author: MONACO, J.

text:
    Lynn AUSTIN, Appellant, v. James CROSBY, etc., Appellee.
    No. 5D03-1834.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.

      Lynn Austin, Lowell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for Appellee.
   MONACO, J.

We are presented by this appeal with the question concerning whether mandamus is the proper remedy for compelling prison officials to honor an inmate’s request to be allowed to perform certain religious rites in prison. We hold because the appellant has not demonstrated that she has an established legal right to be permitted to perform these rites, and because the appellee does not have an indisputable ministerial duty, mandamus does not lie.

The appellant, Lynn S. Austin, an inmate in the custody of the Florida Department of Corrections (“DOC”), filed a petition for writ of mandamus in circuit court alleging that the DOC has refused to allow her to “observe, participate in, or perform sacred rituals, rites, or ceremonies on the evenings of and/or specified times for Es-bats and Subbats as part of her Wiccan religion.” She asserted in the lower court and asserts again on appeal that DOC has violated her First Amendment right to free exercise of religion by its refusal to honor her demand.

Wicca is a form of neo-paganism, a belief system and way of life based upon a modern reconstruction of pre-Christian Celtic traditions. It recognizes both male and female manifestations of divinity, and its festal times are tied to the cycles of nature. See Goodman v. Carter, 2001 WL 755137 (N.D.Ill.2001). Wicca has been recognized as a religion by the federal courts, and its status as a religion does not appear to be challenged by DOC in the present case. See Dettmer v. London, 799 F.2d 929 (4th Cir.1986), cert. denied, 483 U.S. 1007, 107 S.Ct. 3234, 97 L.Ed.2d 739 (1987).

Ms. Austin requested specifically that she and other inmates of the Wiccan faith be taken outside for time periods not to exceed one hour when the moon is visible on the dates of the full moon for private Esbat celebratory rituals. Ms. Austin explains in her brief that the “Drawing Down of the Moon ritual” is performed on the Esbat of the monthly full moon. She asserts that the rituals are essential to the exercise of her religious faith.

After the trial court issued an order to show cause, the DOC argued, first, that mandamus was not the appropriate remedy, and secondly, that Ms. Austin failed to establish a clear legal right to the relief she was seeking. The trial court agreed and denied the petition. Ms. Austin appeals the order denying relief.

Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputably ministerial duty required by law. See Adams v. State, 560 So.2d 321, 322 (Fla. 1st DCA 1990). It may only be granted if there is a clear legal obligation to perform a duty in a prescribed manner. See Milanick v. Town of Beverly Beach, 820 So.2d 317, 320 (Fla. 5th DCA 2001). A duty or act is ministerial when there is no room for the exercise of discretion, and the performance being required is directed by law. See Shea v. Cochran, 680 So.2d 628, 629 (Fla. 4th DCA 1996); PCA Life Ins. Co. v. Metro. Dade County, 682 So.2d 1102, 1103 (Fla. 3d DCA), review denied 661 So.2d 825 (Fla.1995); Lee County v. State Farm Mut. Auto. Ins. Co., 634 So.2d 250, 251 (Fla. 2d DCA 1994).

Thus, to be entitled to mandamus relief, Austin must demonstrate a clear legal right to have the DOC permit her to celebrate the described rituals, an indisputable legal duty on the part of the DOC to do so, and the absence of an adequate remedy. See Butler v. City of Melbourne Police Dep’t, 812 So.2d 547, 548 (Fla. 5th DCA), review denied, 835 So.2d 265 (Fla.2002); Hall v. Key, 476 So.2d 787, 788 (Fla. 1st DCA 1985); State, Dep’t of Health & Rehabilitative Servs. v. Hartsfield, 399 So.2d 1019, 1020 (Fla. 1st DCA 1981). That is to say, as the purpose of mandamus is not to establish a legal right, but is instead to enforce a right that is already clearly established by law, Ms. Austin must demonstrate that she is unequivocally entitled as a matter of right to the relief that she is seeking. See Milanick, 820 So.2d at 320; see also Florida League of Cities v. Smith, 607 So.2d 397, 400-01 (Fla.1992); State ex. rel. Glynn v. McNayr, 133 So.2d 312 (Fla.1961).

In the present case Ms. Austin simply does not demonstrate the possession of a clear legal right to require DOC to allow her to participate in the rituals. The reason lies in the particular tension between the retained constitutional rights of inmates, and the requirements of prison authorities' • to safely and properly operate prison facilities.

Prison inmates do not lose all of their constitutional rights upon incarceration. See Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). These rights are, however, “necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security.” See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). Thus, “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. 2254. Courts must consider in this regard: whether there is a valid, rational connection between prison regulation and legitimate governmental interest put forward to justify the regulation; whether there are alternative means of exercising rights that remain open to inmates; whether accommodation of asserted rights will have a significant “ripple effect” on fellow inmates or prison staff; and whether there is a ready alternative to regulation that fully accommodates prisoners’ rights at de minimis cost to valid penological interest. See Id. at 89-90, 107 S.Ct. 2254.

In order to establish a violation of the right of free exercise of religion, an inmate must demonstrate that the prison system burdened the practice of his or her religion by preventing the inmate from engaging in conduct required by his or her faith, and made its decision to burden the practice without a justification that is reasonably related to legitimate penological interests. See Id. at 89, 107 S.Ct. 2254. In the present case the DOC has made some accommodations to permit Ms. Austin to practice her Wiccan rites. She has, for example, been permitted to purchase religious study materials and to purchase and wear religious medallions; to participate in daily meditation; to use tarot cards; and to set aside personal study time. DOC argues, however, that to allow Ms. Austin to participate with other Wic-cans in private ceremonies outside of the prison housing facilities presents security risks that are unacceptable. Ms. Austin has failed to demonstrate that this concern is unwarranted or that it is not reasonably related to legitimate penological interests, such that she has an absolute right to practice this aspect of her belief system.

It is quite clear, therefore, that mandamus is not appropriate. Ms. Austin does not have a clear legal right to participate in Esbats and Subbats,, and DOC does not have an indisputable ministerial duty required by law to accommodate her participation in such rituals. Rather, the issue she raises calls for the exercise of reasonable penological judgment, and reasonable institutional security considerations have been voiced by DOC. Under these circumstances we fully agree with the trial court’s denial of the petition for mandamus. See Walker v. Blackwell, 411 F.2d 23 (5th Cir.1969); Wilson v. Moore, 270, F.Supp.2d 1328 (N.D.Fla.2008).

AFFIRMED.

SHAEP, W„ and TORPY, JJ„ concur.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    Ronald E. DAHLY, Appellant, v. Maxine DAHLY, Appellee.
    No. 5D03-1695.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.

      Ronald E. Dahly, Orlando, pro se.
    George C. Kelley, Apopka, for Appellee.
   PALMER, J.

Ronald E. Dahly (the son) appeals the probate court’s order finding Ronald N. Dahly’s (the father) will and codicil invalid. Concluding that the evidence of record does not support the probate court’s ruling, we reverse and remand with instructions to admit the father’s unaltered will and codicil to probate.

On October 19,1977, the father executed his last will and testament. The original will was followed by a codicil prepared by an attorney on February 2, 1984. The father passed away on January 16, 2003.

Two weeks after the father died, appel-lee Maxine Dahly (the wife) filed a petition for administration attaching a copy of the father’s will thereto. The will named the father’s former wife and step-daughter as his personal representatives; however, both women had predeceased the father. In her petition for administration, the wife requested that the probate court appoint her to be the personal representative of the father’s estate and that she be treated as a pretermitted spouse.

In response to the wife’s petition, the son filed a petition requesting the court to order the wife to produce the original copy of the father’s will, and a separate petition objecting to the wife’s request to be appointed as personal representative of the father’s estate. Of particular importance to the instant case, in response to the son’s petitions the wife submitted the father’s original will to the court for probate. However, the original document was marked up (allegedly by the father), indicating a desire by the father to eliminate certain paragraphs, to change some of the wording, and to add heirs. Included on the will was a note signed by the father with the words: “Please draw up new will making all changes noted here.”

The matter proceeded to a hearing on the pending motions. During the hearing the wife raised for the first time the issue of whether the father’s will was valid in light of the fact that several provisions had been altered. Upon review of the arguments presented, the probate court entered an order finding the father’s will and codicil invalid and non-enforceable. The son challenges this ruling, arguing that the father’s elimination of certain moot paragraphs and the attachment of a signed note containing instructions to an unspecified party to draw up a new will fails to comply with the statutory formalities required for will revocation, and therefore, the father’s will and codicil, in its unaltered form, must be admitted to probate. We agree. -

Section 732.502 of the Florida Statutes sets forth the requirements for executing a will in Florida:

732.502 Execution of wills.—
Every will must be in writing and executed as follows:
(1) (a) Testator’s signature.—
1. The testator must sign the will at the end; or
2. The testator’s name must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.
(b) Witnesses. — The testator’s:
1. Signing, or
2. Acknowledgment:
a. That he or she has previously signed the will, or
b. That another person has subscribed the testator’s name to it, must be in the presence of at least two attesting witnesses.
(c) Witnesses’ signatures. — The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.
(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator’s handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.
(3) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.
(4) A codicil shall be executed with the same formalities as a will.

