author: CASANUEVA, Judge.

text:
    John Wayne TATUM, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-177.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2003.

      Timothy W. Weber and Aubrey 0. Dicus of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

After being found guilty by a jury of racketeering in the operation of a pawn shop, John Wayne Tatum challenges his conviction, claiming that the court improperly instructed the jury on his criminal intent. Mr. Tatum raises four issues; we reverse because we find merit in the first, that his due process rights were violated because the trial court gave a special jury instruction on a presumption of guilt in dealing in stolen property, based on section 812.022(4), Florida Statutes (1997), without a proper predicate. Although the State claims the issue was insufficiently preserved for appellate review, we find the error to be fundamental. See Reed v. State, 837 So.2d 366, 369 (Fla.2002) (holding it is fundamental error to inaccurately define the malice element of the crime where that element was disputed); see also Abbott v. State, 744 So.2d 578 (Fla. 2d DCA 1999). We have also carefully considered Mr. Tatum’s arguments on the remaining three issues and affirm as to them.

The essential facts of the case are not disputed. Mr. Tatum, while operating his family’s pawn shop business, fell prey to a sting operation begun when St. Petersburg police officers became suspicious of one of his employees, Wayne Newton, who was apparently engaging in illegal fencing activities with known burglars at a local motel. Mr. Tatum was not implicated in this fencing operation; charges against him were based solely on purchases he or Mr. Newton made at his pawn shop. Two plainclothes detectives gained Mr. Newton’s trust and confidence and sold him or Mr. Tatum mostly watches and jewelry. Although the undercover officers represented to either Mr. Tatum or Mr. Newton that some of the merchandise they wanted to pawn belonged to them, other evidence demonstrated that some merchandise was stolen and Mr. Tatum either knew or should have known it was.

The State charged Mr. Tatum with a violation of the Florida Racketeer Influenced and Corrupt Organization [RICO] Act, based on ten alleged predicate acts of conspiring to deal in stolen property or dealing in stolen property between July 1998 and February 1999. At Mr. Tatum’s trial in which Mr. Newton was the main witness against him, the jury found him guilty of the RICO charge, a first-degree felony. The trial court adjudicated him guilty and sentenced him to seven and a half years in prison. Mr. Tatum’s criminal intent was the contested issue, based solely on his and his employee’s dealings with undercover officers during the sting operation.

At the jury charge conference and over objection by defense counsel, the State requested and the trial court acquiesced to a special jury instruction that tracked the language of section 812.022(4). This section is titled “Evidence of theft or dealing in stolen property,” and subsection (4) provides:

Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.

Mr. Tatum argues that giving this special instruction violated his due process rights by creating a mandatory rebuttable presumption of guilt, shifting the burden of proof to the defendant, or, alternatively, by creating an arbitrary and irrational permissive inference. We agree with Mr. Tatum that this case must be reversed but on a narrower ground than the constitutional issue he raises. Mr. Tatum claims that the language of the instruction impermissi-bly shifted the burden of proof to the defendant, as a reasonable jury would understand it. We find that no predicate was laid for the giving of this instruction, and, thus, Mr. Tatum is entitled to a new trial with a properly charged jury.

IMPROPER PREDICATE

Section 812.022(4) states that if the State proves that a dealer in property purchases or sells stolen property “out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained,” an inference arises that the person buying or selling the property knew or should have known that the property was stolen. This language focuses on the accused’s state of mind or mens rea, because the State is trying to show that the accused “knew or should have known” that the property was stolen. A special jury instruction based on this language is permissible only when an evidentiary predicate is properly laid. The predicate should focus upon an accused’s direct and personal behavior or involvement in the transaction giving rise to the crime of purchasing stolen property.

When the issue is mere possession of stolen property rather than a dealer in property dealing in stolen property, subsection (2) of the same statute, like subsection (4), permits the jury to draw an inference regarding an accused’s knowledge of the stolen nature of property. To be entitled to the inference allowed by subsection (2), “the prosecution must demonstrate a factual basis for [the defendant’s] possession.” Boone v. State, 711 So.2d 594, 596 (Fla. 1st DCA 1998). Critically, “the instruction is proper only where the possession is personal, where it involves a distinct and conscious assertion of possession by the accused, and where the possession is exclusive.” Id. In Boone, at the time the defendant was taken into custody he did not personally possess or have custody of the stolen property. Furthermore, no evidence established that the accused had exercised any dominion or control over the stolen property. In the absence of such evidence, the First District held it was error to give a jury instruction based on section 812.022(2).

Applying the reasoning of Boone to the analogous situation before us, we conclude that before a trial court may give an instruction based on section 812.022(4) in the prosecution of a dealer in property, the State must also demonstrate a factual basis for the instruction. The statute establishes the predicate requirements:

1. that stolen property was purchased;
2. that the purchase was made by the defendant, a dealer in property; and
3. that the purchase took place either:
a. out of the regular course of business, or
b. without the usual indicia of ownership, other than mere possession.

The second element is especially noteworthy: the purchase must be made by the defendant. If all of the above requirements are met, the prosecution receives the benefit of the inference to which these facts give rise via the jury instruction, i.e., that the dealer had a particular state of mind when he made the purchase — he knew or should have known of the stolen nature of the property. The inference goes to prove an essential element of the crime, the defendant’s mens rea. Thus, entitlement to the statutory instruction is linked to the defendant’s conduct or direct participation in a transaction involving stolen property.

For example, if the evidence were to show that a third party purchased the stolen property but then testified that the purchase was done at the suggestion of the defendant, a dealer in property, there would be no conduct by the defendant from which a jury could logically infer the dealer’s requisite knowledge. Instead, the instruction and the inference arising from it would merely serve to improperly bolster the third party’s credibility. Such was the case in Boone, 711 So.2d at 596.

Because Mr. Tatum’s case involved a RICO prosecution, a number of criminal predicate acts were alleged, and the State was required to prove at least two of them. Two of these alleged predicate acts will serve to illustrate the statute’s application. The evidence showed that on August 11, 1998, the two undercover detectives brought five watches to pawn at Mr. Tatum’s shop. Their contact was with the employee, Mr. Newton. Then, Mr. Tatum walked over and examined the watches. Although the detectives represented that the watches belonged to them, there was evidence suggesting that it was more likely that the two were selling property they had stolen. Mr. Tatum exchanged cash for the watches and did not complete a pawn slip for the transaction. Here, Mr. Tatum’s participation in the transaction, including handing over the money, properly established an evidentiary basis to support giving the special instruction. The evidence indicated that Mr. Tatum was a dealer in property, that he personally purchased stolen property, and that he did so out of the regular course of business.

A second alleged predicate act took place on August 21, 1998. On this occasion, the undercover detectives did not deal with Mr. Tatum as he was not present in the shop. The detectives negotiated with Mr. Newton about purchasing thirteen items of gold jewelry, some containing diamonds and other gemstones. During their conversation with Mr. Newton, the detectives made veiled references to a burglary that had netted them the merchandise. Again, money was exchanged, a hundred dollars for all the items, and no pawn transaction form was completed. Because Mr. Tatum was absent and did not participate in this transaction, there was no personal conduct- from which an inference of his knowledge could be derived. The evidence failed to show that he, as a dealer, purchased any property, much less property that by the nature of the transaction suggested that it was stolen. Thus, giving the requested special instruction tracking the language of section 812.022(4) in this instance would be improper and only serve to bolster Mr. Newton’s testimony as a State’s witness.

Because it was error to instruct the jury without limitation or clarification as to Mr. Tatum’s personal involvement showing possible criminal intent in a particular alleged predicate act supporting the RICO charge, and because we cannot say that the error was harmless, we reverse and remand for a new trial.

CONSTITUTIONALITY

Because we remand for a new trial with a properly charged jury, it is likely that the trial court will be required to resolve Mr. Tatum’s argument that tracking the language of section 812.022(4), Florida Statutes (1997), is unconstitutional. We discuss the following cases only as an aid to the trial court should it be required to determine this issue on remand.

In Edwards v. State, 381 So.2d 696 (Fla.1980), our supreme court upheld the statutory inference created by section 812.022(2), Florida Statutes (1977), against constitutional challenges of violation of due process and the privilege against self-incrimination. There, the court found a rational connection between the fact proven, possession of stolen goods by the defendant, and the fact presumed or inferred, that the defendant knew the goods were stolen. Id. at 697. In a later case, the supreme court reiterated that “[j]ury instructions referring to the inference arising from the unexplained possession of stolen property have been specifically approved by this Court.” Consalvo v. State, 697 So.2d 805, 815 n. 18 (Fla.1996). Before Consalvo was decided, the United States Supreme Court spoke on at least three occasions of inferences juries may be allowed to make: County Court of Ulster County, New York v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); and Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). These three cases present an interesting evolution in the standard under which jury instructions are reviewed.

“A presumption is an evidentiary device that enables the trier of fact to presume the existence of an element of the crime from a basic fact already proven beyond a reasonable doubt. The vast majority of presumptions are given to the jury during the instructions on the law at the close of the evidence.” Santiago Defuentes v. Dugger, 923 F.2d 801, 804 (11th Cir.1991). In Ulster County, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777, the Supreme Court reviewed a New York statute that created a presumption of illegal possession of a firearm when certain other facts were shown. The Supreme Court admonished that:

The value of these evidentiary devices, and their validity under the Due Process Clause, vary from case to case, however, depending on the strength of the connection between the particular basic and elemental facts involved and on the degree to which the device curtails the factfinder’s freedom to assess the evidence independently. Nonetheless, in criminal cases, the ultimate test of any device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.

