author: MAY, J.

text:
    Cecil COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1690.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for burglary of an occupied dwelling. He raises as error the jury instructions given and the court’s impromptu sentencing. We affirm his conviction, but reverse and remand the case for a new sentencing hearing.

Testimony revealed that the defendant had followed, watched, and made sexual advances to the female victim prior to the incident. On the day in question, the defendant entered the victim’s apartment at five a.m. He came in through a back window that was not visible from other apartments or to people passing by. He opened the bedroom door only to encounter the victim’s husband, who chased him out of the apartment. The defendant left in the same stealthy manner that he entered. He admitted to entering the apartment, but denied any criminal intent.

The State charged him with burglary of an occupied dwelling. When the defense rested, the State requested and the trial court granted a three-day adjournment to allow the State to bring in rebuttal witnesses from Louisiana.

Without objection, the trial court instructed the jury as follows.

Before you can find the defendant guilty of burglary, the state must prove the following three elements beyond a reasonable doubt: (1) That Cecil Collins entered or remained in a structure owned by or in possession of Tina Nolte and Ron Nolte; (2) Cecil Collins did not have the permission or consent of Tina Nolte or Ron Nolte or anyone else authorized to ask [sic] for them to enter and/or remain in the structure at that time; (3) At the time of entering or remaining in the structure, Cecil Collins had a fully formed, conscious intent to commit an offense in that structure. Proof of the entering of a structure stealthfully, and without the consent of the owner or occupant, may justify a finding that the entering was with the intent to commit a crime if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the intent existed.

The trial court reread the instructions, including the burglary instruction, in response to a jury question concerning whether “stealthiness” could itself be evidence of intent to commit a crime. The jury convicted the defendant as charged.

Defense counsel requested a pre-sen-tence investigation [PSI]. The State requested the court to set a date for sentencing. The court began to set a date when it became aware that the defendant was not entitled to a PSI. The judge then asked ‘Why am I not sentencing him today? What do you all want to do?” The State indicated that there was no legal reason why the court could not sentence the defendant immediately.

The judge then asked defense counsel whether he was ready to go forward with sentencing. Defense counsel replied that he needed time and asked for a couple of weeks. The judge asked defense counsel to state specifically whom and what he needed. Defense counsel said that he would most likely call the defendant’s parents, who lived in Louisiana. He didn’t know when they could travel, which is why he asked for two weeks.

THE COURT: Is there any reason not to set it at 1:30?
MR. ROSSMAN [the prosecutor]: There’s no legal reason.
THE COURT: Be back at 1:30.
MR. MARCHETTA [defense counsel]: Your Honor, the state was given three days to get their witnesses in from Louisiana, three days. This man is being sentenced. He’s looking at 15 years. You gave them three days. Give us the same three days, Judge. We don’t want to rush into this. That’s all we’re asking, just a couple of days.
THE COURT: I’m sure you’ve had an enormous amounts [sic] of time to determine what it is you may not [sic] want to do had this verdict been what the verdict is. I’ll be back at 1:30. See you all then.

When court reconvened, defense counsel again asked for more time to bring in the defendant’s parents, his coaches, and other people that he worked with in the Louisiana community. In essence, counsel asked the court for the same opportunity the State had been given to bring in witnesses from Louisiana. The court denied the request.

The State presented testimony from the victims, and asked the court to consider evidence of prior consistent acts that had been kept from the jury. Defense counsel declined to make a presentation stating that he “was not prepared.” The trial judge sentenced the defendant to fifteen (15) years in prison.

The defendant argues that the trial court committed fundamental error in instructing the jury on the crime of burglary. He relies on this court’s decision in Lopez v. State, 805 So.2d 41 (Fla. 4th DCA 2001), to support his position. This court has recently receded from Lopez in Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003).

Based upon Roberson, we find that the burglary instruction given in this case did not constitute fundamental error. Roberson, 841 So.2d at 493. As in Roberson, the defendant was not prejudiced by the inclusion of the “remaining in” language of the instruction because the evidence at trial pointed clearly to the “breaking and entering” method of committing the crime of burglary. Id. We therefore affirm the conviction.

We conclude, however, that the trial court abused its discretion in denying the defendant the opportunity to present mitigating evidence at his sentencing hearing. See Weible v. State, 761 So.2d 469 (Fla. 4th DCA 2000).

We acknowledge the discretion possessed by trial courts in deciding whether to grant a continuance. We further understand that the trial court’s decision should not be reversed unless “there has been a palpable abuse of this judicial discretion.” Magill v. State, 386 So.2d 1188, 1189 (Fla.1980). However, “[f|ew rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).

Over repeated requests, the court denied the defense any time to prepare for sentencing. While the court had adjourned the trial for three days to allow the State to bring in rebuttal witnesses, it denied the same opportunity to the defendant when he was facing, and ultimately received, fifteen years in Florida State Prison. A palpable abuse of discretion is evident from this record. The case is remanded for a new sentencing hearing.

GUNTHER and FARMER, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Damian KING, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1976.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Alen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Barbara A. Zappi, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse appellant’s conviction for indecent assault on a child under sixteen years of age because the trial court erred in denying appellant’s requested jury instruction on battery. As battery is a category two lesser included offense of indecent assault, and the information and evidence support the lesser included offense is within the charged offense, the court was required to give the instruction upon appellant’s request. See Biles v. State, 700 So.2d 166, 167 (Fla. 4th DCA 1997). Here, both the pleadings and the evidence supported a battery instruction.

Reversed and remanded for a new trial.

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    Nathaniel HILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4689.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.

      Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals the trial court’s order that denied his motion for new trial after his conviction for burglary with intent to commit theft. We treat this as an appeal from a denial of a motion for ineffective assistance of counsel and affirm.

The defendant was convicted of burglary with intent to commit theft and acquitted of a petit theft charge. The defendant filed a motion for new trial fourteen days after the jury verdict. In the motion, the defendant argued that the verdict was inconsistent because the petit theft was a necessary underlying element of the burglary. He reasons that if he wasn’t guilty of the petit theft, he couldn’t be guilty of the burglary. The State responds that the motion was untimely and thus the trial court lacked jurisdiction to rule on the motion. The defendant requests this court to address the merits by treating this as an appeal from the denial of a motion for ineffective assistance of counsel.

We agree with the State on both jurisdictional grounds as well as the merits of the case. First, the defendant untimely filed the motion for new trial. See Fla. R.Crim. P. 3.590(a). This left the trial court without jurisdiction to consider the motion. Clifton v. State, 697 So.2d 1000 (Fla. 2d DCA 1997). However, this court can consider defense counsel’s failure to timely file the motion for new trial as a claim of ineffective assistance of counsel. State v. Bodden, 756 So.2d 1111 (Fla. 3d DCA 2000). By doing so, we can “avoid the legal churning, ... which would be required if we made the parties and the lower court do the long way what we ourselves should do the short.” Mizell v. State, 716 So.2d 829, 830 (Fla. 3d DCA 1998).

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), set forth a two-prong test for evaluating a claim of ineffective assistance of counsel. It “requires a showing that: (1) defense counsel’s representation was deficient in that it fell below an objective standard of reasonableness and (2) there was prejudice in that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Bodden, 756 So.2d at 1113.

In this case, the first prong of Strickland is satisfied. We find that defense counsel’s failure to timely file the defendant’s motion for new trial constituted deficient performance. Bodden, 756 So.2d at 1113. However, unlike Bodden, we find that the second prong of Strickland has not been met in this case because the motion for new trial lacked merit.

Generally, inconsistent verdicts in criminal cases are permitted in Florida. The exception to this rule lies in legally inconsistent verdicts. State v. Powell, 674 So.2d 731 (Fla.1996). That occurs when “an acquittal on one count negates a necessary element for conviction on another count.” Id. at 733. Despite the initial appeal of the defendant’s argument in this case, it did not occur.

The defendant was charged with burglary and theft. The burglary statute, section 810.02(1), Florida Statute (2001), provides, in pertinent part, that “burglary means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein.... ” The theft statute provides, in pertinent part, that “[a] person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with the intent to, either temporarily or permanently: (a) Deprive the other person of the right to the property or a benefit from the property .... ” § 812.014(l)(a), Fla. Stat. (2001).

The State’s theory of the case was that the defendant entered the victim’s truck with the intent to steal something inside. It is not inconsistent for the jury to find the defendant guilty of burglary (entry with the intent to steal), but not guilty of theft (the defendant did not actually steal the item). This case does not present a “truly inconsistent” verdict. Thus, defense counsel’s ineffectiveness did not prejudice the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

We therefore treat this appeal as one from the denial of post-conviction relief and affirm.