§ 732.502, Fla. Stat. (2002). Section 732.505 of the Florida Statutes sets forth the statutory requirements for revocation of a will by writing:

732.505Revocation by writing.—
A will or codicil, or any part of either, is revoked:
(1) By a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only so far as the inconsistency.
(2) By a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.

§ 732.505, Fla. Stat. (2002). Section 732.506 sets forth the statutory requirements for revocation by act:

732.506. Revocation by act
A will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation.

§ 732.506, Fla. Stat. (2002).

Strict compliance with the probate statutes is required in order to effectuate both an execution and a revocation of a will or codicil. In re Estate of Tolin, 622 So.2d 988 (Fla.1993). Therefore, when a decedent fails to observe the formalities for execution of a will his attempt at a partial revocation must be declared invalid. In re Skifflet’s Estate, 170 So.2d 96 (Fla. 3d DCA 1964). Furthermore, when an attempted partial revocation of a will or codicil is found invalid, the will or codicil as originally written must be admitted to probate. Id.

Here, the father’s attempt to revoke portions of his will by lining through the name of the designated personal representative, placing the word “delete” over certain paragraphs in the will, and placing his signature with the words, “Please draw up a new will making all changes noted here” on a note in the adjoining margin failed to meet the statutory requirements for revocation. To that end, the father did not burn, tear, cancel, deface, obliterate, or destroy the will for the purpose of revocation. Rather, he apparently attempted to modify some but not all of the terms of his existing will. Additionally, and perhaps more importantly, the father did not sign the altered will at the end of the document, nor did he have any attesting witnesses to the altered document. Consequently, the probate court erred in concluding that the father’s actions constituted revocation. See Cioeta v. Estate of Linet, 850 So.2d 562 (Fla. 4th DCA 2003)(holding that a line through names of some of the named personal representatives on a copy of father’s first codicil, and the word “deleted,” the date “6-21-96,” and decedent’s signature next to the stricken names on left margin of the copy was an invalid partial revocation of the codicil, where revocation did not strictly comply with state’s testamentary statutes, in that decedent did not sign the altered first codicil at end of the document, and he had no attesting witnesses to the attempted partial revocation); Taft v. Zack, 830 So.2d 881 (Fla. 2d DCA 2002)(explaining that the decedent’s act of drawing a line through the name of the personal representative and next to it writing the word “void” and her initials was ineffective because the decedent failed to comply with these statutory requirements: the decedent did not sign the altered will at the end; her name was not subscribed at the end of the will by another person in her presence and at her direction; and there were no attesting witnesses to the altered will). Compare In re Wider’s Estate, 62 So.2d 422 (Fla.1952)(holding that in will contest evidence sustained findings that testator, after executing his will, intentionally and effectively revoked such will by cutting out his signature and the signatures of witnesses).

REVERSED and REMANDED.

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

      . See 732.507(1), Fla. Stat. (2002).


author: THOMPSON, J.

text:
    Arthur C. DELIDLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3234.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.

      Arthur C. Delidle, Indiantown, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

Arthur C. Delidle appeals the summary denial of this motion -for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.853. Relying upon Zollman v. State, 854 So.2d 775 (Fla. 2d DCA 2003) and Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003),. Delidle argues the trial court should have afforded him an evidentiary hearing to determine if DNA evidence existed. We disagree and affirm.

In 1992, Delidle entered pleas of guilty to sexual battery while armed and robbery with a deadly weapon. He was sentenced to concurrent 40-year sentences, as agreed in the plea negotiations. He now contends that the state coerced the pleas by stating it had DNA evidence.

He argues that the trial court erred when it denied his motion without an evidentiary hearing to make a factual determination whether testable evidence still exists. Delidle’s reliance upon Zollman and Borland is misplaced. In each of those cases, the Second District Court of Appeal held that if a defendant was tried and convicted, and requests an evidentiary hearing pursuant to Rule. 3.853, the trial court could' not deny the request based upon an unsworn response or even a sworn affidavit from the state. The difference between the instant case and Zollman and Borland is that unlike the defendants in those cases, Delidle did not go to trial. The predicate to post conviction relief is that the defendant was convicted after a trial. See § 925.11(l)(a), Fla. Stat. (2003). Recently, in Stewart v. State, 840 So.2d 438 (Fla. 5th DCA 2003), this court opined: “A defendant who enters a plea of guilty or nolo contendere may not seek post conviction DNA testing based on language of the statute.” Accord Smith v. State, 854 So.2d 684 (Fla. 2d DCA 2003); Reighn v. State, 834 So.2d 252 (Fla. 1st DCA 2002).

affirmed!

PETERSON and MONACO, JJ., concur.


author: ORFINGER, J.

text:
    Immon Nabil IBRAHIM, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1584.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.

      James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Immon Nabil Ibrahim appeals the amount of restitution imposed after he pled guilty to burglary of a dwelling and grand theft. Ibrahim and his co-defendants burglarized the victim’s home, stealing a safe containing valuables. After a hearing, the trial court ordered restitution in excess of $40,000 for the items taken.

Ibrahim contends that the court erred when it ordered restitution for the stolen safe, which the victim testified cost $350, but was replaced with a more secure safe at a cost of $1,007. There was no testimony as to the fair market value of the safe at the time it was taken.

Generally, fair market value, not replacement value, is the correct measure of damages. J.F.H. v. State, 849 So.2d 1151, 1152 (Fla. 5th DCA 2003). Fan-market value takes into consideration not only the purchase price, but the manner in which the item was used, its condition and depreciation. Korica v. State, 791 So.2d 543, 544 (Fla. 2d DCA 2001). Fair market value of the property should be used for restitution purposes, unless that amount will not fully compensate the victim. State v. Hawthorne, 573 So.2d 330 (Fla.1991). Additionally, the State concedes that the trial court erroneously awarded restitution in the amount of $2,400 for an 18 carat gold rope chain, when the victim testified that the value of the chain at the time of the theft was $2,300.

We affirm the restitution order except as to the two items referenced herein. On remand, the court shall reduce the restitution award for the gold chain by $100. The State may request a new restitution hearing to establish the fair market value of the safe if it so chooses. See 849 So.2d at 1152. Otherwise, the value assigned by the trial court for the safe shall be stricken.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PETERSON and THOMPSON, JJ., concur.

      . In its answer brief, the State argues other errors in the restitution order. As those matters were not preserved for appeal, we need not consider them.


author: PETERSON, J.

text:
    Bradley NEWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3861.
    District Court of Appeal of Florida, Fifth District.
    Feb. 13, 2004.
    Bradley Newman, Punta Gorda, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PETERSON, J.

Bradley Newman appeals the denial of his Florida Rules of Criminal Procedure 3.800(a) motion seeking additional jail and prison credit. He originally received concurrent probationary split sentences of three years in prison followed by three years probation after entering a no contest plea to two counts of robbery. Newman completed the incarceration portion of his sentence, but violated the conditions of his probation. The trial court revoked his probation and re-sentenced him to four years in prison. We find merit only in the appeal of the trial court’s denial of prison credit, .

Newman complains that the trial court failed to check off the appropriate box on the sentencing forms that would have awarded credit for time previously served in prison. He claims that he is entitled to 791 days of prison credit for the time he “physically spent” in prison prior to his violation of probation. The assistant state attorney candidly advised the trial court that Newman was entitled to that credit, but the trial court denied relief reasoning that Newman’s claim was premature citing Rood v. State, 790 So.2d 1192 (Fla. 1st DCA 2001). Rood held' that when the Department of Corrections fails to credit a prisoner with prison time awarded by the trial court, the prisoner must first exhaust the available administrative remedies and then, if necessary, file a petition for writ of mandamus in the circuit court. However, in Rood, unlike in the instant case, there was no claim that the trial court failed to award prison credit. The Rood complaint was that the Department of Corrections failed to credit the prison time.

Andrews v. State, 822 So.2d 540 (Fla. 2d DCA 2002), dealt with almost identical circumstances, including the denial of a 3.800(a) motion. Andrews alleged that the trial court failed to award prison credit because the boxes labeled “prison credit” on the sentences were left blank. The Second District Court of Appeal reversed and remanded with instructions to the trial court to exercise its responsibility to place a check in the appropriate box concerning prison credit. See also Downing v. State, 779 So.2d 562, 563 (Fla. 2d DCA 2001); Thistle v. State, 769 So.2d 1149 (Fla. 5th DCA 2000) (“Although it is permissible for the trial court to delegate to [the Department of Corrections] the administrative task of calculating the amount of prison credit which is due, it is the trial court’s responsibility to order that such - credit be provided.”).

