text:
    Jason HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1472.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Carey Haughwout, Public Defender, and Eunice T. Baros, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Britton v. State, 604 So.2d 1288 (Fla. 2d DCA 1992).

WARNER, SHAHOOD and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Steven G. O’NEILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1918.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Jerold H. Reichler of Poltorack, Shafran & Falzone, L.L.C., Ft. Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Heidi L. Bettendorf and Richard Valuntas, Assistant Attorneys General, for appellee.
   CORRECTED OPINION

PER CURIAM.

We withdraw our opinion filed on September 22, 2004 and substitute this opinion.

We reverse the summary denial of appellant’s rule 3.850 motion for an evidentia-ry hearing on the grounds pertaining to counsel’s failure to call witnesses and present evidence which would have supported appellant’s voluntary intoxication defense, or the attachment of portions of record which conclusively refute appellant’s claim.

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


text:
    Eric PRIMUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2730.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Gill v. State, 622 So.2d 92 (Fla. 2d DCA 1993).

GROSS, TAYLOR and HAZOURI, JJ., concur.


text:
    Anthony BRYANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2342.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2004.
    Anthony Bryant, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GREEN, FLETCHER, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Cala v. State, 854 So.2d 840 (Fla. 3d DCA 2003).


author: PER CURIAM,

text:
    Jorge Raymond VERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-864.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2004.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEPHERD, JJ.
   CONFESSIÓN OF ERROR

PER CURIAM,

The defendant below was sentenced upon a revocation of probation on the basis of a guidelines'score sheet which included forty victim injury points for sexual, penetration. As the state candidly, commendably, and correctly concedes, however, those points were erroneously 'added because the underlying crimes, including burglary with an assault “by choking the victim,” were not sexual offenses for which victim injury points could properly be assessed. Fla.R.Crim.P. 3.702(d)(5). See Brown v. State, 700 So.2d 447 (Fla. 3d DCA 1997), quashed on other grounds, 719 So.2d 882 (Fla.1998); Geary v. State, 675 So.2d 625 (Fla. 2d DCA 1996), review denied, 680 So.2d 422 (Fla.1996); Jackson v. State, 680 So.2d 1102 (Fla. 5th DCA 1996).

Accordingly, the appellant’s sentence is vacated and the cause remanded for resen-tencing upon an appropriate guidelines score sheet.


text:
    Robert A. STAHL, Jr., Appellant, v. The STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellee.
    No. 3D04-1389.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2004.
    Law Office of Richard G. Chosid and Kenneth Eric Trent, for appellant.
    Gail Scott Hill, Assistant General Counsel (Tallahassee), for appellee.
    Before SCHWARTZ, C.J., and LEVY and SHEPHERD, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based upon the Department of Business and Professional Regulation’s confession of error, we vacate the Final Order of the Construction Industry Licensing Board waiving Stahl’s right to a hearing for failing to timely respond to the Board’s complaint and remand the case to the Board for further proceedings.

Vacated and remanded.


text:
    Michael John FRANCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3440.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Helene Hvizd Morris, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Karwoski v. State, 867 So.2d 486 (Fla. 4th DCA 2004).

GROSS, TAYLOR and HAZOURI, JJ., concur.


text:
    Shane T. RUNKLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4129.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed, without prejudice to seek relief pursuant to rule 3.850, Florida Rule of Criminal Procedure.

GUNTHER, STONE and POLEN, JJ., concur.


text:
    Steve AUSTIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3663.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Steve Austin, Jr., Sneads, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Steve Austin, Jr., appeals the circuit court’s summary denial of his motion to return property. On the authority of Davidson v. State, 751 So.2d 189 (Fla. 1st DCA 2000), we reverse the order and remand to the circuit court for further proceedings.

GROSS, TAYLOR, and HAZOURI, JJ., concur.


text:
    Eric DEFRANK, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4510.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We remand this appeal of a revocation of probation for a written order setting forth the reasons for revoking probation. Black v. Romano, 471 U.S. 606, 612, 105 S.Ct. 2254, 85 L.Ed.2d 636 (1985) (due process requires “a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation.”); Watts v. State, 688 So.2d 1018 (Fla. 4th DCA 1997).

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


text:
    Emmett Joseph BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4950.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2004.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Rooney v. Hannon, 732 So.2d 408, 411 (Fla.App. 4th 1999) and Jenkins v. State, 732 So.2d 1185, 1187 (Fla. 4th DCA 1999).

GROSS, TAYLOR and HAZOURI, JJ., concur.


author: MONACO, J.

text:
    Nicholas GORDON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2834.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Nicholas Gordon appeals his judgment and sentence for armed burglary of a dwelling, grand theft of a motor vehicle, and grand theft taking from a dwelling, premised upon his theory that the trial court erred in denying his motion to suppress certain statements and evidence obtained from him during the course of the investigation of these crimes. The trial court found that the search that led to the seizure of evidence was consented to by Mr. Gordon, and that statements made to law enforcement were made while Mr. Gordon was not in custody, thus obviating the need for Miranda warnings. See State v. Wilson, 747 So.2d 1051 (Fla. 5th DCA 2000). As there is competent substantial evidence in the record supporting these findings, we conclude that the judgment and sentence should be affirmed. See Hicks v. State, 852 So.2d 954 (Fla. 5th DCA 2003).

AFFIRMED.

SAWAYA, C.J., and PETERSON, J., concur.


author: SAWAYA, C.J.

text:
    Roger TREMBLAY, Appellant, v. Lynne R. THOMPSON, Appellee.
    No. 5D04-192.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2004.
    Harry G. McConnell of Smith, Hood, Perkins, Loucks, Stout, Bigman, Lane & Brock, P.A., Daytona Beach, for Appellant.
    Lynne R. Thompson of Lynne R. Thompson, P.A., Melbourne, pro se.
   SAWAYA, C.J.

Attorney Lynne R. Thompson properly concedes that the trial court should not have entered the order approving attorney’s fees in this guardianship proceeding without first holding an evidentiary hearing, just as Appellant argues on appeal. She agrees that the cause should be remanded for such a hearing. We therefore reverse and remand for an evidentiary hearing.

REVERSED AND REMANDED.

PETERSON and MONACO, JJ., concur.


text:
    Keenan LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1968.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Linda Horton Dodson, Assistant Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, Attorneys for Appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence adjudicating Appellant guilty of possession of cocaine with the intent to sell, resisting an officer without violence, and violating his probation. We must reverse Appellant’s convictions because the trial court should have granted Appellant’s motion to suppress and dismissed the case. Appellant withdrew his consent to the search, and the tip received by law enforcement lacked sufficient indicia of reliability to justify the search. See Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Williams v. State, 727 So.2d 1050 (Fla. 2d DCA 1999). Accordingly, we must reverse the trial court’s denial of Appellant’s motion to suppress and motion to dismiss.

REVERSED and REMANDED.

BOOTH, BARFIELD and ALLEN, JJ., CONCUR.


text:
    Edward Arthur SURRATT, Petitioner, v. J.T. FREEMAN, Respondent.
    No. 1D04-2327.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.
    Edward Arthur Surratt, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

DAVIS, BROWNING and HAWKES, JJ., concur.


text:
    Lorenzo BENJAMIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-3468.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.
    Lorenzo Benjamin, pro se, for appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989)(holding that lack of access to a law library does not show good cause for failure to timely file a notice of appeal).