Ulster County, 442 U.S. at 156, 99 S.Ct. 2213 (citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 702-703 n. 31, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)). The Supreme Court then defined a permissive inference as one “which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant.” Id. at 157, 99 S.Ct. 2213. In comparison, a mandatory presumption “tells the trier that he or they must find, the elemental fact upon proof of the basic fact, at least unless the defendant has come forward with some evidence to rebut the presumed connection between the two facts.” Id. The concern with a mandatory presumption is twofold. First, it may affect the strength of the reasonable doubt burden of proof borne by the prosecution and, second, it may improperly shift the burden of proof to the defendant. Id. Because it is the prosecution’s burden to prove beyond a reasonable doubt every element of a charged offense, presumptions may not be utilized in the same way against a defendant in a criminal case as they might be against a defendant in a civil case.

The statutory presumption at issue in Ulster County told the jury that if the prosecution proved that loaded firearms were found in a vehicle, the jury could presume from this evidence that the occupants of the vehicle had unlawful possession of those firearms. However, the Court found that the presumption was effective only so long as there was no evidence from the prosecution contradicting the facts leading to the presumption, and the presumption disappeared when such contradictory evidence was adduced. Ulster County, 442 U.S. at 162-63, 99 S.Ct. 2213. Furthermore, in examining all the evidence the prosecution produced in the case, the Court noted that the statutory presumption did not need to be rebutted solely by affirmative proof from the defendant. It could have been rebutted by any evidence or lack of evidence in the case. Id. The Court noted that the facts of Ulster County showed that it was highly improbable that a 16-year-old female passenger in the company of three adult men was solely responsible for the two heavy handguns the police officer saw in plain view when he stopped the automobile. The two guns were in her purse on the front floorboard, and the two guns were so large that the purse could not be closed. The two guns were within easy access of the driver of the car and even, perhaps, of the two rear passengers. The Court concluded that it was reasonable for the jury to reach a guilty verdict because:

In such a case, it is surely rational to infer that each of the [defendants] was fully aware of the presence of the guns and had both the ability and the intent to exercise dominion and control over the weapons. The application of the statutory presumption in this case therefore comports with the standard laid down in Tot v. United States, 319 U.S. [463,] 467, 63 S.Ct. [1241,] 1244 [87 L.Ed. 1519] [ (1943) ], and restated in Leary v. United States, supra, 395 U.S. [6,] 36, 89 S.Ct. [1532,] 1548 [23 L.Ed.2d 57] [ (1969) ].

Ulster County, 442 U.S. at 164-65, 99 S.Ct. 2213. As applied, the Court concluded the statutory presumption in the New York statute did not violate the defendants’ due process rights. Id.

Six years later, in Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344, the Supreme Court concluded that a Georgia jury instruction on a statutory presumption violated the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt. The Georgia trial court had instructed the jury as follows:

The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.

Id. at 311-12, 105 S.Ct. 1965. Initially, the Supreme Court analyzed whether the instruction allowed a permissive inference or decreed a mandatory presumption. “A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.” Id. at 314, 105 S.Ct. 1965 (footnote omitted). In reviewing challenged language in a jury instruction, the Court said that the potentially offending words must be considered in the context of the entire jury charge in order to resolve the federal constitutional question of whether a reasonable jury could have understood the challenged language as a mandatory presumption that shifted the burden of proof or persuasion on the element of intent to the defendant once the State had proved predicate acts. Id. at 315, 105 S.Ct. 1965. This is so because other instructions may have cleared up any ambiguity that may have been perceived by the jury.

The Supreme Court found that the two challenged sentences were mandatory rebuttable presumptions, “cast in the language of command,” because each sentence used the words “are” or “is presumed.” Id. at 316, 105 S.Ct. 1965. The jurors were not told that they could infer a different conclusion or that they had a choice. Furthermore, the additional language indicating that the presumptions “may be rebutted” was not sufficient to save these instructions from the infirmity. “A mandatory rebuttable presumption is perhaps less onerous [than an irrebuttable or conclusive presumption] from the defendant’s perspective, but it is no less unconstitutional.” Id. at 317, 105 S.Ct. 1965. “The lesson of Franklin is clear — a mandatory rebuttable presumption concerning the issue of intent is impermissible under the Due Process Clause.” Lancaster v. Newsome, 880 F.2d 362, 366 (11th Cir.1989).

Finally, in Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 108 L.Ed.2d 316, the Supreme Court issued a reminder that the challenged jury instruction must be considered in the context of the entire set of instructions as well as the trial record. However, unlike Franklin, 471 U.S. at 315, 105 S.Ct. 1965, which phrased the constitutional issue as whether a reasonable juror could have understood the instruction as shifting to the defendant the burden of persuasion on the element of intent, in Boyde the Court held that where an ambiguous instruction was at issue the question was whether there was a “reasonable likelihood” that the “jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” 494 U.S. at 380, 110 S.Ct. 1190. See also Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). In a later opinion, the Supreme Court reiterated the standard outlined in Boyde and Estelle: “the proper inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.” Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994) (applying the “reasonable likelihood” standard to direct review of a state criminal conviction). See also Jones v. United States, 527 U.S. 373, 390, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999).

With this background in mind on remand, if the trial court determines that any special instruction based on section 812.022(4) passes constitutional muster as a permissive inference rather than a mandatory presumption, it may be advisable to include clarifying language in the jury instruction to avoid any reasonable likelihood that the jury will apply the instruction in an unconstitutional manner, by preventing it from considering constitutionally relevant evidence.

Reversed and remanded for a new trial.

ALTENBERND, C.J., and COVINGTON, J., concur.

      . These other claims were that the special instruction constituted judicial comment on the evidence, that he was entitled to an instruction on entrapment, and that there was prosecutorial misconduct in the State's closing argument.

      . § 895.01-.06, Fla. Stat. (1997).

      . §§ 812.019, 777.011, Fla. Stat. (1997).

      . Although defense counsel objected to the special jury instruction, it was not upon the same grounds advanced in this appeal. See Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982).

      . Based on our disposition, we decline to decide here whether this inference is mandatory or permissive, rebuttable or irrebuttable.

      . “Inferences and presumptions are a staple of our adversary system of factfinding. It is often necessary for the trier of fact to determine the existence of an element of the crime — that is, an 'ultimate' or 'elemental' fact — from the existence of one or more 'evi-dentiary' or 'basic' facts.” Ulster County, 442 U.S. at 156, 99 S.Ct. 2213.

      . The Court noted that there were several reasonable exceptions in the statute. For example, the presumption could not apply to a hitchhiker or a taxi cab driver. Ulster County v. Allen, 442 U.S. at 142 n. 1, 99 S.Ct. 2213 (1979).


source: Caselaw Access Project

author: VILLANTI, Judge.

license: Public Domain

text:
    Yolanda Denise EXILORME a/k/a Yolanda Pinkney a/k/a Yolanda Pickney a/k/a Yolanda Pinckney, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3197.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2003.
    James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Senior Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Yolanda Exilorme challenges the trial court’s entry of a final judgment of restitution ordering her to pay Burdines Department Stores (Burdines) $2215.24. Because the trial court erred in establishing a restitution amount without a restitution hearing as required by section 775.089, Florida Statutes (2002), we reverse and remand for further proceedings.

Exilorme was arrested for grand theft arising from an incident at Burdines. Thereafter, she entered into a waiver of prosecution agreement with Burdines, wherein she agreed to a restitution amount and allegedly made some payments pursuant to its terms. Because the waiver of prosecution was not binding on the State, there is no debate that the ensuing prosecution was nevertheless valid. However, once the State exercised its discretion to prosecute, Exilorme stopped making further restitution payments on advice of her defense attorney.

Ultimately, Exilorme entered an open, no contest plea to grand theft. In support of her request for mitigation, she submitted a copy of her agreement with Burdines and her repayment schedule. At the sentencing hearing, Exilorme again referred to her agreement with Burdines and indicated she had paid a portion of the restitution amount. The trial court sentenced Exilorme to forty-eight months’ imprisonment, and although there was discussion concerning restitution, there was no agreement as to an actual balance due, nor was an amount set at that time. Under these circumstances, it cannot be said that the sentencing hearing also constituted a restitution hearing as contemplated by section 775.089, nor does the State advocate this position. Two days later, without conducting any other hearing or giving any further notice or opportunity to object, the trial court entered a final judgment of restitution ordering Exilorme to pay Bur-dines $2215.24, which apparently represented the full amount she had agreed to pay in the waiver of prosecution agreement. No mention of any offset for the alleged partial payments was noted. This was error.