Newman’s request of credit for jail time is denied, but we reverse and instruct the tidal court on remand to order that prison credit be provided.

REVERSED and REMANDED.

SHARP, W. and GRIFFIN, Jj., concur.


author: DAVIS, Judge.

text:
    A.D., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1372.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2004.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

A.D. challenges the trial court order adjudicating her delinquent based on a charge of felony criminal mischief. We agree with A.D. that the State failed to prove that the amount of damage exceeded the $1000 statutory threshold required to support a felony criminal mischief charge. Accordingly, we reverse the order adjudicating A.D. delinquent for committing felony criminal mischief and remand to the trial court with directions to amend the adjudication of delinquency to reflect the fact that it is based on a finding that A.D. committed the delinquent act of misdemeanor criminal mischief, not felony criminal mischief.

Pursuant to section 806.13(l)(b)(2), Florida Statutes (2002), if the damage resulting from criminal mischief is greater than $200 but less than $1000, the offense is a first-degree misdemeanor. However, if the damage exceeds $1000, it is a third-degree felony. ■§ 806.13(l)(b)(3). The delinquency petition here alleged that A.D. committed felony criminal mischief by damaging the vacant rental home owned by Mr. and Mrs. Swaan.

Although Mr. and Mrs. Swaan both testified that the damages to their rental home approximated $1200, the only evidence of actual damages consisted of $18 to replace a broken lock, an estimated $150 to replace a bathroom vanity, an estimated $125 to replace the bathroom sink top, and an estimated $50 — $60 charge for labor to repair the bathroom. They also testified that the electric bill was $140 when it should have been $25, which would amount to an additional $115 charge. However, the record is not at all clear that the additional $115 was not due to the prior tenants, who had moved out of the home approximately three weeks before this incident occurred. Additionally, although the victims testified regarding additional damages incurred at the rental home, they had not repaired or replaced the damaged items and had not obtained estimates to do so. At the conclusion of the testimony at the disposition hearing, defense counsel objected that the State had not proven value. The trial court concluded, however, after viewing photographs of the damages, that the State had presented a prima facie case.

Although it is permissible, pursuant to Clark v. State, 746 So.2d 1237 (Fla. 1st DCA 1999), for the trial court to conclude that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met, we do not believe that is the case here. While the photographs introduced by the State do show that the home was damaged in the ways testified to by the Swaans, the photographs do not demonstrate, even when considered along with the victims’ testimony regarding specific damage amounts, that the $1000 damage- threshold had been met;

While we conclude that the State sufficiently proved that A.D. committed misdemeanor criminal mischief given her admission to the officer that she had been inside the house partying and did not know where to extinguish her cigarettes, we do not believe that the $1000 damage threshold was established. We therefore vacate the finding of delinquency based on the felony criminal mischief charge and direct the trial court to instead base its finding of delinquency on a charge of misdemeanor criminal mischief.

Reversed and remanded with directions.

SILBERMAN and WALLACE, JJ, Concur.


author: HAZOURI, J.

text:
    Alexander D. CARESTIO and Lydia Carestio, individually, and on behalf of Marc Carestio, a minor child, Appellants, v. The SCHOOL BOARD OF BROWARD COUNTY, Eugene Cross, Marc Schettino and Arthur Brown, individually, Appellees.
    No. 4D03-1108.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Hilliard E. Moldof, Fort Lauderdale, for appellants.
    Dorsey C. Miller, III, of Haliczer Pettis, P.A., Fort Lauderdale, for appellee The School Board of Broward County.
   HAZOURI, J.

Alexander D. Carestio and Lydia Cares-tio filed suit on behalf of their minor son, Marc Carestio, against the Broward County School Board, Eugene Cross, Marc Schettino, and Arthur Brown. The complaint contains two counts based on violations of 42 U.S.C. § 1983 and two counts based on battery. The counts alleging violations of 42 U.S.C. § 1983 were removed to federal court and ultimately dismissed. The School Board filed a Motion for Summary Judgment on Count five, the claim of battery based on vicarious liability for the actions of its three employees. The trial court granted the motion and entered a Final Summary Judgment in favor of the School Board on the basis that sovereign immunity barred the claim against the School Board. The Carestios appeal the Final Summary Judgment. We reverse.

Section 768.28, Florida Statutes (1999), provides for a waiver of sovereign immunity in tort cases. However, section 768.28(9)(a) outlines a limitation on the State’s vicarious liability in certain circumstances. It states in relevant part:

The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

The standard of review when reviewing the entry of summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party. See Bruckner v. City of Dania Beach, 823 So.2d 167, 170 (Fla. 4th DCA 2002). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it. Id.

In Count five, it is alleged that Marc Carestio, a minor child, was physically assaulted by three employees of the School Board. The three employees, Cross, Schettino, and Brown, were employed as security officers at Marc’s school. On the day in question, Cross responded to a call by a teacher to escort Marc out of class for disruptive behavior. Cross escorted Marc across the campus to a room where students were often detained. At some point along the way Cross and Marc got into a disagreement. Marc alleges that Cross told him that he was “going to learn the hard way” and began to beat Marc about the head and body. Schettino and Brown allegedly approached the scene arid also participated in the assault by kicking and punching Marc.

In its Motion for Summary Judgment, the School Board argued that the actions taken by the employees, as alleged in the Complaint, if true, were undertaken with a wanton and willful disregard of human rights and safety and therefore, the School Board was entitled to judgment in its favor as a matter of law. However, the Carestios argue that the Florida Supreme Court’s decision in McGhee v. Volusia County, 679 So.2d 729 (Fla.1996), is controlling. We agree.

In McGhee, the plaintiff was arrested by a Volusia County deputy. Id. at 730. During booking procedures, he was handcuffed. He alleges that while he was handcuffed, the deputy lunged at him, grabbed him by the throat, and kicked him with force. The plaintiff brought suit against the individual deputy and Volusia County. The trial court dismissed the action as it pertained to Volusia County. The Florida Supreme Court reversed. The court analyzed a common law distinction between acts conducted by virtue of office and acts that are merely by color of office. Id. at 731. Acts conducted by virtue of office are acts that are within the authority of the officer, but done in an improper exercise of his authority or in abuse of the law. Id,. at 731 n. 4. Acts are by color of office if they involve a pretense of an official right to do an act made by one who has no such right. Id. at 731 n. 5. Under the common law, acts conducted by virtue of office may result in liability for the state agency; however, acts that are by color of office would not. The court recognized that the waiver of sovereign immunity contained in section 768.28 did not alter the common law definition of scope of employment. Id. at 731.

The court stated that an employing agency is immune as a matter of law only if the acts were so extreme as to constitute a clearly unlawful usurpation of authority that the deputy did not rightfully possess or if there was not even a pretense of lawful right in the performance of the acts. Id. The deputy had the lawful authority to restrain arrestees and respond with force in appropriate situations. The court reasoned that the fact that he may have intentionally abused his office does not in itself shield Volusia County from liability. The question must be put to the fact-finder whether the deputy acted in bad faith, with malicious purpose, or in a manner exhibiting wanton or wilful disregard of human rights, safety, or property. Id. at 733.

In the instant case, there is evidence that the employees, as security officers, had the authority to escort Marc from the classroom and restrain him if he became violent. Therefore the employees were acting within the scope of their authority. Under McGhee, the question should be put to the fact-finder whether the employees’ actions fall within the language of section 768.28(9)(a), making the School Board immune from liability. We reverse the entry of summary final judgment in favor of the School Board.

REVERSED.

POLEN and KLEIN, JJ., concur.

      . Count one alleges a violation of 42 U.S.C. § 1983 against Cross, Schettino, and Brown on the basis that they deprived Marc of his constitutional right not to be subject to excessive corporal punishment. Count three alleges a violation of 42 U.S.C. § 1983 against the School Board on the basis that it permitted and tolerated a pattern and practice of unjustified, unreasonable, and illegal use of force in corporal punishment against students by employees of the School Board. Count four alleges a claim of battery against Cross, Schettino, and Brown based on their physical assault of Marc. And, Count five alleges a claim of battery against the School Board on the basis that Cross, Schettino, and Brown were acting within the scope of their duties, authority, and employment when they physically assaulted Marc. The Complaint contains no Count two; the counts appear to have been inadvertently mis-numbered.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. C.E., a child, Appellee.
    No. 4D02-1894.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

In this case, the trial court dismissed the petition for delinquency filed against C.E. on speedy trial grounds. We reverse and find that the trial court erred in not affording the State the recapture period under Florida Rule of Juvenile Procedure 8.090(m)(3).

