author: PLEUS, J.

text:
    Ann M. COLE, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-1212.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.

      Ann M. Cole, Orlando, pro se.
    No Appearance for Appellee.
   PLEUS, J.

Cole, pro se, appeals a final order of the Unemployment Appeals Commission (UAC) denying her unemployment benefits. She argues that the UAC erred in determining that she quit her job without good cause. Neither the employer nor the UAC filed an answer brief.

Cole worked as an office assistant for attorney Robert Murrell. She separated from employment and filed a claim for unemployment benefits. The Agency for Workforce Innovation issued a Notice of Determination granting unemployment benefits. Murrell appealed.

An appeals referee conducted a telephone hearing. Murrell testified that Cole worked for him as an office assistant from the fall of 2001 to November 20, 2002. Cole was an hourly employee who was paid on Friday for the number of hours she worked any given week.

Murrell described the circumstances surrounding Cole’s separation. On Monday, November 19, 2002, Murrell and Cole worked into the evening hours as Murrell was preparing to leave for a three-week vacation to North Carolina. He instructed her to file some papers at the courthouse first thing the next morning. On his way out of town Tuesday morning, Murrell called Cole and asked if she had filed the papers. She said “No, I’ll do that when I get around to it.” Cole asked Murrell if he had signed her paycheck for that week and Murrell responded that he would call her Friday and let her know where to find the check. Cole said, “I’m not playing this and I quit.” Murrell drove to the office and told Cole, “Since you quit, give me the key.” Murrell reiterated, “I didn’t fire her. She quit.”

On cross-examination, Murrell was asked what provision he had made for paying Cole the following two weeks. He responded that he had instructed Cole to overnight mail anything that needed to be signed.

Cole testified that they worked late on Monday because Murrell was going to North Carolina on Tuesday for three weeks. She prepared her paycheck for the coming Friday and told him, “If I [have] to wait for the two weeks [I’m not] going to wait three weeks to get paid.” Murrell did not respond. Murrell told her to file the papers the next day but did not specify when. He called Tuesday morning and asked if they had been filed. Cole said no. Cole then asked Murrell if he had signed her check and he said yes. She asked where it was and he said he hid it. He said he would tell her where it was on Friday and she responded, “That don’t cut it.”

Cole denied quitting over the phone or at any other time. She said Murrell hung up the phone and appeared at the office shortly afterward. He told her she was fired and demanded the office key.

Cole further testified that Murrell had gone to North Carolina twice before for two weeks each time. Both times she had agreed to wait two weeks to be paid. Cole disputed Murrell’s assertion that he had arranged to pay her for the remaining two weeks by mailing the paychecks back and forth. She said she was told to call him only in an emergency and had never mailed anything to him on vacation.

The appeals referee found that Cole quit with good cause. He reasoned as follows:

The record and evidence in this case show that the claimant quit the job because one the claimant’s previous paycheck was late and, on August 20, 2002, the claimant had reasonable cause to see that her paychecks for August 23, 2002 may be late, but that her paychecks for August 30, 2002 and September 6, 2002, would be late. Consideration is given to the employer’s assertion that claimant could have mailed the unsigned checks to him and he would have signed them and mailed them back to the claimant. Since the claimant was an hourly employee, this notion of mailing and waiting for return mail still meant there would have been a delay. Also, on the previous occasion, the mailing arrangement was not used.

The UAC reversed. While the UAC recited the referee’s fact findings, it concluded that his ultimate decision regarding good cause was “not in accord with the law.” The UAC explained as follows:

The claimant testified that she voluntarily quit because she believed the employer would not pay her on time. The referee held that the claimant quit with good cause because the employer had once previously failed to pay her on time and the claimant had reasonable cause to believe that her paychecks for August 30, 2002 and September 6, 2002 would be late. The Commission concludes, however, that the claimant essentially “jumped the gun” and quit in anticipation of her paychecks being late. The employer had advised the claimant that he had hidden the claimant’s paycheck for the following week and would tell her where it was located at the appropriate time. The claimant thus should have continued working and, if her paycheck was late, quit at that time. Because the claimant quit in anticipation of her paychecks being late, not after they were actually late, she voluntarily left work based on mere speculation and without good cause attributable to the employing unit within the meaning of the law.

On appeal, Cole argues that she was fired and did not quit. This argument is meritless. At the hearing, she testified she was fired while Murrell testified she quit. The appeals referee found she quit based on this conflicting evidence. There was substantial competent evidence to support this finding.

Alternatively, Cole argues that even if. the UAC’s finding that she quit was correct, it erred in reversing the referee’s good cause finding. It is well established that the UAC cannot disturb a referee’s fact findings if they are supported by substantial competent evidence. See, e.g. Jackson v. Unemployment Appeals Commission, 730 So.2d 719, 721 (Fla. 5th DCA 1999). It cannot reweigh the evidence or substitute its own findings. Id. The issue of whether an employee has left voluntarily and without good cause is a question of fact within the province of the appeals referee. Vanek v. Unemployment Appeals Comm’n, 842 So.2d 312 (Fla. 5th DCA 2003); Grossman v. Jewish Center of Greater Fort Lauderdale, Inc., 704 So.2d 714 (Fla. 4th DCA 1998); Verner v. Unemployment Appeals Comm’n, 474 So.2d 909 (Fla. 2d DCA 1985). Moreover, the “failure to comply with a salary agreement is sufficient cause to compel the average employee to leave his or her employment and, therefore, constitutes good cause attributable to the employer to justify an award of benefits to the employee.” Kelly v. Unemployment Appeals Commission, 823 So.2d 275, 279 (Fla. 5th DCA 2002).

Applying the above precedents, the UAC should have affirmed the referee’s good cause determination if it was supported by substantial competent evidence. The referee found that Cole had reasonable cause to believe Murrell was not going to comply with the salary agreement of being paid weekly because he had previously failed to pay her while he was on vacation and had made no provisions to pay her for the second and third weeks of the current vacation. This was substantial competent evidence. Cf. Tannariello v. Federation of Public Employees, 437 So.2d 799 (Fla. 4th DCA 1983) (holding that quitting for fear of personal safety after being required to work alone in an unsafe neigh-' borhood was reasonable and constituted good cause). The UAC’s finding that Cole “jumped the gun” was essentially a finding that her fear of not being paid for two or three weeks was unreasonable. The UAC improperly substituted its opinion of the facts in place of the referee’s opinion. Accordingly, we reverse the UAC’s decision.

REVERSED.

GRIFFIN and ORFINGER, JJ., concur. ■


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Wendy BETTS and John Cardegna, Appellants, v. ACE CASH EXPRESS, INC., and Check Express, Inc., Appellee.
    No. 5D03-825.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.

      Christopher Casper of James, Hoyer, Newcomer & Smiljanich, P.A., Tampa, and E. Clayton Yates of Law Office of E. Clayton Yates, Fort Pierce, for Appellants.
    Neal A Sivyer, Paul D. Watson and R.J. Haughey, II, of Sivyer Barlow & Watson, P.A., Tampa, for Appellee.
   MONACO, J.

Although the appellants raise a number of matters for our consideration, we conclude that the trial court committed no error and affirm. We write to address one issue, however, concerning whether an amendment to rule 1.442, Florida Rules of Civil Procedure, applies in an on-going case where the acceptance period of a proposal for settlement has expired on the effective date of the amendment. We agree with the trial judge that it does not.

The appellants, Wendy Betts and John Cardegna, filed a class action complaint against the appellees, Ace Cash Express, Inc., Check Express, Inc., and other “Unknown Defendants,” basically asserting that certain transactions involving Ace violated Florida’s usury laws as well as section 560.309(4)(c), Florida Statutes. It appears that Ace Cash Express, Inc., and Check Express, Inc., are different iterations of the same corporate body. On August 7, 2000, Ace served separate proposals for settlement on Ms. Betts and Mr. Cardegna pursuant to rule 1.442 and section 768.79, Florida Statutes. Ace proposed to pay each appellant, a total of $5,000.00 for the purpose of settling all claims in the action. The proposal was to remain in force for 30 days from the date it was served and required written acceptance within 30 days from service. Neither appellant accepted. At the time of the service of the proposals for settlement the trial court had not been requested to determine, and had not determined whether a class action could be maintained by the appellants in accordance with Florida Rule of Civil Procedure 1.220(d).

