text:
    Lana J. HODGES, Appellant, v. CITRUS WORLD, INC., d/b/a Florida Natural Growers, Appellee.
    No. 2D02-2741.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    Harold E. Barker of Dicesare, Davidson & Barker, P.A., Lakeland, for Appellant.
    Michael Broussard and Sarah P. Reiner of Broussard, Cullen, Pearson Wise & Simms, Orlando, for Appellee.
   KELLY, Judge.

The appellant, Lana J. Hodges, filed suit against the appellee, Citrus World, Inc., d/b/a Florida Natural Growers, under the Florida Workers’ Compensation Law, section 440.205, Florida Statutes (2000). In her complaint, Hodges claims that Citrus World wrongfully discharged her from her employment in retaliation for seeking workers’ compensation benefits for a work-related injury. She appeals from the final summary judgment entered in favor of her employer. We reverse.

Hodges was injured in an accident while employed by Citrus World. Hodges filed a petition for benefits in September 1999 asking for surgical reconstruction of her lateral ankle ligament. Citrus World denied the petition for benefits and the case proceeded to mediation and pretrial. Following trial in June 2000, the trial court found for Hodges and ordered Citrus World to authorize the surgical procedure.

Hodges proceeded -with her surgery in October 2000. On April 16, 2001, Hodges had an office visit with her physician. In her deposition she claimed that the physician did not inform her that he was releasing her to return to light duty work status as of that date. She did not receive a “return to work” form from the physician at that time. On April 23, 2001, her workers’ compensation adjuster notified her by telephone of her return to work status. The adjuster told her that the physician’s office would be sending her a return to work form by facsimile transmission. Hodges received the form on April 24, 2001. On that date, she attempted to resume her employment but was informed that she was “being investigated” and to go home. Hodges was summoned to a meeting on April 27, 2001, at the office of Citrus World. At the meeting, she was told that according to company policy, she was required to contact the company and return to work within three days of being released by her physician. Since she did not comply with the company’s “three-day rule,” she was considered to have abandoned her employment. A few days later, Hodges received a letter from Citrus World confirming that her employment had been terminated. Because Hodges believed that Citrus World had retaliated against her for seeking workers’ compensation benefits, she filed suit under section 440.205.

Citrus World filed a motion for summary judgment alleging that there were no material issues of fact because Hodges had admitted that her discharge was not a result of Citrus World’s alleged violation of section 440.205 but was a result of Hodges’ violation of the “three-day rule.” Citrus World pointed to Hodges’ deposition in which she testified that, during the course of her meetings with Citrus World regarding the end of her employment, (1) Citrus World never referred to her current workers’ compensation claim, and (2) she was told that her termination was based on her violation of the “three-day rule.” Hodges filed affidavits in opposition to Citrus World’s motion.

The trial court entered an order granting Citrus World summary judgment. In support of its decision, the trial court stated, “Plaintiff failed to provide legally sufficient evidence to support her claim and to rebut the clear implication of her testimony, indicating that her termination was not related to the pursuit of her workers’ compensation claim.” Hodges filed a timely notice of appeal.

We reverse the final summary judgment in favor of Citrus World because a genuine issue of material fact remains as to whether Hodges was terminated for pursuing her workers’ compensation claim or whether she was terminated because she violated her employer’s administrative rules. Although Hodges acknowledged in her answers to interrogatories, deposition testimony and affidavit that she was told she was terminated because of her violation of the administrative rule, she did not admit that Citrus World’s proffered reason was the true reason for her termination. In her affidavit in response to Citrus World’s motion for summary judgment, Hodges specifically states that the reason she was given for her discharge was pre-textual.

A motion for summary judgment should not be granted unless the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995). Further, an appellate court should indulge all proper inferences in favor of the party against whom summary judgment was sought. Humphrys v. Jarrell, 104 So.2d 404 (Fla. 2d DCA 1958). Here, because issues of material fact remain, summary judgment was improperly granted.

Accordingly, we reverse the final summary judgment in favor of Citrus World and remand for further proceedings.

FULMER and STRINGER, JJ., concur.

      . Section 440.205, Florida Statutes (2000), provides the following: "No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers' Compensation Law.”


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Louis F. MASIELLO, Appellant, v. Roxanne R. MASIELLO, Appellee.
    No. 2D02-3357.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    Louis Masiello, pro se.
    No appearance for Appellee.
   CASANUEVA, Judge.

Louis and Roxanne Masiello were married in November 2000 while Mr. Masiello was incarcerated in state prison. His incarceration continued throughout the marriage and into the dissolution proceedings that Mrs. Masiello commenced, pro se, in February 2002. Upon receipt of her petition for dissolution, Mr. Masiello, also pro se, counterpetitioned for annulment, claiming the marriage had never been consummated. He also sought return of several items of property that he had sent to her, as well as a sum of money. We reverse because the trial court allowed this matter to proceed to final hearing without proper notice and erred in entering the final judgment of dissolution without ruling on Mr. Masiello’s counterpetition.

Although there were a number of procedural errors, one is particularly sympto-. mafic of the problems encountered in this case. Using forms suggested by the family law rules, Mrs. Masiello filed a notice for hearing to be held on June 13, 2002, without filling in the blank to explain the purpose of the hearing. The trial court’s order setting the hearing stated that its purpose was to modify child support and that five minutes were set aside, despite the fact that both parties had alleged in their respective pleadings that no children were born of the marriage.

The hearing took place on June 13, 2002, with Mr. Masiello attending tele-phonically from prison. At that time, the trial court apparently converted the hearing into a final hearing on Mrs. Masiello’s petition for dissolution of marriage. This was improper. Florida Family Law Rule of Procedure 12.440(a) requires the trial court to enter an order setting the matter for trial within a reasonable time from the service of the notice for trial. Here, the trial court never formally set this action for trial. Furthermore, the court unreasonably converted the alleged child support hearing into a final hearing at the moment it discovered that there were no children born of the marriage.

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present them objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); cf. Wells v. Wells, 779 So.2d 540, 541 (Fla. 2d DCA 2000) (holding it was error to order the ex-wife to change a provision of her will dealing with certain real property to comply with the parties’ marital settlement agreement on an oral motion by her ex-husband at a summary judgment hearing in an action concerning that real property); Busch v. Busch, 762 So.2d 1010, 1011 (Fla. 2d DCA 2000) (holding that upon noticing a hearing on the husband’s motion for emergency relief seeking an injunction to keep the wife out of marital home, where the issue of custody was not mentioned, it was error for the trial court to change primary custody of the children to the husband). Here, Mr. Masiello was not fairly apprised that at the June 13, 2002, hearing the court would be trying the dissolution that he contested.

Furthermore, had the trial court followed rule 12.440(a) and ascertained whether the case was ready to be set for trial, it would have discovered, in its review of the court file, the outstanding counterpetition for annulment raising issues concerning property. And, had discovery been complete and the issues joined, the court undoubtedly would have reserved more than five minutes for the trial.

This record also indicates that a default was improperly entered by the clerk of the court against Mrs. Masiello on the counterpetition for annulment. Generally, the clerk is authorized to enter a default when “a party against whom affirmative relief is sought has failed to file or serve any paper in the action.” Fla. R. Civ. P. 1.500 (incorporated by reference into Fla. Fam. L.R.P. 12.500). In this case, Mrs. Masiello had filed the petition for dissolution of marriage commencing the action.

We reverse the final judgment of dissolution and remand the cause for further proceedings comporting with the family law rules of procedure and disposing of all outstanding issues in the case.

Reversed and remanded.

WHATLEY and CANADY, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Edward CLOSUIT, Myriam Murphy, and Andalite Industries, Inc., a Florida corporation, Appellants, v. CRANE ENVIRONMENTAL, INC., Appellee.
    No. 2D02-2744.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    John R. Bush and Stephen B. French of Bush Ross Gardner Warren & Rudy, Tampa, for Appellants.
    Lawrence P. Bemis and Michael S. McCauley of Kirkland & Ellis, Los Ange-les, CA, and Arthur R. Lewis, Jr., of Steele Hector & Davis, LLP, Miami, for Appellee.
   NORTHCUTT, Judge.

The circuit court entered a final judgment awarding Crane Environmental attorneys’ fees as a sanction for the discovery violations of the defendants, Edward Closuit, Myriam Murphy, and Andalite Industries. The defendants challenge this judgment on four grounds, but we find merit in only one. We reverse the attorneys’ fees awarded for Crane’s counsels’ time spent in responding to a petition for common law certiorari filed in this court. We affirm the judgment in all other respects.

