author: CASANUEVA, Judge.

text:
    Oscar DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2454.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Oscar Davis challenges his conviction and sentence for aggravated battery, contending that the charging document was fatally defective and that his sentence was illegally enhanced. We hold that he was properly convicted of aggravated battery but reverse and remand for resentencing.

Mr. Davis was charged by amended information with aggravated battery with a firearm, and the jury found him guilty “as charged of Aggravated Battery (discharging a firearm causing great bodily harm).” On appeal, he contends that he was unlawfully convicted of an offense for which he was not charged and that his conviction should be reduced to the offense of simple battery.

The language of the amended information is critical in this case. The State alleged that Mr. Davis,

[o]n or about July 06, 2002[,]1 in Lee County, Florida, did unlawfully commit a battery upon Michel Thomas, by actually and intentionally touching or striking said person, against said person’s will, or by intentionally causing bodily harm to said person, and in committing said battery did actually possess and discharge a deadly weapon, to-wit: a firearm, contrary to Florida Statute 784.045; 775.087....

Mr. Davis argues that this language could not effectively charge him with either form of aggravated battery as set out in section 784.045(l)(a)(l) or (2), Florida Statutes (2002), which provides as follows:

(l)(a) A person commits aggravated battery who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or
2. Uses a deadly weapon.

Mr. Davis’s position is that the information does not precisely track the statute and that the language charging him with actually possessing and discharging a deadly weapon in committing a battery is insufficient to bring him within the statutory requirement of using a deadly weapon in committing a battery. The cases on which he relies do not address whether an information correctly charges aggravated battery but concern the availability of sentencing enhancements involving certain minimum mandatory terms for use of a firearm. See, e.g., Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002). In the context of whether this information properly charges an aggravated battery, however, the following explanation from Lareau v. State, 573 So.2d 813, 815 (Fla.1991), is instructive:

Under this statutory interpretation, the punishment for battery increases as. the degree of actual injury or potential for serious injury becomes greater. For example, a simple battery without the use of a deadly weapon is a first-degree misdemeanor (section 784.03); a simple battery involving the use of a deadly weapon is a second-degree felony (statutory redefined by section 784.045(l)(b) [now 784.045(1)(1)(2) ] as aggravated battery); aggravated -battery causing great bodily harm is a second-degree felony ...; and aggravated battery causing great bodily harm and involving the use of a deadly weapon is a first-degree felony (section 784.045(l)(a), enhanced by section 775.087(1) by virtue of the use of a weapon or firearm). This interpretation gives consistent effect to both the felony reclassification statute and the provision defining aggravated battery involving the use of a deadly weapon, and it conforms with the legislative intent of increasing the punishment of violent crimes that involve a weapon or firearm.

Here, Mr. Davis was charged with committing a battery. The information further alleged that in committing that battery he actually possessed and discharged a firearm, thus creating the potential for serious injury to occur, as described by Lareau. Furthermore, the general statutory term “uses a deadly weapon” encompasses the more specific language “discharges a deadly weapon.” A person can use a firearm without discharging it, see Altieri, 835 So.2d at 1183, but a person who discharges a firearm must necessarily be said to have used it.

Mr. Davis also contends, correctly, that his aggravated battery conviction could not be enhanced pursuant to section 775.087(1), which provides for reclassification of a crime from a second-degree to a first-degree felony if the defendant uses a firearm during its commission, unless “the use of a weapon or firearm is an essential element” of the crime. In Mr. Davis’s case, the information charged him with intentionally causing bodily harm to the victim by discharging a firearm. Because the information did not allege that Mr. Davis caused great bodily harm to the victim, the use of the firearm was an essential element of the aggravated battery charge. See Gonzalez v. State, 585 So.2d 932, 933 (Fla.1991) (“We find that this issue is controlled by Lareau v. State, 573 So.2d 813 (Fla.1991), where we held that although aggravated battery causing great bodily harm can be enhanced pursuant to section 775.087(1) because the use of a weapon is not necessary to cause great bodily harm, the crime of aggravated battery with the use of a deadly weapon is not subject to reclassification because the use of a weapon is an essential element of the crime.”); Griffin v. State, 509 So.2d 980, 981 (Fla. 2d DCA 1987) (“Since the information charged only bodily harm and not great bodily harm the addition of the charge, ‘in so doing used a deadly weapon,’ was essential to constitute the offense of aggravated battery.”).

It is apparent that the prosecution charged Mr. Davis with “actually possessing and discharging a firearm” rather than simply with “using a deadly weapon” because, in addition to reclassification, section 775.087 provides for sentencing enhancements when a firearm is possessed or used during the commission of certain enumerated crimes. However, the minimum terms mandated by the “10-20-Life” statute, section 775.087(2), cannot be legally imposed unless the statutory elements are precisely charged in the information. Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004); Rogers v. State, 875 So.2d 769 (Fla. 2d DCA 2004). In Altieri, 835 So.2d at 1183, the Fourth District explained the rationale as follows:

Here, the information contained an allegation that appellant “used a deadly weapon, to wit: a firearm” but it did not contain an allegation that appellant discharged a firearm or destructive device. We are not persuaded by the state’s argument that the allegation that “in the process thereof used a deadly weapon, to wit: a firearm,” was sufficient to place appellant on notice that he was being charged with discharging a firearm during the course of the aggravated assault. The term “used” a firearm does not necessarily mean that a person “discharged” a firearm because a person may use a firearm without discharging it. Section 775.087(2)(a)(2) applies when a person discharges the firearm or destructive device.

Here, the trial court apparently attempted to sentence Mr. Davis to a minimum mandatory term of twenty-five years to life in prison under section 775.087(2)(a)(3). The twenty-five-year-to-life sentence is mandated when the information has charged that the defendant discharged a weapon during the course of the enumerated felony and “as the result of the discharge, death or great bodily harm was inflicted upon any person.” Although the jury found Mr. Davis guilty of “Aggravated Battery (discharging a firearm causing great bodily harm),” imposition of the mandatory term under section 775.087(2)(a)(3) is illegal in this case because the information did not charge death or great bodily harm. Neither a jury finding nor inclusion of the appropriate statute number in the information can cure this fatal defect. Id.; Rogers, 875 So.2d at 771; Dukes v. State, 866 So.2d 775, 776 (Fla. 1st DCA), review dismissed, 868 So.2d 523 (Fla.2004).

In light of the illegality of his sentence, Mr. Davis’s position is that on remand, the trial court may not impose a sentence exceeding fifteen years’ imprisonment, the statutory maximum for a second-degree felony. As the State argues, however, another section of the 10-20-Life statute applies to Mr. Davis. Section 775.087(2)(a)(2) requires that any person who is convicted of an aggravated battery, “regardless of whether the use of a weapon is an essential element of the felony, and during the course of the commission of the felony such person discharged a ‘firearm’ ... shall be sentenced to a minimum term of 20 years.” If this minimum mandatory term is greater than the maximum penalty under the Criminal Punishment Code or sentences authorized by other sections of chapter 775, “then the mandatory minimum sentence must be imposed.” § 775.087(2)(c). Thus, on resentencing, the court must impose a minimum mandatory term of twenty years.

Furthermore, the State is not precluded from seeking a habitual offender sentence on remand, provided that it can prove the requisite qualifications. At the original sentencing hearing the State withdrew its notice of habitual offender sentencing specifically because the minimum mandatory of twenty-five years to life would provide a harsher sentence. Now that the defendant has challenged that sentence and this court has held it illegal, the prosecution on remand may seek and the court may impose a habitual offender sentence without violating any rights Mr. Davis might have under the Double Jeopardy Clause. In Harris v. State, 645 So.2d 386, 388 (Fla.1994), the supreme court observed that “the Double Jeopardy Clause is not an absolute bar to the imposition of an increased sentence on remand from an authorized appellate review of an issue of law concerning the original sentence. [The defendant] has not been deprived of any reasonable expectation of finality in his original sentence, nor has he been subject to repeated attempts to convict.” See also Trotter v. State, 825 So.2d 362 (Fla.2002) (holding that in a new sentencing proceeding after the original sentence has been vacated by the appellate court, the trial court is not precluded from applying a drug-trafficking multiplier that it did not use in formulating the original sentence); Ellis v. State, 869 So.2d 52, 53 (Fla. 5th DCA 2004) (“Once it was determined [on appeal] that Ellis had received illegal sentences, he was not entitled to a specific sentence but only to a legal sentence.”); Lloyd v. State, 844 So.2d 713, 715 (Fla. 2d DCA 2003) (Altenbernd, J., concurring) (“So long as double jeopardy is not implicated, I believe that both sides to the controversy are simply entitled to a new sentencing hearing where the necessary evidence is presented and the correct law is applied.”).

Accordingly, we affirm Mr. Davis’s conviction for aggravated battery with a deadly weapon but reverse and remand for resentencing.

STRINGER and SILBERMAN, JJ., Concur.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Frank E. DePENA, Esq., of DePena & DePena, P.A., Appellant, v. Jesus CRUZ, Luis Cruz, and Yeanet Frontela, Appellees.
    No. 2D04-429.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood; and Frank E. DePena of DePena & DePena, P.A., Fort Myers, for Appellant.
    Judson L. Cohen of Cohen Law Offices, P.A., Miami, for Appellees.
   DAVIS, Judge.