Section 775.089(7) requires a hearing, before restitution is imposed, to determine the amount owed to the victim as well as the defendant’s ability to pay. It is reversible error to impose restitution without notice or a hearing. Allen v. State, 718 So.2d 1264 (Fla. 2d DCA 1998); Faulkner v. State, 620 So.2d 794 (Fla. 1st DCA 1993); Burch v. State, 617 So.2d 846 (Fla. 4th DCA 1993). The State argues that State v. Sanderson, 625 So.2d 471 (Fla.1993), al6lowed the trial court to forego the hearing under the instant facts. The issue in Sanderson was whether a trial court lost jurisdiction to determine the amount of restitution if it had not done so within sixty days of imposing sentence. Id. at 472. The Florida Supreme Court held that the trial court must order restitution at sentencing or within sixty days of sentencing and that if it did, it would not lose jurisdiction to determine the amount later. Id. at 473. Exilorme does not contend that the court was without jurisdiction to order restitution, only that the amount was determined without a hearing. Nothing in Sanderson contemplates determining the amount of restitution without a hearing.

The State also argues that because Exilorme admitted the total amount owed to Burdines as part of her request for mitigation, no hearing was required. This might be correct if Exilorme were arguing that her plea did not include an agreement to pay any restitution. However, in this context, Exilorme is contesting only the amount of restitution, not her liability to pay whatever restitution is actually found owing at a properly held and noticed hearing.

Subsections 775.089(6) and (7) require a hearing to determine both the defendant’s ability to pay and the amount owed. While ability to pay is obviously less important in restitution lien cases when there is no probation to enforce collection, a hearing is still required. See Denmark v. State, 588 So.2d 324, 325 (Fla. 4th DCA 1991). More important, Exilorme is entitled to a hearing to determine the offset amount for any sums she has paid against the total restitution due. See Bowman v. State, 698 So.2d 615 (Fla. 2d DCA 1997). Therefore, we reverse and remand with instructions to the trial court to conduct a hearing to determine the amount of restitution due in accordance with section 775.089.

Reversed and remanded.

DAVIS and CANADY, JJ., concur.


author: FULMER, Judge.

text:
    In re Forfeiture of One 1988 Lincoln Town Car, VIN 1LNBM81F8JY612959 and One 1986 Lincoln Town Car, VIN 1LNBP96F7GY660841. William F. BALKWILL, as Sheriff of Sarasota County, Appellant, v. Joseph T. DeGREGORIO, Appellee.
    No. 2D01-1249.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2003.
    Electra Theodorides-Bustle, General Counsel, Sarasota, and Sarah E. Warren, Sarasota, Counsel for Appellant.
    Susan J. Silverman, Sarasota, for Appel-lee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

FULMER, Judge.

In DeGregorio v. Balkwill, 853 So.2d 371 (Fla.2003), the supreme court quashed this court’s opinion, In re Forfeiture of One 1988 Lincoln Town Car, 826 So.2d 342 (Fla. 2d DCA 2002), because it disapproved this court’s interpretation of several provisions in the Florida Contraband Forfeiture Act, sections 932.701-.707, Florida Statutes (1999). However, the supreme court expressly did not address the issue of Joseph T. DeGregorio’s standing to challenge the forfeiture of a 1988 Lincoln Town Car. Because DeGregorio did not hold legal title to the 1988 vehicle, for the reasons explained in our prior opinion, 826 So.2d 342, we conclude that he lacked standing to assert a claim to the vehicle and reverse the summary judgment entered in favor of DeGregorio as to that vehicle.

Reversed.

ALTENBERND, C.J., and SILBERMAN, J., concur.


author: WHATLEY, Judge.

text:
    David HIGGINBOTHAM, Appellant, v. Marianne HIGGINBOTHAM n/k/a Marianne Vacchio, Appellee.
    No. 2D02-3834.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2003.

      David J. Migneault, Punta Gorda, for Appellant.
    Connie Schider, Punta Gorda, for Appel-lee.
   WHATLEY, Judge.

We affirm the decision of the trial court in this matter but write on areas that otherwise cause us concern.

Dissolution of marriage cases are fraught with anxiety, emotion, and uncertainty. This case involves a seven-year marriage with three minor children. The issues were neither complex nor voluminous.

This court has previously expressed concern about parties spending limited resources that are otherwise needed for the welfare of the children. See Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991). Here, the trial court signed a stipulated order appointing a licensed psychologist to perform a parenting assessment, pursuant to section 61.20, Florida Statutes (2002). See Fla. Fam. L.R.P. 12.363. The psychologist selected was from Manatee County. The Husband’s gross monthly income was $5446 including overtime, and the Wife’s gross monthly income was $1560. The assets of the parties were modest. The cost of the twenty-nine-page parenting assessment was $20,000. Scant mention was made of the assessment in the amended final judgment.

If a judicial system is trying to reach a child placement decision in the best interest of the child, it is difficult to grasp how it is in the best interest of the child to deplete the resources of the family to this extent. The concept should be to devise a more cost-effective way of doing a parenting assessment or fashion a court order that would set a financial cap on the amount to be expended, with appropriate directions to the party performing the assessment. The expert, without guidance from the court, may feel compelled to perform an array of tests not otherwise necessary. In fact, the parenting assessment in question delineated that fourteen psychological tests were performed regarding the parents and seven psychological tests were performed regarding two of the parties’ three children.

The cost of the parenting assessment here was 24% of the parties’ combined gross annual income and 100% of the parties’ net worth as reflected on the Husband’s financial affidavit.

Affirmed.

ALTENBERND, C.J., and STRINGER, J., concur.

      . Judge Steinbeck was not the judge assigned to the case when the order in question was entered.


author: PER CURIAM.

text:
    David M. KRAUSE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2749.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion for additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because it is not clear from the record whether the trial court considered granting the appellant jail credit for the time he spent in an out-of-state jail solely on Florida charges, we reverse.

In the instant case, the appellant made a facially sufficient claim of foreign jail credit by providing the dates for which he is seeking credit, providing the date of his sentence, alleging where in the record it can be shown that he is entitled to relief and alleging that he was held solely on Florida charges. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). The trial court has discretion to award, and should consider awarding, credit to defendants for time served in foreign jails while awaiting transfer to Florida, particularly when the defendant was incarcerated in another state solely on Florida charges. Kronz v. State, 462 So.2d 450, 451 (Fla.1985). In the instant case, it is not clear from the record whether or not the trial court considered whether to grant the appellant jail credit for the time he spent in an Illinois jail.

We therefore reverse the trial court’s summary denial and remand with directions for the trial court to exercise its discretion about whether to award the appellant the additional jail credit. See Aller v. State, 792 So.2d 692, 698 (Fla. 1st DCA 2001); Harriman v. State, 798 So.2d 819 (Fla. 1st DCA 2001); Tyson v. State, 773 So.2d 598 (Fla. 1st DCA 2000).

REVERSED and REMANDED.

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


text:
    Reginald HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-182.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2003.
    James Marion Moorman, Public Defender, and Judith Ellis, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Reginald Henry appeals his convictions and sentences for multiple offenses arising from his attack on several correctional officers on March 24, 2000. We affirm Henry’s convictions, with the correction of a scrivener’s error, but we reverse the prison releasee reoffender sentences and remand for resentencing.

Henry was convicted and sentenced as follows: for attempted second-degree murder with a deadly weapon, a first-degree felony under sections 782.04(2), 777.04, and 775.087(1), Florida Statutes (1999), thirty years in prison as a prison releasee reof-fender (PRR); for aggravated battery of a law enforcement officer, a first-degree felony under section 784.07(2)(d), Florida Statutes (1999), thirty years as a PRR; for aggravated assault on a law enforcement officer, a second-degree felony under section 784.07(2)(e), fifteen years as a PRR; for battery on a law enforcement officer, a third-degree felony under section 784.07(2)(b), five years; and for possession of contraband in a state correctional facility, a second-degree felony under section 944.47(l)(a), Florida Statutes (1999), five years. All sentences were concurrent.

Henry argues that the trial court erred by reclassifying his conviction for attempted second-degree murder from a second-degree felony to a first-degree felony based on the use of a weapon. Section 775.087(1) precludes reclassification when the use of a weapon was an essential element of the offense. Henry argues that the use of a weapon is an essential element of the crime charged because it was alleged in the information. This argument overlooks the fact that the use of a weapon was not an element until section 775.087 was triggered. Nothing in the pertinent statutes for attempted second-degree murder refers to the use of a weapon as an element of the offense. See § 782.04(2) (defining second-degree murder); § 777.04 (defining attempt); see also Goutier v. State, 692 So.2d 978 (Fla. 2d DCA 1997) (affirming classification of attempted second-degree murder with a weapon as a first-degree felony).

Although the attempted second-degree murder conviction was properly treated as a first-degree felony, the written judgment incorrectly noted it as a second-degree felony. On remand, this scrivener’s error should be corrected.

Henry makes essentially the same argument regarding reclassification of his conviction for aggravated battery from a second-degree felony to a first-degree felony based on the use of a weapon. But Henry overlooks the fact that this offense was not reclassified based on the use of a weapon; it was reclassified based on the fact that the victim was a law enforcement officer. See § 784.07(2)(d).

Henry next argues, and we agree, that the trial court erred by sentencing him as a PRR under the amendment to section 775.082(9)(a)(2), which made the statute applicable to a defendant who commits an offense while serving a prison sentence. As Henry argues, this court held that chapter 99-188, Laws of Florida, was an unconstitutional violation of the single subject rule, Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), and that the reenacted provisions do not apply retroactively, Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). Henry’s sentences were affected by the amendments. See ch. 99-188, § 2. His offense fell within the window period. See Green, 839 So.2d at 750 n. 1. And he has preserved the issue for appeal. See Fla. R.Crim. P. 3.800(b)(2). Therefore, we reverse the PRR sentences for attempted second-degree murder, aggravated battery, and aggravated assault.