- ERVIN, BOOTH and KAHN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Keith Dwayne HEAD, Appellee.
    No. 1D04-3982.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Pamela K. Brockaway, Assistant Attorney General, Tallahassee, for Appellant.
    George F. Schaefer, Gainesville, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the court’s order of September 14, 2004, the Court has determined that review of the Order Granting Respondent’s Motion to Vacate Stay of the Court’s Judgment of Dismissal and Respondent’s Request for Immediate Release from Further Detention, is properly sought by motion in the related appeal of State of Florida v. Keith Dwayne Head, No. 1D04-1936. Accordingly, the instant appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

DAVIS, BROWNING and HAWKES, JJ., Concur.


author: BROWNING, J.

text:
    Richard JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2384.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.
    William J. Sheppard and D. Gray Thomas, of Sheppard, White and Thomas, P.A., Jacksonville, for Appellant.
    Charlie Crist, Attorney General; and Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant raises two issues on appeal of his conviction for attempted second-degree murder. Because the second issue has merit and is dispositive, we need not address the first issue. As his second issue, Appellant alleges that the trial court erred in refusing to instruct the jury that resistance to an attempt to commit a forcible felony can justify the use of deadly force. Because we hold that the instruction should have been given, we reverse Appellant’s conviction and remand for a new trial.

At trial, Appellant requested that the trial court instruct the jury that a person may use deadly force in self-defense if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm. The trial court failed to give the requested instruction, and gave an instruction that limited the use of deadly force to when resisting a murder attempt only. This was error, as there was suffi-dent evidence to support instructing the jury as Appellant requested. See Bozeman v. State, 714 So.2d 570 (Fla. 1st DCA 1998).

REVERSED and REMANDED for a new trial.

ALLEN and VAN NORTWICK, JJ., concur.


text:
    Otis Jurry STRINGFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2385.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Charles J. Crist, Jr., Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   PER CURIAM.

AFFIRMED. Walker v. State, 853 So.2d 498 (Fla. 1st DCA 2003), rev. granted, 864 So.2d 401 (2004).

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Johnny WORTHY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0848.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.
    Johnny Worthy, pro se, petitioner.
    Charlie Crist, Attorney General; Trisha Meggs Pate and Linda Horton Dodson, Assistant Attorneys General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is denied. Fla. R.App. Pro. 9.141(c)(4)(A).

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Willie HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1193.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.

      Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. The motion for modification of sentence filed 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).

In light of the above, this Court’s order issued on September 14, 2004, is withdrawn, and both of the appellant’s motions for extension of time are denied as moot.

DISMISSED.

DAVIS, BROWNING and HAWKES, JJ., concur.


text:
    David MINCEY, Appellant, v. James V. CROSBY, Appellee.
    No. 1D04-2872.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Louis A. Vargas, General Counsel, Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of July 19, 2004, the Court has concluded that the order on appeal is not final. Specifically, although the Department of Corrections’ counterclaim for reimbursement of incarceration costs is unrelated to the pending medical malpractice suit, the order on appeal does not represent a final adjudication of the counterclaim because the issue of the total amount of damages due remains pending. See Hernando County v. Leisure Hills, Inc., 648 So.2d 257 (Fla. 5th DCA 1994). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

DAVIS, BROWNING and HAWKES, JJ., concur.


text:
    Humberto OCANO, Francisco Lezcano, Hector Gonzalez, Alcides Fuentes, Appellants, v. CASOLA’S PIZZERIA & SUB SHOP, INC., Ramon B. Casola, Agustin Bunnel, Appellees.
    No. 3D04-1355.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2004.
    Rehearing Denied Nov. 10, 2004.

      J.H. Zidell, for appellants.
    Richard Baron, for appellees.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. Herman v. Express Sixty-Minutes Delivery Serv., Inc., 161 F.3d 299 (5th Cir.1998); Goldberg v. Bellotto, 207 F.Supp. 499 (S.D.Fla.1962).


text:
    Bryan HORVATH, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Kappes Electric Corporation, Appellees.
    No. 3D03-3400.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2004.
    Bryan Horvath, in proper person.
    John D. Maher (Tallahassee), for appel-lees.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

The Unemployment Appeals Commission dismissed Brian D. Horvath’s appeal to the Commission as being untimely. The Florida Administrative Code mandates dismissal by the Commission where an application for review is not filed within the time allowed by law. Accordingly we are required to affirm the order of dismissal. Espinosa v. Cableoptics, Inc., 807 So.2d 195 (Fla. 3d DCA 2002).

Affirmed.


text:
    Josephus PETTRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2776.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. The Judgment is hereby corrected to reflect defendant was convicted pursuant to a jury verdict and not by way of plea.

FARMER, C.J., SHAHOOD, J., and GREENE, CHARLES M., Associate Judge, concur.


text:
    Michael L. MADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4179.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

WARNER, SHAHOOD and MAY, JJ., concur.


text:
    Ronald McGRAW, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3694.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Frank Ingrassia, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence, concluding that the issues with respect to the use of a permissive presumption and the prosecutor’s closing argument were not preserved for review. As to appellant’s claim that counsel conceded guilt to a charged crime without his consent, we affirm without prejudice to appellant raising the issue in a motion for postconviction relief.

WARNER, SHAHOOD and MAY, JJ., concur.


text:
    Roberto JACQUES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-850.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Jones v. State, 804 So.2d 445 (Fla. 1st DCA 2001).

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


text:
    STATE of Florida, Appellant, v. J.S., a child, Appellee.
    No. 4D03-3839.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Linda Harrison, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Soca v. State, 673 So.2d 24 (Fla.1996); Grubbs v. State, 373 So.2d 905 (Fla.1979).

GUNTHER, STONE and POLEN, JJ., concur.


text:
    Michael NEWGENT, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D04-1287.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    Michael Newgent, pro se, appellant.

      Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The circuit court’s order dismissing the petition for writ of mandamus is reversed and the cause is remanded with directions to proceed to a disposition on the merits of the petition. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004); Davidson v. Crosby, 883 So.2d 866 (Fla. 1st DCA Aug.31, 2004).

REVERSED AND REMANDED.

DAVIS, BROWNING and HAWKES, JJ., concur.


text:
    Joshua ROGERS, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D04-1516.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    Joshua Rogers, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

DENIED. Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000).

DAVIS, BROWNING and HAWKES, JJ., concur.


text:
    David P. KEVER, Appellant, v. Joseph W. GILLIAM, Clerk of Gilchrist County Circuit Court, Appellee.
    No. 1D03-1057.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    Rehearing Denied Jan. 10, 2005.
    David P. Kever, Appellant, pro se.
    No appearance for Appellee.
   AMENDED OPINION

PER CURIAM.

Appellant seeks review of the partial denial of his petition for a writ of mandamus seeking to compel appellee to respond to his public records request, by which he sought (among other things) the names and addresses of jurors empaneled in his aborted February 1995 trial and his retrial, which resulted in a jury verdict of guilty on March 1, 1996. The trial court ordered appellee to provide the names and addresses of jurors from the 1995 trial but, apparently through oversight, failed to direct appellee to provide the names and addresses of jurors who served in the 1996 trial. The state has not favored us with any brief, and our own research has failed to disclose any basis for denying the names and addresses of the jurors who served in the 1996 trial. Accordingly, we reverse to the extent that, on remand, the trial court is directed to enter an amended order in turn directing appellee to provide appellant the names and addresses of jurors who served in appellant’s 1996 trial (to the extent appellee has that information in its possession). In all other respects, we affirm.