In this dispute over entitlement to a charging lien for attorney’s fees, Frank E. DePena, Esquire, of DePena & DePena, P.A., challenges the trial court’s order granting final summary judgment in favor of his former clients, Jesus Cruz, Luis Cruz, and Yeanet Frontela (“Appellees”). We affirm in part and reverse in part.

Appellees suffered damages from an automobile fire that occurred in the garage of their home. Their damages included loss of the automobile, structural damage to the home, and loss of the contents of the home. Appellees sought legal representation from DePena and entered into a standard contingency fee contract with his firm. DePena successfully negotiated with Appellees’ insurers for a settlement of their losses. He waived his fees for settlement of the automobile and structural damage claims, and he deferred his fees for settlement of the contents claim. He then filed a products liability action on behalf of Appellees against Ford Motor Company (“Ford”), seeking damages for personal injury and emotional pain and suffering resulting from the fire.

During the Ford litigation, differences developed between DePena and Appellees. For example, Appellees for the first time insisted that they had lost a valuable Picasso painting in the fire. Additionally, Appellees maintained that based on this and other claimed damages, they would settle for no less than $200,000 per person. When DePena encouraged them to accept Ford’s offer for a total settlement of $35,000, Appellees refused and began to question DePena’s competency and loyalty. Citing “irreconcilable differences,” DePena moved to withdraw as counsel for Appel-lees. After his motion was granted, Ap-pellees obtained substitute counsel and settled the Ford action for a total of $50,000.

DePena filed his notice of charging lien to secure his fees and costs. After obtaining the Ford settlement, Appellees moved to strike the notice; however, the trial court denied that motion. Appellees then moved for summary final judgment on the issue of DePena’s entitlement to a charging lien. In that motion, which raised only the issue of DePena’s entitlement to fees and costs in his representation of Appel-lees in the Ford action, Appellees suggested that because DePena voluntarily withdrew from the case, he forfeited his right to receive fees from the settlement. The trial court agreed with Appellees and granted their motion for summary judgment, finding that DePena was not entitled to a fee for the Ford suit and denying the charging lien. However, the trial court also ordered Appellees to pay into the registry of the court, from the proceeds of the Ford settlement, an amount that would satisfy DePena’s fees regarding the contents claim settlement as to which DePena had agreed to defer payment. The trial court reserved jurisdiction to entertain further arguments as to DePena’s entitlement to those funds. Finally, although substitute counsel admitted below that DePena was entitled to the costs his firm had expended on the Ford suit, the trial court denied DePena’s claim for costs.

On appeal, DePena argues that the trial court erred in denying him a charging lien for his fees and costs in the Ford suit. In determining DePena’s entitlement to a charging lien, we must first answer the threshold question of whether DePena is entitled to attorney’s fees for his work on the Ford suit given his withdrawal from representation of Appellees. In general, an attorney who voluntarily withdraws from representation prior to the contingency occurring that entitles him to his fee forfeits his right to compensation. Faro v. Romani, 641 So.2d 69 (Fla.1994). However, there are two exceptions to this general rule. If the client’s conduct makes the attorney’s continued representation legally impossible or if the client’s conduct would cause the attorney to violate the law or an ethical rule of conduct, the attorney may be entitled to a fee when the contingency occurs even though he or she has voluntarily withdrawn from representation. Id.

Citing to language in a footnote in Carbonic Consultants, Inc. v. Herzfeld & Rubin, Inc., 699 So.2d 321 (Fla. 3d DCA 1997), DePena argues that another exception has been created that allows the attorney to collect a fee where the conduct of the client has caused a “breakdown in the attorney-client relationship.” Id. at 323 n. 7. The essence of DePena’s argument is that his attorney-client relationship with Appellees deteriorated due to their expanded claims, which were beyond his control, and that this breakdown of the attorney-client relationship prevented him from continuing to represent Appellees, thus entitling him to a fee even though he voluntarily withdrew from representation.

Our reading of Carbonic Consultants, however, does not support such an expansion of Faro, given the case law cited in the footnote and the actual result in that case, which followed the language and intent of Faro. Moreover, we have been unable to find any other case in this state, including any case coming out of the Third District, that has followed DePena’s proposed interpretation expanding Faro based on Carbonic Consultants.

To the contrary, the case law, particularly in this district, has followed Faro in stating that the two enumerated exceptions in Faro are the only circumstances that justify a finding that the attorney was entitled to the fee. See Liberty Mut. Ins. Co. v. Holbrook, 861 So.2d 1216 (Fla. 2d DCA 2003); Lynn v. Allstar Steakhouse & Sports Bar, 736 So.2d 722 (Fla. 2d DCA 1999); Calley v. Thomas M. Woodruff, P.A., 751 So.2d 599, 600 (Fla. 2d DCA 1998).

Since DePena acknowledges both that it was not legally impossible for him to continue his representation of Appellees and that he did not consider their claim for damages to be fraudulent, he has failed to fall within either of the two Faro exceptions to the rule that an attorney who voluntarily withdraws from representation prior to the occurrence of the contingency forfeits his or her fee. Accordingly, we must conclude that DePena’s withdrawal from representation prior to the settlement of the Ford action resulted in a forfeiture of his right to compensation in that action. We therefore affirm the trial court’s summary judgment in favor of Ap-pellees on the issue of the charging lien as to the fees in the Ford action.

Finally, given Appellees’ concession that DePena was entitled to recover the costs expended in his work on the Ford suit and their agreement that said costs should be paid out of the proceeds of the Ford suit, we conclude that the trial court erred in denying DePena those costs.

In summary, we affirm the trial court’s order as to the denial of DePena’s entitlement to compensation for the Ford settlement and the denial of his charging lien as related to that recovery, and we reverse the trial court’s order denying DePena’s claim for costs expended in the Ford suit.

Affirmed in part; reversed in part.

FULMER and KELLY, JJ., Concur.

      . Because Appellees have not raised by cross-appeal any error in the trial court's sequestration of funds from the Ford settlement in anticipation of a ruling on DePena’s request for fees in the contents claim settlement, we express no opinion as to the trial court's determination in that regard.


author: CANADY, Judge.

text:
    Kevin V. BROWN, Appellant, v. AMERI STAR, INC., Hartford Insurance Co., Pat Gagnon, and Matthew J. Costello, Appellees.
    No. 2D03-5330.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
    Kevin V. Brown, pro se.
    Pierce Kelley of Law Office of Michelle L. Bergier, Tampa, for Appellees.
   CANADY, Judge.

Kevin V. Brown appeals an order dismissing with prejudice his pro se personal injury action. Because we conclude that there was no proper basis for dismissal of the action, we reverse.

Background

Brown, who was incarcerated during much of the relevant motion practice before the trial court, was involved in an automobile accident on December 30, 1994, and brought a negligence action in the county court based on that accident. By written order dated October 15, 1997, based on Brown’s oral motion, the county court voluntarily dismissed the complaint without prejudice.

On December 11, 1998, prior to expiration of the four-year statute of limitations under section 95.11(3)(a), Florida Statutes (1998), Brown filed another complaint. This complaint was captioned as a circuit court case and alleged damages in excess of $15,000. But Brown used the case number from the county court action which had been voluntarily dismissed. The complaint was not accompanied by any summons for service, and no request was made of the clerk for issuance of any summonses for service. By notice dated February 5, 1999, the clerk advised Brown that his papers were being returned because “in order to file a claim of over $15,000, a new motion to transfer venue from county to circuit court will be needed, along with a blank order for the judge to sign.”

Brown made such a motion, the county court denied it, and on appeal to the circuit court, the county court’s order was affirmed by order of the circuit court, dated July 28, 1999. The circuit court, citing Randle-Eastern Ambulance Service v. Vasta, 360 So.2d 68 (Fla.1978), and Sprague v. P.I.A. of Sarasota, Inc., 611 So.2d 1336 (Fla. 2d DCA 1993), stated that by voluntarily dismissing his case, Brown deprived the county court of any jurisdiction over it, and there was no pending case in which the county or circuit courts could enter an order. The circuit court further stated that Brown could refile his action in the circuit court, but it would be stayed unless and until Brown complied with the requirement of Florida Rule of Civil Procedure 1.420(d) to pay defendants’ costs, as assessed on the voluntarily dismissed county court case. By order dated December 4, 2000, this court denied a petition for writ of certiorari, and rehearing was denied by order of this court dated January 11, 2001.

Order on Appeal

In the order on appeal, disposing of several motions by the parties, the circuit court determined, inter alia, that the complaint in the circuit court was considered filed on July 31, 2002, and ruled that it was dismissed with prejudice on all grounds raised on the motion to dismiss, including, but not limited to, the statute of limitations argument. The basis for determining July 31, 2002, to be the filing date of the complaint was not identified, and the other grounds for granting the motion were not described. By order dated May 3, 2004, this court permitted the appeal to proceed on the abbreviated record contained in the parties’ appendices, which does not indicate the other grounds raised on the motion to dismiss.

Analysis

The appellees, the defendants named in the circuit court complaint, assert without citation to any authority that the prior rulings of the county court, circuit court, and this court are entitled to res judicata effect with respect to Brown’s complaint before the circuit court. But none of the prior rulings of the county court, the circuit court, or this court constitute a ruling on the merits. These rulings do not have res judicata effect. See Alson Mfg. Co., v. Silvers, 95 So.2d 16, 17 (Fla.1957); Malunney v. Pearlstein, 539 So.2d 493, 495 (Fla. 2d DCA 1989). The voluntary dismissal before the county court is not a determination on the merits entitled to res judicata effect. See Froman v. Kirland, 753 So.2d 114, 116 (Fla. 4th DCA 1999); Chassan Prof'l Wallcovering, Inc., v. Victor Frankel, Inc., 608 So.2d 91, 93 (Fla. 4th DCA 1992). The county court’s dismissal order specifically states that the voluntary dismissal is without prejudice.

