text:
    James ROSS and Marily Ross, his wife, Appellants, v. Carl GOETTERT and Margaret Goettert, his wife, and Robert Holtslander and Judy Holtslander, his wife, Appellees.
    No. 4D03-381.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2004.
    Jerry A. Riggs, Sr. of the Law Office of Jerry A. Riggs, Sr., P.A., Hollywood, for appellants.
    Richard A. Warren of Hardeman & Associates, P.A., Miami, for appellees Robert and Judy Holtslander.
    Christopher J. Lynch of Angones, Hunter, McClure, Lynch, Williams & Garcia, P.A., Miami, for appellees Carl and Margaret Goettert.
   PER CURIAM.

Plaintiff appellants sued appellees for damages based on common law and statutory claims as a result of the burglary of their home by defendant’s children. The trial court entered a final summary judgment in favor of the defendants on all claims. We reverse, as the Goetterts concede we should, the summary judgment on Count II against them, which alleged statutory claims. We affirm the summary judgment on Count I, which contained common law claims against the Goetterts and affirm as to all claims against the Holtslanders. Affirmed in part and reversed in part.

FARMER, C.J., KLEIN, J. and BERGER, WILLIAM J., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM. SAWAYA, C. J.

license: Public Domain

text:
    Humberto CABRERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2367.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.
    Ricardo R. Pesquera, Orlando, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Humberto Cabrera appeals the judgment and sentences imposed pursuant to a jury verdict finding him guilty of sexual battery on a mentally defective person, two counts of battery and two counts of lewd and lascivious behavior. Of the several issues Cabrera raises, we write to address two: (1) whether his convictions for the two counts of lewd and lascivious behavior violate the Double Jeopardy Clauses of the Florida and federal constitutions, and (2) whether his designation as a sexual predator should be reversed. We answer the first question in the affirmative and reverse one conviction of lewd and lascivious behavior; as to the second, Cabrera’s failure to preserve the issue precludes appellate review. We will briefly explain our conclusions. Regarding the other issues raised by Cabrera, we affirm without discussion.

While Cabrera and his mentally challenged victim were together in a swimming pool, Cabrera committed the two alleged acts of lewd and lascivious behavior. Specifically, count four of the information alleged that Cabrera touched the breasts of the victim and count five alleged that he touched the buttocks of the victim. The State charged that each act was committed in violation of section 798.02, Florida Statutes (2002), which provides:

If any man. and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior,-they shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

The evidence reveals that Cabrera and the victim were in the pool a relatively short period of time — approximately thirty minutes. The victim’s mother, who was present at the pool, testified that the inappropriate touching occurred within a span of minutes. Cabrera alleges that he was improperly convicted of both counts because the touching occurred during one criminal episode and therefore, his multiple convictions violate double jeopardy principles.

In Hunsicker v. State, 881 So.2d 1166 (Fla. 5th DCA 2004), we explained the analysis that should be ehiployed to determine whether two convictions arise from a single criminal episode:

“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)); see also Cruller v. State, 808 So.2d 201, 203 (Fla.2002). If the Legislature did not clearly express its intention to authorize separate punishments, the courts must resort to the test of statutory construction established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), now codified in section 775.021(4), Florida Statutes (2002). Cruller; Gordon; M.P. The court in Cruller emphasized that if there is a clear expression of legislative intent to require two separate punishments analysis ends and we do not resort to the Blockburger test. In accordance with Cruller, we begin our search for clear legislative intent by examining the language, structure, and legislative history of section 800.04. Cruller, 808 So.2d at 203.

Id. at 1170.

Our examination of the language, structure and legislative history of section 798.02 leads us to conclude that there is no clear legislative intent to authorize two separate punishments for acts of lewd and lascivious behavior alleged to be in violation of the statute. Moreover, our application of the Blockburger analysis codified in section 775.021(4) does not lead us to conclude that each act in violation of the statute is a separate offense. We, therefore, advert to the proper legal analysis to determine whether the acts for which Cabrera was convicted occurred during a single criminal episode. Hunsicker. Because there was not a sufficient temporal break between the two acts on which counts four and five are based to have allowed Cabrera time to pause, reflect and form a new criminal intent for each offense, both acts occurred in a single criminal episode. Id. Hence, both convictions violate double jeopardy principles and, accordingly, we affirm Cabrera’s conviction on one count and reverse his conviction for the other and remand for resentencing.

Regarding the alleged erroneous sexual predator designation, this court held in Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003), that an erroneous designation as a sexual predator under section 775.21, Florida Statutes (2002), is a sentencing error that must be properly preserved for review. If it is not, the defendant may not raise it for the first time on appeal. When Cabrera was sentenced, he did not object, and he has not filed an appropriate motion pursuant to rule 3.800(b), Florida Rules of Criminal Procedure. Therefore, he has not properly preserved this issue for review by this court and, because we are bound by the decision in Nicholson, we must affirm without prejudice to Cabrera to raise it in a proper motion pursuant to rule 3.800(a) or rule 3.850. We certify conflict with Coblentz v. State, 775 So.2d 359 (Fla. 2d DCA 2000), review denied, 789 So.2d 344 (Fla.2001), and Angeli v. State, 712 So.2d 1132 (Fla. 2d DCA 1998).

AFFIRMED in part, REVERSED in part, and REMANDED.

PLEUS and PALMER, JJ„ concur.

SAWAYA C.J., concurs specially with opinion.

SAWAYA, C. J.

concurring specially.

Although I concur with the majority opinion, I write to explain my reluctant concurrence regarding the issue raised by Cabrera concerning his designation as a sexual predator. Cabrera contends that his sexual predator designation should be reversed, arguing that he was denied due process because he was not afforded a hearing and the State failed to establish the necessary requirements to qualify him for the designation. The State contends that Cabrera raises a sentencing error that he failed to preserve for review because he did not object at the appropriate time and did not file a motion pursuant to rule 3.800(b), Florida Rules of Criminal Procedure. In Brannon v. State, 850 So.2d 452 (Fla.2003), the court explains that there is no longer fundamental sentencing error: If the alleged error was not properly preserved for review, the error may not be raised on direct appeal and the defendant will be left to pursue his or her remedy via a proper postconviction relief motion. On the other hand, if the error is not a sentencing error, the fundamental error rule may apply to allow the unpreserved error to be raised for the first time on appeal. Therefore, the central issue is whether the designation of a defendant as a sexual predator pursuant to section 775.21, Florida Statutes (2002), is a sentencing error.

This issue has been addressed by this court and the Second District Court, and divergent views have emerged. In Nicholson v. State, 846 So.2d 1217 (Fla. 5th DCA 2003), this court held that an erroneous designation under section 775.21 is a “sentencing error,” which it broadly defined as “any error that occurs as part of the sentencing process.” Id. at 1219. Adopting a simplistic approach regarding sexual predator designations, this court held that an erroneous designation falls within the definition of “sentencing error” because section 775.21(5)(a)l. requires that the designation be made at the time of sentencing. See also Kidd v. State, 855 So.2d 1165 (Fla. 5th DCA 2003). In Angeli v. State, 712 So.2d 1132 (Fla. 2d DCA 1998), the Second District Court took a completely different approach and held that designation proceedings under the statute are civil actions. See also Coblentz v. State, 775 So.2d 359 (Fla. 2d DCA 2000). I very respectfully submit that the views adopted by both courts are incompatible and inconsistent with the provisions of section 775.21, Florida Statutes. Thus, I write to assert a third approach. I believe that an erroneous designation as a sexual predator is an error committed in a criminal proceeding that relates to the defendant’s conviction for the qualifying offense. Such an error may, therefore, be raised for the first time on appeal provided it qualifies as a fundamental error. I conclude that Cabrera, having argued that his due process rights were violated, has alleged a fundamental error that may be raised for the first time on appeal. Accordingly, we should decide this issue on the merits rather than summarily affirm pursuant to the preservation of error rule applicable to sentencing errors.

I reach this conclusion based on the provisions of section 775.21 and the nature of a sexual predator designation. Section 775.21(3)(d), Florida Statutes (2002), specifically provides that “[t]he designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.” In State v. Robinson, 873 So.2d 1205 (Fla.2004), the court recently held that an order designating an individual as a sexual predator is directly appealable under Florida Rule of Appellate Procedure 9.140, which provides that “[a] defendant may appeal ... orders entered after final judgment or finding of guilt....” Fla. R.App. P. 9.140(b)(1)(D). In Robinson, the court explained:

The district court had jurisdiction to review the order under Florida Rule of Appellate Procedure 9.140(b)(1)(C), which grants appellate jurisdiction over criminal court orders “entered after final judgment or finding of guilt.” See also art. V, § 4(b)(1), Fla. Const, (granting district courts authority to review interlocutory orders to the extent provided by rules of the Supreme Court). The designation of an offender as a sexual predator is based on the offender’s conviction for one of the crimes specified in the Act. § 775.21(4)(c), Fla. Stat. (Supp.1998). The order designating a defendant a sexual predator is thus entered after final judgment or a finding of guilt. See Thomas v. State, 716 So.2d 789 (Fla. 4th DCA 1997) (holding that an order designating a defendant a sexual predator was “entered after defendant was convicted and sentenced” and “is therefore appealable as an order entered after a ‘finding of guilt,’ pursuant to rule 9.140(b)(1)(C)”); Downs v. State, 700 So.2d 789 (Fla. 2d DCA 1997) (same).