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

WOLF, C.J.; BARFIELD and WEBSTER, JJ., concur.


text:
    Bruce C. ADKINS, Petitioner, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 1D03-3870.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    Bruce C. Adkins, pro se, petitioner.
    Rosa Carson, General Counsel, and Chris Korn, Assistant General Counsel, Department of Corrections, Tallahassee, for respondent.
   PER CURIAM.

Because the circuit court issued a final order before the time expired for petitioner to file a reply, we grant the petition for writ of certiorari, reverse the final order and remand for further proceedings in which the petitioner is provided an opportunity to reply to the response filed below. See Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996).

PETITION GRANTED.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Cornelius DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3732.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    Cornelius Davis, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied as procedurally barred. See Den- hart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

DAVIS, BROWNING and HAWKES, JJ., concur.


text:
    Billy J. WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2441.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the motion states a cognizable claim that the written habitual felony offender sentence does not comport with the oral pronouncement of the sentence, we reverse and remand with instructions to determine whether the defendant is entitled to relief. See Fitzpatrick v. State, 863 So.2d 462 (Fla. 1st DCA 2004); Brooks v. State, 768 So.2d 513 (Fla. 2d DCA 2000).

REVERSED and REMANDED.

ERVIN, PADOVANO and LEWIS, JJ., concur.


text:
    STATE of Florida, Appellant/Cross-Appellee, v. Lavoderick K. REID, Appellee/Cross-Appellant.
    No. 5D03-3434.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and LaMya A. Henry, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    Michael W. Johnson, Ocala, for Appel-lee/Cross-Appellant.
   PER CURIAM.

The State of Florida appeals the trial court’s order sentencing Lavoderick K. Reid to thirty-five years incarceration, asserting that because he qualified as a Prison Releasee Reoffender, (“PRR”), pursuant to section 775.082(9), Florida Statutes (2001), a sentence of life imprisonment is mandatory.

A jury found Reid guilty of robbery with a firearm and attempted robbery with a firearm. The jury also specifically found that he did not carry a firearm during the robbery and attempted robbery. The seemingly inconsistent verdicts can only be explained by what must have been a successful defense strategy to label Reid as a principal in the first degree who was not actually at the commission of the offense. The robbery was accomplished by a sole gunman whose identity was obscured by articles of clothing.

Reid defends the trial court’s sentence of thirty-five years in the Department of Corrections by directing us to the definition of a PRR as a “defendant who commits or attempts to commit ... robbery.” Reid argues that because the jury instructions allowed his conviction either as the sole robber who stood before the victims or as a principal who was not viewed by the victims, the PRR statute is not applicable to him if he was a principal who did not actually commit or attempt to commit the crime.

Reid’s argument is not persuasive. Section 777.011, Florida Statutes, eliminates the distinctions between those who are actually or constructively present at the commission of the offense. One who “aids, abets, counsels, hires or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree” as is the one who actually carries out the plan of the crime. No distinction is made between those who are the brains of the crime and those who are the arms of the crime. § 777.011, Fla. Stat.

It is difficult to adopt Reid’s premise that one cannot be charged and convicted of a crime unless one physically commits the crime. Here, the jury found him guilty of a crime and to do so must have found that he committed the crime of robbery. The intent of the PRR is to enhance the criminal penalties of those who are repeat offenders of certain crimes, and Reid has qualified.

We vacate the sentence of thirty-five years in the Department of Corrections and remand for resentencing in accordance with the requirements of the PRR.

REVERSED AND REMANDED.

SAWAYA, C.J., SHARP, W., and PETERSON, JJ., concur.


text:
    David Neil CARR, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS and Florida Parole Commission, Appellees.
    No. 1D04-1591.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    David Neil Carr, pro se, appellant.
    Rosa Carson, General Counsel, and Chris Korn, Assistant General Counsel, Department of Corrections, Tallahassee, for appellees.
   PER CURIAM.

Because the circuit court denied the petition for writ of habeas corpus as moot upon an erroneous finding that petitioner had been released from custody, the final order of the circuit court is reversed and remanded for further proceedings. No motion for rehearing will be entertained and mandate shall issue forthwith.

REVERSED AND REMANDED.

ERVIN, PADOVANO and LEWIS, JJ., concur.


text:
    Jim McGAHEE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1729.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    Jim McGahee, pro se, petitioner.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the judgment and sentence rendered on July 31, 2002, in Nassau County Circuit Court case number 2000-0764-CF. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Kelvin R. JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1809.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    Kelvin R. Jenkins, pro se, petitioner.
    Charlie Crist, Attorney General, and Linda Horton Dodson and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee for respondent.
   PER CURIAM.

Petitioner’s direct appeal was dismissed when no response was received to an order requiring payment of the filing fee or the filing of an order of insolvency entered by the trial court. We grant the petition for belated appeal and hereby reinstate the appeal in case number 1D03-0596. Jurisdiction in that proceeding is relinquished to the trial court for a period of 30 days with directions to consider the appointment of the public defender if petitioner so qualifies.

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    Joseph J. CABRAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2056.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2004.
    Joseph Cabral, pro se, petitioner.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the judgment and sentence rendered on December 3, 2003, in Escam-bia County Circuit Court case number 03-0330-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

KAHN, WEBSTER and POLSTON, JJ., concur.


author: WHATLEY, Judge.

text:
    Marilyn MORGAN, Appellant, v. Michael MORGAN, Appellee.
    No. 2D03-2657.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2004.
    Victoria M. Ho and Jennifer J. Cohen of Asbell & Ho, P.A., Naples, for Appellant.
    Virginia R. Vetter, Tampa, and Stephen D. Thompson of Thompson & Schreiber, P.A., Ft. Myers, for Appellee.
   WHATLEY, Judge.

Marilyn Morgan, the former wife, appeals an order denying her supplemental counterpetition, which requested an increase in permanent alimony and collateral for the alimony award. We affirm without comment the denial of the request for an increase in alimony, but we reverse the portion of the order that failed to provide collateral for the alimony award.

On August 13, 1997, a final judgment of dissolution of marriage was entered which incorporated an agreement between the parties. The agreement provided that Michael Morgan, the former husband, would obtain, pay the premium for, and keep in effect a term life insurance policy. The agreement further provided that the former wife would be named as the irrevocable beneficiary of the policy as long as she is eligible for alimony payments.

In the order denying the former wife’s supplemental counterpetition, the circuit court found that the parties obtained a term life insurance policy that will expire on November 4, 2004, and that the policy may not be renewed or extended according to its terms. The court also found it unlikely that the former husband would be able to replace the existing term policy because he has been diagnosed with Alzheimer’s disease. Prior to the diagnosis, an initial inquiry by the former wife indicated that the term life insurance policy could be converted into a permanent policy for an additional $500 per month, which the former wife was willing to pay. The former husband refused to convert the policy into a permanent life insurance policy.

