial court issued a Limited Order to Show Cause directing the State to “respond to Defendant’s claims of ineffective assistance of counsel set forth in Defendant’s motion and attached affidavits based on counsel’s failure to investigate Ms. Reeves, the victim’s mother, brother, and sister, Detective Robert Colbert, and ‘Frank.’ ” The order did not address the allegations related to counsel’s performance at trial.

Appellant, appellant’s wife, and his trial counsel testified at the hearing. Appellant testified he had provided his lawyer with a list of potential witnesses and had described how he felt that the witnesses would have helped his case. Of those witnesses, only the potential testimony of Pat Reeves is relevant to this appeal. According to appellant, Ms. Reeves would have been able to support his defense of consent. Appellant stated Taylor, on several occasions, told Reeves about her sexual desire for appellant and her hope that appellant would leave his wife and, further, Reeves would have testified accordingly.

Appellant’s wife, Cindy Yarbrough, testified that Ms. Reeves had told her about the comments the victim had made about appellant. Ms. Yarbrough stated that she provided appellant’s trial counsel with a significant amount of information regarding potential witnesses and that counsel had led her to believe that he would investigate.

Appellant’s trial counsel described his investigation of the case. He acknowledged that appellant had provided information regarding Ms. Reeves nearly ten months before trial. He further admitted that at about that time, he knew Ms. Reeves was in jail but he made no efforts to interview her there. Counsel’s first attempt to contact Reeves occurred approximately one month before trial. By that time, Reeves had moved to Michigan. He stated that Ms. Reeves had returned his phone call and told him (in more graphic terms than recited here) of Ms. Taylor’s desire for sexual relations with appellant. He acknowledged that he did not. attempt to depose Reeves or subpoena her for trial. Although he had investigators at his- disposal, counsel stated that he could not get Reeves’ address. He also acknowledged, in response to the trial court’s inquiry, that he made no attempt to match Reeves’ phone number with an address. Counsel told the trial court that he believed Reeves’ testimony “would have been useful if she proved to be a credible witness” but he could not remember if he moved for a continuance.

After the hearing, the trial court directed counsel to. submit memoranda stating whether the substance of Reeves’ potential testimony had been introduced through another witness and “whether the testimony of Ms. Reeves was of such import that the fact that it was not presented may have affected the fairness and reliability of the proceedings in such a fashion that the Court’s confidence in the outcome of the jury’s decision was undermined.” The trial judge stated that the absence of Reeves’ testimony caused him “considerable concern.”

On April 30, 2003, the trial court issued its Order Denying Defendant’s 3.850 Motion for Post Conviction Relief. According to the order, appellant “failed to demonstrate that trial counsel was ineffective for failing to call a witness to trial or that there existed a reasonable probability that the result of the proceeding would have been different had the witness testified at trial.” The trial court, referencing transcripts of pre-trial hearings, further found that “the defendant failed to prove the witness was available for trial” and to the extent she was available, “agreed to waive her absence and to proceed to trial without the witness.”

On appeal, Appellant raises only the issue of whether trial counsel rendered ineffective assistance of counsel in failing to investigate Ms. Reeves and call her as a witness.

III. Analysis

In reviewing the denial of a 3.850 motion after an evidentiary hearing, this court cannot disturb findings of the trial court which are supported by competent, substantial, evidence. See Swafford v. State, 828 So.2d 966, 977 (Fla.2002). The appellate court may “not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given the evidence by the trial court.” Id. (quoting Melendez v. State, 718 So.2d 746, 747-48 (Fla.1998)).

In this case, the evidentiary hearing raised virtually no disputed issues. Appellant’s trial counsel confirmed most of the factual allegations raised in Appellant’s 3.850 motion regarding Ms. Reeves. Significantly, counsel acknowledged that: 1) appellant provided him with a list of witnesses ten months before trial; 2) he did not interview Reeves while she was in the local jail; 3) he waited until one month before trial before attempting to contact Reeves; 4) Reeves confirmed by telephone that Taylor expressed sexual desires for appellant; 5) he made no further attempts to secure Reeves’ testimony after that contact; 6) he had no memory of using the public-'defender’s office’s investigators; 7) he did not try to depose or subpoena Reeves; 8) he believed Reeves’ testimony would have been useful in presenting a consent defense; and 9) he did not move for a continuance. Thus, the trial court needed .only to apply these established facts to the law regarding ineffective assistance of counsel. In such a case, the trial court’s application of law to the facts is reviewed under a de novo standard. See Gore v. State, 846 So.2d 461, 468 (Fla. 2003).