Robinson, 873 So.2d at 1208-09.

The provisions of section 775.21 and the holding in Robinson are significant because the Legislature and the court considered designation proceedings criminal in nature, with any resulting error in the proceeding necessarily stemming from the conviction for the qualifying offense rather than the sentence. Notably, rule 9.140(b)(1)(E) allows a defendant to appeal “an unlawful or illegal sentence” and rule 9.140(b)(1)(F) allows a defendant to appeal “a sentence, if the appeal is required or permitted by general law.” In my view, the court’s holding in Robinson that the designation order is appealable under 9.140(b)(1)(D) as an order after final judgment or finding of guilt rather than an order appealable under either subsection (E) or (F) clearly means that the court considered a designation neither a sentence nor a civil proceeding. I also believe that the court’s recognition in Robinson that the designation “is based on the offender’s conviction” of enumerated crimes belies the notion that it is a sentence. Moreover, the court’s holding that a designation order is directly appealable under rule 9.140(b)(1)(D) buttresses the conclusion that such orders stem from convictions rather than sentences. See State v. Anderson, 821 So.2d 1206, 1209 (Fla. 5th DCA 2002) (“A challenge to an underlying conviction may be raised on direct appeal or in a Rule 3.850 motion; it is not cognizable by way of Rule 3.800.”) (citing Bryant v. State, 800 So.2d 692 (Fla. 5th DCA 2001), review denied, 819 So.2d 133 (Fla.2002)).

In Nicholson, this court properly observed that section 775.21(5) provides that “[a]n offender who meets the sexual predator criteria ... who is before the court for sentencing for a current offense committed on or after October 1, 1993, is a sexual predator, and the sentencing court must make a written finding at the time of sentencing that the offender is a sexual predator .... ” § 775.21(5)(a)2., Fla. Stat. (2002). Simply because the statute designates the “time of sentencing” as the appropriate time for the designation to be made, however, does not necessarily mean that the designation is a sentencing error. Rule 3.700(a), Florida Rules of Criminal Procedure, defines “sentence” as “the pronouncement by the court of the penalty imposed on a defendant for the offense of which the defendant has been adjudged guilty.” Although I agree with the rather broad definition of “sentencing error” applied in Nicholson as “any error that occurs as part of the sentencing process,” I believe that the “process” and “error” must relate to the pronouncement of the penalty imposed for the offense the defendant committed, not to errors relating to other matters that are addressed at the time the defendant is sentenced. For example, a trial court may defer the decision whether to withhold adjudication of guilt until sentencing and this decision, while made at the time of sentencing, does not render any resulting error a sentencing error made during the sentencing process. Yet, the literal application of the broad definition of sentencing error espoused in Nicholson would indeed make such an error a sentencing error. In my view, this does not make sense. Because a sexual predator designation is neither a sentence nor a punishment, it cannot be a penalty imposed for the offense committed and, accordingly, an erroneous designation should not fit within the definition of “sentencing error” applied in Nicholson.

A sexual predator designation more closely fits within the definition of “conviction,” which means “a determination of guilt resulting from plea or trial.... ” Fla. R.Crim. P. 3.704(d)(6); see also Washington v. Mayo, 77 So.2d 620 (Fla.), cert. denied, 350 U.S. 851, 76 S.Ct. 91, 100 L.Ed. 757 (1955). Generally, it is the state’s responsibility to bring to the trial court’s attention the fact that a defendant qualifies as a sexual predator and to establish the necessary prerequisites to obtain a designation from the court. See §§ 775.21(4)(c), (5)(a)(2), (5)(c), Fla. Stat. (2002). If it fails to meet that burden, the designation may not be made'. If the requisite showing is made, the trial court makes the designation in a written order. Hence, I believe that the statutory provisions that require a determination based on the state’s showing that the person qualifies as a sexual predator are more analogous to a conviction than to a sentence.

While part of section 775.21(5)(a) permits the designation to be made at the time of sentencing, just as . this court in Nicholson observed, what this court overlooked or failed to fully consider is that other provisions of section 775.21 clearly provide that a motion may be filed, a hearing may be conducted and an order of designation may be entered long after the date sentence was imposed. For example, provision is made for designation subsequent to sentencing pursuant to sections 775.21(5)(a)l. and 775.21(5)(c), which apply respectively to instances where the trial court failed to make the designation at the time of sentencing and instances where the information that the defendant qualifies for designation was discovered subsequent to sentencing for the current or qualifying offense. Moreover, the courts have specifically held that failure to designate a qualified individual at sentencing for a current offense is not jurisdictional, and it may be done after sentencing has occurred. In Gonzalez v. State, 808 So.2d 1265 (Fla. 3d DCA 2002), the court noted:

Although the defendant clearly states that he is objecting solely to the public notification portion of his classification as a sexual predator, he argues generally that the trial court was without authority to designate him a sexual predator because the determination was not made contemporaneous to his initial sentencing. We find this claim unmeritorious. As stated in Fletcher v. State, 699 So.2d 346, 347 (Fla. 5th DCA 1997), the sexual predator designation is not an impermissible modification of an offender’s sentence “because the designation ‘sexual predator’ is neither a sentence nor a punishment.” See Collie v. State, 710 So.2d 1000, 1006 (Fla. 2d DCA 1998).

Id. at 1265 n. 1.

There are numerous cases where the courts have upheld designation orders rendered long after the defendant was sentenced for the underlying offense. This is why a designation order is appealable under rule 9.140(b)(1)(D) as an order rendered after a finding or judgment of guilt rather than as an erroneous sentencing order under the other provisions of the rule. Accordingly, I cannot accept as legally correct the approach taken by this court in Nicholson that a designation order is a sentencing order simply because one provision of the statute states that the designation should be made at the time of sentencing when the Legislature and the courts have specifically indicated that the designation may be made after sentencing for a current or qualifying offense. I likewise cannot agree with the rationale adopted by the Second District Court that designation proceedings are civil rather than criminal.

I also note that the alternative remedies available to a defendant who has not properly preserved a sentencing error may not be available to a defendant who has not properly preserved an erroneous designation. If an unpreserved sentencing error is appealed and the defendant has not availed himself of the procedure established in rule 3.800(b), the defendant “retains an opportunity to assert the sentencing error after the direct appeal, through either rule 3.800(a) or rule 3.850.” Brannon, 850 So.2d at 458 (footnote omitted); Lewis v. State, 827 So.2d 1052 (Fla. 5th DCA 2002); Gen v. State, 797 So.2d 605 (Fla. 1st DCA 2001); Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000). However, rule 3.800(a) applies to illegal sentences and the Legislature and the courts have repeatedly held that a sexual predator designation under section 775.21 is not a sentence or a form of punishment. More importantly, this court has specifically held that an erroneous designation under section 775.21 is not correctable under rule 3.800. Moreover, a designation as a sexual predator simply does not fit within the definition of illegal sentence under rule 3.800. In Raley v. State, 675 So.2d 170 (Fla. 5th DCA 1996), this court explained:

Our court has decided to adopt the second district’s interpretation of the limited nature of rule 3.800(a) proceedings:
Rule 3.800 is intended to provide relief for a narrow category of cases in which the sentence imposes a penalty that is simply not authorized by law. It is concerned primarily with whether the terms and conditions of the punishment for a particular offense are permissible as a matter of law. It is not a vehicle designed to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process. Unlike a motion pursuant to rule 3.850, the motion can be filed without an oath because it is designed to test issues that should not involve significant questions of fact or require a lengthy evidentiary hearing.

Id. at 172-73 (emphasis added) (quoting Judge v. State, 596 So.2d 73, 76-77 (Fla. 2d DCA 1991), review denied, 613 So.2d 5 (Fla.1992)). Therefore, because a sexual predator designation is not a sentence that imposes a penalty or punishment, rule 3.800(a) is not applicable to correct erroneous sexual predator designations.

The remedy provided by rule 3.850 may not be available if the designation is made long after expiration of the time limits for filing a motion under the rule. For example, in Walk v. State, 707 So.2d 933 (Fla. 5th DCA 1998), the state filed a motion under section 775.21 to have the defendant declared a sexual predator in February 1997, which was several years after the defendant was convicted and sentenced. After the order was entered, the defendant filed a direct appeal and a motion pursuant to rule 3.850 contesting the order. This court held:

A motion filed pursuant to rule 3.850 is untimely if filed more than two years after the conviction and sentence become final. Fla. R.Crim. P. 3.850(b). If the conviction and sentence are not appealed, they become final 30 days after they are entered. Ramos v. State, 658 So.2d 169 (Fla. 3d DCA 1995). Walk’s conviction and sentence became final on 4 January 1995. Consequently, the motion was time-barred.

