text:
    Richard MIDRIFF, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2133.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Bonilla v. State, 766 So.2d 1192, 1193 (Fla. 5th DCA 2000) (holding “[i]f the plea agreement was not conditioned on the sentencing guidelines, [an appellant] is not entitled to relief because his sentence is not illegal”).

THOMPSON, MONACO and TORPY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Chester Jon BRADSHAW, Appellee.
    No. 5D03-2669.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The State appeals from an order dismissing a charge of criminal mischief. The charges arose out of Chester Bradshaw’s alleged destruction of an earthen berm in a preserve owned by the State of Florida. A motion to dismiss under rule 3.190(c)(4)of Florida Rules of Criminal Procedure should be granted sparingly and only when no factual basis exists which could establish a prima facie case of guilt. State v. Fordham, 465 So.2d 580 (Fla. 5th DCA 1985). The facts alleged in Mr. Bradshaw’s motion, that there were no victims and no damage in this case, were disputed by the State and therefore, dismissal of the charge was error.

REVERSED and REMANDED.

PALMER and ORFINGER, JJ., concur.

PLEUS, J., dissents without opinion.


author: SHARP, W., J.

text:
    Levory W. HICKMON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-588.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Levory W. Hickmon, Sanford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Hickmon appeals from the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800, seeking to correct an “illegal sentence,” in his 1997 criminal case, No. 97-598. The trial court denied the motion because it was successive and lacked merit. We affirm.

After a jury trial, Hickmon was convicted in 1997 of sale or delivery of cocaine and possession of cocaine. He was sentenced in 1998. Hickmon appealed and this court PCA’d. See Hickmon v. State, 729 So.2d 942 (Fla. 5th DCA 1999). He then filed a motion pursuant to Florida Rule of Criminal Procedure 3.850, raising eleven claims about his drug convictions. The trial court denied relief and this court affirmed. Hickmon v. State, 755 So.2d 787 (Fla. 5th DCA 2000).

Next, Hickmon filed a motion pursuant to Florida Rule of Criminal Procedure 3.800, seeking relief under Heggs. He was eventually resentenced in 2000 to 22 months on his 1998 judgment. Obviously, the term of his sentence has expired. He is apparently still incarcerated because of a 2001 cocaine conviction.

It is not clear to this court why Hickmon filed this motion in regard to his sentence in Case No. 97-598. What is clear, however, is that Hickmon has exhausted this court’s patience with his numerous, successive motions filed in connection with this criminal case. Accordingly, we order Hickmon to show cause why he should not be barred from filing any further pro se pleadings or motions in connection with his 1997 criminal case, within 30 days. See State v. Spencer, 751 So.2d 47 (Fla.1999).

AFFIRMED.

PLEUS and MONACO, JJ., concur.

      . §§ 893.13(l)(a)l. and 893.13(6)(A), Fla. Stat.

      . Heggs v. State, 759 So.2d 620 (Fla.2000).


text:
    Michael SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-421.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.

      Michael Scott, Mayo, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Michael Scott appeals the summary denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Scott alleges that he was sentenced at the same time for several cases in Volusia County. He received terms of incarceration in three of these cases, to be followed by a term of probation in Case No. 95-31957. Scott completed his terms of incarceration and was released to begin serving his term of probation. In May 2003, Scott’s probation was revoked and he was sentenced to 31.2 months’ incarceration, with jail credit in the amount of 394 days.

Scott claims that he did not receive prison credit for the time served on the other cases. Scott cites Tripp v. State, 622 So.2d 941 (Fla.1993), where the Florida Supreme Court held that when a trial court sentences a defendant under a single scoresheet to incarceration for one offense followed by probation for a second offense, prison credit for time served on the first offense must be awarded against the sentence imposed on the second offense after revocation of probation. See also State v. Witherspoon, 810 So.2d 871 (Fla.2002).

The trial court, in denying relief, stated only that Scott had received jail credit in the amount of 394 days and would not be entitled to additional jail credit. However, this leaves open the question of whether Scott is entitled to prison credit. When a defendant is entitled to prison credit, the trial court does not have to calculate the number of days, but must direct DOC to calculate and apply the prison credit. See Newman v. State, 866 So.2d 751 (Fla. 5th DCA 2004). The written sentence, attached to the order denying relief, makes no provision for prison credit. Moreover, the trial court did not check the box which authorizes DOC to compute and apply credit for time served in state prison.

This claim for additional prison credit may properly be raised in a 3.800(a) motion. Id.; see also Burnett v. State, 745 So.2d 1043 (Fla. 2d DCA 1999). We therefore reverse the order denying relief and remand the case to the trial court for reconsideration. If Scott is entitled to prison credit, the trial court should make that notation in the written sentence. Otherwise, the trial court must attach portions of the record refuting Scott’s allegation that he was sentenced under a single scoresheet to incarceration followed by probation in several cases, or otherwise demonstrate that Tripp is inapplicable. See Weigle v. State, 789 So.2d 1217 (Fla. 5th DCA 2001).

REVERSED and REMANDED.