The petition for certiorari sought review of the circuit court’s order striking the defendants’ trade secret objections to Crane’s request for production of documents. Crane’s counsel responded to the petition but did not file a motion for attorneys’ fees with this court. We subsequently denied the defendants’ petition.

The circuit court determined that Crane was entitled to attorneys’ fees as a sanction for the defendants’ numerous discovery violations. Crane’s attorneys requested $36,442 in fees attributable to their time spent in responding to the petition for certiorari. The circuit court was aware that Crane had not sought fees in this court, but it awarded Crane that amount “as a deterrent and as a sanction.” We understand the court’s frustration with the defendants’ behavior. However, absent an authorization from this court, the circuit court had no authority to award attorneys’ fees for services in this court, even as a sanction. Wood v. Steen, 830 So.2d 965, 966 (Fla. 1st DCA 2002).

We reverse the portion of the judgment that awards $36,442 for Crane’s counsels’ time spent in responding to the petition for writ of certiorari. Otherwise, we affirm.

STRINGER and CANADY, JJ., concur.

      . We have jurisdiction to review this judgment. See Ruppel v. Gulf Winds Apartments, Inc., 508 So.2d 534 (Fla. 2d DCA 1987); Nielsen v. Joannou, 835 So.2d 1219 (Fla. 5th DCA 2003).


author: KELLY, Judge.

text:
    Michael D. DURHAM, Appellant, v. DEPARTMENT OF REVENUE, on behalf of Kimberly B. DURHAM, Appellee.
    No. 2D02-1871.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    Michael D. Durham, pro se.
    Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   KELLY, Judge.

Michael Durham appeals from a final order of modification of child support. We find merit in Durham’s contention that it was error for the trial court to decide the issue of child support without the benefit of a child support guidelines worksheet.

Florida Family Law Rule of Procedure 12.285Q) provides:

Child Support Guidelines Worksheet. If the case involves child support, the parties shall file with the court at or prior to a hearing to establish or modify child support a Child Support Guidelines Worksheet in substantial conformity with Florida Family Law Rules of Procedure Form 12.902(e). This requirement cannot be waived by the parties.

In this case neither party filed a worksheet, although Durham apparently prepared several worksheets that he referenced during the modification hearing. At oral argument the Department conceded, and we agree, that given the mandatory language of the rule it was error for the trial court to modify Durham’s child support without the benefit of a guidelines worksheet. Accordingly, we reverse the order modifying child support and remand for the trial court to recalculate child support.

Because of our reversal, the parties will necessarily have to provide the trial court with current financial information. Accordingly, it is unnecessary for us to address Durham’s contention that the trial court erred in finding that Kimberly Durham’s gross income was $1600 per month. We have considered Durham’s contention that the trial court erred when it failed to set-off student loan payments from his gross income for the purposes of calculating child support and conclude that it was proper for the trial court to deny the set-off. We also find no merit in Durham’s contention that the trial court erred when it declared that he was in contempt. The trial court never found Durham to be in contempt and, in fact, the trial court dismissed the motion for contempt.

Reversed and remanded.

SALCINES and COVINGTON, JJ., Concur.


text:
    FLORIDA POWER CORPORATION, Petitioner, v. Edward DUNN and Norma Dunn, his wife, Respondents.
    No. 2D02-4027.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.

      Richard J. McCrory, St. Petersburg, for Petitioner.
    William F. Blews, P.A., St. Petersburg, for Respondents.
   KELLY, Judge.

Florida Power Corporation petitions this court for a writ of certiorari to quash the trial court’s order denying its motion to compel discovery. We deny the petition to the extent that Florida Power seeks the discovery of all sealed photographs and grant the petition to the extent that it seeks discovery of the seventeen accident scene photographs taken on October 14, 2000, which are under seal.

We agree that the trial court failed to observe the essential requirements of law by finding that the photos Florida Power sought to discover were protected work product and that no exception applied to require their discovery. Although we agree that the photographs are work product, we hold that Florida Power is entitled to production of the photographs of the scene as it existed at the time of the accident because it has met the burden in Florida Rule of Civil Procedure 1.280(b)(3) to show that due to exceptional circumstances it is unable to obtain the substantial equivalent of the materials by other means. See Wackenhut Corp. v. Crant-Heisz Enters., Inc., 451 So.2d 900 (Fla. 2d DCA1984).

Accordingly, the order under review is quashed to the extent that it denies discovery of the seventeen accident scene photographs taken on October 14, 2000. The petition for certiorari is otherwise denied.

CASANUEVA and DAVIS, JJ., Concur.


author: PER CURIAM.

text:
    John T. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5014.
    District Court of Appeal of Florida, First District.
    July 28, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant’s sentence appears to exceed the maximum term of imprisonment allowed by law, we reverse.

Following a jury verdict of guilty, the appellant was sentenced to a 30-year term of imprisonment for committing attempted armed robbery. The appellant argues that his sentence is illegal because the trial court unlawfully enhanced his conviction from a second-degree felony to a first-degree felony. The appellant further alleges that his conviction could not be enhanced pursuant to section 775.087, Florida Statutes (1977), because the use of a weapon is an essential element of attempted armed robbery. The trial court, concluding that the appellant’s sentence was proper under section 812.13, Florida Statutes (1977), denied the motion. In this respect, the trial court erred.

Section 812.13, Florida Statutes provides in pertinent part:

(1) “Robbery” means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) An act shall be deemed “in the course of committing the robbery” if it occurs in an attempt to commit robbery or in flight after the attempt or commission.

The trial court relied on the language in subsection (3) to conclude that the appellant’s conviction for attempted armed robbery was properly punished as a first-degree felony under subsection (2), notwithstanding section 777.04, Florida Statutes (1977). However, in Whidden v. State, 374 So.2d 543 (Fla. 2nd DCA 1979), the court explained that the phrase “in the course of committing the robbery” does not transform attempted robbery into the completed offense of robbery. The provision was meant only to extend the enhancement provisions of subsection (2) to attempted robbery so as to make attempted robbery with a weapon a higher degree offense than attempted robbery without a weapon. Whidden, 374 So.2d at 545. The offense of attempted armed robbery continues to be a lesser degree felony in accordance with section 777.04, Florida Statutes. Id. Indeed, this Court has specifically held that sections 812.13 and 777.04, Florida Statutes, operate together to classify attempted armed robbery as a second-degree felony. Pooley v. State, 403 So.2d 593, 594 (Fla. 1st DCA 1981).

Thus, while the appellant was properly subjected to the provisions of section 812.13(2)(a), Florida Statutes, by virtue of the jury’s finding that he carried a firearm during the course of the attempted robbery, the crime should have been reclassified to a second-degree felony punishable by a term of imprisonment not exceeding 15 years under the attempt statute. See §§ 775.082 & 777.04, Fla. Stat. (1977).

Moreover, the offense of attempted armed robbery cannot be punished as a first-degree felony under section 775.087, Florida Statutes, because the use of a weapon is an essential element of the offense. See Tripp v. State, 610 So.2d 1311, 1312(Fla. 1st DCA 1992), aff'd, 642 So.2d 728 (Fla.1994); see also § 775.087(1), Fla. Stat. (1977). Although there are other statutory provisions that would authorize the enhancement of the appellant’s sentence, the appellate record does not establish that his sentence was enhanced in accordance with another statutory provision. Accordingly, we reverse and remand to the trial court to either attach portions of the record establishing that the appellant’s sentence was enhanced under another provision of law, or to resentence the appellant to a legal sentence for a second-degree felony.

REVERSED and REMANDED.

BOOTH, DAVIS and PADOVANO, JJ., CONCUR.

      . Section 775.087, Florida Statutes, provides that a felony offense may be reclassified to a higher degree if during the commission of the offense the defendant carries or uses a weapon or firearm, unless the use of a weapon or firearm is an essential element of the charged offense.

      . Section 777.04, Florida Statutes, reclassifies a criminal offense to the next lower degree if the defendant attempts to commit the offense but for some reason fails in the execution of the offense.


author: LEWIS, J.

text:
    Karlier ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0964.
    District Court of Appeal of Florida, First District.
    July 28, 2003.

      Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   LEWIS, J.