Id. at 933-34. Moreover, “claims which were or could have been raised on direct appeal are proeedurally barred in a rule 3.850 motion.” Schwab v. State, 814 So.2d 402, 406 n. 4 (Fla.2002) (citation omitted); see also Lopez v. Singletary, 634 So.2d 1054, 1056 (Fla.1993) (“Postconviction motions are not to be used as second appeals.”) (citation omitted). Because a defendant has a right to directly appeal an erroneous designation pursuant to rule 9.140, as the court held in Robinson, the erroneous designation may not be corrected pursuant to rule 3.850. Since the preservation rule applicable to sentencing errors is based on the defendant’s right to assert the error in subsequent proceedings under rule 3.800 or 3.850 rather than a direct appeal, and because I believe those remedies are not available to a defendant aggrieved by an unpreserved but erroneous sexual predator designation, it is my view that an erroneous designation is not a sentencing error.

I conclude that an erroneous sexual predator designation is not a sentencing error or an error arising out of a civil proceeding. I also conclude that Cabrera has alleged a fundamental error in a criminal proceeding and that this court should resolve the issue on the merits in the instant proceedings. However, because we are bound by our decision in Nicholson, I very reluctantly concur with the majority opinion.

      . The other issues that we affirm are: 1) whether the trial court erred by failing to make specific findings of fact to support its conclusion that the child who testified was competent to do so; 2) whether the trial court erred by admitting alleged hearsay statements of the victim without making proper and specific findings of reliability and trustworthiness; 3) whether the State committed prose-cutorial misconduct and invaded the province of the jury by bolstering the credibility of the victim; and 4) whether the Florida Sexual Predator’s Act, section 775.21, Florida Statutes (2002), is unconstitutional because it violates procedural due process. As to the last issue, we certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct 180, 76 L.Ed. 306 (1932).

      . Although this court cites this section for the requirement that the designation be made during sentencing, the correct citation is to section 775.21(5)(a)2. This section is one of three enumerated circumstances when the court may enter a sexual predator designation.

      . See State v. Johnson, 616 So.2d 1, 3 (Fla.1993) ("[F]or an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process.”); Ray v. State, 403 So.2d 956, 960 (Fla.1981) (”[F]or error to be so fundamental that it may be urged on appeal, though not properly presented below, the error must amount to a denial of due process.”); Ray v. State, 855 So.2d 1260 (Fla. 4th DCA 2003); Cagle v. State, 821 So.2d 443 (Fla. 2d DCA 2002); see also Petrucelli v. State, 855 So.2d 150 (Fla. 2d DCA 2003).

      . Rule 9.140(b)(1)(C) referred to in Robinson was renumbered to rule 9.140(b)(1)(D) without change when subsection (b)(1)(B) was added by the Florida Supreme Court in 2000. See Amendments to Florida Rules of Appellate Procedure, 780 So.2d 834 (Fla.2000) ("We likewise adopt the committee's proposal to renumber subdivision (b)(1)(C) as subdivision (b)(1)(D) and to amend it to provide that a defendant may appeal orders denying relief under Florida Rule of Criminal Procedure 3.800(a) or 3.850.").

      . For example, in Thomas v. State, 716 So.2d 789 (Fla. 4th DCA 1997), the trial court entered the order after the defendant had been convicted and sentenced. The state argued that the order was not an appealable order. The court rejected that argument and held:
      Defendant appeals an order in which the trial court found him to be a sexual predator pursuant to section 775.21, Florida Statutes (Supp.1996). The state moves to dismiss the appeal on the ground that the order is not appealable. The state's motion to dismiss, which contains no argument, simply states that the order is not appeal-able under either section 924.06, Florida Statutes (1993) or rule 9.140(b), Florida Rules of Appellate Procedure.
      Rule 9.140(b)(1)(C) provides that a defendant may appeal "orders entered after final judgment or finding guilt, including orders revoking; or modifying probation or community control, or both.” The order in the present case was entered after defendant was convicted and sentenced. It is therefore appealable as an order entered after a "finding of guilt,” pursuant to rule 9.140(b)(1)(C). The motion to dismiss appeal is denied.

        Id. at 789.
      This court has adopted the same rationale. In Pisarri v. State, 724 So.2d 635 (Fla. 5th DCA 1998), the trial court, approximately thirteen months after the defendant was sentenced, entered an order finding that the defendant was a sexual predator. The defendant attempted to file a mandamus petition to require that his name be excluded from the mandatory list of sexual predators maintained by the Florida Department of Law Enforcement. In affirming the denial of that petition, this court held:
      If the trial court erroneously found appellant to be a sexual predator, an appeal from that order would have been the appropriate remedy. The fact that some time intervened between appellant's sentencing and the court's determination that appellant was a sexual predator would not, in and of itself, make that finding erroneous.

        Id. at 636 (citations omitted).
      Similarly, in Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), review granted, 859 So.2d 514 (Fla.2003), the state sought to have the defendant declared a sexual predator several months after he was sentenced. When the trial court subsequently entered the order designating him a sexual predator, the defendant appealed and the state argued that the court did not have jurisdiction to hear the appeal since the time to appeal the sentence and conviction had expired. The Second District Court rejected that argument and held:
      The State has argued that this court lacks jurisdiction to review the order designating Mr. Milks a sexually violent predator because it was entered months after Mr. Milks entered a plea to the charges against him. See Coblentz v. State, 775 So.2d 359, 360 (Fla. 2d DCA 2000). We conclude that we have jurisdiction in this direct appeal of the trial court's order to review whether the sexual predator designation violates constitutional principles of separation of powers or procedural due process either pursuant to Florida Rule of Appellate Procedure 9.140(b)(1)(D) or by way of certiorari.

        Id. at 1168 n. 1 (citation omitted). Another analogous case is Walker v. State, 718 So.2d 217 (Fla. 4th DCA 1998), wherein the defendant was designated a sexual predator after he was sentenced. The court upheld the designation and stated:
      The sexual predator designation "is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.” Fletcher v. State, 699 So.2d 346, 347 (Fla. 5th DCA 1997). Section 775.21(4)(b)2, Florida Statutes (Supp.1996), like section 775.21(4)(a)2, allows trial courts to designate offenders who committed their current offenses between October 1, 1995, and October 1, 1996, as sexual predators after they have been sentenced for the current offense. See Collie v. State, 710 So.2d 1000 (Fla. 2d DCA 1998).

        Id. at 218.

      . See Kelly v. State, 795 So.2d 135 (Fla. 5th DCA 2001), review denied, 851 So.2d 729 (Fla.2003), and cert. denied, 540 U.S. 1192, 124 S.Ct. 1442, 158 L.Ed.2d 103 (2004); Rickman v. State, 714 So.2d 538, 539 (Fla. 5th DCA 1998) ("This court has previously held that the registration requirement of sec. 775.21, F.S. (Supp.1996) are [sic] procedural and regulatory in nature and do not constitute punishment.”); Fletcher v. State, 699 So.2d 346, 347 (Fla. 5th DCA 1997) ("Election 775.21 violates neither the ex post facto clause nor Rule 3.800 because the designation ‘sexual predator’ is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.”), review denied, 707 So.2d 1124 (Fla.1998); see also State v. Erickson, 852 So.2d 289, 291 n. 1 (Fla. 5th DCA 2003) ("Since the courts of Florida have uniformly recognized that the Florida Sexual Predators Act is regulatory in nature and does not constitute punishment subject to constitutional ex post facto challenges, the need for a qualifying offense date within the Act is questionable.”); Mendez v. State, 798 So.2d 749, 751 n. 2 (Fla. 5th DCA 2001) ("This court has previously held that designation as a sexual predator is 'neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.’ ”) (citation omitted).

      . In Carter v. State, 786 So.2d 1173 (Fla.2001), the court defined "illegal sentence” under rule 3.800(a) as follows:
      To be illegal within the meaning of rule 3.800(a) the sentence must impose a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. On the other hand, if it is possible under all the sentencing statutes — given a specific set of facts — to impose a particular sentence, then the sentence will not be illegal within rule 3.800(a) even though the judge erred in imposing it.

        Id. at 1178 (quoting Blakley v. State, 746 So.2d 1182, 1186-87 (Fla. 4th DCA 1999)). A sexual predator designation is not a punishment and therefore does not fit within this definition.


author: WHATLEY, Judge. ALTENBERND, Chief Judge,

text:
    Nora Jean DOWLING, Appellant, v. James Henry DOWLING, III, Appellee.
    No. 2D03-4684.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2004.
    Elizabeth S. Wheeler of Berg & Wheeler, P.A., Brandon, for Appellant.
    Clifton C. Curry, Jr., and Michael C. McGinn of Law Offices Curry & Associates, P.A., Brandon, for Appellee.
   WHATLEY, Judge.

Nora Jean Dowling, the former wife, appeals an order granting a motion to enforce the final judgment of dissolution of marriage filed by her former husband, James Henry Dowling. Nora Dowling raises three points on appeal. We agree with her argument that the evidence presented at the hearing’on the above motion does not support the trial court’s finding that she violated the terms of the final judgment of dissolution of marriage, and we therefore reverse.

The motion was based on the following provision in the final judgment regarding the parties’ former marital home:

As agreed by the parties, the Wife shall have full title and ownership to that certain real property ... which is titled in the name of the Husband. The Wife shall assume any indebtedness pertaining to the said real property, and hold the Husband harmless therefrom. Hereafter, [i]n the event the Wife defaults on the mortgage pertaining to the said real property for a period exceeding thirty (30) days, then, in that event, the said real property shall revert back to the Husband and be his absolutely. The said default provision shall terminate as soon as the Wife refinances the existing mortgage pertaining to the said real property in order to release the Husband therefrom.

