text:
    Dana Charles ANDREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0670.
    District Court of Appeal of Florida, First District.
    May 29, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Watson v. State, 842 So.2d 275, 2003 WL 1877193 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

BENTON, PADOVANO and BROWNING, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AMERICANA ASSOCIATES, LTD., et al., Appellants/Cross-Appellee, v. WHUD REAL ESTATE LIMITED PARTNERSHIP, Appellee/Cross-Appellant.
    Nos. 5D01-3464, 5D02-59, 5D02-129.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2003.

      Carl W. Hartley of Hartley, Wall & Norman, Orlando, and Kevin C. Kaplan of Aragon, Burlington, Weil & Crockett, P.A., Miami, for Appellants/Cross-Appellee.
    Gregg W. MeClosky and David J. Pas-cuzzi of MeClosky, D’Anna, Loannou & Dieterle, LLP, Boca Raton, for Appel-lee/Cross-Appellant.
   PER CURIAM.

Americana Associates Ltd., (Americana), appeals a summary final judgment and an order denying rehearing of that judgment in which WHUD Real Estate Limited Partnership, (WHUD), prevailed in an action initiated by Americana. WHUD cross-appeals the denial of its motion for attorney’s fees made pursuant to section 57.105, Florida Statutes (2000).

I. Prior Actions

This is the second appearance of the parties before this court. The first was in Americana Associates Ltd. v. WHUD Real Estate Ltd., 715 So.2d 955 (Fla. 5th DCA) (WHUD I), rev. denied 728 So.2d 200 (Fla.1998), in which this court affirmed a mortgage foreclosure initiated by WHUD. In that appeal, Americana defended by alleging that the original mortgagor fraudulently misrepresented the terms by which it would loan Americana 25.5 million dollars and that Americana had no other choice financially but to close the loan upon the changed terms. This court held that Americana was estopped from asserting such a defense after having performed under the terms of the loan for eight years and entering into two subsequent agreements that stayed acceleration and acknowledged the debt.

Americana then filed a federal action in 1999 against Condor One, Inc., WHUD’s immediate assignor of the mortgage. This case was ultimately disposed of in Americana Associated Ltd., et. al. v. Condor One, Inc., 239 F.3d 369 (11th Cir.2000) (table). We note that Americana’s complaint against Condor One, Inc. alleged issues nearly identical to the issues raised in Americana’s counterclaim in WHUD I.

II. The Trial Court’s Denial of WHUD’s Attorney’s Fees

WHUD requested an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2000), because Americana failed to plead a justiciable issue of law or fact. The trial court denied the motion, finding that Americana presented a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law pursuant to section 57.105(2).

Neither the record nor Americana’s brief supports the trial court’s finding that Americana sought to change the law in good faith. It was the trial court who expressed its view that the Florida Supreme Court should change Florida Rule of Civil Procedure 1.540(b) that limits the time to one-year during which a challenge to a judgment for intrinsic fraud may be made. Americana’s argument was that the fraud allegedly committed in the instant case did not constitute intrinsic fraud and was not limited by the one-year limitation period prescribed by Rule 1.540(b).

Notwithstanding its failure to prevail in both WHUD I and in the federal court against WHUD’s assignor of the mortgage, Americana filed the instant suit. The only material difference in the allegations made in the instant case and WHUD I is that Americana alleged that WHUD’s attorneys in WHUD I misrepresented to the court that WHUD did not assume all of the liabilities of the original mortgagee when it accepted the assignment of mortgage.

We fail to see the significance of the additional allegation when one considers that the outcome of WHUD I would have been the same whether the original mortgagee or a remote assignee had initiated the foreclosure action. As noted, this court determined in WHUD I that notwithstanding all of the allegations of wrong doing by the original mortgagee, Americana was estopped from asserting those wrong doings after having paid on the mortgage for eight years and entering into two agreements during that time that stayed acceleration and acknowledged the existence of the debt.

We view the instant action as an attempt by Americana to relitigate WHUD I and the same issues presented in the federal action brought by Americana against WHUD’s assignor. New issues were not presented by Americana that would allow it to fall within the safe harbor of the provisions of § 57.105(2) of the Florida Statutes and the trial court abused its discretion in failing to award attorney’s fees to WHUD. Cf. Olson v. Potter, 650 So.2d 685 (Fla. 2d DCA 1995) (complaint alleging breach of settlement agreement was merely an attempt to relitigate issues raised in postjudgment proceedings in underlying litigation and, thus, defense was entitled to attorney’s fees after prevailing on affirmative defense of res judicata); Bay Financial Savings Bank, F.S.B. v. Hook, 648 So.2d 305 (Fla. 2d DCA 1995) (fifing of law suit that is nonjusticiable on its face offers appropriate setting for fulfilment of section 57.105’s purpose to deter misuse of the judicial system).

III. Conclusion

We affirm the summary final judgment and reverse the denial of WHUD’s motion for attorney’s fees. We remand to the trial court for the determination of the amount of those fees.

AFFIRM IN PART; REVERSE IN PART.

PETERSON, PLEUS and MONACO, JJ., concur.

      . WHUD is a remote assignee of the mortgage.

      . Rule 1.540(b) has changed since the opinion in DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984), was rendered to limit challenges for both intrinsic and extrinsic fraud to one-year.

      . Americana asserts that the trial court found that WHUD's counsel misrepresented that lack of assumption. That finding is disputed and it appears that the trial court gave the benefit of the allegation to Americana in finding for WHUD on other grounds.


text:
    Matthew Clarence BLACKERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2333.
    District Court of Appeal of Florida, Second District.
    May 30, 2003.

      Matthew Clarence Blaekert, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Matthew Clarence Blaekert appeals an order denying his petition for writ of habe-as corpus. The “petition” was actually a request for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Upon review of the record, this court determined that the trial court lacked jurisdiction to enter the appealed order because a direct appeal was pending at that time. Once the direct appeal was concluded, this court relinquished jurisdiction to the trial court to obtain a new order. The trial court entered an appropriate order again denying relief on April 28, 2003. We have now reviewed the petition and the April 28, 2003, order. The trial court correctly denied the motion.

Affirmed.

ALTENBERND, C.J., and SALCINES and YILLANTI, JJ., concur.


text:
    Richard J. DEMPSEY, Appellant, v. LAW FIRM OF CAUTHEN & ODHAM, P.A., David E. Cauthen, Timothy S. Keough, Rudolph Leo Hardick, Michael Hardick, and Montgomery Goodrich, singly, jointly, and severally, Appellees.
    No. 5D03-509.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2003.
    Richard J. Dempsey, Cape Canaveral, pro se.
    Jamie Billotte Moses of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellees, Law Firm of Cauthen & Odham, P.A., David S. Cauthen, and Timothy S. Keough.
    Mark S. Peters of Eisenmenger, Berry & Peters, P.A., Melbourne, for Appellees Michael Hardick and Rudolph Leo Har-dick.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.315(a).

THOMPSON, C.J., PLEUS and PALMER, JJ., concur.


author: FULMER, Judge.

text:
    STATE of Florida, Appellant, v. Willie REGISTER, Appellee.
    No. 2D02-2098.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellee.
   FULMER, Judge.

The State appeals the trial court’s order imposing community control and probation after Willie Register pleaded guilty tp possession of a firearm by a convicted felon. The State argues that the trial court was required to impose a three-year minimum mandatory prison sentence. We reverse.

Under section 775.087(2)(a)(l), Florida Statutes (2000), a felon convicted of possession of a firearm must be sentenced to a three-year minimum mandatory term, but this enhancement applies only in cases of actual, not constructive, possession. See Bundrage v. State, 814 So.2d 1133 (Fla. 2d DCA 2002); see also Cook v. State, 816 So.2d 267 (Fla. 1st DCA 2002); State v. Keen, 782 So.2d 528 (Fla. 1st DCA 2001). The trial court erroneously believed that the minimum mandatory sentence did not apply when a felon was convicted of possession of a firearm only; the trial court thought that there needed to be a separate, additional offense to trigger the enhancement. This interpretation, however, is directly contrary to the plain language of section 775.087(2)(a)(l), which states “that a person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance shall be sentenced to a minimum term of imprisonment if such person possessed a ‘firearm’ or ‘destructive device’ during the commission of the offense.”

Because of the trial court’s erroneous interpretation of the statute, the trial court did not focus on the pertinent question of whether Register had actual or constructive possession of the firearm. There is no direct evidence on this point, and conflicting inferences may be taken from the record. Therefore, we reverse. On remand, if the trial court determines that Register was in actual possession of a firearm, the trial court shall impose the three-year minimum mandatory sentence.

Reversed and remanded.

DAVIS and KELLY, JJ., Concur.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Tony Lee SHUMAKER, Appellee.
    No. 2D02-2863.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellant.
    Ty Trayner, of William & Trayner, Tampa, and Shea T. Moxon, Tampa, for Appel-lee.
   DAVIS, Judge.

The State challenges the trial court order granting Shumaker’s motion to suppress and dismissing the case. We reverse.

Shumaker was charged with DUI (fourth violation) and driving with license suspended after an officer stopped him for failing to dim his high beam headlights. At the suppression hearing, Shumaker argued that the officer did not have probable cause to stop him. The officer testified that he stopped Shumaker for failing to dim his high beams within 500 feet of oncoming traffic, in violation of section 316.238(l)(a), Florida Statutes (2001), and for failing to dim his high beams while following within 300 feet of another vehicle, in violation of section 316.238(l)(b). The trial court granted the motion to suppress but failed to make any findings of fact.

The court was correct in finding that the officer did not have probable cause to stop Shumaker for failing to dim his lights within 500 feet of an oncoming vehicle because the road he was traveling on was a divided highway. See State v. Clark, 511 So.2d 726 (Fla. 1st DCA 1987). However, the court was incorrect in implicitly finding that the officer did not have probable cause to stop Shumaker for not dimming his lights while traveling within 300 feet behind another vehicle.