While in prior rulings the circuit court and this court correctly held that the voluntarily dismissed county court case no longer existed and the county court was without jurisdiction to transfer it to the circuit court, see Randle-Eastern Ambulance Serv., 360 So.2d at 69, those rulings simply explained the effect of the prior voluntary dismissal and do not constitute a determination of the merits. Nor do these rulings dispose of Brown’s argument that the complaint was refiled on December 11, 1998, in the circuit court, in time to comply with the applicable four-year statute of limitations, which expired on December 30, 1998.

The county court motion practice and consequent appeals all occurred because the circuit court clerk thought that Brown was attempting to transfer a viable county court action, since Brown included the county court docket number on the complaint he filed in the circuit court on December 11, 1998. While Brown’s mistake induced the rejection of the complaint by the circuit court clerk, the erroneous use of the county court docket number should not be regarded as a fatal pleading defect, particularly when dealing with a pro se complaint. See Eichelberger v. Brueckheimer, 613 So.2d 1372, 1373 (Fla. 2d DCA 1993) (stating that “pro se pleadings are entitled to liberal construction, and a petition will not be dismissed simply because it is mislabled”).

The failure to obtain summonses and to serve them after the filing of the complaint does not warrant dismissal of the action with prejudice, since filing of the complaint with the court within the statute of limitations period commences the action for purposes of compliance with the statute of limitations. Pratt v. Durkop, 356 So.2d 1278, 1280 (Fla. 2d DCA 1978); Szabo v. Essex Chem. Corp., 461 So.2d 128, 129 (Fla. 3d DCA 1984). The summonses obviously were not served within 120 days of the filing of the complaint, as required by rule 1.070(j). The rejection of the complaint by the circuit court clerk could constitute a basis for a claim of excusable neglect for the failure to effect such service. See Skrbic v. QCRC Assocs., 761 So.2d 349, 351 (Fla. 3d DCA 2000), rev. denied, 789 So.2d 348 (Fla.2001). A dismissal under rule 1.070(j) is not an adjudication on the merits. See Thomas v. Silvers, 748 So.2d 263 (Fla.1999). But if such a dismissal order is entered after expiration of the statute of limitations, precluding timely refiling of the action, given Florida’s “long-standing policy in favor of resolving civil disputes on the merits,” and the intent that rule 1.070(j) serve as “a case management tool” and not as “a severe sanction,” it ordinarily is an abuse of discretion not to allow additional time for service of the summonses even in the absence of a showing of good cause or excusable neglect. Chaffin v. Jacobson, 793 So.2d 102, 103-104 (Fla. 2d DCA 2001); see also Kohler v. Vegar-Maltes, 838 So.2d 1249 (Fla. 2d DCA 2003); Britt v. City of Jacksonville, 874 So.2d 1196 (Fla. 1st DCA 2004).

The complaint should not have been dismissed on the basis of expiration of the statute of limitations, and there does not appear to be another viable ground for dismissal of the action on the merits. To the extent the complaint may have suffered from some pleading deficiencies, Brown, who had not previously amended his complaint other than to increase the amount of damages sought necessitating the transfer between courts, should not have suffered dismissal of the complaint without leave to amend. See Trotter v. Ford Motor Credit Corp., 868 So.2d 593, 595 (Fla. 2d DCA 2004); Reed v. Mims, 711 So.2d 169, 172 (Fla. 3d DCA 1998).

Conclusion

Accordingly, the order on appeal is reversed and the matter remanded to the circuit court for further proceedings in accordance with this decision.

Reversed and remanded.

DAVIS and SILBERMAN, JJ., Concur.


author: MONACO, J.

text:
    David E. CONANT, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2343.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.
    David E. Conant, Zephyrhills, Pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

David E. Conant appeals the summary denial of his amended motion filed pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure, to correct illegal sentence. In essence, Mr. Conant argues that the trial court erred in using a single scoresheet at sentencing, even though his crimes were committed under different versions of the sentencing guidelines. He may be correct.

In Burgess v. State, 705 So.2d 701 (Fla. 5th DCA 1998), we held that when a criminal defendant is being sentenced after violating probation for a pre-1994 offense and for a post-1993 offense, two separate scoresheets must be used in order to assure that each “straddled” felony is sentenced under the guidelines in effect at the time of that particular offense. See also Dillard v. State, 728 So.2d 725 (Fla.1999). In the present case we are concerned because the trial court appears to have used a single scoresheet in sentencing Mr. Co-nant to prison after he violated probation.

The single scoresheet provided to this court lists the primary offense as Case No. 94-35643 (a crime committed in 1994), and an “additional offense” as Case No. 93-33737 (a crime committed in 1993). He was sentenced to prison in Case No 94-35643 after he was found to have violated his previously imposed probation. His sentence in that case appears to have been ordered to run concurrently with his sentence in Case 93-33737. If this accurately reflects how he was sentenced, then certainly Mr. Conant is entitled to be resen-tenced in accordance with the requirements of Burgess.

The State suggests that as the trial court was only scoring one crime, only one scoresheet was required. The face of the scoresheet, however, reflects that both a primary and an additional offense were being scored (as opposed to a primary offense and an older offense being scored as part of the defendant’s prior record). An additional offense is, by definition, another offense pending before the court for sentencing. See Fla. R.Crim. P. 8.701(d)(4) and 3.702(d)(4). Thus, the scoresheet facially reflects that both cases were before the trial court for sentencing, and that the offenses underpinning those two cases were committed when two different versions of the guidelines were in effect.

If, as the State posits, only one offense was pending before the trial court for sentencing, then the scoresheet is still erroneous, as the court should not have scored the crime charged in Case No. 93-38737 as an additional offense. Likewise, if two scoresheets were, in fact, prepared, then they should have been provided to this court in connection with this appeal. Because the trial court did not either address these issues in its order, or attach portions of the record refuting Mr. Conant’s allegations, we are compelled to reverse the order and remand either for resentencing after two scoresheets are prepared, or to attach the appropriate documents refuting conclusively the allegations made by Mr. Conant.

REVERSED and REMANDED.

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


author: PER CURIAM.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Petitioner, v. William J. CARTAGENA, Respondent.
    No. 5D04-2503.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.
    Mark D. Tinker of Fowler White Boggs Banker P.A., St. Petersburg, for Petitioner.
    Glenn Klausman of Jacobs & Goodman, P.A., Altamonte Springs, for Respondent.
   PER CURIAM.

The petition of Nationwide Mutual Fire Insurance Company for writ of certiorari with respect to the order of the Circuit Court sitting in its appellate capacity is dismissed, inasmuch as the petition was not filed in a timely fashion. See Fla. RApp. P. 9.100(c)(1) and 9.020(g). Accordingly, we have no jurisdiction for cer-tiorari review of the subject order.

PETITION DISMISSED.

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


author: THOMPSON, J.

text:
    Jorge Luis MUNOZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1634.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, 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.
   THOMPSON, J.

Jorge Luis Munoz appeals his convictions for conspiracy to traffic in more than 28 grams of heroin and for the sale and delivery of heroin. Munoz was sentenced to 30 years in prison with a 25-year minimum mandatory term on the conspiracy charge and to a concurrent 15-year sentence for the sale and delivery of heroine. The trial court also imposed a mandatory $50,000 fine. He also appeals the assessment of investigative costs of $818.30. We affirm the convictions finding no error, but we strike the imposition of costs and remand to give the state an opportunity to produce the appropriate documentation.

Section 938.27, Florida Statutes, (2001) requires the court to impose costs if requested and documented by the investigating agency:

(1) In all criminal cases, convicted persons are liable for payment of the documented costs of prosecution, including investigative costs incurred by law enforcement agencies, by fire departments for arson investigations, and by investigations of the Department of Financial Services or the Office of Financial Regulation of the Financial Services Commission, if requested by such agencies. These costs shall be included and entered in the judgment rendered against the convicted person.

At sentencing, the state referred the trial court to some paperwork regarding costs, but the paperwork is not in the record. The court imposed the $818.30, costs stating that the amount was the balance after the assessment against Munoz’s co-defendant. Section 938.27(6), Florida Statutes, places the burden on the state to substantiate the amount of costs. Although there was no objection at trial to this lack of substantiation, the error is preserved because Munoz unsuccessfully sought correction by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

We reverse this portion of the sentencing order with the proviso that the assessment may be reimposed if the state documents the investigative costs. See Tucker v. State, 832 So.2d 840 (Fla. 2d DCA 2002) (stating that “[w]hen costs of prosecution are imposed, the state must provide documentation for the costs, and the defendant must be given notice and an opportunity to be heard”). Such costs may be reimposed if the state can produce the required documentation at a noticed hearing. Hill v. State, 845 So.2d 310 (Fla. 2d DCA 2003); Terry v. State, 791 So.2d 1162 (Fla. 1st DCA 2001).

We affirm the convictions, strike the imposition of costs, and remand to provide the state an opportunity to comply with the procedural requirements of section 938.27.