In order to prevail' on a claim of ineffective assistance of counsel, a defendant must demonstrate both deficient performance on the part of trial counsel and prejudice to the defendant resulting from that deficient performance. See Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Counsel’s performance is deficient if it falls below “ ‘an objective standard of reasonableness’ based on ‘prevailing professional norms.’ ” Id. In order to establish prejudice, a defendant must show a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. A reasonable probability is one which is sufficient to undermine confidence in the outcome of the proceedings. Id. A defendant is “not entitled to perfect or error-free counsel, only to reasonably effective counsel.” Waterhouse v. State, 522 So.2d 341, 343 (Fla.1988).

The trial court’s order did not focus on trial counsel’s failure to make reasonable efforts to investigate Ms. Reeves as a potential witness. Instead, the trial court made the following findings:

1. Defendant has failed to demonstrate that trial counsel was ineffective for failing to call a witness to trial or there existed a reasonable probability that the result of the proceeding would have been different had the witness testified at trial. See: Strickland v: Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
2. The evidence presented at the hearing in this matter failed to prove the witness was available for trial. (See transcript May 5[,] 1999, p2; transcript May 19, 1999, p2, 3, 4; transcript May 21, 1999 p. 4); See: Roberts v. State, 825 So.2d 1046 (Fla. 1st DCA 2002); Nelson v. State, 816 So.2d 694 (Fla. 5th DCA 2002). Further, to the extent that the witness was available, defendant agreed to waive her absence and to proceed to trial without the witness. (See transcript May 21,1999, pp 4, 5).

The trial court’s citations to the pre-trial hearing transcripts show only that counsel was either having difficulty in contacting the witness or making no efforts toward contacting her.

At the May 5 pretrial hearing, trial counsel told the court, “He’s got me trying to contact one witness or she’s supposed to be getting in touch with me, I don’t think she’s returned that call yet, other than that, we should be ready to go at the end of this month.” Counsel made no other statement during that hearing regarding his attempts to contact Ms. Reeves or to ascertain her availability as a witness.

During the May 19 hearing, the trial judge spoke to both appellant and his counsel regarding the importance of Ms. Reeves’ testimony. When asked if they wanted a continuance, appellant stated, “I need to,” and counsel stated, “[tjhis would be an important witness if we could locate her and get her testimony. We would ask for a continuance if the court would consider it.” Counsel also stated that he had not spoken to Ms. Reeves. However, during the Rule 3.850 evidentiary hearing, counsel testified that he spoke with Ms. Reeves on or about April 30, 1999, after she returned his phone call. We also glean from the transcript that counsel’s efforts to locate Ms. Reeves went no further than waiting for her to call back. At the commencement of the May 19 hearing, counsel stated:

I think we’re as ready as we’re going to get, Judge. He had a witness out of state. I called, left a message for somebody to have that witness contact me and they haven’t so far. I’ve talked to Mr. Yarbrough [appellant] about that. He was to contact this person and we haven’t had any luck on that.

Nothing in the remainder of the transcript suggests that trial counsel intended to make any further efforts or that the trial court expected him to do so. At the conclusion of that hearing the trial judge told appellant:

Because I’m going to put it on you to try to do something to try to find this person and get the person to talk to Mr. Griffith, see if she can come down next week to testify. If not, we can see whether we can get the witness or not.

During the May 21 hearing, the trial court asked counsel, “What else are you doing on this case? Is it ready for trial?” Counsel responded, “Judge, I haven’t heard from Mr. Yarbrough concerning the witness that he was supposed to contact.” The trial judge then asked appellant if he was “ready to go to trial without the witness.” Appellant stated he was ready.

To the extent that it relies upon waiver, the trial court’s order merely attributes to appellant the problems created by counsel’s failure to investigate Ms. Reeves until shortly before trial.