The officer testified without contradiction that Shumaker was “maybe two” car lengths behind the car in front of him. Apparently, the trial court did not believe that the officer’s testimony demonstrated a violation. We cannot agree. By any strained construction of the phrase, “maybe two” car lengths, one cannot reach the factual conclusion that Shumaker was more than 300 feet away from the vehicle in front of him. The record does not reveal that the officer’s credibility on this issue was challenged or placed in issue. Therefore, even giving deference to the trial court’s implicit factual finding that the State did not meet its burden of proof on this issue, we conclude that the record does not support that conclusion. See State v. Nova, 361 So.2d 411 (Fla.1978).

Because the only evidence before the court indicated that Shumaker’s car was within 300 feet of the car in front of it, the court’s legal conclusion was also in error. Accordingly, the evidence discovered by the officer as a result of the stop was improperly suppressed.

Reversed and remanded.

FULMER and KELLY, JJ„ Concur.


author: ALTENBERND, Chief Judge.

text:
    Tracy Linda HALL, Appellant, v. STATE of Florida, Appellee. State of Florida, Appellant, v. Tracy Linda Hall, Appellee.
    Nos. 2D02-793, 2D02-1569.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Tracy Linda Hah.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for State.-
   ALTENBERND, Chief Judge.

Tracy Linda Hall appeals her judgment and sentence for one count of trafficking in amphetamine. See § 893.135, Fla. Stat. (2001). The offense occurred on May 15, 2001. She pleaded nolo contendere to this charge and received a sentence of three years’ imprisonment including a three-year minimum mandatory term. While Ms. Hall’s direct appeal was pending, she filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to correct a sentencing error. She maintained that the minimum mandatory term could not be imposed in light of this court’s opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). The trial court granted the motion and resentenced her to three years in prison without a minimum mandatory term.

As a result of the successful rule 3.800(b)(2) motion, Hall’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm her appeal.

As a result of the successful rule 3.800(b)(2) motion, the State appealed the order granting relief and the new sentence, arguing that chapter 2002-212, Laws of Florida, provided for retroactive application of the statute. We rejected this argument in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). But see Clayton v. State, 842 So.2d 971 (Fla. 5th DCA 2003). Accordingly, we affirm the State’s appeal.

Affirmed.

SALCINES and COVINGTON, JJ., concur.


text:
    Thomas BURTTRAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3503.
    District Court of Appeal of Florida, Second District.
    June 4, 2003.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    • Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Thomas Burttram appeals the judgment and sentence that were entered after this court remanded his case to the trial court. See Burttram v. State, 780 So.2d 224 (Fla. 2d DCA 2001). Counsel filed briefs asserting no meritorious argument pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We agree with counsel that no meritorious issues exist, and we therefore affirm. We write only to correct a scrivener’s error. Second-degree murder is a first-degree felony punishable by life, not a second-degree felony as indicated on the judgment. See § 782.04(2), Fla. Stat. (Supp. 1998). We direct the trial court to correct the judgment to indicate that the conviction is for a first-degree felony.

Affirmed.

ALTENBERND, C.J., and SILBERMAN and COVINGTON, JJ., concur.


author: POLEN, C.J.

text:
    Omar WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D99-3398.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2003.

      Carey Haughwout, Public Defender, Allen J. DeWeese and Karen Ehrlich, Assistant Public Defenders, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Michael J. Neimand and Barbara A. Zappi, Assistant Attorneys General, Fort Lauderdale, for appellee.
   ON REMAND

POLEN, C.J.

This case has been remanded to this court after the Florida Supreme Court issued an opinion that specifically disagrees with our previous holding. Wilson v. State, 845 So.2d 142 (Fla.2003). As a result, we issue this opinion in place of our original opinion issued August 15, 2001.

Omar Wilson timely appeals his sentence of 150 months imprisonment for violating his community control. We affirm the conviction, but remand for resentenc-ing.

Wilson originally pled no contest to a charge of manslaughter with a firearm, and was sentenced to two years community control followed by five years probation. The state later alleged that Wilson violated his community control for failing to remain confined to his approved residence. On the date of his final hearing, he indicated that he wished to enter an open plea and admission to the violation. The following exchange then occurred:

THE COURT: Has anyone promised you anything other than the fact [the] court would revoke your probation, adjudicate you guilty if you haven’t been previously adjudicated guilty, sentences you to 128 months Florida state prison with credit for time served. Do you understand that?
[DEFENSE COUNSEL]: Your honor, before you pronounce sentence, I would like the court to hear from Mr. Wilson and hear from his fiancé.
THE COURT: What is the purpose of that since this is the bottom of the guidelines and I can’t go any lower than the bottom?
[DEFENSE COUNSEL]: Well, your Honor, what we would be asking, for you to reinstate Mr. Wilson.
THE COURT: I thought there was an agreement.
[DEFENSE COUNSEL]: It’s an open plea, your Honor. •
THE COURT: No.
[DEFENSE COUNSEL]: He still wants to admit to the violation.
THE COURT: No. Go to a final hearing. Set it down for a final hearing. Let’s proceed.
[DEFENSE COUNSEL]: Could I have a moment, your Honor?
THE COURT: That’s all right. Court withdraws the offer.
* * *
[DEFENSE COUNSEL]: Good morning again. Emilio Benitez on behalf of Mr. Wilson on page 3.
THE COURT: Are you ready to proceed to final hearing?
[DEFENSE COUNSEL]: Yes, your honor.
Before that, I’d like to address Mr. Wilson.
Mr. Wilson, that’s what you want to do? You want to go to a final hearing; is that correct?
[WILSON]: Yes, sir.
[DEFENSE COUNSEL]: You don’t want to accept the court’s offer of 128 months; is that correct?
[WILSON]: No.
THE COURT: And my advice to you was the court’s offer was the bottom of the guidelines and in my opinion you should have taken it. Is that—
[WILSON]: Excúseme?
THE COURT: Okay. Let’s proceed. Let’s swear in the defendant.

At the end of the hearing, the trial court found that Wilson wilfully violated his community control. The court then, without commenting on the rejected plea offer, revoked his community control and sentenced him to 150 months in prison. His sentence guidelines had ranged from 128.625 months to 214.375 months.

Prior to filing the initial brief in this appeal, Wilson, on August 23, 2000, filed in the trial court a motion to correct sentence, alleging that he was improperly sentenced under unconstitutional amendments to the 1994 sentencing guidelines. See Trapp v. State, 760 So.2d 924, 928 (Fla. 2000); Heggs v. State, 759 So.2d 620, 627 (Fla.2000). Sixty-five days later, the court, pursuant to the motion, resentenced him to 114.37 months, the top of his guideline range, but never entered a written order to that effect. The court, however, a few weeks later, asked the state to respond to Wilson’s motion to correct sentencing error. In its response, the state argued that the motion was deemed denied because it had been pending for more than sixty days without a ruling, see Kimbrough v. State, 766 So.2d 1255 (Fla. 5th DCA 2000), and, therefore, Wilson must seek relief by way of his pending appeal. The trial court then agreed with the state and denied Wilson’s motion. This appeal followed.

We initially hold, as we did in our original opinion, that this case should be remanded for resentencing. Florida Rule of Criminal Procedure 3.800(b) expressly provides that the trial court must rule on a motion to correct sentencing error within sixty days of filing or the motion is deemed denied. Fla. R. Crim P. 3.800(b). Once the sixty days has passed with no action on the motion, the trial court’s jurisdiction ends. Hart v. State, 773 So.2d 1263, 1264 (Fla. 1st DCA 2000). Here, the trial court did not orally resentence Wilson pursuant to Heggs until sixty-five days after his rule 3.800 motion. Because the trial court no longer had jurisdiction to resentence Wilson, and it is undisputed that he was originally sentenced pursuant to the unconstitutional amendments to the 1994 sentencing guidelines, we remand this case for another resentencing pursuant to Heggs. See id.; Cliatt v. State, 773 So.2d 610, 611 (Fla. 5th DCA 2000); Kimbrough, 766 So.2d at 1257.

Further, pursuant to the mandate we now hold that the record creates an unre-butted presumption that the sentence was vindictive and therefore remand and direct that Wilson be resentenced in front of a different trial judge. See Wilson v. State, 845 So.2d 142 (Fla. 2003).

GROSS and TAYLOR, JJ., concur.


text:
    LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellant, v. BUENAVENTURA LAKES SHOPPING CENTER, INC., etc., Appellee.
    No. 3D02-3012.
    District Court of Appeal of Florida, Third District.
    June 4, 2003.
    Butler Pappas Weihmuller Katz Craig and Scott J. Frank, Miami, for appellant.
    Gilbride, Heller & Brown, Lawrence R. Heller and Rosana E. Hernandez, Miami, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and GREEN, JJ.
   PER CURIAM.

The defendant, Liberty Mutual Fire Insurance Company [Liberty Mutual], appeals from an adverse final judgment. A review of the record shows that Liberty Mutual had notice of the loss, that there was a disagreement about the amount of the loss, and that therefore the amount of the loss was properly submitted to the appraisal panel. U.S. Fid. & Guar. Co. v. Romay, 744 So.2d 467 (Fla. 3d DCA 1999). Further, we find that Liberty Mutual’s assertion that an exclusion precludes coverage for the loss is without merit.

Accordingly, we affirm.


author: SAWAYA, J.

text:
    Richard L. SOBI, Appellant, v. FAIRFIELD RESORTS, INC., etc., Appellee.
    No. 5D02-2914.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.

      Luis A. Gonzalez of L.A. Gonzalez, Law Offices, P.A., Orlando, for Appellant.
    Erik E. Hawks and Wendy S. Temple of Akerman Senterfitt, Orlando, for Appellee.
   SAWAYA, J.

Richard Sobi appeals the order dismissing his complaint against Fairfield Resorts, Inc. (Fairfield) with prejudice. The issue we must resolve is whether the trial court, in ruling on Fairfield’s motion to dismiss for failure to state a cause of action, improperly considered matters outside the four corners of the complaint. Concluding that it did, we reverse and remand for further proceedings.