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


text:
    Katherine EZZELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-632.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Katherine Ezzell, Brooksville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Ezzell appeals from the summary denial of her motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) seeking to correct an illegal sentence. She claimed that the Orange County jail docket would establish that she was entitled to three days additional jail credit against her sentence. The judge allowed her 37 days, relying on arrest records showing Ezzell was arrested on May 8, 2003 in Orange County for violation of probation.

Based on the records before the trial judge, he ruled correctly. However, supplemental filings in this court indicate Ezzell was arrested on May 2, 2003 in Jacksonville, based on an Orange County capias, for this violation of probation incident.

Accordingly, we affirm without prejudice to Ezzell to file a legally sufficient motion, with attachments, alleging the facts, times and places where she was arrested, which indicate she is entitled to additional days of jail credit.

AFFIRMED.

SHARP, W., PLEUS and PALMER, JJ., concur.


text:
    Jessie LEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-792.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    Jesse Lee, Bushnell, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to Appellant to file a motion pursuant to Florida Rule of Criminal Procedure 3.850. See, e.g., Wilson v. State, 779 So.2d 326 (Fla. 2d DCA 1999).

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


text:
    Ardie H. BLANTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2438.
    District Court of Appeal of Florida, Fifth District.
    May 14, 2004.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

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

SHARP, W., J., concurs specially with opinion.

SHARP, W., J., concurring specially.

See State v. Mounce, 866 So.2d 132 (Fla. 5th DCA 2004).


text:
    Michael CARROLL, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-3368.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    John A. Garcia of John A. Garcia, P.A., West Palm Beach and Michael Carroll, Lake Worth, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Because the trial court erred in re-sentencing appellant in his absence and without counsel, and further erred in using an incorrect scoresheet to re-sentence him, we reverse and remand for re-sentencing with a corrected scoresheet, at a hearing at which he is present and represented by counsel.

GUNTHER, STEVENSON and TAYLOR, JJ., concur.


text:
    230 EAST 7th STREET ASSOCIATES, etc., Appellant, v. The WOLKOW COMPANY, Appellee.
    No. 3D03-2563.
    District Court of Appeal of Florida, Third District.
    May 19, 2004.
    Horan, Horan & Wallace and Edward Horan, for appellant.
    Morgan & Hendrick and James Hen-drick and Karen K. Cabanas, for appellee.
    Before SCHWARTZ, C.J., and WELLS and SHEPHERD, JJ.
   PER CURIAM.

The appellant bases its claim to a vested right to intrude into the appellee’s easement on alleged adverse possession. Because we find, as a matter of law, that the record is insufficient to establish such a right, see Mumaw v. Roberson, 60 So.2d 741 (Fla.1952); Bentz v. McDaniel, 872 So.2d 978, 2004 WL 1058324 (Fla. 5th DCA May 7, 2004); Enos v. Casey Mountain, Inc., 532 So.2d 703 (Fla. 5th DCA 1988), review denied, 542 So.2d 988 (Fla.1989); Kitzinger v. Gulf Power Co., 432 So.2d 188 (Fla. 1st DCA 1983), and that any such right, even if it existed, was abandoned by the passage of more than two decades since it was last exercised, see Kitzinger, 432 So.2d at 188, we approve the judgment below in favor of the appellee easement holder. See also Hale v. Miracle Enters. Corp., 517 So.2d 102 (Fla. 3d DCA 1987).

Affirmed.


text:
    Jeffrey HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-5029.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Monique E. LTtalien, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the judgment and sentence as the error, if any, in failing to strike a juror for cause was not preserved. Joiner v. State, 618 So.2d 174, 176 (Fla.1993); § 924.051(3), Fla. Stat. (2002).

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    William McGEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3638.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Appellate counsel filed a brief as permitted by In re Anders Briefs, 581 So.2d 149 (Fla.1991), noting that the written order of revocation of community control did not conform with the court’s oral pronouncement. Appellant filed a pro se brief seeking reversal of the community control violation order. Competent, substantial evidence supports the court’s oral finding that appellant willfully violated his community control, therefore, we affirm the revocation ruling.

Nevertheless, the written revocation order does not conform to the trial court’s oral ruling because it fails to state which conditions of community control were violated. The case is therefore remanded to the trial court for entry of a written order that conforms to the oral pronouncement. See Baldwin v. State, 855 So.2d 1180 (Fla. 1st DCA 2003). Appellant need not be present. See Cozart v. State, 823 So.2d 234 (Fla. 1st DCA 2002).

AFFIRMED in part and REMANDED in part for entry of a conformed order.

BOOTH, POLSTON and HAWKES, JJ., concur.


text:
    Terry Lee REED, Appellant, v. James V. CROSBY, Appellee.
    No. 1D03-4968.
    District Court of Appeal of Florida, First District.
    May 21, 2004.
    Terry Lee Reed, appellant, pro se.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

We treat appellee’s motion to remand as a confession of error, and in accordance therewith, the order of dismissal is reversed. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). The case is remanded to the Circuit Court for Leon County for further proceedings.

REVERSED AND REMANDED.