The circuit court further found that the former husband’s conduct constituted an anticipatory breach of the parties’ agreement and that it was more likely than not that the former husband would find a way to place his assets beyond the reach of his former wife as a potential creditor of his estate. However, the court failed to order the former husband to provide other security for the alimony award. This was error.

The former husband agreed, and the final judgment ordered, that he would maintain a life insurance policy as security for the alimony award. Because the former husband is no longer insurable, realistically, the only viable remedy would be for the circuit court to order the former husband to provide other security for the alimony award. See Hyotlaine v. Hyotlaine, 356 So.2d 1319 (Fla. 4th DCA 1978) (noting other possible means to secure alimony award). We therefore reverse and remand for the circuit court to order the former husband to provide other security for the alimony award. As previously noted, the denial of the former wife’s request to increase alimony is affirmed.

Affirmed in part; reversed and remanded in part.

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


author: WARNER, J.

text:
    Rick A. SWOPE, Appellant, v. Santo DiMARCO and Rosanna DiMarco, husband and wife, Larry Lunsford, and Triple AAA Realty, Inc., a Florida Corporation, Appellees.
    No. 4D03-4612.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Frank J. McKeown, Jr. of McKeown and Associates, P.A., West Palm Beach, for appellant.
    No brief filed on behalf of appellees.
   WARNER, J.

Appellant’s complaint alleging fraud in the inducement of a real estate contract was dismissed with prejudice. We reverse because the fraudulent inducement claim was not barred by the economic loss rule.

Appellant, Rick Swope, filed a complaint in 2002 alleging that he had entered into a contract to purchase a home from appel-lees, Santo and Rosanna DiMarco, with appellee Triple AAA Realty acting as broker. The sale closed in 1997. Swope claimed that while the defendants affirmatively represented that there were no matters or defects that affected the property’s value, they knew or should have known that latent material defects were present, including flooding of the home during inclement weather and structural defects with the patio and family room. His complaint alleged damages based upon the defendants’ fraudulent inducement to purchase the property. After the defendants moved for a more definite statement, Swope amended the complaint to allege that he discovered the defects in 1998, within four years of bringing the complaint, when the property flooded.

The defendants filed a motion to dismiss alleging that the suit was barred by the economic loss rule, because Swope failed to allege property damage independent of the breach of contract. The court granted the motion and dismissed Swope’s complaint with prejudice. This appeal follows.

In HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239 (Fla.1996), the supreme court held “[t]he economic loss rule has not eliminated causes of action based upon torts independent of [a] contractual breach even though there exists a breach of contract action. Where a contract exists, a tort action will lie for either intentional or negligent acts considered to be independent from acts that breached the contract.” The case came to the court on conflict with Woodson v. Martin, 663 So.2d 1327 (Fla. 2d DCA 1995). The court disapproved the majority in Woodson and approved Judge Alten-bernd’s dissenting opinion. HTP, 685 So.2d at 1240. Woodson involved a claim by a buyer of residential real estate for fraudulent inducement by the seller and broker. Woodson, 663 So.2d at 1327-28. The buyer alleged that the home had defects that were not revealed by the seller and were only discovered after the buyers moved into the home. Id. at 1327. In reviewing the case, the supreme court said:

Judge Altenbernd in his Woodson dissent recognized that fraudulent inducement claims may coexist with breach of contract claims, safe from the economic loss rule because the interest protected by fraud is society’s need for true factual statements in important human relationships, primarily commercial or business relationships. More specifically, the interest protected by fraud is a plaintiffs right to justifiably rely on the truth of a defendant’s factual representation in a situation where an intentional lie would result in loss to the plaintiff. Generally, the plaintiffs loss is a purely economic loss....

HTP, 685 So.2d at 1240 (citing Woodson, 663 So.2d at 1330 (Altenbernd, J., dissenting)). See also Hinton v. Brooks, 820 So.2d 325, 326 (Fla. 5th DCA 2001) (finding claim of fraudulent inducement to purchase real estate by failing to reveal extensive termite damage was not barred by economic loss rule).

In this case, Swope alleged that the defendants misrepresented that the property was free from defects in order to induce him to enter the contract. After Swope moved into the home, he discovered material defects in the property, of which he alleged that the sellers were or should have been aware, and that their failure to notify him of such defects constituted fraudulent inducement. These allegations are indistinguishable from the facts of Woodson. While Woodson held that the economic loss rule barred the plaintiffs fraudulent inducement claim, HTP disapproved Woodson and held that this type of fraudulent inducement claim is not barred by the economic loss rule.

The court erred in dismissing the complaint with prejudice. We reverse and remand for further proceedings.

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


text:
    A.M., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1957.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Fla. R. Juv. P. 8.135(b)(2); I.B. v. State, 816 So.2d 230 (Fla. 5th DCA 2002).

POLEN, TAYLOR and MAY, JJ., concur.


text:
    Debra BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3864.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Carey Haughwout, Public Defender, Dea Abramschmitt, Assistant Public De7 fender, West Palm Beach, and Debra Bennett, Fort Pierce, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Leonard v. State, 760 So.2d 114 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000); Robinson v. State, 373 So.2d 898 (Fla.1979).

FARMER, C.J., GROSS and HAZOURI, JJ., concur.


text:
    Raymond L. OWES, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3630.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Raymond L. Owes, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004).

STEVENSON, HAZOURI and MAY, JJ., concur.


text:
    Robert B. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-3727.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Robert B. Wilson, Indiantown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Tannihill v. State, 848 So.2d 442 (Fla. 4th DCA 2003).

SHAHOOD, TAYLOR and HAZOURI, JJ., concur.


author: PLEUS, J.

text:
    Misty BALOGAC, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1087.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2004.

      James B. Gibson, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

The defendant appeals from a restitution order entered pursuant to her convictions for dealing in stolen property and grand theft. Her sole assignment of error relates to the amount of restitution ordered, $2,692.00.

The defendant was charged by information with dealing in stolen property and grand theft. The grand theft count references the property involved as a “Whirlpool washer, GE dryer, Noritake china set, and other miscellaneous items of the value of three hundred dollars ($300.00) or more, but less than twenty thousand dollars ($20,000.00).” The affidavit of probable cause states that the stolen property:

Is described as a Whirlpool Washer, GE Dryer, Noritake China Set, Antique Cups, knife set, frying pan and a C/D Cassette Tape Radio. The total estimated value of the stolen property is $1,820.00.

The defendant agreed to plead guilty to the charges in exchange for a withholding of adjudication, two years probation and restitution, if any, and costs and fines. A judgment was entered in accordance with the plea agreement.

A hearing was held on the State’s request for restitution. At the outset of this hearing, the prosecutor announced the State was seeking restitution not only for the washer and dryer and “some dishes” but also for costs incurred by the victim to reconnect electric and water service to her property. The defense objected, arguing inter alia, that the utility costs were not included within the ambit of the prosecution.

During the hearing, the victim and the defendant each testified. According to the victim, she leased certain residential premises to the defendant but after six months was forced to evict her for non-payment. The defendant had allowed her boyfriend to move in but he was not on the lease.

The washer and dryer were missing after the defendant and her boyfriend were evicted. The defendant claimed her boyfriend took them though she acknowledged having pled guilty to the theft of those items. As to the utilities, the victim testified that utility service meters had been bypassed during the defendant’s occupancy, that the defendant never had the water or electric placed in her name as she was supposed to do. The defendant denied that she bypassed the utilities and claimed her boyfriend did it.