C.E. was arrested on January 15, 2002, and was subsequently charged by petition for delinquency on March 27, 2002, with delivery of cocaine and resisting arrest without violence. On April 24, 2002, C.E. filed a motion to discharge/dismiss the petition for delinquency on the basis that the ninety-day speedy trial period had expired on April 15, 2002, and he had been arraigned two days later, on April 17, 2002. On April 30, 2002, the trial court granted the motion to dismiss the delinquency petition. We reverse.

In C.D. v. State, 865 So.2d 605, 610 (Fla. 4th DCA 2004)(en banc), this court held that:

We adhere to the bright line that [Florida Rule of Juvenile Procedure 8.090] already provides. When a juvenile is taken into custody, the State is given ninety days to bring the case to trial. When that does not occur, the juvenile may, file a motion for discharge. The court must then set a hearing within five days to review the factors in subsection (d). If none of them apply, the State- is. given a ten-day window period within which to try the ease. If the State fails to bring the case to trial within those ten days, the juvenile is discharged. If one of the factors in subsection (d) is found to exist, then the State is given ninety days within which to try the case.

C.E. was arraigned only two days after the running of the speedy trial period, and the petition was filed prior to the expiration of the ninety-day speedy trial -period. The State is therefore entitled to the recapture window set forth in rule 8.090(m)(3). We reverse and remand so that the trial judge may review the- factors in subsection (d) of rule 8.090 and proceed accordingly.

REVERSED and REMANDED.

STEVENSON, GROSS and MAY, JJ., concur.


author: GROSS, J.

text:
    Tanya Truman HAUSS, f/k/a Tanya Truman, Appellant, v. Benjamin Samuel WAXMAN, German Vucetich and Ian Vucetich, Appellees.
    No. 4D02-3051.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Rehearing Denied March 18, 2004.

      Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, and Ronald P. Gos-sett of Gossett & Gossett, P.A. Hollywood, for appellant.
    Esther E. Galicia of George, Hartz, Lun-deen, Fulmer, Johnstone, King & Stevens, Fort Lauderdale, for appellee Samuel Benjamin Waxman.
   GROSS, J.

Tanya Truman Hauss, the plaintiff in the personal injury action below, appeals the denial of her post-trial motion for addi-tur. The defendant below, Benjamin Samuel Waxman, cross-appeals the trial court’s denial of his motion for remittitur.

We affirm, and write to explain our conclusion that Waxman’s motion for remitti-tur was untimely filed because it was not served within ten days after the return of the jury’s verdict.

The jury returned its verdict on November 8, 1999. On November 18, 1999, ten days later, Truman filed a motion for addi-tur or new trial on the issue of damages.

Fourteen days after the jury returned its verdict, on November 22, 1999, Wax-man filed a motion for remittitur. The motion was mailed to the plaintiffs counsel on November 19, 1999, eleven days after the jury returned the verdict.

The central question is whether a motion for remittitur is governed by Florida Rule of Civil Procedure 1.530(b) or 1.530(g).

Rule 1.530(b) states that “[a] motion for new trial or for rehearing shall be served not later than 10 days after the return of the verdict in a jury action _” (Emphasis added). A verdict is returned when it “is announced in open court;” the date when the verdict is filed with the clerk is immaterial. See Hialeah Hotel, Inc. v. Woods, 778 So.2d 314, 317 n. 4 (Fla. 3d DCA 2000).

Rule 1.530(g), on the other hand, states that “[a] motion to alter or amend the judgment shall be served not later than 10 days after entry of the judgment.... ” (Emphasis added).

The civil rules do not indicate whether a motion for remittitur falls under rule 1.530(b) or (g). If 1.530(b) applies, then the motion was untimely. If the motion for remittitur is treated as a motion to alter or amend the final judgment under rule 1.530(g), then the motion was timely filed because it preceded the entry of a final judgment.

To resolve this issue, we adopt the reasoning of Fire & Casualty Insurance Co. of Connecticut v. Sealey, 810 So.2d 988 (Fla. 1st DCA), review denied, 828 So.2d 385 (Fla,2002), which held that a remittitur motion is “essentially a conditional motion for new trial,” such that it must be filed within ten days of the return of the jury verdict. Id. at 991.

In Sealey, the jury returned a verdict for damages in favor of the plaintiff on February 9, 2001. Approximately three months later on May 10, 2001, the trial court entered a final judgment reflecting the verdict. The defendant had not filed any post-trial motions challenging the verdict up to this point in time.

On Monday, May 21, 2001, the defendant served three motions, including one for remittitur.

Ruling that a motion for remittitur was governed by the ten-day time limit of rule 1.530(b), the first district rejected the defendant’s contention that the motion for remittitur should be treated as a motion to alter or amend the judgment. The court provided examples of instances where a post-trial motion would be properly considered under 1.530(g):

A motion to alter or amend is most often used to correct a substantive error in the judgment itself. For instance, it would be proper to file a motion to alter or amend if the judgment did not accurately reflect the decision of the court. The function of the motion in this class of cases is to inform the court that an issue was not adjudicated in the judgment in the same way that it was decided.
It would also be proper to file a motion to alter or amend to correct an error in the adjudication of a post-verdict issue. If the trial judge had erred in reducing the jury award to account for collateral source benefits, for example, the error could be addressed in a motion to alter or amend. In this situation, the motion seeks to correct an error reflected only in the judgment and not in the underlying jury verdict. The aggrieved party could not present the issue in a motion for a new trial, because the error is not one that would have been committed at that time.
Finally, a motion to alter or amend may be used to correct a judgment to the extent that it was based on an error of law. As an illustration of this point, if the trial court enters a judgment in excess of the legal limit of the defendant’s liability, the defendant can correct the error by filing a motion to alter or amend the judgment.
The common feature of these cases is that the motion to alter or amend was used in each case to correct an error in the judgment itself, and not an error in the course of the proceeding leading up to the judgment. All prior errors in a civil case can be corrected on appeal from the final judgment; but the scope of a motion to alter or amend the judgment is much more limited. A motion to alter or amend must address an issue relating directly and exclusively to the judgment ....

Id. at 992-93 (citations omitted) (emphasis added).

Because the motion for remittitur was untimely filed, we are without jurisdiction to consider Waxman’s points on appeal that the trial court erred in denying his motion as it involved past medical expenses and a set-off for collateral source benefits. Id. at 993 (noting that jurisdictional defect bars appellate review).

AFFIRMED.

FARMER, C.J., and GUNTHER, J., concur.


text:
    Caleb PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4246, 4D03-4775.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Caleb Perkins, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to file a sworn motion pursuant to Florida Rule of Criminal Procedure 3.850 to address the scrivener’s error in the sentencing order for case number 02-2119CF10A. See Campbell v. State, 718 So.2d 886 (Fla. 4th DCA 1998)(holding that the failure of a written sentence to conform to the court’s oral pronouncement cannot be raised in a rule 3.800(a) motion).

POLEN, SHAHOOD and MAY, JJ., concur.


text:
    George JEAN a/k/a Jean George, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-216.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    George Jean a/k/a Jean George, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s pursuing his complaints of mistreatment from prison officials and staff through the administrative remedies available from the Department of Correction and, if necessary after exhausting same, filing a petition for writ of mandamus in the appropriate circuit court.

WARNER, POLEN and SHAHOOD, JJ., concur.


text:
    Lorenzo COLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2103.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.

      Nancy A. Daniels, Public Defender; Gary D. Wimsett, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Lorenzo Cole, appeals his convictions for fleeing or attempting to elude a law enforcement officer, driving with license suspended or revoked, and leaving the scene of an accident involving unattended property. Appellant contends that .the trial court,, after sustaining his objection to improper comments made by the State during the State’s closing argument, erred in denying his motion for mistrial as being untimely. We agree and reverse.

The State charged appellant with two counts of battery on a law enforcement officer, one count of depriving an officer of means of communication, one count of driving with license suspended or revoked, one count of leaving the scene of an accident involving unattended property, and one count of felony fleeing or attempting to elude a law enforcement officer. During the jury trial, the State introduced the testimony of two of the officers who arrested appellant. Appellant testified in his own defense and also presented the testimony of two other officers. During the State’s rebuttal closing argument, the prosecutor made the following comments:

It’s all a question, ladies and gentlemen, of who you’re going to believe. That’s what this whole case is about. Are you going to believe the law enforcement officers that took the stand and told you what happened to them or are you going to believe that story he gave you? That’s essentially what you have to think about....

So when you think about these defense questions, you got to think about how does it make sense with the rest of the evidence, and it doesn’t. Who do you believe, the officers or the story?