Appellant, Earlier Robinson, appeals the trial court’s imposition of. a split sentence upon revocation of his community control. Appellant first argues that the trial court’s written sentence was illegal because it exceeded the statutory maximum for the underlying offense and failed to conform to the trial court’s oral pronouncement. Appellant also argues that both the oral pronouncement and written sentence were illegal because they failed to credit appellant for the time he had previously served on community control. We agree with both arguments and, therefore, reverse appellant’s sentence and remand for resentencing.

By information, the State charged appellant with exploitation of an elderly person, a third-degree felony punishable by a maximum penalty of five years’ imprisonment. On August 15, 2001, after appellant entered a plea of nolo conten-dere, the trial court sentenced appellant to two years’ community control followed by three years’ probation. Subsequently, an affidavit was filed charging appellant with five violations of community control. At the conclusion of the evidentiary hearing on February 6, 2002, the trial court adjudicated appellant guilty of the violations, revoked his community control, and sentenced him to three years’ incarceration followed by two years’ probation. However, the trial court’s written sentence imposed a split sentence of three years’ imprisonment followed by three years’ probation. Thus, the written sentence varied from the oral pronouncement and resulted in a' longer sanction than that orally imposed. Appellant timely appealed. On April 30, 2002, during the pendency of this appeal, appellant filed a motion in the trial court to correct the illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). On July 22, 2002, eighty-three days after appellant filed his motion, the trial court entered a resentencing order correcting the inconsistency between the oral and written sentences but did not credit appellant for the time he had already served on community control.

Appellant first contends on appeal that the trial court’s written sentence was illegal because it exceeded the statutory maximum for the underlying offense and failed to conform to the court’s oral pronouncement. Newly imposed sanctions, whether of probation or of incarceration, “must not exceed the statutory maximum for the underlying offense.” Waters v. State, 662 So.2d 332, 333 (Fla.1995). Thus, the trial court’s written sentence of three years’ incarceration followed by three years’ probation is illegal because it exceeds the five-year statutory maximum for the underlying offense. See id.; see also Henderson v. State, 720 So.2d 1121, 1122 (Fla. 4th DCA 1998) (holding that imposing an eighteen-month sentence of community control, upon revocation of a twelve-month sentence of community control, constituted an illegal sentence, when the appellant had already served a four-year term of incarceration and five months of the original sentence of community control, because the statutory maximum for the appellant’s underlying offense was five years). Moreover, because the written sentence is inconsistent with the oral pronouncement, the oral pronouncement controls. See State v. Jones, 753 So.2d 1276, 1276 n. 2 (Fla.2000); Timmons v. State, 453 So.2d 143, 144 (Fla. 1st DCA 1984).

Although the trial court attempted to correct its sentencing errors in its July 22, 2002, order, because the trial court entered its order in response to appellant’s rule 3.800(b)(2) motion more than sixty days after appellant filed his motion, the motion is deemed denied and the order is a nullity. See Fla. R.Crim. Pro. 3.800(b)(2)(B); see also Campbell v. State, 789 So.2d 1213, 1214 (Fla. 1st DCA 2001) (holding that the trial court did not have jurisdiction to enter an order on a rule 3.800(b)(2) motion as no order was entered within sixty days from the filing of the motion, rendering the untimely order a nullity).

Appellant also contends that the trial court’s oral pronouncement and written sentence were illegal because they failed to credit appellant for the time he had previously served on community control. We have previously held that a defendant who violates the probationary period of a split sentence is entitled to receive credit for time served on the incarcerative portion of the sentence before being placed on probation, unless a waiver of such credit is clearly shown on the record. Wells v. State, 751 So.2d 703, 704 (Fla. 1st DCA 2000). The legal principles which authorize a defendant to receive credit for time served on probation are equally applicable to a defendant who seeks credit for time served on community control. See Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000) (citing Wells, 751 So.2d at 704). Upon revocation of community control, credit for time served on community control must be applied against any post-revocation period of community control or probation to ensure that the defendant’s total sentence does not exceed the statutory maximum, although time served on community control may not be applied to a post-revocation sentence of incarceration. See § 948.06(3), Fla. Stat. (2001); Young v. State, 697 So.2d 75, 76-77 (Fla.1997) (citing State v. Summers, 642 So.2d 742, 744 (Fla.1994); State v. Roundtree, 644 So.2d 1358, 1359 (Fla.1994)).

Here, appellant did not waive his right to receive credit for the nearly six months he had served on community control prior to revocation, yet the trial court failed to credit appellant for the time he had previously served in both its oral pronouncement and its written sentence. Thus, by failing to credit the time appellant had already served on community control against the five-year statutory maximum for his underlying offense, the trial court illegally sentenced appellant to a term of incarceration and community control, which, when combined, exceeded the statutory maximum.

Accordingly, we reverse appellant’s sentence, remand to the trial court for resen-tencing in accordance with this opinion, and quash the trial court’s July 22, 2002, order.

REVERSED and REMANDED with directions.

VAN NORTWICK and HAWKES, JJ„ CONCUR.

      . §§ 825.103(l)(a), (2)(c), 775.082(3)(d), Fla. Stat. (2000).

      . A trial court may correct sentencing errors in the early stages of an appeal without an order from the appellate court relinquishing jurisdiction. Kimbrough v. State, 766 So.2d 1255, 1256 (Fla. 5th DCA 2000).


author: HAWKES, J.

text:
    Timmy RILEY, Appellant, v. ASSOCIATES HOME EQUITY SERVICES, INC. et al., Appellee.
    No. 1D02-1939.
    District Court of Appeal of Florida, First District.
    July 28, 2003.

      Timmy Riley, pro se.
    Thomasina F. Moore, Butler & Hosch, P.A., Orlando, for Appellee.
   HAWKES, J.

Timmy Riley (Appellant) appeals the lower court’s order imposing sanctions. We affirm.

Appellant, a member of the general public and an uninterested third-party, filed an Objection after the public sale of property following a foreclosure action filed by Appellee, Associates Home Equity Services, Inc. (Home Equity). Appellant objected to the public sale on the grounds that the foreclosure was not published in accordance with Chapter 45, Florida Statutes. Appellant argued “[sjection 45.031(1), F.S.1997, requires the second publication shall be at least 5 days before the sale not lk days as in this case, and thus, (sic) Clerk, (sic) without authority to hold such sale.” (emphasis in original).

In response, Home Equity filed a Motion to Strike Third-Party Objection and Motion to Issue Certificate of Title and Request for Sanctions. The Motion alleged Appellant was not a party to the action and had no standing to object to the sale; the sale was properly published and executed; there was no legal reason to delay issuing the Certificate of Title; Home Equity had to retain counsel to respond to Appellant’s motion; Home Equity was unable to obtain Certificate of Title due to Appellant’s actions; and Home Equity was unable to begin marketing the property due to this delay. For these reasons, Home Equity sought an order striking Appellant’s objection and imposing sanctions. The certificate of service indicates Appellant was served at the address he provided in his Objection. Along with the Motion, Home Equity served a Notice of Hearing. The Notice indicated a hearing would be held on Home Equity’s Motion and Appellant’s Objection in two weeks at 9:20 a.m. The certificate of service indicates it was mailed to the address provided by Appellant.

One week later, Home Equity served a Re-Notice of Hearing for the same day as previously noticed at a later time of 10:40 a.m. Again, the certificate of service indicates the Notice was mailed to the address provided by Appellant. On the date the hearing was scheduled, the lower court entered an “Order on Motion to Strike Third-Party Objection and Motion to Issue Certificate of Title and Request for Sanctions” imposing $125.00 in sanctions against Appellant. It appears Appellant was not present at the hearing.

Appellant moved to “vacate or correct ex parte order,” in pertinent part, on grounds that he “lack[ed] knowledge of any charges against him”; the court “negligently failed to provide full information of the charges against [Appellant], as required by law, prior to its imposition of sanctions”; imposition of sanctions was “under false pretenses and color of State law,” “illegal and unconstitutional”; Appellant is “entitled to full information of any and all charges against him, notice and an opportunity to be heard by jury trial prior to imposition of any alleged sanctions.” The lower court, treating Appellant’s motion as a motion for rehearing, denied the motion, holding Appellant set forth no grounds not previously considered by the court, and no hearing on the motion was required.

A trial court has broad discretion to impose sanctions on litigants for their conduct before the court. See Morgan v. Campbell, 816 So.2d 251 (Fla. 2d DCA 2002). The standard of review for a trial court’s imposition of sanctions is an abuse of discretion. See Distefano v. State Farm Mut. Auto Ins. Co., 846 So.2d 572 (Fla. 1st DCA 2008). Before sanctions may be imposed, the person being sanctioned must be given notice and an opportunity to be heard. See generally Martin v. State, 747 So.2d 886 (Fla.2000); Stephens v. Bay Medical Center, 839 So.2d 858 (Fla. 1st DCA 2003).