The trial court ordered restitution of $2,692.00 which included the $1,265.96 to get the electric turned on and $1,141.70 to get water service restored.

The defendant claims it was legal error to include these utility charges because they were not encompassed within the offense charged. The State counters that a trial court enjoys discretion in assessing restitution and that the information, by referencing “miscellaneous items,” was broad enough to encompass the utility charges incurred by the victim.

The restitution statute, section 775.089(l)(a), Florida Statutes (2003) provides in pertinent part:

In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode.

Before ordering restitution, the trial court “must find that loss or damage is causally connected to the offense and bears a significant relationship to the offense.” Glaubius v. State, 688 So.2d 913, 915 (Fla.1997). In Bernard, v. State, 859 So.2d 560 (Fla. 5th DCA 2003), this court explained that the causation and significant relationship tests work in tandem and not independently of each other.

In Bernard, this court considered whether the defendant could be liable for restitution relating to the taking and selling of nineteen television cable boxes where he was only charged in connection with one cable box. In holding that the defendant could not be required to pay restitution for the cable boxes not charged in the information, this court cited the following decisional law:

See Faulkner v. State, 582 So.2d 783 (Fla. 5th DCA 1991) (holding that defendant charged with dealing in stolen property consisting of one rifle could not be ordered to pay restitution for second, unrecovered rifle; loss of second rifle was not caused by charged offense); Noland [v. State], 734 So.2d 464, 466 [ (Fla. 5th DCA 1999) ] (stating that restitution cannot be ordered for a theft not encompassed within the charge contained in the information or for items outside the scope of the criminal prosecution).

859 So.2d at 562.

The State, while recognizing that this court has held that restitution cannot be ordered for a theft not encompassed within the crime charged, argues that use of the catch-all “miscellaneous items” in the information was sufficient to encompass the theft of electrical and water service occasioned by bypassing the meters. This argument, however, is refuted by the prosecutor’s position during the restitution hearing. The prosecutor admitted that the defendant “was charged with grand theft and this was not listed.” The prosecutor then asserted that since “its still within the statute of limitations, we can recharge her with another count of grand theft” regarding the bypassed meters. The prosecutor then stated:

We are essentially asking that those damages be consented to or we will pursue another grand theft charge, perhaps.

Later, the prosecutor continued:

We’re simply asking for all of the restitution that is due, we want to try to avoid filing another grand theft charge, if we can, but I guess it’s in the Defendant’s hands at this time.

It was only later during the hearing that the prosecutor switched gears and argued that the bypassed electric and water services could be viewed as other “miscellaneous items” that were stolen.

The prosecutor had it right initially. The theft of electric and water service was not encompassed within the charging document. When the defendant entered her plea, she did not plead guilty to theft of such services. Indeed, at the restitution hearing, the defendant denied bypassing the meters and claimed her boyfriend did it. The theft of the utility services was not encompassed within the charges to which the defendant pled.

Restitution was erroneously ordered as to the utility services under this court’s decisions in Bernard and Noland. Accordingly, we reverse and remand for entry of a corrected restitution order.

REVERSED AND REMANDED.

ORFINGER and TORPY, JJ., concur.


text:
    Rudolph LOVE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2695.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2004.
    Rudolph Love, Lowell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Rudolph Love appeals the summary denial of his rule 3.800(a) motion. The defendant was tried and convicted for the sale of cocaine and possession of cocaine. He was sentenced to 20 years as an habitual felony offender for the sale and sentenced to ten years as an habitual felony offender for the possession. This Court affirmed the conviction and sentence for sale, but remanded to the trial court to reconsider the habitual offender sentence for possession. See Love v. State, 792 So.2d 710 (Fla. 5th DCA 2001). The defendant was resentenced to five years and no direct appeal was taken.

The defendant then filed a 3.800(a) motion, claiming that the trial court had not orally pronounced that it was sentencing defendant as an habitual felony offender and that there were no written reasons given for imposing a guideline departure sentence. The circuit court denied the motion and this Court per curiam affirmed. See Love v. State, 824 So.2d 204 (Fla. 5th DCA 2002).

In this, his third bite at the apple, the defendant again claims that his habitual offender sentence is illegal. He argues this time that a prior conviction in Case No. 95-19638, which was within five years of his current offense, did not meet the requirements of section 775.084(5), Florida Statutes (2003). He claims that his sentence in Case No. 95-19638 was “stayed and withheld” because he was placed on probation and never actually sentenced in that case until he was sentenced on the current offense. Accordingly, he argues that this prior conviction did not meet the requirement that it must be sequential. See Smith v. State, 742 So.2d 352, 356 (Fla. 5th DCA 1999), which held that to qualify as a predicate offense, both the commission of the offense and the conviction for it must have occurred prior to sentencing for the offense for which habitualization is sought.

The defendant argues that the trial court’s imposition of probation does not qualify as a sentence, and therefore it cannot be relied on to comply with the sequential requirement of the habitual felony offender statute. He cites Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), as modified, 29 Fla. L. Weekly D215 (Fla. 4th DCA Jan.14, 2004). The court in Richardson reasoned that a sentence and probation are distinct concepts and emphasized that when a defendant is placed on probation, the court stays and withholds the imposition of a sentence. The court found that a defendant placed on probation had never been sentenced, so that when the defendant later violated that probation and committed a new offense, the defendant was being sentenced for the first time in the probation violation case,.and that conviction could not constitute a sequential conviction to the new offense.

On rehearing, the court in Richardson rejected the State’s suggestion that it had overlooked the provision in the habitual offender statute which states that placing a defendant on probation without an adjudication constitutes a prior conviction. See § 775.084(2), Fla. Stat. The Fourth District held that this provision is distinct from the provision requiring sequential convictions. It found that although placing a deféndant on probation without an adjudication may be considered a prior conviction, it cannot be considered a sequential sentence.

In McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), the Second District disagreed and held that a sentence, as. referred to in section 775.084, Florida Statutes, includes the sanction of probation. The court found that when the legislature enacted the habitual offender statute, it intended that once a defendant was twice convicted with sanctions, the third conviction would be enhanced. See also Teal v. State, 862 So.2d 871 (Fla. 2d DCA 2003).

There are numerous cases which hold that probation is not a sentence. See, e.g., Mack v. State, 823 So.2d 746 (Fla.2002) (probation is technically not a sentence); Waite v. City of Ft. Lauderdale, 681 So.2d 901 (Fla. 4th DCA 1996) (probation, is not a sentence but is a final disposition). It is also true that criminal statutes must be construed in the manner most favorable to the accused. See Richardson, supra.

However, as explained in State v. Malone, 489 So.2d 213 (Fla. 3d DCA 1986), whether or not an order of probation is or is not deemed a sentence depends on the policy to be served. In Poore v. State, 531 So.2d 161 (Fla.1988), the court listed probation as a sentencing alternative. See also Larson v. State, 572 So.2d 1368 (Fla.1991), which recognizes that probation, as defined in Black’s Law Dictionary, is a sentence releasing a defendant into the community under supervision.

In State v. Barnes, 595 So.2d 22 (Fla.1992), the Supreme Court explained that the justification for requiring sequential convictions is based on the philosophy that an individual who has been convicted of one offense and who subsequently commits a second conviction, has rejected the opportunity to reform.