An amendment to rule 1.442, which governs proposals for settlement, and which bore an effective date of January 1, 2001, was- adopted by the Supreme Court. Newly added subdivision (f)(2) provided that, “In any case in which the existence of a class is alleged, the time for acceptance of a proposal for settlement is extended to 30 days after the date the order granting or denying certification is filed.” The effective date of the amendment was subsequent to the rejection of the proposals for settlement.

On June 6, 2001, the trial court dismissed the complaint, as amended, of both Wendy Betts and John Cardegna with prejudice without ever being asked to decide the specific issue of whether to grant or deny class action certification. When the court found that the transactions entered into between the plaintiffs and defendants were legally permitted under Florida law, it had no need to delve further into certification. On June 26, 2001, defendant served a motion for attorney’s fees pursuant to the offer of settlement, asserting that Ace was the prevailing party in the action, and that Ms. Betts and Mr. Cardegna failed to accept the offer of settlement within the time allowed. The appellants responded by filing a motion to strike the motion for attorney’s fees, claiming that because the suit was brought as a class action, and because no order granting or denying class certification was filed before the complaint was dismissed with prejudice, Ace was not entitled to fees. Thus, the appellants sought the benefit of rule 1.442(f)(2), Florida Rules of Civil Procedure, even though its effective date was several months after the expiration of the proposal for settlement.

At the conclusion of an evidentiary hearing concerning entitlement to attorneys’ fees the trial court granted the motion for fees, finding that the proposals were made in good faith, and that Ace was entitled to recover attorney’s fees against both Ms. Betts and Mr. Cardegna pursuant to the proposals for settlement. Following a second hearing, the court entered a final judgment of $63,483 against the appellants. The amount of the fees is conceded by the appellants to be reasonable. The appellants contest only entitlement.

Ms. Betts and Mr. Cardegna argue that as the amendment to rule 1.442, became effective during the pendency of their action in the circuit court, they should be given the benefit of its extension of the time for acceptance of offers of judgment, even though the time for acceptance of the offers submitted to them had expired before the effective date of the amendment. Their theory appears to be that because their causes of action had not been finally dismissed at the time of the effective date of the rule change, and because the rule change is remedial in nature, it is applicable to their case.

In a somewhat analogous circumstance, however, the Supreme Court in Mendez-Perez v. Perez-Perez, 656 So.2d 458, 460 (Fla.1995), held that an amendment to rule 1.540(b), Florida Rules of Civil Procedure, was not retroactive, because rules of procedure “are prospective unless specifically provided otherwise.” See also Pearlstein v. King, 610 So.2d 445, 446 (Fla.1992). It noted that the plain language of the amendment setting a specific date for applicability was controlling. Similarly, in Natkow v. Natkow, 696 So.2d 315 (Fla.1997), the high court reiterated that rules of procedure are prospective unless specifically provided otherwise, and that when it chooses to apply a rule to pending cases, it clearly indicates that intention. See, e.g., In re Amendments to Fla. Rules of Civil Procedure, 131 So.2d 475, 476 (Fla.1961).

The language used by the Court in adopting the 2001 amendment to 1.442 was to establish a particular application date. The Court said plainly that “The rules shall become effective on January 1, 2001, at 12:01 a.m.” See Amendments To The Fla. Rules of Civil Procedure, 773 So.2d 1098, 1099 (Fla.2000). There is no indication that the Court intended the rule amendments to apply otherwise.

At the time that the proposals for settlement were made and rejected, therefore, the rule amendment was not applicable. Accordingly, we conclude that the trial court was correct in declining to apply the amendment to this case.

AFFIRMED.

THOMPSON and PALMER, JJ., concur.

      .The appellants unsuccessfully appealed the substantive issues raised by the dismissal with prejudice of their third amended complaint to this court. See Betts v. Ace Cash Express, Inc., 827 So.2d 294 (Fla. 5th DCA 2002).

      . The trial judge cited Oruga Corp., Inc. v. AT & T Wireless of Fla., Inc., 712 So.2d 1141 (Fla. 3d DCA 1998), as authority.

      . Amendments to the Fla. Rules of Civil Procedure, 773 So.2d 1098, 1119 (Fla.2000).


author: PALMER, J.

text:
    BETTY’S DESIGN COMPANY, INC., Appellant, v. ESTATE OF David EVANS and Mary Ann Evans, Appellee.
    No. 5D02-2553.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    Thomas F. Neal and Daniel J. O’Malley of de Beaubien, Knight, Simmons, Mant-zaris & Neal, LLP, Orlando, for Appellant.
    No appearance for Appellee.
   PALMER, J.

Betty’s Design Company appeals the final order entered by the trial court granting appellees’ motion for a new trial. Concluding that the trial court’s basis for granting the new trial motion is not supported by the law, we reverse.

Betty’s Design sued David and Mary Ann Evans (Evans) seeking payment for services and materials utilized for the renovation, refurbishing and decoration of the Evans’ home. The complaint included claims to foreclose a construction lien, for breach of oral contract, for account stated, for open account, and for quantum meruit. Before trial commenced, counsel for Evans withdrew from the case and Evans proceeded with the case pro se. At the pretrial conference, Mr. Evans filed a motion for continuance based upon his alleged state of poor health. The trial court denied the motion and set the matter for trial.

The case proceeded to trial, at which Mr. Evans represented the Evans’ interests pro se. Evans did not renew their motion for continuance and did not present any witnesses at trial. The jury returned a verdict in favor of Betty’s Design on its claim to foreclose on its construction lien and its claim of breach of contract.

Evans filed a pro se motion for new trial, arguing that the trial court had erred in denying their pre-trial motion for continuance. Evans then hired counsel who filed an amended motion for a new trial arguing, in addition to the claim that the trial court erred in denying the motion for continuance, that the trial court erred in submitting the construction lien claim to the jury since Betty’s Design failed to prove its entitlement to such a lien. The court conducted a hearing and thereafter denied the motion.

One month later, counsel for the Evans filed a motion to disqualify the trial judge. The trial judge denied the motion as being legally insufficient; however, on his own motion, the trial judge recused himself and the matter was reassigned to a successor judge. Counsel for Evans then filed a motion with the successor judge seeking reconsideration of the trial judge’s denial of their motion for new trial. See FI. R. Jud. Admin. 1.160(h). Upon review, the successor judge reversed the ruling of the trial judge and granted Evans a new trial based upon the conclusion that Evans’ pretrial motion for continuance should have been granted. Betty’s Design appeals, arguing that the successor judge reversibly erred in granting the new trial. We agree. Evans waived their right to seek a new trial based upon the trial judge’s denial of their pre-trial motion for a continuance by failing to renew said motion when the matter proceeded to trial. See McCray v. State, 369 So.2d 111 (Fla. 1st DCA 1979). Therefore, the successor judge abused its discretion reversing the trial judge’s ruling and granting the motion for new trial.

REVERSED and REMANDED for entry of a final judgment in accordance with the jury’s verdict.

THOMPSON and PLEUS, JJ., concur.


author: ORFINGER, J.

text:
    Joshalynne D. HIGHBERGER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3765.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, 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.
   ORFINGER, J.

In this Anders appeal, the State was ordered to file an answer brief, addressing the conflict between the written and oral sentence regarding count three of the information. The State concedes that the trial court orally imposed a fifteen-year sentence for count three, and stated “[tjhere is no minimum mandatory;” however, the written sentence imposes a ten-year minimum mandatory term. Highber-ger preserved the error by filing a timely motion pursuant to Florida Rule Criminal Procedure 3.800(b)(2), but the trial court failed to rule on the motion within the required time. As a result, the motion was deemed denied. Kimbrough v. State, 766 So.2d 1255 (Fla. 5th DCA 2000).

Although the State argues that it is unclear if the trial court intended to impose a minimum mandatory term for count three, we conclude that the trial court’s oral pronouncement that “there is no minimum mandatory” as to count three is clear and unambiguous. Accordingly, we reverse the sentence imposed for count three and remand this matter to the trial court with instructions that the written sentence be modified to conform with the oral pronouncement. We affirm the convictions and sentences regarding counts one, two, four and five. Highberger does not need to be present at resentencing.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

PLEUS and PALMER, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: PER CURIAM.

text:
    Bernie MARRERO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2030.
    District Court of Appeal of Florida, Fifth District.
    Jan. 6, 2004.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

PETERSON, PLEUS and MONACO, JJ., concur.


author: KLEIN, J.

text:
    Henry WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3966.
    District Court of Appeal of Florida, Fourth District.
    Jan. 7, 2004.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant, who was convicted of car jacking, argues that his taking the victim’s car did not involve fear or force and accordingly the trial court should have granted his motion for judgment of acquittal on that charge. We affirm.