In this case, Home Equity’s Motion and both Notices of Hearing were sent to Appellant at the address he provided. The trial court may conclude Appellant received notice and, had Appellant chosen to attend the hearing, he would have had an opportunity to be heard. It appears from Appellant’s pleadings that he may have confused the imposed sanctions with a criminal charge. However, once he chose to interject himself into the proceeding below, he was held to the same standard as any other litigant. Since Appellant’s objection to the judicial sale was frivolous, the trial court did not abuse its discretion by imposing sanctions. The trial court’s order is AFFIRMED.

BOOTH and VAN NORTWICK, JJ„ concur.


text:
    Earl HODGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0955.
    District Court of Appeal of Florida, First District.
    July 28, 2003.
    Earl Hodge, pro se, petitioner.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the April 4, 2002, order denying motion for postconviction relief rendered in Leon County Circuit Court case number 95-3890. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

BOOTH, BARFIELD and ALLEN, JJ„ concur.


text:
    Blending HUGHES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1539.
    District Court of Appeal of Florida, First District.
    July 29, 2003.
    Bernard F. Daley, Jr., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant pled no contest to armed robbery and was sentenced as a habitual felony offender to ten years’ imprisonment followed by three years’ probation. The court relied upon appellant’s prior convictions for possession of cocaine and obtaining or attempting to obtain a controlled substance by fraud as predicate offenses to impose the habitual offender sentence. Under section 775.084(l)(a)(3), Florida Statutes (1999), a defendant cannot be habitualized unless “[t]he felony for which the defendant is to be sentenced, and one of the two prior felony convictions, is not a violation of s. 893.13 relating to the purchase or possession of a controlled substance.”

In 1994, appellant was separately convicted of possession of cocaine and of violating section 893.13(3)(a)l, Florida Statutes (1991) which states that:

(3)(a) It is unlawful for any person:
1. To acquire or obtain, or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.

(Emphasis added). The state apparently concedes appellant’s conviction for possession of cocaine is a violation of s. 893.13 relating to the purchase and possession of a controlled substance. The state argues, however, the appellant may still be sentenced as a habitual felony offender because appellant’s conviction for obtaining possession of a controlled substance by fraud is not an offense relating to the purchase and possession of a controlled substance. We disagree.

The statute prohibiting a person from acquiring or obtaining a controlled substance by fraud requires an intent to possess a controlled substance. It is therefore, on its face, a violation of s. 893.13 relating to the purchase or possession of a controlled substance. Because both of the predicate crimes relied upon by the court in sentencing appellant are offenses relating to the purchase or possession of a controlled substance, appellant did not qualify for an enhanced sentence under the habitual offender statute. See Woods v. State, 807 So.2d 727, 729 (Fla. 1st DCA 2002).

Because the appellant was improperly habitualized, we reverse and remand to the trial court for resentencing. If, however, the appellant’s plea was predicated upon habitualization, the trial court must permit the state to either (i) allow appellant to be resenteneed without imposition of habitual offender status, or (ii) withdraw from the plea agreement and proceed to trial. See Wade v. State, 822 So.2d 550 (Fla. 1st DCA 2002); Lee v. State, 642 So.2d 1190 (Fla. 1st DCA 1994).

REVERSED and REMANDED with directions.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Kenneth S. SAMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-3579.
    District Court of Appeal of Florida, First District.
    July 29, 2003.
    Kenneth S. Sampson, pro se, petitioner.
    Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Kenneth Sampson’s request for a belated appeal from the judgment and sentence rendered on September 5, 2000, in Jackson County Circuit Court case number 96-686CF, is granted. Upon issuance of the mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Pla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Jerry ALLEN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1481.
    District Court of Appeal of Florida, First District.
    July 29, 2003.
    Jerry Allen, Jr., pro se, petitioner.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Jerry Allen, Jr.’s, request for a belated appeal from the trial court’s order entered December 30, 2002, which denied postcon-viction relief in Wakulla County Circuit Court case number 60-5-CF, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Thomas LAND, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1949.
    District Court of Appeal of Florida, First District.
    July 29, 2003.
    Appellant, Pro se.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion seeking additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record does not conclusively refute the appellant’s claim, we reverse.

The appellant made a facially sufficient claim for jail credit under rule 3.800 by providing the dates for which he is seeking credit, the date of his sentence, and alleging that the jail certificate would show that he is entitled to credit. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). It appears that the appellant is entitled to 200 days of jail credit and that he was only awarded 169 days of credit. The trial court asserted that the appellant agreed to only 169 days of jail credit as a part of his plea agreement. However, the trial court failed to attach the appellant’s plea agreement to support its conclusion. See Moore v. State, 741 So.2d 577 (Fla. 5th DCA 1999).

We therefore reverse the trial court’s summary denial and remand for the trial court to attach portions of the record that conclusively refute the appellant’s claim or to grant the appellant’s requested relief.

REVERSED and REMANDED.

KAHN, WEBSTER and POLSTON, JJ., concur.


author: STONE, J.

text:
    A.F., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1768.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

A.F. was adjudicated delinquent for the offense of tampering with evidence. Although we affirm as to the denial of the motion to suppress, the evidence does not support conviction for the completed act of tampering. We, therefore, reverse and remand for modification and re-sentencing for the offense of attempted tampering with evidence.

Deputy Sheriff Kohl was working in a public park when he noticed and approached a vehicle parked in a wooded area. Parking was not permitted at that location. After the driver stepped out and handed the officer his license, the deputy directed the passenger, A.F., to step out of the car. He testified that he did this for his safety so that he would know that “she would not be in control of a weapon.” While Kohl spoke with the driver, A.F. went back to the car. Kohl observed her retrieving a green plastic bag and placing it into her mouth. The bag contained marijuana.

Prior to trial, A.F. filed a motion to suppress the plastic bag, asserting that it was obtained as a result of an unlawful detention. At the motion to suppress hearing, Deputy Kohl, A.F., and the driver testified. A.F. admitted to putting the bag in her mouth. Although the deputy did not mention it, A.F. and the driver added that Kohl initially ordered the two out of the car after seeing a “cigar” inside.

At trial, a motion for judgment of acquittal was granted as to a possession charge, but denied as to tampering.

Section 918.13(l)(a), Florida Statutes (2003), states, in pertinent part:

(1) No person, knowing that a criminal ... investigation by a ... law enforcement agency, ... is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such ... investigation;

To prove this offense, the state must show that the defendant had knowledge of the impending investigation and destroyed or concealed evidence, impairing its availability for the investigation. See State v. Jennings, 666 So.2d 131, 132 (Fla. 1995). Here, the evidence only shows that A.F. unsuccessfully attempted to swallow the bag of marijuana before spitting it out. Although this act is insufficient to constitute tampering with evidence, it does amount to attempted tampering with the evidence. See State v. Gilmore, 658 So.2d 629 (Fla. 2d DCA 1995)(holding that unsuccessful attempt to swallow bag of marijuana does not constitute tampering); McKinney v. State, 640 So.2d 1183 (Fla. 2d DCA 1994)(holding that evidence that defendant unsuccessfully tried to swallow bag of cocaine at scene of his arrest sustained conviction for attempted tampering with evidence).

We find no reversible error or abuse of discretion with respect to the motion to suppress where the officer acted on reasonable grounds.’ Whether an officer’s suspicion is reasonable is based on the totality of the circumstances. Slydell v. State, 792 So.2d 667, 671 (Fla. 4th DCA 2001). Here, the officer was engaged in a reasonable and lawful investigation when he asked the passenger, A.F., to step out of the car. Here, the car was parked in an unauthorized area of the park. There was also testimony that signs prohibited parking in unauthorized areas of the park. The unauthorized area was also known for drug activity and a lot of drug parapherna-

lia and alcohol bottles had been found there. The officer was engaged in this lawful performance of his duties when he asked A.F. to step out of the car as a safety precaution. See J.B. v. State, 718 So.2d 1280 (Fla. 4th DCA 1998)(reeogniz-ing that as a matter of routine, a police officer may order a passenger to get out of a lawfully stopped vehicle). We note that in this case, there was no search of the car or search of the individuals and there is no suggestion that the passenger was in any way restrained or prevented from leaving. Cf. Barrios v. State, 807 So.2d 814 (Fla. 4th DCA 2002)(holding that although a passenger may be ordered out of a lawfully stopped vehicle, a passenger cannot be detained or prevented from leaving absent reasonable suspicion).