STEVENSON and GROSS, JJ., concur.


author: DAMOORGIAN, DORIAN, Associate Judge.

text:
    Karen J. ONDREJACK, Appellant/Cross-Appellee, v. John J. ONDREJACK, Appellee/Cross-Appellant.
    No. 4D01-4852.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.

      Denise Rappaport Isaacs of Denise Rap-paport Isaacs, Esquire, P.A., Boca Raton, for appellant/cross-appellee.
    M. Daniel Hughes of M. Daniel Hughes, P.A., Fort Lauderdale, for appellee/cross-appellant.
   DAMOORGIAN, DORIAN, Associate Judge.

The Appellant, Karen J. Ondrejack (“wife”), appeals a final judgment of dissolution of marriage in which she was awarded bridge the gap alimony and child support. The Appellee, John J. Ondrejack (“husband”), cross-appeals the award of attorney’s fees and costs to the wife. We reverse and remand for reconsideration the alimony award, computation of child support and affirm on the award of attorney’s fees.

I. BACKGROUND

The husband and wife were married for approximately twenty years. Two children were born as a result of the marriage. The oldest child was born in 1983, and the younger child was born in 1987.

The wife is employed as a medical assistant earning $10.75 per hour. She stipulated to earning a net monthly income of approximately $1,629.00. The record reflects that the wife sustained a neck injury which left her with herniated disks in her neck causing her to suffer migraine headaches and radiating pain down her arm.

The husband was a sales engineer. His financial affidavit reflected a net monthly income of $4,616.00. He also has the potential to receive an annual bonus not to exceed 75% of the base salary. The amount of the bonus varied each year and there was no guarantee that he would receive a bonus in any particular year.

There was also testimony that in previous years the husband received a mega-bonus which his employer discontinued. Before trial, the husband stipulated to his annual income being $71,744.00. The husband introduced evidence that over the past five years his average income without the mega-bonus was $98,339.00 and that his average income including the mega-bonus was approximately $126,909.00. In addition to his salary and bonuses, there was testimony that he received various reimbursements for expenses. The wife’s accountant calculated his reimbursements to total approximately $69,156.56 in 2000.

After an evidentiary hearing, the trial court entered a final judgment. The court found that the husband’s current employer was contracted to pay him $71,744.00 as a base salary, plus a potential bonus not to exceed 75% of his base annual salary. The wife earned $1,629.00 per month as a medical assistant.

In regards to the request for alimony, the court found the parties to be in good health, both parties were capable of being employed full time, the parties did not have significant debt, neither party had significant non-marital assets, and the marital assets and liabilities were to be evenly distributed between them. Based on these findings, the court ordered the husband to pay bridge-the-gap alimony in the amount of $1600.00 per month to the wife for five years. The husband was also ordered to pay child support in the sum of $1,146.60 per month for both children until June 2002 and, thereafter, $715.80 per month. Finally, the husband was ordered to pay the wife’s reasonable attorney’s fees and costs, excluding her accountant’s fee.

II. THE TRIAL COURT ERRED BY NOT CONSIDERING ALL OF THE APPROPRIATE STATUTORY FACTORS UNDER SECTION 61.08(2), FLORIDA STATUTES, AS A PREDICATE TO AWARDING PERIODIC REHABILITATIVE ALIMONY RATHER THAN PERMANENT ALIMONY.

An award of alimony will usually not be reversed on appeal absent an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Green v. Green, 228 So.2d 112 (Fla. 3d DCA 1969). However, “[wjhere a trial judge fails to apply the correct legal rule ... the action is erroneous as a matter of law.” Kennedy v. Kennedy, 622 So.2d 1033, 1034 (Fla. 5th DCA 1993).

In the instant case, the trial court erred by not considering all of the appropriate statutory factors under section 61.08(2), Florida Statutes, as a predicate to awarding periodic rehabilitative alimony rather than permanent alimony.

Section 61.08(1), Florida Statutes (2002) mandates that the court include findings of fact relative to the factors enumerated in subsection 2. Subsection 2 lists several economic factors that the trial court “shall consider” in determining a proper award of alimony. A failure to consider all of the mandated factors is reversible error. See Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998)(revers-ing permanent alimony award where, in the absence of sufficient factual findings concerning the statutory factors, it was impossible for the court to assess the reasonableness of the permanent alimony award); Medlin v. Medlin, 656 So.2d 528 (Fla. 4th DCA 1995)(reversing award of lump sum alimony where judgment considers some but not all of the factors listed under 61.08(2)); Kennedy, 622 So.2d at 1033 (holding that the trial court erred in its application of the law when it failed to consider all of the statutory factors).

Here, the final judgment indicates the trial court considered some but not all of the appropriate factors.

The final judgment read in part:

In accordance with Florida Statute Section 61.08(2), the court makes the following findings regarding the request of the Wife for alimony:
A. The parties are both generally in good health.
B. The parties are capable of being employed full time.
C. The parties do not have any significant debt, other than their mortgage in the approximate sum of $55,000.00.
D. Neither party has significant non-marital assets.
E. The martial assets and liabilities will be evenly distributed between them pursuant to the Pretrial Stipulation and in-Court stipulations.

Although factual findings were made as to most of the statutory factors, including the age of the parties and the duration of the marriage, the record demonstrates the trial court failed to include these as considerations as well as the standard of living established during the course of the marriage in fashioning the award.

While the trial court did find that the wife was 46 and that the parties were married for 20 years, the record indicates that the court failed to consider these factors in determining whether permanent alimony should be awarded. The trial court’s failure to identify which factors it did and did not consider and the weight it gave to each is significant because the marriage qualifies as “long term,” whieh carries a rebuttable presumption of entitlement to permanent alimony. See Hill v. Hooten, 776 So.2d 1004 (Fla. 5th DCA 2001)(recognizing that a seventeen year marriage qualified as long term); Cerra v. Cerra, 820 So.2d 398, 401 (Fla. 5th DCA 2002).

The final judgment is also devoid of any finding of fact as to the standard of living established by the parties during the marriage. The trial court’s failure to make any findings of fact regarding the standard of living of the parties during the marriage inhibits this court from making a proper determination as to whether the bridge-the-gap alimony was appropriate or that the presumption of entitlement to permanent alimony was rebutted. See Peterson v. Peterson, 818 So.2d 683 (Fla. 4th DCA 2002)(reversing and remanding for requisite finding of fact to be made as to the standard of living of the parties during the marriage); Perrin v. Perrin, 795 So.2d 1023 (Fla. 2d DCA 2001)(holding that trial court is required to include the relative findings that were considered in determining alimony).

While the wife asks this court to find an abuse of discretion and declare that she is entitled to permanent alimony, such a ruling would entail weighing the evidence and the statutory factors. Although the facts in this case suggest strongly that permanent alimony should have been awarded, as this court has recognized, “[i]n the absence of sufficient factual findings concerning the statutory factors [and consideration of those factors by the trial court] it is impossible for this court to assess the reasonableness of the permanent alimony award.” Segall, 708 So.2d at 987; see also Hill, 776 So.2d at 1005. The proper remedy here is to reverse and remand with instructions that proper consideration be made as to all of the statutory factors based upon the evidence in the record. See Parenteau v. Parenteau, 795 So.2d 1124 (Fla. 5th DCA 2001).

III. THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING PRESENT EARNINGS AND HISTORICAL SALARY TO CALCULATE CHILD SUPPORT AND EXCLUDING REIMBURSEMENT INCOME, AND FURTHER ERRED IN NOT MAKING REQUIRED FINDINGS.

A child support determination is within the sound discretion of the trial court, subject to the statutory guidelines and the reasonableness test. Stanton v. Stanton, 648 So.2d 1233, 1234 (Fla. 4th DCA 1995).

Section 61.30(9), Florida Statutes, provides the statutory formula which must be used to determine each parent’s actual dollar share. Stanton, 648 So.2d at 1234. Without any specific findings regarding the husband’s net income, it is impossible to determine whether the support is within the guidelines or substantially exceeds the guidelines. As this court has recognized,

[wjithout the benefit of explicit findings on net income attributable to the husband and the wife, we are unable to determine if the amount of [child] support is within the guidelines or substantially exceeds the guidelines. It may be that the trial court imputed additional income to the former husband, but factual findings as to the probable and potential earnings level, source of imputed and actual income and adjustments to income must also be set forth.... Such findings assist the appellate court in determining whether the statutory support guidelines were properly applied....
While we give full weight to the exercise of the trial court’s sound discretion, the only way to evaluate its discretion is for the trial court to make explicit findings either on the record or by written order. The child support statute mandates this and meaningful appellate review requires it.