Appellant objected on the basis of improper argument, and the trial court sustained the objection. At the conclusion of- the State’s rebuttal, the trial court dismissed the jury for a brief recess before giving the jury instructions. Once the jury exited the courtroom, appellant’s counsel moved for a mistrial based on the State’s comments during closing argument. The trial court denied the motion solely on the grounds that it was not timely, noting that a motion for mistrial should have been made at the time that the initial objection was made. Following jury deliberations, appellant was found guilty of the counts of driving with license suspended or revoked, leaving the scene of an accident involving unattended property, and fleeing or attempting to elude a law enforcement officer. Appellant was found not guilty of the two counts of battery on a law enforcement officer and the count of depriving an officer of means of communication. This appeal followed.

Generally, to preserve an issue for appeal based on improper argument, counsel is required to object and request a mistrial. Nixon v. State, 572 So.2d 1336, 1340 (Fla.1990). For a defendant’s motion for mistrial to be timely it must be made at least by the end of the prosecutor’s closing argument. State v. Cumbie, 380 So.2d 1031, 1032 (Fla.1980). In its application of the Cumbie rule, Nixon stated that “a motion for mistrial need not be made in the next breath following the objection to the offensive remark.” Nixon, 572 So.2d at 1340-41. If counsel, after making an objection, fails to request a mistrial, counsel’s silence will be considered an implied waiver. Id. at 1340 (citing Clark v. State, 363 So.2d 331, 335 (Fla.1978), abrogated on other grounds, State v. DiGuilio, 491 So.2d 1129 (Fla.1986)).

In Cumbie, the supreme court was presented with the issue of whether, when the trial court sustains the defendant’s objection to an improper comment made by the prosecutor during the closing argument and admonishes the jury to disregard the improper remark, and the defendant does not move for mistrial until after the jury retires for deliberation, the motion for mistrial is not timely under the contemporaneous objection and motion for mistrial rule as set forth in Clark. Cumbie, 380 So.2d at 1032. The supreme court held that “for a defendant’s motion for mistrial to be timely it should have been made at least by the end of the prosecutor’s closing argument.” Id. The purpose of allowing a delay between the objection to the comment and the motion for mistrial is “[t]o avoid interruption in the continuity of the closing argument and more particularly to afford defendant an opportunity to evaluate the prejudicial nature of the objectionable comments in the context of the total closing argument.” Id. at 1033. Although the appellant in Cumbie made a timely objection to an improper comment made by the prosecutor in closing argument, which the trial court then sustained, he failed to move for a mistrial until after jury instructions and the retirement of the jury for deliberation, which was too late to preserve his objection for appeal. Cumbie, 380 So.2d at 1034.

In the civil context, we have accepted the trial court’s determination that a motion for mistrial was timely when the motion was made after all four opening statements had been presented and the jury had been excused from the courtroom. See White v. Consol. Freightways Corp. of Del., 766 So.2d 1228, 1233 (Fla. 1st DCA 2000). Under those facts, we held that the purpose of the contemporaneous objection rule had been satisfied. Id. Furthermore, by delaying the motion for mistrial until the jurors had left the courtroom, the appellants’ counsel avoided further emphasis of the objectionable comments. Id. (citing James v. State, 695 So.2d 1229, 1234 (Fla.1997)).

In the instant case, appellant’s counsel made a timely objection to the improper prosecutorial closing comment, and the trial court sustained the objection. Appellant’s motion for. mistrial was made immediately following the Statels closing argument while the jury was on recess and prior to the jury being given instructions and retiring for deliberations, thereby satisfying the purpose of the contemporaneous objection rule. See Cumbie, 380 So.2d at 1033-34; compare White, 766 So.2d at 1233 (holding that a motion for mistrial was timely when made at the close of four opening arguments and after the jury had recessed); with DuBoise v. State, 520 So.2d 260, 264 (Fla.1988) (holding that the appellant’s claim that the trial court erred in denying a motion for mistrial was not preserved because the appellant’s counsel did not move for mistrial until after the jury had been instructed and retired for deliberations); Jones v. State, 466 So.2d 293, 295 (Fla. 3d DCA 1985) (holding that the issue of whether the trial court erred in denying mistrial was not preserved when counsel did not move for a mistrial until after the jury had retired for deliberations); Calloway v. State, 409 So.2d 1142, 1143 (Fla. 1st DCA 1982) (same). Therefore, unlike DuBoise, Jones,, and Calloway, because appellant’s counsel moved for mistrial before the jury retired for deliberations and at the first possible moment following the prosecution’s closing argument, appellant’s request for a mistrial was timely. Thus, the trial court erred in failing to consider appellant’s request on its merits.

Although the State has not argued harmless error on appeal, we must consider the possibility that the error complained of was harmless. See, e.g., § 924.051(3), Fla. Stat. (2003) (“A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred”); § 924.33, Fla. Stat. (2003) (“No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant”).

Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence.. The focus is on the effect on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.... If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

Williams v. State, 868 So.2d 1189 (Fla.2003) (quoting State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986)). It is impossible for us to determine, on a review of the cold record, what effect the prosecutor’s improper remarks had upon the jury’s deliberation process, particularly as the jury’s task was, essentially, to weigh the testimony of appellant against that of the officers testifying for the State. See Heuss v. State, 687 So.2d 823, 824 (Fla.1996) (noting that “the harmless error test places the burden on the State to prove beyond a reasonable doubt that the error did not contribute to the verdict or, alternatively, that there is no reasonable possibility that the error contributed to the conviction.”); State v. Lee, 531 So.2d 133, 137 (Fla.1988) (noting that “the focus of harmless error analysis must be the effect of the error on the trier of fact.”). We are unable to say that there is no reasonable possibility that the error contributed to the conviction. See Williams, 863 So.2d at 1190; DiGuilio, 491 So.2d at 1135 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)); Williams v. State, 747 So.2d 474, 475 (Fla. 5th DCA 1999) (“We cannot consider the comment in this case as harmless error because the limited evidence at trial was only the police officers’ testimony versus the defendant’s testimony.”). Accordingly, we are constrained to REVERSE and REMAND for a new trial.

BOOTH, BENTON and LEWIS, JJ., concur.


text:
    Enoch E. DINKINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5000.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. The motion for reduction of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), is addressed to the discretion of the trial court. Therefore, this Court has no jurisdiction to review the correctness of the trial court’s disposition of the motion. Daniels v. State, 568 So.2d 63 (Fla. 1st DCA 1990).

DISMISSED.

WEBSTER, LEWIS and HAWKES, JJ, CONCUR.


text:
    CITY OF HOLLYWOOD and Gallagher Bassett Services, Appellants, v. Gregory CAPPOZZIA, Appellee.
    No. 1D02-4010.
    District Court of Appeal of Florida, First District.
    Feb. 19, 2004.
    Michael A. Bryant, Ft. Lauderdale, for Appellants.
    Barry R. Lerner of Barnett & Lerner, P.A., Dania Beach, for Appellee.
   PER CURIAM.

The City of Hollywood and Gallagher Bassett Services, the employer and servicing agent respectively, seek reversal of a worker’s compensation order granting temporary disability benefits under section 440.15(4), Florida Statutes (1995), as well as penalties, interest, attorney’s fees and costs to claimant, Gregory Cappozzia, a former employee of the City of Hollywood. The employer and carrier argue that the record lacks competent and substantial evidence that the employee experienced a wage loss causally connected to a compen-sable injury. We agree and reverse the order in its entirety. See Vencor Hospital v. Ahles, 727 So.2d 968, 969 (Fla. 1st DCA 1998)(explaining that after 1994 amendments to chapter 440, a claimant must still prove a causal connection between a work-related injury and a resulting wage loss to recover temporary partial disability benefits); West Point Stevens v. Wasson, 740 So.2d 44 (Fla. 1st DCA 1999)(reversing award of temporary partial disability benefits because there was no competent, substantial evidence supporting a causal connection between claimant’s .post-injury wage loss and her work-related injury); Interim Services and Specialty Risk Services v. Levy, 843 So.2d 915, 916-917 (Fla. 1st DCA 2003)(reversing award of temporary partial disability benefits because employee failed to make required, showing of a causal connection between injury and subsequent wage loss); Sanchez v. Wise Recycling, Inc., 843 So.2d 1025 (Fla. 1st DCA 2003)(reversing award of temporary benefits because claimant failed to show a causal connection between her injury and subsequent wage loss). Although the record reflects that the claimant was found eligible for a disability pension by the City’s pension board, that finding is not determinative of a causal connection between a work related injury and a wage loss under section 440.15.

REVERSED.

BOOTH, VAN NORTWICK and HAWKES, JJ„ concur.


text:
    Charles E. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3978.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2004.

      Charles E. Smith, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Because other adequate remedies exist, the petition for writ of mandamus is denied.

ERVIN, BARFIELD and POLSTON, JJ., concur.


author: CASANUEVA, Judge. SALCINES, Judge,

text:
    Donald A. THOMPSON; Carolyn Thompson, individually; and Carolyn Thompson as Personal Representative of the Estate of James B. Thompson, deceased, Appellants, v. FLORIDA CEMETERIES, INC., a Florida Corporation; George Lorton; Carl Lorton; Michael A. Adams; and Stacy Adams, Appellees.
    No. 2D02-4020.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 2004.