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

PLEUS and MONACO, JJ., concur.


text:
    Roger CHAPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4161.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.
    Roger Chapman, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We treat this appeal as a petition for writ of certiorari. The petition is denied. See State v. Harris, 881 So.2d 1079 (Fla.2004); Murray v. Regier, 872 So.2d 217 (Fla.2002); and State v. Klein, 851 So.2d 274 (Fla. 5th DCA 2003).

PETITION DENIED.

PLEUS, ORFINGER and TORPY, JJ., concur.


author: TORPY, J.

text:
    Karl R. STEPHENS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-64.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.

      James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

After the defense challenged the state’s motivation for striking an allegedly African-American prospective juror, the state acknowledged that it did not have a race-neutral reason for the strike. Instead, the state contested that the prospective juror was African-American. Rather than resolve the factual dispute, the lower court ruled that, because the state attorney did not know the prospective juror’s race, a race-neutral explanation was unnecessary. We reverse and remand for a new trial.

Under Melbourne v. State, 679 So.2d 759, 764, n. 2 (Fla.1996), the defense objection was sufficient to require the trial judge to address its merits. Because the lower court failed to resolve the fact dispute regarding the prospective juror’s race, we must assume that the prospective juror was, in fact, African-American. Thus, it was incumbent on the state to offer a race-neutral reason for the strike, which it failed to do. Although the state attorney’s stated subjective belief that the juror was not a member of a distinct racial group might prove relevant to the trial court in assessing the credibility of the state’s proffered explanation for the strike, it does not alleviate this step in the Melbourne procedure.

REVERSED AND REMANDED.

PLEUS and ORFINGER JJ., concur.


author: SAWAYA, C.J.

text:
    Gamalier BONILLA, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1915.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.
    Gamalier Bonilla, Bowling Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, C.J.

Gamalier Bonilla appeals the summary denial of two motions he filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. He is entitled to relief here and is probably entitled to jail credit below. We leave the exact calculations to the trial court.

For an Orange County crime, Bonilla served time with the Department of Corrections, then was placed on probation in 1996. A violation of probation was issued in 1997, but Bonilla remained at liberty until he was arrested in Seminole County on December 2, 2002, for driving offenses, including DUI. On December 3, 2002, Bon-illa was released on his own recognizance for the Seminole County charges, but he remained detained in the Seminole County jail on “hold” because of the Orange County violation of probation warrant. Seminole County held Bonilla until January 25, 2003, when Bonilla was transferred to the custody of Orange County. Bonilla was found to have violated probation and was resen-tenced March 28, 2003, in Orange County to more prison time, with jail credit for the 63 days he had actually spent in the Orange County jail awaiting resentencing. He received probation for the traffic charges in Seminole County, to run consecutively to his Orange County sentence.

On appeal, Bonilla claims he is entitled to credit for the additional days that he spent in the Seminole County jail before he was physically transferred to Orange County. Bonilla argues that he would have been at liberty if not for the Orange County hold for violating probation. The trial court denied his request for relief on the basis of Gethers v. State, 838 So.2d 504 (Fla.2003), a recent Florida Supreme Court decision that upheld this court’s earlier decision in Price v. State, 598 So.2d 215 (Fla. 5th DCA 1992) (holding that a prisoner was only entitled to jail-time credit from the date that he was served with an arrest warrant on the other county’s charges, not from the date the county filed a detainer or hold against him).

In so ruling, the trial court overlooked an exception in Gethers that applies in Bonilla’s case: “Only if the prisoner is subject to release but is being held because a detainer has been lodged can it be said that the prisoner is in custody pursuant to the detainer.” Gethers, 838 So.2d at 507. Consequently, the law requires that the Orange County trial court peruse the Seminole County jail records to calculate Bonilla’s proper amount of credit for time served. Accordingly, we reverse the sentence and remand for further proceedings.

REVERSED and REMANDED.

THOMPSON and ORFINGER, JJ., concur.


text:
    Clifford HOPKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-3084.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 2004.
    Clifford Hopkins, South Bay, Pro se.
    No appearance for Appellee.
   PER CURIAM.

Clifford Hopkins appeals the order of the trial court summarily denying his Rule 3.850 motion. We affirm for two reasons. First, his Rule 8.850 motion concerning his criminal case that became final in 1996, is untimely. Second, his motion is successive. This court addressed the same essential issue raised here in its opinion growing out of an appeal from an order denying an earlier Rule 3.850 motion. See Hopkins v. State, 743 So.2d 171 (Fla. 5th DCA 1999).

AFFIRMED.

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


text:
    Robert L. WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-537.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
   DAVIS, Judge.

Robert L. Warren appeals the summary denial of his motion for postconviction DNA testing, filed pursuant to Florida Rule of Criminal Procedure 3.853. Warren seeks to have DNA testing performed on evidence collected during the investigation that preceded his conviction for rape.

This court previously held that Warren’s rule 3.853 motion was facially sufficient and instructed the trial court to order the State to respond. See Warren v. State, 851 So.2d 817 (Fla. 2d DCA 2003). After obtaining the State’s response, the trial court accepted the State’s conclusion that the evidence for which Warren requested DNA testing no longer exists. The trial court then summarily denied Warren’s rule 3.853 motion.

The documents provided by the State to show that the evidence listed in Warren’s motion for postconviction DNA testing no longer exists create a factual dispute as to whether the evidence still exists for testing. These documents cannot be relied on to support the summary denial of a facially sufficient rule 3.853 motion for postconviction relief. See Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003); Jakeway v. State, 884 So.2d 290 (Fla. 2d DCA 2004). Accordingly, we reverse the order of the trial court and remand for the trial court to conduct an evidentiary hearing, pursuant to the requirement set forth in rule 3.853, and make a factual determination as to whether the evidence still exists for testing.

Reversed and remanded.

CASANUEVA and VILLANTI, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Terry William SALIVA, Petitioner, v. Cynthia L. NOLIN, Respondent.
    No. 2D04-593.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
    Terry William Saliva, pro se.
    Lori W. Clifford of Roberts & Engval-son, P.A., Fort Myers, for respondent.
   NORTHCUTT, Judge.

Terry W. Saliva filed a petition for writ of prohibition, which we treat as an appeal of a nonfinal order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). Saliva and his former wife, Cynthia L. Nolin, were divorced in 1994. In a separate action filed in 2003, Nolin petitioned to terminate Saliva’s parental rights as to the parties’ child pursuant to section 39.806, Florida Statutes (2003). She also filed an “Emergency Motion to Suspend Respondent’s Contact and Visitation with Minor Child, and For Issuance of Restraining Order (Injunction for Protection) Against Respondent.” The circuit court entered an ex parte order providing that “[i]f the Father has a request for contact, he must bring that request before the Court prior to attempting contact with the mother or the child.”

Saliva sought a writ of prohibition, contending that this order improperly altered his visitation rights. It is clear, however, that the order did not modify the parties’ final judgment of dissolution of marriage or any visitation order flowing therefrom. Rather, the court entered an ex parte injunction for protection pursuant to its authority under section 784.046, Florida Statutes (2003).

We note that the court should have denied the motion because Nolin failed to comply with the procedural prerequisites set forth in the statute. However, section 784.046(6)(c) provides that an ex parte temporary injunction for protection shall be effective for a fixed period not to exceed fifteen days. The order at issue here was entered on January 29, 2004. Although the order did not indicate when the temporary injunction would expire and did not schedule a date for a return hearing as required by the statute, it is clear from the record before this court that the injunction has expired. Therefore, this appeal is moot.

Appeal dismissed.

CASANUEVA, J„ and GREEN, OLIVER L., Senior Judge, Concur.


text:
    Donald W. ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1819.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
   PER CURIAM.

Donald W. Adams appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of the issues raised by Adams without discussion. Although we requested supplemental briefing regarding a potential issue relating to the charging document, we conclude that any such issue must first be addressed by the trial court. Therefore, we affirm without prejudice to any right Adams may have to file a timely, legally sufficient postconviction motion in the trial court. See Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004).

Affirmed.

CASANUEVA, SILBERMAN, and VILLANTI, JJ., concur.


text:
    Ervin BRADSHAW, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3743.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
   DAVIS, Judge.

Ervin Bradshaw filed a notice of appeal from the summary denial of his motion for postconviction relief. Subsequently it was discovered that the motion and the order under appeal were lost. Therefore the order appealed from is vacated and this cause is remanded for Bradshaw to refile his motion for postconviction relief within sixty days of the date of the mandate in this case. The trial court shall consider his motion filed as of the date of the filing of the original motion, April 14, 2004. See Parrish v. Parrish, 389 So.2d 8 (Fla. 3d DCA 1980).

Vacated and remanded.

CASANUEVA and VILLANTI, JJ., Concur.


text:
    Heriberto GALINDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3744.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2004.
   DAVIS, Judge.

Heriberto Galindez filed a notice of appeal from the summary denial of his motion for postconviction relief. Subsequently it was discovered that the motion and the order under appeal were lost. Therefore the order appealed from is vacated and this cause is remanded for Galindez to refile his motion for postconviction relief within sixty days of the date of the mandate in this case. The trial court shall consider his motion filed as of the date of the filing of the original motion, April 5, 2004. See Parrish v. Parrish, 389 So.2d 8 (Fla. 3d DCA 1980).

Vacated and remanded.