Segall, 708 So.2d at 988 (quoting Jones v. Jones, 636 So.2d 867 (Fla. 4th DCA 1994)). The only income the court attributes to the husband is the $71,744.00 base salary. The judgment refers to the potential 75% bonus but fails to set forth a finding as to how much, if any, of that bonus it is imputing to the husband as income. No findings are made as to any deductions, other than the alimony deduction, or reimbursable expenses to arrive at a net monthly income figure. Without such factual findings, the final judgment was deficient and the child support award must be reversed and remanded for the court to make specific findings as to the amount and sources of the husband’s income and any imputed income. See Segall, 708 So.2d at 989; see also Sumlar v. Sumlar, 827 So.2d 1079 (Fla. 1st DCA 2002)(reversing and remanding for specific factual findings so as to permit review of the child support award); Cooper v. Cooper, 760 so.2d 1048 (Fla. 2d DCA 2000)(holding that final judgment was deficient where no findings were made as to parties actual incomes).

IV. THE TRIAL COURT DID NOT ERR AWARDING THE WIFE HER ATTORNEY’S FEES AND COSTS.

The award of attorney’s fees will not be reversed absent an abuse of discretion. See Simpson v. Simpson, 780 So.2d 985, 989 (Fla. 5th DCA 2001). The purpose of awarding attorney’s fees under section 61.16 is to ensure that both parties will have a similar ability to obtain competent legal counsel. Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). The standard for making the award is the financial need of the requesting party and the financial ability of the other party to pay. Freid v. Freid, 731 So.2d 833, 834 (Fla. 5th DCA 1999). Furthermore, when the husband has significantly more income than the wife, notwithstanding an equal division of marital assets, this court has awarded attorney’s fees to the wife. See Adair v. Adair, 720 So.2d 316 (Fla. 4th DCA 1998) (holding that order denying attorney’s fees to the wife should be reversed where husband had significantly more income even after an equitable distribution of the assets).

Here, the evidence showed that the wife earned approximately $1,629.00 per month in net monthly income or $19,548 annually. At a minimum, the husband was contracted to earn a base annual salary of $71,744.00 plus a potential bonus. The evidence showed that in past years, the bonus had been as large as $53,000. Therefore, even though the final judgment’s findings of fact as to the husband’s income were incomplete, it is evident that there is a significant disparity in income levels to support a finding that the wife was in need of attorney’s fees. This case is distinguishable from Deckard v. Deckard, 590 So.2d 35 (Fla. 4th DCA 1991), where there the husband was close to insolvent while the wife was capable of paying her attorney’s fees out of future earnings. Id. at 36. This case is also distinguishable from Martinez v. Martinez, 573 So.2d 37 (Fla. 1st DCA 1990), where, after the equitable distribution, the husband was in no better financial position than the wife to pay fees. Here, by contrast, after distribution of marital assets, the husband is left with an income over three times the amount of the wife’s.

The trial court did not abuse its discretion in determining the issue of entitlement in favor of the wife.

Based upon the foregoing, we reverse the final judgment of dissolution of marriage and remand to the trial court for further proceedings consistent with this opinion.

GROSS and MAY, JJ., concur.

      . The wife voluntarily dismissed her appeal of the trial court’s ruling denying her exclusive use of the marital residence until the youngest child's emancipation.

      . This court has jurisdiction to review the issue of entitlement to fees where the amount was later determined. Easley, McCaleb & Stallings v. Gibbons, 667 So.2d 988 (Fla. 4th DCA 1996).


author: RAMIREZ, J.

text:
    Nelson Louis TERRERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-172.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Bennett.H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    , Before SCHWARTZ, C.J., and SHEVIN and RAMIREZ, JJ.
   RAMIREZ, J.

Nelson Louis Terrero appeals the trial court’s denial of his motion for postconviction relief following an evidentiary hearing. We reverse because trial counsel’s failure to call an exculpatory witness constituted ineffective assistance of counsel.

Terrero was charged and convicted of one count of armed robbery and sentenced to thirty years in prison. He filed a motion for postconviction relief alleging that trial counsel was ineffective for failing to call exculpatory witness Marsha Firestone at trial. At an evidentiary hearing, Terre-ro’s trial counsel testified that she deposed Marsha Firestone who had viewed a photographic line-up that included a picture of Terrero. Firestone stated that the person she saw commit the robbery was not in that group of photographs. Counsel then decided that Firestone would be called as a defense witness at trial. However, counsel filed a speedy trial demand without first ascertaining Firestone’s availability to testify. The case was set for trial on August 13, 1997, and counsel subsequently discovered that Firestone would be unavailable to testify until August 20. Counsel testified that she decided not to seek a continuance so as to ensure that Firestone could testify at trial because of inconsistencies in Firestone’s statements concerning this case.

Firestone testified at the hearing that she was standing directly in front of the house when the robbery took place. Although she did not get a very good look at the robbers, she was able to observe that they were both African-Americans. When a police detective subsequently showed her a group of photographs which included a photograph of Terrero, she told the detective that the man she saw holding the gun during the robbery was not in that group of photographs. She stated that each man in the group of photographs had a distinctive Hispanic look, and that the man she had seen commit the crime did not have such a look.

The trial court denied the motion for postconviction relief finding that Terrero’s claim must be denied because, absent extraordinary circumstances, failure of counsel to call a witness is not ground for collateral attack. The trial court further found that Firestone was unavailable to testify at trial, that trial counsel made a tactical decision not to delay the trial, and that Firestone’s testimony would not have cast doubt on Terrero’s guilt.

In a motion for rehearing, Terrero attached Firestone’s sworn statement that once she was able to observe him at the hearing, she saw that his body type was different from the man who had committed the robbery. The trial court denied the motion for rehearing.

The sole evidence against Terrero was the testimony of the robbery victim. Under any circumstance, Firestone must be viewed as a crucial witness because her testimony could have created a reasonable doubt about the identification of Terrero as the perpetrator of the crime. Firestone was a disinterested witness who lived three houses away from the scene of the robbery. Despite inconsistencies in her testimony, she must be viewed as crucial to the defense under the circumstances.

In Honors v. State, 752 So.2d 1234 (Fla. 2d DCA 2000), the court stated:

The failure to call a witness who could have provided exculpatory evidence constitutes ineffective assistance of counsel if the testimony may have cast doubt on the defendant’s guilt and the defendant states the witness’s name, the substance of the testimony, and how the omission of that testimony prejudiced the outcome of the trial.

Id. at 1235-36 (citing Pace v. State, 750 So.2d 57 (Fla. 2d DCA 1999)). The court concluded that Honors had met the Strickland test by showing error and prejudice. Id. at 1236. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (To gain postconviction relief based on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that this deficient performance was so serious that the defendant was deprived of a fair trial).

We find the facts of this case indistinguishable from Pew v. State, 639 So.2d 693, 694 (Fla. 5th DCA 1994), which con-eluded that “counsel’s failure to subpoena Pew’s key witnesses was a deficiency which ‘so affected the fairness and reliability of the proceeding that confidence in the outcome [was] undermined.’” Instead of failing to subpoena, counsel here failed to ascertain the availability of the key witness.

Because counsel had initially determined to call Firestone, we reject the trial court’s conclusion that counsel made a strategic decision not to call her. Only when counsel realized her mistake did she discount the value of Firestone’s testimony. At that point, counsel could not rescind her speedy trial demand and was trying to justify an untenable situation. The trial court relied on Cooley v. State, 642 So.2d 108, 109 (Fla. 3d DCA 1994) (“Absent extraordinary circumstances, failure of counsel to call a witness is not a ground for collateral attack.”). We conclude that the failure to call a disinterested eyewitness to a crime where identification is an issue and there is no corroborating evidence of guilt constitutes extraordinary circumstances.

Reversed.


text:
    Bobbie Eugene SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-121.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Bobbie Eugene Smith, in proper person.
    Charles J. Crist, Jr., Attorney General and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Bobbie Eugene Smith appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). To the extent that the motion requests credit for time served after sentencing, the order denying relief is affirmed without prejudice to the defendant to raise that issue with the Department of Corrections. See Skiba v. State, 827 So.2d 379 (Fla. 3d DCA 2002)(concluding defendant must exhaust his administrative remedies prior to seeking judicial relief); Garcia v. State, 736 So.2d 1224 (Fla. 3d DCA 1999)(same); Hidalgo v. State, 729 So.2d 984, 987(Fla. 3d DCA 1999)(same). With respect to defendant’s request for credit for jail time served prior to sentencing, under our standard of review of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.800(a) or 3.850, “unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing.” Fla. R.App. P. 9.141(b)(2)(D). As the record does not conclusively refute defendant’s claim, the order is reversed with respect to the claim for credit for time served prior to sentencing, and the cause remanded for further proceedings consistent herewith. See Garcia v. State, 736 So.2d at 1224; Hidalgo, 729 So.2d at 985.