We conclude the purpose of the statutory requirement is met by construing a probation order to be a sentence within the meaning of the statute. Clearly, the defendant has been given an opportunity to reform when he or she is placed on probation. As emphasized in McCall, probation is a sanction. We believe the interpretation applied by the Fourth District in Richardson is hyper-technical and illogical. Why would the legislature allow an order of probation withholding adjudication to be a conviction which can qualify a defendant for habitualization, but not consider the order to be a sentence when determining whether the prior convictions were sequential? We affirm and certify conflict with Richardson.

AFFIRMED; CONFLICT CERTIFIED.

ORFINGER and TORPY, JJ., concur.

      . Section 775.084(2), Florida Statutes (2003), provides:
      (2) For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall'be treated as a prior conviction.


text:
    Robert PREVOST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2442.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2004.
    Robert Prevost, petitioner, pro se.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Upon consideration of the special master’s report and recommendation, the petition seeking belated appeal is denied on the merits.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Stefan M. LINDEN, Appellant, v. James V. CROSBY, Jr., Appellee.
    No. 1D04-2882.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2004.
    Stefan M. Linden, appellant, pro se.
    Charlie Crist, Attorney General, and Carrie R. McNair, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Upon consideration of appellee’s concession of error, the order transferring appellant’s petition for writ of mandamus to his sentencing court is reversed, and the matter is remanded to the circuit court for consideration of the merits of appellant’s petition. See Davidson v. Crosby, 883 So.2d 866 (Fla. 1st DCA 2004); Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Eric KAPLAN, D.C., Petitioner, v. DEPARTMENT OF HEALTH, Respondent.
    No. 1D04-4342.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2004.
    Edwin A. Bayo of GrayRobinson, P.A., Tallahassee, for petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as legally insufficient. Mandamus will lie to require the performance of a ministerial duty imposed by law on a public official or agency. See Sancho v. Joanos, 715 So.2d 382 (Fla. 1st DCA 1998). However, petitioner has failed to identify any legal authority imposing on the Department of Health a clear and indisputable duty to take the action he seeks to compel.

PETITION DENIED.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Preston Henry LONG, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3451.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2004.
    Nancy A. Daniels, Public Defender; John R. Alfino, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Preston Henry Long, raises two sentencing claims in this direct appeal from his judgment upon violating probation. The State concedes error on both points, and we reverse and remand for resentencing.

The State initially charged appellant with one count of burglary, one count of sexual battery, and one count of false imprisonment. Appellant pled guilty to the sexual battery and false imprisonment counts and was placed on probation. After appellant’s third violation of probation, the trial court sentenced him to two-and-a-half years’ imprisonment on both counts and to five years’ probation on the sexual battery count. Upon his release from prison, appellant began to serve a period of five years’ probation on the sexual battery count. As to the false imprisonment count, appellant had already served all the time required of him. The State then charged appellant with violating the terms of his probation on the sexual battery count. At a probation revocation hearing, the trial court made oral findings that appellant had materially violated certain terms of his probation and sentenced him to ten years’ imprisonment with credit for all time previously served. However, the judgment sentenced appellant to ten years’ imprisonment on both counts, rather than just the count of sexual battery. Appellant’s probation revocation order was silent as to the terms of probation he had violated.

Appellant filed a timely notice of appeal, and then filed a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), alleging that the trial court erred in sentencing him to a term of incarceration on the false imprisonment count and that the trial court erred in failing to make written findings in the order revoking appellant’s probation. Because the trial court did not rule on appellant’s 3.800(b)(2) motion within sixty days, the motion is deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B); Fla. R.App. P. 9.140(f)(6)(A); Robinson v. State, 850 So.2d 658, 660 (Fla. 1st DCA 2003). On appeal, appellant again raises both issues addressed in his rule 3.800(b)(2) motion.

Appellant’s first issue on appeal, as set forth in his rule 3.800(b)(2) motion, is that the trial court erred by sentencing him on the false imprisonment count, which was not charged in the Affidavit of Violation and for which appellant had already served his sentence. Clearly, this was error which must be remedied upon remand by resentencing appellant only on the count for which he was still on probation. Cf. Fryson v. State, 559 So.2d 377, 378 (Fla. 1st DCA 1990) (citations omitted).

Appellant’s second issue on appeal is that the trial court’s written order revoking his probation is legally deficient because it failed to state the conditions of probation that appellant had violated. We agree and, therefore, reverse and remand. See Williams v. State, 604 So.2d 8, 9 (Fla. 1st DCA 1992) (“Written sentencing documents, including probation orders, must conform to the trial court’s oral pronouncements.”); see also Hamer v. State, 682 So.2d 1221, 1221 (Fla. 1st DCA 1996); Byrden v. State, 622 So.2d 139, 140 (Fla. 1st DCA 1993); Dantler v. State, 584 So.2d 198, 198 (Fla. 1st DCA 1991) (holding that the trial court’s formal written order finding a probationer in violation of the terms and conditions of probation must conform to the oral pronouncements at the revocation hearing and sentencing) (citations omitted). On remand, the Order of Revocation shall be amended to conform to the trial court’s oral pronouncements made during the hearing regarding the conditions of probation appellant had violated.

Accordingly, on account of these conceded sentencing errors, we REVERSE and REMAND for resentencing and amendment of the Order of Revocation. Appellant need not be present when the trial court corrects these errors. See Lee v. State, 826 So.2d 457, 457 (Fla. 1st DCA 2002).

ERVIN, PADOVANO and LEWIS, JJ„ concur.


author: BENTON, J.

text:
    Ronald F. POWERS, Appellant, v. E.R. PRECISION OPTICAL CORPORATION and North American Risk Services, Appellees.
    No. 1D03-5092.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2004.

      Paul J. Morgan, of Paul J. Morgan & Associates, P.A., Winter Park, for Appellant.
    Jill M. Biggs, of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees.
   BENTON, J.

Ronald F. Powers appeals the summary final order deciding that his “workers’ compensation claims for injuries arising from an altercation with his co-worker on March 8, 200[2], are barred by the doctrine of election of remedies.” Because the appellant takes the position that his coworker was also the employer’s alter ego, we affirm.

On March 8, 2002, Robert Clark injured Mr. Powers while they were both at work for E.R. Precision Optical Corporation (ERPOC). The following June, Mr. Powers filed suit in circuit court against Mr. Clark for battery and, on the theory that he had acted as its agent, against ER-POC. On the basis of a verdict finding Mr. Clark guilty of battery while in the course of his employment for ERPOC, judgment was entered against Mr. Clark and ERPOC, awarding Mr. Powers $10,000 for past medical expenses, $10,000 for future medical expenses, and $2,500 for pain and suffering, disability, physical impairment, mental anguish, inconvenience, aggravation of disease or physical defect, and loss of capacity for the enjoyment of life.

After the civil suit had concluded, Mr. Powers filed petitions for benefits requesting payment of workers’ compensation disability benefits, calculated on the basis of a correct average weekly wage, authorization of an orthopedic spine specialist, and payment of medical bills. ERPOC and its insurer responded with a motion for summary final order, pursuant to Florida Administrative Code Rule 60Q-6.120, which the judge of compensation claims granted. The present appeal ensued.