The trial court cited Roberts v. State, 825 So.2d 1046 (Fla. 1st DCA 2002) and Nelson v. State, 816 So.2d 694 (Fla. 5th DCA 2002) to support the conclusion that appellant was not entitled to relief because he “failed to prove the witness was available for trial.” Actually, these cases simply support the proposition that a facially sufficient claim of ineffective assistance for failing to call a witness at trial requires an allegation that the witness is available. See Roberts, 825 So.2d at 1047 (“[Appellant has provided the substance of the witnesses’ testimony and has alleged their availability to so testify.”); Nelson, 816 So.2d at 696 (“Counsel’s failure to call a witness who was unavailable to testify at trial could not logically prejudice the outcome of -a defendant’s trial.”). In this case, however, appellant points to counsel’s failure to adequately and timely investigate Ms. Reeves’ potential testimony, as well as his ultimate failure to call her as a witness.

“[Cjounsel has a duty' to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984); see also Marshall v. State, 854 So.2d 1235, 1247 (Fla.2003). Here, appellant’s trial counsel, offered no reasonable explanation for his failure to interview Ms. Reeves at the time appellant first advised him of her location and the substance of her testimony. Once he finally made contact with Ms. Reeves, one month before trial, trial counsel failed to make attempts to take her deposition or subpoena her for trial. Counsel’s only explanation for this failure was that he did not have her address. When asked by the trial court why he did not try to match her phone number with an address, counsel responded:

The reason that I didn’t is I believe I asked Ms. Reeves for an address when I had that conversation with her so I could serve her if it was necessary, and she could not provide me with an address, she said she wouldn’t be staying there long and she didn’t know where she was going.

He further testified that he had no recollection of utilizing the public defender’s office’s investigators in trying to locate or interview Ms. Reeves.

Based on the foregoing, appellant’s trial counsel did not render assistance meeting an “objective standard of reasonableness.” See Cherry, 781 So.2d at 1048 (citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2052). Reasonable counsel should have tried to contact Ms. Reeves long before appellant’s trial counsel made his first attempt. Counsel’s delay created additional difficulties in obtaining the testimony because Ms. Reeves moved to Michigan. Moreover, counsel’s attempts to interview and locate Ms. Reeves were limited to leaving a message for her and speaking to her once on the phone.

The record also demonstrates prejudice resulting from counsel’s performance. Strickland’s prejudice prong is satisfied where the defendant succeeds in showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2052. A “reasonable probability” is one which is “sufficient to undermine confidence in the outcome.” Id. In this case, appellant presented a consent defense. Many of the facts related- by Taylor in this case, such as her failure to call out for her nephew, her return to the bedroom after going to the kitchen for water, and the absence of threats or verifiable force by appellant, lend support to a consent defense. Ms. Reeves’ testimony indicating that Taylor had frankly expressed her sexual desire for appellant could have reasonably led the jury to find appellant not guilty. The facts here satisfy the prejudice prong.

. We REVERSE and REMAND with instructions for the trial court to vacate appellant’s judgment and sentence and grant a new trial.

ALLEN and POLSTON, JJ., concur.


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    Joanne BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3542.
    District Court of Appeal of Florida, First District.
    May 4, 2004.
    Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct criminal appeal, the judgment incorrectly indicates that the appellant entered a plea of guilty to the crime of burglary of a dwelling with an assault. She actually entered a plea of guilty to the lesser included crime of burglary of a dwelling. We therefore remand this case to the trial court for correction of the judgment. The judgment and sentence are otherwise affirmed.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Andre GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0799.
    District Court of Appeal of Florida, First District.
    May 4, 2004.
    Herman D. Laramore, Public Defender, and Roy Lake, Assistant Public Defender, Bonifay, for appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This appeal is dismissed for lack of jurisdiction. See Broxson v. State, 782 So.2d 528 (Fla. 1st DCA 2001).

DISMISSED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    Stanley HAYNIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0040.
    District Court of Appeal of Florida, First District.
    May 4, 2004.
    Jack Behr, Public Defender, and Earl D. Loveless, Assistant Public Defender, Pensacola, for appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This appeal is dismissed for lack of jurisdiction. See generally Williams v. State, 324 So.2d 74 (Fla.1975).

DISMISSED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


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    Carla KIRKLAND, Petitioner, v. Kevin T. GREEN, Respondent.
    No. 1D04-0595.
    District Court of Appeal of Florida, First District.
    May 4, 2004.
    Jason A. Cobb, Defuniak Springs, for petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of prohibition is denied as facially insufficient. See Fla. R.App. P. 9.100.