We will first discuss the allegations of the complaint because they are central to the resolution of the issue before us. We will next address the appropriate standard of review and conclude with a discussion of the essential elements of a cause of action for tortious interference with a business relationship, which is the cause of action asserted in the complaint.

Allegations of the Complaint

The complaint alleges that Sobi, a front line sales person employed at Fairfield’s resort in Sandestin, received an offer from Intrawest Resorts to work as its marketing manager in Sandestin. Sobi resigned from his job with Fairfield, but informed Fairfield of his plans before he resigned. Fairfield knew the employment opportunity with Intrawest “offered [Sobi] an extraordinary career advancement opportunity.” Just two weeks after he left Fairfield, Sobi received a letter from Fairfield demanding that he resign his position with Intrawest because his employment there was a breach of the Salesperson Agreement contract he had signed with Fairfield. The letter “reminds” Sobi that he had agreed not to provide timeshare, vacation club or related services to any entity having a sales office, timeshare, or resort within fifty miles of Fair-field’s sales office in Destín for a period of six months after his employment with Fairfield ended.

When Sobi did not resign from Intraw-est, Fairfield filed suit against Sobi and Intrawest to enjoin Intrawest from continuing to employ Sobi. Once Fairfield filed its suit, Intrawest terminated Sobi and Fairfield took a voluntary dismissal of its suit against Sobi and Intrawest. Sobi subsequently filed suit against Fairfield alleging tortious interference with his business relationship with Intrawest.

The complaint asserts that the covenant-not-to-compete that Fairfield was seeking to enforce was null and void. Sobi’s complaint alleges that Fairfield knew that the covenant-not-to-compete it was seeking to enforce was void and unenforceable as a matter of law, yet Fairfield filed its civil action with the sole intent of interfering with the employer/employee relationship between Sobi and Intrawest. As Fairfield expected and intended, the suit caused Sobi’s termination. Sobi further alleges that as a result of this unjustified and intentional interference with his employment, he was damaged.

Fairfield moved to dismiss the complaint, arguing that Sobi failed to adequately state a cause of action for tortious interference with a business relationship because Sobi was unable to establish the element of unjustified interference. Fair-field premised its argument on its assertion that it had the contractual right to interfere in the Sobi/Intrawest relationship based on the non-compete agreement Sobi executed when he was employed by Fair-field and another provision of the agreement that provided that in the event the employee breached the agreement, Fair-field would be entitled to an injunction against such breach. Following a hearing on Fairfield’s motion, the trial court entered the dismissal with prejudice.

Standard of Review

In deciding the propriety of the order dismissing Sobi’s complaint, this court is held to the following well-established principles of review:

The primary purpose of a motion to dismiss is to request the trial court to determine whether the complaint properly states a cause of action upon which relief can be granted and, if it does not, to enter an order of dismissal. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022 (Fla. 4th DCA 1996). In making this determination, the trial court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept as true all well-pleaded allegations. City of Gainesville v. State, Dept. of Transp., 778 So.2d 519 (Fla. 1st DCA 2001); Cintron v. Osmose Wood Preserving, Inc., 681 So.2d 859, 860-61 (Fla. 5th DCA 1996); Provence. It is not for the court to speculate whether the allegations are true or whether the pleader has the ability to prove them. City of Gainesville; Provence. Thus, “[t]he question for the trial court to decide is simply whether, assuming all the allegations in the complaint to be true, the plaintiff would be entitled to the relief requested.” Cintron, 681 So.2d at 860-61. When an appellate court reviews an order determining the sufficiency of a complaint, the appellate court must apply the same principles as the trial court. City of Gainesville. Because the determination whether a complaint sufficiently states a cause of action resolves an issue of law, an order granting a motion to dismiss is reviewable on appeal by the de novo standard of review. Id.

Fox v. Professional Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001). Accordingly, this court must review the four corners of Sobi’s complaint, accepting the allegations thereof as true, to determine whether it states a cause of action for tortious interference with a business relationship.

Tortious Interference with a Business Relationship

“The elements of a cause of action based on tortious interference with a business relationship are (1) the existence of a business relationship; (2) the defendant’s knowledge of the relationship; (3) the defendant’s intentional and unjustified interference with the relationship; and (4) damage to the plaintiff as a result of the breach of the relationship.” St. Johns River Water Mgmt. Dist. v. Fernberg Geological Servs., Inc., 784 So.2d 500, 504 (Fla. 5th DCA) (citing Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812 (Fla.1994) (citing Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985))), review denied, 805 So.2d 806 (Fla.2001). Just as required, Sobi’s complaint did allege the business relationship at issue, Fairfield’s knowledge of this business relationship, Fairfield’s unjustified and intentional interference with the relationship and Sobi’s damage resulting therefrom. Sobi’s complaint acknowledged the non-compete agreement between Fairfield and Sobi, but alleged that it is void and unenforceable as a matter of law. Accepting these allegations as true, it is clear that the trial court erred in going outside the four corners of the complaint to decide that the non-compete agreement justified Fairfield’s interference.

In support of its contention that the dismissal was correct, Fairfield argues that it was a party to any business relationship that Sobi undertook in violation of his contract with Fairfield. Accordingly, Fairfield argues, it cannot be held liable for its interference with that contract. Fairfield cites Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A, 742 So.2d 381, 386 (Fla. 4th DCA 1999) (“For the interference to be unjustified, the interfering defendant must be a third party, a stranger to the business relationship.”) (citations omitted) and Genet Co. v. Annheuser-Busch, Inc., 498 So.2d 688, 684 (Fla. 3d DCA 1986) (“Under Florida law, a cause of action for tortious interference does not exist against one who is himself a party to the business relationship allegedly interfered with.”) (citations omitted). However, Fairfield’s argument is without merit in the face of the complaint’s allegation that the non-compete clause is void and unenforceable.

Conclusion

Rather than accept the allegations of the complaint as true, the trial court did in fact go outside the four corners of the complaint to accept Fairfield’s argument that the non-compete agreement precluded Sobi from being able to prove that Fair-field’s interference was intentional and unjustified. This was error. The complaint states a cause of action, which is the sole issue to be decided on a motion to dismiss pursuant to rule 1.140(b)(6), Florida Rules of 'Civil Procedure. Accordingly, we reverse and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

PLEUS and MONACO, JJ., concur.

      . See also Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla.2002) wherein the court stated:
      As this cause comes to us from a trial court order of dismissal, two important principles govern our review. First, "[w]hether a complaint is sufficient to state a cause of action is an issue of law.” W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 300 (Fla. 1st DCA 1999). Consequently, the ruling below is subject to de novo review. See id. Additionally, when presented with a motion to dismiss, a trial court is required to "treat the factual allegations of the complaint as true and to consider those allegations in the light most favorable to the plaintiffs.” Hollywood Lakes Section Civic Ass’n, Inc. v. City of Hollywood, 676 So.2d 500, 501 (Fla. 4th DCA 1996) (citing Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd., 647 So.2d 1028, 1030 (Fla. 4th DCA 1994)).

        Id. at 734-35.

      . In reaching this conclusion, we note parenthetically that Florida Telephone Corp. v. Essig, 468 So.2d 543 (Fla. 5th DCA 1985), which Fairfield relies on to support its contention that, as a matter of law, Fairfield's interference was justified by the non-compete contract it had with Sobi, is distinguishable. There, neither party to the non-compete agreement in question in that case contested the validity of the contract while here, Sobi’s complaint challenges the non-complete provision as being void and unenforceable.


author: SHARP, W., J.

text:
    Dennis and Mary HILL, et al., Petitioners, v. STATE of Florida, Respondent.
    No. 5D02-3222.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.

      Steven G. Mason of Steven G. Mason, P.A., Donald R. Henderson and Jennifer E. Fulks of Matteer & Harbert, P.A., Timothy A. Berry, Orlando, and Edward Cul-han, Winter Park, for Petitioners.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, DaytonaBeach, for Respondent.
   SHARP, W., J.

The petitioners, Mary Hill (a defendant in a criminal case being prosecuted below), Dennis Hill (Mary Hill’s husband), and Dr. Gfeller (Mary Hill’s psychotherapist) seek certiorari review of pre-trial discovery orders compelling Dennis Hill and Dr. Gfel-ler to answer questions propounded by the state. The petitioners rely on the marital privilege, section 90.504, and the psychotherapist privilege, section 90.503. The state relies on section 39.204, which it claims completely abrogates the Evidence Code privileges for marital and psychotherapist communications. We grant the writ, in part, modify the order of the trial court, and remand for further proceedings.

The events giving rise to this proceeding are tragic. On August 7, 2000, Dennis Hill drove Mary Hill, to an appointment with her psychiatrist, Dr. Gfeller in the early afternoon. Dennis was driving Mary’s car, a 1996 BMW, because his car was being repaired. After the appointment, with Dennis still driving, they picked up their daughter at her middle school, in Seminole County. They also picked up two neighborhood children who needed a ride home, on an informal, not pre-arranged, basis. The three children sat in the back seat, wearing seatbelts. Dennis drove to an Exxon station where he had left his car.

Because Dennis intended to drive his own car home, Mary moved to the driver’s seat, in her car, and headed for then-home. She drove West on Lake Mary Boulevard and then South on Markham Woods Road. There was evidence Mary drove her car at a high rate of speed on Lake Mary Boulevard and accelerated after an intersection onto Markham Woods. She lost control of the car on a curve. The car skidded off the road and struck a tree. The crash resulted in the deaths of then-daughter and one of the neighborhood children, and severe injuries to the other child.

In April of 2001, Mary was charged with two counts of vehicular homicide. During its investigation, the state agreed the marital privilege barred access to Mary’s confidential communications with her husband. However, after approximately 21 months, the state amended the charges to add a felony count of child neglect, pursuant to section 827.03(3)(b) for the injured child, and two additional counts of manslaughter pursuant to section 782.07. Thereafter the state sought to elicit the testimony of Dennis and Dr. Gfeller, as to matters possibly covered by the marital and psychotherapist privileges.