Affirmed in part, reversed in part, and remanded.


text:
    S.K., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, STATE OF FLORIDA, Appellee.
    No. 4D01-5027.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Gary L. Pickett, West Palm Beach, for appellant.
    Jeffrey Dana Gillen, West Palm Beach, for appellee.
   PER CURIAM.

We find that the entry of a default and the trial court’s denial of the father’s motion to vacate the default judgment terminating his parental rights was an abuse of discretion. Rule 8.270 provides that “[o]n motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from an order, judgment, or proceeding for the following reasons: Mistake, inadvertence, surprise, or excusable neglect.” Fla. R. Juv. P. 8.270(1). We find that the father demonstrated at least one of these reasons.

REVERSED.

FARMER, STEVENSON and HAZOURI, JJ., concur.


author: TAYLOR, J.

text:
    Mark B. STRULOWITZ, as Personal Representative of the Estate of Harold Strulowitz, Appellant, v. The CADLE COMPANY, II, INC., Appellee.
    No. 4D02-784.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.

      Cindy L. Ebenfeld and Ralph 0. Anderson of Hicks, Anderson & Kneale, P.A., Hollywood, and Gregory A. Ebenfeld of Gregory A. Ebenfeld, P.A., Hollywood, for appellant.
    Scott R. Bugay of Lanza & Bugay, P.A., Miami, for appellee.
   TAYLOR, J.

Mark Strulowitz, the personal representative of the estate of his father, Harold Strulowitz, appeals from a probate court order denying his petition to strike an untimely claim filed against the estate by appellee, The Cadle Company II, Inc. (“Cadle”). Because we find no abuse of discretion in the court’s determination that Cadle was a known or reasonably ascertainable creditor, entitled to notice of administration, we affirm.

Harold Strulowitz died on May 17, 2000. His son Mark was appointed personal representative of his estate. On August 21, 2000, the personal representative published a Notice of Administration. The statutory claims-bar date ran on November 20, 2000.

On or about January 18, 2001, the personal representative received a phone call from Rich Cupp, an account officer for Cadle, regarding a debt the deceased allegedly owed the company. The claim was based on a Joint Stipulation of Settlement entered into between Cadle and Harold and Phyllis Strulowitz in 1994. The settlement resolved a lawsuit filed by Cadle to collect on a promissory note. Pursuant to the settlement, which adjusted the beginning principal balance on the note from $73,750 to $56,500, the Strulowitzes were to pay Cadle in quarterly payments for a period of six years. On June 1, 2000, the remaining balance on principal was due.

The personal representative advised Cupp that he had no record of any such debt and requested documentation of the debt and a payment history. Cupp sent the requested information and, on February 5, 2001, he received a letter from the attorney for the personal representative explaining that Cadle’s claim was time-barred because it was not filed within three months of the first date of publication. On February 16, 2001, Cadle filed a Petition for Leave to File Claim and a statement of claim for $26,071.88 plus interest.

The personal representative filed a Petition for Order Striking Untimely Piled Claim, along with a supporting affidavit. In his affidavit, the personal representative stated that Cadle was not known or reasonably ascertainable prior to the expiration of the time for filing claims in the estate. He described in detail the steps he took to locate creditors of the estate:

Upon being appointed the personal representative of my father’s estate, I made a diligent search to determine the name and addresses of creditors of the decedent who were reasonably ascertainable and served on those creditors a copy of the Notice within three months after the first publication of the Notice. There were approximately 19 creditors to whom I furnished actual notice. The Cadle Company was not one of those creditors.
My diligent search included the following: I went through all my father’s personal and business files. I went through the decedent’s checkbook for the year 2000. I spoke with my brother regarding my father’s debts. I went through my father’s bills and correspondence to determine creditors.

The personal representative further stated that he first learned about Cadle when he received their phone call on January 18, 2001. He denied any knowledge of Cadle, the lawsuit, or the settlement; neither his father’s personal or business files contained a copy of the settlement or an order approving such settlement. He also stated that his father’s personal and business checkbooks were hand-written and, for the most part, illegible.

The probate court referred the matter to an attorney ad litem, who interviewed the parties and issued a report. The attorney ad litem concluded that Cadle was a reasonably ascertainable creditor entitled to actual notice of administration. In his report, the attorney ad litem acknowledged the difficulty he had tracking down the company and the debt. He noted that Cadle did not send a payment book to the decedent, record the settlement, or send out a delinquency notice after failing to receive the June 2000 payment. Among the decedent’s bank records were a $1500 check dated March 11, 2000 from the decedent to “The Cadle C? ? II (illegible)” and a check dated December 14, 1999 for the same amount to “Cadle II Company.” He noticed further that there were four checks written to Cadle for $1500 during the year preceding the decedent’s death. He said that all but the March 11, 2000 check were legible.

Recounting the steps he took to find Cadle, he stated the following:

I checked the local Broward County phone book to find a listing for Cadle. I was unsuccessful so I called information and I was told that there was no listing for Cadle in the State of Florida. I asked about other states and I was told that I would have to call every state in the union. This alone I believe was impracticable for a personal representative to act on.
I made one final query when I called the operator to learn if a toll free number for Cadle existed. The operator provided [me] with a toll free number for Cadle.
I called the number and read the number listed on the bottom of the check. The individual could not locate the number and asked me if it was an old account. She then asked me for a Social Security number and I gave her the decedent’s social security number. She found the account and transferred my call.

The attorney at litem observed that a personal representative is “not expected nor ... required to make impractical and extended searches when attempting to identify creditors of an estate.” Yet, based on his investigation, the attorney ad litem concluded that the personal representative could have conducted a more diligent search and discovered that Cadle was a creditor of the estate. He believed that a more extensive review of the decedent’s bank statements or check books would have led the personal representative to Cadle.

After a failed attempt at mediation, the probate court held an evidentiary hearing on October 18, 2001. The court concluded that, based on “the totality of the circumstances of this case”, “the Cadle Company is a creditor of this estate and a claim has been filed.” It then entered an order denying the petition to strike Cadle’s claim. The personal representative appealed the order, arguing that it should be reversed because Cadle was not a known or reasonably ascertainable creditor of the estate.

We review the probate court’s denial of the petition to strike Cadle’s claim for an abuse of discretion. See In re Estate of Ortolano, 766 So.2d 380, 332 (Fla. 4th DCA 2000)(stating that “[t]he standard of review of an order striking a claim against an estate for being untimely filed is whether the trial court abused its discretion”); see also In re Estate of Vickery, 564 So.2d 555, 558 (Fla. 4th DCA 1990)(holding that the trial court did not abuse its discretion in striking untimely claim against the estate); Jones v. Sun Bank/Miami, N.A., 609 So.2d 98, 103 (Fla. 3d DCA 1992)(hold-ing that there was no abuse of discretion in the trial court finding that the claimant was not a known or reasonably ascertainable creditor).

A creditor who fails to file its claim within the applicable period set forth in section 733.702(1), Florida Statutes (2000) , cannot recover against the estate unless the creditor obtains an extension of time for filing the claim. Section 733.702(3), Florida Statutes (2000), provides that the extension may be granted only upon the grounds of fraud, estoppel, or insufficient notice of the claims period.

Here, Cadle sought an extension based on its claim of insufficient notice. The only creditors entitled to actual notice of administration are those who are known or reasonably ascertainable. Pursuant to section 733.212(4)(a), Florida Statutes (2000):

The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable and shall serve on those creditors a copy of the notice within 3 months after the first publication of the notice.... Impracticable and extended searches are not required.

Therefore, a reasonably ascertainable creditor is one who can be determined by the personal representative through a diligent search. As stated in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), “all that the executor or executrix need do is make ‘reasonably diligent efforts’ to uncover the identities of creditors.” Id. at 490, 108 S.Ct. 1340 (citations omitted).

When the identity of a creditor is known or reasonably ascertainable, due process requires that the creditor be given notice of the commencement of probate proceedings by mail or by such other means as is certain to ensure actual notice. See Pope, 485 U.S. at 491, 108 S.Ct. 1340. “For creditors who are not ‘reasonably ascertainable,’ publication notice can suffice.” Id. Here, it is undisputed that Cadle was not a known creditor. Thus, whether Cadle was entitled to actual, instead of mere publication notice, depends upon whether it was a reasonably ascertainable creditor.