PETITION DENIED.

WOLF, C.J., BOOTH and BENTON, JJ., concur.


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    Evelyn C. HERNANDEZ, Appellant, v. CARNIVAL CRUISE LINES, INC. and Florida Unemployment Appeals Commission, Appellee.
    No. 3D03-908.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Evelyn C. Hernandez, in proper person.
    John D. Maher, Deputy General Counsel, for appellee, Commission.
    Before LEVY, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Fink v. Fla. Unemployment Appeals Comm’n, 665 So.2d 373 (Fla. 4th DCA 1996).


text:
    Duane Isaac WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 03-2213.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Bennett H. Brummer, Public Defender and Manuel Alvarez, Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SHEPHERD, JJ.
   PER CURIAM.

Duane Isaac Walker contends that the trial court erred by denying him a “Steele hearing. However a Steele hearing is not required as the trial court considered Walker’s belated motion for post-conviction relief and denied it on the merits as well as on procedural grounds.

Affirmed.

        . Steele v. Kehoe, 747 So.2d 931 (Fla.1999)(holding that a prisoner is entitled to a hearing on a claim that he or she missed the deadline to file a Rule 3.850 motion because his or her attorney had agreed to file the motion but failed to do so in a timely manner; if the prisoner prevails at the hearing he or she is authorized to file belatedly a Rule 3.850 motion).

      . In Steele, at 934-35, the court directly amended Rule 3.850(b) to provide for a belated appeal in situations such as Steele’s. See Rule 3.850(b)(3)[2004],

      . Holding that Walker's claim was refuted by the plea colloquy.


text:
    Timothy MORROW, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-128.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Consuelo Maingot, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and SHEVIN and WELLS, JJ.
   PER CURIAM.

The order denying post-conviction relief from the appellant’s sentence is reversed and the cause remanded for sentencing by another judge. Wilson v. State, 845 So.2d 142 (Fla.2003); Smith v. State, 842 So.2d 1047 (Fla. 3d DCA 2003), and cases cited.


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    Carola M. VARGAS-LEON, M.D., Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH, Respondent.
    No. 3D04-499.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Richard B. Marx, Coconut Grove, for petitioner.
    Dana Baird (Tallahassee), for respondent.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Carola Vargas-Leon, M.D. has petitioned for review of the State of Florida, Department of Health’s order of emergency restriction of license. We affirm the order as it is proper pursuant to Section 120.60(6), Florida Statutes. See Arwas v. State, 815 So.2d 712 (Fla. 3d DCA 2002).

Affirmed.


text:
    Jodhi VALLIAPPAN, Appellant, v. Victor Vicente CRUZ, Off-Shore Aviation, Inc., and Santhy Valliappan, Appellees.
    No. 4D03-2283.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.

      Jason A. Dvoracek of Koppen, Watkins, Partners & Associates, Delray Beach, for appellant.
    Todd S. Payne and Eric T. Salpeter of Zebersky & Payne, LLP, Hollywood, for Appellee-Victor Vincente Cruz.
   PER CURIAM.

We reverse an order denying Jodhi Val-liappan’s motion to set aside a default judgment. There is no proof in the record that Cruz served Valliappan with process by registered or certified mail, as required by the substituted service provisions of section 48.161, Florida Statutes. Section 48.161 allows substituted service in this matter upon a non-resident or a person concealing his whereabouts, provided the plaintiff sends notice of service and a copy of the process by registered or certified mail to the defendant, files the return receipt, and files an affidavit stating compliance. § 48.161, Fla. Stat. (2003).

The record reflects that, after serving the Secretary of State, Cruz failed to mail Valliappan a copy of the complaint and summons by registered or certified mail. Because due process requires strict compliance with the statutory requirements, we remand for further proceedings. See Monaco v. Nealon, 810 So.2d 1084, 1085 (Fla. 4th DCA 2002); see also Wyatt v. Haese, 649 So.2d 905, 906 (Fla. 4th DCA 1995).

All other issues raised are moot.

STONE, KLEIN and TAYLOR, JJ., concur.


text:
    Wayne David FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1483.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Wayne David Frazier, appeals his conviction and sentence on the charges of possession of cocaine, possession of drug paraphernalia and for failure to appear. We find the three issues raised on appeal with respect to the possession charges to be without merit and affirm those convictions.