The trial court found that Nora Dowling violated this paragraph on at least four occasions between August 2002 and June 2003, because she failed to pay the mortgage in a timely manner. It further found that Nora Dowling testified that she was aware of her obligation to make timely payments but failed to do so. Consequently, the trial court ordered that the property revert back to James Dowling.

A review of the transcript shows that Nora Dowling did admit that she failed to timely make the mortgage payments on at least four occasions; however, the above provision of the final judgment provides that the property will only revert back to James Dowling if she defaults on the mortgage for a period exceeding thirty days. Nora Dowling never agreed that she was more than thirty days late in paying the mortgage.

Although James Dowling presented several bank statements at the hearing, only one is included in the record. The trial court relied on this statement in concluding that Nora Dowling was in breach of the final judgment. The statement, dated April 29, 2003, reflects that the next mortgage payment for the amount of $749.82 was due on May 1, 2003, and there was a past due amount of $1387. The trial court found that this statement indicated that the mortgage was two months in arrears. There are two problems with this finding.

First, assuming that the monthly payment due on April 1 was $749.82, then if the mortgage was two months in arrears as found by the trial court, the past due amount would be at least $1499.64, not $1387. There is nothing in the record to indicate why $637.18 was added to the past due amount. Second, the statement was dated April 29 and Nora Dowling would not have been in default on her April 1 payment, pursuant to the final judgment, until more than thirty days after the payment was due, which would have been May 2, 2003. There is no evidence in the record that Nora Dowling did not make the monthly payment before May 2, 2003. Nora Dowling attempted to show the trial court receipts for payments she had made on the loan, but the trial court refused to consider them. Nora Dowling testified that at the time of the hearing, the mortgage balance had been brought up to date. James Dowling did not contradict this statement. Because the evidence does not support the trial court’s finding that Nora Dowling defaulted on the mortgage for a period exceeding thirty days, we conclude that the trial court abused its discretion in ordering that ownership of the marital home revert back to James Dowling. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

Further, we are troubled by evidence indicating that James Dowling did not permit the bank to send Nora Dowling monthly mortgage statements showing the amount due on the loan and the balance of the loan. On remand, James Dowling should be required to request the mortgage company to provide Nora Dowling with information concerning the loan. Nora Dowling testified that she never received any statements from the bank and when she called the bank, it refused to provide any information to her because her name was not on the loan. Nora Dowling alleged that, because she never received the statements, she did not realize that there had been an outstanding late loan payment before the final judgment was entered on August 30, 2002.

The order granting the motion to enforce the final judgment of dissolution of marriage is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

DANAHY, PAUL W., Senior Judge, concurs.

ALTENBERND, C.J., concurs with opinion.

ALTENBERND, Chief Judge,

concurring.

The record on appeal in this case is limited. The final judgment of dissolution reveals that the former wife has primary residential responsibility for the couple’s only child. She received no alimony and modest child support. As equitable distribution, she received the marital home and a business property, both of which were apparently subject to mortgages. The “re-verter” clause described in the court’s opinion and a similar clause governing the business property were included in this final judgment by stipulation. These re-verter clauses were apparently designed to protect the former husband’s credit rating if the former wife failed to pay obligations upon which the former husband was liable. The record suggests that the business property has already reverted to the former husband.

The record does not establish the amount of equity, if any, that may exist in the two properties distributed to the former wife in the final judgment. On appeal, the former wife argues that these clauses result in a forfeiture and should not be enforced. I agree with the majority that this issue cannot be resolved on the face of this record, but I would emphasize that our opinion does not preclude further examination of this issue.

I am troubled by the whole concept of these reverter clauses. My concern is increased because the final judgment does not contain an award of at least minimal alimony to the former wife. The former wife clearly did not anticipate that she would have financial problems shortly after the entry of the judgment when she agreed to these clauses. However, without a provision for alimony in the final judgment there may be no provision that can be meaningfully modified to assist the former wife with these unexpected circumstances.

This case does not present this court with a record that would permit us to decide whether such clauses are void or voidable for reasons of public policy, but family law practitioners may wish to give further thought to these troublesome clauses.

      . Nora Dowling and the parties' minor daughter were residing in the home.

      . The April statement indicated that the monthly payment of $749.82 included a $56.32 late charge.

      . This allegation is supported by Mr. Dowl-ing’s first motion to enforce the judgment which was filed on September 10, 2002, and contended that Mrs. Dowling failed to make monthly payments on the home and that the home was under the threat of foreclosure. Assuming that Mrs. Dowling’s first payment was due on September 1, 2002, the first day after the final judgment was entered, her failure to send a payment by September 10 would not have resulted in a threat of foreclosure. Unfortunately, the final judgment does not specify the date on which Mrs. Dowling was to assume responsibility for the loan payments.


author: THOMPSON, J.

text:
    Jackson McNEALLY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2189.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

Jackson McNeally appeals his conviction for possession of a concealed weapon by a convicted felon. We reverse.

Patrolling police officers found McNeally and a female outside a closed grocery store. They asked McNeally if he had any weapons in his possession, and McNeally replied that he had a butcher’s knife in his jacket. After frisking McNeally, the officers extracted a large knife from McNeally’s jacket and arrested him for carrying a concealed weapon. McNeally testified that he had borrowed the knife from a friend to prepare a meal of ribs and chicken for a New Year’s Day party he was planning. McNeally stated that he did not hesitate to tell the officer that he was carrying the knife because he had it for culinary purposes. At the end of testimony, McNeally asked the trial court to instruct the jury on the definition of “deadly weapon” and argued that the jury had to determine whether McNeally was carrying a “deadly weapon” or a cooking utensil. The trial court denied McNeally’s request, and McNeally was convicted as charged. On appeal, McNeally argues that the trial court erroneously denied his request for the jury instruction. We agree.

Section 790.23(l)(a), Florida Statutes, provides that it is unlawful for a convicted felon to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon. Section 790.001(3)(a), Florida Statutes, defines a “concealed weapon” as:

Any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.

To be convicted of this crime, a person must carry one of the specified items or a weapon considered to be an “other deadly weapon” in a concealed manner. State v. Walthour, 876 So.2d 594 (Fla. 5th DCA 2004); Nystrom v. State, 777 So.2d 1013 (Fla. 2d DCA 2000). Additionally, the jury, as the trier of fact, determines whether the accused is guilty of carrying a concealed weapon based upon the knife involved and the circumstances surrounding the accused’s carrying of it. State v. A.D.H., 429 So.2d 1316 (Fla. 5th DCA 1983); see also Walthour, 876 So.2d at 597 (whether a steak knife is a concealed weapon presents a question of fact for the jury).

In the instant case, McNeally did not carry one of the specified items defined as a weapon in section 790.001(3)(a). Therefore, the jury should have been permitted to determine whether the knife was a “deadly weapon.” Moreover, the jury should have received an instruction on the definition of “deadly weapon,” as requested by McNeally. See Nystrom, 777 So.2d at 1015 (holding that the jury should be permitted to consider whether a common household item that was not one of the weapons specified in section 790.001 was a “deadly weapon,” and the jury should have received an instruction on the definition of “deadly weapon”). As we stated in Walth-our:

Under the undisputed facts, the steak knife may be a dirk, or an innocent household item. But that determination is one for the finder of fact based on a consideration of the circumstances, for example, the manner in which it was carried, how [accessible] it was to the accused, its purpose, or the accused’s motive for carrying it, and its ability to cause harm to another.

Id. at 597.

REVERSED and REMANDED for further proceedings.

GRIFFIN and ORFINGER, JJ., concur.


author: VILLANTI, Judge.

text:
    In re COMMITMENT OF Moses HIGDON. Moses Higdon, Appellant, v. State of Florida, Appellee.
    No. 2D02-531.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2004.

      James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Amanda Lea Colón, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Moses Higdon appeals from an order finding him to be a sexually violent predator and committing him to the custody of the Department of Children and Family Services pursuant to section 394.917(2), Florida Statutes (1999), the “Jimmy Ryce Act.” We affirm the commitment order. See Westerheide v. State, 831 So.2d 93 (Fla.2002). However, because Higdon argues that the jury was not properly instructed on the issue of volitional control, as required by Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), we certify the same question certified as one of great public importance in Lee v. State, 854 So.2d 709, 716 (Fla. 2d DCA 2003), and Freeze v. State, 861 So.2d 1234, 1235 (Fla. 2d DCA 2003):

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

Affirmed; question certified.

FULMER and SILBERMAN, JJ., concur.


author: SILBERMAN, Judge.

text:
    Dahlgren HAWKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-338.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2004.
    James Marion Moorman, Public Defender, and Deana K. Marshall, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Dahlgren Hawkins appeals the revocation of his drug offender probation and resulting sentences for grand theft motor vehicle, burglary of a dwelling, grand theft third degree, and possession of cocaine. We affirm the revocation of probation and resulting sentences; however, we reverse the revocation order as to the finding of a violation of condition 13, that Hawkins obtain a drug evaluation within thirty days, because the State presented only hearsay evidence to support the violation. See Johnson v. State, 691 So.2d 43, 44 (Fla. 2d DCA 1997) (determining that hearsay testimony of probation officer was insufficient to support a violation when the State failed to introduce the probation file into evidence under the business records exception to the hearsay rule). Because the remaining violations of probation, which include new law violations, are substantial, we affirm the revocation of probation. See Mitchell v. State, 871 So.2d 1040, 1042 (Fla. 2d DCA 2004) (recognizing that when an appellate court reverses a violation of community control, the court need not remand for reconsideration of whether to revoke community control when remaining violations are substantial). Thus, we remand for the trial court to strike the finding of a violation of condition 13 from the revocation order.