CASANUEVA and VILLANTI, JJ., Concur.


author: WEBSTER, J.

text:
    DIRECT GENERAL INSURANCE COMPANY, Appellant, v. Erma Harris MORRIS, Appellee.
    No. 1D03-2984.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2004.

      David B. Falstad of Allen, Kopet & Associates, PLLC, Orlando, for Appellant.
    Jeremy E. Cohen, Tallahassee, for Ap-pellee.
   WEBSTER, J.

Appellant seeks review of two questions certified by the county court in a summary final judgment to have statewide application and be of great public importance: (1) whether the Florida personal injury protection (PIP) statute requires the payment of mileage reimbursement for travel to necessary medical treatment; and (2) whether the same statute requires the payment of mileage reimbursement for attendance at a compulsory medical examination. We accept jurisdiction (see Fla. R.App. P. 9.160(e)(2)); answer the first question in the negative; and, accordingly, reverse as to that issue. We decline to address the second question because we conclude that the trial court’s decision as to that issue may be affirmed based upon construction of the applicable language of the parties’ insurance contract.

I.

Appellee, who is insured by appellant, argued in the trial court that appellant was required to reimburse her for mileage driven traveling to receive necessary medical treatment by Florida’s PIP statute (§ 627.736(l)(a), Fla. Stat. (2001)), which states that insurance policies including PIP coverage must provide for the payment of medical benefits at the rate of “[ejighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services.” The trial court agreed, entering judgment in appellee’s favor for amounts claimed as reimbursement for mileage driven traveling to receive necessary medical treatment. Because the sole issue before us is whether, based upon stipulated facts, as a matter of law, the PIP statute requires reimbursement for mileage driven traveling to receive necessary medical treatment, our standard of review is de novo. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003) (“[a] trial court’s ruling on a motion for summary judgment posing a pure question of law is subject to de novo review”); Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998) (“judicial interpretation of Florida statutes is a purely legal matter and therefore subject to de novo review”).

As the trial court and the parties acknowledge, a disagreement exists among our district courts of appeal regarding entitlement pursuant to the PIP statute to reimbursement for mileage driven traveling to receive necessary medical treatment. The Fifth District has held that an earlier (but substantively indistinguishable) version of the statute requires the payment of mileage reimbursement for travel to necessary medical treatment. Hunter v. Allstate Ins. Co., 498 So.2d 514 (Fla. 5th DCA 1986). The Fourth District has reached the opposite conclusion, certifying conflict with Hunter. Malu v. Sec. Nat’l Ins. Co., 848 So.2d 373 (Fla. 4th DCA 2003), review granted, 870 So.2d 822 (Fla.2004). The Third District subsequently agreed with the analysis and result in Malu, also certifying conflict with Hunter. Padilla v. Liberty Mut. Ins. Co., 870 So.2d 827 (Fla. 3d DCA 2003), review granted, 870 So.2d 822 (Fla.2004).

We have carefully considered the analysis in the trial court’s order, the arguments of the parties, and the decisions in Hunter, Malu and Padilla. Having done so, we believe that Malu and Padilla are the better-reasoned opinions. In particular, it seems to us that, had the legislature intended to require mileage reimbursement for travel to necessary medical treatment, it would have said so, given the language used. We will not imply any such intent in the absence of any language remotely supporting such a reading. We agree with the holding in Malu and Padilla for the reasons expressed in those opinions; hold that the PIP statute does not require the payment of mileage reimbursement for travel to necessary medical treatment; reverse the trial court; and certify conflict with Hunter.

II.

Appellee also argued in the trial court that appellant was required to reimburse her for mileage driven traveling to a compulsory medical examination set by appellant. She claimed that such a result was required by both the PIP statute (§ 627.736(7), Fla. Stat. (2001)) and her insurance policy. The PIP statute requires insureds to submit to examination by a physician when requested by an insurer if the insured’s, “mental or physical condition ... is material to any claim that has been or may be made for past or future [PIP] benefits....” Id. The statute further provides that “[t]he costs of any examinations requested by an insurer shall be borne entirely by .the insurer.” Id. Similarly, the insurance policy provides that appellee “shall submit to mental or physical examinations at our expense when and as often as we may reasonably require.” The trial court agreed with appel-lee that reimbursement was required by both the PIP statute and the policy, and entered judgment accordingly. Again, our standard of review is de novo. See, e.g., Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003) (“[a] trial court’s ruling on a motion for summary judgment posing a pure question of law is subject to de novo review”); Auto-Owners Ins. Co. v. Marvin Dev. Corp., 805 So.2d 888, 891 (Fla. 2d DCA 2001) (as a general matter, because “the interpretation of an insurance contract is a question of law,” “[t]he applicable standard of review is de novo”). Because we conclude that the trial court correctly held that the parties’ insurance contract requires that appellant reimburse appellee for mileage driven traveling to a compulsory medical examination set by appellant, we find it unnecessary to address the second question certified by the trial court — i.e., whether the PIP statute also requires such a result.

The insurance policy requires ap-pellee (as the insured) to “submit to mental or physical examinations at our [%.&., appellant’s] expense when and as often as we [i.e., appellant] may reasonably require.” (Emphasis added.) The phrase “at our expense” is not defined. “Words and phrases in an insurance policy, when not specifically defined therein, ‘must be given their everyday meaning and read in light of the skill and experience of ordinary people.’ ” Siegle v. Progressive Consumers Ins. Co., 788 So.2d 355, 359-60 (Fla. 4th DCA 2001) (quoting from Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636, 638 (Fla. 3d DCA 1994)), approved, 819 So.2d 732 (Fla.2002). According to at least one dictionary, the most common meanings of the noun “expense” are “cost or charge.” The Random House Dictionary of the English Language 680 (2d ed. unabridged 1987). According to that same dictionary, another common usage of the word is as “money paid as reimbursement for such charges: to receive a salary and expenses.” Id. We believe that an ordinary person reading the language in the parties’ insurance contract would conclude that appellant was responsible for all expenses incurred by the insured as a result of appellant’s demand that he or she submit to a mental or physical examination. We find appellant’s argument that the language is intended to limit its obligation to the examining physician’s bill strained and unpersuasive, and inconsistent with the most commonly understood meaning of the words used. Clearly, in most cases, traveling to a compulsory medical examination will involve cost, whether in the form of bus or taxi fare or wear and tear on one’s personal vehicle. Given the language of the parties’ policy, we hold that such a cost constitutes an expense which must be reimbursed by appellant. Accordingly, we affirm the trial court’s decision to that effect.

III.

In summary, we reverse the trial court’s summary final judgment to the extent it holds that the Florida PIP statute requires the payment of mileage reimbursement for travel to necessary medical treatment; and affirm that portion of the summary final judgment that awarded appellee reimbursement for mileage driven traveling to a compulsory medical examination set by appellant on the basis that such was required by the parties’ insurance contract, without reaching the question of whether Florida’s PIP statute also requires such a result.

AFFIRMED IN PART; and REVERSED IN PART.

WOLF, C.J. and BARFIELD, J., concur.


author: HAWKES, J.

text:
    Marion SAPP, Appellant, v. BERMAN BROS. and et al., Appellees.
    No. 1D03-2730.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2004.

      Daniel J. Glary, Jacksonville, for Appellant.
    Mary Ann Stiles and Rayford H. Taylor; Stiles, Taylor & Grace, P.A., Tampa/Atlanta, for Appellees.
   HAWKES, J.

Marion Sapp, the claimant, appeals the Judge of Compensation Claims’ (JCC) order denying him psychiatric treatment and additional temporary benefits. Only two issues merit discussion. The first issue is whether the JCC erred by denying the claim for psychiatric treatment when both the claimant and the Employer/Carrier (E/C) stipulated to providing the claimant with such treatment prior to the final merits hearing. The second issue is whether the JCC erred by denying the claimant’s request for additional temporary benefits because the claimant had not yet reached overall maximum medical improvement (MMI). We reverse and remand.

Stipulation to Psychiatric Treatment

“A JCC is not required to follow a stipulation which is refuted by competent substantial evidence (CSE).” Jacobs v. Volker Stevin Constr., et al., 609 So.2d 132, 133 (Fla. 1st DCA 1992) (citation omitted). However, stipulations should not be ignored or set aside, without a showing of fraud, overreaching, misrepresentation, or some other basis that would void the agreement. See Williams v. Kraft, Inc., 585 So.2d 1120, 1121 (Fla. 1st DCA 1991).

Prior to the hearing, the JCC noted the E/C stipulated the claimant could receive some psychiatric treatment. During the E/C’s opening statement, the E/C mentioned such treatment would be provided by a specified psychiatrist, who had previously treated the claimant. The JCC’s order noted the psychiatrist felt the claimant had not reached psychiatric MMI. However, the JCC was concerned that while the psychiatrist recommended further treatment, he did not specifically say “psychiatric” treatment. The JCC found the psychiatrist’s testimony did not constitute CSE, and denied the claim for psychiatric treatment.

There is no evidence of fraud, overreaching, or misrepresentation, by either party in obtaining the stipulation to providing psychiatric treatment. There is no indication the stipulation was overridden by CSE, and, in fact, it seems CSE supports the claim. Because the JCC erred by overriding the stipulation, that portion of the order is reversed, and on remand, the JCC shall enter an order awarding psychiatric treatment to the claimant.