Frazier further argues that the trial court fundamentally erred in adjudicating him guilty for his failure to appear when he was not formally charged with the offense. We agree and find it was error for the trial court to convict him on this charge. Scala v. State, 770 So.2d 732 (Fla. 4th DCA 2000); Repetti v. State, 741 So.2d 646 (Fla. 4th DCA 1999). We reverse his conviction on this charge.

AFFIRMED in part; REVERSED in part.

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


text:
    Gary FULTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4357.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Gary Fulton, appeals from the trial court’s order revoking his probation for failure to pay restitution. He argues that his failure to pay was not willful or substantial. We agree.

“In order to support a revocation of probation, the State has the burden of proving by the greater weight of the evidence that the probationer’s violation was both substantial and willful.” Anderson v. State, 711 So.2d 106, 108 (Fla. 4th DCA 1998).

Based upon the record on appeal, we find that the State failed to meet this burden of showing that appellant’s violation was both willful and substantial. We, therefore, reverse and remand for the reinstatement of appellant’s probation.

REVERSED and REMANDED.

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


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Blanca RISATTI, individually, and as natural mother and legal guardian of Humberto Deigo Pajares, her minor son, Richard Puig and Vivian J. Puig, Respondents.
    No. 4D04-93.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Caryn L. Bellus and Barbara E. Fox of Kubicki Draper, Miami, for petitioner.
    Michael C. Rnecht of Michael C. Rnecht & Assoc., P.A., Palm Beach Gardens, for respondents Blanca Risatti, individually, and as natural mother and legal guardian of Humberto Deigo Pajares, her minor son.
    No appearance for respondents Richard Puig and Vivian J. Puig.
   PER CURIAM.

We deny the petition for writ of certio-rari. This denial is without prejudice for petitioner to raise an attorney-client privilege objection to the disclosure of any document pursuant to Florida Rule of Civil Procedure 1.280(b)(5). The issue was not waived below because the trial court’s order contemplated that objections could be made at the deposition of the records custodian.

STEVENSON, GROSS and HAZOURI, JJ., concur.


text:
    Z. K., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4777.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melanie A. Dale, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Z.K., a child, was found guilty of battery on a law enforcement officer and resisting police officer without violence and placed on probation. The public defender’s office filed a brief and motion to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree there are no arguable issues on appeal and affirm.

However, one issue must be addressed on remand. See Bell v. State, 798 So.2d 796, 796-97 (Fla. 4th DCA 2001). The amended delinquency disposition order incorrectly reads that the appellant pled “nolo contenedere [sic]”, but should read the appellant went to an adjudicatory hearing. Additionally, the amended order fails to include community service credits for employment and incorrectly gives credits for earning a “C” at school. The order should adhere to the oral pronouncement made by the trial court at the conclusion of the adjudicatory hearing. These errors appear to be merely scrivener’s errors that require correction, but not reversal. Id. at 797.

STONE, POLEN and HAZOURI, JJ., concur.


text:
    Kevin J. HALEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3584.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2004.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order revoking Kevin J. Haley’s probation, but remand for removal of any reference in the record to a violation associated with ground V as detailed in the amended warrant. Morgan v. State, 757 So.2d 618 (Fla. 2d DCA2000).

GUNTHER, GROSS and HAZOURI, JJ., concur.


text:
    Melissa SUAREZ, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-3316.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Melissa Suarez, Orlando, pro se.
    John D. Maher, Tallahassee, for Appel-lee.
   GRIFFIN, J.

Appellant seeks review of an order of the Unemployment Appeals Commission [“UAC”] dismissing her appeal of the decision of an appeals referee. Appellant concedes the appeal was filed untimely, but seeks to have the appeal proceed because of circumstances beyond her control. She asserts that she accidentally left her file in her desk at work and her employer was closed over the holiday. The timely filing of the notice is what gives the UAC jurisdiction. In the absence of timely filing, UAC lacks the power to act. The quality of the excuse does not matter so long as she was notified of the referee’s decision, thereby satisfying due process. Appellant’s response reflects without dispute that she received the required notice of the decision she seeks to appeal.

AFFIRMED.