Here as in Martin Elecs., Inc. v. Jones, 877 So.2d 765, 768 (Fla. 1st DCA 2004), the broad question is whether the injured employee is “judicially estopped to take an inconsistent position.” The appeal in Jones was taken from a circuit court order denying an employer’s motion to dismiss a civil suit on the ground that the principal plaintiff had successfully litigated entitlement to workers’ compensation benefits on an inconsistent theory of recovery. But the present case comes to us in a different procedural posture: Having already obtained a judgment in circuit court, Mr. Powers seeks workers’ compensation benefits.

The question in the present case, as in Jones, is whether the employee’s “two positions are indeed incompatible,” but the positions here differ in important respects from those taken in Jones. 877 So.2d at 768. In a civil complaint, Mr. Jones sought to recast an accidental industrial explosion, for which workers’ compensation benefits had been awarded, as “the result of intentional conduct on the part of’ his employer that created conditions so dangerous that his injury could not be called an “accident.” Id. at 767-68.

Martin argues on appeal, as it did below, that because Mr. Jones elected the workers’ compensation remedy by actively pursuing the workers’ compensation case to a conclusion on the merits, the Joneses are judicially estopped to take an inconsistent position in the present case, viz., that Mr. Jones’s injuries were not “accidental,” but the result of Martin’s intentional conduct, conduct that was substantially certain to result in injury or death. At issue is the purely legal question of whether these two positions are indeed incompatible. See Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000) (“The doctrine of election of remedies ‘... is an application of the doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course.’ Williams v. Robineau, 124 Fla. 422, 425, 168 So. 644, 646 (1936).”).

Id. at 768. While Mr. Jones’s allegations rendered his complaint incompatible with his petition for benefits, Mr. Powers’s allegations did not render his petitions for benefits incompatible with his complaint. Mr. Powers first alleged a battery by a fellow employee, and recovered on that basis in circuit court, then alleged, perfectly consistently, in the petitions for benefits now under consideration, that “owner of company [who was also the co-employee] pushed Claimant over machine.” He has never alleged that ERPOC was guilty of an intentional tort.

Mr. Powers’s petitions for benefits do not allege that Mr. Clark pushed him accidentally, nor would workers’ compensation liability hinge on whether a co-employee’s pushing was intentional, unless the co-employee was also the employer’s alter ego: Claimants intentionally injured by tortfea-sors, including fellow employees, are routinely awarded workers’ compensation benefits.

Florida courts have extended the definition of “accident arising out of ... employment” to encompass a wide variety of injuries caused by intentional torts, [] provided there is a sufficient nexus with the activities of the workplace itself. This is true where workplace tensions lead one employee to assault another, W.T. Edwards Hospital v. Rakestraw, 114 So.2d 802, 803 (Fla. 1st DCA 1959), where jealousy over a lovers’ triangle causes one worker to attack another with a workplace tool, Tampa Maid Seafood Products v. Porter, 415 So.2d 883, 885 (Fla. 1st DCA 1982), where an employee is robbed at the workplace by an armed gunman, Prahl Brothers, Inc. v. Phillips, 429 So.2d 386, 387 (Fla. 1st DCA), review denied, 440 So.2d 353 (Fla.1983), and where a worker is robbed at home by persons seeking workplace cash register receipts. Strother v. Morrison Cafeteria, 383 So.2d 623 (Fla.1980).

Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099, 1101 (Fla.1989) (footnote omitted). ERPOC contends that the present case is different because Mr. Powers obtained a judgment against it (as well as the fellow employee) in circuit court. But an offset can be allowed to prevent double recovery, see § 440.39(3)(a), Fla. Stat. (2001), and the dispositive inquiry remains whether the prior recovery was the result of Mr. Powers’s taking a position in the litigation in circuit court that is inconsistent with the position he took in the petitions for benefits.

We held in the Jones case that Mr. Jones could not proceed on the theory that his injuries were not the result of an accident, where he had already successfully litigated entitlement to workers’ compensation benefits on the theory that his injuries were the result of an accident, citing another unsafe workplace case, Matthews v. G.S.P. Corp., 354 So.2d 1243, 1244 (Fla. 1st DCA 1978) (“An employee may not elect to declare his injury to have been an accident occurring in the course of his employment and, thereafter, repudiate such position by alleging that the place and conditions of his employment were so dangerous that the injury was not in fact an accident.”). Jones, 877 So.2d at 768-69. But here the allegations Mr. Powers makes in the petitions for benefits, summarily dismissed by the judge of compensation claims, have not repudiated the position he took in the complaint he filed in circuit court. The allegations in both pleadings are consistent.

The complaint alleges as the basis for ERPOC’s liability that Mr. Clark was at all times relevant ERPOC’s agent and that he acted at all relevant times within the scope of his employment with ERPOC. In order to fall within the scope of his employment with ERPOC, Mr. Clark’s intentional, tortious conduct must have been “not unexpeetable” by ERPOC. The Restatement defines “scope of employment” as follows:

(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpeetable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) of Agency § 228 (1958). On this basis, the jury found ER-POC vicariously liable, without finding ERPOC itself guilty of an intentional tort.

The operative allegations in the petitions for benefits are not inconsistent with the circuit court allegation that Mr. Powers acted within the scope of his employment with ERPOC. On the other hand, an employee (whose employer has secured workers’ compensation insurance) has no legal right to sue the employer, for an injury a fellow employee (or other third party) causes in an industrial accident, unless the third party is the employer’s alter ego. See § 440.11(1), Fla. Stat. (2001) (“The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer .... ”); see also, e.g., Winn Dixie Stores, Inc. v. Parks, 620 So.2d 798, 800 (Fla. 4th DCA 1993) (finding employer immune from tort claims arising out of assistant manager’s murder by a co-employee, where workers’ compensation benefits were payable); McDaniel v. Sheffield, 431 So.2d 230, 231 (Fla. 1st DCA 1983) (holding workers’ compensation claim was sole remedy for dependents of an employee killed in a robbery at work).

Suit against the employer is allowed if the employer, or its alter ego, commits an intentional tort. Byrd, 552 So.2d at 1101 n. 5 (“[A]n injury intentionally inflicted by the employer himself or his or her alter egos does not fall within these principles, since workers’ compensation was not established to excuse misconduct of this type.”). A battery by an employer, unlike a battery by a co-employee who is not the employer’s alter ego, is, moreover, inherently irreconcilable with an industrial accident under section 440.11(1), Florida Statutes (2001). See Jones, 877 So.2d at 768. See generally § 440.11(1)(b), Fla. Stat. (2003) (describing circumstances where “employer’s actions shall be deemed to constitute an intentional tort and not an accident”).

On the present appeal, Mr. Powers has not successfully demonstrated that the recovery he obtained in circuit court against Mr. Clark individually is not a bar to the workers’ compensation claims he wants to pursue now. Since Mr. Clark was-according to Mr. Powers’s initial brief — ERPOC’s alter ego, the civil suit against Mr. Clark must be deemed a suit against ERPOC itself, rendering Mr. Powers “judicially estopped to take an inconsistent position” in the petitions for benefits. Jones, 877 So.2d at 768. An employer’s intentional tort (even if committed by an alter ego) is not an “industrial accident.” Id.

Affirmed.

HAWKES, J., Concurs; PADOVANO, J., Concurs in result.