Cadle urges us to affirm the probate court’s finding that it was a reasonably ascertainable creditor. It argues that a diligent search by the personal representative of the decedent’s financial records would have determined that Cadle was a creditor. According to Cadle, a review of the deceased’s checks, bank statements, check stubs and/or check registers would have shown payments to Cadle on a quarterly basis since 1994. Within the one year preceding his death on May 17, 2000, the deceased wrote four checks to Cadle: Number 3298 on June 14, 1999; Number 3330 on September 13,1999; Number 3353 on December 14, 1999, and Number 3373 on March 11, 2000. Each check was for $1500.00. As the attorney ad litem noted in his report, the words “Cadle Company II” were legible on all the checks, except for the March 11, 2000 check.

Further, Cadle calls attention to the personal representative’s acknowledgment that he did not look at any of the decedent’s cancelled checks and that he reviewed only his checkbook for the year 2000. This covered a period of about seventeen weeks before his death. Cadle contends that a prudent personal representative’s search would have gone further and shown a pattern of checks in the amount of $1,500.00 to the company.

The personal representative counters that he conducted a diligent search for creditors and Cadle was neither known nor reasonably ascertainable. He maintains that his first knowledge of the debt came from Cadle’s phone call in January 2001. At that point, he had not received any bills, letters, payment books, phone calls, or correspondence of any kind concerning an outstanding debt to the company. The decedent’s personal and business files did not contain a copy of the Joint Stipulation of Settlement; nor did his files contain the order approving the settlement. Contrary to the report of the attorney ad litem, he argues, there was nothing among the decedent’s personal and business records that would have revealed Cadle’s claim without “a handwriting interpreter and detective.” Further, he submits, there was no way of knowing whether those checks represented an outstanding debt or simply a store purchase. As the Jones court explained, it is not just the claimant’s identity but its “claim” that must be reasonably ascertainable. Jones, 609 So.2d at 102. The personal representative has no duty to speculate and conjecture that someone might possibly have a claim against the estate. Id.

The personal representative asserts that requiring the administrator of an estate to locate and study all checks written by the decedent during the year preceding his or her death and to chart out patterns in the amounts paid, where no bill, phone call, or correspondence reflects an outstanding debt, places a greater burden on the personal representative than what is required by law. He reminds us that section 733.212(4)(a) does not require impracticable and extended searches. Additionally, the personal representative argues that there is no legal authority requiring him to review any check stubs at all, let alone those beyond seventeen weeks. In so arguing, the personal representative highlights a concern that makes his appeal problematic: the absence of any written rules or guidelines on specific steps that an estate administrator must take during the course of a diligent search.

Based on testimony taken at the eviden-tiary hearing and “the totality of the circumstances of this case,” the trial court found that Cadle was a reasonably ascertainable creditor. The court thus determined that the personal representative’s search in this case was inadequate. As we explained earlier, this determination is reviewed by an abuse of discretion standard. Under this standard, discretion is abused only where no reasonable person would take the view adopted by the trial court. See Canakaris v. Canakaris, 882 So.2d 1197 (Fla.1980)(“Discretion ... is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.”); In re Estate of McArthur, 443 So.2d 1052 (Fla. 4th DCA1984).

Applying this standard, we cannot say that no reasonable person could take the trial court’s view. Reasonable people could differ as to what constitutes a reasonable search and what entails impractical or extraordinary effort. Certainly, as the attorney ad litem acknowledges, his success in locating Cadle and the decedent’s account came only after several phone calls. Moreover, it came in hindsight, after Cadle had filed its claim and its name was known to the attorney at litem. However, as the attorney at litem suggests, had the personal representative flipped back just a few more pages in the decedent’s check register, he might have noticed a pattern of checks for $1500.00, questioned these amounts, cross-referenced them with copies of the checks, and then identified Cadle as a potential creditor. Thus, there is a conceivable basis upon which the trial court could find that the personal representative’s search was not sufficient to satisfy the requirements of section 733.212(4)(a).

Based on the above, we find no abuse of discretion in the trial court’s determination that Cadle was a reasonably ascertainable creditor. Accordingly, we affirm the order denying the petition to strike Cadle’s claim against the estate.

AFFIRMED.

WARNER and STEVENSON, JJ., concur.

      . Phyllis Strulowitz predeceased Harold Stru-lowitz.

        . Section 733.702(1), Florida Statutes (2000), provides in pertinent part:
      [N]o claim or demand against the decedent’s estate that arose before the death of the decedent ... is binding on the estate, on the personal representative, or on any beneficiary unless filed within the later of 3 months after the time of the first publication of the notice of administration or, as to any creditor required to be served with a copy of the notice of administration, 30 days after the date of service of such copy of the notice on the creditor.

      . In this regard, we think it would be helpful if the Probate Section of the Florida Bar Probate Rules Committee considered proposing or extending existing rules to give estate administrators and trustees more direction in their diligent searches for creditors.


text:
    M.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2503.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his adjudication of delinquency and commitment to a moderate risk residential program as a result of a violation of probation. He argues that the trial court erred in revoking his probation because the evidence consisted solely of inadmissable hearsay. We agree and reverse.

While hearsay is admissible in a violation of probation hearing, the revocation must be supported by evidence “which would be admissible at a criminal trial” and is actually admitted into evidence. Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998). The orders and record in this case are insufficient to support the trial court’s adjudication and commitment for several reasons.

First, the trial court neither orally pronounced nor made written findings as to which violation the child was found guilty. Aidone v. State, 763 So.2d 1127 (Fla. 4th DCA 1999). Second, the evidence consisted only of inadmissible hearsay. Sagner v. State, 776 So.2d 1088 (Fla. 4th DCA 2001) (revocation of probation cannot stand on hearsay evidence alone). Third, no foundation was laid for an exception to the hearsay rule. Cf. Russell v. State, 801 So.2d 999 (Fla. 4th DCA 2001) (affirming the revocation of probation based on hearsay evidence that was established as a business record exception). And fourth, the state never introduced the purported business records to substantiate any of the violations alleged. Bertoloti v. State, 831 So.2d 1281, 1282 (Fla. 4th DCA 2002) (reversing the revocation of probation where the state failed to actually move the records into evidence through the hearsay exception). Because of the deficiencies in this case, the adjudication of delinquency and the order of commitment are reversed.

STEVENSON and GROSS, JJ., concur.


text:
    Mats Bertil RAMQVIST, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, OFFICE OF CHILD SUPPORT ENFORCEMENT, ex rel. Annelie THANNEGARD, Appellee.
    No. 4D02-4435.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.
    Mitchell Haymes of the Law Offices of Glantz & Glantz, P.A., Plantation, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for ap-pellee.
   PER CURIAM.

In this non-final appeal, the appellee, Florida Department of Revenue, Office of Child Support Enforcement, concedes error and acknowledges that the temporary child support order on review was entered without notice to the appellant and should be reversed. In accordance with the concession of error, the trial court’s order dated October 4, 2002, which deferred ruling on appellant’s motion for scientific testing of paternity but ordered appellant to pay temporary child support, is reversed and this cause is remanded for further proceedings. ,

REVERSED and REMANDED.

FARMER, STEVENSON and GROSS, JJ., concur.


text:
    Bernard R. HILL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1364.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Senior Assistant Attorney General and Joseph A. Brophy, Certified Legal Intern, for appellee.
    Before LEVY, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

The Defendant appeals from the lower court’s Judgment of Conviction and Sentence. We reverse.

The State filed an Information charging the defendant with possession of a firearm by a convicted felon. Before the defendant’s jury trial began, during jury selection, the trial court told the panel that this case involved an indictment for possession of a firearm by a convicted felon. The court asked the panel, “Is there anything about that particular charge that would prevent anyone from being able to sit as a fair and impartial juror?” The panel, including the juror in question, Juror Scott, responded, “No.”

The court then polled the jury panel to determine who had experiences where they or members of their family were victims of a crime. The following is the discussion that took place between the court and Juror Scott:

THE COURT: Ms. Scott you must have thought of something.
MS. SCOTT: I thought you were speaking of recent incidents. I didn’t think you were speaking of far back ones.
THE COURT: Well far back ones that are in the back of your mind. If you can tell us about them.
MS. SCOTT: I was robbed at gun point by an ex-offender at my job where I worked. This was more than twenty-eight years ago.
THE COURT: Two separate incidents?
MS. SCOTT: Yes.
THE COURT: House burned down.
MS. SCOTT: Yes.
THE COURT: Were those here?
MS. SCOTT: Yes.
THE COURT: In Dade County?
MS. SCOTT: Yes.
THE COURT: Anything about that incident that would make it difficult for you to sit as a fair and impartial juror, in this case?
MS. SCOTT: No, not really. It’s just that I haven’t thought about it for a lot of years, because I moved out of the City of Dade County proper. I moved to a little area, and I really haven’t thought about it.