As to Taylor, we certify conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), review granted, No. SC03-413, 854 So.2d 659 (Fla. Sept. 19, 2003). As to Green, we certify conflict with Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), and Carlson v. State, 27 Fla. L. Weekly D2162, - So.2d -, 2002 WL 31202145 (Fla. 5th DCA 2002).

Affirmed in part; reversed in part; remanded for resentencing; conflicts certified.

CASANUEVA and CANADY, JJ., Concur.


author: WALLACE, Judge.

text:
    J & S INSTALLATION SPECIALIST, INC., Appellant, v. Cheryl D. MABRY, as Personal Representative of the Estate of Richard W. Mabry, deceased, Appellee.
    No. 2D03-44.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2003.
    Adam S. Goldstein of Adam S. Goldstein, P.A., St. Petersburg, for Appellant.

      William J. Hornbeck, II, of William J. Hornbeek, II, P.A., St. Petersburg, for Ap-pellee.
   WALLACE, Judge.

The issue raised by this appeal is whether a creditor’s claim filed in an estate administration proceeding is barred after an independent action brought to enforce the claim pursuant to section 733.705(4), Florida Statutes (1999), is dismissed for lack of prosecution. In accordance with our prior decision in Hogan v. Howard, 716 So.2d 286 (Fla. 2d DCA 1998), we conclude that the dismissal of the independent action for lack of prosecution bars the claim in the estate administration proceedings. The circuit court so ruled, and with one exception, we affirm its order.

The Facts

The appellant, J & S Installation Specialist, Inc. (the Creditor), filed a claim for $6,352.73 plus interest in the proceedings pending in the Pinellas Circuit Court for the administration of the estate of Richard W. Mabry, deceased. The claim was timely filed pursuant to a court order granting an extension of time to file the claim. On April 17, 2001, the appellee, Cheryl D. Mabry, as personal representative of the estate of the decedent (the Personal Representative), served her objection to the claim on the Creditor. On May 17, 2001, within the thirty-day time limit imposed by section 733.705(4), the Creditor filed its independent action to enforce the claim in the Pinellas County Court.

On July 15, 2002, the county court dismissed the Creditor’s independent action for failure to prosecute. Two days later, on July 17, 2002, the Creditor filed a second action in the county court seeking enforcement of the identical claim. The Personal Representative filed a motion in the county court to dismiss the second action on the ground that the claim was time-barred. In an order that is not before us on this appeal, the county court denied the Personal Representative’s motion to dismiss the second action.

The county court’s order denying the motion to dismiss was a nonfinal order that was not subject to appeal in the circuit court. See Contractor’s Mgmt. Sys. of NH, Inc. v. Acree Air Conditioning, Inc., 799 So.2d 320, 321-22 (Fla. 2d DCA 2001); Am. States Ins. Co. v. Streightiff, 597 So.2d 919 (Fla. 4th DCA 1992); Knauf v. McBride, 564 So.2d 251, 253 (Fla. 1st DCA 1990). Insofar as the record reveals, the Personal Representative did not attempt to challenge the county court’s order in the circuit court by a petition for writ of cer-tiorari, petition for writ of prohibition, or otherwise. Instead, the Personal Representative filed a petition in the circuit court seeking the entry of an order determining that the Creditor’s claim was barred as a result of the dismissal of the first action in the county court for lack of prosecution.

After a hearing, the circuit court entered an order determining that the Creditor’s claim was barred. In paragraph 3 of the decretal portion of its order, the circuit court also ruled: “The Order denying the Motion to Dismiss, a copy of which is attached, in County Court, Pinellas County, Florida, Civil Division, Case No. 02-5417-CO-40, is hereby rescinded, and the County Court is directed to make further proceedings consistent with this opinion.” The circuit court’s order provided further that neither the decedent’s estate, the Personal Representative, nor the beneficiaries of the estate would be liable for the Creditor’s claim. From the circuit court’s order, the Creditor timely filed this appeal.

The Law

The 1999 version of section 733.705(4) provided:

The claimant is limited to a period of 30 days from the date of service of an objection within which to bring an independent action upon the claim, or a declaratory action to establish the validity and amount of an unmatured claim which is not yet due but which is certain to become due in the future, or a declaratory action to establish the validity of a contingent claim upon which no cause of action has accrued on the date of service of an objection and that may or may not become due in the future. For good cause, the court may extend the time for filing an action or proceeding after objection is filed. The extension of time shall be granted only after notice. No action or proceeding on the claim shall be brought against the personal representative after the time limited above, and any such claim is thereafter forever barred without any court order. If an objection is filed to the claim of any creditor and an action is brought by the creditor to establish his or her claim, a judgment establishing the claim shall give it no priority over claims of the same class to which it belongs.

Pursuant to the statute, if an objection is filed, the creditor has thirty days from the service of the objection to file an independent action to enforce the claim. In the absence of a court order extending the time to file the independent action, the claim is barred without court order if an independent action is not filed to enforce the claim within the thirty-day period.

Analysis

In this case, the Creditor timely filed the first independent action to enforce the claim. However, the dismissal of that action concluded the legal proceeding on the Creditor’s claim against the estate. See Hogan, 716 So.2d at 288. In effect, by permitting its claim to be dismissed for lack of prosecution, the Creditor abandoned its claim against the estate. Frank T. Pilotte & L. Kathleen Horton-Brown, Creditor’s Claims and Family Allowance, in Practice Under Florida Probate Code § 8.42 (The Florida Bar Continuing Legal Education, 3d ed., 2002). The Creditor’s attempt to salvage the derelict claim by filing a second independent action was untimely and unauthorized. See Hogan, 716 So.2d at 288. The filing of the second action did not “relate back” to the date of the filing of the first action. Thus the circuit court correctly ruled that the Creditor’s claim against the estate was barred.

The Creditor argues that the circuit court lacked jurisdiction to enter the order barring the claim because the Personal Representative did not take an appeal to the circuit court of the county court’s order denying the motion to dismiss the second independent action. We disagree. The circuit courts in Florida have exclusive original jurisdiction of “proceedings relating to the settlement of the estates of decedents and minors, the granting of letters testamentary, guardianship, involuntary hospitalization, the determination of incompetency, and other jurisdiction usually pertaining to courts of probate.” § 26.012(2)(b), Fla. Stat. (2002). Therefore, the circuit court had jurisdiction to determine whether the Creditor’s claim was barred. See Poncier v. State, Dep’t of Health & Rehabilitative Servs., 284 So.2d 463, 464 (Fla. 3d DCA 1973). The circuit court’s jurisdiction over the status of the Creditor’s claim in the estate proceeding was not dependent upon appellate review of the county court’s order.

Although the circuit court had jurisdiction to adjudicate the status of the Creditor’s claim in the estate administration proceedings, we agree with the Creditor that the circuit court had no jurisdiction to “rescind” the county court’s order denying the Personal Representative’s motion to dismiss the second independent action or to direct the county court “to make further proceedings consistent with this opinion.” The county court’s order was not before the circuit court by way of appeal, petition for writ of certiorari, or otherwise. Therefore, the circuit court was without jurisdiction to “rescind” the county court’s order.

Relief

Accordingly, paragraph 3 of the decretal portion of the circuit court’s order shall be stricken on remand. In all other respects, the circuit court’s order is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

ALTENBERND, C.J., and CANADY, J., Concur.


text:
    STATE of Florida, Petitioner, v. Kenneth DAVIS, Respondent.
    No. 2D03-731.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Sr. Assistant Attorney General, Tampa, for Petitioner.
    James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Respondent.
   WALLACE, Judge.

The petitioner, the State of Florida, seeks certiorari review of a circuit court order that excludes the alleged victim’s testimony at the trial of the respondent, Kenneth Davis, on a charge of aggravated battery with a deadly weapon in violation of section 784.045(l)(a)(2), Florida Statutes (2002). We agree with the State that the order departs from the essential requirements of the law. Therefore, we grant the petition and quash the circuit court’s order.

On January 23, 2003, Davis filed a petition for an order to show cause directed to the victim of the alleged offense for his failure to appear at a deposition scheduled on January 22, 2003. The victim had been duly served with a subpoena to appear at the deposition. The circuit court granted Davis’ petition and ordered the victim to appear before the court on February 19, 2003, to show cause why he should not be adjudged in contempt for failure to obey the subpoena. In the meantime, Davis scheduled a second deposition of the victim; again, the victim did not appear. At a pretrial hearing held on February 3, 2003, the circuit court granted Davis’ oral motion to exclude the victim’s testimony at trial. More than two weeks before the date of the previously scheduled hearing on the order to show cause, the circuit court entered its order excluding the victim’s testimony at trial.

The Supreme Court of Florida has held that “if the requirements permitting certiorari jurisdiction otherwise exist, a pre-trial order excluding evidence which has the effect of substantially impairing the ability of the state to prosecute its case is subject to certiorari review.” State v. Pettis, 520 So.2d 250, 253 (Fla.1988) (quoting State v. Steinbrecher, 409 So.2d 510, 511 (Fla. 3d DCA 1982)). Although a pretrial order may qualify for certiorari, the writ should be issued only when “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. at 254 (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)).