Affirmed in part, reversed in part, and remanded.

FULMER and VILLANTI, JJ., concur.


author: DAVIS, Judge.

text:
    Gable T. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2433.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2004.
   DAVIS, Judge.

Gable T. Williams appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

In 1996 Williams pleaded no contest to sale of cocaine and possession of cocaine. The trial court sentenced him to ten years in prison with the last four years suspended and served on probation. Williams admitted to violating his probation in 2002 and was sentenced to two years in prison with 276 days of jail credit.

In his motion, Williams claimed that he entered into a plea agreement whereby he would admit to the violation of probation with the understanding that he would serve two years in prison. He further alleged that upon his return to prison the Department of Corrections (DOC) forfeited his previously earned gain time. Williams maintained that he therefore will end up serving more than two years in prison, and he asked to be resentenced so as to effectuate his plea agreement.

The trial court failed to address this specific claim and concluded that the DOC properly forfeited Williams’ gain time. The record attached to the trial court’s order does not refute Williams’ claim but actually indicates that Williams admitted to the violation of probation in exchange for a sentence of two years in prison. Therefore, we reverse and remand for the trial court to consider Williams’ claim. Unless portions of the record refute his claim, the trial court shall either resen-tence Williams in a manner that effectuates the intent of the plea agreement after considering the DOC’s forfeiture of gain time or allow him to withdraw his plea. See Williamson v. State, 841 So.2d 694 (Fla. 2d DCA 2003).

Reversed and remanded.

FULMER and CANADY, JJ„ concur.


author: PALMER, J.

text:
    Bryan LINDERMAN, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D03-4103, 5D04-214.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Bryan Linderman (defendant) appeals the order designating him a sexual predator, arguing that his procedural due process rights were violated when he was designated as a sexual predator. He relies on Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003), in which the Third District held Florida’s Sexual Predator Act to be unconstitutional on the basis that it fails to provide minimal due process. However, this court has held that the Act is constitutional and does not violate a defendant’s procedural due process rights. See Rickman v. State, 871 So.2d 310 (Fla. 5th DCA 2004). The other district courts are in accord. See Allen v. State, 29 Fla. L. Weekly D892 (Fla. 2d DCA April 14, 2004); Frazier v. State, 29 Fla. L. Weekly D369 (Fla. 1st DCA Feb.6, 2004); Dejesus v. State, 862 So.2d 847 (Fla. 4th DCA 2003).

Accordingly, we affirm the designation order rendered below and certify conflict with Espindola.

AFFIRMED; CONFLICT CERTIFIED.

ORFINGER and TORPY, JJ., concur.

      . See Fla. R.Crim. P. 3.850.


author: PER CURIAM.

text:
    John K. POLK, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-1861.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.

      John K. Polk, Jr., Daytona Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

In light of the commissioner’s report of findings and recommendation, we grant the petition for writ of habeas corpus for belated appeal because John K. Polk, Jr. was not advised at the time of sentencing that a thirty-day time limit existed within which an appeal must be filed. Bowden v. Singletary, 805 So.2d 812 (Fla. 3d DCA 1999).

This opinion shall be filed with the lower court and will be treated as the notice of appeal in Orange County Circuit Case 01-CF-015455-0.

PETERSON, PLEUS and MONACO, JJ., concur.


author: PLEUS, J.

text:
    Billy Ray ELKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2244.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.
    Billy Ray Elkins, Kissimmee, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Billy Ray Elkins appeals an order which summarily denied his motion for additional jail credit. Elkins was convicted in Osceola County of resisting an officer without violence and sentenced to 12 months incarceration with credit for 118 days.

Elkins had been charged with various offenses in Osceola County, and then failed to appear in court. A warrant was issued for his arrest on August 11, 2003. He was arrested on that warrant in Polk County on August 31, 2003. Elkins sought an additional 143 days of credit from the date of his arrest in Polk County on August 31, 2003, to the date of his transfer to Osceola County on January 21, 2004.

Elkins alleged that his entitlement to additional jail credit is clear on the face of the record. See State v. Mancino, 714 So.2d 429 (Fla.1998). Elkins attached to his motion the Polk County arrest report, which shows that he was arrested on the Osceola County bench warrant, as well as for some local Polk County offenses. The circuit court denied his motion because Elkins was not formally arrested by Osceola County authorities until his return to that county on January 21, 2004. The primary question, though, is whether El-kins was arrested in Polk County on the bench warrant that had been issued from Osceola County. See Travis v. State, 724 So.2d 119 (Fla. 1st DCA 1998).

This case is distinguishable from Gethers v. State, 838 So.2d 504 (Fla.2003), where authorities in St. Lucie County issued a bench warrant and detainer after Gethers was arrested and taken into custody in Broward County. The warrant from St. Lucie County was not executed until Gethers was returned to that county. The supreme court held that a detainer is not a formal mandate to hold an inmate, but it simply informs the custodial authority that an inmate is wanted in another jurisdiction. See also Price v. State, 598 So.2d 215 (Fla. 5th DCA 1992). In the instant case, Elkins alleged that he was arrested in Polk County as the result of the Osceola County warrant.

We therefore reverse the order denying relief and remand to the trial court for further proceedings. It appears from the limited record before us that Elkins was arrested in Polk County on both the Osceola County warrant as well as on local Polk County charges. If any of the Polk County charges resulted in a judgment and sentence, Elkins would not be entitled to duplicate credit on his Osceola County sentence unless it was ordered to be served concurrent to the Polk County sentence. See Daniels v. State, 491 So.2d 543 (Fla.1986).

REVERSED and REMANDED.

GRIFFIN and MONACO, JJ., concur.


text:
    Samuel Lee STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2294.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.
    Samuel Lee Stewart, East Palatka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant raises two issues on appeal, only one of which merits discussion. Appellant contends that he was not given proper credit for time served in jail before he was sentenced. The State properly concedes error because the lower court failed to attach pertinent portions of the record to support its order denying Appellant’s claim. See Brown v. State, 816 So.2d 1142 (Fla. 5th DCA 2002). The lower court’s order is reversed in part with instructions that it either grant the request for additional jail credit or attach those portions of the record that support denial of the request. In all other respects, the order is affirmed.

AFFIRMED in part; REVERSED in part and Remanded.

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


author: MONACO, J.

text:
    Wayne RALEY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-3085.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.
    Wayne Raley, Arcadia, Pro Se.
    No appearance for Respondent.
   MONACO, J.

Wayne Raley seeks a writ of habeas corpus for a belated appeal. Unfortunately, Mr. Raley’s petition is not sworn with the necessary sufficiency. His unnotarized oath simply says, “I swear that the factual allegations set out in paragraphs 1-6 are true.” While unquestionably section 92.525(2), Florida Statutes (2008), allows an unsworn oath to be used for these purposes, an oath not acknowledging that it is made subject to the laws governing perjury is insufficient. See Young v. State, 786 So.2d 641 (Fla. 4th DCA 2001); Cf. Armey v. State, 880 So.2d 1269 (Fla. 2d DCA Sept.1, 2004) (where motion was sworn under penalties of perjury). Accordingly, we deny the petition without prejudice to Mr. Raley to file a new petition containing a sufficient oath.

PETITION DENIED without prejudice.

GRIFFIN and THOMPSON, JJ., concur.


author: TORPY, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. C.K.G., A Child, Respondent.
    No. 5D04-2672.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.

      Ralph J. McMurphy, Wildwood, for Petitioner.
    No Response for Respondent.
   TORPY, J.

The Department of Children and Families challenges the commitment order and amended commitment order in this juvenile delinquency proceeding. We reverse both orders.

Respondent stands accused of acts that would be felonies if they had been committed by an adult. Upon order of the lower court, Respondent was evaluated by two psychologists to determine his competency to proceed to trial. Both professionals determined that he is not competent to proceed due to his lack of maturity, not because of mental illness or retardation. These findings notwithstanding, the lower court committed Respondent to the Department for treatment to restore him to competency in direct contravention of section 985.223(2), Florida Statutes (2003). Based upon the foregoing, we grant the petition and quash the orders of commitment.

PETITION GRANTED.

THOMPSON and PALMER, JJ., concur.


text:
    Willie J. KENT, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2238.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2004.
    Willie J. Kent, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Willie J. Kent (defendant) appeals the final order entered by the trial court denying his rule 3.853 motion for DNA testing. The trial court denied the motion as untimely because it was not filed within two years of the date the defendant’s judgment and sentence became final. While the State commendably concedes that this ruling was improper because the Florida Supreme Court suspended the deadline for filing a rule 3.853 motion in Amendments to Florida Rule of Criminal Procedure 8.853(d)(1)(A), 857 So.2d 190 (Fla.2003), the State argues that the court’s order should be affirmed because the defendant’s motion fails to meet the initial threshold pleading requirements for DNA testing. We conclude that such a determination is properly made by the trial court. Aceord-ingly, we reverse the trial court’s order and remand this matter for further proceedings.