Dennis was summoned for a formal deposition, with notice to defense counsel. The state began asking questions which could have invaded the marital privilege as well as the attorney client privilege. One of the defenses being considered by Mary’s defense team was that her vehicle had a cruise control malfunction at the time of the accident. The state asked Dennis, ‘When was the first time you heard any discussions about cruise control malfunctions?” His attorney objected and instructed Dennis that if he acquired that information from his wife in terms of a private “communication,” or from his attorney, he should not answer the question. Dennis said, “Then I can’t answer it.” He later said he had not discussed the cruise control issue with anyone other than his wife.

Dennis was also asked other questions which he refused to answer, based on the marital privilege. Dennis indicated his sole source for the information being asked were the private communications with his wife. The following questions were certified to the circuit court, in addition to the one about the cruise control issue:

1. Do you know whether or not your wife has been seeing any kind of psychiatrist or psychologist?
2. Was there a reason why she did not go to Dr. Gfeller’s by herself? [Or, why was he driving rather than his wife?]
3. What was the purpose of the visit?
4. Do you know who her psychotherapist or psychiatrist is?
5. Do you know whether or not your wife had received electroshock therapy?
6. As to August 7, 2000, did your wife receive electroshock therapy on that particular date?

However, Dennis did say later in the deposition, that he did not know whether his wife was going to receive any specific kind of treatment from Dr. Gfeller on the day of the accident, and she did not tell him anything about the kind of treatment she had received. He also later said he did not know whether Dr. Gfeller was his wife’s psychotherapist. Thus, questions 3, 4 and 6 were essentially answered.

With regard to Dr. Gfeller, the state sought to interview him by serving him with an investigative subpoena, without notice to defense counsel or Mary. When Dr. Gfeller’s attorney realized the circumstances, he made a blanket objection to Dr. Gfeller answering any questions regarding Mary, or revealing anything about her records or treatment, by invoking the psychotherapist privilege. It is not clear from the record, what specific questions the state wanted to ask Dr. Gfeller. But in general, Dr. Gfeller’s attorney instructed him not to answer any questions about the treatment he had provided to Mary Hill that day.

In its motion to compel testimony from both Dr. Gfeller and Dennis Hill, the state asserted the psychotherapist privilege and the marital communications privilege are waived by section 39.204 which provides,

The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication ... shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or -neglect ...

It claimed that Dr. Gfeller’s treatment, observations and communications with Mary a few hours before the fatal crash were relevant to the state’s prosecution of the child neglect charge. It also claimed that the certified questions posed to Dennis were relevant to the state’s prosecution of Mary for the child neglect charge.

The trial court noted that the child neglect charge was “tenuous” at best since it was based on Mary Hill’s driving at an excessive speed with a child in the car. However, the court concluded that because of the broad definition of “neglect” in section 827.03, section 39.204 abrogated both the psychotherapist and marital communications privileges.

The trial court ordered Dennis Hill to answer the certified question posed to him in his deposition and it ordered Dr. Gfeller to answer the questions posed to him in his deposition, although as noted above, there were no specific questions in this record.

Initially the state argues that this is an improper case for review by way of a petition for writ of certiorari, because if error occurred below, it can be remedied on appeal. However, if error occurred below, waiting until the appeal process to address it, does not cure an erroneous disclosure of information which should have remained confidential. The real injury in such cases is the disclosure of communications or records which may embarrass or destroy an important relationship the state has chosen to protect. Once the “cat is out of the bag,” as some courts have said, it cannot be stuffed back in. For example, a party may successfully assert on appeal, the breach of a privileged communication by a trial court’s ruling and yet lose the case because the appellate court concludes the error was not prejudicial or fundamental. See Donaldson v. State, 369 So.2d 691 (Fla. 1st DCA 1979). Or even if the party is successful on appeal, the real harm done — improper disclosure — cannot be excised.

Because of the nature of discovery orders recognizing or not recognizing the existence of a privilege, appellate courts frequently choose to review trial court’s non-final orders compelling or refusing to compel discovery by accepting petitions for certiorari. In addition, in this case, Dennis Hill and Dr. Gfeller have also asserted their respective privileges for marital communications and the psychotherapist-patient communications. Because they are not parties to the underlying criminal action, certiorari is the only practical way they can defend their privilege short of risking a contempt citation. See Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980). We agree with the second district that the latter is “too great a price” to require them to pay for the assertion of their privileges. Briggs, at 265.

In Florida, the marital communication privilege, although originally created by the common law, is a creature of statute. It is presently included as part of the Evidence Code. The Florida State courts accept the statute, as modified from time to time, as the sole source of the privilege. It provides in relevant part:

Sec 90.504 Husband — wife privilege
(1) A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.
(3) There is no privilege under this section;
(b) In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either, (emphasis added)

Because in this case, the wife, Mary Hill, had been charged with two criminal counts for the death of the parties’ daughter, it is clear that the marital communication privilege did not exist for communications relating to the homicide counts. The trial judge primarily relied on section 39.204 as having abrogated the marital communication privilege. It probably also destroyed the privilege for marital communications concerning the child neglect charge, as discussed below. But it is not necessary to reach for an abrogating statute, when the privilege itself does not encompass marital communications regarding the fatal accident which caused both the death of the daughter and injury to the neighbor child.

The psychotherapist-patient privilege did not exist at common law, and is a relatively recent privilege created and defined solely by statute. It is also part of the Evidence Code and provides in relevant part:

Section 90.503 Psychotherapist-patient privilege.
(1)For purposes of this section:
(a) A “psychotherapist” is:
1. A person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, who is engaged in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addition;
2. A person licensed or certified as a psychologist under the laws of any state or nation, who is engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug additions;
(b) A “patient” is a person who consults, or is interviewed by, a psychotherapist for purposes of diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addition.
(c) A communication between psychotherapist and patient is “confidential” if it is not intended to be disclosed to third persons ...
(2) A patient has a privilege to refuse to disclose and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist ... this privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.
(3) The privilege may be claimed by:
(a) The patient ...
(d)The psychotherapist, but only on behalf of the patient. The authority of a psychotherapist to claim the privilege is presumed in the absence of evidence to the contrary.

This privilege is “abrogated” by section 39.204 in cases involving child abuse, abandonment, or neglect. That statute provides:

The privilege quality of communications between husband and wife and between any professional person and his or her patient or client and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505 ... shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect ... and shall not constitute grounds for ... failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect. (emphasis added)

In this ease, the State has charged Mary Hill with felony child neglect pursuant to section 827.03(b)(3), which constitutes a judicial proceeding. The statute defines the crime of neglect of a child as follows:

A person who willfully or by culpable negligence neglects a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child ...

Proof of this crime requires the state to establish a high degree of culpability on the part of the defendant, equivalent to the kind of wanton and reckless behavior necessary to prove manslaughter or punitive damages. See, State v. Wynne, 794 So.2d 642 (Fla. 2d DCA 2001); Arnold v. State, 755 So.2d 796 (Fla. 2d DCA 2000). Although we have found no case in which a defendant has been convicted of this crime because of his or her reckless driving of a vehicle which resulted in the injury of a child, if the defendant’s reckless driving is shown to be sufficiently gross, there is no reason the charge could not be proven. Because of the clear statutory language in both section 39.204, and section 827.03(b)(3), we agree with the trial court that the psychotherapist-patient privilege does not exist in this case as to any communications relevant to the child neglect felony count. See State v. Jett, 626 So.2d 691 (Fla.1993). Cf., E.H. v. Dep’t of Health and Rehabilitative Services, 443 So.2d 1083 (Fla. 3d DCA 1984).

However, our conclusion in this case does not entitle the State to embark upon questions or an investigation of communications or records which are not related or relevant to the criminal charges in this case. As to all other marital or psychotherapist-patient communications, the privileges continue in effect. The strong public policy undergirding both of these privileges requires no less.

With regard to the questions the trial court has required Dennis to answer, as noted above, he has answered three out of the six questions posed. No additional answers should be required to those questions. As for the remaining questions, to the extent Dennis obtained knowledge from confidential communications with his wife, and not other sources, the State must make a preliminary showing that the information sought is relevant to the homicide or the child neglect charges. Cf., State v. Rivers, 787 So.2d 952(Fla. 2d DCA 2001); Hunter v. State, 639 So.2d 72 (Fla. 5th DCA 1994). If relevancy is challenged by Dennis or Mary, the trial court shall make the determination as to relevancy. It may employ an in camera procedure. We thus modify the trial court’s order to the extent stated above.

The trial court’s order compelling Dr. Gfeller to answer “the questions” posed to him by the State should be similarly modified. Only questions seeking confidential psychotherapistpatient communications, records, treatment and diagnosis which are relevant to the child neglect charge should be permitted. Prior to posing any questions or seeking medical records, the State must make a preliminary showing why the information sought is relevant to the child neglect charge. Challenges to relevancy by Dr. Gfeller or Mary shall be determined by the trial circuit, and again if necessary, the court may employ an in camera technique.

Petition for Writ of Certiorari GRANTED; Modify Orders Compelling Answers.

SAWAYA and ORFINGER, JJ„ concur.

      . § 782.071, Florida Statutes (2000).

      . See Alterra Healthcare Corp. v. Estate of Francis Shelley, 827 So.2d 936 (Fla.2002); Wooten, Honeywell & Rest P.A. v. Posner, 556 So.2d 1245 (Fla. 5th DCA 1990); Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). Courts recognize that there is no adequate remedy on appeal; Gracey v. Eaker, 837 So.2d 348 (Fla.2002); Cedars Healthcare Group, Ltd. v. Freeman, 829 So.2d 390 (Fla. 3d DCA 2002); Palm Beach County School Board v. Morrison, 621 So.2d 464 (Fla. 4th DCA 1993).