This court has previously held that the exclusion of a witness’s testimony “should be a last resort and reserved for extreme or aggravated circumstances, particularly when the excluded testimony relates to critical issues or facts.” State v. Schwartz, 605 So.2d 1000, 1001 (Fla. 2d DCA 1992) (quoting Austin v. State, 461 So.2d 1380, 1381 (Fla. 1st DCA 1984)). Adherence to this standard is particularly important when the excluded person is the sole witness or is essential to prove the elements of the crime or defense. Id. In a case where the record does not reflect that lesser sanctions have been attempted or shown to be futile, an order excluding a witness’s testimony is a departure from the essential requirements of the law. Id.; State v. Hill, 532 So.2d 1303, 1304 (Fla. 2d DCA 1988); State v. Farley, 788 So.2d 338, 339 (Fla. 5th DCA 2001); State v. Gorrio, 726 So.2d 832, 833 (Fla. 3d DCA 1999); State v. Gonzalez, 695 So.2d 1290, 1292 (Fla. 4th DCA 1997). The circuit court’s order and the transcript of the pretrial hearing in this case do not reflect any consideration by the court of a less severe sanction. Indeed, when the circuit court entered the order under review, the victim was already ordered to appear before the court at a later date to show cause why he should not be held in contempt for his failure to appear at the first scheduled deposition. Therefore, the circuit court’s order excluding the victim’s testimony at trial departed from the essential requirements of the law.

The facts of this case demonstrate that the departure has resulted in a material injury that will affect the remainder of the proceeding. See State v. Cecil, 533 So.2d 884 (Fla. 3d DCA 1988). The victim of the alleged battery is the most appropriate witness to testify to the facts of the crime charged, particularly because the record indicates that the only other witnesses to the event were Davis and his employer, a man who was in a fight with the victim when Davis allegedly committed the aggravated battery. Because the victim’s testimony is essential to the prosecution of this case, the circuit court’s order results in a material injury that affects the State’s ability to prosecute Davis.

Because the State has established its entitlement to the writ, we grant the petition for writ of certiorari, quash the circuit court’s order excluding the testimony of the victim at trial, and remand this case to the circuit court for further proceedings.

Petition for writ of certiorari granted.

ALTENBERND, C.J., and CANADY, J., Concur.


text:
    Johnny James TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2271.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 2003.
   PER CURIAM.

Affirmed. See Garcia v. State, 854 So.2d 758 (Fla. 2d DCA 2003); Battle v. State, 837 So.2d 1063 (Fla. 2d DCA 2003); Starling v. State, 842 So.2d 992 (Fla. 1st DCA 2003). As this court did in Garcia, we certify direct conflict with Goodman v. State, 839 So.2d 902 (Fla. 1st DCA 2003).

DAVIS, COVINGTON, and VILLANTI, JJ., Concur.


text:
    Ralph CALDERON, Appellant, v. PEPPERMILL AT KENDALL LAKES WEST, CONDO. ASSOC., Appellee.
    No. 3D03-554.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2003.

      S. Peter Capua; Daryl L. Merl, Miami, for appellant.
    Sack & Galdstein and Paul A. Sack, Miami Beach, for appellee.
    Before COPE, LEVY and SHEVIN, JJ.
   PER CURIAM.

This is an appeal of an award of attorney’s fees to predecessor counsel for plaintiff Ralph Calderon. On the issue of entitlement, there was conflicting evidence on whether predecessor counsel, Paul A. Sack, was discharged without cause, and whether successor counsel had conceded that Mr. Sack was entitled to compensation on quantum meruit. The conflicts in the evidence were resolved in favor of Mr. Sack. The court’s rulings are supported by the record. See Rosenberg v. Levin, 409 So.2d 1016, 1021 (Fla.1982); Afrazeh v. Miami Elevator Co. of America, 769 So.2d 399, 401 (Fla. 3d DCA 2000). We find no abuse of discretion in the ruling on the motion for continuance.

Affirmed.


text:
    Timothy CHATFIELD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-365.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2003.
    Marisa Tinkler Mendez, Coral Gables, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin K. Zack, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Timothy Chatfield appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which was entered after an eviden-tiary hearing. As the trial court’s findings are supported by competent substantial evidence, the order is affirmed. See Blanco v. State, 702 So.2d 1250, 1252 (Fla.1997).

Affirmed.


text:
    Nathaniel BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-167.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2003.
    Nathaniel Brown, in proper person.

      Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and COPE, and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).


author: GREEN, J.

text:
    Jose Manuel PEREZ, Appellant, v. Elaine Soffer SIEGEL, Appellee.
    No. 3D03-1220.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2003.
    Gil R. Izquierdo, for appellant.
    Elaine Soffer Siegel, in proper person.
    Before GREEN, FLETCHER, and WELLS, JJ.
   GREEN, J.

On this appeal, Jose Manuel Perez asserts that the trial court erroneously issued a temporary injunction for protection against repeat violence pursuant to section 784.046, Florida Statutes (2002), where neither the petition nor the proof supported two incidents of violence as required under the statute. We agree and reverse.

Perez and Elaine Soffer Siegel reside in the same condominium complex but apparently do not get along. Siegel is president of the condominium association and filed a sworn petition for an injunction against repeat violence based upon the following incidents:

1. On February 28, 2003, Siegel was in the condominium office when Perez telephoned her and yelled at her. Siegel told Perez that she did not have to speak to him and hung up. Shortly afterwards, Perez arrived at the office and banged on the office counter and again screamed at Siegel. Siegel asked him to lower his voice or the police would be called. Perez left.
2. On March 6, 2003, Perez encouraged a neighbor who had lost the keys to her condo to knock on Siegel’s door at 11:30 p.m. for assistance. Siegel saw this as harassment on the part of Perez and she and her husband went to Perez’s apartment to ask him to leave them alone. Perez became angry and threatened to kill them. The Siegels returned to then-apartment and filed a police report.

Based upon these averments, the trial court issued an ex parte temporary injunction and thereafter conducted an adversarial hearing. Prior to the hearing, Perez filed a motion to dismiss the petition and the temporary injunction due to Siegel’s failure to aver two separate incidents of violence as required under section 784.046(l)(b) and (2). That motion was denied. At the conclusion of the hearing, the lower court declined to enter a permanent injunction but issued a five and a half month temporary injunction. This appeal followed.

An injunction against repeat violence must be based upon two separate incidents of violence pursuant to section 784.046(l)(b) and (2), Florida- Statutes. Taking Siegel’s averments in the petition and her testimony adduced at the adversarial hearing below to be true, we conclude that they are wholly insufficient to qualify as two separate incidents of violence. Among the categories of violence listed in the statute (i.e., “assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnaping, or false imprisonment, or any criminal offense resulting in physical injury or death.”), “assault” is the only category which could, by any stretch of the imagination, apply to Perez’s action. “Assault” is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2002).

In the February 28th incident, Perez merely raised his voice at Siegel, both over the phone and later in person at the office, and banged on the counter. This, without more, does not qualify as an assault or any of the other categories of violence listed under the statute. As for the March 6th incident, although Perez did allegedly threaten to kill Siegel and her family during their face to face confrontation, Siegel never alleged nor proved that at the time Perez had the apparent ability to do so and committed any overt act that created a well-founded fear that violence against them was imminent. For that reason, this incident similarly cannot qualify as an assault under the statute. See Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990) (“A person’s mere intention to commit an assault is not enough; there must be some overt act sufficient to demonstrate a threat directed at the person placed in fear.”).

In the absence of two separate qualifying instances of violence as defined in section 784.046(l)(a), we conclude that the trial court erred in granting the temporary injunction. Accordingly, we reverse and vacate the same.

Reversed.

      . The statute states, in pertinent part:
      (1) As used in this section, the term:
      (a) "Violence" means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, or false imprisonment, or any criminal offense resulting in physical injury or death, by a person against any other person.
      (b) "Repeat violence” means two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.

        (2) There is created a cause of action for an injunction for protection in cases of repeat violence....
      § 784.046, Fla. Stat. (2002).

      . Siegel uses the word "aggression” (a word which does not appear in section 784.046) in her brief, but it appears that she means "assault.” She states,
      [an] aggression can be caused by someone threatening an individual by indicating that they will do some type of physical harm such as "I am going to kill you”. This threat can be just verbally or it can be done by an act and the person who is making the threat does something that convinces the person being threaten [sic] that the person is capable of causing physical violence, you must be sure that the violence may occur.
      Br. for Appellee at 1.


author: ORFINGER, J.

text:
    John ANGULO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-414.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    J. Melanie Slaughter, Ocala, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

After being arrested and charged with six felonies and one misdemeanor, John Angulo pled guilty to the charges pursuant to an agreement that called for Angulo to be sentenced as a youthful offender if he provided substantial assistance to the Marion County Sheriffs Department. The plea agreement further provided that if Angulo failed to provide substantial assistance or otherwise violated the terms of his release pending sentencing, his sentence would be determined solely at the court’s discretion. After concluding that Angulo had not provided substantial assistance to law enforcement, the trial court declined to sentence him as a youthful offender, but, instead, sentenced him to seven years in prison. Angulo now appeals, contending that his plea agreement was violated when the trial court failed to sentence him as a youthful offender. We disagree and affirm.

Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii) provides that appeals from guilty pleas and pleas of nolo contendere may only be taken as follows:

A defendant who pleads guilty or nolo contendere may otherwise directly appeal only
a) the lower tribunal’s lack of subject matter jurisdiction;
b) a violation of the plea agreement, if •preserved by a motion to withdraw plea;
c) an involuntary plea, if preserved by a motion to withdraw plea;
d) a sentencing error, if preserved; or
e) as otherwise provided by law.

(emphasis added). As evidenced by the rule, issues regarding the violation of a plea agreement or the involuntariness of the plea must be preserved by a motion to withdraw the plea. State v. T.G., 800 So.2d 204, 210 (Fla.2001); Robinson v. State, 373 So.2d 898 (Fla.1979). No motion to withdraw the plea was made in this case. Because the issue was not preserved, we cannot consider it on appeal.

Irrespective of the procedural impediment to the relief sought by Angulo, on the merits, he comes up short as well. The court made a specific finding that he did not provide substantial assistance as agreed upon. Angulo has not challenged that finding. As a result, because Angulo violated the plea agreement, he was, therefore, properly sentenced at the discretion of the court.

AFFIRMED.

PETERSON and PLEUS, JJ„ concur.


author: PLEUS, J.

text:
    Glenroy GLASGOW, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3662.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.

      James B. Gibson, Public Defender, and Susan A. Fagan, 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.
   PLEUS, J.

The defendant appeals from his conviction for possession of cocaine. His point on appeal concerns the trial court’s failure to give a special jury instruction as to the defendant’s knowledge of the illicit nature of the substance he possessed.

The defendant’s offense, as alleged in the information, occurred on March 7, 2002, prior to the legislature’s enactment (effective May 13, 2002) of section 893.101, Florida Statutes, which now requires an accused to raise, as an affirmative defense, his or her lack of knowledge of the illicit nature of the controlled substance possessed. See Chapter 2002-258, section 1, Laws of Florida. This enactment cannot be applied retroactively. See Thomas v. State, 844 So.2d 723 (Fla. 5th DCA 2003); Norman v. State, 826 So.2d 440 (Fla. 1st DCA 2002), rev. denied, 845 So.2d 892 (Fla.2003). Under the law in effect at the time the defendant committed his offense, the defendant, upon request, was entitled to a special instruction that his knowledge of the illicit nature of the substance he possessed is an element of the offense of possession of cocaine. See Scott v. State, 808 So.2d 166 (Fla.2002); Chicone v. State, 684 So.2d 736 (Fla.1996).

The State asserts that the defendant waived such instruction by failing to timely present a proposed written or oral instruction on this issue to the court. The State argues that when a jury instruction is sought which is not part of the standard jury instructions, the requested instruction must be submitted in writing to the trial court no later than at the close of the evidence if the issue is to be preserved for appellate review. Florida Rule of Criminal Procedure 3.390(c). See Gavlick v. State, 740 So.2d 1212 (Fla. 2d DCA 1999).

During the charge conference, no request was made by the defense for a special instruction. After the jury had been instructed but before the jury retired to consider its verdict, defense counsel announced an objection to the instructions as read regarding possession of cocaine. Defense counsel requested that an instruction be given that the State was required to prove that the defendant knew the illicit nature of the substance he possessed.

Florida Rule of Criminal Procedure 8.390(d) provides:

Objections. No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection. Opportunity shall be given to make the objection out of the presence of the jury.

The State’s position that the defendant waived a “Chicone” instruction by failing to offer a proposed instruction to the trial court is without merit. The defendant orally sought and timely objected to the lack of a proper instruction on “guilty knowledge” before the jury retired to deliberate and thus, under Rule 3.390(d), preserved for review the failure of the court to give such instruction on what Scott held to be an essential element of the offense. Scott controls and the failure to give the requested instruction constituted reversible error.

REVERSED AND REMANDED FOR NEW TRIAL.

THOMPSON and ORFINGER, JJ., concur.

      . Rule 3.390(c) provides:
      (c) Written Request. At the close of the evidence, or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action on the request and of the instructions that will be given prior to their argument to the jury.

      . The defendant asserts a proposed written instruction was offered and while the record contains such an instruction, the record does not establish that this proposed instruction was timely submitted for consideration. The exchanges between defense counsel and the trial court do not reference the existence of such proposed written instruction.

      . Where the failure to give a “Chicone ” instruction on the need to prove knowledge of the illicit nature of the substance is preserved, such error cannot be deemed harmless. Scott, 808 So.2d at 172.


author: MONACO, J.

text:
    Louis Jeffery HOGGS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2446.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.

      Louis Jeffery Hoggs, Arcadia, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Louis Jeffrey Hoggs appeals the summary denial by the trial court of his Rule 3.850 motion. Mr. Hoggs asserts that his trial counsel was ineffective for failing to properly advise him regarding the length of the sentence to which he was subject. We affirm because his motion is legally insufficient.

Mr. Hoggs was charged with two counts of sale of cocaine. He had been offered a plea bargain amounting to nine years of imprisonment in exchange for guilty pleas to both, but the offer had long expired by the time the alleged ineffective actions of counsel occurred. He originally intended to plead guilty to one of the counts and to go to trial on the other. He asserts, however, that his attorney advised him to enter a “straight up” plea to the count to be tried, suggesting that it was in his best interest to do so, rather than to plead to one count and go to trial with respect to the second count. The maximum sentence faced by the appellant was 30 years imprisonment. Mr. Hoggs alleges that his attorney told him shortly before trial that if he pled to both counts, he would likely only receive nine years, as had previously been offered by the state. He then pled to both counts, but was sentenced to eighteen years incarceration.

Mr. Hoggs claims that his plea was involuntary as it was induced by the misad-vice of counsel. There are two things wrong with his position. First, he does not allege, as he must, that but for his counsel’s advice, he would have gone to trial. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Harris v. State, 801 So.2d 973 (Fla. 2d DCA 2001). Instead, he suggests that but for his counsel’s advice, he would have accepted the state’s plea offer of nine years. The plea offer, however, had expired six months before he received the advice he now questions, and was not available to him. In fact, the plea offer expired before conflict counsel whose advice he questions was even appointed. At no point has he indicated that he would have gone to trial as the alternative to entry of a no contest plea.

Secondly, Mr. Hoggs failed to allege that he had á viable defense. We have held on a number of occasions that such an allegation is a prerequisite to seeking withdrawal of a guilty plea or a plea of no contest due to ineffective assistance of counsel. See Grosvenor v. State, 816 So.2d 822 (Fla. 5th DCA), review granted, 826 So.2d 992 (Fla.2002)(certifying conflict with Cousino v. State, 770 So.2d 1258 (Fla. 4th DCA 2000), and Mason v. State, 742 So.2d 370 (Fla. 1st DCA 1999); see also Gould v. State, 826 So.2d 1101 (Fla. 5th DCA 2002); Maples v. State, 804 So.2d 599 (Fla. 5th DCA 2002).

AFFIRMED.

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


text:
    Robert Franklin ALLEN, Appellant, v. Deana Cirigliano ALLEN, Appellee.
    No. 5D03-447.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Cheryl L. Anderson, Palatka, for Appellant.
    No appearance for Appellee.
   MONACO, J.

The marriage between Robert Franklin Allen and Deana Cirigliano Allen was dissolved by a Final Judgment of Dissolution of Marriage after a nonjury trial. Upon careful review of the record and final judgment we approve the judgment in all respects except one. Although the trial court indicated that all marital liabilities were to be divided equally, it .did not identify each liability by specific written findings, nor specify which spouse would be responsible for each, as required by section 61.075(3)(c), Florida Statutes (2001). See Green v. Green, 788 So.2d 1083, 1085 (Fla. 1st DCA 2001). As the trial court did not make any specific findings regarding marital liabilities, we remand for the court to make such findings of fact. We affirm all other aspects of the final judgment.

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

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


text:
    Eron COPPER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1734.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.
    Louis O. Frost, Jr., Public Defender, and Ward L. Metzger, Assistant Public Defender, Jacksonville, for petitioner.
    Charlie Crist, Attorney General, and Barbara J. Yates, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Eron Copper’s request for a belated appeal from the judgment and sentence rendered on December 20, 2002, in Duval County Circuit Court case number 2002-3438-CFA is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

KAHN, WEBSTER and POLSTON, JJ., concur.


text:
    HOMEOWNERS ASSOCIATION OF The SHORES, INC., acting by and through its Board of Directors, Martin Heflin, Charles Mann, Nancy Ames, John Dorsett, and Charles Dilcher, Appellants, v. Jack M. SMITH, Appellee.
    No. 1D02-4121.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.
    William Peter Martin of Dennis, Bowman, Jackson, Martin & Fontela, P.A., Tallahassee, for Appellants.
    Jack G. Williams, Panama City, for Ap-pellee.
   PER CURIAM.