We have considered Popple v. State, 626 So.2d 185 (Fla.1993), but deem it distinguishable. Popple was lawfully parked on a public street. It was undisputed that the deputy did not have a well-founded suspicion necessary to authorize a temporary detention. Id. at 187. The court also recognized that to sustain the state’s position under the facts of that case “would mean that the police could order citizens out of their automobiles under almost any circumstances.” 626 So.2d at 187 n. 1. Such is certainly not the circumstance here, where the car was parked in an unauthorized area.

A.F. argues that the parking violation is insufficient to warrant the stop. For support, she cites to Brown v. State, 577 So.2d 708 (Fla. 2d DCA 1991). There, Brown was parked on the wrong side of the street facing the wrong direction. The officer approached Brown, asked for identification, and then ordered him to step out of the vehicle. The officer then observed marijuana on Brown’s person. The appellate court reversed the denial of the motion to suppress, holding that the stop was illegal because it was pretextual. The court noted that Brown was not cited for a traffic violation. Further, the officer in Brown was unable to cite to any ordinance violation. Additionally, the officer admitted that police cars were parked on the same side of the street as Brown, thereby creating the impression that such parking was allowed. Id. at 709. The court concluded that a reasonable officer would not have detained Brown for the stated traffic reason.

Here, unlike Brown, there is no indication of pretext, as there was a basis for believing that A.F. was illegally parked, and there were no circumstances indicating that parking was allowed in the area. Given the context, the officer’s conduct was reasonable.

The adjudication and sentence are reversed. Upon remand, the trial court shall re-sentence Appellant for the offense of attempted tampering with evidence.

GUNTHER and STEVENSON, JJ., concur.


text:
    ALLEGHENY CASUALTY COMPANY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2365.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.

      Rachel S.G. Dooley, Paige C. Tarver and Joseph F. Frederick, III, of Dooley, Tar-ver & Frederick, Miami, for appellant.
    Edward A. Dion, County Attorney, Andrew J. Meyers, Chief Appellate Counsel, Beth-Ann E. Herschaft and Tamara M. Scrudders, Assistant County Attorneys, Fort Lauderdale, for appellee.
   PER CURIAM.

Kevin’s Bail Bonds, Inc. as surety agent of Allegheny Casualty Company, Inc., (Surety) posted bail for Emilienne Louis who was charged with one count of trafficking in cocaine and one count of conspiracy to traffic in cocaine. Louis failed to appear at a scheduled court hearing on May 18, 2001, and the trial court promptly entered an Order Estreating Bond. On July 18, 2001, the parties filed a Stipulated Motion for Extension of Time requesting a ninety day extension for Surety to produce the defendant. The Motion for Extension alleged that Surety had located the defendant and that it was expected that she would be returning to Broward County, at which time she would be surrendered to the Broward County Jail. The trial court granted the extension. Surety failed to produce the defendant within those ninety days and subsequently paid the estreated bond. In May 2002, Surety filed a Motion for Remission pursuant to section 903.28(2), Florida Statutes (2002). The trial court denied the Motion for Remission. Surety appeals the Order Denying its Motion for Remission. We affirm.

Pursuant to section 903.28, certain conditions precedent must be met before a court is authorized to order remission of a forfeited bond. First, there must .have been no breach of the bond. Second, the surety must have apprehended or have substantially attempted to procure or cause the apprehension or surrender of the defendant. And, third, the delay has not thwarted the proper prosecution of the defendant. See Hillsborough County v. Roche Sur. & Cas., Co., 805 So.2d 937, 939 (Fla. 2d DCA 2001). Surety argues that it has met all three of these conditions and is, therefore, entitled to remission. As for the first condition, since Surety promptly paid the estreated bond, there is no clear breach of the bond contract. The main issue before this court is whether Surety met the second condition of substantially attempting to procure or cause the apprehension or surrender of the defendant.

At the time of her arrest, the defendant was a citizen of Haiti living in Florida. The record reflects that the defendant returned to Haiti on August 10, 2001. After her return to Haiti, Surety was able to locate an address where she was living. Based on this information, Surety attempted to initiate proceedings to extradite the defendant to the United States. However, Surety was informed that due to treaties between the United States and' Haiti, the defendant was not subject to extradition. Surety argues that it met its burden under section 903.28, by locating the defendant and attempting to have her apprehended. We disagree.

Surety argues that the facts in this case are similar to those in County Bonding Agency v. State, 724 So.2d 131 (Fla. 3d DCA 1998). In County Bonding, the defendant failed to appear at a scheduled court date and the bond was estreated. Id. at 132. The surety discovered that the defendant had fled to Jamaica. The surety then located the defendant in Jamaica and had her arrested. However, the state declined to have her extradited. On appeal, the third district held that assuming no prejudice to the prosecution on account of the delay, the surety was entitled to remission. Id. at 133. The third district reasoned that the state’s decision not to extradite did not defeat an otherwise meritorious remission claim. Id; see also Sur. Cont’l Heritage Ins. Co. v. Orange County, 798 So.2d 837, 840 (Fla. 5th DCA 2001) (holding that when a surety has substantially attempted to procure a defendant, it should not be prevented from seeking remission because the state refuses to cooperate).

However, the instant case is distinguishable from County Bonding and Surety Continental because the sureties in those cases were ready, willing and able to produce the defendants. They were prevented from complete performance of the bail bond contract by an act of the state (the refusal to extradite). In the instant case, even though Surety has located an address for the defendant in Haiti, Surety is not ready and able to produce the defendant. Also, Surety’s failure to perform its obligation is not being prevented by the State, but rather treaties prohibiting extradition.

Surety argues that it should be excused from its obligation to produce the defendant because it is illegal to bring her back to the United States, and, therefore, completion has become impossible. We find no merit in this argument. A bail bond is a three-party contract between the state, the accused, and the surety, whereby the surety guarantees appearance of the accused. See Pinellas County v. Robertson, 490 So.2d 1041, 1042 (Fla. 2d DCA 1986). The risk of .a defendant not appearing is borne by the surety and the surety, in order to protect its interest, must take precautionary actions to prevent this type of situation. In the instant case, Surety’s performance was not rendered impossible by an act of God or an act of the State. Surety’s inability to perform its obligation is due to its own fault in permitting the defendant to leave the State of Florida. The record reflects that the defendant did not leave Florida until August 10, 2001. The bond was estreated on May 18, 2001, after the defendant failed to appear at a scheduled hearing. Surety had approximately three months to locate the defendant and produce her while she was still in Florida. If Surety had not delayed, it could have produced the defendant and sought remission on that basis.

We hold that Surety is not excused from its obligations under the bond contract due to impossibility. In order to be entitled to remission, Surety must establish that it has substantially attempted to procure or cause the apprehension or surrender of the defendant. We hold that it has not met this burden.

AFFIRMED.

TAYLOR, HAZOURI and MAY, JJ„ concur.

      . Section 903.28(2), Florida Statutes (2002), states as follows:
      (2) If the defendant surrenders or is apprehended within 90 days after forfeiture, the court, on motion at a hearing upon notice having been given to the county attorney and state attorney as required in subsection (8), shall direct remission of up to, but not more than, 100 percent of a forfeiture if the surety apprehended and surrendered the defendant or if the apprehension or surrender of the defendant was substantially procured or caused by the surety, or the surety has substantially attempted to procure or cause the apprehension or surrender of the defendant, and the delay has not thwarted the proper prosecution of the defendant. In addition, remission shall be granted when the surety did not substantially participate or attempt to participate in the apprehension or surrender of the defendant when the costs of returning the defendant to the jurisdiction of the court have been deducted from the remission and when the delay has not thwarted the proper prosecution of the defendant.


text:
    ELITE FORMAL ACCESSORIES and Associated Industries Insurance Company, Appellants/Cross-Appellees, v. Felicita ROMAN, Appellee/Cross-Appellant.
    No. 1D02-2600.
    District Court of Appeal of Florida, First District.
    July 30, 2003.
    Mary Ann Stiles and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Tallahassee, for Appellants/Cross-Appellees.
    William F. Souza, North Miami, for Ap-pellee/Cross-Appellant.
   PER CURIAM.