REVERSED and REMANDED.

SAWAYA, C.J., and THOMPSON, J„ concur.

      . See Fla. R.Crim. P. 3.853 (authorizing post-conviction DNA testing).


text:
    John M. ORTEGA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Symax Services Limited, Appellees.
    No. 1D03-4566.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2004.
    John M. Ortega, Land O’ Lakes, pro se.
    Patricia E. Lowry, David I. Spector and Melissa Segarra, Steel Hector & Davis LLP, West Palm Beach; Geri Atkinson-Hazelton, General Counsel, Unemployment Appeals Commission, Tallahassee, for Ap-pellees.
   PER CURIAM.

The Appellant John Ortega appeals from the Unemployment Appeals Commission’s decision affirming the Appeals Referee’s determination that appellant is not entitled to unemployment benefits. Prior to the hearing in front of the Appeals Referee, appellee Symax Services Limited, appellant’s former employer, requested a continuance. The Appeals Referee responded to Symax’s request for a continuance by granting “the request to delay [Symax’s] appearance” and stating that the telephonic hearing would proceed as scheduled, without the presence of Symax. The Appeals Referee further stated, “If the appellant presents evidence which may constitute grounds for reversing the determination [denying benefits], another hearing will be scheduled. [Symax] will have an opportunity to appear and present evidence as well as review the evidence presented by the appellant.” Accordingly, Symax did not attend the hearing, and because the Appeals Referee found that appellant did not present evidence that required reversal, Symax has not presented evidence or attended a hearing.

Because appellant presented a prima fa-cie case entitling him to unemployment benefits, see Ayers v. Unemployment Appeals Comm’n, 848 So.2d 1239, 1240-41 (Fla. 4th DCA 2003) (affirming the referee’s determination that the employee quit with good cause where the employee left because she believed that her employer was illegally billing Medicare), Gorr v. Sheridan Travels, Inc., 655 So.2d 1310, 1311 (Fla. 4th DCA 1995) (holding that the referee properly concluded that the employee quit with “good cause” where the employee presented unrebutted evidence that she left her job because her employer was requiring her to backdate ticket orders, which employee considered improper, unprofessional, and illegal), and Kelly v. Dade County Sch. Bd., 872 So.2d 457, 458 (Fla. 3d DCA 2004) (finding no competent substantial evidence to support the referee’s determination in favor of the employer where the employer did not present any witnesses with personal knowledge of the claims and did not rebut the employee’s allegations), and Symax was not permitted to present contrary evidence, this case must be remanded for a new hearing, where both appellant and Symax may present evidence.

REVERSED and REMANDED to the Unemployment Appeals Commission with directions to remand to the Appeals Referee for a new hearing.

BENTON, BROWNING and POLSTON, JJ., concur.


author: PADOVANO, J.

text:
    Jeffrey FAUNCE, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0488.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2004.

      Nancy A. Daniels, Public Defender and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Shasta W. Kruse, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PADOVANO, J.

The issue in this appeal is whether the trial court erred in denying a motion to suppress evidence seized from the defendant’s truck in the course of an investigative detention. We conclude that the arresting officer did not have a reasonable suspicion to stop the truck and that the ensuing seizure of evidence was unlawful. Accordingly, we reverse.

Deputy Winston Warner of the Columbia County Sheriffs Office was patrolling a residential area at 11:00 p.m. on the night of August 2, 2003, when he noticed something that aroused his suspicion. He saw a small pickup truck traveling at what he considered to be an abnormally slow speed. According to Deputy Warner, the truck was proceeding at about 10 to 15 miles per hour in a 85 mile per hour speed zone. The driver signaled to Deputy Warner to pass, but instead the deputy continued to follow the truck.

While he was following the truck, Deputy Warner ran a check on the license plate. The report he received did not reveal any violation of the law, but he decided nonetheless to stop the truck. He approached the driver, Jeffrey Faunce, and asked him to produce his driver’s license. The defendant complied with this request and the deputy soon learned that the defendant’s license had been suspended.

Deputy Warner told the defendant that he was going to arrest him for driving with a suspended license and asked if he could search the truck. At that point, the defendant hesitated and then nodded affirmatively. Deputy Warner then searched the truck and found a small quantity of marijuana, a rock of cocaine, and a crack cocaine pipe.

After the defendant, was formally charged, he filed a motion to suppress the contraband items seized from his truck. The state sought to justify the seizure on the ground that the stop of the truck was based on a reasonable suspicion. Deputy Warner testified at the suppression hearing that there had been reports of burglaries in the area and that he thought the defendant may have been casing the neighborhood. He added that the unusually slow speed of the defendant’s vehicle might also indicate that he was under the influence of alcohol or that he was having mechanical difficulty with the vehicle.

Deputy Warner-acknowledged that the burglaries he was referring to were committed several miles away and that none had been reported that night. He was also asked whether it was unusual to drive slowly on the road in question, and he conceded that the road was a bumpy, unpaved road and that it was dark that night. On cross-examination, defense counsel asked Deputy Warner if he knew where the defendant lived. In response, he said that his investigation regarding the status of the defendant’s driver’s license revealed that he lived nearby. Defense counsel summed up this line of questioning by asking, “So it was in his neighborhood?” to which . Deputy Warner responded, “Correct.”

The trial court denied the motion to suppress on the ground that the officer had a right to detain the defendant at the time the cocaine was seized. Subsequently, the defendant entered a plea of nolo contendere, reserving the right to appeal the denial of the motion. The trial court accepted the plea, withheld adjudication of guilt on the charges of possession of marijuana, possession of cocaine and possession of paraphernalia, and placed him on drug offender probation. The defendant then filed an appeal to this court to challenge the denial of his motion to suppress.

A reviewing court must accept the trial court’s findings of fact in an order on a motion to suppress, provided those findings are supported by the record. However, a suppression order that turns on an issue of law is reviewed by the de novo standard. See Ornelas v. United States, 517 U.S. 690, 697-98, 116 S.Ct. 1657, 1662, 134 L.Ed.2d 911 (1996); State v. Setzler, 667 So.2d 343, 346 (Fla. 1st DCA 1995). Whether a particular set of facts can justify a finding that a police officer had a reasonable suspicion to conduct an investigative detention is a question of law. See Ornelas, 517 U.S. at 697, 116 S.Ct. 1657; Ikner v. State, 756 So.2d 1116, 1118 (Fla. 1st DCA 2000). Hence, the order at issue here is renewable by the de novo standard.

To justify an investigative detention, a law enforcement officer must have a reasonable suspicion that a person has committed or is about to commit a crime. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State 626 So.2d 185, 186 (Fla.1993); § 901.151(2) Fla. Stat. (2003). A hunch or a mere suspicion is not enough. As the Florida courts have explained, the officer must be able to articulate the supporting facts, and the suspicion must be well-founded. See Love v. State, 706 So.2d 923, 924 (Fla. 2d DCA 1998).

In determining whether a police officer had a reasonable suspicion to detain an individual, the courts must examine the totality of the circumstances in which the detention was made. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989); Graham v. State, 714 So.2d 1142, 1143 (Fla. 1st DCA 1998); Thornton v. State, 559 So.2d 438, 439 (Fla. 1st DCA 1990). Among other factors that might be relevant in a particular case, the court may consider the time of day, the physical appearance and behavior of the suspect, and anything that appears to be unusual in light of the officer’s experience. See, e.g., Jenkins v. State, 685 So.2d 918, 920 (Fla. 1st DCA 1996); Gipson v. State, 537 So.2d 1080, 1081 (Fla. 1st DCA 1989); Johnson v. State, 547 So.2d 699, 701 (Fla. 1st DCA 1989); Batson v. State, 847 So.2d 1149, 1150-51 (Fla. 4th DCA 2003).

The fact that aroused Deputy Warner’s suspicion in this case was that the defendant was driving his truck about twenty miles per hour below the speed limit. We acknowledge that in some situations an unusual method of operating a vehicle might give rise to a reasonable suspicion. For example, in Grant v. State, 718 So.2d 238 (Fla. 2d DCA 1998), the suspect was driving his car up and down the same street at 4:00 a.m., without headlights, and the officers knew that there had been a burglary on that street six to twelve hours earlier. But the fact that the defendant in this case was driving slowly is not alone sufficient to give rise to a reasonable suspicion. The defendant’s slow speed was not unusual for the conditions. The road was a bumpy dirt road, and it was dark that night. In these circumstances, driving slowly should not be cause for alarm.

Deputy Warner gave several more specific concerns relating to the speed of the defendant’s truck, but we do not think that any of them are sufficient to justify the detention. The deputy said that there had been reports of burglary in the area and that he thought the defendant might be casing the neighborhood. However, the burglaries were not nearby nor were they recent. He said that the slow driving might indicate that the defendant was under the influence or that he was having mechanical difficulty, but these possibilities are not consistent with the facts. The defendant was not swerving or otherwise having difficulty controlling his vehicle, and if he was having mechanical trouble, it seems unlikely that he would have waved the officer to pass him by.