The elements of car jacking are contained in section 812.133(1), Florida Statutes (2001):

“Car jacking” means the taking of a motor vehicle which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the motor vehicle, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

The victim testified that, as she was sitting in the driver’s seat of her car, with her door open, in the parking lot of a hospital, the defendant came up to her and stood right beside where she was sitting so that she was unable to get out of the car. He was about twelve inches away, tall and weighed over 220 pounds. He did not move, and the only thing he said was “don’t get nervous” which he repeated. The victim felt threatened, jumped out of the car while pushing him aside, and ran away, after which appellant drove away with her car. On cross-examination the victim admitted that appellant did not verbally threaten her, but she felt threatened by his body language and demeanor.

In Flagler v. State, 198 So.2d 313 (Fla.1967), a woman, accompanied by her young son, was in her car at a stop sign when the defendant, a stranger, opened the door and took a seat in the car. After a short period of silence, he took the woman’s pocket book and left the car. The woman testified that she was afraid and said nothing while he was in the car because of the fear that he would do something to her child. The defendant argued that his conviction for robbery should have been reversed because he had not taken the victim’s purse by force or putting her in fear. Our supreme court affirmed holding that the facts easily supported the element of fear. We conclude, based on Flagler, that the element of “putting in fear” was established in this case and affirm.

STONE and TAYLOR, JJ., concur.


text:
    Ruth ALVAREZ, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-1591.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.

      Sally G. Schmidt, Florida Rural Legal Services, Inc., West Palm Beach, for Appellant.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of October 16, 2003, the Court has determined that the order on appeal is not final. Although the order on appeal authorizes the Department to sanction the appellant for an intentional program violation, no formal order disqualifying the appellant from receipt of benefits has been entered. Thus, the administrative adjudicative process does not appear to have been brought to a close. See Hill v. Division of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). Accordingly, the appeal is dismissed for lack of jurisdiction.

ALLEN, DAVIS and HAWKES, JJ., concur.


text:
    Willie BATTLES, Appellant, v. FLORIDA STATE HOSPITAL and Florida Department of Insurance, Appellee.
    No. 1D03-1602.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.
    Arthur Beal, Jr., Tallahassee, and Bill McCabe, Longwood, for appellant.
    Mary E. Ingley of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for appellees.
   PER CURIAM.

The Judge of Compensation Claims has informed the parties that a transcript of the testimony of three witnesses who appeared at the attorney’s fee hearing in this matter cannot be prepared, and the parties have indicated to this court that they are unable to provide a satisfactory substitute for the transcript. Under these circumstances, we are constrained to reverse the order on appeal and remand the matter for a hearing de novo. See Arnold Lumber Co. v. Harris, 469 So.2d 786 (Fla. 1st DCA 1984).

ALLEN, DAVIS and HAWKES, JJ., concur.


text:
    ESTATE OF Blanche A. HEID, Velma J. Jones, etc., Appellant, v. Edward J. HEID, III, etc., Appellee.
    No. 5D03-486.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.

      Albert S. Lagano of Albert S. Lagano, P. A., Melbourne, for Appellant.
    Scott Krasny of Krasny and Dettmer, Melbourne, for Appellee.
   ORFINGER, J.

Velma J. Jones, the personal representative of the estate of Blanche A. Heid, appeals a final judgment dismissing her second amended complaint with prejudice. We affirm, finding that the complaint failed to state a cause of action.

Jones sued Edward J. Heid, III, individually and as successor trustee of the Edward J. Heid Trust (“Trust”), dated June 18, 1993. The complaint alleged that Edward J. Heid (“Decedent”), a resident of Brevard County, Florida, died December 18, 1999, survived by Blanche A. Heid, his wife. At the time of his death, the Trust held real and personal property for Decedent’s benefit. Following Decedent’s death, Edward J. Heid, III became the successor trustee. Jones, the personal representative of Mrs. Heid’s estate, claims that Mrs. Heid was entitled to a portion of the assets held in the Trust pursuant to the elective share provisions of section 732.207, Florida Statutes (2001). In dismissing Jones’ complaint with prejudice, the trial judge concluded that Florida’s expanded elective share statute applies only to persons dying after October 1, 2001, and because Decedent died prior to that date, the expanded elective share statute did not apply. See § 732.2155(1), Fla. Stat. (2001). We agree and affirm.

The surviving spouse of a resident decedent dying before October 1, 2001, on making a proper election, is entitled to an amount equal to thirty percent of the fair market value of all assets subject to administration, except real property not located in Florida, after deduction of all valid claims and mortgages, liens, or security interests on such assets. §§ 732.206-.207, Fla. Stat. (1998); see also Daniel A. Hanley & William T. Hennessey, Elective Share, Practice Under Florida Probate Code § 7.9 (2002 ed.). On appeal, Jones argues that the Trust assets are subject to the elective share claim. We disagree. While it is true that section 732.2035, Florida Statutes (2001), significantly revised the elective share laws and established the concept of an “elective estate,” thereby, substantially broadening the amount and types of property subject to the elective share, by its own terms, the revisions are effective only to decedents dying on or after October 1, 2001. Specifically, section 732.2155(1), Florida Statutes (2000), provides:

Sections 732.201-732.2155 are effective on October 1, 1999, for all decedents dying on or after October 1, 2001. The law in effect prior to October 1, 1999, applies to decedents dying before October 1, 2001.

(Emphasis added).

Because we accept as true all of Jones’ well-plead allegations, Fox v. Professional Wrecker Operators of Florida, Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001), we assume as was alleged, that Mr. Heid died before October 1, 2001, the effective date of the revised elective share statute. Unfortunately for Mrs. Heid (or perhaps more accurately, her heirs), the law in effect prior to that date was that assets included in the Trust were not subject to administration, and, therefore, not subject to an elective share claim. See Friedberg v. SunBank/Miami N.A., 648 So.2d 204 (Fla. 3d DCA 1994). Accordingly, we affirm the trial court’s dismissal of Jones’ complaint with prejudice.

AFFIRMED.

THOMPSON and PLEUS, JJ., concur.

      . Apparently, Blanche Heid survived her husband but died during the pendency of this litigation. Velma J. Jones was appointed personal representative of her estate.


author: GRIFFIN, J.

text:
    Gary CAPLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2176.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Gary Capíes, Bushnell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Gary Capíes [“Capíes”], appeals the lower court’s denial of his motion to withdraw a plea. We find no error and affirm.

Capíes was arrested in February 1999, and subsequently charged with robbery, driving while license suspended/revoked and obtaining property by means of worthless check. In October 1999, he entered into a plea agreement pursuant to which he was sentenced to eight years for robbery, two five-year terms for felony driving with license suspended or revoked and a five-year term for obtaining property by means of worthless check. All sentences were to run concurrently.

Approximately a year and one-half later, Capíes filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), claiming that his sentences for driving while license suspended or revoked were illegal, based on the decision of the First District Court of Appeal in Huss v. State, 771 So.2d 591 (Fla. 1st DCA 2000). In Caples v. State, 790 So.2d 1143 (Fla. 5th DCA 2001) [“Capíes I”], this court affirmed the trial court’s denial of that motion. The panel commented that: “his means of relief, if indeed he is entitled to relief, is by withdrawing his plea ...” Id. at 1144.

On August 31, 2001, Capíes filed his amended motion to withdraw plea, setting forth three principal grounds: (1) that his plea was “contractually void” based on a material mistake of law, i.e. that his offenses were felonies, not misdemeanors; (2) that his plea had been coerced and that he had not understood the elements of the charges against him; and (3) that his plea was involuntary because he had been advised that he would not have post-incarceration supervision, but subsequently learned that he was exposed to conditional release supervision. The trial court denied Capíes’ motion to withdraw his plea on all three grounds.

In Capíes I, this court took pains to make clear that a motion to withdraw plea was a possible available remedy, not a certain remedy. The trial court considered all the relevant facts and circumstances and determined that it was not appropriate to permit Capíes to withdraw his plea. We have no basis to reverse the trial court’s decision.

AFFIRMED.

SAWAYA and MONACO, JJ., concur.