        .See e.g. Alterra Healthcare Corp. v. Estate of Francis Shelley, 827 So.2d 936 (Fla.2002); O’Neill v. O’Neill, 823 So.2d 837 (Fla. 5th DCA 2002)(psycho-therapist privilege); State v. Famiglietti, 817 So.2d 901 (Fla. 3d DCA 2002)(psycho-therapist privilege); Nationwide Mutual Fire Ins.Co. v. Hess, 814 So.2d 1240 (Fla. 5th DCA 2002)(attorney-client privilege); State v. Rivers, 787 So.2d 952 (Fla. 2d DCA 2001) (medical records); Horning-Keating v. State, 777 So.2d 438 (Fla. 5th DCA 2001)(attorney work product privilege); American Express Travel Related Services v. Cruz, 761 So.2d 1206, 1207 (Fla. 4th DCA 2000)(attorney client privilege); State v. Patterson, 694 So.2d 55 (Fla. 5th DCA 1997); State v. Finder, 678 So.2d 410 (Fla. 4th DCA 1996)(sexual assault counselor-victim privilege); Palm Beach County School Board v. Morrison, 621 So.2d 464 (Fla. 4th DCA 1993)(psychothera-pist privilege); Cantor v. Toyota Motor Sales USA, Inc., 546 So.2d 766 (Fla. 5th DCA 1989); Seminole County v. Wood, 512 So.2d 1000 (Fla. 5th DCA 1987); Carson v. Jackson, 466 So.2d 1188 (Fla. 4th DCA 1985)(psycho-therapist privilege).

      . See Henderson v. Chaires, 25 Fla. 26, 6 So. 164 (1889).

      . See Kerlin v. State, 352 So.2d 45 (Fla.1977).

      . Dobbert v. Strickland, 532 F.Supp. 545 (M.D.Fla.1982), affirmed, 718 F.2d 1518 (11th Cir.1983); Kerlin v. State, 352 So.2d 45 (Fla.1977). See also State v. Castellano, 460 So.2d 480 (Fla. 2d DCA 1984).

      . Guerrier v. State, 811 So.2d 852 (Fla. 5th DCA 2002).

      . O’Neill v. O'Neill, 823 So.2d 837 (Fla. 5th DCA 2002); State v. Famiglietti, 817 So.2d 901 (Fla. 3d DCA 2002).

      . Carson v. Jaelcson, 466 So.2d 1188 (Fla. 4th DCA 1985).

      . Gracey v. Eaker, 837 So.2d 348 (Fla.2002); Mercer v. State, 40 Fla. 216, 24 So. 154 (1898); Cedars Healthcare Group, Ltd. v. Freeman, 829 So.2d 390 (Fla. 3d DCA 2002); Cantor v. Toyota Motor Sales USA, Inc., 546 So.2d 766 (Fla. 5th DCA 1989); Kerlin v. State, 352 So.2d 45 (Fla.1977);


author: THOMPSON, C.J.

text:
    A.H., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-207.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.
    Garry D. Adel of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, C.J.

A.H., a child, appeals the trial court’s order adjudicating him delinquent. He contends that the court erred in denying his motion to suppress marijuana and a razor blade that were found on his person during a school search. We agree and reverse the order.

In the suppression hearing, Matthew Koff, a physical education teacher, testified that he was selling A.H. a uniform when he noticed that A.H.’s speech was slurred. Koff could not understand A.H. and asked him to repeat his name several times. Still unable to understand A.H., Koff finally asked him to spell his name. Koff felt something was not right, so he went to the assistant principal. Koff, who had never met A.H. before, had no special training regarding children on drugs, but he had educated himself on the topic by reading pamphlets in connection with his college work. Koff testified that he may have informed the assistant principal that A.H. might be “on something.” Koff testified: “I thought maybe — I didn’t know if it was alcohol, drugs or anything but I thought maybe there was something that was affecting his speech.”

The assistant principal testified that upon being informed by Koff that A.H. was not “acting right,” she immediately took A.H. to an empty office. She was accompanied by the school resource officer, an Ocala police officer. The assistant principal testified that she told A.H. that he was suspected of having taken something he should not have taken, and A.H. responded, “no.” After A.H. emptied his pockets at the assistant principal’s request, the assistant principal opened his wallet and found a bag of leafy green material and a razor blade. The officer conducted a field test, and the substance tested positive for marijuana. On cross examination, the assistant principal admitted that she did not realize that Koffs suspicions arose solely from an inability to understand A.H.’s last name.

“Under ordinary circumstances, a search of a student by a school or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” New Jersey v. T.L.O., 469 U.S. 825, 341-342, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). The state is required to elicit specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant the intrusion. A.N.H. v. State, 832 So.2d 170 (Fla. 3d DCA 2002) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

In the instant case, there were no facts which, combined with rational inferences, would warrant the intrusion. The sum and substance of the testimony was that one of three adults who spoke with A.H. had a “gut feeling” that something was wrong. We note that the assistant principal and the school resource officer did not have a problem understanding A.H.' The instant case is very similar to A.N.H., in which the district court held that reasonable grounds for a search did not arise merely because a student had bloodshot eyes and was not “acting himself.” Compare Com. v. J.B., 719 A.2d 1058, 1060-1062 (Pa.Super. 1998) (holding that a school officer could reasonably conclude that a student who was staggering in the hallways and had slurred speech was violating school rules where the student had never previously exhibited such behavior, and where the officer had encountered numerous students under the influence of drugs).

The state argues that A.H. voluntarily consented to the search. A.H. testified during the hearing that because the assistant principal and resource officer were present, he did not feel that he could refuse the request to be searched. Moreover, he testified that he was a freshman and that the incident occurred during his second week in school. We do not think that the circumstances shown in this record support the conclusion that A.H. voluntarily consented to the search. See Connor v. State, 803 So.2d 598, 609 (Fla.2001) (holding that when considering the voluntariness of a consent to search, one must consider the totality of the circumstances).

The state also contends that A.H. waived his right to appeal the motion to suppress by pleading guilty to the charges. We disagree. A.H.’s boilerplate plea form stated, “By pleading Guilty or No Contest, I waive my right to appeal except by appropriate collateral attack,” but A.H. expressly reserved the right to appeal the ruling on the motion to suppress. A defendant may appeal a conviction based on a guilty or nolo contendere plea if he expressly reserves the right to appeal a prior dispositive order of the trial court. Jones v. State, 806 So.2d 590, 592 (Fla. 5th DCA 2002). Further, the trial court stated at the conclusion of the sentencing hearing that A.H. had 30 days to appeal from the date of the disposition.

REVERSED.

SAWAYA, J., concurs.

PETERSON, J., dissents without opinion.


author: GRIFFIN, J.

text:
    Moreland NICHOLSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1827.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.

      Terrence E. Kehoe, Orlando, and Donald R. West, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Moreland Nicholson [“Nicholson”], a teacher, was arrested for sexually abusing two students. He was charged in two informations with numerous offenses, but was allowed to plead guilty in each case to one count of lewd or lascivious molestation of a person between twelve and sixteen years of age. He was not promised any particular sentence, but the plea provided that both cases would be scored on a single scoresheet. The plea further provided that he might be subject to sex offender probation, but was silent on the issue of designation as a sexual predator.

At sentencing, Nicholson was orally sentenced on each count to ten years in the Department of Corrections, followed by five years’ sex offender probation, both sentences to be served concurrently. The court also ordered restitution. Again no mention was made of sentencing Nicholson as a sexual predator. The written judgment and sentences entered the following day mirrored the oral pronouncements, except that this time Nicholson was declared to be a “sexual predator” with respect to each sentence.

Nicholson now complains on appeal that he did not qualify for sentencing as a sexual predator under section 775.21, Florida Statutes (1999), and that it was error to designate him as such. We agree. The offenses to which he pled guilty — two counts of lewd or lascivious molestation of a person between twelve and sixteen years of age — are not “capital, life, or first-degree” felonies, or “any attempt thereof,” under section 775.21(4)(a)l.a. He cannot be designated a sexual predator under section 775.21(4)(a)l.b. because he had not previously been convicted of one of the qualifying offenses. His convictions for two separate offenses, which occurred at the same time and were scored on the same score-sheet, also do not qualify him for sentencing as a sexual predator. § 775.21(4)(b), Fla. Stat. (1999).

The State seemingly concedes that the sexual predator designation is a “scrivener’s error,” but argues that the issue was not preserved for appeal by objection or by motion pursuant to Rule 3.800(b). Nicholson could not have objected to this designation at sentencing because the designation was not made until after sentencing. As for Rule 3.800(b), defendant brings to our attention a line of cases from the Second District Court of Appeal clearly holding that Rule 3.800(b) is not applicable to a sexual predator designation because such a designation is neither a sentence nor a punishment. Smeltz v. State, 818 So.2d 538 (Fla. 2d DCA 2002); Coblentz v. State, 775 So.2d 359 (Fla. 2d DCA 2000); Angell v. State, 712 So.2d 1132 (Fla. 2d DCA 1998). This court has agreed that the sexual predator designation is neither a sentence nor punishment, but we have not directly confronted whether Rule 3.800(b) is available to correct an erroneous designation or to preserve the error for appellate review. The above-cited cases from our sister court indicate with perverse logic that if a sexual predator designation is not a sentence or a punishment, it cannot be reviewed within the rubric of a criminal proceeding. Smeltz, 818 So.2d at 539. The reasoning of Smeltz is that if this designation is not criminal, then any remedy must be civil. In Angelí, the court suggested the defendant file a civil declaratory action; in Cob-lentz and Smeltz, a motion for relief from judgment under Florida Rule of Civil Procedure 1.540 was suggested.

We elect to take a simpler approach, although we echo the Second District’s view that a rule would be helpful. Coblentz, 775 So.2d at 360. Since the courts have painted ourselves into the “no sentence, no punishment” corner, however, it is difficult even to imagine which rules committee might take this task in hand.