PETERSON and ORFINGER, JJ., concur.


author: STRINGER, Judge.

text:
    Demetrius MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3787.
    District Court of Appeal of Florida, Second District.
    May 7, 2004.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Demetrius Mitchell seeks review of the final order revoking Mitchell’s community control and adjudicating him guilty of sexual battery and false imprisonment, pursuant to a guilty plea. The trial court properly found that Mitchell violated condition 3 of his community control by changing his residence without consent, but the court erred in finding that Mitchell violated condition 67 by failing to attend and complete a sexual offender treatment program. Accordingly, we affirm in part the order of revocation, reverse in part, and remand for the trial court to strike the violation of condition 67.

“To establish a violation of probation, the prosecution must prove ... that a probationer willfully violated a substantial condition of probation.” Lynom v. State, 816 So.2d 1218 (Fla. 2d DCA 2002) (citing Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996)). The standard of review of a trial court’s revocation of community control is abuse of discretion. See Molina v. State, 520 So.2d 320, 321 (Fla. 2d DCA 1988).

The trial court found that Mitchell violated condition 3 by changing his residence without consent. On January 4, 2003, Mitchell’s probation officer went to Mitchell’s approved residence and was told by Mitchell’s sister that he was no longer living there. Two days later, the probation officer returned to the apartment and discovered it had been vacated. Mitchell had left a note in the apartment thanking his sister and saying, “I have to leave, I’ve moved on.” No new address had been discussed or approved for Mitchell, and Mitchell never contacted his probation officer or attended monthly appointments after January 4, 2003. Mitchell was unavailable for supervision from January 4, 2003, until his arrest on April 17, 2003, nor could he be tracked during that time because he left the tracking-device battery at the abandoned apartment. Based on this evidence, the trial court did not abuse its discretion in determining that Mitchell violated condition 3 of his community control.

Regarding condition 67, the trial court found a willful and substantial violation based on evidence that Mitchell was terminated from the sex offender treatment program due to unexcused absences. In Dunkin v. State, 780 So.2d 223, 224 (Fla. 2d DCA 2001), this court found that evidence of unexcused absence from the sex offender treatment program was insufficient to establish a willful and substantial violation of probation where the violated condition “did not specify that treatment had to be successfully completed on the first try or how many chances the appellant would be given to complete it successfully,” We reversed the revocation of probation, stating, “This court has repeatedly found similar circumstances insufficient to establish willful and substantial violations of probation.” Id. at 224 (citing Butler v. State, 775 So.2d 320 (Fla. 2d DCA 2000); Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995); Young v. State, 566 So.2d 69 (Fla. 2d DCA 1990)). But see Woodson v. State, 864 So.2d 512 (Fla. 5th DCA 2004) (stating defendant is not at liberty to choose the time of compliance with sex offender conditions of probation and, if initial attempts are unsuccessful, further chances for compliance are a matter for the trial court’s discretion).

In this case, the sex offender treatment condition only stated that Mitchell needed to complete the program. It did not specify that treatment had to be successfully completed on the first try or how many chances he would be given to complete the program. Accordingly, the State failed to prove that thé violation of condition 67 was willful and substantial, and the trial court abused its discretion in finding that the condition was violated.

Where a violation of a condition of community control is reversed on appeal but other violations remain, the appellate court will either remand to the trial court to strike the erroneous violation or reverse the order of revocation and remand for the trial court to consider whether the remaining violation or violations warrant revocation. This court stated in Coxon v. State, 365 So.2d 1067, 1068 (Fla. 2d DCA 1979), that we will remand for reconsideration of the revocation order “when a substantial ground for revocation was reversed leaving only proof of the violation of a technical ground to support the revocation.” In Coxon, we found that the remaining violations, leaving the county for over six months and failing to file monthly reports, constituted “a substantial violation of probation and [were] sufficient to support the revocation.” Id. Accordingly, remand for reconsideration was not required, and the violation of probation was affirmed. Id.; see also Chamness v. State, 697 So.2d 961 (Fla. 2d DCA 1997) (remanding for the trial court to strike erroneous violation, otherwise affirming the revocation, where remaining violation was failure to comply with special condition outpatient sex offender program). In Davis v. State, 862 So.2d 931 (Fla. 2d DCA 2004), however, we reversed and remanded for reconsideration of the revocation where the remaining violation involved a failure to perform community service because the record was unclear as to whether the trial court would have revoked the probation based on that violation alone. See also Williams v. State, 787 So.2d 180 (Fla. 2d DCA 2001) (reversing and remanding for reconsideration where remaining violation was “failing to perform any community service”).