      . Capíes filed a separate 3.850 motion seeking collateral relief claiming his plea was involuntary based on ineffective assistance of counsel, see O’Quinn v. State, 860 So.2d 1020, 2003 WL 22867657 (Fla. 5th DCA Dec.5, 2003). The trial court denied relief and this court has affirmed. Caples v. State, 861 So.2d 1169 (Fla. 5th DCA 2003).


text:
    R. Jeffrey SMALL, Appellant, v. CRAFTMASTER OF BREVARD, INC., Appellee.
    No. 5D02-2581.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    Sharon Lee Stedman, Orlando, for Appellant.
    Allan P. Whitehead of Frese, Nash & Hansen, P.A., Melbourne, for Appellee.
   PER CURIAM.

AFFIRMED. See Bryant v. Kuhn, 73 So.2d 675 (Fla.1954); West v. West, 436 So.2d 1010 (Fla. 5th DCA 1983); Adams v. Freel, 409 So.2d 1176 (Fla. 5th DCA 1982).

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


text:
    Roan N. DURDEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-638.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    Jeffrey L. Dees, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall and Patrick W. Krechowskl, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

See Melbourne v. State, 679 So.2d 759 (Fla.1996); State v. Wright, 546 So.2d 798 (Fla. 1st DCA 1989).

AFFIRMED.

PLEUS, PALMER and TORPY, JJ., concur.


text:
    M.D.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1083.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED on the authority of Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

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


text:
    STATE of Florida, Appellant, v. Rebecca Lynn BENNER, Appellee.
    No. 5D03-1104.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Taylor v. State, 855 So.2d 1 (Fla.2003); McMaster v. State, 780 So.2d 1026 (Fla. 5th DCA 2001).

PETERSON, PLEUS and ORFINGER, JJ., concur.


text:
    S.F., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1447.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    Michael H. Lambert, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See, Moore v. State, 664 So.2d 343 (Fla. 5th DCA 1995).

PLEUS, PALMER and TORPY, JJ., . concur.


text:
    D.J.H., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1710.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., ORFINGER and TORPY, JJ., con'cur.


text:
    Barney B. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1756, 5D03-1863.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Barney B. Allen, Bonifay, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Denny v. State, 617 So.2d 323 (Fla. 4th DCA 1993).

PETERSON, MONACO, and TORPY, JJ., concur.


text:
    Byron J. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1893.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

Griffin, orfinger and moñaco, JJ., concur.


text:
    T.B., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2249.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Lois VAUGHAN, Appellant, v. PUTNAM COUNTY, et al., Appellee.
    No. 5D03-2344.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    Lois Vaughan, Interiachen, Pro se.
    Michael J. Roper and Ernest H. -Kohl-myer, III, of Bell, Leeper & Roper, P.A., Orlando, for Appellee, Putnam County, Florida.
   PER CURIAM.

See Trianon Park Condominium Ass’n., Inc. v. City of Hialeah, 468 So.2d 912 (Fla.1985).

AFFIRMED.

PLEUS, PALMER and TORPY, JJ., concur.


text:
    Fernando AGUILAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4834.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Fernando Aguilar, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

FARMER, C.J., WARNER and SHAHOOD, JJ., concur.


text:
    Manuel LEYVA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4983.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Manuel Leyva, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

'Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

WARNER, KLEIN and GROSS, JJ., concur.


text:
    Pablo BAUER, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-366.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Pablo Bauer, Lake Butler, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. denied, 821 So.2d 302 (Fla.2002).

GUNTHER, STONE and SHAHOOD, JJ., concur.


text:
    Santos A. PAULETTE, Appellant, v. Maria V. PAULETTE, Appellee.
    No. 4D03-3659.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Rehearing Denied Feb. 10, 2004.

      Santos A. Paulette, West Palm Beach, pro se.
    Maria V. Paulette, West Palm Beach, pro se. .
   PER CURIAM.

The court has reviewed appellant’s brief and finds that no preliminary basis for reversal has been demonstrated. Therefore, the appeal is affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a).

TAYLOR, HAZOURI and MAY, JJ., concur.


author: VILLANTI, Judge.

text:
    C.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2567.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 2004.
    Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

C.S. challenges her commitment to a moderate risk residential facility for six months as a sentence for indirect criminal contempt. For the reasons expressed in K.C. v. State, 848 So.2d 1193 (Fla. 2d DCA 2003), we reverse C.S.’s sentence and remand for resentencing in accordance with the requirements of section 985.216, Florida Statutes (2002).

Reversed and remanded for resentenc-ing.

WHATLEY and STRINGER, JJ., Concur.


author: CANADY, Judge.

text:
    Josephine Applegate FRUM, Appellant, v. William H. FRUM, Appellee.
    No. 2D02-5688.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2004.

      Carl T. Boake of Law Offices of Carl T. Boake, P.A., St. Petersburg, for Appellant.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.
   CANADY, Judge.

Josephine Applegate Frum, the wife, challenges the trial court’s distribution of assets and liabilities as set forth in a final judgment of marital dissolution. We reverse that portion of the judgment relating to a loan made by the husband to the wife but otherwise affirm the final judgment.

The wife was awarded the parties’ 1998 Ford Windstar, a used vehicle purchased during the marriage for $18,000. That award, however, was made subject to a $6000 special equity the husband was found to have in the vehicle. The trial court determined that the Windstar was purchased in part with the $12,000 trade-in value of the wife’s previous automobile, a Maxima, and that $6000 of that value was attributable to a loan made by the husband to the wife prior to the marriage to assist with the purchase of the Maxima. To effect the husband’s $6000 special equity in the Windstar, the trial court made the wife liable for the $6000 balance on a separate loan to the husband from the wife’s mother, which had been used in connection with acquisition of the marital home.

The trial court erred in so ruling because the record shows that the husband acknowledged that the wife had previously repaid the $6000 car loan. In fact, when the wife’s counsel attempted to demonstrate that the wife made a $6000 contribution toward the down payment on the marital home, the husband argued that the money did not represent her contribution to the acquisition of the home but was instead simply a repayment of the loan the husband had made to her for the purchase of the Maxima. We note that the trial court’s error with respect to the car loan does not affect any other aspect of the final judgment.

We therefore reverse that portion of the final dissolution judgment shifting liability to the wife for the outstanding balance on the loan from her mother and remand with instructions that it be stricken from the final judgment. See Alvarez v. Alvarez, 404 So.2d 200 (Fla. 2d DCA1981).

Affirmed in part, reversed in part, and remanded.

WHATLEY, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: STRINGER, Judge.

text:
    George SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-74.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2004.

      J.C. Hill, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

George Smith appeals the trial court’s denial of his amended motion to withdraw plea and his motion to correct illegal sentence or withdraw plea filed in cases 96-18201, 97-6973, 97-12308, and 00-6893, consolidated on appeal. We affirm the denial of both motions and write only as to Smith’s motion to correct illegal sentence or withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.800(b).

In his rule 3.800(b) motion, Smith alleged that he is entitled to relief under Heggs v. State, 759 So.2d 620 (Fla.2000). In Heggs, the supreme court declared unconstitutional chapter 95-180, Laws of Florida, enacting the changes that resulted in the 1995 sentencing guidelines. Under the unconstitutional 1995 guidelines, Smith’s counsel advised him that he was facing a minimum of 123.6 months and a maximum of 206 months in state prison. Smith entered into a negotiated plea agreement resulting in a sentence of 108 months in prison, followed by six years of probation.

The State has correctly conceded that cases 96-18201, 97-6973, and 97-12308 were improperly scored using a 1995 scoresheet and should have been scored using a 1994 scoresheet. However, because Smith’s 108-month sentence could have been legally imposed under the 1994 guidelines, Smith is not entitled to be re-sentenced. Heggs, 759 So.2d at 627; Dunbar v. State, 787 So.2d 240 (Fla. 2d DCA 2001).

Accordingly, we affirm the denial of Smith’s motion to correct illegal sentence or withdraw plea. However, this affir-mance is without prejudice to any right Smith may have to file a rule 3.850 motion challenging the voluntary and intelligent nature of his plea. Fla. R.Crim. P. 3.850; see Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000).

Affirmed.

WALLACE, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: ALTENBERND, Chief Judge.

text:
    P.M. REALTY & INVESTMENTS, INC., Appellant, v. CITY OF TAMPA and Gloria Moreda, Appellees.
    No. 2D02-4616.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2004.

      Luke Charles Lirot of Luke Charles Li-rot, P.A., Tampa, for Appellant.
    Frederick B. Karl, City Attorney, and Richard E. Fee, Assistant City Attorney, Tampa, for Appellees.
   ALTENBERND, Chief Judge.