Lack of Psychiatric Work Restrictions is Not Dispositive

Where a claimant has reached physical MMI and has physical work restrictions, but has not reached psychiatric MMI, a JCC cannot deny a claim for temporary disability benefits, based solely on the lack of psychiatric work restrictions. See Rojas v. United Sheet Metal, 832 So.2d 174, 175 (Fla. 1st DCA 2002). See also Greber v. Tallahassee Dev. Center, 778 So.2d 999, 1000 (Fla. 1st DCA 2000) (claimant cannot be denied temporary benefits unless there is CSE of both physical and psychiatric MMI).

After noting the psychiatrist found the claimant had not yet reached psychiatric MMI, the JCC denied additional benefits because she found no record evidence the claimant was unable to work due to a work related psychiatric condition. Because the claimant had not yet reached psychiatric MMI, and because a lack of psychiatric work restrictions does not per se preclude an award of benefits, the JCC erred by denying the claim for additional temporary benefits on this ground alone. Due to this erroneous finding, the JCC did not address whether the claimant met his burden of proving entitlement to benefits based “upon a change in employment status due to a compensable injury.” Publix Supermarket, Inc. v. Hart, 609 So.2d 1342, 1343 (Fla. 1st DCA 1992). We reverse that portion of the order and remand for the JCC to make such a determination.

We affirm the JCC’s order on all other issues without discussion.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

ERVIN and ALLEN, JJ., concur.

      . Stipulations are enforceable when dictated on the record, as here, but may be abrogated if they appear manifestly contrary to the evidence. See Fla. R. Work. Comp. P. 4.142(b)(2) (2002), and Fla. R. Work. Comp. P. 4.142(e) (2002).


text:
    Dan SCHMIDT, Appellant, v. James V. CROSBY, Jr., Secretary, Florida Department of Corrections, Appellee.
    No. 1D02-0023.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2004.
    Dan Schmidt, appellant, pro se.
    Charlie Crist, Attorney General, and Joe Belitzky, Senior Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

We dismiss this appeal as being taken from nonñnal, nonappealable orders. Because there is no basis for granting either mandamus or prohibition relief, appellant’s request that we treat the appeal as invoking the court’s jurisdiction to issue those extraordinary writs is denied.

ALLEN, VAN NORTWICK and BROWNING, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    STATE of Florida, Appellant, v. Maurice FULKS, Appellee.
    No. 2D03-2476.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellant.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellee.
   ALTENBERND, Chief Judge.

The State appeals Maurice Fulks’ downward departure sentence for grand theft and aggravated assault. Despite the best intentions of the trial judge, we must reverse.

Mr. Fulks had two cases pending when he attended a pretrial conference on May 21, 2003. In the newer case, case number 02-21275, Mr. Fulks was charged with grand theft and aggravated assault for events occurring on December 12, 2002. In the older case, case number 00-02899, Mr. Fulks had pleaded guilty to possession of cocaine and had been placed on probation. As a result of the newer offenses, an affidavit of violation of probation was pending in this older case.

At the pretrial conference, the trial court initially suggested to the defendant that he accept concurrent five-year terms of imprisonment for the newer offenses and the violation of probation. When the trial court made this suggestion, the parties believed that these sentences would be slightly above the minimum sentence that could be imposed under the Criminal Punishment Code. Thereafter, the parties realized that both the newer case and the older case must be combined and scored on a single scoresheet. When the new scoresheet was calculated, the judge’s proposal became a significant downward departure.

The trial judge felt honor-bound to leave this proposal available to the defendant. The defendant accepted the proposal over the State’s objection. When the State required a reason for this downward departure, the trial court stated: “Having made my offer, I was not going to go back on my offer if it was accepted here today.” No reason for the downward departure was ever reduced to writing. Accordingly, the trial judge sentenced Mr. Fulks to concurrent five-year terms of imprisonment for both cases. The State appealed only the sentence imposed in the newer case.

The downward departure sentence in the newer case must be reversed. “Mutual mistake of law” is not a valid basis for departure. See § 921.0026(1), Fla. Stat. (2001). Even if it were, the trial court would have been required to reduce the reason to writing. See Franquiz v. State, 682 So.2d 536 (Fla.1996). Accordingly, the sentence in the newer case must be reversed. On remand, Mr. Fulks must be provided the option of withdrawing his plea in both cases.

Reversed and remanded.

WHATLEY and CANADY, JJ., Concur.


author: WARNER, J.

text:
    Rolando OTERO, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2170.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm the order of revocation of probation against appellant’s attacks on the trial court’s jurisdiction. Appellant’s claims have either been previously litigated or were not raised during the trial court proceedings.

In a prior appeal, we considered appellant’s challenge to the trial court’s jurisdiction in which he claimed he was never on probation for . his crimes. Otero v. State, 793 So.2d 1115 (Fla. 4th DCA 2001). We reversed and remanded to allow the state to produce an order placing appellant on probation. In the subsequent proceeding, the state found and presented the order of probation, and the trial court denied the motion to correct the sentence. We per curiam affirmed that order. Otero v. State, 857 So.2d 891 (Fla. 4th DCA 2003). During the pendency of that appeal, the trial court conducted a hearing on the state’s affidavit of violation of probation. The court revoked appellant’s probation, and he appeals.

In this appeal, appellant again challenges the original order of probation on the same ground he raised in the prior appeal, even though this ground was not raised as an issue in his revocation proceeding. Appellant cannot relitigate issues decided previously. See Vaughan v. State, 765 So.2d 56, 56 (Fla. 4th DCA 2000) (“The law of the case doctrine applies when the defendant seeks to litigate a specific issue decided on the merits in an earlier post conviction proceeding regarding the legality of the sentence.”); Sheffield v. State, 605 So.2d 1323, 1324-25 (Fla. 1st DCA 1992) (finding ruling in prior appeal was law of the case precluding consideration of the same issue in subsequent appeal).

Appellant raises a new claim on appeal that the original order of probation violates Villery v. Florida Parole & Probastion Commission, 396 So.2d 1107 (Fla. 1980). This claim was also not raised in the trial court. In any event, Villery is inapplicable under the facts of this case. See Tobin v. State, 401 So.2d 938 (Fla. 1st DCA 1981); cf. Knight v. State, 522 So.2d 1076 (Fla. 4th DCA 1988).

Finally, appellant claims that the court was without jurisdiction to proceed on the revocation because of the pending appeal on his Florida Rule of Criminal Procedure 3.800 motion. We disagree. The issues before the trial court during the revocation proceeding consisted' only of the facts of the probation violation. The court’s resolution of the revocation issues would not interfere with our jurisdiction to determine the issues in the prior appeal. See Lindsay v. State, 842 So.2d 1057, 1059 (Fla. 4th DCA 2003).

Affirmed.

GUNTHER and HAZOURI, JJ., concur.


author: RAMIREZ, J.

text:
    Rodolfo G. ORTIZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1230.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2004.
    Rodolfo G. Ortiz, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, FLETCHER, and RAMIREZ, JJ.
   ON MOTION FOR REHEARING DENIED

RAMIREZ, J.

Rodolfo G. Ortiz has moved for rehearing of our per curiam affirmance of the trial court’s order denying his motion to correct an illegal sentence pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. He claimed in his motion that his sentence was illegal because it violated due process in that the sentence imposed was vindictive. He alleged that before the start of trial, the court asked the State what was the plea offer. The State responded by explaining what their offer was before trial and what it would be requesting if Ortiz was convicted.

Ortiz relies on Wilson v. State, 845 So.2d 142, 156 (Fla.2003), which condemned judicial participation in plea negotiations followed by a harsher sentence. Ortiz’s motion, however, fails to allege judicial participation in any plea negotiations. In denying his motion, the trial court explained that the plea offer was made by the State, not the judge.

In his motion for rehearing before us, Ortiz argues that the trial judge participated in the negotiations, but he has not produced any evidence to corroborate his allegation. To raise an “illegal sentence” claim under rule 3.800(a) of the Rules of Criminal Procedure, 1) the error must have resulted in an illegal sentence, 2) the error must appear on the face of the record, and 3) the motion must affirmatively allege that the court records demonstrate on their face an entitlement to relief. Jackson v. State, 803 So.2d 842, 844 (Fla. 1st DCA 2001). This third requirement would necessitate more than mere conclu-sory allegations, but must, at a minimum, show how and where the record demonstrates an entitlement to relief. Id.

Ortiz has neither alleged nor has he attached any documentary proof that the judge participated in any plea negotiations. Therefore, as the trial court explained, there would be no factual basis for a finding of vindictiveness.

Rehearing is denied.


text:
    Jose R. CASTANEDA, a minor, through his natural parent and next friend, Ana CARDONA, and Ana Cardona, individually, Appellants, v. REDLANDS CHRISTIAN MIGRANT ASSOCIATION, INC., a Florida corporation, Appellee.
    No. 4D03-2309.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.

      Jose G. Rodriguez, P.A. and Dirán V. Seropian of Edna L. Caruso, P.A., West Palm Beach, for appellants.
    Barbi Feldman Meyer of Law Office of Bohdan Neswiacheny, for appellee.
   WARNER, J.

A minor, Jose Castaneda, was injured in a fall from playground equipment at a daycare center. His mother sued the daycare center for his personal injuries. At trial, the court refused to permit the plaintiff to read excerpts of the depositions of employees of the daycare center, which were presented as admissions, instead requiring the plaintiff to prove unavailability of the witnesses. We hold that Florida Rule of Civil Procedure 1.330(a)(1) permits the use of a deposition at trial as an admission regardless of the availability of the witness for trial. We therefore reverse for a new trial.