Later, the prosecutor questioned Juror Scott regarding those incidents:

PROSECUTOR: And again, the same question. I know you’ve been the victim of a robbery, and your house was burned down. Could you be fair and impartial to both the State and the defense if you were picked as a juror?
MS. SCOTT: I can be fair and impartial regarding those incidents, but I’m a nurse. I work trauma. I have a prejudice with people using guns. I don’t believe anybody should have them. I see the damage that they do. I’m the first hand there and I don’t believe anybody should have them.
I believe everybody should stand there and witness and see what guns do. The kids, people and babies that come in there, victims of gunshot wounds.
PROSECUTOR: How long have you been a nurse?
MS. SCOTT: Thirty-five years.

No further questions were asked of Juror Scott by either the State or the defense.

During the selection process, defense counsel moved to strike Juror Scott for cause. The trial judge denied this challenge. Defendant’s counsel then used a peremptory challenge to strike Juror Scott. Once he had used all six of his peremptory challenges, he requested an additional peremptory. He told the trial court that if he was granted the additional peremptory, he would use the peremptory for Ms. Mijares, Juror No. 10. The trial court denied this request. Defense counsel then accepted the panel, and the court swore the panel in, subject to all previous objections by the defense. Juror Mijares served on the panel.

After deliberations, the jury found the Defendant guilty as charged. The trial judge sentenced the defendant to ten years in state prison with a three-year minimum mandatory sentence.

On appeal, the Defendant contends that the trial court abused its discretion in denying defense counsel the right to excuse Juror Scott for cause because Juror Scott’s response to the State’s question established that her views about firearms would prevent her from being a fair and impartial juror. We agree and conclude that the trial court should have granted the Defendant’s request to excuse Juror Scott for cause.

The trial court must excuse a juror for cause “if any reasonable doubt exists as to whether the juror possesses an impartial state of mind.” Kearse v. State, 770 So.2d 1119, 1128 (Fla.2000)(citing Bryant v. State, 656 So.2d 426, 428 (Fla.1995)). A juror is not impartial when one side must overcome a preconceived opinion in order to prevail. See Hamilton v. State, 547 So.2d 630, 633 (Fla.1989)(quoting Hill v. State, 477 So.2d 553, 556 (Fla.1985)). Close cases should be resolved in favor of excusing the juror rather than leaving doubt as to his or her impartiality. Sydleman v. Benson, 463 So.2d 533 (Fla. 4th DCA 1985).

In Rodriguez v. State, 816 So.2d 805 (Fla. 3d DCA 2002), a similar case where a juror acknowledged a inability to be objective, the defendant was charged with felony battery ensuing from a domestic dispute with his wife. During voir dire, Juror Damato revealed that when she was eighteen, she had been abused by a boyfriend. She also said that she had encountered domestic violence on two other occasions, one of which involved her sister being beaten by her boyfriend. See id. at 806. When asked if she could listen to the evidence and make a decision based solely on the facts and merits of this case, Damato answered, “I might have a problem with it. I’m just listening to the words that have been speaking [sic] to these people and I am understanding where it is coming from. There is nothing that justifies violence. So I might have a problem.” Id. After further questioning by the prosecutor and the court, Juror Damato said that she would try to the best of her ability to be fair and put aside her experiences with domestic violence. See id.

The defendant requested to have Juror Damato excused for cause. The trial court denied the request, finding that she had been rehabilitated. The defendant used a peremptory challenge and Juror Damato was excused. Id. The defendant then attempted to excuse Juror Eller. The defendant requested an additional peremptory challenge because he had used all of his peremptories. This request was denied, and Juror Eller was seated on the panel. Id.

In finding that Juror Damato should have been excused for cause, this Court stated:

We find that the trial court erred in failing to excuse juror Damato for cause, despite the attempts at rehabilitation. ‘A juror is not impartial when one side must overcome a preconceived opinion in order to prevail.” Hill v. State, 477 So.2d 553, 556 (Fla.1985). ‘If a prospective juror’s statements raise reasonable doubts as to that juror’s ability to render an impartial verdict, the juror should be excused.’ Hall v. State, 682 So.2d 208, 209 (Fla. 3d DCA 1996). ‘Close cases should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality.’ Sydleman v. Benson, 463 So.2d 533, 533 (Fla. 4th DCA 1985).
In the instant case, juror Damato’s initial comments should have sent up a red flag that she had no business sitting on a case in which the defendant was charged with an offense involving domestic violence. Since the defendant was later unable to excuse an objectionable juror whom he otherwise would have struck peremptorily, the court’s failure to excuse juror Damato for cause constituted reversible error. (Citations omitted).

Id. at 806-07.

Similarly, in the instant case, Juror Scott’s comments regarding her feelings about guns should have sent up a red flag that she might have a problem being fair and impartial. When the prosecutor discussed Juror Scott’s past incidents with her, the prosecutor asked Juror Scott if she could be fair and impartial to both the State and the defense if she were picked as a juror. Juror Scott responded that she could. However, the record reflects that Juror Scott restricted her statement when she added the following:

[B]ut I’m a nurse. I work trauma. I have a prejudice with people using guns. I don’t believe anybody should have them. I see the damage that they do. I’m the first hand there and I don’t believe anybody should have them. I believe everybody should stand there and witness and see what guns do. The kids, people and babies that come in there, victims of gunshot wounds.

The State did not follow up on Juror Scott’s statement regarding her negative feelings about guns. The only follow-up question the State asked was, “How long have you been a nurse?”

Although Juror Scott initially indicated that she could be fair and impartial and not affected by her own personal circumstances where she had been the victim of a crime, she specifically qualified her statement about being fair and impartial with the words, “regarding those incidents” referring specifically to the prior incidents where the juror had been the victim of crimes. She did not discuss, and was never asked about, being fair and impartial in connection with her comments about the “prejudice” she had concerning people who possess or use guns. Neither the trial court nor the State attempted to rehabilitate Juror Scott to determine whether she could be fair and impartial in this case where the Defendant had been charged with unlawful possession of a firearm by a convicted felon. In addition, Juror Scott was never asked whether she could put aside her feelings about guns. Thus, the trial judge abused his discretion in denying defense counsel’s motion to strike Juror Scott for cause and defense counsel’s subsequent request for an additional peremptory challenge so that he could excuse an objectionable juror whom he had identified to the trial court. See also Blye v. State, 566 So.2d 877 (Fla. 3d DCA 1990)(failure to excuse juror for cause was error where juror acknowledged inability to be objective because of crimes against friends; error required reversal where defendant exhausted his peremptory challenges and unsuccessfully requested another one). Accordingly, based on the foregoing, we reverse the Defendant’s Conviction and Sentence.

Reversed and remanded.


text:
    Robert Eugene CURRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2331.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before LEVY, SHEVTN, and RAMIREZ, JJ.
   PER CURIAM.

Robert Eugene Curry appeals from a conviction and sentence for sexual battery upon a minor. We reverse.

On June 30, 1998, the State filed an Information charging the Defendant with committing felony sexual battery upon N.P., who was a minor at the time of the alleged offenses, on various dates between August 15, 1981, and August 14, 1983. Before trial, the State filed a Notice of Intent to Rely on Inextricably Intertwined Evidence. In that notice, the State sought to offer as evidence the fact that:

[approximately fifteen years [following the commission of the sexual battery alleged in the information], while watching the evening television news, the victim, N.P., similarly observed the defendant being arrested for giving money and loaning his car to young girls, as well as buying cigarettes and other items for them, in exchange for ‘sexual favors.’ The news reported that anyone with information should come forward. N.P. disclosed because she did not want the defendant to hurt anyone else.

The Notice further stated that “[t]he reason for the victim’s disclosure after approximately fifteen years is inextricably intertwined and relevant to explain why the victim disclosed after so many years. This evidence is necessary to establish the entire context out of which the disclosure of the crime arose.” After a pre-trial hearing, the trial court ruled the evidence to be admissible at trial.

At trial, N.P., who was 28 years old at the time, was the sole witness to testify at trial. After describing the alleged instances of sexual battery that the Defendant had committed, N.P. testified that she never reported the sexual acts because she felt ashamed. After being asked by the prosecutor about when she next saw the Defendant following the alleged instances of sexual battery, N.P. testified that she saw the Defendant on a television newscast being arrested for “having sexual favors” with high school students. The jury returned a guilty verdict, and the trial court sentenced the Defendant to life imprisonment. This appeal follows.