P.M. Realty & Investments, Inc., appeals a permanent injunction restraining its operation of an adult use on Seventh Avenue in Ybor City. The trial court entered final judgment after granting summary judgment in favor of the City of Tampa and Gloria Moreda, in her official capacity as a zoning administrator. The trial court granted summary judgment reasoning that the decision was controlled by the “law of the case” established previously in P.M. Realty & Investments, Inc. v. City of Tampa, 779 So.2d 404 (Fla. 2d DCA 2000), review denied, 786 So.2d 580 (Fla.2001) (P.M. Realty I). We reverse.

For our purposes, the facts are adequately explained in P.M. Realty I. That opinion, however, affirmed the entry of a preliminary injunction. It is well established that a preliminary injunction does not create law of the case that is binding at the time of the final hearing. Kozich v. DeBrino, 837 So.2d 1041 (Fla. 4th DCA 2002); Lorie v. C.L.N., 757 So.2d 610, 611 (Fla. 3d DCA 2000); Jones v. Sterile Prod. Corp., 658 So.2d 1099, 1100 (Fla. 5th DCA 1995); see also Goslin v. Glenfed Brokerage Serv., 683 So.2d 620 (Fla. 2d DCA 1996). P.M. Realty I served only to demonstrate that the City had made a sufficient showing for the issuance of a temporary injunction. See Original Rey de la Pizza Cubana, Inc. v. Rey Pizza Corp., 682 So.2d 697, 697 (Fla. 3d DCA 1996). Thus, the trial court entered summary judgment for an incorrect reason.

Between the time of this court’s last opinion in August 2000 and the time of the entry of the permanent injunction in September 2002, there had been substantial developments in the law affecting the zoning of adult uses. During this period, the United States Supreme Court issued City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), and the Eleventh Circuit issued Peek-A-Boo Lounge of Bradenton v. Manatee County, 337 F.3d 1251 (11th Cir.2003). It is now clear that zoning ordinances regulating the conditions under which adult businesses may operate should be evaluated under the test set forth in Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). See Peek-A-Boo Lounge, 337 F.3d at 1264. Moreover, the refining of eviden-tiary burdens announced in Alameda Books would appear to require the trial court to examine more closely the evidence presented at the time of the preliminary injunction. See Alameda Books, 535 U.S. at 438-39, 122 S.Ct. 1728; see, e.g., DiMa Corp. v. High Forest Township, No. 02-3800, 2003 WL 21909571 (D.Minn. Aug.7, 2003) (implementing Alameda Books’ burden-shifting scheme under similar procedural posture). Accordingly, we conclude the trial court must accord P.M. Realty another hearing at which it applies current law to the relevant evidence.

Reversed and remanded.

SILBERMAN and KELLY, JJ., concur.


author: FULMER, Judge.

text:
    G.V., a child, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4427.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2004.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief-Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

G.V. was charged by a delinquency petition with simple battery and resisting arrest without violence. G.V. admitted the resisting arrest allegation but proceeded to an adjudicatory hearing on the battery charge. He was found guilty of battery and after a disposition hearing on both charges, he was committed to a low risk residential program. We affirm the adjudication and disposition for both charges, but we reverse the disposition order and remand for correction.

On remand, as the State concedes, the trial court must enter separate disposition orders for each offense. The disposition orders must specify the degree of the offense, the maximum penalty, and that the commitment is limited to one year, the maximum adult sentence for each of the first-degree misdemeanors. See J.D.C. v. State, 841 So.2d 642 (Fla. 2d DCA 2003); F.N.S. v. State, 807 So.2d 758 (Fla. 1st DCA 2002).

G.V. also argues that the disposition order is deficient for the additional reason that the trial judge did not enter written findings of the facts upon which the adjudication is based. G.V. cites to section 985.228(5), Florida Statutes (2001), and Florida Rule of Juvenile Procedure 8.115(c)(4) for the proposition that written findings are required. Section 985.228(5) is not controlling because it addresses adjudicatory orders, not disposition orders. Rule 8.115(c)(4) does address disposition orders and states that the disposition order shall “make all findings of fact required by law.” The statutory law applicable to disposition orders is section 985.23, which requires specific findings on the reasons for the decision to adjudicate and commit the child to the department. However, those findings may be made either “in writing or on the record of the hearing.” We conclude that the oral findings made in the record are sufficient to comply with section 985.23 and rule 8.115(c)(4).

Accordingly, we reverse the disposition order entered and remand to the trial court with directions to enter new disposition orders consistent with this opinion.

Reversed and remanded.

NORTHCUTT and CASANUEVA, JJ., Concur.


author: DAVIS, Judge.

text:
    Rudolph REISBERG, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-907.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2004.
    James Marion Moorman, Public Defender, Bartow, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Rudolph Reisberg, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee; and Robert J. Krauss, Chief Assistant Attorney General, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

In this appeal filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Rudolph Reisberg challenges his conviction and sentence for one count of cruelty to animals. We find merit in only one of Reisberg’s counsel’s issues; we otherwise affirm.

The State concedes that the trial court’s written probation order did not conform to its oral pronouncement at sentencing in that it required Reisberg to pay for his mental health evaluation as a special condition of probation. Accordingly, that requirement must be stricken from the written probation order. See Nisbett v. State, 660 So.2d 813 (Fla. 2d DCA 1995). We therefore affirm but remand with directions to the trial court to strike that portion of the written probation order that requires Reisberg to pay for his mental health evaluation.

Affirmed and remanded with directions.

SILBERMAN, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: COVINGTON, Judge.

text:
    Gumar AYDANOV, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5381.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2004.
    James Marion Moorman, Public Defender, and Allyn Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Gumar Aydanov, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   COVINGTON, Judge.

Affirmed without prejudice to any right Aydanov may have to file a facially sufficient motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

N.ORTHCUTT and STRINGER, JJ., Concur.


text:
    Timothy Lynn BODIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1394.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2004.
    Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2003).

BOOTH, PADOVANO and BROWNING, JJ., concur.


text:
    Charlie BROWN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4018.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2004.
    Appellant, pro se.
    Charles J. Crist, Jr., Attorney General and Daniel A. David, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals an order denying his petition for a writ of habeas corpus. He contends, among other things, that the trial court erred by raling on his petition prior to ruling on a pending motion for disqualification. We express no opinion on the merits of the appellant’s habeas petition, but agree that the order denying it must be vacated.

A trial judge must first rule on a motion for disqualification before resolving any other matters. See Fuster-Escalona v. Wisotsky, 781 So.2d 1063, 1065 (Fla.2000); Shah v. Harding, 839 So.2d 765, 766 (Fla. 3d DCA 2003); Loevinger v. Northrup, 624 So.2d 374, 375 (Fla. 1st DCA 1993). Once the motion has been filed, no further action can be taken, even if the trial court is not aware of the pending motion. See Loevinger, 624 So.2d at 375.

In the present case, the motion for disqualification was filed on July 16, 2001. Because of a clerical error, the motion was not placed in the court file and the trial court was not aware of the pending motion or the grounds on which it was based when the court ruled on the habeas petition on July 27, 2001. We note that the trial judge subsequently entered an order of recusal when the matter was brought to his attention. However, the order on the habeas petition must be reversed since it was resolved prior to the pending motion for disqualification. We remand with directions for consideration of the appellant’s petition by a successor judge.

Reversed and Remanded.

WOLF, C.J., ERVIN and PADOVANO, JJ., concur.


text:
    INFINGER TRANSPORTATION COMPANY and Travelers Insurance Company, Appellants, v. Ronald JOHNSON, Appellee.
    No. 1D01-5159.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2004.
    Mark W. Ingram, Esquire of Ingram & Ingram Attorneys at Law, P.A., Sarasota, for Appellants.
    Susan W. Fox, Esquire of Macfarlane, Ferguson & McMullen, Tampa and Mark G. Capron, Esquire of Smith, Feddeler, Smith & Miles, P.A., Lakeland, for Appel-lee.
   PER CURIAM.

We affirm the order of the judge of compensation claims insofar as it concludes that appellee’s right knee injury was com-pensable, and also conclude that the judge of compensation claims made a “ ‘fair and reasonable calculation of average weekly wage under section 440.14(l)(d),’ ” Florida Statutes (2001). Mauranssi v. Centerline Utils. Contract Co., 685 So.2d 66, 68 (Fla. 1st DCA 1996) (quoting Jackson v. Hocha-del Roofing Co., 657 So.2d 1266, 1267-68 (Fla. 1st DCA 1995)).