When the speculation is eliminated, all that remains is that a police officer saw a man driving a pickup truck rather slowly on a dirt road at 11:00 p.m. We are unwilling to say that this observation is sufficient in itself to justify an investigative detention. The standard is not high, but it does require something more specific than the good hunch the officer had in this case.

For these reasons, we conclude that the trial court erred in denying the defendant’s motion to suppress. Because the detention was unlawful, the evidence seized from the truck is inadmissible.

Reversed.

BARFIELD and VAN NORTWICK, JJ., concur.


text:
    Gerald TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2752.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2004.
    Jack Behr, Public Defender; Charles E. Russell, Assistant Public Defender, Pensacola, for Appellant.
    Charlie Crist, Attorney General, for Ap-pellee.
   PER CURIAM.

DISMISSED. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

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


text:
    PALISADES OWNERS ASSOCIATION, INC., Appellant, v. COASTAL PROPERTY SERVICES, INC. d/b/a Grand Lagoon Cove, Appellee.
    No. 1D04-297.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2004.
    Mitch Dever, Panama City, for Appellant.
    Terrell C. Madigan of McFarlain & Cas-sedy, P.A., Tallahassee, for Appellee.
   PER CURIAM.

The final summary judgment in favor of appellee Coastal Property Services, Inc. is AFFIRMED. That portion of the final judgment, finding that an award of attorney’s fees against appellant is appropriate and reserving jurisdiction to determine the amount of fees, is not properly before this court. See Dep’t of Health, Bd. of Medicine v. Thomas, 854 So.2d 259 (Fla. 1st DCA 2003).

KAHN, WEBSTER, and POLSTON, JJ., concur.


text:
    Paul D. WELLS, Petitioner, v. James CROSBY, Respondent.
    No. 1D04-4020.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2004.
    Paul D. Wells, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

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


author: CANADY, Judge.

text:
    Robert DILLOW, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1008.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.

      Mark R. Maldonado-Garces, Lakeland, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant ‘ Attorney General, Tampa, for Appellee.
   CANADY, Judge.

Robert Dillow appeals the denial of a motion to suppress a confession. Dillow was convicted of multiple burglary offenses based on nolo contendere pleas. He reserved the right to appeal the denial of the motion to suppress his confession to the various burglaries. Because the record shows that the trial court failed to make the necessary factual determination to justify denial of the motion to suppress, we reverse the order denying the motion.

Background

At a suppression hearing before the circuit court concerning the admissibility of Dillow’s confession to a detective, Dillow contended that his confession concerning multiple burglaries was involuntary, because it was made in response to threats by the detective to have Dillow’s ten-year-old son placed with the Department of Children and Families and to arrest Dil-low’s ex-wife for possession of marijuana. The court conducted a hearing of several hours on two different days. Dillow testified to the alleged threats. His former wife testified to the relevant circumstances. And the detective in his testimony denied that he made threats. After hearing the testimony, the trial court stated:

The motion is denied. And I am not taking either view. The jury can make that decision about who is credible and who isn’t. I know that the detective rebutted what Mr. Dillow had to say and I think what Mrs. Dillow added really didn’t — it didn’t do anything. I think she — her testimony was kind of in agreement with what Det.' Sessions indicated that he told her.

Analysis

Once a trial court has determined that a confession is voluntary and thus admissible, the issue of voluntariness of the confession can be considered again and conclusively determined by the jury. Stephenson v. State, 645 So.2d 161, 163 (Fla. 4th DCA 1994). That does not mean, however, that the trial court can refrain from making the factual findings that are necessary to support the legal determination that the confession was voluntary and thus admissible.

[I]t is the duty of the trial judge to determine the admissibility of all evidence. When the 'trial judge admits into evidence a statement or confession to which there has been an objection, on review the record must reflect with unmistakable clarity that he found that the statement or confession was, by the preponderance of the evidence, voluntary. ... If an independent review of the record fails to disclose with unmistakable clarity that the trial judge found that the statement was voluntary ... or if it appears that he imposed upon the state a lesser burden of proof than preponderance of the evidence in weighing the question of voluntariness, it is reversible error.

Peterson v. State, 382 So.2d 701, 702 (Fla.1980); see also Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); Rice v. State, 451 So.2d 548 (Fla. 2d DCA 1984).

In this case, the trial court failed to make the required factual finding concerning the only issue before the court on the motion to suppress, the credibility of the witnesses with respect to the circumstances of the confession. The record shows the trial court’s failure to make the crucial credibility determination: “I am not taking either view. The jury can make that decision about who is credible and who isn’t.” Thus, the record does not “reflect with unmistakable clarity” that the trial court determined based on a preponderance of the evidence that the confession was voluntary. Indeed, the record “re-flectes] with unmistakable clarity” that the trial court did not make the required determination.

Conclusion

Accordingly, Billow’s convictions and sentences are reversed. We remand for further proceedings in which the trial court gives proper consideration to the motion to suppress and in which Dillow is afforded an opportunity to withdraw his plea.

Reversed and remanded.

KELLY and WALLACE, JJ., Concur.


text:
    Byron G. SHARP, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4471.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.

      James Marion Moorman, Public Defender, and J.C. Hill, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Byron G. Sharp appeals his convictions and sentences for battery and sexual battery and the orders dismissing his two pro se motions to withdraw his guilty plea to sexual battery. We affirm Sharps’ convictions and sentences without discussion, but we reverse the dismissal of his motions to withdraw plea and remand with directions.

On September 2, 2003, Sharp entered a guilty plea to sexual battery. He was sentenced on that same day. On September 9, 2003, he filed a pro se motion to withdraw his guilty plea. He asserted that “it has been told that the court will not honor the agreement between Defendant and State.” Sharp also alleged that trial counsel “mislead [sic] or misinformed Defendant.” However, the motion contained no information regarding what counsel did or said to mislead or misinform Sharp or how any agreement might have been violated, and the motion did not seek a discharge of counsel. On September 18, 2003, before the trial court ruled on the motion, Sharp filed. his notice of appeal.

On September 24, 2003, Sharp filed his second pro se motion to withdraw plea. In that motion, Sharp did not claim that any agreement had been violated or that trial counsel misled or misadvised him. Again, Sharp did not seek the discharge of trial counsel. Subsequently, the trial court dismissed the motions on the basis that the court lacked jurisdiction because Sharp had filed a notice of appeal.

Sharp’s first motion to withdraw plea was filed after sentencing, while he was represented by counsel and before his notice of appeal had been filed. Sharp correctly argues, and the State concedes, that the order of dismissal was erroneous pursuant to Florida Rule of Appellate Procedure 9.020(h)(3). The rule provides, in pertinent part, that

a pending motion to correct a sentence or order of probation or a motion to withdraw the plea after sentencing shall not be affected by the filing of a notice of appeal from a judgment of guilt. In such instance, the notice of appeal shall be treated as prematurely filed and the appeal held in abeyance until the filing of a signed, written order disposing of such motion.

Id. Because the trial court had jurisdiction to consider Sharp’s first motion, we must reverse the order dismissing the motion.

Although we are compelled to reverse the order dismissing the first motion, Sharp will realize little relief on remand. This court recently stated that if a pro se motion to withdraw plea is filed after sentencing but before the filing of a notice of appeal, and the defendant is represented by counsel and does not seek to discharge counsel, then the motion should be stricken as an unauthorized pro se pleading and treated as a nullity. Mourra v. State, 29 Fla. L. Weekly D2026 (Fla. 2d DCA Sept.8, 2004). In Mourra, as here, the motion to withdraw plea expressed some dissatisfaction with counsel but did not seek to have counsel discharged. Although the trial court did not have the benefit of Mourra, it requires that we remand for entry of an order striking Sharp’s first pro se motion to withdraw plea.

Procedurally, Sharp’s second motion to withdraw plea differs from the first in that Sharp filed it after he filed a notice of appeal. As a result, the trial court lacked jurisdiction to consider or rule on the motion. See Cunningham v. State, 838 So.2d 1209, 1210 (Fla. 2d DCA 2003); Wilson v. State, 814 So.2d 1203, 1204 (Fla. 2d DCA 2002). As we stated in Wilson, the filing of the notice of appeal “divested the trial court of jurisdiction to enter any further rulings in the case, including a ruling on Wilson’s subsequently filed motion to withdraw his plea.” 814 So.2d at 1204. Because the trial court did not have jurisdiction to consider the second motion during the pendency of the appeal, we reverse the order of dismissal. However, because it appears that Sharp still had counsel of record in the trial court at the time he filed his second motion, see Fla. R.App. P. 9.140(d), and because Sharp did not seek to discharge his counsel, then consistent with the rationale of Mourra the trial court must also strike that motion on remand.

In summary, we affirm Sharp’s convictions and sentences, but we reverse the orders dismissing his pro se motions to withdraw his plea and remand with directions that the trial court strike the motions. Our decision is without prejudice to any right that Sharp may have to timely seek relief pursuant to Florida Rule of Criminal Procedure 3.850.

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

FULMER and KELLY, JJ., Concur.

      . Sharp’s second motion to withdraw plea was filed in two cases, trial court case numbers 02-4717 and 02-10768. He has only appealed the convictions, sentences, and orders dismissing his motions to withdraw plea entered in case number 02-4717.