A trial court’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. See Alston v. State, 723 So.2d 148, 149 (Fla. 1998). Relevant evidence is evidence which tends to prove or disprove a material fact, but “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” §§ 90.401, 90.403 Fla. Stat. (2001). Evidence that is inextricably intertwined with the crime charged is admissible under Section 90.402, Florida Statutes, because it is a relevant and inseparable part of the act at issue and where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime. See Griffin v. State, 639 So.2d 966, 968 (Fla.1994); Simmons v. State, 790 So.2d 1177, 1178 n. 2 (Fla. 3d DCA 2001). The Defendant contends (1) that it was possible to give a complete or intelligent account of the crime charged without referring to the fact the Defendant was recently arrested for “having sexual favors” with high school students, and (2) that testimony which relates the content of the newscast is inadmissible because the probative value, if any, of such evidence is substantially outweighed by the danger of unfair prejudice. We agree with the Defendant on both points.

While evidence that N.P. saw the Defendant on television is admissible for the purposes of explaining what caused her to report the alleged crime, it is clear that the content of the newscast — “being arrested for having sexual favors” with high school students — is not inextricably intertwined with the alleged criminal acts in the instant case. There is no possibility that the discussion of the content of the newscast viewed by the victim in 1998 would provide context to victim’s description of an alleged sexual battery upon her which took place between 1981 and 1983. To support this conclusion, we need to look no further than the trial transcript which shows that the victim provided a complete, intelligent, and detailed account, without any reference to the newscast, of the acts which the Defendant was alleged to have committed. Moreover, given that this testimony was not inextricably intertwined with the alleged sexual battery, the extreme prejudice to the Defendant of discussing a newscast which supposedly attributed additional and unrelated criminal sexual activity to him substantially outweighs the probative value, if any, of such testimony.

The State argues that the content of the news report is highly relevant because it rebutted the Defendant’s argument that the victim fabricated her story, and that the mere fact that the victim saw the Defendant on television would not have adequately explained her decision to report the offense. The State’s argument fails, however, because there is no connection between the alleged criminal act and the content of the news report that was viewed by the victim fifteen years later. In fact, the State admittedly seeks to utilize this evidence not to provide context to the alleged criminal acts that occurred fifteen years earlier, but as a prospective attempt to rebut the Defendant’s argument that the victim fabricated her allegations.

The State refers the Court to a number of cases in which evidence necessary to describe how a criminal offense came to fight was admissible as being inextricably intertwined with the underlying crime, all of which are distinguishable from the instant case. For example, in Shively v. State, 762 So.2d 84, 85 (Fla. 5th DCA 2000), the Fifth District concluded that the trial court did not err by admitting evidence showing that a third party witness saw the defendant french-kissing the victim and that another witness saw him standing naked, talking with the minor victim in her home. In that case, the french-kissing incident led to the victim’s disclosure to her mother and step-father that she had been sexually molested by the defendant in that case. See Shively, 752 So.2d at 85. Shively is distinguishable from the instant case because the evidence at issue in Shively involved third-party eyewitness accounts of sexual encounters between the victim and the defendant. Here, the evidence at issue is the content of a news report which showed the Defendant being arrested for activities entirely unrelated to the charged offense. The State also refers to cases involving situations where testimony was adduced to explain why the victim delayed in reporting the crimes. See Williamson v. State, 681 So.2d 688 (Fla.1996); Bell v. State, 798 So.2d 47 (Fla. 4th DCA 2001). Those cases are likewise distinguishable because the testimony involved in those cases centered around the reasons behind why the victims elected not to report the crimes. Here, the State sought to elicit testimony about the content of the newscast in order to explain what precipitated the victim to disclose the offenses after so many years. This distinction proved to be critical, as the introduction of the content of the entirely unrelated newscast resulted in extreme prejudice to the Defendant.

Accordingly, the trial court abused its discretion in allowing the introduction of testimony pertaining to the content of the news report. We reverse the judgment and sentence entered below and remand for a new trial.

Reversed and remanded.


text:
    Jatwann MILLS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2790.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Russell K. Rosenthal, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Affirmed. Riechmann v. State, 581 So.2d 133, 140 (Fla.1991); State v. Page, 449 So.2d 813, 816 (Fla.1984).


author: SCHWARTZ, Chief Judge.

text:
    BETA REAL CORPORATION, etc., Appellant, v. Lawrence GRAHAM, Appellee.
    No. 3D02-2105.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.

      Cooney, Mattson, Lance, Blackburn, Richards & O’Connor and Warren Kwav-nick, Fort Lauderdale, for appellant.
    Steel, Hector & Davis and Edwin G. Torres and Andre J. Zamorano and Digna B. French, Miami, for appellee.
    Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.
   SCHWARTZ, Chief Judge.

The appellee Lawrence Graham is a British law firm from which one of its partners, Michael Fielding, allegedly stole $9,000,000.00. The appellant Beta Real Corporation is a British Virgin Islands corporation controlled by Fielding to which he allegedly fraudulently transferred some $1.4 million dollars which now resides in the corporation’s name in a Florida bank account and $675,000.00 which is now represented by a Miami-Dade County condominium titled in the corporation’s name but where Fielding and his wife now live. This appeal claims error in the denial of a motion to dismiss for lack of jurisdiction that part of the firm’s complaint which asserts an in personam claim for money damages against the corporation. We reverse.

In this case, in which substituted service of process was attempted against Beta Real Corporation through the Secretary of State, the only arguable basis of in person-am jurisdiction is section 48.193(l)(b), Florida Statutes (2002), which provides that jurisdiction when the defendant has committed a “tortious act within this state.” Since the appellant is charged only as an alleged recipient of fraudulent conveyances, we must therefore decide the issue finessed in Dinn v. Haynes, 705 So.2d 686 (Fla. 4th DCA 1998), cause dismissed, 709 So.2d 537 (Fla.1998), as to whether such a transferee has committed a “tortious act” within the meaning of the substituted service statute. For the reasons stated and on the basis of the authorities collected in Federal Deposit Insurance Corp. v. S. Prawer & Co., 829 F.Supp. 453 (D.Me.1993), we adopt the majority view that they are not. Accord United States v. Neidorf, 522 F.2d 916 (9th Cir.1975), cert. denied, 423 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976); Desmond v. Moffie, 375 F.2d 742 (1st Cir.1967)(finding fraudulent conveyance claim under Massachusetts Uniform Fraudulent Conveyance Law not to be a tort for purposes of choosing appropriate statute of limitations); Worthy v. Camplin, No. 01-122-P-H, 2001 WL 1568368 (D.Me. Dec. 10, 2001); Federal Deposit Ins. Corp. v. Hinch, 879 F.Supp. 1099 (N.D.Okla.1995); Branch v. Federal Deposit Ins. Corp., 825 F.Supp. 384 (D.Mass.1993)(fínding fraudulent conveyance claim not to be a tort claim for purposes of the Federal Tort Claims Act); Federal Deposit Ins. Corp. v. Martinez Almodovar, 671 F.Supp. 851 (D.Puerto Rico 1987)(finding fraudulent conveyance claim not to be a tort for purposes of choosing appropriate statute of limitations); United States v. Franklin Nat’l Bank, 376 F.Supp. 378 (E.D.N.Y.1973). Contra In re Morse Tool, Inc., 108 B.R. 384 (Bankr.D.Mass.1989)(underlying basis of fraudulent conveyance action not necessarily contractual); In re Penn Packing Co., 42 B.R. 502 (Bankr.E.D.Pa.1984)(fraudulent conveyance act claim a tort for purposes of choosing Pennsylvania statute of limitations); Summers v. Hagen, 852 P.2d 1165 (Alaska 1993).

Hence, we reverse the order under review and remand for further proceedings, including the prosecution of the admittedly proper assertions of in rem or quasi in rem jurisdiction by imposing a constructive trust, equitable lien, or similar remedy upon allegedly fraudulently transferred monies held by Beta Real Corporation in Florida real and personal property. Tabet v. Tabet, 644 So.2d 557 (Fla. 3d DCA 1994); see Castillo v. Vlaminck de Castillo, 701 So.2d 1198 (Fla. 3d DCA 1997); Escudero v. Hasbun, 689 So.2d 1144 (Fla. 3d DCA 1997); ITT Community Development Corp. v. Barton, 457 F.Supp. 224 (M.D.Fla.l978)(permitting injunction against transfer).

Reversed.

      . The allegations that the appellant engaged in a "conspiracy” with Fielding does not change the legal situation. 10 Fla. Jur.2d Conspiracy — Civil Aspects § 2, at 330-31 (1997).