We take the view that it doesn’t much matter that a sexual predator designation is not a sentence or a punishment. Under the statutory scheme set forth in section 775.21(5)(a)l., when the defendant is before the court for sentencing for a current offense, the sentencing court must make a “written finding” that the person is a sexual predator at the time of sentencing. This is, therefore, a function of the criminal court as a part of the sentencing procedure. Rule 3.800 expressly applies to any “sentencing error.” We think a sentencing error is not only an error in a “sentence” but also any error that occurs as' part of the sentencing process.

When a claim of a sexual predator designation error is made, the trial judge who made the designation is the one in the best position to evaluate the claim and to correct the error. Therefore, the trial judge is the one to whom the error must first be raised — either during the sentencing proceeding or thereafter. The time frames applicable to criminal appeals will govern and all proceedings will remain under the file number of the case in which this designation was made. The designee will have counsel to assist the court. If the sexual predator designation were merely a civil proceeding somehow appended to a criminal case and either a declaratory judgment action or a Rule 1.540 motion were the only vehicles for relief, the time frames would expand greatly, the difficulty and cost of the proceedings would explode, the judge evaluating the claim of error may well have no knowledge of the law or prior proceedings, indigent defendants would be pro se and who knows who would represent the State. Given these alternatives, we choose the sensible one and conclude that this has to be a “sentencing error” to which Rule 3.800 applies. From now on, this error must be preserved by contemporaneous objection or a timely Rule 3.800(b) motion. In this case, however, given the State’s concession that the designation was erroneous, we herewith strike it.

Sexual predator designation STRICKEN.

PALMER and TORPY, JJ., concur.

      . In Wade v. State, 728 So.2d 284, 285 (Fla. 2d DCA 1999), the court found Rule 3.800 inapplicable, but nevertheless reversed the designation, apparently concluding that preservation was not required.

      . Kelly v. State, 795 So.2d 135, 138 (Fla. 5th DCA 2001). This court has also held that Rule 3.800(c), "Reduction and Modification" of a legal "sentence”, does not apply to a "sexual predator" designation. Fletcher v. State, 699 So.2d 346 (Fla. 5th DCA 1997).

      . We have already taken the view that the issue is subject to review in the criminal case by direct appeal. Nicholas v. State, 844 So.2d 826 (Fla. 5th DCA 2003).


text:
    Bruce WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-928.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.
    Bruce Wilson, Chipley, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

Bruce Wilson appeals the denial of his motion to mitigate sentence, pursuant to Rule 3.800(c). For the reasons stated below, we dismiss the appeal.

After being sentenced to a prison term followed by probation for having committed the crimes of false imprisonment, aggravated assault, battery, and violation of a domestic violence injunction, Wilson filed his 3.800(c) motion to mitigate sentence. The trial court denied the motion on October 3, 2002. On January 30, 2003, Wilson served his notice of appeal.

Because Wilson filed his notice of appeal more than 30 days after the trial court rendered its order denying the motion to mitigate, the appeal is not timely. See Fla. R.App. P. 9.140(3); Downs v. State, 700 So.2d 789 (Fla. 2d DCA 1997). Even if the notice had been timely filed, we note that an order denying a defendant’s motion to mitigate sentence is a non-appeal-able order. See Adams v. State, 800 So.2d 741 (Fla. 5th DCA 2001).

DISMISSED.

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


text:
    Ronald MEDEIROS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2504.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.
    Ronald Medeiros, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Habeas petitions cannot be used for additional appeals on questions which could have been, should have been, or were raised on appeal or in a rule 3.850 motion, or on matters that were not objected to at trial. See Riggens v. State, 805 So.2d 1082 (Fla. 5th DCA 2002) (citing Parker v. Dugger, 550 So.2d 459, 460 (Fla.1989)).

AFFIRMED.

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


author: PLEUS, J. GRIFFIN, J.,

text:
    Michelle C. PHILLIPS, Appellant, v. FLORIDA COMMISSION ON HUMAN RELATIONS, Appellee.
    No. 5D02-2094.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.
    Edward R. Gay, Orlando, for Appellant.
    Richard A. DuRose, John R. Hamilton and Dawn Wilnau of Foley & Lardner, Orlando, for Appellee, Orange Lake County Club Realty, Inc.
    No Appearance for Appellee, Florida Commission on Human Relations.
   ON MOTION FOR ATTORNEY’S FEES

PLEUS, J.

Michelle Phillips (“Phillips”) filed her initial grievance for employment discrimination under the Florida Civil Rights Act. The Florida Commission on Human Relations (“Commission”) found no cause. Phillips asked for a hearing and the Administrative Law Judge found no merit to her claim. That decision was affirmed per curiam by this court.

Her former employer, Orange Lake Country Club Realty, Inc., has moved for appellate attorney’s fees pursuant to section 760.11(13), Florida Statutes. There is no issue on entitlement to fees. Under Florida Rule of Appellate Procedure 9.400(b), we have authority to set the amount of reasonable attorney’s fees. By order, we requested affidavits relative to the motion.

Orange Lake filed two attorney affidavits in support of its motion. As well, counsel for Orange Lake filed a computer print out of its time records. The attorney affidavits opine that based on the time sheets, Orange Lake is entitled to appellate attorney’s fees of $24,667, plus $1,500 more for preparation of the two affidavits supporting the motion.

Phillips filed a counter affidavit signed by a highly respected appellate specialist. In her affidavit, Marcia K. Lippincott states that she has reviewed the time sheets submitted by Orange Lake. She believes 35 hours is more appropriate versus the 94.4 hours shown on the computer printout. We agree.

As Ms. Lippincott notes, the application for fees should be limited to services rendered for the appeal to this court. Much of the facts and law was developed prior to filing the notice of appeal.

In this context, the work of counsel for Orange Lake should be limited to putting the factual findings in the appellate brief format with some additional legal research. It was noted that six of the thirteen cases cited in Orange Lake’s answer brief are cases cited in its post-hearing memorandum. It was also pointed out that there was duplication of efforts with several attorneys working on the appeal. Close to six hours were spent on matters that were unnecessary for one with appellate experience. For example, the time sheets list such items as “research appeals procedures”; “conference ... regarding procedure in appeals”; a meeting to “discuss appellate procedures”; research “requirements of an appellate brief in the Fifth DCA”; and “review citing requirements.” Additionally, Ms. Lippincott felt the expenditure of close to 19 hours to prepare for oral argument was unreasonable.

Having considered all those factors listed in Rule 4 — 1.5(B), Rules of Professional Conduct, Ms. Lippincott considers a reasonable fee in this matter to be $10,500. We agree and enter judgment in favor of Orange Lake and against Michelle C. Phillips in the amount of $10,500 in attorney’s fees for which sum let execution issue.

MOTION GRANTED; JUDGMENT ENTERED.

COBB, W., Senior Judge, concurs.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent because I do not believe that appellant’s appeal was frivolous. I am also concerned that assessing fees against a disability discrimination plaintiff under these circumstances will have an undesirable chilling effect on claimants whose claim is of arguable merit.

Here, it is undisputed that the claimant was disabled in that she was afflicted with incurable Hepatitis C. It is undisputed that she was one of the employer’s best salespersons. It is also undisputed. that she had asked for a modified work week schedule to accommodate her condition, which the employer refused, even though such had been approved for another employee who wanted to do “victim advocacy” work. The only issue was whether claimant was discharged because of her disability or because of unexcused absences due to illness that were not associated with her disability. The hearing officer found as fact that they were not related and that there was “no evidence” of discrimination. However, the evidence showed that her prior termination had expressly been based on her health and that she was treated disparately by the employer. Although she had withdrawn her request for reasonable accommodation in order to regain her job, she contended that such an act done in order to salvage her employment ought not to bar a claim for disability discrimination.


author: STRINGER, Judge.

text:
    Robert F. DAKIN, Barbara Dakin, Louis Hicks, and Joan Hicks, Appellants, v. John BORGEMEISTER, individually; Peggy Borgemeister, individually; Tara Investment Group, Inc., a Florida corporation d/b/a Billboard Displays and Hallmark Media Group, Inc., a Florida corporation, Appellees.
    No. 2D02-1237.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.

      Gary R. Gossett, Jr., of Gossett Law Offices, Sebring, for Appellants.
    James F. McCollum of McCollum & Ri-naldo, P.A., Sebring, for Appellees.
   STRINGER, Judge.

Appellants Robert F. Dakin and his wife, Barbara Dakin, and Louis Hicks and his wife, Joan Hicks, seek review of a final judgment against them on their complaint alleging causes of action for nuisance, slander of title, trespass to real property, conversion, and injunctive relief against Ap-pellees John Borgemeister and his wife, Peggy Borgemeister; Tara Investment Group, Inc. d/b/a Billboard Displays (“Tara”); and Hallmark Media Group, Inc. (“Hallmark”). Tara and Hallmark are outdoor advertising companies owned by Mr. Borgemeister and Mrs. Borgemeister, respectively.

All of the alleged causes of action arose from a dispute involving the ownership of two billboards located on a parcel of real estate in Highlands County. In 1986 Mr. Borgemeister purchased the property subject to a purchase money mortgage held by Barnett Bank. Mr. Borgemeister subsequently erected the billboards and leased the property to Tara for a term of 100 years. He then sold the property to C.A.R.D. Enterprises, Inc. (“C.A.R.D.”) and a Mr. and Mrs. Djubin, who assumed the mortgage with Barnett’s consent. Mr. Borgemeister also modified Tara’s lease to reflect the new owners and to restrict the leased area to the property occupied by the billboards. C.A.R.D. and the Djubins eventually defaulted on the mortgage, and Barnett obtained a final judgment of foreclosure against C.A.R.D., the Djubins, and Tara. Barnett then acquired the property at the foreclosure sale and sold the property to the Hicks.

When the Hicks attempted to rent out the billboards, they discovered that the Borgemeisters were claiming ownership of them, and this action ensued. Prior to trial, the court entered a final default judgment against Mrs. Borgemeister on the issue of liability. After trial, the jury returned verdicts of no liability as to Mr. Borgemeister and Tara and awarded zero damages against Mrs. Borgemeister, and the court entered a final judgment for the Borgemeisters, Tara, and Hallmark.