To the extent the trial court refused to allow appellant to recover its properly taxable costs, the order on appeal is reversed. See Fla. R. Civ. P. 1.420(d). Appellant has shown no abuse of discretion in the trial court’s denial of attorneys’ fees pursuant to section 57.105(1), Florida Statutes.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BOOTH, and KAHN, JJ, concur.


text:
    Colleen L. McGHEE, Appellant, v. STERLING CASINO LINES, L.P., Appellee.
    No. 5D02-608.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Thomas H. Yardley, Cocoa, for Appellant.
    Patty Spivey of Hayden and Milliken, P.A., Cape Canaveral, for Appellee.
   ON MOTIONS TO REVIEW FINAL JUDGMENT FOR ATTORNEY’S FEES AND FINAL JUDGMENTS FOR WITNESS FEES.

PER CURIAM.

Having considered the appellee’s motions to review final judgments and the appellant’s response thereto, we find the appellee’s motions to be meritorious. Under section 760.11(5), Florida Statutes, reasonable attorney’s fees may be allowed in the court’s discretion to the prevailing party. While the appellant prevailed in the appeal of the summary judgment that had been entered in favor of the appellee, appellant has yet to prevail on the merits of her employment discrimination claim.

This court’s order dated December 27, 2002, contains a clerical error in that the word “provisionally” was omitted. That order is hereby amended nunc pro tune to December 27, 2002 to reflect that appellant’s motion for attorney’s fees, filed June 17, 2002, is provisionally granted. Assessment of such fees (as well as witness fees) by way of final judgment shall be entered only if appellant prevails on the merits of her claim.

Appellant’s motion for additional attorney’s fees incurred in responding to the motions to review is denied.

FEE JUDGMENTS QUASHED.

SHARP, W„ J., COBB, W., Senior Judge and ROUSE, Jr., R. K., Associate Judge, concur.

      . McGhee v. Sterling Casino Lines, 833 So.2d 271 (Fla. 5th DCA 2002).


author: KAHN, J.

text:
    Michael Steven MIXSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2408.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

The question in this case is whether appellant Michael Mixson may be convicted and sentenced for two counts of grand theft arising out of the same factual circumstances. Because the facts of this case do not establish a separation of time, place, or circumstances between the two charged offenses nor separate criminal intent, we reverse in part and remand for correction of the sentence.

Before the events in questions, Mixson lived for a time with Johnnie and Carol Markham, the eventual victims in this case. Mixson helped out the Markhams, essentially working as a handy man around the house in exchange for room and board. On occasion, Mr. Markham would let Mixson use the Markhams’ truck for various errands. Mr. Markham owned a pressure washer and at some point Mix-son and Mr. Markham discussed going into the house cleaning business. In pursuit of that end, Mixson told Mr. Markham on April 25, 2001, that Mixson had lined up a job for the men. Mr. Markham then gave Mixson permission to load tools and other items from the Markham garage onto Markham’s truck. Because Mixson intended to mow the yard at the house he was going to clean, he also loaded up Mr. Markham’s lawn mowers. While Mixson was loading the truck, Markham was in the house fixing a meal for both men.

Because the Markham house was full with other guests, Mixson was unable to sleep in the house on the night of April 25. Mr. Markham therefore gave Mixson permission to spend the night at a rental house owned by the Markhams. Pursuant to Mr. Markham’s instructions Mixson took the truck, by then loaded with the tools, supposedly to the rental house, with plans to meet up with Mr. Markham at 7:00 the next morning at the prospective job. Mixson did not show up, nor did he return the truck or the various tools. Both Mr. and Mrs. Markham testified that Mixson’s authorization to use the truck would only extend until the time of the planned job on April 26. Several weeks later, Jacksonville Sheriffs Officer Carol Markham (apparently no relationship to the victims) discovered the truck parked in a yard with Mixson asleep inside the truck. The equipment and tools were missing from the bed of the truck.

Based upon these facts, the State charged Mixson with one count of grand theft of a motor vehicle, and one count of grand theft of tools and equipment valued at over $300 and less than $5,000, both third-degree felonies under section 812.014(2)(c), Florida Statutes (1999). The jury convicted Mixson on both counts, and the trial court sentenced Mixson to concurrent habitual offender prison terms. Although Mixson’s counsel did not object to the sentence, a “double jeopardy violation constitutes fundamental error, which may be raised for the first time on appeal.” Jones v. State, 711 So.2d 633, 634 (Fla. 1st DCA 1998).

The Florida Supreme Court has held that the double jeopardy clauses of the state and federal constitutions may prohibit multiple convictions for offenses arising out of the same criminal transaction. See Cruller v. State, 808 So.2d 201, 203 (Fla.2002). “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). This legislative intent can be “explicitly stated in a statute ... or ... discerned through the Blockburger test of statutory construction.” M.P. v. State, 682 So.2d at 81; see Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

In cases of theft convictions, where the offenses are “merely degree variants of the core offense of theft ... dual convictions based on the same core offense cannot stand.” Sirmons v. State, 634 So.2d 153, 153-54 (Fla.1994). This is true “because each offense [is] simply an aggravated form of the underlying offense of theft, distinguished only by degree factors.” Id. Sirmons held that a defendant could not be convicted separately of robbery with a weapon and grand theft motor vehicle based on the single taking of an automobile at knife point because both offenses were merely aggravated forms of the same underlying offense of theft. See id. Other cases have reached similar results. See, e.g., State v. Thompson, 607 So.2d 422 (Fla.1992); Johnson v. State, 597 So.2d 798 (Fla.1992); Oliver v. State, 842 So.2d 259 (Fla. 5th DCA 2003).

In Beaudry v. State, the defendant stole a car containing computer equipment and was convicted of grand theft motor vehicle and grand theft of $10,000 or more. 809 So.2d 83, 84 (Fla. 5th DCA 2002). The defendant challenged the convictions on double jeopardy grounds arguing that under Sirmons he could only be convicted of one criminal act. See id. The Fifth District agreed, finding that “there is one act of taking (of the car and its contents) with no geographic or temporal separation between the two acts of taking.” Id. In Ford v. State, the Fourth District, citing Beau-dry, reversed dual convictions for grand theft of a motor vehicle and grand theft of construction tools and/or equipment finding the defendant’s “taking of the vehicle occurred simultaneously with the taking of the construction equipment which was already inside the vehicle at the time of the vehicle theft.” 849 So.2d 477 (Fla. 4th DCA 2003). See also Wilson v. State, 776 So.2d 347, 352 (Fla. 5th DCA 2001) (allowing only one conviction for theft to stand where defendant, during the course of a burglary, took personal property worth $300 or more, but less than $20,000 from residence and also a firearm from residence).

The State argues that the above cases should not control, and that, instead, Hayes v. State, 803 So.2d 695 (Fla.2001), allows dual convictions under the present facts. In Hayes, the defendant was convicted of armed robbery, armed burglary of a structure, and grand theft of a motor vehicle. See id. at 697. The conviction stemmed from a criminal incident during which Hayes entered a residence and took various items from the victim, including the keys to a van parked outside the victim’s residence. See id. After leaving the residence, Hayes used the keys to steal the van. See id.

Hayes argued that under Sirmons he could not be convicted for the theft of both the personal property from inside the residence and the subsequent theft of the motor vehicle outside the residence. See id. at 700. The supreme court disagreed, finding that double jeopardy does not bar multiple convictions and punishments “where a defendant commits two or more distinct criminal acts.” Id. Ultimately rejecting the position taken by Hayes, the supreme court set out the rule for resolving the double jeopardy issue where the defendant has taken a single victim’s property:

[C]ourts should look to whether there was a separation of time, place, or circumstances between the initial armed robbery and the subsequent grand theft, as those factors are objective criteria utilized to determine whether there are distinct and independent criminal acts or whether there is one continuous criminal act with a single criminal intent.

Id. at 704. Applying this rule, the court determined, “the robbery of various items from inside the residence was sufficiently separate in time, place and circumstance from Hayes’ theft of the motor vehicle parked outside the victim’s residence to constitute distinct and independent criminal acts.” Id. The court recognized, however, the difficulties involved in attempting to formulate a bright-fine rule for these types of cases “because the determination is often fact-specific.” Id. at 705.

Comparing the present facts to those in Hayes, we conclude that, unlike Hayes, the present ease will only support a conclusion of one continuous criminal act with a single criminal intent. This is so because the undisputed evidence establishes that Mixson had permission to take the equipment and tools from the garage and load them into the truck and, thereafter, had permission to take the truck overnight. Indeed, Mr. Markham was present in the house preparing a meal while Mix-son loaded Markham’s truck. The record before us contains no evidence that Mixson exhibited an intent to deprive the rightful owner of his goods until on or after April 26 when Mixson failed to show up at the job site. Similar to the defendant in Beau-dry, appellant here was charged and convicted under two subparts of the same statute. Under our analysis, the State is unable to demonstrate the requisite separation of time, place, and circumstances between the taking of the truck and the taking of the tools. Accordingly, we conclude that the takings occurred as part of one criminal episode and with a single criminal intent. See Hayes, 803 So.2d at 704.

We must reverse one of the theft convictions. Because the trial court sentenced appellant to concurrent 10-year habitual offender terms for each of the two convictions, we direct the court below to vacate the conviction and sentence as to count two.

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

WEBSTER, and DAVIS, JJ„ concur.


author: WOLF, C.J.

text:
    Deana B. JELLISON, Appellant, v. DIXIE SOUTHERN INDUSTRIAL, INC., Appellee.
    No. 1D02-1790.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.