We find that Mitchell’s remaining violation of condition 3 for changing his residency without consent, leaving his whereabouts unknown until his arrest over four months later, is a substantial violation sufficient to support the revocation of Mitchell’s community control. Accordingly, we affirm the revocation order based on Mitchell’s violation of condition 3, reverse as to the violation of condition 67, and remand for the trial court to strike the violation of condition 67 from the revocation order. We certify that this decision conflicts with the Fifth District’s decision in Woodson, 864 So.2d 512.

CASANUEVA and WALLACE, JJ., Concur.


text:
    PARKER, LANDERMAN & PARKER, P.A., Petitioner, v. William D. RICCARD, Respondent.
    No. 5D04-443.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Donald L. O’Dell and Patricia A. Johnston, of Meier, Bonner, Muszynski, Doyle & O’Dell, P.A., Orlando, for Petitioner.
    C. Michael Duncan, of Duncan Law Offices, P.A., Clermont, for Respondent.
   GRIFFIN, J.

Petitioner, Parker, Landerman and Parker, P.A., [“The Parker Firm”], defendant in a legal malpractice action, seeks certio-rari review of an order which allowed the plaintiff, William D. Riccard [“Riccard”], to amend his complaint to state a claim for punitive damages, apparently predicated on alleged errors and omissions during its representation of Riccard. The trial court conducted a hearing on Riccard’s motion. Riccard’s counsel argued that information learned through discovery supported the punitive damage claim. The Parker Firm asserted that the judge previously assigned to the case had correctly denied an identical motion, and Riccard’s counsel was not relying on any new information. After the hearing, the trial judge allowed the punitive damages claim to be added.

Section 768.72(1), Florida Statutes (2003), creates a substantive right not to be subjected to a punitive damage claim or financial worth discovery until a trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages. A district court of appeal possesses certiorari jurisdiction to review whether the trial court has conformed with the procedural requirements of the statute but cannot review the trial court’s decision to grant leave to amend the complaint once the procedural requirements have been followed. See Globe Newspaper Co. v. King, 658 So.2d 518 (Fla.1995). See also Massey Services, Inc. v. Brown, 801 So.2d 307 (Fla. 5th DCA 2001); Delta Health Group, Inc. v. Jackson, 798 So.2d 857 (Fla. 5th DCA 2001).

Here, no procedural error appears. The certiorari petition is based on the contention that the facts in the record do not support a claim for punitive damages. This is the type of issue that this court cannot review by certiorari.

PETITION DENIED.

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

      . The basis for the punitive damage claim appears to center on allegations that petitioners undertook Riccard's representation while under a conflict of interest and intentionally mishandled his litigation.


author: ORFINGER, J.

text:
    Angel QUINONES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-669.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Angel Quinones, Florida City, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.
   ORFINGER, J.

Angel Quinones petitions for a writ of habeas corpus authorizing a belated appeal. He contends that his counsel failed to timely file a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(1). Quinones’s remedy, if he has one, exists in a timely motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Accordingly, we deny the petition seeking a belated appeal without prejudice to Qui-nones raising these issues in a rule 3.850 motion. See Dooley v. State, 789 So.2d 1082 (Fla. 1st DCA 2001) (holding that defendant is not precluded from filing a rule 3.850 motion to withdraw his plea merely because he did not file a motion to withdraw pursuant to rule 3.170(1)).

PETITION FOR BELATED APPEAL DENIED.

PLEUS and MONACO, JJ., concur.


author: PLEUS, J.

text:
    Arnold J. ROSE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D04-716.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Arnold J. Rose, Jr., Wewahitchka, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Defendant, Arnold J. Rose, Jr., appeals the summary denial of his rule 3.800(a) motion seeking additional jail time credit. The trial court denied the motion as successive, but failed to attach defendant’s prior motion or the prior order to establish that the same issue was previously raised and rejected.

We nevertheless affirm the trial court’s order, because the motion is facially insufficient. We do so without prejudice to the defendant to file a motion which alleges that the record shows on its face his entitlement to additional credit and states the relevant dates to support his claim. Should the trial court again deny the motion as successive, the court must attach copies of the prior motion and order. See McAllister v. State, 840 So.2d 1163 (Fla. 5th DCA 2003).