KAHN, WEBSTER and BROWNING, JJ., concur.


author: WHATLEY, Judge.

text:
    Lynda Dianne PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5075.
    District Court of Appeal of Florida, Second District.
    May 28, 2004.
   WHATLEY, Judge.

Lynda Dianne Perry appeals the summary denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In her motion, Perry raises three grounds for relief, only one of which is cognizable in a rule 3.850 motion. The trial court summarily denied Perry’s motion but failed to provide any explanation or record attachments to support the denial. We affirm the trial court’s order as to grounds two and three of Perry’s motion because they are not cognizable in a rule 3.850 motion for post-conviction relief. We reverse as to ground one of Perry’s motion and remand for the trial court to reconsider Perry’s claim of ineffective assistance of counsel because Perry’s claim appears to be facially sufficient. If the trial court again summarily denies ground one of Perry’s motion, it must provide an explanation of the reasons for the denial and attach any relevant portions of the record to support the denial. See Suleiman v. State, 861 So.2d 1175 (Fla. 2d DCA 2003).

Reversed and remanded.

FULMER and KELLY, JJ„ Concur.


author: DAVIS, Judge.

text:
    In re FORFEITURE OF: $7464 + 2002 CADILLAC ESCALADE, IDENTIFICATION NO. 3GYEK63N02G222802. City of Sarasota, Appellant, v. Bradley Polanco, Appellee.
    No. 2D03-4776.
    District Court of Appeal of Florida, Second District.
    May 28, 2004.

      James C. Siegfreid of Taylor, Lawless & Singer, P.A., Sarasota, for Appellant.
    Michael S. Perry of Michael S. Perry, P.A., Sarasota, for Appellee.
   DAVIS, Judge.

The City of Sarasota (“the City”) challenges the trial court’s final order finding that Bradley Polanco had standing to challenge the forfeiture of a 2002 Cadillac Es-calade and that the City did not establish probable cause for the forfeiture. We reverse.

The instant forfeiture stems from an incident in which Peter Hoffman was arrested for drug trafficking following a controlled drug purchase conducted by Sarasota police officers. Hoffman arrived at his meetings with the officers in a 2002 Cadillac Escalade. Following his arrest, the Escalade was seized. The certificate of title for the Escalade was found in its glove box and bore the name Bradley Po-lanco. Polanco, however, had signed the certificate next to the word “seller”; no purchaser was specified on the certificate.

A certain sum of cash was also seized from Hoffman’s apartment, and forfeiture proceedings were initiated by the City with regard to both the cash and the Esca-lade. Hoffman requested an adversarial preliminary hearing, at which he conceded that he did not have standing to challenge the forfeiture of the Escalade; Hoffman proceeded at that hearing with only his challenge of the forfeiture of the cash.

Subsequently, Polanco requested an adversarial preliminary hearing in order to challenge the forfeiture of the Escalade. At the hearing, the City argued that Po-lanco did not have standing to make such a challenge. In support of this argument, the City presented evidence that Polanco had signed the Escalade’s certificate of title as the “seller,” had accepted $32,000 from Hoffman in exchange for the Esca-lade, had relinquished possession of the vehicle to Hoffman, and had told Hoffman to get the title transferred because he was going to drop the insurance he carried on the vehicle.

The trial court, however, concluded that Polanco did have standing and proceeded to the issue of probable cause to maintain the forfeiture action, ultimately concluding that the City did not establish probable cause.

On appeal, the City maintains that because Polanco had divested himself of his ownership interest in the Escalade, he did not have standing to challenge the forfeiture proceeding. Furthermore, the City argues that it did establish probable cause.

“[O ]nly persons who have standing can participate in [a] forfeiture proceeding.” Cochran v. Jones, 707 So.2d 791, 794 (Fla. 4th DCA 1998). Furthermore, “a claimant’s standing to challenge the forfeiture is predicated on its ownership claim to the property.” Id.

Here, the City argues that by signing the title, accepting $32,000, and handing over possession of the Escalade, Polan-co transferred his ownership interest to Hoffman. Polanco, however, claims that because the certifícate of title did not comply with the requirements of chapter 319, Florida Statute (2002) (requiring a certificate of title to specify the purchaser, sale price, and odometer reading), title did not transfer. We cannot agree with Polanco’s position.

A person acquiring a motor vehicle ... from the owner thereof, whether or not the owner is a licensed dealer, shall not acquire marketable title until he has had issued to him a certificate of title to the motor vehicle.... The purchaser’s failure to obtain the title certificate at the time of sale does not, however, prevent the passage of title from the seller to the buyer.

Green Tree Acceptance, Inc. v. Zimerman, 611 So.2d 608, 610 (Fla. 2d DCA 1993) (emphasis added). Accordingly, while the status of Hoffman’s ownership interest based on marketable title may be affected by the defects in the certificate of title, those defects did not prevent title from passing from Polanco.

Accordingly, we reverse the trial court’s conclusion that Polanco had standing to challenge the forfeiture action. As such, we need not address the issue of whether the City established probable cause.

Reversed.

SILBERMAN and COVINGTON, JJ., Concur.