      Gerald A. Rosenthal and Randy D. Ellison, of Rosenthal & Weissman, West Palm Beach, for appellant.
    H. George Kagan, of Miller, Kagan, Rodriguez and Silver, P.A., West Palm Beach, for appellee.
   WOLF, C.J.

This is a challenge to the final order of the Judge of Compensation Claims (JCC) denying workers’ compensation and dependency benefits. Appellant raises five points on appeal, two of which merit brief discussion: 1) Whether the JCC’s order was stale; and 2) whether the JCC erred in adopting the proposed order of the employer/earrier (E/C) without providing guidance to the parties as to how she was going to rule. We affirm because the issues were not properly preserved by timely objection, but we write to note that our affirmance should not be construed as approval of the JCC’s method of handling this case.

At the final hearing held on August 20, 2001, four witnesses testified live. The remaining witness testimony, including all the medical testimony, was offered through deposition exhibits. At the conclusion of the hearing, the court allowed the parties to submit post-trial memorandum within 10 days. The court made no oral findings at the conclusion of the hearing.

On March 13, 2002, the JCC sent a letter to both parties directing them to prepare proposed orders for review within 10 days. Neither party expressed any concern over the delay in the JCC’s issuance of an order. The E/C submitted its proposed order on March 25, 2002; the claimant sent a proposed order on March 26, 2002.

On April 18, 2002, the JCC rendered the final order denying appellant’s claim for death benefits and attorney’s fees and costs. That order is almost identical to the order submitted by the E/C.

During the 23 days after submission of the proposed order by the E/C until the final order was issued, the claimant did not comment or object concerning the substance of the order or the procedure being utilized by the JCC. On appeal, however, appellant challenges both the staleness of the order and the procedure which was utilized by the JCC. As evidence of the JCC’s failure to properly consider the case appellant asserts that there was a lack of competent substantial evidence to support certain findings made in the order ultimately adopted by the JCC.

In workers’ compensation cases, as in other cases, we will not consider arguments which were not presented in a meaningful way to the lower tribunal. We have specifically determined that any arguments concerning staleness of a final order must be preserved for appeal. Rivendell of Ft. Walton v. Petway, 833 So.2d 292 (Fla. 1st DCA 2002). Similarly if there is any opportunity to do so, such as in this case, an objection concerning the content of the proposed final order or the procedure being utilized should have first been presented to the JCC. See Wal-Mart Stores, Inc. v. Lopez, 742 So.2d 301 (Fla. 1st DCA 1998); Fla. Refrigerated Serv. v. Meeks, 470 So.2d 820 (Fla. 1st DCA 1985).

Appellant argues that there was no opportunity to object. We find this argument without merit. A motion addressed to the timely issuance of an order or a written objection could have been filed at any time. When the letter was sent by the JCC requesting proposed orders, objections could have been raised. During the period between submission of the proposed orders and issuance of the final order appellant could have objected to both the content and the procedure. We therefore affirm.

BROWNING and HAWKES, JJ., Concur.

      . While we do not necessarily agree with this assertion we point it out to demonstrate that if there were findings in the E/C’s proposed order which were totally unsupported by the evidence appellant should have brought it to the JCC’s attention.

      . This affirmance shall not be considered approval of the untimeliness of the order or the procedures utilized by the JCC. Section 440.25, Florida Statutes, clearly contemplates that a final order will be issued within 30 days of completion of the hearing. We have several cases before the court where this particular JCC has sent untimely letters to both parties requesting proposed orders. She has given no indication how she was going to rule nor has she specifically granted the parties the opportunity to object to the proposed orders. Signing a proposed order without any significant changes in situations where an inordinate delay has occurred creates the impression that lawyers are deciding cases rather than the judges. See Ross v. Botha, 28 Fla. L. Weekly D2182, - So.2d -, 2003 WL 22136080 (Fla. 4th DCA Sept.17, 2003); Corporate Mgmt. Advisors, Inc. v. Boghos, 756 So.2d 246 (Fla. 5th DCA 2000).


text:
    Stephen BAKER, Petitioner, v. HENDERSON KEASLER LAW FIRM and American Heritage Life Insurance Company, Respondents.
    No. 1D03-2258.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2003.
    Robert H. Sturgess, of Motes & Carr, P.A., Jacksonville, for petitioner.
    Alan D. Henderson, of Henderson Keas-ler Law Firm, Jacksonville, for respondents.
   WOLF, C.J.

Baker files a Petition for Writ of Certio-rari challenging an order requiring him to pay his withdrawing counsel before allowing substitute counsel to appear. This order is reviewable by certiorari. See generally, St. Paul Fire & Marine Ins. Co. v. Marina Bay Resort Condo. Ass’n, Inc., 794 So.2d 755 (Fla. 1st DCA 2001). The challenged order departs from the essential requirements of law. Kiriakidis v. Kiriakidis, 855 So.2d 208, 2003 WL 22187836 (Fla. 4th DCA Sept.24, 2003) (finding error to require party to pay fees of withdrawing attorney prior to allowing new counsel to appear when amount of fees are in dispute). We, therefore, grant the Petition for Writ of Certiorari; we quash the order of the circuit court and direct the trial court to enter a new order consistent with this opinion.

LEWIS and POLSTON, JJ., concur.


author: GRIFFIN, J.

text:
    Keith LOVETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2776.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    James B. Gibson, Public Defender, and Meghan Ann Collins, 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.
   GRIFFIN, J.

Keith Lovett [“Lovett”] appeals an order denying his motion to withdraw his plea. Lovett contends that, at the time he entered his nolo contendere plea, the public defender’s office had a conflict of interest in that it also represented Lovett’s victim in another case.

Daytona Beach police arrested Lovett on March 21, 2001, charging him with burglary. The charging affidavit stated that Lovett had been found hiding in Michele Cooper’s kitchen closet. The affidavit also stated that Cooper had a order of protection against Lovett.

Lovett entered a plea of nolo contendere to burglary of a dwelling and the court sentenced him to three-years’ probation. In a second case, the State charged Lovett with felony battery and burglary of a dwelling. Michele Cooper was the victim in this instance also. Lovett pled nolo contendere and was sentenced to probation for a period of three years to be served concurrently with the sentence in the other case.

On April 25, 2002, the State filed a probation violation report in both cases, alleging that Lovett (1) failed to report to his probation officer for March and April 2002; (2) failed to pay costs; and (3) was arrested on April 10, 2002, for violating an injunction involving Cooper.

The trial court held a hearing and Mr. Bell, a public defender, represented Lo-vett. Bell attempted to enter a not guilty plea with the court and then asked Lovett what he wanted to do. Lovett replied that he wanted to talk to the judge. Lovett argued that the April 10, 2002, charge that he had violated an injunction had been dismissed. The court informed Lovett that if he wanted to enter a plea to the allegations, excluding the injunction violation allegation, it would hold a sentencing hearing later that morning. Lovett agreed and pled nolo contendere to the probation violation.

Later in the morning, the court held a sentencing hearing. The State called Lo-vett’s probation officer and Bell cross-examined her. Bell called Lovett’s sister to testify and conducted the direct examination. Finally, Lovett testified and Bell conducted the direct and redirect examination. Bell also offered a final argument. The court sentenced Lovett in both cases to sixty-five-months’ imprisonment to be served concurrently.

On June 7, 2002, Lovett filed motions pursuant to Florida Rule of Criminal Procedure 3.170(f) to withdraw his nolo con-tendere plea in both cases. At the hearing on the motions, public defender Powers represented Lovett. Lovett argued that the public defender’s office had a conflict of interest because, at the time he entered his plea, it had been representing both Michele Cooper, in an unrelated case, and Lovett. According to Powers, Cooper had been arrested for aggravated battery in April 2002 and had been recently rearrested. Powers stated, “[a]nd, unfortunately, one thing that I did pick up on at the time that we were representing Mr. Lovett is that we were also — our office was representing Ms. Cooper.”

The State responded that Lovett had only pled to the failure to report to his probation officer and the failure to pay, and not the violation of the injunction. The State pointed out that neither of these allegations involved Ms. Cooper and, thus, there was no conflict. The trial court agreed and denied Lovett’s motion to withdraw his plea.

Although there is logic in the trial court’s approach, we agree with Lovett that there was an actual conflict of interest. The public defender’s office was representing Lovett, while representing another client who had a significant interest in seeing Lovett incarcerated. The State commendably appears to concede this point. Accordingly, we reverse the order denying Lovett’s motion to withdraw his plea and remand.

REVERSED and REMANDED.

SHARP, W., and PETERSON, JJ„ concur.

      . Section 27.53(3), Florida Statutes (2002), provides:
      (3) If, at any time during the representation of two or more indigents, the public defender determines that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his or her staff without conflict of interest, or that none can be counseled by the public defender or his or her staff because of conflict of interest, the public defender shall file a motion to withdraw and move the court to appoint other counsel. The court shall review and may inquire or conduct a hearing into the adequacy of the public defender’s representations regarding a conflict of interest without requiring the disclosure of any confidential communications. The court shall permit withdrawal unless the court determines that the asserted conflict is not prejudicial to the indigent client.

      (emphasis added).