But the award of temporary partial disability benefits from February 5, 1997 to October 19, 2001 exceeds the statutory maximum of 104 weeks. See §§ 440.15(2)(a), (4)(b), Fla. Stat. (2001); Bober v. Bush Air Conditioning & Claims Ctr., 826 So.2d 487, 488 (Fla. 1st DCA 2002) (“[A]n award of any combination of temporary total disability benefits and temporary partial benefits is limited to a maximum of 104 weeks.”); Okeechobee Health Care v. Collins, 726 So.2d 775, 776 (Fla. 1st DCA 1998) (“[T]he Legislature intended to limit temporary disability benefits, whether payable under [section 440.15] subsection (2) or under subsection (4), to 104 weeks.”). Accordingly, we reverse the order under review insofar as it awards excessive temporary disability benefits, “and remand for entry of an order that does not award temporary disability benefits for periods aggregating more than 104 weeks.” Collins, 726 So.2d at 775.

Affirmed in part, reversed in part, and remanded.

ALLEN, DAVIS, and BENTON, JJ., concur.


text:
    Dale AMES, Appellant, v. DISTRICT BOARD OF TRUSTEES, LAKE CITY COMMUNITY COLLEGE, Appellee.
    No. 1D02-5217.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2004.

      Carla D. Franklin, Gainesville, for Appellant.
    Jesse S. Hogg of Hogg, Ryce & Spencer, Coral Gables, for Appellee.
   PER CURIAM.

This is an appeal from an order dismissing an administrative complaint entered by appellee, Board of Trustees, on the ground that appellant, Dale Ames, an instructor at the Lake City Community College on continuing contract, was not entitled to a hearing on the issues raised in his complaint, because the allegations therein show that his employment was terminated not for cause, but due to his physical inability to perform his instructional duties. Based upon our conclusion that the provisions of law the Board relied upon to justify the dismissal of the complaint — Florida Administrative Code Rules 6A-14.0411(5) and 28-106.201(4) — are inapplicable, we reverse the order of dismissal and remand the case to the Board with directions for it to conduct a hearing, at which Ames shall be permitted to show why he considers he should not have been terminated, but instead should be allowed medical leave. The Board may thereafter present evidence showing either that Ames resigned or that its termination was appropriate.

REVERSED and REMANDED.

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Freddie HARRIGILL, Jr., Petitioner, v. WALMART STORES, INC., a foreign corporation, Respondent.
    No. 1D03-3368.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2004.
    Dana Miller of Byrom & Miller, LLP, Milton, for petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. See Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998).

BOOTH, KAHN and PADOVANO, JJ., concur.


text:
    William LEVY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2693.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2004.
   CANADY, Judge.

William P. Levy challenges the summary dismissal of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court improperly dismissed Levy’s motion without addressing the merits of his claims, we reverse.

Levy filed a motion for postconviction relief with the circuit court on June 26, 2002. This motion contained an oath, but it was unsigned. On June 27, 2002, Levy filed an identical motion for postconviction relief with the circuit court. This motion contained a signed oath. On July 17, 2002, and July 19, 2002, Levy filed motions to amend his postconviction motion. On August 2, 2002, the trial court dismissed Levy’s postconviction motion because it did not contain a signed oath and was therefore facially insufficient. On April 29, 2003, the circuit court dismissed as moot Levy’s motion to hear and rule on his July 17, 2002, and July 19, 2002, motions to amend. Levy appealed.

Because a facially sufficient motion for postconviction relief was filed with the circuit court on June 27, 2002, the orders of August 2, 2002, and April 29, 2003, were improper. We therefore reverse and remand for the circuit court to consider on their merits Levy’s June 27, 2002, motion; July 17, 2002, motion to amend; and July 19, 2002, motion to amend.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.


text:
    Connie L. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2765.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2004.
   VILLANTI, Judge.

Connie L. Thomas appeals the summary denial of her motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

Thomas pleaded guilty to third-degree grand theft on February 2, 2001. She received a suspended sentence of twenty-four months in prison and an additional thirty-six months’ probation. Thomas admitted to violation of her probation on May 31, 2002. She was sentenced to two years in prison. In her motion, Thomas claimed her sentence is illegal because she is entitled to additional jail credit for thirty-two days spent in the Hillsborough County jail and 135 days spent in the Pinellas and Hillsborough County jails.

The trial court concluded that Thomas was not entitled to any additional jail credit for time spent in the custody of either county. A review of the record indicates that Thomas is not entitled to additional jail credit for the thirty-two days spent in the Hillsborough County jail from January 5, 2001, through January 6, 2001, and from May 2, 2002, through May 31, 2002, because this time was included in the thirty-five days of jail credit she has already received. Thomas also is not entitled to credit for the time she spent in the Hillsborough County jail after her sentencing on May 31, 2002. See Stokes v. State, 851 So.2d 788 (Fla. 2d DCA 2003); Tomlinson v. State, 477 So.2d 30 (Fla. 2d DCA 1985).

In denying her claim for the time spent in the Pinellas County jail, the trial court asserted that Hillsborough County had placed Thomas on a detainer while she was in the Pinellas County jail from March 1, 2002, through May 1, 2002. A defendant is not entitled to jail credit for time spent on detainer in another county’s jail on unrelated charges. See Gethers v. State, 838 So.2d 504 (Fla.2003). However, the record the trial court attached in support of this assertion does not clearly show Thomas was in the Pinellas County jail on a detainer. Apparently, Thomas was actually arrested in Pinellas County for violation of probation on a Hillsborough County warrant. If Thomas was arrested in Pi-nellas County at least partially on a Hills-borough County warrant, she is entitled to credit for the sixty-three days spent in the Pinellas County jail. See Young v. State, 840 So.2d 468 (Fla. 2d DCA 2003); LeBlanc v. State, 839 So.2d 896 (Fla. 3d DCA 2003).

Nothing in the record clearly refutes Thomas’ claim that she was entitled to sixty-three days’ jail credit for the time she spent in the Pinellas County jail from May 2, 2002, through May 31, 2002. Accordingly, the trial court should either award Thomas sixty-three days of jail credit or provide portions of the record that adequately reflect that Thomas is not entitled to the credit because she was on detainer while in the Pinellas County jail.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.


text:
    George KNITTEL, as Personal Representative of the Estate of Hedwig H. Knittel, Petitioner, v. BEVERLY HEALTH AND REHABILITATION SERVICES, INC. (as to Tampa Health Care Center), Respondent.
    No. 2D02-5541.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 2004.
    Susan B. Morrison of Wilkes & McHugh, P.A., Tampa, for Petitioner.
    Kirsten K. Ullman of Ullman & Kurpi-ers, LLC, Tampa, for Respondent.
   DAVIS, Judge.

George Knittel, as personal representative of the Estate of Hedwig Knittel, petitions for review of the circuit court’s interlocutory order granting Beverly Health and Rehabilitation Services, Inc.’s “Motion to Permit Defendant Equal Access to Witnesses.” Because the trial court’s order departs from the essential requirements of law, we grant the petition and quash the order.

In the underlying cause of action, which stems from the death of Hedwig Knittel (“the decedent”) after she had been a resident at Beverly Tampa’s nursing home, the Estate seeks damages for wrongful death and violation of decedent’s nursing home resident’s rights under chapter 400, Florida Statutes. As part of the litigation, which both parties agree is not a medical negligence action, Beverly Tampa moved, pursuant to section 456.057, Florida Statutes (2001), for court approval to conduct ex parte communications with nondefen-dant physicians who treated the decedent during her residency at the nursing home. These physicians were not employees or agents of Beverly Tampa.

Beverly Tampa argued below and on appeal that the communications in question fall under one of the exceptions to the statutory patient-physician privilege and that, pursuant to Royal v. Harnage, 826 So.2d 332 (Fla. 2d DCA 2002), the filing of a lawsuit does not create a privilege where none existed in the past. Specifically, Beverly Tampa maintains that because the statute does not preclude communications between and among “health care providers involved in the care or treatment of the patient,” see § 456.057, it should be able to communicate with the physicians who treated the decedent during the periods she was a resident at its nursing home facility.