Jose Castaneda was three years old when he fell off playground equipment at Redlands Christian Migrant Association’s Delray Beach childcare center and broke his left arm. Apparently, he was playing on the platform attached to a horizontal ladder and was instructed by a teacher that he was not permitted to play there. He ignored the teacher’s instruction and continued playing on the platform before jumping or falling off and injuring his arm. Through his mother, Ana Cardona, Castaneda sued Redlands for negligence. Specifically, he alleged Redlands failed to adequately supervise the children under its-care; failed to adequately train the teachers watching the children; failed to maintain an adequate teacher to student ratio; failed to warn of dangerous or inappropriate activities; negligently selected, installed, and maintained playground equipment; and negligently hired employees. Red-lands denied any negligence.

Castaneda’s attorney took depositions of the Redlands employees who Were present at the daycare center on the date of the accident. At trial and prior to the presentation of testimony, he informed the court that he would read excerpts of their depositions instead of calling the employees as witnesses. Redlands objected on the ground that Castaneda failed to lay a predicate that the witnessed were unavailable to testify, as required by Florida Rule of Civil Procedure 1.330(a)(3). Castaneda maintained that he was entitled pursuant to Rule 1.330(a)(1), to introduce the deposition testimony instead of live testimony pursuant to Florida Rule of Civil Procedure 1.330(a)(1). The trial court rejected Castaneda’s reading of Rule 1.330(a)(1), concluding that it preferred live testimony and the depositions could be used only if Castaneda could prove that the witnesses were unavailable to testify. • All of the witnesses were still employees of Red-lands.

After presentation of the evidence, the jury returned a verdict for Redlands. Castaneda moved for a new trial alleging, inter alia, that the court erred in refusing to permit him to use the employee depositions. The court denied the motion, prompting this appeal.

While the standard of review for admissibility of evidence is abuse of discretion, a trial court’s discretion is limited by the rules and statutes governing the admission. See Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001).

Florida Rule of Civil Procedure 1.330 states in pertinent part:

(a) Use of Depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice of it so far as admissible under the rules of evidence applied as though the witness were then present and testifying in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness or for any purpose permitted by the Florida Evidence Code.
The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena; (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used; or (F) the witness is an expert or skilled witness.

(Emphasis added). Section (a) permits the use of a deposition as though the witness was present and testifying, in four different circumstances. Castaneda relies on section (a)(1), which allows the use of any deposition for impeachment “or for any purpose permitted by the Florida Evidence Code.” The underlined portion of this section was added in 1998, upon the recommendation of the Civil Procedure Rules Committee of The Florida Bar. See In re Amendments to Fla. Rules of Civil Procedure, 718 So.2d 795 (Fla.1998). The Committee notes for this amendment state:

Subdivision (a)(1) was amended to clarify that, in addition to the uses of depositions prescribed by these rules, depositions may be used for any purpose permitted by the Florida Evidence Code (chapter 90, Fla. Stat.). This amendment is consistent with the 1980 amendment to Rule 32 of the Federal Rules of Civil Procedure.

Id. at 798. Section 90.803, Florida Statutes (2002), states in pertinent part:

The provision of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
(18) Admissions. — A statement that is offered against a party and is:
(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship....

(Emphasis added). Because Castaneda was offering excerpts of the deposition testimony against Redlands as admissions, they were permitted by the Florida Evidence Code and thus admissible regardless of availability of the witnesses.

Statements of employees within the scope of their employment and during its existence are admissible in Florida:

Florida courts have consistently admitted into evidence statements by employees concerning matters arising from the course of their employment under the doctrine of admissions. It is important to note that such statements are admissible because they are the admissions of a party-opponent or adverse party and not because they are declarations against interest. The differences between these two well-recognized exceptions to the hearsay rule are: an admission is made by a party to the litigation, while a declaration against interest is made by a non-party; an admission comes into evidence despite the presence at trial of its author, while the general hearsay rule concerning unavail-ablity of the declarant applies in the case of declarations against interest. The statement sought to be introduced as an admission need not have been consciously against the interest of its maker at the time it occurred, while the declarant in the case of the other hearsay exception must have been aware of a risk of harm to his own interests at the time he spoke.

Hunt v. Seaboard Coast Line R. Co., 327 So.2d 193, 195-96 (Fla.1976) (citations omitted). Under this definition, the statements of the Redlands employees are admissions within the meaning of section 90.803(18)(d) as the statements concerned matters regarding this specific accident arising from their employment and were made while the deponents were still employees of Redlands.

Similarly, as noted in the Law Revision Council Note to section 90.803:

In Gordon v. Hotel Seville, Inc., 105 So.2d 175, 177 (Fla.3rd Dist.1958), certiorari denied, 109 So.2d 767 (Fla.1959) the court stated:
An admission against interest made by an employee in the course of and within the scope of his employment and relating to a matter which is not beyond the penumbra of his duties or employment, is a recognized exception to the hearsay rule, and such a statement by the employee will be admissible against the employer as an admission against interest.

Section 90.803, Fla. Stat., Law Revision Council Note — 1976. We therefore conclude that the statements in the depositions of the Redlands employees are admissible as admissions under section 90.803(18). As the introduction of these statements is “permitted by the Florida Evidence Code,” they are admissible under Rule 1.330(a)(1) regardless of the witnesses’ availability to testify.

We analogize the introduction of employee depositions as admissions to the introduction of the deposition of a party or of the officer, director, or managing agent of a party, which may be done for any reason pursuant to Florida Rule of Civil Procedure 1.330(a)(2). In LaTorre v. First Baptist Church of Ojus, Inc., 498 So.2d 455 (Fla. 3d DCA 1986), the trial court refused to admit the deposition testimony of a director of the defendant corporation. The plaintiff was required to call the witness live, and his testimony differed from the deposition. The court held it was error to exclude the deposition, even though the plaintiff used it to impeach the live testimony. 498 So.2d at 458. The court said:

The rule is clear: “The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent [of a corporation that is a party] ... may be used by an adverse party for any purpose.” Fla. R.Civ.P. 1.330(a)(2); Vecsey v. Vecsey, 115 So.2d 719 (Fla. 3d DCA 1959). See also Hill v. Sadler, 186 So.2d 52 (Fla. 2d DCA) (error to require defendant to place plaintiff on stand as adverse witness in lieu of reading his deposition), cert. denied, 192 So.2d 487 (Fla.1966). Such a deposition may be used notwithstanding that the deponent is available to testify at the trial.

Id. (citations omitted). See also W.E. Cooper v. Atl. Coast Line R.R. Co., 187 So.2d 673 (Fla. 1st DCA 1966). The same rule was applied to a company “representative” in Canales v. Compania de Vapores Realma, S.A., 564 So.2d 1212, 1213-14 (Fla. 3d DCA 1990). These cases illustrate that the Rules of Civil Procedure have been interpreted by the Florida Courts as being clear and unambiguous with respect to the use of depositions at trial and without regard to whether the deponent is also available to testify at trial. Failure to permit the use of deposition testimony when authorized pursuant to the Rules is reversible error.

Redlands cites Friedman v. Friedman, 764 So.2d 754 (Fla. 2d DCA 2000), as support. This case is entirely distinguishable, although the court expresses concern that Rule 1.330(a)(1), combined with the application of the Rules of Evidence, might lead to the admission of most discovery depositions as substantive evidence. 764 So.2d at 754. There, the trial court had admitted the deposition of a non-party witness as substantive evidence pursuant to Rule 1.330(a)(1), even though the witness’s unavailability had apparently not been proven, because it found the deposition was permitted under the evidence code as “former testimony” under section 90.803(22), even though it was taken as a discovery deposition in the same proceeding. The appellate court found that coupling these provisions might lead to the conclusion that every discovery deposition could be admissible in evidence. Because the statute permitted admissibility of former testimony only when “the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination,” the court held that the deposition was not admissible as former testimony as an attorney taking or attending a discovery deposition does not have a similar motive to develop testimony as would be present when one takes the deposition for the specific purpose for use at trial. Id. at 755. It determined that the trial court erroneously admitted the deposition testimony but found it harmless. Friedman is thus distinguishable from the present case, where the deposition statements were proffered as admissions.

We note, however, that at least one federal court has taken a contrary view, not in the interpretation of Federal Rule of Civil Procedure 32, the federal counterpart of Rule 1.330, but in whether, despite the Rule, a trial court may still refuse the use of deposition testimony in preference to a witness present at the trial. In Coletti v. Cudd Pressure Control, 165 F.3d 767 (10th Cir.1999), plaintiff sought to introduce segments of depositions of defendant’s employees as admissions. While the court agreed that plaintiff was entitled to introduce the depositions as admissions under Rule 32, and it was immaterial that the witnesses were available to testify, it nevertheless considered the admission of deposition testimony as within the sound discretion of the trial court. 165 F.3d at 773-74. Even though the trial judge ignored the provisions of Rule 32, the court found that the record showed no abuse of discretion or prejudice to the plaintiff. Id. at 774. The trial court had offered to allow plaintiff to use the depositions for impeachment, but she failed to avail herself of that opportunity and apparently did not call the witnesses live. While the plaintiff explained that calling the witnesses live would destroy her trial strategy, the court saw no reason to “allow[ ] her to utilize her own method of getting her point across, ‘when another, at least equally effective method of getting that same point across was easily available.’ ” Id. (quoting King & King Enters. v. Champlin Petroleum Co., 657 F.2d 1147, 1165 (10th Cir.1981)).