      Donald A. Thompson, pro se.
    J.W. Bonie, St. Petersburg, for Appellant Carolyn Thompson, individually, and Carolyn Thompson as Personal Representative of the Estate of James B. Thompson, deceased.
    E.C. Langford of Langford, Hill & Williams, P.A., Tampa, for Appellees.
   CASANUEVA, Judge.

The defendants in this declaratory judgment action have appealed from a final judgment entered on their motion for a directed verdict. Because the trial court exceeded its procedural authority in the context of a motion for directed verdict, we reverse.

The issues in this case center around the funding of a closely held corporation, Florida Cemeteries, Inc., which was in financial difficulty. The plaintiffs, shareholders George Lorton, Carl Lorton, Michael Adams, and Stacy Adams (the plaintiffs), together with Florida Cemeteries, Inc., filed a two-count complaint for declaratory judgment against the remaining shareholders, defendants Donald A. Thompson, Carolyn Thompson, individually, and Carolyn Thompson as personal representative of the estate of James B. Thompson. Their first count asked the court to decide whether the plaintiffs’ postincorporation monetary contributions to the corporation consisted of loans to the corporation or contributions to capital in exchange for additional shares in the corporation. In the event the court declared that this additional contribution was loaned to the corporation, the second count sought foreclosure of the Thompsons’ shares to repay their portion of the loan in accordance with the shareholders’ agreement.

At the close of the plaintiffs’ case in this nonjury trial, the Thompsons moved for a directed verdict pursuant to Florida Rule of Civil Procedure 1.480(a), based primarily on the fact that the corporation’s accountant had testified that the plaintiffs’ capital additions constituted a stock purchase, not a loan. Their motion requested the court to enter judgment declaring (1) that the plaintiffs were not entitled to foreclosure of the Thompsons’ shares as they had not established that the plaintiffs had made a loan to the corporation in which the Thompsons had not participated; and (2) that the plaintiffs had issued an additional 6270 shares of stock to themselves at a value of $100 per share. This second portion of their “prayer for relief’ appears to have been merely a summation of the facts in evidence; nevertheless, the court granted the motion in part, denied it in part, and incorporated this fact into its final declaratory judgment, ordering the Thompsons to pay a certain sum within a certain time to reestablish their proportionate share of ownership in the corporation. Because the trial court exceeded its procedural authority, the defendants have appealed and we reverse.

The problem in this case arises from the trial court’s erroneous application of Florida Rule of Civil Procedure 1.480(a), which provides that, at the close of the opponent’s case, a party can ask the court to direct a verdict against the adverse party. The rule further provides that the moving party “may offer evidence in the event the motion is denied.” The granting of a motion for directed verdict generally signifies “that the nonmoving party’s case is devoid of probative evidence.” Houghton v. Bond, 680 So.2d 514, 522 (Fla. 1st DCA 1996). Furthermore, a motion for directed verdict “must be denied if the evidence is conflicting or different conclusions or inferences can be drawn from it.” Azar v. Richardson Greenshields Sec., Inc., 528 So.2d 1266, 1269 (Fla. 2d DCA 1988). A motion for directed verdict is not a surrogate summary judgment procedure. Id.

We note that, although the defendants styled their pleading as a “motion for directed verdict” and the trial court’s order-reflected that it was granting a motion for-directed verdict, in reality this was a motion for involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(b). However, the same law is applicable to both. Day v. Amini, 550 So.2d 169, 171 (Fla. 2d DCA 1989) (“A motion for involuntary dismissal pursuant to Florida Rule of Civil Procedure 1.420(b), which is used in nonjury trials, was formerly known as a motion for directed verdict, and the same law is applicable.”).

Furthermore, the “motion for directed verdict” was not only misnamed, it was inappropriate based on the plaintiffs’ proof. Generally speaking, a motion for judgment of dismissal in an action for declaratory judgment could be granted only if the plaintiff failed to establish the existence of a justiciable controversy cognizable under the Declaratory Judgment Act, chapter 86, Florida Statutes. Cf. Rosenhouse v. 1950 Spring Term Grand Jury, in and for Dade County, 56 So.2d 445, 448 (Fla.1952) (stating that the “test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will sue-ceed in getting a declaration, of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all”); “Z” Corp. v. “Y” Person, 622 So.2d 1098, 1101 (Fla. 2d DCA 1993) (same). Thus, when the trial court concluded that the defendants’ motion for directed verdict sought relief virtually identical to that sought by the plaintiffs, it erred as a matter of law. At that point in the litigation, the only relief the court could grant-as a matter of procedure-was dismissal of the plaintiffs’ action.

Here, the plaintiffs’ initial pleading clearly anticipated that the evidence would support only one of its two alternative theories. The court was asked to decide whether the plaintiffs had purchased new stock or had loaned money to the corporation. In granting a defendant’s motion for directed verdict or involuntary dismissal, a court implicitly finds that the plaintiffs case lacks probative evidence. Houghton, 680 So.2d at 522. In contrast, the trial court in this case actually found that the plaintiffs’ case did not lack probative evidence but that they had proved that the transaction was a stock purchase rather' than a loan. Because the plaintiffs had adduced probative evidence in support of their claim and demonstrated that they were entitled to a declaration of their rights, the court should have denied the motion for directed verdict and allowed the defendants to proceed with their case. See Capital Media, Inc. v. Haase, 639 So.2d 632, 632 (Fla. 2d DCA 1994) (“This court and others have consistently held that on a' motion for involuntary dismissal, made at the close of the plaintiffs case in a nonjury trial, a trial court is limited to determining whether or not the plaintiff has made a prima facie case.”); see also Fla. R. Civ. P. 1.480(a) (stating that a “party who moves for a directed verdict at the close of evidence offered by the adverse party may offer evidence in the event the motion is denied without having reserved the right to do so and to the same extent as if the motion had not been made”). Here, the Thompsons were entitled to put on their evidence.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

WALLACE, J., Concurs.

SALCINES, J., Concurs specially.

SALCINES, Judge,

Concurring specially.

It is apparent that the trial court acted as it did in an effort to exercise judicial economy and to save the parties further litigation expenses in a matter which appeared to have but one conclusion. The Thompsons had failed to contribute additional funds to the corporation on several occasions when the shareholders were asked to do so and it appeared that they lacked either the financial ability or desire to continue their participation in Florida Cemeteries’ business activities. However, in fashioning what can only be characterized as a unique final judgment in response to the Thompsons’ motion for directed verdict, the trial court erred as a matter of law. The final judgment clearly exceeded the scope of relief available on a motion for directed verdict. Thus, I concur in the majority decision.

      . It is apparent that the defendants played a major role in leading the trial court into this procedural quagmire.


text:
    S.J., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 4D02-4258.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.

      Dawn G. Kirk, Fort Pierce, for appellant.
    Crystal Y. Yates-Hammond, Fort Pierce, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant rehearing, withdraw our previous opinion issued on June 25, 2003, and substitute the following opinion in its place.

This case involves two siblings, D.C-. and M.C., and an appeal by S.J., their mother, from the Order of Adjudication and Judgement [sic] of Involuntary Termination of Parental Rights of D.C. and M.C. We affirm the order as to both D.C. and M.C.

We affirm termination of parental rights as to D.C. because S.J. failed to comply with the case plan presented by the Department of Children and Family Services (DCF). § 39.806(l)(e), Fla. Stat. (2001). We affirm termination of parental rights as to M.C. based on section 39.806(l)(e), Florida Statutes (2001), which provides as follows:

When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services. Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

Drug addiction is one type of behavior that may warrant termination of parental rights because it can constitute harm to the child and may not be amenable to treatment despite the provision of services. F.L. v. Dep’t of Children & Families, 849 So.2d 1114, 1120 (Fla. 4th DCA 2003). The trial court found that DCF had offered S.J. assistance in dealing with her substance abuse problem. She had- been unsuccessfully discharged from outpatient treatment before M.C. was born. Following the birth of M.C., she was unsuccessfully discharged from outpatient treatment a second time. She had refused inpatient treatment and was not receiving drug treatment at the time of the trial. Additionally, during the time DCF was providing services, S.J. was arrested four times, including an arrest for.disorderly intoxication, after M.C. was born. That is clear and convincing evidence that her substance abuse problems are not amenable to treatment despite the provision of services.. The court further found that S.J. had failed to maintain regular, employment, could not provide a - stable home, and lacked the capacity to care for her children, all of which threaten the children’s safety and well-being and may constitute harm. § 39.01(30), Fla. Stat. (2001) (defining harm). Four home studies had established .that there is, no suit-, able family placement option. Termination was, as a result, the least restrictive means of protecting D.C. and M.C. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991).

AFFIRMED.