Appellants now seek review of the final judgment and several of the trial court’s interlocutory rulings. We affirm without discussion the trial court’s denial of (1) Appellants’ motion for directed verdict as to Appellees’ liability and (2) Appellants’ motion for leave to amend their complaint to seek punitive damages. We conclude, however, that the trial court’s erroneous denial of Appellants’ motion for directed verdict on the issue of ownership of the billboards requires reversal for a new trial. Our reversal renders the remaining issues raised by Appellants moot.

In the final judgment of foreclosure against Tara, the court found that Barnett’s security interest was “superior to all rights, claim[s], interest, encumbrances, and equities of each and every defendant.” After the foreclosure sale, Barnett received a certificate of title which included “all rights of the borrower in the Collateral,” which is described in the mortgage as the realty and “all the improvements now or hereafter erected on such property and all fixtures now or hereafter attached thereto.” The mortgage further provided that it would “automatically attach, without further act, to all after acquired property of whatever kind located in or on or attached to ... the Mortgaged Property.”

Appellees’ claim of ownership of the billboards arises through Mr. Borgemeister’s lease of the property occupied by the billboards to Tara. It is clear that the matter of the ownership of the billboards was determined against Tara in the foreclosure action, and the trial court should have decided this issue as a matter of law.

Reversed and remanded.

NORTHCUTT and KELLY, JJ., Concur.

      . After the complaint was filed, the Dakins purchased the property from the Hicks.

      . The only count of the complaint involving Hallmark was a claim for injunctive relief against Hallmark in count six which the trial court denied in the final judgment.


author: SILBERMAN, Judge.

text:
    Arlis R. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4259.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.
   SILBERMAN, Judge.

Arlis R. Jones appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without discussion two of the six claims Jones raised in his motion. We reverse the trial court’s summary denial of the remaining four claims and remand for further proceedings.

In the first of these four claims, Jones contended that his counsel was ineffective for stipulating to a factual basis for sexual battery when none existed. See Koenig v. State, 597 So.2d 256, 258 (Fla.1992) (noting that counsel’s stipulation to a factual basis for the plea is insufficient if there are no supporting facts in the record); State v. Pelham, 737 So.2d 572, 573 (Fla. 1st DCA 1999) (same). Jones asserted that if his counsel had not stipulated to the factual basis, the State would have been unable to present a sufficient factual basis to support the charge and the trial court would have discharged Jones or would have rejected the plea. Because the portion of the record attached to the order does not contain a factual basis for sexual battery, but only counsel’s stipulation that there was a factual basis, we reverse and remand for the trial court to attach additional portions of the record that adequately refute Jones’ claim or, if that is not possible, for an evidentiary hearing.

In the second claim, Jones contended that his counsel was ineffective for failing to object to a double jeopardy violation by the State. He argued that the State improperly charged him with more than one crime when the criminal acts occurred during the “same time period” and the “same criminal episode.” See Morman v. State, 811 So.2d 714, 717 (Fla. 2d DCA 2002); Russo v. State, 804 So.2d 419 (Fla. 4th DCA 2001). He claimed that because his counsel did not advise him of the double jeopardy violation, his plea was involuntary; had he been properly advised, he would not have pleaded no contest.

Whether multiple offenses arise from the “same criminal episode” depends on: (1) whether separate victims are involved, (2) whether the crime locations are separate, and (3) whether a temporal break separates the incidents. Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001). Here, the victim was the same, the crime locations were the same, and Jones argues the incident was one continuous domestic argument beginning in the late evening and ending early the next morning. It is not clear whether a temporal break separated the battery charged in count one and the sexual battery charged in count two because the portions of the record that were attached to the trial court’s order do not include the factual basis for the charges. Because the attachments do not refute this claim, we reverse and remand for the trial court to attach additional portions of the record that conclusively refute the claim, or if that is not possible, for an evidentiary hearing.

In the third claim, Jones contended that his counsel was ineffective for inducing him to accept the plea bargain without telling him that consent is a defense to a sexual battery charge. He claimed that he told counsel that his wife had consented to his sexual advances and that he would have proceeded to trial had his counsel advised him of the availability of the defense. In order for a trial court to summarily deny a defendant’s claim that his counsel failed to advise him of a specific defense, the record must conclusively refute the claim. Flores v. State, 662 So.2d 1350, 1351-52 (Fla. 2d DCA 1995).

In this case, the transcript of the plea colloquy attached to the order shows Jones answered “yes” when the trial court asked him if he was satisfied with his attorney. This alone does not refute an ineffective assistance of counsel claim based on the attorney’s failure to advise of a specific defense because Jones alleged that his satisfaction with counsel was uninformed. See Scott v. State, 779 So.2d 284, 285 (Fla. 2d DCA 1998). The transcript shows that the trial court neither asked Jones specifically whether his attorney had discussed consent as a defense, nor asked him generally whether his attorney had discussed possible defenses with him. Because the matter at issue was not discussed when the plea was taken, the plea colloquy does not refute the claim, and an evidentiary hearing is necessary. See State v. Leroux, 689 So.2d 235, 237-38 (Fla.1996).

The fourth and final claim upon which we reverse is Jones’ claim that when he asked his counsel specifically whether his no contest plea would qualify him as a sexual offender, his counsel affirmatively told him that it would not because Jones would have only one sexual battery conviction. Although sexual offender registration is a collateral consequence about which a defendant does not have to be informed, see State v. Partlow, 840 So.2d 1040 (Fla.2003), Jones may be entitled to relief if his counsel affirmatively misled him about such a collateral consequence. See Gunn v. State, 841 So.2d 629, 631 (Fla. 2d DCA 2003); Watrous v. State, 793 So.2d 6, 11 (Fla. 2d DCA 2001). The transcript of the plea hearing attached to the trial court’s order reflects that Jones answered “no” when the court asked him whether anyone had promised him anything to induce his plea. However, it has been noted that there may be a difference between a “promise” and an attorney’s advice to his client that impacts the client’s decision in plea negotiations. See Leroux, 689 So.2d at 236-37.

Jones’ negative response does not conclusively refute the claim that his plea was a product of his counsel’s alleged misrepresentation that he would not qualify as a sexual offender. Nothing else in the record attached to the trial court’s order conclusively refutes Jones’ claim. Accordingly, we reverse on this claim and remand for an evidentiary hearing.

Affirmed in part; reversed in part; and remanded.

DAVIS and VILLANTI, JJ., concur.


text:
    Jerry Jarbar ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1122.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.
   DAVIS, Judge.

Jerry Jarbar Armstrong appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm and write to discuss one claim. Armstrong alleged that when he was sentenced to prison for violating the probation portion of his split sentence, he was not awarded credit for time he previously served in prison during the incarcerative portion of the split sentence. A review of the record indicates that when the trial court resentenced Armstrong to prison for violating his probation, the trial court checked the appropriate box on the sentencing document ordering the Department of Corrections to compute and apply credit for time previously served in prison. See Wiggins v. State, 817 So.2d 1016 (Fla. 2d DCA 2002); Downing v. State, 779 So.2d 562 (Fla. 2d DCA 2001). Therefore, the trial court has completed its responsibility, and any challenge Armstrong may have regarding the application of prison credit to his sentence should be raised through the appropriate administrative remedies with the Department of Corrections. Accordingly, we affirm the order of the trial court without prejudice to any right Armstrong may have to seek such remedies. See Rood v. State, 790 So.2d 1192 (Fla. 1st DCA 2001).

Affirmed.

FULMER and VILLANTI, JJ., concur.


author: VILLANTI, Judge.

text:
    Eric A. HUNTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-630.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.
   VILLANTI, Judge.

Eric A. Hunter appeals the denial of a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.

In his motion, Hunter alleged that his written sentence does not reflect the amount of jail credit awarded to him by the trial court at the sentencing hearing. If such a discrepancy exists, Hunter’s written sentence must be corrected to conform to the oral pronouncement. See, e.g., Watts v. State, 790 So.2d 1175 (Fla. 2d DCA 2001). Such a claim is cognizable in a rule 3.800(a) motion. See id. at 1176. However, Hunter styled his motion as one seeking clarification of his sentence filed pursuant to rule 3.800(b), and the trial court treated it as such and denied it without any explanation. Because Hunter raised a claim of illegal sentence, the trial court should have considered the motion as one filed pursuant to rule 3.800(a). See Gill v. State, 829 So.2d 299 (Fla. 2d DCA 2002). In the alternative, because the motion is sworn and timely filed, the trial court could consider it under rule 3.850. Id. at 300.

We note that Hunter filed an earlier rule 3.800(a) motion seeking jail credit in the present cases. In its order, the trial court partially granted the motion but did not address the specific issue raised herein. Therefore, Hunter’s present motion should not be deemed successive. See Sanchez v. State, 745 So.2d 1007 (Fla. 2d DCA 1999). Accordingly, we reverse and remand for the trial court to consider Hunter’s claim pursuant to rule 3.800(a).

Reversed and remanded.

DAVIS and COVINGTON, JJ., concur.


author: SALCINES, Judge.

text:
    Jesse R. ALLEN, a/k/a Jessie R. Allen, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-245.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.
   SALCINES, Judge.

Jesse R. Allen, a/k/a Jessie R. Allen, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse.

Allen was sentenced to consecutive prison terms as a habitual offender in 1989. Under certain circumstances which appear to be applicable in the present case, such a sentence became illegal after Hale v. State, 630 So.2d 521 (Fla.1993). See Adams v. State, 755 So.2d 678, 680 (Fla. 2d DCA 1999). The supreme court stated, in State v. Callaway, 658 So.2d 983, 987 (Fla.1995), that Hale should be applied retroactively.

Allen has filed a facially sufficient motion which alleges that the application of the rule in Hale may be determined without resort to extra-record facts. See Allen v. State, 779 So.2d 471 (Fla. 2d DCA 2000). We therefore reverse the circuit court’s order and remand for the circuit court to review the record in accordance with Allen’s prior appeal. If his motion is supported by the record, Allen must be resen-tenced in accordance with Hale.