      . We find no merit whatever to the appellee's alternative contention that this action arises out of the ownership of the transferred property so as to confer jurisdiction under section 48.193(l)(c), Florida Statutes (2002).

      . As the court stated in that case:
      The New York Debtor and Creditor Law, ... which adopts verbatim the Uniform Fraudulent Conveyance Act, does not confer upon the creditor a right of action in tort against the grantee.... [T]he New York Court of Appeals, when faced with a complaint very similar to that before us in the instant case, held that the gravamen of the complaint was an action in equity to set aside the fraudulent conveyance. The fact that the complaint alleged actual intent on the part of the debtor to evade the creditor did not transform the complaint into an action to recover on the ground of actual fraud. Surely, the court stated the action is not one for actual fraud where a complete cause of action may be stated by a showing of the bare facts of a voluntary conveyance resulting in insolvency. Such a conveyance is but one of the two kinds which are deemed fraudulent by the operation of the statute. Both kinds are simply acts which are voidable at the behest of a creditor as a result of the statutory declaration. Whichever pattern the debtor may choose, the relief sought by the creditor is the same; to undo the transfer of title so as to bring within the ambit of execution those assets upon which the creditor is rightly entitled to levy. The fraud, such as it is, is only incidental to the right of the creditor to follow the assets of the debtor and obtain satisfaction of the debt. The gravamen of the cause of action in the case at bar is the ordinary right of a creditor to receive payment; this right has been implemented by the protection of legislation concerning the circumstances under which the creditor may avail himself of assets which the debt- or has transferred to others.

        United States v. Franklin Nat'l Bank, 376 F.Supp. at 381.

      . In a sense, the availability of these remedies may indicate the relative insignificance of our holding of no in personam jurisdiction. This is because, even if there were such jurisdiction, the damages substantively recoverable against the alleged fraudulent transferee could not exceed the amounts traceable to the theft and thus recoverable in rem or quasi in rem. See Summers, 852 P.2d at 1165; McElhanon v. Hing, 151 Ariz. 386, 728 P.2d 256 (Ariz.App.1985), aff'd in part, vacated in part, - 151 Ariz. 403, 728 P.2d 273 (1986), cert. denied, 481 U.S. 1030, 107 S.Ct. 1956, 95 L.Ed.2d 529 (1987).


text:
    Richard SCHWARTZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3110.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Richard Schwartz, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., SHEVIN and WELLS, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003)(en banc). Conflict certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).


text:
    Michael L. THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-84.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Michael L. Thomas, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., SHEVIN and WELLS, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003)(en banc). Conflict certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).


text:
    James B. PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4974.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.

      James B. Phillips, South Bay, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

James Phillips appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) Motion to Correct Illegal Sentence. Phillips alleged he was entitled to credit for jail time served between the date he was arrested, December 17, 1997, and the date he was released on “Court Ordered house arrest,” January 16, 1998. Phillips alleged jail records would demonstrate his entitlement to relief. The trial court denied the motion. Having reviewed “the pleading and the court file,” the trial court found the “court file” reflected Phillips was awarded proper time served.

Phillips’s motion is legally sufficient as it indicates jail records will demonstrate his entitlement to relief. See State v. Mancino, 714 So.2d 429 (Fla.1998); see also Toro v. State, 719 So.2d 947 (Fla. 4th DCA 1998). The trial court was required to review the jail records in ruling on Phillips’s motion. See Hidalgo v. State, 729 So.2d 984 (Fla. 3d DCA 1999); see also Nelson v. State, 760 So.2d 240 (Fla. 4th DCA 2000).

We REVERSE and REMAND for the trial court to properly consider Phillips’s motion including a review of the jail records.

FARMER, SHAHOOD and HAZOURI, JJ., concur.


author: SHEVIN, Judge.

text:
    Irving GOMEZ, Appellant, v. AMERICAN BANKERS LIFE ASSURANCE COMPANY OF FLORIDA and Florida Unemployment Appeals Commission, Appellees.
    No. 3D02-949.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.

      Teri Guttman Valdes, Miami, for appellant.
    John D. Maher, Tallahassee, for appel-lee, Florida Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., LEVY and SHEVIN, JJ.
   SHEVIN, Judge.

Irving Gomez appeals an order of the Unemployment Appeals Commission affirming the denial of benefits. We reverse. The record shows that Gomez sent an unauthorized innocuous e-mail to a coworker; this isolated incident of poor judgment is insufficient to establish misconduct and justify the denial of benefits. See Vega v. Florida Unemployment Appeals, 833 So.2d 310 (Fla. 3d DCA 2003)(employ-ee’s isolated act of misjudgment does not constitute misconduct justifying denial of benefits); Gonzalez v. Florida Unemployment Appeals Comm’n, 752 So.2d 726 (Fla. 3d DCA 2000)(same); Fenelus v. Publix Super Mkts., Inc., 727 So.2d 274 (Fla. 3d DCA 1999)(same); Delaney v. Unemployment Appeals Comm’n, 720 So.2d 320 (Fla. 4th DCA 1998)(using company e-mail to send joke after non-specific warning was a single act of poor judgment rather than wilful or wanton disregard of employer’s interest). See generally Carol Schultz Vento, Annotation, Use of Employer’s EMail or Internet System as Misconduct Precluding Unemployment Compensation, 106 A.L.R. 5th 297 (2003). Accordingly, we reverse the order.

Reversed.


text:
    Y.M., Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2880.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Y.M., in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEVIN, JJ.
   PER CURIAM.

This Court, proceeding pursuant to Jimenez v. Dept. Of Health and Rehabilitative Services, 669 So.2d 340 (Fla. 3d DCA 1996), affirms the judgment below in all respects.


text:
    Keith LeBLANC, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2333.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Bennett H. Brummer, Public Defender and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and SHEVIN and RAMIREZ, JJ.
   SCHWARTZ, Chief Judge.

LeBlanc appeals from the denial of a motion for post-conviction relief seeking additional credit on his Monroe County sentence for the time he served in the Orange County jail from his arrest on April 14, 2002, to his transfer to Monroe County on May 21, 2002. We reverse with directions to award him credit for these 38 days.

The record uncontradictedly shows that LeBlanc was arrested in Orange County at least partially on a Monroe County fugitive warrant issued in the pending charge. Even though he may also have been subject, at least part of the time, to an Orange County charge, which was dropped on May 7, 2002, the law requires he be given credit for all the time served after the execution of the Monroe County warrant. Tharpe v. State, 744 So.2d 1256 (Fla. 3d DCA 1999)(awarding jail credit against Monroe County sentence for time served in Miami-Dade County jail after issuance of Monroe County arrest warrant, even though defendant was also serving that time in Miami-Dade County jail on unrelated Miami-Dade County charges); James v. State, 721 So.2d 1265 (Fla. 3d DCA 1998)(award-ing jail credit against Dade County sentence for time served in Broward County jail after issuance of Dade County arrest warrant, even though defendant was also serving that time in Broward County jail on unrelated Broward County charges); Travis v. State, 724 So.2d 119 (Fla. 1st DCA 1998)(awarding jail credit against Es-cambia County sentence for time served in Santa Rosa County jail after transmission of Escambia arrest warrant, even though defendant was also serving that time in Santa Rosa County jail on unrelated Santa Rosa County charges). Compare Gethers v. State, 838 So.2d 504 (Fla.2003)(different rule when prisoner subject to detainer, not arrest).

Reversed.

      . The defendant need not be present.


author: STRINGER, Judge.

text:
    Dan J. MORALES, Appellant, v. Louis A. DeBIASE, Jr., Appellee.
    No. 2D01-4158.
    District Court of Appeal of Florida, Second District.
    March 12, 2003.

      David L. Levy, Largo, for Appellant.
    Richard L. Alford of Richard L. Alford, P.A., Clearwater, for Appellee.
   STRINGER, Judge.

Dan Morales challenges a nonfinal order granting Louis DeBiase’s request for a temporary injunction based on a noncom-pete agreement. The order on appeal expressly states that it will have no effect until a bond amount has been determined and posted by DeBiase. This executory language renders the order nonappealable because Morales is not bound by it and may continue to operate his business until the bond amount is determined. Moreover, Morales would be entitled to yet another appeal if he wishes to challenge the adequacy of any bond posted on remand. See Prestige Rent-A-Car, Inc. v. Advantage Car Rental Sales, Inc., 656 So.2d 541 (Fla. 5th DCA 1995) (reviewing the adequacy of a bond posted for a temporary injunction). We therefore dismiss this appeal without prejudice to Morales’ right to challenge an appealable, nonfinal order entered subsequent to this dismissal.

SALCINES and DAVIS, JJ., concur.