      . Although Sharp's first motion cited Florida Rule of Criminal Procedure 3.170(f), that rule applies to motions filed before sentencing. Because Sharp filed the motion after sentencing, rule 3.170(Z) governs the motion.


text:
    AGE INSTITUTE OF FLORIDA, INC., operating as Lakeland Hills Center, Petitioner, v. Leola McGRIFF, as Personal Representative of the Estate of Larry Lee Bivens, deceased, Respondent.
    No. 2D04-1919.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.

      George C. Kezemides of Spector Gadon & Rosen, LLP, St. Petersburg, for Petitioner.
    Michael J. Trentalange and Nicholas D. Zorn, Jr., of Trentalange & Kelley, P.A., Tampa, for Respondent.
   SILBERMAN, Judge.

Age Institute of Florida, Inc., petitions for certiorari review of an order requiring it to produce certain medical records of nonparty residents who resided at its nursing home facility during Larry Lee Bivens’ residency. We grant certiorari and quash the order under review, in part, and remand for further proceedings.

Leolá McGriff, as personal representative of Bivens’ estate, sued Age Institute for negligence, violation of nursing home residents’ rights, and breach of fiduciary duty with respect to the care provided to Bivens during his residency at Age Institute’s facility. McGriff served a first request to produce which, in paragraph 32, sought various records for all residents who were residing at the facility during Bivens’ residency. McGriff apparently sought the records to ascertain the acuity levels of the facility’s residents during the time of Bivens’ residency; to determine the number of staff members needed to provide adequate care to the residents at that time; to determine whether the facility was, in fact, adequately staffed during Bivens’ residency; and to determine whether the staffing was inadequate for the facility to properly care for Bivens. Age Institute objected to the request, asserting, among other grounds, that the records were irrelevant and not reasonably calculated to lead to the discovery of admissible evidence and that production of the records would violate the residents’ privacy rights. After a hearing, the trial court ordered production of the records.

In its petition, Age Institute again argues that the requested records are irrelevant. Based on the documents contained in the appendix and the parties’ arguments, it appears that the requested' records are relevant to the issues raised in this litigation and are reasonably calculated to lead to the discovery of admissible evidence. See Fla. R. Civ. P. 1.280(b). Thus, we cannot say that the trial court departed from the essential requirements of law in ordering production of the documents.

Age Institute also asserts that the trial court failed to protect the residents’ privacy rights because the court’s order does not require that all identifying information be redacted from the records. The parties acknowledge that the names of the nonparty residents were to be redacted from the records, but the trial court’s order makes no mention of redaction of any information.

In Bassette v. Health Management Resources Corp., 661 So.2d 317 (Fla. 2d DCA 1995), this court considered a discovery request for the medical records of a non-party. We stated that the trial court must “fashion a discovery order that balances the competing interests of the party seeking access to the information and the privacy interests of the nonparty.” Id. at 319. The Florida Supreme Court, in Amente v. Newman, 653 So.2d 1030 (Fla.1995), upheld a trial court’s order that required redaction of all identifying information from nonparty patients’ records. The supreme court concluded that redaction of such information protected the patients’ confidentiality and privacy rights. Id. at 1033.

Because the trial court’s order contains no provision for the redaction of identifying information to protect the privacy rights of nonparties, we grant the petition. We quash the trial court’s order solely to the extent that it compels the production of records responsive to paragraph 32 of McGriffs first request to produce without protecting the nonparty residents’ privacy rights. On remand, the trial court shall determine how to best protect the rights of the nonparty residents while allowing McGriff to proceed with meaningful discovery, including whether redaction of only the nonparties’ names is sufficient to protect the nonparties’ privacy rights.

Quashed in part and remanded for further proceedings.

NORTHCUTT and VILLANTI, JJ„ concur.


text:
    Nicolas BALAHOUTIS, Appellant, v. URBANISM GROUP, LLC., Appellee.
    No. 3D03-2802.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2004.
    Paul N. Contessa, Miami, for appellant.
    Homer & Bonner, P.A., and Peter W. Homer, and Andrew R. Herron, Miami, for appellee.
    Before GERSTEN, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

Appellant, Nicolas Balahoutis appeals the trial court’s final judgment awarding attorneys’ fees. Appellant argues that the trial court erred in failing to specify the number of hours and the hourly rate it used in calculating the attorneys’ fee award.

Although, there is competent evidence to support the award of attorneys’ fees, it is well established that the trial court is required to set forth specific findings regarding the number of hours expended, the hourly rate and the appropriateness of the reduction or enhancement factors. Florida Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

Accordingly, we reverse the attorney’s fee award and remand to the trial court for the purpose of making the necessary findings. We affirm as to the remaining issues. See Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla.1999); Saussy v. Saussy, 560 So.2d 1385 (Fla. 2d DCA 1990).

Affirmed in part; reversed in part and remanded.


author: FULMER, Judge.

text:
    L.N.D., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2618.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deena DeGenova, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

L.N.D. entered a plea of no contest to the charges of resisting an officer without violence and possession of paraphernalia, reserving the right to appeal the denial of her motion to suppress evidence. We reverse because the State did not carry its burden of showing that the officer had a reasonable suspicion of criminal activity necessary to justify the investigative stop of a car in which L.N.D. was a passenger. At the motion to suppress hearing, the officer testified that he stopped the vehicle after he observed it coming out from behind a closed business at 3:30 a.m. The business “had been burglarized or had had a series of burglaries in the past week or two weeks.” However, there was no report of a burglary that night. When asked what the factual basis was for the stop, the officer stated that “[t]he vehicle was in an area at that time when most normal citizens aren’t there and I wanted to determine what his presence — what he was doing there.” The officer indicated that he suspected the vehicle occupants of committing a burglary.

The question here is whether the officer’s suspicion was reasonable based on the totality of the circumstances. Case law indicates that being in an area of past criminal activity during late and unusual hours is not enough to justify a founded or reasonable suspicion. See Errickson v. State, 855 So.2d 700 (Fla. 4th DCA 2003) (holding that no founded suspicion existed for stop of defendant who was sitting on a curb next to a bicycle and a payphone in front of a closed gas station that had been burglarized numerous times); Batson v. State, 847 So.2d 1149 (Fla. 4th DCA 2003) (holding there was no founded suspicion to stop vehicle near recently burglarized home at 2 a.m.); Ippolito v. State, 789 So.2d 423 (Fla. 4th DCA 2001) (holding there was no reasonable suspicion for stop based on it being late at night and in area of past criminal activity); see also Silverman v. State, 610 So.2d 116 (Fla. 4th DCA 1992) (holding that vehicle being in area where burglaries frequently occurred would not constitute grounds for a stop); Abraham v. State, 532 So.2d 91 (Fla. 4th DCA 1988) (holding there was no founded suspicion for stop where defendant was driving out of parking lot behind a closed insurance company at 3 a.m. and picked up a female walking away from the business); cf. State v. Russell, 659 So.2d 465 (Fla. 3d DCA 1995) (holding that investigatory stop was justified where defendant was riding a bicycle in a commercial “high burglary” area at 6 a.m. carrying a sack with squared off items that looked like appliances).

Accordingly, we reverse and remand with directions to grant the motion to suppress and discharge L.N.D.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.


author: SALCINES, Judge.

text:
    Anthony CARTER, Appellant, v. Steinunn CARTER, Appellee.
    No. 2D04-126.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 2004.
    Henry D. Paloci, III, of Henry D. Paloci, III, P.A., Estero, and Scott Martin Roth of Scott Martin Roth, P.A., Naples, for Appellant.
    M. Jean Rawson of M. Jean Rawson, P.A., Naples, for Appellee.
   SALCINES, Judge.

Anthony Carter, the Former Husband, appeals the trial court order which adopted the recommendation of the general master concerning attorney’s fees and costs awarded to Steinunn Carter, the Former Wife. We affirm the order in part and reverse in part.

When a matter has been heard by a general master, the trial judge should determine whether the general master’s findings and determinations were supported by competent, substantial evidence or whether there was any other departure from the essential requirements of applicable law. Matos v. Matos, 421 So.2d 180, 183-84 (Fla. 2d DCA 1982). The trial court is bound by the general master’s factual findings unless they are not supported by competent, substantial evidence or are clearly erroneous. Garcia v. Garcia, 743 So.2d 1225, 1226 (Fla. 4th DCA 1999).

In the present case, the trial court abused its discretion when it found that the general master’s recommendation that the Former Wife be awarded $22,256.50 in attorney’s fees was supported by competent, substantial evidence. The general master failed to consider that the Former Wife testified she paid a $3000 retainer fee to her attorney from marital assets. The general master should have determined that the Former Husband was entitled to a credit for half of the retainer fee or $1500 toward the attorney’s fee award. Therefore, the general master should have recommended that the Former Wife be awarded a total of $20,756.50 in attorney’s fees. We remand this matter to the trial court to amend the Order on Recommended Order to reflect this correction.

In all other respects the factual findings and determinations of the general master were supported by competent, substantial evidence. The trial court properly adopted the report and recommendation of the general master except as noted above.

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

CASANUEVA, J., and GREEN, OLIVER L., Senior Judge, concur.