Reversed and remanded.

CASANUEVA and COVINGTON, JJ., concur.


text:
    Robert HAELTERMAN, Appellant, v. Cheryl HAELTERMAN, Appellee.
    No. 2D02-1900.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.
    Angela D. Flaherty of Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, Sarasota, for Appellant.
    Cheryl Haelterman, pro se.
   STRINGER, Judge.

Robert Haelterman, the Former Husband, seeks review of the trial court’s order accelerating equitable distribution under the final judgment of dissolution and ordering the Former Husband to pay $72,000. The Former Husband argues that the trial court erred in finding an anticipatory breach and accelerating payment. Because the final judgment of dissolution was based on a unilateral agreement to pay money at a future time, we conclude that the doctrine of anticipatory breach does not apply.

In this case, the court entered the amended final judgment of dissolution pursuant to the terms and conditions of a stipulation amending final judgment of dissolution of marriage (“the Stipulation”). The Stipulation contained a provision requiring the Former Husband to pay Cheryl Haelterman, the Former Wife, an additional postdissolution division of property in the amount of $120,000 to be paid in annual payments of $12,000 commencing June 1,1998, and to be due on the first day of June thereafter. The Former Husband made the annual payment in 1998 and 1999, but did not make the payment in 2000. On September 15, 2000, the Former Wife obtained a judgment against the Former Husband for the 2000 payment.

On April 22, 2002, the parties entered into a mediated settlement agreement that provided that the Former Wife agreed to waive the 2001 payment. The Former Wife subsequently asked the trial court to accelerate the Former Husband’s obligation to pay the entire amount of the obligation based on his failure to make the 2000 and 2001 payments. The Former Husband contended that he should be entitled to pay the amounts due as required in the Stipulation. The trial court found an anticipatory breach on the part of the Former Husband and accelerated the amount due under the Stipulation, which the parties stipulated was $72,000.

If a party to a contract repudiates a duty before he has actually breached the contract and before he has received all of the agreed exchange for it, he has committed an anticipatory breach that gives rise to a claim for damages. Hosp. Mortgage Group v. First Prudential Dev. Corp., 411 So.2d 181, 182 (Fla.1982). However, the doctrine of anticipatory breach is generally inapplicable to unilateral contracts. Poinciana Hotel of Miami Beach, Inc. v. Kasden, 370 So.2d 399, 401 (Fla. 3d DCA 1979); Restatement (Second) of Contracts § 243(3) (1981). Subsection (3) of the Restatement provides that the rule of anticipatory breach should not be applied with regard to unilateral contracts for the payment of money in fixed installments when the only remaining duty under the contracts is the payment. Restatement § 243(3); see also Williston on Contracts, § 63:62, at 693 (4th ed.2002). This is so because the injured party has a remedy for the breach of future payments by specific enforcement of those obligations. Restatement § 243, cmt. d, and § 359(2), cmt. b.

The Third District has recognized a limited exception to the general rule when jeopardy to the obligee is imminent. Poinciana, 370 So.2d at 402. In that case, the obligor was threatening to declare bankruptcy, and the court held that a finding of anticipatory breach of a mortgage agreement was proper because “time was of the essence” to protect the obligees’ security interests. Id. The limited exception in Poinciana is not applicable in this case, which does not involve any imminent jeopardy to the Former Wife. Accordingly, the trial court erred in finding an anticipatory breach and in accelerating payment under the final judgment of dissolution.

Reversed.

NORTHCUTT and KELLY, JJ., Concur.


text:
    STATE of Florida, Appellant, v. Catherine W. GREGORY, Appellee.
    No. 2D02-783.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.

      Charles J. Grist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant.
    David R. Carmichael, Bartow, for Appel-lee.
   PER CURIAM.

We affirm based on this court’s decision in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). As we did in Green, we certify conflict with Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d-, 2002 WL 31202145 (Fla. 5th DCA Oct.4, 2002), and Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002).

Affirmed.

CASANUEVA, KELLY, and CANADY, JJ., concur.


text:
    Jesus MAGANA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-162.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Jesus Magana seeks review of a judgment and sentence that imposed a ten-year armed drug trafficking minimum mandatory sentence pursuant to section 893.13(1), Florida Statutes (2000). That sentence appears to contain a scrivener’s error .because section 893.13 does not address minimum mandatory sentences. Magana argues that the correct sentencing statute is section 893.135, Florida Statutes (2000), which was declared unconstitutionally enacted in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), appeal voluntarily dismissed, 821 So.2d 302 (Fla.2002).

While Magana is correct that Taylor held section 893.135 to be unconstitutionally enacted, Magana’s sentence is actually supported by section 775.087(2)(a)(l)(q), Florida Statutes (2000). Section 775.087(2)(a)(l)(q) provides for a minimum mandatory sentence of ten years for armed trafficking, and this section was unaffected by our decision in Taylor. Therefore, we affirm Magana’s sentence but remand for the trial court to correct the judgment and sentence to reflect the proper statutory provision.

Affirmed and remanded.

NORTHCUTT and COVINGTON, JJ., concur.


author: CANADY, Judge.

text:
    Donald E. MINIE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4265.
    District Court of Appeal of Florida, Second District.
    June 6, 2003.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charlie J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

On this appeal briefed and reviewed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the appellant, Donald E. Minie, Jr., challenges the sentences imposed upon the revocation of the probation he was serving for attempted handling and fondling of a child under sixteen and cocaine possession — offenses he committed in 1997. Minie also challenges his judgment and sentence for robbery — an offense he committed in 2001 and which served, in part, as the basis for the revocation of his probation.

We conclude there are no meritorious substantive grounds to support this appeal. We, however, remand this cause for correction of a scrivener’s error on Minie’s written robbery judgment. The judgment erroneously indicates Minie’s robbery offense as a first-degree felony. The record shows that Minie pleaded no contest to the robbery offense — and was otherwise adjudicated and sentenced therefor — as a second-degree felony. The trial court is therefore directed to correct the written judgment to reflect Minie’s robbery conviction as a second-degree felony. This cause is affirmed in all other respects.

Affirmed but remanded for correction of scrivener’s error.

STRINGER and DAVIS, JJ., concur.


text:
    Curtis TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2245.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm. Test results are admissible if a state-certified probation officer testifies about the nature of the test, how it is performed, and the number of times a test is administered; furthermore, the results will support a finding of probation violation as long as the testing is not the sole basis for the finding. See Terry v. State, 777 So.2d 1093 (Fla. 5th DCA 2001).

AFFIRMED.

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


author: TORPY, J.

text:
    Nathaniel REICHENBERG, Appellant, v. Melanie Christine DAVIS, etc., Appellee.
    No. 5D02-2431.
    District Court of Appeal of Florida, Fifth District.
    June 6, 2003.
    Christian F. Smith and Brett C. Kocijan, ' of Debs, Smith and Kocijan, P.A., Jacksonville, for Appellant.
    Homer A.C. Bliss, Jacksonville, for Ap-pellee.
   TORPY, J.

In this paternity case, Appellant (“Father”) petitioned the court to modify the final judgment to make him the primary residential parent of the parties’ seven-year-old son. After hearing the evidence, the lower court denied the petition. Father raises several issues on appeal only one of which merits discussion.

During the trial, Father attempted to introduce reports of investigations that had been conducted by the Child Protection .Team and the Department of Children and Families (“DCF”). The reports contained the results of witness interviews wherein allegations were made that the parties’ seven-year-old son had been the victim of certain “sexual touching,” perpetrated by Appellee’s (“Mother’s”) eight-year-old stepdaughter. These allegations formed the primary basis for Father’s request that custody be changed.

Father sought to introduce the two reports under the business records exception to the hearsay rule, section 90.803(6), Florida Statutes (2002). In the case of both documents, however, he failed to establish the predicate for their admission. As to the May 25, 2001, report of the Child Protection Team, the witness called by Father acknowledged that one or more pages of the multi-page- document were missing. As to the report of the DCF, the witness subpoenaed by Father could not identify the report.

Furthermore, even if these authentication problems had been overcome, the reports were clearly not admissible over Mother’s timely hearsay objections. The problem here is that, in both reports, the authors simply related the substance of what the witnesses had told the authors. These witness’s statements, even though contained within the business records, do not fall within the exception, because they were not based upon the personal knowledge of an agent of the “business.” Harris v. Game and Fresh Water Fish Com’n, 495 So.2d 806, 808 (Fla. 1st DCA 1986); Van Zant v. State, 372 So.2d 502 (Fla. 1st DCA 1979). To be admissible under these circumstances, the hearsay statements made to the authors must themselves fall within an exception to the hearsay rule. § 90.805, Fla. Stat. (2002); Harris, 495 So.2d at 809. Here, no exceptions apply. For these same reasons, the documents would not have been admissible under the public records exception to the hearsay rule, section 90.803(8), Florida Statutes (2002). Lee v. Department of Health & Rehabilitative Services, 698 So.2d 1194 (Fla.1997). Therefore, we find that the trial court correctly excluded the documents.

Because the record of the DCF would not have been admissible even had the witness been able to identify it, Father’s request for a continuance to secure the presence of the proper witness was appropriately denied.

The court has carefully reviewed the record as it relates to Appellant’s other points on appeal and determined that they are without merit. Based upon the foregoing, the judgment of the trial court is affirmed.

Appellee’s request for attorney’s fees on appeal is denied because the request was made in her brief, rather than by separate motion. McCreary v. Florida Resid. Prop. & Cas. Joint Underwriting Ass’n., 758 So.2d 692 (Fla. 4th DCA 1999).

AFFIRMED.

THOMPSON, C.J., and PLEUS, J., concur.

      . The victim's statement was not admissible under section 90.803(23), Florida Statutes, because no showing was made that the victim was "unavailable." § 90.803(23)(a)2b, Fla. Stat. (2002). The perpetrator’s alleged statement was not admissible under section 90.804(2)(c), Florida Statutes, for the same reason. § 90.804(1), Fla. Stat. (2002).