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


text:
    Gloria VELEZ, Appellant, v. STATE of Florida, UNEMPLOYMENT APPEALS COMMISSION and Quail Ridge Property Owners Association, Inc., Appellees.
    No. 4D03-3201.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Gloria E. Velez, Boynton Beach, pro se.
    Geri Atkinson-Hazelton, Tallahassee, for appellee Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

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


text:
    Joseph CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2699.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Joseph Carter, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GODERICH, GREEN, and WELLS, JJ.
   PER CURIAM.

The defendant appeals an order denying as untimely his rule 3.853 motion for post-conviction DNA testing. In light of the State’s concession that the motion was timely filed, we reverse and remand for further consideration on the merits.

We affirm the denial of his rule 3.800(a) motion to correct an illegal sentence.

Affirmed in part, reversed in part.


text:
    Michael Gene HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-5056.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.
    Michael Gene Hamilton, pro se.
    Charles J. Crist, Jr., Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

We reverse the summary denial of Appellant’s third claim of ineffectiveness of counsel in his rule 3.850 motion. The trial court failed to attach any portion of the record to refute Appellant’s entitlement to relief and Appellant’s claim of prejudice. See Atwater v. State, 788 So.2d 223, 229 (Fla.2001); see also Smallwood v. State, 809 So.2d 56 (Fla. 5th DCA 2002). Therefore, we remand and direct the trial court to either conduct an evidentiary hearing on this issue or attach portions of the record to refute Appéllant’s allegations. We affirm the denial of Appellant’s remaining claims without discussion.

REVERSED and REMANDED for further proceedings.

BOOTH, PADOVANO and BROWNING, JJ., concur.


text:
    A.D.M.E. INVESTMENT PARTNERS, LTD., d/b/a Oceanside Extended Care Center, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D02-3891.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2004.
    Theodore E. Mack, of Powell & Mack, Tallahassee, for Appellant.
    Gregory J. Philo, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee. -
   PER CURIAM.

Reversed and remanded for petitioner to file an amended petition for hearing in compliance with section 120.54(5)(b)4., Florida Statutes, and Rule 28-106.201, Florida Administrative Code. See Brookwood Extended Care Ctr. of Homestead, LLP v. Agency for Healthcare Admin., — So.2d -, 2003 WL 21920888 (Fla. 3d DCA 2003).

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Tony M. RUKAB and Aida T. Rukab, Appellants, v. CITY OF JACKSONVILLE BEACH, a municipal corporation, and the Jacksonville Beach Community Redevelopment Agency, a body politic and corporate created under the laws of the State of Florida, Appellees.
    No. 1D03-974.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.

      Andrew Prince Brigham of Brigham Moore, LLP, Jacksonville, for Appellants.
    Ilya Somin and John M. Olin, Fellow in Law, Northwestern University School of Law, Chicago, Illinois; and Dana Berliner and William H. Mellor, Institute for Justice, Washington, DC, for Amicus Curiae.
    Frank A. Shepherd, Coral Gables, Ami-cus Curiae of Pacific Legal Foundation.
    Stephen Stratford, Jacksonville; William S. Graessle of William S. Graessle & Associates, P.A., Jacksonville, for Appellees.
   PER CURIAM.

AFFIRMED. Panama City Beach Cmty. Redevelopment Agency v. State of Florida, 831 So.2d 662 (Fla.2002); Rukab v. City of Jacksonville Beach, 811 So.2d 727 (Fla. 1st DCA 2002).

DAVIS, BENTON and BROWNING, JJ., concur.


text:
    FLORIDA DEPARTMENT OF TRANSPORTATION, Appellant, v. MID CONTINENT ELECTRIC, Appellee.
    No. 1D03-5390.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2004.
    Marianne A. Trussell, Assistant General Counsel, Tallahassee, for Appellant.
    Joseph W. Lawrence, II, Ft. Lauder-dale, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of January 9, 2004, the Court has determined that the order on appeal is not a final order. Specifically, because the order “does not become effective until all contract required documents have been submitted,” judicial labor appears to remain. See Ponton v. Gross, 576 So.2d 910, 911 (Fla. 1st DCA 1991). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

KAHN, BENTON and VAN NORTWICK, JJ., concur.


text:
    William Don WOFFORD, Petitioner, v. STATE of Florida and James V. Crosby, Jr., Secretary, Florida Department of Corrections, Respondents.
    No. 1D03-3238.
    District Court of Appeal of Florida, First District.
    March 1, 2004.
    William Don Wofford, petitioner, pro se.
    Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for respondents.
   PER CURIAM.

William Don Wofford seeks a belated appeal of an order of the circuit court denying his motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(Z). In his sworn petition, Wof-ford alleges that he informed his appointed counsel, Craig J. Martin, of his desire to appeal any adverse ruling on his motion, but that counsel failed to timely initiate an appeal. Moreover, Wofford notes that he was not personally served a copy of the trial court’s order denying his motion and alleges that he was unaware of its existence until more than three months after its rendition.

We issued an order to show cause, and in response, the state informed us that Mr. Martin had failed to respond to its' request that he provide an affidavit concerning the allegations of the petition. Accordingly, we granted the state’s motion to compel Mr. Martin to furnish such a response, and directed that he do so within a time certain. However, counsel has failed to respond, and in light of that fact, the state indicates that it will interpose no objection to the granting of a belated appeal.

Accordingly, Wofford’s petition seeking belated appeal is granted. The belated appeal shall proceed as seeking review of the underlying judgment and sentence entered on or about September 19, 2000, in Duval County case number 00-589-CF-A, rendition of which was postponed pending rendition of the April 15, 2003, order denying Wofford’s timely motion to withdraw plea pursuant to rule 3.170(7). See Fla. R.App. P. 9.020(h); see also Wofford v. State, 819 So.2d 891 (Fla. 1st DCA 2002). Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If Wofford qualifies for the appointment of counsel at public expense, the trial court shall appoint counsel to represent him on appeal.

We note that this is not the' first time Mr. Martin has failed to comply with an order of this court. Recently, we reprimanded him and referred the matter to the Florida Bar when, as here, he ignored an order directing him to address the allegations of a pending petition for belated appeal. See Orstad v. State, 860 So.2d 524 (Fla. 1st DCA 2003); Based on his failure to respond to our order' granting the state’s motion to compel in this case, we once again refer Craig J. Martin to the Florida Bar for its determination of whether professional discipline is warranted on this account as well.

ERVIN, DAVIS and BROWNING, JJ., concur.


text:
    Herman E. DUKES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4519.
    District Court of Appeal of Florida, First District.
    March 1, 2004.
    Herman E. Dukes, pro se, petitioner.
    Charlie Crist, Attorney General, and Man R. Dakan, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Herman E. Dukes presents a timely claim of ineffective assistance of appellate counsel. He asserts that his appellate counsel erred by failing to argue, as trial counsel did, that the imposition of a minimum sentence of 25 years’ imprisonment pursuant to section 775.087(2)(a)3., Florida Statutes (1999), was unlawful because the information failed to allege that his discharge of a firearm or destructive device during the course of the offense resulted in the infliction of great bodily harm or death. The state concedes that Dukes is entitled to relief on this claim, and we agree. See, e.g., Gibbs v. State, 623 So.2d 551 (Fla. 4th DCA 1993); see also Jackson v. State, 852 So.2d 941 (Fla. 4th DCA 2003). Accordingly, the petition alleging ineffective assistance of appellate counsel is granted, the sentence imposed upon Dukes is vacated, and the matter is remanded to the trial court for resentencing.

PETITION GRANTED.

ERVIN, DAVIS and BROWNING, JJ., concur.


text:
    STATE of Florida, Appellant, v. Frank MITCHELL, Appellee.
    No. 1D03-1518.
    District Court of Appeal of Florida, First District.
    March 1, 2004.
    Charles A. Crist, Jr., Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The state filed an amended civil complaint against Appellee, seeking to commit him to state custody as a sexually violent predator under the Jimmy Ryce Act. Ap-pellee moved to dismiss the petition on the ground that the Ryce Act did not apply because he had completed his sentence for the sexually violent crime in 1991 and his current incarceration was not for a sexually violent crime. The trial judge issued an order granting Appellee’s motion and dismissing the petition. We reverse, but certify the question as one of great public importance.

Appellee was convicted in 1983 of a sexually violent offense, as defined in section 394.912(9), Florida Statutes, and completed his sentence in November 1991. At the time the state attorney filed the Ryce Act petition against Appellee, he was under a Department of Corrections sentence for possession of cocaine and felonious possession of a concealed weapon. In his motion to dismiss the petition, Appellee asserted the trial court was without subject matter jurisdiction to commit him under the Ryce Act because his current incarceration was not for a sexually violent crime. He argued that a strict construction of section 394.925, Florida Statutes, allowed commitment of only those individuals who are in the custody of the Department of Corrections and serving a sentence for a sexually violent offense at the time the petition is filed.