AFFIRMED without prejudice.

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


author: BENTON, J. DAVIS, J.,

text:
    MEDIA GENERAL, INC. and Kemper National Insurance Company, Appellants, v. Teresa M. McGUIRE, Appellee.
    No. 1D03-1094.
    District Court of Appeal of Florida, First District.
    May 10, 2004.
    R.G. McCormick, Jr., Esquire of the Bleakley Law Firm, Tampa, for Appellants.
    Michael Keough, Esquire, Hudson and Bill McCabe, Esquire of Shepherd, McCabe & Cooley, Longwood, for Appel-lee.
   BENTON, J.

At issue on this appeal is whether the judge of compensation claims properly awarded Teresa McGuire authorization for intradiscal electrothermal therapy without appointing a timely requested expert medical advisor to evaluate whether she needed such therapy. Drs. Maser and Trimble recommended the therapy, while Dr. Com-panioni, a board certified orthopedist, testified that the therapy was not curative or medically necessary. In reaching her decision, the judge of compensation claims rejected Dr. Companioni’s opinion and accepted Dr. Trimble’s and Dr. Maser’s.

The failure to appoint an expert medical advisor was error. See AT & T Wireless v. Frazier, 871 So.2d 939, 2004 WL 609298 (Fla. 1st DCA March 30, 2004) (“Section 440.13(9) imposes upon the JCC a statutory duty to order that the claimant be evaluated by an EMA before ruling on the merits of the petition for benefits whenever it becomes apparent that there is a substantial conflict in the medical opinions, even if the conflict in medical opinions becomes evident only after the merits hearing has begun, and even if neither party requests appointment of an EMA.”); Martinez v. HealthSouth Doctor’s Hosp., 817 So.2d 1080 (Fla. 1st DCA 2002); Helmsman Mgmt. Servs. v. Garner, 725 So.2d 1188 (Fla. 1st DCA 1998); Claims Mgmt., Inc. v. Lake, 717 So.2d 140 (Fla. 1st DCA 1998); Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352 (Fla. 1st DCA 1997). See also Broward Children's Ctr., Inc. v. Hall, 859 So.2d 623 (Fla. 1st DCA 2003); Siemens Info. & Communications Network v. Collins, 854 So.2d 271 (Fla. 1st DCA 2003). The conflict in medical opinion was material. It lay at the heart of the case.

Reversed and remanded.

BARFIELD, J., concurs; DAVIS, J., dissents with opinion.

DAVIS, J.,

dissenting.

Drs. Maser and Trimble opined that the therapy was medically necessary for the claimant. Dr. Companioni opined that the therapy was not medically necessary for anyone, including the claimant. These opinions do not constitute a disagreement as to whether the therapy is medically necessary for the claimant, but rather, whether the therapy is a reliable, tested procedure. Thus, the JCC did not abuse her discretion in finding that there was insufficient evidence of a material dispute to necessitate the appointment of an expert medical advisor. Accordingly, I respectfully dissent. I would affirm the JCC’s order in its entirety.


text:
    William T. SPENCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0403.
    District Court of Appeal of Florida, First District.
    May 10, 2004.
    William T. Spencer, pro se, petitioner.
    Charlie Crist, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the October 20, 2003, judgment and sentence in Leon County Circuit Court case number 2002CF-2523. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

WOLF, C.J., BOOTH and BENTON, JJ., concur.


text:
    Roderick J. WARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4857.
    District Court of Appeal of Florida, First District.
    May 12, 2004.
    Roderick J. Ward, petitioner, pro se.

      Charlie Crist, Attorney General, and Alan R. Dakin, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Roderick J. Ward seeks a belated appeal of a July 15, 2003, order of the Leon County Circuit Court denying his motion for postconvietion relief in case number 95-1802. He alleges in his sworn petition that he timely filed a motion for rehearing of that order, but that he did not receive a copy of the trial court’s order denying rehearing until after the time for seeking an appeal had expired. The state concedes that on the basis of the sworn allegations of the petition, Ward is entitled to relief. Accordingly, the petition for belated appeal is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

ERVIN, DAVIS and BROWNING, JJ., concur.