In its written order, the trial court granted defense counsel the right “to discuss the medical condition, care or treatment of the resident with health care providers involved in the care or treatment of the resident.” Additionally, in its oral pronouncement, the trial court noted:

[Section] 456.057 doesn’t preclude [defense counsel] or members of her firm from talking to these people. Now, whether or not these people, these men or women, these treaters, these medical providers, give any information, you know, clearly that’s a different issue and I’m not ordering those folks, I don’t have any jurisdiction over those folks yet, I’m not telling them to do something or not do something.
I don’t know any of these folks that would ever give her anything without a subpoena or the consent of the patient. And if they do, they do so at their own peril. You know, not my issue, not my beef right now.
[Defense counsel] calling up Dr. Smith or Dr. Jones and saying I’d like to talk to you about Ms. X or Mr. Y, that doesn’t violate the statute. Now, if the medical provider gives information out, that may violate the statute.

In common law certiorari review, the petitioner must demonstrate that the challenged order departs from the essential requirements of law and that unless relief is granted he will suffer an injury for which he will have no adequate remedy of appeal. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646 (Fla. 2d DCA 1995). The Estate has met its burden here.

Section 456.057(5)(a) states in pertinent part:

[S]uch records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners or providers involved in the care or treatment of the patient, except upon written authorization of the patient.

(Emphasis added.) Additionally, section 456.057(6) provides:

Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

(Emphasis added.)

In Lemieux v. Tandem Health Care of Florida, Inc., 862 So.2d 745 (Fla. 2d DCA 2003), this court addressed the exception to the patient-physician privilege carved out for other health care practitioners and providers involved in the care and treatment of the patient. That case was before this court on a petition for writ of certiorari and involved an action for negligent hiring and retention of staff, as well as chapter 400 violations. This court held that the health care providers exception to the privilege only allows “health care providers currently involved in the care and treatment of the patient to share information about the patient’s medical condition.” Id. at 749.

[0]nce the health care providers are no longer ‘involved in the care or treatment of the patient,’ they may not continue to discuss a patient’s confidential medical information for their own, or anyone else’s, purposes. Once the underlying reason for the exception ends, so too must the disclosures permitted by that exception.
Moreover ... nothing in [this exception] allows for the disclosure of confidential medical information by one health care provider to the attorney of a different health care provider.

Id.

Here, Mrs. Knittel is deceased. Accordingly, there are no physicians currently involved in her care and treatment, and no statutory exception to the patient-physician privilege applies in this case.

Additionally, Royal, 826 So.2d 332, does not apply because it dealt with a medical malpractice action, which is not the case here. See Lemieux, 862 So.2d 745.

Finally, we note that the supreme court already has rejected the trial court’s determination that the statute is not violated by counsel contacting physicians until those physicians actually disclose confidential information. See Acosta, v. Richter, 671 So.2d 149, 156 (Fla.1996) (“[W]e reject the contention that ex parte conferences with treating physicians may be approved so long as the physicians are not required to say anything.”).

In conclusion, based on Lemieux, the order here granting Beverly Tampa the authority to engage in ex parte communications with physicians who are no longer treating the decedent departs from the essential requirements of law. Accordingly, we grant the petition and quash the order.

Granted.

ALTENBERND, C.J., and SILBERMAN, J., Concur.


text:
    Lionel DAVID, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3376.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Lionel David, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Lionel David appeals an order denying his motion to correct illegal sentence. The trial court denied the motion as insufficient to support relief under Florida Rule of Criminal Procedure 3.800(a) because it raises factual questions. We affirm the denial of the motion without prejudice to any right Appellant might have to file a facially sufficient claim under rule 3.850. See Jackson v. State, 803 So.2d 842, 843 (Fla. 1st DCA 2001), Young v. State, 787 So.2d 259 (Fla. 2d DCA 2001).

Affirmed.


text:
    Robert PERPALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1391.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Barbara A. Zappi, Assistant Attorney General (Port Lauderdale), for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


text:
    Jean David PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4009.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Leonard v. State, 760 So.2d 114 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000); Robinson v. State, 373 So.2d 898 (Fla.1979); Garrett v. State, 788 So.2d 328 (Fla. 4th DCA 2001).

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    Shane KOPP, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3146.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Shane Kopp, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traina, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

Defendant, Shane Kopp, appeals the denial of his Motion to Correct Illegal Sentence as to amount of jail credit, pursuant to Fla. R.Crim. P. 3.800(a). We affirm in part and reverse in part, based on the State’s proper confession of error.

Kopp was sentenced to a term of eighteen months imprisonment, with credit for 62 days time served. Kopp contends that the 62 days, representing the period from June 15 to August 15, 2003, should be corrected to reflect 75 days credit for time served. The State responds that Kopp has miscalculated the number of days in this period. We agree with the State and affirm this part of the denial of Kopp’s motion. Kopp also urges that he was incorrectly denied credit for 143 days time served, from January 19 to June 10, 2003. The State concedes that Kopp was incarcerated during this period and requests that the order of denial regarding this part of Kopp’s motion be reversed. We agree and reverse the denial of Kopp’s motion as it relates to the 143 days from January 19 to June 10, 2003. We remand with directions to correct Kopp’s sentence to reflect the additional 143 days of credit for time served. See § 921.161(1), Fla. Stat. (2003); Smith v. State, 619 So.2d 994, 994 (Fla. 3d DCA 1993) (“[A] defendant is entitled to credit for all of the time he spent in the county jail before sentence^]”) (internal quotations omitted).

Affirmed in part, reversed in part, remanded with instructions.


text:
    EAGLE BROTHERS 2000, INC., a Florida Corporation, Appellant, v. G.R. SUNRISE, INC., and TDW Management, L.L.C., a Florida limited liability company, Appellees.
    No. 4D03-4482.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.

      Steven M. Reisman of Kodsi Law Firm, P.A., Fort Lauderdale, for appellant.
    No appearance for appellees.
   PER CURIAM.

The order appealed from shall be dismissed for lack of appellate jurisdiction pursuant to Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). However, because one effect of the order appealed is to discharge the lien transfer bond, appellant is deprived of any security during the remainder of the proceedings below. See McClain Constr. Corp. v. Roberts, 351 So.2d 399 (Fla. 2d DCA 1977); see also Paul Gallizzi Gen. Contractor, Inc. v. Deeb Contractors, Inc., 502 So.2d 28 (Fla. 2d DCA 1987). Therefore, the trial court’s order granting discharge of the bond is reversed.

GROSS, HAZOURI and MAY, JJ., concur.


text:
    D.A., Appellant, v. DEPT. OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-2238.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Dennis E. Berger, Miami, for appellant.
    Calianne P. Lantz, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. § 39.01(60), Fla. Stat. (1998); D.P. v. Department of Children & Families, 786 So.2d 600 (Fla. 5th DCA 2001).


text:
    Jerry LEIBOW, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-1937.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Jerry Leibow, in proper person.
    Sandra Piligian, Assistant District Legal Counsel, for appellee.
    Before GERSTEN, GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See 7 C.F.R. § 273.16(b)(l)(i)(2000).


text:
    Andy MARTIN, Appellant, v. OMNI-LINGUAL BROADCASTING CORPORATION, Emil Antonoff, Virginia Martinez, and Joe Irwin, Appellees.
    No. 4D03-912.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Andy Martin, Fort Lauderdale, pro se.
    Valentin Rodriguez, Jr., of Valentin Rodriguez, P.A., West Palm Beach, for appellees.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

POLEN, KLEIN and HAZOURI, JJ., concur.


text:
    David SAWYER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-403.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    John J. Anastasio, Port St. Lucie, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellant’s motion for rehearing. The opinion of December 18, 2002 is withdrawn and we substitute the following opinion:

We reverse appellant’s conviction as to Count II, felony driving while license permanently suspended pursuant to section 322.341, Florida Statutés. That section was adopted under chapter 98-223, Laws of Florida, and declared invalid in Florida Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003).

We affirm appellant’s conviction of felony DUI. Appellant complains that the trial court permitted the state to present the fingerprint comparison testimony of an expert witness at the enhancement phase of the trial. The state did not disclose the witness until after the guilt phase of the trial was nearing completion. Although he claimed prejudice, appellant did not seek a continuance of the enhancement portion of the trial so he could better confront the fingerprint testimony. Nor did appellant argue that he was not the person reflected in the judgments of conviction at issue. Accordingly, the trial court did not abuse its discretion in permitting the expert to testify. See Cooper v. State, 336 So.2d 1133, 1138 (Fla.1976); Staveley v. State, 744 So.2d 1051, 1053 (Fla. 5th DCA 1999).

We remand for modification of the judgment accordingly as to Count II and for resentencing as to Count I.