We agree with the decision in Tabor v. State, 864 So.2d 1171 (Fla. 4th DCA 2004), that Appellee’s argument is refuted by sections 394.913(1), 394.912(9)(g), and 394.912(11), Florida Statutes. We therefore reverse but certify this question as one of great public importance:

DOES THE RYCE ACT REQUIRE THAT THE CURRENT INCARCERATION BE FOR A SEXUALLY VIOLENT OFFENSE?

ERVIN, BARFIELD, and POLSTON, JJ., concur.

      . We express no opinion on the affirmative defense which was raised by Appellee below but not addressed by the trial judge.


text:
    Hilton WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-530.
    District Court of Appeal of Florida, First District.
    March 1, 2004.
    Steven L. Seliger of Garcia and Seliger, Quincy, for Appellant.
    Charlie Crist, Jr., Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Therrien v. State, 859 So.2d 585 (Fla. 1st DCA 2003), review pending, No. SC03-2219 (Fla. Dec. 18, 2003).

KAHN, BENTON and VAN NORTWICK, JJ., concur.


text:
    William MARKHAM, as Broward County Property Appraiser, Appellant, v. Marc GOLD and Barbara Gold, Appellees.
    No. 4D02-4361.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    Gaylord A. Wood, Jr., J. Christopher Woolsey, and B. Jordan Stuart of Law Offices of Wood & Stuart, P.A., Fort Laud-erdale, for appellant.
    Barbara A. Heyer of Heyer & Associates, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

We affirm the decision granting an agricultural classification to appellees’ property. We reverse the award of attorney’s fees under section 57.105, Florida Statutes (1998). We remand to the circuit court, which may consider the propriety of attorney’s fees on appellees’ motion for sanctions relating to their motion to strike amended complaint. See Moakley v. Smallwood, 826 So.2d 221 (Fla.2002); Bitterman v. Bitterman, 714 So.2d 356 (Fla.1998).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Christopher Paul MEDEIROS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3007.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    Christopher Paul Medeiros, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Christopher Medeiros appeals the summary denial of his postconviction motion. In ground one, Medeiros alleged that his trial attorney provided ineffective assistance by not impeaching a key state witness with an inconsistent statement from his deposition. During the deposition, the witness admitted writing two statements that recanted the information he provided to police. At trial, he denied writing the first statement. In the first statement, the witness explained why he gave the police false information. At trial, after the witness denied writing the first statement, there were no further questions about it and it was not received or proffered into evidence.

Medeiros’s postconviction motion states a legally sufficient claim that is not refuted by the record attached to the circuit court’s order. Accordingly, we reverse and remand for an evidentiary hearing or for attachment of portions of the record that conclusively demonstrate appellant is entitled to no relief.

REVERSED and REMANDED.

STONE, STEVENSON and SHAHOOD, JJ., concur.


text:
    L.C., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D02-2373, 4D02-2424.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See O.A. v. State, 754 So.2d 717 (Fla. 4th DCA 1998).

WARNER, POLEN and KLEIN, JJ., concur.


author: KLEIN, J.

text:
    MERCEDES HOMES, INC., a Florida corporation, Appellant, v. David GOLDSMITH, Appellee.
    No. 4D03-2007.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    Patrick F. Roche of Frese, Nash & Hansen, P.A., Melbourne, for appellant.
    William R. Ponsoldt, Jr. of Wright, Pon-soldt & Lozeau Trial Attorneys, L.L.P., Stuart, for appellee.
   KLEIN, J.

Goldsmith sued Mercedes Homes seeking in Count I, specific performance of a contract for sale of real property, and in Count II, damages for breach of contract as an alternative to specific performance. Mercedes moved to transfer venue under a' venue provision in the contract. The trial court denied the motion because the property was located in the county in which the complaint was filed, and the jurisdictional authority of the court over the property existed only in that county. Ruth v. Dep’t of Legal Affairs, 684 So.2d 181 (Fla.1996).

Mercedes argues that venue should not be governed by the principle of Ruth, which is known as the local action rule, because Mercedes sold the property to a bona fide purchaser before the lawsuit was filed and Goldsmith, accordingly, cannot obtain specific performance. That contention is premature. Because the specific performance claim is still pending, we affirm, but without prejudice to Mercedes again raising venue in the event Goldsmith’s claim is limited to monetary relief.

MAY, J., and HOROWITZ, ALFRED J., Associate Judge, concur.


author: GRIFFIN, J.

text:
    Dantrell Deon RILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-201.
    District Court of Appeal of Florida, Fifth District.
    March 5, 2004.

      Dantrell Deon Riley, Sneads, pro se.
    No Appearance for Respondent.
   GRIFFIN, J.

Dantrell Deon Riley [“Riley”] seeks from this court a belated appeal. We deny his petition, but without prejudice.

Recently, in 5D03-3808, Riley filed with this court a petition for belated appeal alleging that counsel failed to honor his timely request for an appeal. Because his petition was not made under oath as required by Florida Rule of Appellate Procedure 9.141(c)(3)(F), this court denied his petition without prejudice to file a proper sworn petition.

Riley now attempts to remedy that omission, but has failed. At the end of his petition, there is a notary certificate; however, nowhere in the certificate, or in the petition for that matter, is there a statement by Riley subjecting him to perjury penalties if his statements are false. See State v. Shearer, 628 So.2d 1102 (Fla.1993); Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003). See also Fla. R.Crim. P. 3.987.

We will give Riley one last chance to file a proper petition and give him twenty days to do it correctly. Bell v. State, 831 So.2d 1287 (Fla. 5th DCA 2002).

PETITION DENIED without prejudice.

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


author: JjPER. CURIAM.

text:
    Edward LEWIS v. FOLGER’S COFFEE COMPANY.
    No. 2003-CC-3127.
    Supreme Court of Louisiana.
    Feb. 13, 2004.
   JjPER. CURIAM.

Edward Lewis was employed by Fol-ger’s Coffee Co. (“Folger’s”) at its Gentilly Road facility in New Orleans, Louisiana. During his employment with Folger’s, Mr. Lewis claims he suffered a compensable injury.

In August 2002, Mr. Lewis filed a claim for workers’ compensation benefits. Pursuant to La. R.S. 23:1310.4, Mr. Lewis, a domiciliary of St. Tammany Parish, elected to file his claim in OWC District 6, which encompasses St. Tammany Parish.

In March 2003, Folger’s filed a petition in OWC District 6 seeking forfeiture of Mr. Lewis’ benefits, as well as restitution and attorney’s fees, pursuant to La. R.S. 23:1208. Folger’s claim for forfeiture of benefits was consolidated with Mr. Lewis’ claim for benefits.

In August 2003, shortly before the matters were set to go to trial, Mr. Lewis voluntarily dismissed his claims in OWC District 6. Mr. Lewis then filed a second claim' for compensation in- OWC District 8 for the Parish of Orleans, the site of Fol-ger’s facility and the location of the alleged injury.

Folger’s moved to reinstate its demand for forfeiture óf Mr. Lewis’ benefits in OWC District 6. The hearing officer granted Folger’s motion to reinstate its demand.

Mr. Lewis applied for supervisory! 2 writs from this ruling. In a split decision, the court of appeal granted the writ in part and reversed the hearing officer’s decision to reinstate Folger’s claim for forfeiture of benefits. Folger’s now seeks review of this ruling.

La. R.S. 23:1310.4(A)(1) provides “[a]t the time a claim is initiated with the director, the claimant shall elect the situs of necessary hearings by the workers’ compensation judge.” La. R.S. 23:1310.4 provides “[a]fter the election has been made as provided above, all future hearings affecting the claimant’s case shall be held in the judicial district so designated unless the workers’ compensation judge, upon agreement by the claimant and the employer, shall transfer such cause for hearing to any other judicial district agreed upon.”

These provisions are mandatory in nature, providing that the claimant shall elect the situs of the hearing at the time the claim is initiated and once this election is made all future hearings shall be held in this district. Accordingly, once Mr. Lewis elected OWC District 6 at the time he initiated his claim, all future hearings must be held in that district, unless the hearing officer approves a transfer upon agreement of the claimant and hearing officer. No such transfer was made in this case. We find that Mr. Lewis, having made his election, may not circumvent these mandatory provisions by dismissing his claim and refiling the claim in a different district.

Accordingly, the writ is granted. It is ordered that Mr. Lewis’ claim for benefits be transferred from OWC District 8 to OWC District 6 and that Folger’s forfeiture action be reinstated in OWC District 6.

      . In a letter dated August 5, 2002, Mr. Lewis, through his counsel, wrote:
      Pursuant to LA R.S. 23:1310.4, claimant hereby elects that the situs of this claim be District 6 of the Office of Workers’ Compensation for the State of Louisiana.