In this workers’ compensation case, we direct the judge of compensation claims on remand to correct the scrivener’s error in paragraph 1 of the Order on Employer/Carrier’s Amended Motion for Rehearing so that it reads: “The Final Order is hereby corrected to reflect that the employer/carrier shall pay the claimant temporary partial disability benefits from October 1, 1999, to August 31, 2001.”; and to correct the second numbered paragraph of that order (incorrectly numbered “3”) so that it reads: “2. Paragraph 4 of the adjudicatory portion of the Final Order (on page 14 thereof), referring to temporary total disability payments, is stricken in its entirety.” We affirm, without discussion, as to all other issues raised by the appeal and cross-appeal.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

KAHN, WEBSTER and DAVIS, JJ., Concur.


author: WEBSTER, J.

text:
    PAMELA EQUITIES, INC., a New York corporation, Appellant, v. NYREN ENTERPRISES, INC., a Florida corporation, Appellee.
    No. 1D02-1060.
    District Court of Appeal of Florida, First District.
    July 30, 2003.
    Paul M. Eakin and D. Randall Briley, Atlantic Beach, for Appellant.
    Edward M. Booth, Jr., of Spohrer, Wil-ner, Maxwell & Matthews, Jacksonville; and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   WEBSTER, J.

Appellant seeks review of a final judgment entered following a non-jury trial. Because the judgment lacks critical findings of fact and conclusions of law necessary to permit our intelligent review, we reverse.

Appellant, as lessor, sought recovery of rent for an alleged breach of a commercial lease by appellee. Appellee, as lessee, denied liability, and counterclaimed for damages based upon appellant’s alleged failure to complete improvements to the premises to which appellee claimed appellant had agreed. The trial court denied relief to appellant, and awarded appellee $4,713 on its counterclaim.

The only finding made by the trial court was that appellant “did not comply with the lease specifications in a timely manner.” The particular “lease specifications” not complied with in a timely manner are not identified. More important to our review, however, is the trial court’s failure to make any findings of fact or conclusions of law regarding appellant’s argument that appellee had waived any complaint regarding failure to complete improvements by taking possession of the premises.

Appellant argued that, assuming it had failed to complete improvements to the premises, as a matter of law; its failure to' do so was waived by appellee when appel-lee took possession of the premises. This appears to be the law in Florida. See Yanks v. Truly Nolen, Inc., 341 So.2d 829, 881 (Fla. 3d DCA 1977) (referring to the “general principle of law ... that upon possession by a lessee of premises to which a covenant to improve or repair has not been fulfilled on the part of a lessor, the defect is generally waived and rent under the lease is due”) (citations omitted). The parties agree that this issue was presented to the trial court. Yet, the trial court’s decision appears inconsistent with the general principle of law expressed in Yanks. Nothing in the judgment explains this inconsistency; nor is there any indication that the trial court had even considered the issue. See Turner v. Lorber, 360 So.2d 101 (Fla. 3d DCA 1978) (reversing a damage award resulting from a non-jury trial because the judgment included no findings which would permit the appellate court to determine whether the trial court had considered the issue of comparative negligence). In the absence of findings of fact and conclusions of law establishing that the trial court did consider the issue, and why it apparently found inapplicable the general principle of law set forth in Yanks, we have no alternative but to reverse the decision, and to remand for further proceedings consistent with this opinion.

REVERSED and REMANDED, with directions.

KAHN and DAVIS, JJ., concur.


text:
    JALAPENO FASHIONS, INC. and Claims Control, Inc., Appellants, v. Ursula HAMIN, Appellee.
    No. 1D03-1616.
    District Court of Appeal of Florida, First District.
    July 30, 2003.
    Roger C. Simmons of Neale, de Almeida & Snowden, Ft. Lauderdale, for appellants.
    Shelton Clyatt, Jr. of Clyatt & Richardson, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated June 3, 2003, the Court has determined that the notice of appeal was not timely filed. Thus, the Court lacks jurisdiction to review the order on appeal. Accordingly, appellee’s motion to dismiss, filed May 28, 2003, is granted, and this appeal is hereby dismissed.

WEBSTER, LEWIS and HAWKES, JJ., concur.


author: WOLF, C.J.

text:
    Curtis HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D99-4629.
    District Court of Appeal of Florida, First District.
    July 30, 2003.
    Nancy A. Daniels, Public Defender; Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; James W. Rogers, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, C.J.

In light of the Supreme Court’s decision and mandate in Harvey v. State, 848 So.2d 1060 (Fla. 2003), and the state’s concession of error, we vacate the sentencing in this case and order that the appellant be sentenced in accordance with the dictates of Heggs v. State, 759 So.2d 620 (Fla.2000).

DAVIS and BROWNING, JJ., concur.


text:
    C.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3507.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Pursuant to a plea agreement, C.H. pled no contest to a petition for delinquency. The trial court withheld adjudication and ordered C.H. to be placed on juvenile probation up to a maximum of one year. As part of the probation he was ordered to participate in an assessment through the Juvenile Assessment Team and complete any recommended therapy or treatment. The disposition order had a specific provision for imposing Drug Court supervision which the court did not elect to impose as a condition of probation.

C.H. was recommended for direct referral for substance abuse treatment, but when he was unable to continue treatment at one facility because it could not handle C.H.’s mental health needs, he was to be placed in another treatment facility. While awaiting entry into the new facility, a drug court officer determined that C.H. needed supervision and imposed Drug Court monitoring.

C.H. filed a Motion to Terminate Drug Court Supervision arguing that it was not a term of the plea agreement and the trial court had not ordered it. After a hearing, the trial court denied the motion. C.H. filed this appeal.

Drug Court supervision was not a condition of C.H.’s probation that was ordered by the court. Only the court may set the conditions of probation and it may not delegate its responsibility to a probation officer. See In re T.L.D., 586 So.2d 1294 (Fla. 4th DCA 1991). Where a court withholds adjudication and places a child on probation under specified conditions, a court is without authority to add a condition of probation unless and until a violation is alleged and after a hearing a violation is determined to have been committed. See § 985.228(4), Fla. Stat. (2001); Fla. R. Juv. P. 8.120; see also Delancey v. State, 653 So.2d 1062 (Fla. 4th DCA 1995) (modification of probation, adding additional requirement of probation absent a violation constitutes an improper enhancement, not a modification, of defendant’s original sentence and violates double jeopardy principles). We reverse the denial of C.H.’s motion and remand for the trial court to terminate Drug Court supervision.

REVERSED AND REMANDED.

TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    Jeffrey Kevin MULLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4242.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.

      Jeffrey Kevin Mullins, Coleman, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jeffrey Kevin Mullins appeals an order summarily striking his motion for posteonvietion relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Appellant sought to withdraw three pleas entered in five different cases in 1986, 1987, and 1988, alleging under oath a veritable laundry list of reasons for the withdrawal of all the pleas. The state had filed a response below, giving cogent reasons why summary denial of the motion was appropriate. The trial court, without an evidentiary hearing or any record attachments whatsoever, declined to consider the state’s reasons for denial but instead struck the motion because it concluded that the motion was based upon false allegations of fact. The trial court noted in its order that not only had Appellant alleged the same exact unlikely factual scenarios surrounded all three of his plea colloquies, but six other defendants incarcerated in the same federal prison had filed .motions challenging a total of thirty other pleas, also based on the exact same factual allegations.

In response to this court’s order to show cause, the state reargues the merits, which were never ruled on below, and cites Davis v. State, 257 So.2d 79 (Fla. 2d DCA 1972), in which the court noted that when the record establishes that the allegations that support a motion for postconviction relief are untrue, then it is proper to deny the motion without a hearing. Here, however, the trial court did not attach to its order any portions of the record to establish that Mullins’ allegations were untrue. The state takes the position that neither an evidentiary hearing nor record attachments were necessary because the motion was “procedurally defective.” We disagree that the making of perjurious statements in a rule 3.850 motion constitutes a “procedural defect.” Instead, when the trial court does not hold an evidentiary hearing, it must accept the movant’s factual allegations as true to the extent they are not refuted by the record. See Valle v. State, 705 So.2d 1331, 1333 (Fla.1997). Compare Bogan v. State, 211 So.2d 74 (Fla. 2d DCA 1968) (noting that, when a trial court finds after a full hearing that the defendant’s sworn statement was untrue, then the trial court should consider instituting contempt proceedings against the movant, or prosecuting the movant for perjury).