STONE, GROSS, JJ., and STERN, KENNETH D., Associate Judge, concur.


text:
    Adam NIEVES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2373.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Leonard v. State, 760 So.2d 114 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000); Robinson v. State, 373 So.2d 898, 902 (Fla.1979); Garrett v. State, 788 So.2d 328 (Fla. 4th DCA 2001).

FARMER, C.J., SHAHOOD and MAY, JJ., concur.


text:
    Carmen FERRARI, Appellant, v. LOWENSTEIN & COMPANY, P.A., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-1131.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Carmen Ferrari, in proper person.
    John D. Maher (Tallahassee), for appel-lee, Unemployment Appeals Commission.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

We affirm the denial of unemployment benefits based on the Florida Unemployment Appeals Commission’s finding of misconduct connected with work, see § 443.036(29), Fla. Stat. (2002), as we must accept the findings of fact made by the appeals referee where the findings are supported by competent substantial evidence in the record. See St. Augustine Church v. Florida Unemployment Appeals Comm’n, 754 So.2d 183 (Fla. 3d DCA 2000); Fink v. Florida Unemployment Appeals Comm’n, 665 So.2d 373 (Fla. 4th DCA 1996).


text:
    Betty JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1837.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.140(b)(2)(A)(ii); Robinson v. State, 373 So.2d 898 (Fla.1979).

WARNER, POLEN and HAZOURI, JJ., concur.


text:
    Steven RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1162.
    District Court of Appeal of Florida, Third District.
    Jan. 28, 2004.
    Bennett H. Brummer, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Steven Rodriguez belatedly appeals from an order dated March 18, 2003, correcting his original sentences for manslaughter and strong-arm robbery as both a habitual violent felony offender and as a prison releasee reoffender. The State concedes that the order correcting Rodriguez’s original sentence should have stricken the habitual violent felony offender sentence since that sentence did not exceed the prison releasee reoffender sentence. See Grant v. State, 770 So.2d 655, 659 (Fla.2000); Miller v. State, 780 So.2d 277, 280-281 (Fla. 3d DCA 2001); Walls v. State, 765 So.2d 733, 734 (Fla. 1st DCA 2000).

The State further concedes that the appropriate sentence that Rodriguez should receive as a prison releasee reoffender for the two second degree felonies to which he pled guilty is 15 years. See § 775.082(9)(a)(3)c, (9)(b) Fla. Stat. (2003).

The order correcting sentence is therefore reversed and this matter remanded to resentence Rodriguez by striking the habitual violent felony offender sentence and resentencing him to 15 years as a prison releasee reoffender.


text:
    STATE of Florida, Petitioner, v. David W. FRANCOIS, Respondent.
    No. 4D03-1806.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for respondent.
   PER CURIAM.

The state petitions for a writ of certiora-ri quashing the circuit court order suppressing identification testimony because the procedure used in a photo lineup was unnecessarily suggestive. We grant the writ because we find that the procedures used by the police in handling a photo lineup were not unnecessarily suggestive, such that no constitutional violation occurred.

Respondent, David Francois, is charged with attempted robbery with a firearm and burglary of an occupied structure while armed with a firearm.

The crime occurred at a 99 Cent Store in Boynton Beach. The store was closed. Only two employees were present. A black male wearing a 99 Cent Store vest and armed with a handgun confronted the assistant manager, Ms. Marino, and demanded to be taken to the cash office. Once at the cash office, Marino managed to slip inside and shut the door, locking herself inside.

The other witness was Ms. Sader, a cleaning person. She saw a black male wearing a 99 Cent Store vest coming from the cash office carrying a black bag. Sad-er recognized the man as a present or former 99 Cent Store employee, whom she might have seen at the Boynton Beach store or at the West Palm Beach location. The man turned his face away from Sader and left through the fire door.

Both Marino and Sader provided consistent descriptions: black male, 5'6" to 5'8", 160 pounds, muscular build, wearing a black Raiders knit cap on his head not covering his face, a white shirt, black nylon pants, and a blue 99 Cent Store vest. Marino stated that the suspect had three gold teeth; Sader did not report seeing gold teeth.

A police officer contacted the Boynton Beach and West Palm Beach 99 Cent Stores. The officer requested lists of employees, or prior employees, who fit the description provided by the witnesses. The Boynton Beach store manager provided the name of a potential suspect, Antwon Monroe. The police created a photo lineup using the ADDICON system, a countywide, computer database that generates lineups of similar looking people based on the description that is entered. Neither Marino nor Sader recognized anyone in the photo lineup.

The assistant manager of the West-Palm Beach store offered the police the name of Francois, a former employee, based on the “gold teeth” part of the description. A few days later, the assistant manager offered the officer the personnel files of about ten other persons fitting the description.

Using the ADDICON system, the police prepared a six-person photo lineup including Francois. Marino did not recognize anyone in the lineup. Sader identified Francois.

Francois moved to suppress Sader’s identification. The court granted the motion, on the ground that the procedure employed was unnecessarily suggestive, in that no other employees, or familiar faces, were included in the'photo lineup.

Whether an out-of-court identification should be excluded on due process grounds is determined by a two-pronged test: (1) did the police use an unnecessarily suggestive procedure in obtaining the out-of-court identification; and (2) if so, considering all of the circumstances, did the suggestive procedure give rise to a substantial likelihood of irreparable mis-identification. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Rimmer v. State, 825 So.2d 304, 316 (Fla.2002).

Generally, photographic arrays have been upheld where they have included “a reasonable number of persons' similar to any person then suspected whose likeness is included in the array.” La-FaVE, ET AL., CRIMINAL PROCEDURE § 7.4(e) (2d ed.1999) (quoting ALI Model Code of Pre Arraignment Procedure § 160.2(2) (1975)). Photographs used in lineups are not unduly suggestive if the suspect’s picture does not stand out more than those of the others, and the people depicted all exhibit similar facial characteristics.

Thus, in Green v. State, 641 So.2d 391 (Fla.1994),

the victim was shown a photo array consisting of six photographs, one of which was a picture of the defendant. The police then told the victim that they had included a picture of the suspect within the photo spread. After picking the photograph of the defendant, the police told her that she had identified the right person.

Rimmer, 825 So.2d at 317.

The supreme court held in Green that the police procedure was not unnecessarily suggestive. 641 So.2d at 394-95. The court “reasoned that the photo spread consisted of six men with similar characteristics. Although defendant Green’s photo was darker than the others, there was no evidence that the police directed the victim’s attention to it.” Rimmer, 825 So.2d at 317.

Here, the ADDICON system selected the photographs used in the display based upon similarity to Francois. Due process did not require, as the trial court believed, the police to construct a photo lineup that included other 99 Cent Store employees.

Because we hold that the procedures used by the police in obtaining the out-of-court identification were not unnecessarily suggestive, we do not consider the second aspect of the test quoted above. Id. at 316. There are substantial questions about the reliability of the identification; however those questions are for a jury to decide. See Evans v. State, 781 So.2d 493 (Fla. 3d DCA 2001).

The order suppressing the out-of-court identification is quashed and the ease is remanded to the circuit court for further proceedings.

GROSS, TAYLOR and MAY, JJ., concur.


text:
    Thomas BOUMAN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Five Star Marine, Inc., Appellees.
    No. 4D02-4807.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Thomas Bouman, Boca Raton, pro se.
    John M. Maher, Tallahassee, for appel-lee Florida Unemployment Appeals Commission.
   PER CURIAM.

We affirm the final action of the Unemployment Appeals Commission denying appellant’s claim for unemployment benefits as a result of his resignation from his position with his employer. Although appellant claims that he was forced to resign due to his employer’s violence against him, the only violent incident directed at appellant occurred six weeks prior to appellant’s resignation. Moreover, appellant’s resignation letter indicated that he had obtained a better job with better benefits. At the hearing on unemployment benefits, he testified that he did not have a job at the time he wrote the letter, but he acquired a new position a few days later. Given the evidence presented by appellant himself, there was competent substantial evidence to support the referee’s determination that appellant’s reason for resignation from employment was without good cause nor attributable to the employer. The administrative ruling must be sustained if based upon any acceptable view of the evidence. See Fink v. Fla. Unemployment Appeals Comm’n, 665 So.2d 373, 374 (Fla. 4th DCA 1996).

Affirmed.

WARNER, GROSS and HAZOURI, JJ„ concur.


text:
    Michael A. FOUNTAIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1123.
    District Court of Appeal of Florida, Fourth District.
    Jan. 28, 2004.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to Appellant’s right to seek post-conviction relief as to the issues raised.

STONE, WARNER and STEVENSON, JJ., concur.