      . Whether ERPOC could have avoided liability in the civil suit on the basis of statutory immunity is not before us for decision. See generally Byrd v. Richardson-Greenshields Sec., Inc., 552 So.2d 1099, 1100-02 (Fla.1989); Townsend v. Conshor, Inc., 832 So.2d 166, 167 (Fla. 2d DCA 2002); Moniz v. Reitano Enters., Inc., 709 So.2d 150, 153 (Fla. 4th DCA 1998); Winn Dixie Stores, Inc. v. Parks, 620 So.2d 798, 799-800 (Fla. 4th DCA 1993); McDaniel v. Sheffield, 431 So.2d 230, 231 (Fla. 1st DCA 1983); Chorak v. Naughton, 409 So.2d 35, 37-38 (Fla. 2d DCA 1981).
      On the date Mr. Powers was injured, section 440.11(1), Florida Statutes (2001), provided:
      (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer ... except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death.... The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer’s business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death....
      Section 440.11(1), Florida Statutes, has since been amended. Ch.2003-412, § 14, at 3890-91, Laws of Fla.

      .The petitions for benefits describe Mr. Clark as “owner” of ERPOC, but also alleges that he perpetrated a battery. Because battery is a misdemeanor of the first degree, § 784.03(l)(b), Fla. Stat. (2001), the maximum penalty for which (one year), § 775.082(4)(a), Fla. Stat. (2001), exceeds 60 days' imprisonment, the statutory immunity against civil liability otherwise afforded was unavailable to Mr. Clark individually, under the allegations both of the complaint and of the petitions. See § 440.11(1), Fla. Stat. (2001) ("The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082.”).

      . The judgment against ERPOC did not rest on an allegation that ERPOC committed an intentional tort. Under section 440.11(1), Florida Statutes (2001), an employer has no immunity from civil suit where the employer "engage[s] in any intentional act designed to result in or that is substantially certain to result in injury or death to the employee,” Eller v. Shova, 630 So.2d 537, 539 (Fla.1993), but Mr. Powers never alleged any such act on ERPOC's part. Mr. Powers’s theory in the civil complaint was that ERPOC was vicariously liable for the intentional tort Mr. Clark committed because it occurred in the scope of Mr. Clark's employment. But Mr. Powers has since alleged-in the initial brief, if not before-that Mr. Clark was ERPOC’s alter ego.

      . Defining industrial accidents to include fellow employees’ intentional torts has the effect of broadening employers' immunity against civil liability on theories of negligent hiring, retention and supervision of fellow employees.

      . Since the accident at issue in the present case, the Legislature has enacted ch.2003-412, § 14, at 3890-91, Laws of Fla., codified as § 440.11(1), Florida Statutes (2003), intended to make even an employer’s vicarious liability in tort legally antithetical to responsibility under the Workers' Compensation Law. See Fla. S. Comm, on Banking & Ins., SB 50-A (2003) Staff Analysis 18 (rev. May 23, 2003) (on file with comm.) (’’[T]he liability of an employer for compensation prescribed in s. 440.10, F.S., is exclusive and in place of all other liability, including vicarious liability, except in cases where the employer commits an intentional tort that causes the death or injury of an employee.”).

      . An employee’s intentional tort’s being "not unexpeetable” to the employer is very different from the employer itself ”engag[ing] in [some] intentional act designed to result in or that is substantially certain to result in injury or death.” Eller, 630 So.2d at 539.


text:
    Otis WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4697.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2004.

      Pro se, for Appellant.
    Charles J. Crist, Jr., Attorney General; Shasta W. Kruse, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Otis White (Appellant) appeals a final order denying his Motion to Correct Sentencing Error. Concluding that Appellant’s motion raises factual questions and is facially sufficient and timely filed under Florida Rule of Criminal Procedural 3.850, we reverse the trial court’s order and remand for an evidentiary hearing.

The State’s information charged Appellant with robbery with a firearm, a first-degree felony punishable by life pursuant to section 812.13(2)(a), Florida Statute (2001); and felony fleeing a duly authorized police officer. According to a written offer of plea filed in the circuit court on June 20, 2002, Appellant pled guilty to “aiding & abetting robbery w/a f.a. (no min. manditory [sic]).” According to the June 20, 2002, written judgment/sentence, Appellant entered a guilty plea to “aiding & abetting robbery with farm,” which is listed as an “LIO” (lesser-included offense) of the charged crime. He was classified as a prison releasee reoffender and sentenced to four years’ incarceration.

Appellant filed a December 16, 2002, sworn Motion to Correct Sentencing Error alleging that he had entered a plea to robbery without a firearm and that on June 20, 2002, the trial court had entered judgment against Appellant for robbery without a firearm. Appellant asked the court to correct the alleged scrivener’s error to comport with the crime t.o which Appellant alleges he actually pled. He attached to his motion two exhibits: the first page of the written judgment form, and a purported Courtroom Documentation sheet dated June 20, 2002, listing the charge as “aiding & abetting robbery while armed ivithout firearm.” On the Courtroom Documentation sheet, “out” appears to have been added after the word “with.” Under the “Remarks” section, the following is written: “Plea entered, accepted, sentenced.” The sheet appears to have been signed by a circuit judge.

Although Appellant styled his motion under Florida Rule of Criminal Procedure 3.800(b), the trial court determined it should be treated as a Rule 3.800(a) motion. Having determined that “the paperwork from the court file is inconclusive as to which charge is correct,” the trial court ordered the State to respond to the motion. The State argued that the offer of plea form and the judgment/sentence form correctly reflect the crime with which Appellant was charged, and to which he pled. The State did not acknowledge the Courtroom Documentation sheet. In his reply, Appellant asserted that the offer of plea form lists the crime as “robbery w/o f.a.”

In its final order, the trial court construed the offer of plea form as indicating “robbery w/a f.a.,” ie., robbery with a firearm. The court did not address the Courtroom Documentation sheet and its facial conflict with the written judgment form and, perhaps, with the plea.

Appellant has the burden to “ensure that a proper record is transmitted to the appellate court.” Wyche v. State, 624 So.2d 830, 832 (Fla. 1st DCA 1993). According to Rule 3.800(a), “[a] movant is required only to allege what part of the record demonstrates an entitlement to relief.” Ferguson v. State, 746 So.2d 1171, 1172 (Fla. 4th DCA 1999). Appellant met these requirements. Generally, Rule 3.800(a) is appropriate only where the claim can be resolved from the face of the record, ie., without resort to fact-finding after an evidentiary hearing. See Maynard v. State, 763 So.2d 480 (Fla. 4th DCA 2000). Because Appellant’s motion raised questions of fact regarding the crime to which Appellant actually pled, Rule 3.850 is the proper avenue for relief. Inasmuch as the motion raises factual issues and is sworn and timely filed, in accordance with the requirements of Rule 3.850, the trial court erred in failing to hold an evidentia-ry hearing.

We REVERSE the order and REMAND with directions to the trial court to hold an evidentiary hearing to resolve the factual questions.

WOLF, C.J. and HAWKES, J., concur.

      . Appellant alleged that the offer of plea form indicates the crime as "robbery w/o f.a.”

      . In its answer brief filed pursuant to our order under Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the State concedes that "if this Court determines that an evidentiary hearing is necessary, Appellant's motion should be treated as filed pursuant to rule 3.850, Fla. R.Crim. P.”