Accordingly, we reverse the order striking the motion and direct the trial court on remand to rule on the motion.

KLEIN, STEVENSON and TAYLOR, JJ., concur.

      . If a rule 3.850 motion is not denied for legal insufficiency on its face, the trial court must attach the portions of the files and records showing conclusively that the movant is entitled to no relief. See Fla. R.Crim. P. 3.850(d).


author: SHAHOOD, J.

text:
    C.D., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3716.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, C.D., a child, appeals from a delinquency order revoking his probation. Because the evidence did not support the trial court’s finding that appellant violated his probation, we reverse and remand.

Appellant was initially charged with grand theft auto in a petition for delinquency. After entering a plea, he was adjudicated delinquent and placed on juvenile probation and placed in a Department of Children and Families (DCF) shelter. An affidavit of violation of probation was filed alleging that appellant was classified to intensive probation on July 5, 2002 and that he absconded from a DCF foster care shelter on July 8, 2002 at 7:00 a.m. Appellant allegedly left his place of residence and his current whereabouts were unknown.

A Violation of Probation (VOP) hearing was held at which time appellant’s juvenile probation officer testified that appellant had been placed on intensive probation. Among the requirements of such probation, appellant was informed that he was required to stay in the DCF shelter in which he was placed.

The probation officer stated that she would get reports from appellant’s DCF worker that appellant had run away or did not come back to the shelter. This resulted in the officer alleging a violation that appellant left the shelter but the officer admitted that she never directly confirmed with the shelter that appellant was not at the shelter at a particular time. She also stated that appellant was currently in the Detention Center for a new felony grand theft auto charge. The officer also admitted that she did not have any “personal knowledge” that appellant was not at the shelter. This information came solely from appellant’s DCF workers. She further stated that she did not have any personal knowledge as to whether appellant had been given permission by his DCF worker to visit a family member during that time, but added that it was not allowed.

Appellant testified that he knew he had to remain at the shelter and admitted that he left only once, on a Saturday. He explained:

My caseworker talked to the lady that worked down there, Miss Michelle. And that’s who they told me that my caseworker had to speak to in order for me to leave that program.
See, I didn’t have my JPO’s number, so I couldn’t call her. He said if I wanted to go somewhere I had to call her, but I didn’t have her number. I talked to Miss Michelle and Miss Michelle told me that I was allowed to—

At first, appellant stated that he was not at the shelter on July 8th, but when asked if he was at the shelter on Monday, July 8th, he stated that he had been at the shelter. The only time he had not been at the shelter was the Saturday he had referred to. He believed he had permission to leave the shelter to visit his grandmother but at no time did he run away from the shelter or leave without permission.

It is well settled that probation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation. See Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992). To revoke probation, the conscience of the court must be satisfied that the state proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation. See Blackshear v. State, 771 So.2d 1199 (Fla. 4th DCA 2000).

It is undisputed that hearsay evidence, while admissible in probation revocation proceedings, cannot constitute the sole basis for a finding of violation of probation. See Sagner v. State, 776 So.2d 1088 (Fla. 4th DCA 2001); Render v. State, 755 So.2d 653 (Fla. 4th DCA 1998).

In this case the state argues that the trial court properly revoked appellant’s probation where it relied upon hearsay and non-hearsay evidence. The state maintains that although the probation officer’s testimony was hearsay evidence, the trial court relied primarily upon appellant’s own testimony that he left the shelter.

Here, appellant testified that while he left the shelter once, he did so with permission. Further, he testified that he left the shelter on a Saturday, not on a Monday, as alleged in the affidavit of violation of probation.

At no time did the probation officer confirm with the shelter that appellant had in fact left the shelter at a particular time and she further admitted that she had no personal knowledge as to whether appellant had left the shelter. As to appellant’s claim that he had permission to leave to visit with his grandmother, the officer was unable to confirm or deny that the shelter gave appellant permission to leave. She also testified that she received reports from the DCF worker that appellant left the shelter on two occasions, June 20 and July 5, neither of which was the alleged date of the violation, July 8.

In addition, the state’s reliance upon the Affidavit for Order to Take into Custody which stated that appellant “ran” from the shelter on July 8 and that his whereabouts were unknown, are mere allegations and are insufficient to establish a probation violation. See Grimsley v. State, 830 So.2d 118, 119-20 (Fla. 2d DCA 2002). Further, the state’s reliance on appellant’s arrest for another crime as evidence is also insufficient. See Nelson v. State, 802 So.2d 470, 472 (Fla. 2d DCA 2001).

Accordingly, based on the foregoing, the evidence in this case did not support the court’s finding that appellant violated his probation. We therefore reverse and remand and direct the trial court to reinstate appellant’s probation.

REVERSED AND REMANDED.

WARNER and KLEIN, JJ., concur.


author: GROSS, J.

text:
    Desmond McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3845.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for Appellee.
   GROSS, J.

The only issue in this case is whether the trial court fell into a Faretta trap by denying appellant’s right to self-representation. We hold that after the trial court determined that appellant had “knowingly and intelligently” waived his right to counsel, it erred in requiring him to proceed with a court-appointed lawyer because he was incompetent to represent himself.

The trial court conducted an excellent inquiry under Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). The trial court found that defense counsel had simultaneously worked up this case and another case of appellant’s and that he was experienced as a criminal defense attorney. After its inquiry, the trial court found no reasonable cause to believe that defense counsel was ineffective.

The court then explained that appellant had the option of keeping his current counsel, defending himself, or hiring a private attorney. Appellant responded: “I’d rather represent myself.”

The court began its Faretta inquiry. It asked questions about appellant’s age, mental condition, work and legal experience, knowledge of the rules of procedure and evidence, and his understanding of the crimes charged and the penalties for them.

After this initial questioning, the court asked why appellant wanted to represent himself when he had a ninth grade education and “no legal training whatsoever.” Appellant then indicated that he believed he could have another attorney appointed; he thought he was not fit to represent himself. He said he did not have the money to hire an attorney.

The court explained appellant’s options again — same counsel, self-representation, or hire private counsel. Once again appellant rejected his court-appointed lawyer and stated: “I’m going to represent myself.” The court continued its inquiry and concluded that appellant “knowingly and intelligently” waived his right to counsel.

However, the court went on to rule that appellant would be deprived of a fair trial by representing himself with a ninth grade education and no legal experience. As a result, the trial court refused to allow appellant to represent himself. His appointed counsel represented him throughout the trial.

After finding a knowing waiver of his right to counsel, the trial court erred in refusing to let appellant represent himself because he would do so incompetently. Faretta instructs that “[although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” 422 U.S. at 885, 95 S.Ct. 2525 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)); State v. Bowen, 698 So.2d 248, 250 (Fla.1997).

Under Faretta, lack of legal experience is not a reason to deny self-representation. See Bell v. State, 699 So.2d 674, 677 (Fla.1997); Bowen, 698 So.2d at 250 (finding Faretta made no provision for “an additional layer of protection requiring courts to ascertain whether the defendant is intellectually capable of conducting an effective defense”). If lack of education and legal skills were a basis for denying self-representation, few, if any, criminal defendants would ever qualify to represent themselves.

In Bowen, the supreme court faced a certified question, which could have arisen from this case, and answered it in the negative:

Once a trial court has determined that a defendant has knowingly and intelligently waived his or her right to counsel, may that court nonetheless require the defendant to be represented by counsel because of concern that the defendant might be deprived of a fair trial if tried without such representation?

698 So.2d at 249. The court held that when a waiver of counsel is knowing and intelligent, a lack of education does not preclude the right to represent oneself. Id. at 252.

Although the trial court made the proper inquiry under Faretta, it erred by focusing on appellant’s lack of education and legal experience and denying appellant’s right to self-representation.

We recognize that Faretta issues are hard ones for a trial court. It is difficult to manage a trial where an untrained defendant represents himself. As Judge Klein has written:

Trial judges, when confronted with defendants like this one, are “between a rock and a hard place.” Payne v. State, 642 So.2d 111, 113 (Fla. 1st DCA 1994) (Kahn, J., concurring). Under Faretta a trial judge has to be sensitive both to the right to counsel as well as the right to self-representation; however, judges have little leeway in either direction, since there are two constitutional rights at stake here. If a defendant has met the requirements of Faretta for self-representation, but the court denies self-representation because of the court’s concern that the defendant’s ignorance of the law will result in the defendant not receiving a fair trial, it may well violate Faretta.