Florida does not allow such discretion on the part of the trial courts to ignore the Rules of Evidence or the Rules of Civil Procedure. Failure to follow the Rules constitutes an error of law, not an abuse of discretion. While the application of the Rules to a particular fact pattern may require the use of discretion, the interpretation of the Rules does not. We therefore conclude that the trial court erred in refusing to permit Castaneda to use the deposition testimony from the Redlands employees.

Castaneda also raises the failure of the trial court to admit the testimony of, and a memorandum written by, the Red-lands employee in charge of safety issues at the daycare center. The court excluded this evidence on the ground that it constituted evidence of subsequent remedial measures. We agree that at least a portion of the memorandum was admissible as it dealt with the cause of the accident. However, this information was actually admitted at trial through a portion of the employee’s deposition read to the jury. Therefore, the error was harmless. As to the exclusion of evidence of prior similar accidents, of which Castaneda also complains, the court did not abuse its discretion because Castaneda failed to present evidence demonstrating a sufficient similarity between the prior accidents and the one at issue in this case. See Lasar Mfg. Co. v. Bachanov, 436 So.2d 236, 238 (Fla. 3d DCA 1983).

We affirm as to the issues on cross-appeal. The objection to the admission of voluntary safety guidelines and standards that came into existence after the accident was not preserved for review. See Horne v. Hudson, 772 So.2d 556, 557-58 (Fla. 1st DCA 2000). The trial court also did not abuse its discretion in admitting the testimony of the vocational rehabilitation expert. Moreover, as to this issue, Redlands has not supplied a complete record as we do not have a transcript of Dr. Kelly’s deposition that was played for the jury on videotape and had a bearing on the expert’s testimony. It is incumbent upon the parties to assure that when videotapes or audiotapes are played at trial, the court reporter transcribes this testimony for purposes of appeal, or that a transcribed copy of the video deposition is included in the record. Failure to do so results in an incomplete record and the possibility of an affirmance on this ground. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). In this case, we affirm on the merits of the issue and not for lack of a record.

Reversed and remanded for a new trial.

STONE, J., and BRYAN, BEN L., JR., Associate Judge, concur.

      . This case was tried prior to the 2003 amendment of section 90.104(l)(b), Florida Statutes, which dispensed with the necessity of a contemporaneous objection at trial where a prior definitive ruling on the record has been made on the objection.


text:
    Tavares FARRINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4373.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Tavares Farrington, appeals his conviction and sentence for two counts of robbery with a firearm, which arose from separate incidents. The court denied his request for a severance of the two charges. We reverse, concluding that severance of the unrelated crimes was required.

On the afternoon of September 13, 2001, Thomas Grinsted’s car stalled in Riviera Beach, Florida as he was driving home. While he was looking under the hood, a young man of slight build walked by him, continued to walk for about thirty feet, and then returned. The man walked up behind Grinsted, pushed something into his lower back, and reached into Grinsted’s back pocket, trying to take his wallet. Grinsted pulled away and the man pulled a gun out from under his shirt, telling Grinsted to give him the wallet or he would kill Grinsted. Grinsted gave him the wallet. This confrontation lasted for about thirty seconds. At trial, Grinsted was able to make a positive identification of Farrington as the person who had robbed him. He also identified the gun Farrington was carrying.

Just after midnight on September 14, 2001, Domingo Santos was driving home from work in Lake Worth, Florida. He noticed a car tailgating him into his subdivision. Santos parked in his driveway and was about to open his front door when a young man with short braided hair walked up and pointed a gun at him. Santos started screaming, and the man demanded that Santos give him the bag Santos was holding. Santos threw the man the bag, and the robber ran away. Santos called 911, and the police arrived quickly. A BOLO was issued for a car matching the description of the car that had followed Santos. Within ten minutes, a car with four people inside was stopped. Two of the suspects in the vehicle had a very similar appearance and matched the description given by Santos. One was Far-rington and the other was a woman who looked like a man. Santos identified Far-rington, by an eighty percent likelihood, as being the man who robbed him.

At trial, when asked by the state whether he saw the man who robbed him in the courtroom, Santos responded, ‘Well, I believe it could be him” while pointing to Farrington. After a colloquy by the state about his level of certainty, the state again asked whether Farrington was the person who robbed him, and Santos replied “yes, yes.” He was cross-examined as to the level of certainty of his identification. The jury found Farrington guilty of both counts of robbery.

Prior to trial, Farrington had moved to sever the two robbery counts in the information. He claimed the only connection between the two robberies was that some property belonging to the victim of the first robbery was found in the vehicle involved in the second robbery. Trying the two counts together would be prejudicial because the evidence of the first crime would bolster the proof of the other. The trial court held two hearings on the issue but eventually denied the motion. Far-rington challenges his conviction because of the denial of his motion to sever.

Florida Rule of Criminal Procedure 3.150(a) provides that “[t]wo or more offenses that are triable in the same court may be charged in the same indictment or information in a separate count for each offense, when the offenses ... are based on the same act or transaction or on 2 or more connected acts or transactions.” Rule 3.151 permits the consolidation of related offenses, which it defines as “2 or more offenses ... triable in the same court and ... based on the same act or transaction or on 2 or more connected acts or transactions.” Fla. R.Crim. P. 3.151(a). However, a defendant has the right to severance of unrelated offenses, as provided in Rule 3.152(a)(1), which states, “In case 2 or more offenses are improperly charged in a single indictment or information, the defendant shall have a right to a severance of the charges on timely motion.” “[0]ffenses are ‘connected acts or transactions’ within the meaning of [3.150(a)] if they occurred within a single episode. Thus, ‘the rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in both or all instances.’ ” Ellis v. State, 622 So.2d 991, 999 (Fla.1993) (quoting Wright v. State, 586 So.2d 1024, 1029-30 (Fla.1991)). “Courts may consider ‘the temporal and geographical association, the nature of the crimes, and the manner in which they were committed.’ However, interests in practicality, efficiency, expense, convenience, and judicial economy, do not outweigh the defendant’s right to a fair determination of guilt or innocence.” Id.

The supreme court determined that crimes could be joined for trial where they were part of a “crime spree” interrupted by no significant period of respite. Id. The court used Bundy v. State, 455 So.2d 330 (Fla.1984), as an example. In Bundy, the defendant attacked four women, killing two, at a sorority house in Tallahassee and, within an hour, attacked another woman in a duplex just a few blocks from the sorority house. In Rolling v. State, 695 So.2d 278, 295-96 (Fla.1997), the court found “temporal continuity” where the defendant, within a seventy-two hour period, stabbed to death five college students in their apartments in the same general vicinity of Gainesville, Florida.

We examined the issue of temporal continuity in Rohan v. State, 696 So.2d 901, 902 (Fla. 4th DCA 1997), abrogated on other grounds by State v. Smith, 840 So.2d 987 (Fla.2003), and noted that cases finding a “spree” require similarity of criminal conduct as well as temporal and geographical proximity. Reviewing the supreme court precedent, we concluded that the trial court did not err in refusing to sever two counts of burglary with an assault or battery, which occurred within forty-five minutes of each other at locations about a twenty minute car ride apart. 696 So.2d at 902-03. In each crime, a man with a speech impediment tried to force himself into the apartment of a woman. Id. at 902.

In Stephens v. State, 863 So.2d 434 (Fla. 4th DCA 2003), we concluded that two crimes had been improperly joined where one was the theft of an SUV and the other was the burglary of a car at a gas station. The theft of the SUV occurred in Boynton Beach and later that morning the burglary of the car, during which a purse was stolen, occurred in North Palm Beach at a gas station where the stolen SUV was observed. While we said that it might be “arguable” the two crimes had temporal and geographical proximity, we found that the offenses were not similar. 863 So.2d at 436.

Here, we find that the two crimes did not consist of a crime spree so that they could be joined for trial. The Grinsted robbery occurred around eight hours prior to the Santos robbery and the crimes occurred in geographically separate locations. Although both were robberies, they were not sufficiently similar in that one was committed by the perpetrator acting alone and on foot, while the other was committed through the use of a vehicle with four occupants following the victim to his home before accosting him. As these crimes were not similar and there was no temporal or geographical proximity, the crimes were not “connected acts or transactions” under Rule 3.150(a) and could not properly be joined for trial.

Moreover, the prejudice from the joinder of the robbery counts is obvious. While Grinsted was positive of his identification of Farrington, Santos was less so. Grinsted’s positive identification of Far-rington as the man who robbed him could have bolstered Santos’s identification of Farrington for the second robbery, even though a second similar-looking suspect was present. Thus, the error in joining the two crimes was not harmless.

As a second issue, Farrington claims that he should have been entitled to a judgment of acquittal because the identifications given by Grinsted and Santos were not positive. We completely disagree that Grinsted did not positively identify Farrington in connection with the first crime. As to Santos, whose testimony as to his confidence in his identification was equivocal, this issue was a question for the jury to resolve. See Harris v. State, 129 Fla. 733, 177 So. 187, 188 (1937). It is for the jury to weigh the probative value of a witness’s equivocal identification of an accused. Downer v. State, 375 So.2d 840, 847 (Fla.1979).

We reverse and remand for new trials on the severed counts of robbery.

GUNTHER and HAZOURI, JJ., concur.