Morris v. State, 667 So.2d 982, 986 (Fla. 4th DCA 1996).

However, both the Florida and the United States Supreme Courts require that courts honor a defendant’s request for self-representation, if the defendant knowingly and intelligently waives the right to counsel. The trial court can lead a defendant to the water of an intelligent decision about the dangers of self-representation, but it cannot make him drink.

Reversed and remanded for a new trial.

FARMER, C.J., and POLEN, J., concur.

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      . The court said:
      [T]he Court fínd[s] that by the defendant representing himself, he would be deprived of a fair trial in that he has a ninth grade education, he has never had any training in the area of the law, no courses, no law school, no jobs, any training for him to be able to represent himself properly. He has never represented himself or anyone else in any criminal proceeding. The only trial that he has sat through, complete trial, was his prior trial in this courtroom. He has no experience in selecting a jury, he has never selected a jury and he does not know the elements of the offense that he’s being or offenses that he’s being charged with, and that by allowing him to — if I allow the defendant to represent himself, he will be deprived of a fair trial.


author: OWEN, WILLIAM C., JR., Senior Judge.

text:
    Julian Richard KANTER, Appellant, v. Susan Tynce KANTER f/k/a Susan Tynce Rice, Appellee.
    No. 4D03-194.
    District Court of Appeal of Florida, Fourth District.
    July 30, 2003.

      Holly Davidson Schuttler of Holly Davidson Schuttler, P.A., and Barbra Ara-ron Weisberg of Barbra Amron Weisberg, P.A., Boca Raton, for appellant.
    Tracy Belinda Newmark of Fixel & La Rocco, Hollywood, for appellee.
   OWEN, WILLIAM C., JR., Senior Judge.

Couching his appeal in terms of fundamental error apparent on the face of the order, Julian Ranter (husband) seeks thereby to surmount that which, in this case, is insurmountable — meeting his burden to demonstrate reversible error in the absence of a transcript of the evidentiary hearing. Because we find in this case the order appealed does not show error, fundamental or otherwise, on its face, we affirm.

Married in 1981, the parties separated in early 2000 and thereafter maintained separate residences. Some two years later, in June 2002, husband filed a petition seeking dissolution of the marriage and equitable distribution of the marital assets. The wife filed an answer and a counter petition for dissolution of marriage seeking equitable distribution of the marital assets, including exclusive use of the marital residence, temporary and permanent alimony and attorneys fees. In mid-October, husband filed a Verified Motion for Temporary Injunction to Prevent Dissipation of Marital Assets, alleging that the wife had, without his knowledge or consent, withdrawn $500,000 from his IRA account, sold real property owned by the parties, and dissipated certain described marital assets. The husband requested the court to issue a temporary injunction enjoining the wife from further dissipating the marital assets in order to preserve the status quo.

Pursuant to notice, a hearing on the husband’s motion was held on December 9, 2002. Significantly, and the primary basis for the husband’s attempt to overturn the order, the only matter noticed for hearing was the husband’s motion. Immediately upon the conclusion of the evidentiary hearing, the court entered the following order, the decretal portion of which (shown in italics below) was hand-written by the trial judge:

This cause came before this Court on 12/9/02 Petitioner/Husband’s Emergency-Motion (sic) this Court having having (sic) heard testimony, argument of counsel, and having been otherwise fully advised of (sic) the premises, does hereby:
ORDER AND ADJUDGE: upon agreement of the parties at the hearing, the marital assets shall not be disposed, sold, conveyed, encumbered or mortgaged, including real estate, retirement accounts, joint funds or bank accounts, vehicles or business stock or interests. Husband’s request for attorneys’ fees is denied. To maintain the status quo, as of 11/22/02 the Husband ceased paying temporary support* to the Wife and he shall immediately re-commence payment of temporary support to the Wife in the sum of $4,, 000. — every other week ($8,666.67/month).
*This temporary support was voluntary paid by the Husband during the pen-dency of this case.

The husband filed a motion for rehearing asserting, in substance, the same three grounds he asserts on this appeal: First, the trial court committed fundamental error in granting the wife temporary support where that issue was not noticed for hearing, thereby depriving husband of his due process rights. Second, the trial court erred in granting temporary support to the wife without making findings as to her need for support and the husband’s ability to pay support. Third, the trial court erred in awarding temporary support to the wife where she had failed to comply with the mandatory disclosure requirements of Florida Family Law Rule of Procedure 12.285(c). Our disposition of this case on the first point necessarily renders the other two moot.

The husband acknowledges that no transcript of the December 9, 2002 hearing exists. While normally, the lack of a transcript is fatal to an appellant’s prospects of meeting the burden of establishing trial court error, thereby requiring an appeals court to affirm, see Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979), yet, as the husband correctly argues, an appellate court may reverse an order or judgment even in the absence of an adequate record where such order or judgment is fundamentally erroneous on its face. See Ballesteros v. Ballesteros, 819 So.2d 902 (Fla. 4th DCA 2002); Calderon v. Calderon, 730 So.2d 400 (Fla. 5th DCA 1999); Holmes v. Holmes, 578 So.2d 323, 324 (Fla. 4th DCA 1991). It is the latter category — fundamental error apparent on the face of the order — into which the husband seeks to shoehorn the December 9, 2002 order.

The courts of this jurisdiction have consistently recognized that, as a general rule, a violation of due process occurs when a court determines matters not noticed for hearing and not the subject of appropriate pleadings. See, e.g., Fuchs v. Flicks, 840 So.2d 449 (Fla. 4th DCA 2003); Stanley-Baker v. Baker, 789 So.2d 353 (Fla. 4th DCA 2001); Winddancer v. Stein, 765 So.2d 747 (Fla. 1st DCA 2000): Szymanski v. Szymanski, 603 So.2d 73 (Fla. 4th DCA 1992). It is the husband’s contention that his due process rights were violated by the trial court’s award of temporary support to the wife when the only matter noticed for hearing was his motion for a temporary injunction and that this fundamental error is apparent on the face of the order.

The problem with the husband’s argument is, as we see it, the face of the order contains language totally at odds with the claimed due process violation. The husband’s motion alleged that he needed the temporary injunction to prevent the wife “from further dissipating the marital assets in order to preserve the status quo.” At the time the husband filed his motion, he was (and had been for some indeterminate period of time prior thereto) voluntarily providing the wife with temporary support in the amount of $4,000 every other week ($8,666.67 per month). He had ceased making those payments a mere two weeks prior to the hearing. The court expressly found that in order “to maintain the status quo” the husband would be required to immediately re-commence payment to the wife of the temporary support. That language certainly sounds as though the court did not stray from the parameters of the matter noticed for hearing; in fact, it sounds as though the trial court granted the husband the precise relief he had requested — maintain the status quo.

The husband’s response is that he requested the trial court to maintain the status quo only with respect to the parties’ marital assets, not with respect to the temporary support he had been paying to the wife. It may well be that the court’s view of “status quo” was broader than that which the husband envisioned, but we can not say it was erroneous as a matter of law nor does it strike us that it could be viewed as an abuse of the court’s discretion. The order reflects that the court heard evidence, argument of counsel and an in-court agreement by the parties at a hearing on a motion requesting the court for an order to maintain the status quo. If the court erred, the error is not apparent on the face of the order. In the absence of a transcript of the hearing demonstrating reversible error sufficient to overcome the presumption of correctness accorded the trial court order, we affirm. See Applegate, 377 So.2d 1150.

WARNER and HAZOURI, JJ., concur.

      . We have described the hearing as an "evi-dentiary hearing” because the typed portion of the order states that the court "heard testimony.” While it is likely that the typed portion of the’ order was prepared by counsel prior to the hearing, we can assume the court, before signing the order, would have deleted such language had it not accurately reflected the proceedings.

      . So far as we are aware, no order has been entered on the motion for rehearing.

      . The husband’s motion for rehearing contained neither a denial that the order was entered "upon agreement of the parties at the hearing”, nor an assertion that the husband timely objected to the temporary support provision for the wife. However, the husband does argue in his brief that the court inserted the temporary support provision over his objection, a statement obviously unsupported by any record reference.

      .No indication is given that an effort was made to reconstruct the evidence or proceedings pursuant to Florida Rule of Appellate Procedure 9.200(b)(4).

      . Another, and we think equally plausible, view of the order, given the language “upon agreement of the parties at the hearing,” is that the parties, in the presence of the court, agreed to the temporary injunction and to the resumption of temporary support payments. Neither party argues this construction.