author: PER CURIAM.

text:
    Donald W. GARRISON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1320.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
   PER CURIAM.

Donald W. Garrison appeals the summary denial of his request to remove de-tainer. In his initial brief on appeal, Garrison presented additional arguments that were not presented to the trial court. We affirm without prejudice to any right Garrison may have to raise the claims alleged in his initial brief on appeal in a timely, facially sufficient motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

Affirmed.

WHATLEY, STRINGER, and SILBERMAN, JJ., concur.


source: Caselaw Access Project

author: FULMER, Judge.

license: Public Domain

text:
    Daniel JAKEWAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1490.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
   FULMER, Judge.

Daniel Jakeway appeals the summary denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. In his motion, Jakeway sought DNA testing of several items of evidence collected during the investigation of the burglary and kidnapping for which he was convicted. The trial court denied the motion based on an affidavit from the St. Petersburg Police Department Supervisor of Evidentiary Services stating that the evidence was no longer in the custody of the Department because it had either been destroyed in 1996 or given to the case detective.

The trial court erred in denying' the motion on this ground because the affidavit from the St. Petersburg Police Department creates a factual issue as to whether the evidence exists, and an evidentiary hearing is required to resolve the issue. See Zollman v. State, 854 So.2d 775 (Fla. 2d DCA 2003); Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003). Therefore, we reverse and remand for the trial court to provide Jakeway an opportunity at an evi-dentiary hearing to address the issue of whether testable evidence still exists. See Borland, 848 So.2d at 1290.

Reversed and remanded.

STRINGER and SILBERMAN, JJ„ concur.


author: WALLACE, Judge.

text:
    In the Interest of E.D., B.N., A.N., and R.N., children. L.N., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-1678.
    District Court of Appeal of Florida, Second District.
    Aug. 16, 2004.
    Rehearing Denied Nov. 10, 2004.

      John S. Patterson of Hagen & Patterson, P.A., Sarasota, for Appellant.
    Douglas B. Sherman, Department of Children and Family Services, Bartow, for Appellee.
   WALLACE, Judge.

L.N., the natural mother (the Mother) of E.D., B.N., A.N., and R.N., appeals the final judgment terminating her parental rights. The trial court ruled that section 39.806(l)(b) and (l)(c), Florida Statutes (2001), authorized termination of her parental rights to all four children. We reverse the termination of her rights to E.D. because the Department of Children and Family Services (the Department) failed to allege or prove requisite grounds for severing one parent’s rights without severing the parental rights of the other parent. Although the trial court erred in finding that the Mother abandoned B.N., A.N., and R.N. under section 39.806(l)(b), termination was otherwise warranted under section 39.806(l)(c) to protect the children from harm. We affirm the termination of her rights to B.N., A.N., and R.N.

On January 9, 2002, the Department filed a petition for termination of parental rights alleging two grounds: (1) that the Mother abandoned the children pursuant to section 39.806(l)(b) and (2) that the Mother engaged in conduct toward the children which demonstrated that the continuing involvement of the Mother in the parent-child relationship threatened the life, safety, or physical, mental, or emotional health of the children irrespective of the provision of services, pursuant to section 39.806(l)(c). The petition identified a man whose initials are R.N. (not the child R.N.) as the father (the Father) of all four children and sought termination of his parental rights on the same grounds.

The Child E.D.

At an adjudicatory hearing on February 26, 2003, the Father voluntarily surrendered his parental rights to the three youngest children, B.N., A.N., and R.N. The record suggests that the Father may not be the father of the oldest child, E.D., and that the petition misidentified him as such. Regardless of the petition’s accuracy, the record provided to us does not contain any evidence that the parental rights of E.D.’s father have been terminated. Thus, after the Father surrendered his rights to B.N., A.N., and R.N., the action to terminate the Mother’s parental rights to E.D. proceeded as an action to sever the parental rights of one parent without severing the rights of the other parent.

Section 39.811(6) lists the “only” circumstances under which the parental rights of one parent may be terminated without severing the rights of the other parent. The petition for termination of parental rights did not allege that any of the circumstances described in section 39.811(6) existed, nor did the Department adduce evidence at the adjudicatory hearing purporting to establish the existence of any of those circumstances. Because termination of the Mother’s parental rights to E.D. was not a permitted disposition under section 39.811(6), the final judgment is reversed as it pertains to the Mother’s rights to E.D.

The Children B.N., A.N., and R.N.

After the adjudicatory hearing, the trial court entered final judgment accepting the grounds for termination asserted by the Department. First, pursuant to section 39.806(l)(b), the trial court found that the Mother abandoned the children because “she failed to contribute to the cost of their care upon her incarceration. She also engaged in conduct which resulted in her arrest and incarceration. Her conduct evinces no settled purpose to assume all parental duties.”

The arrest to which the trial court referred occurred in September 2001, approximately eight months after B.N., A.N., and R.N. were sheltered with the paternal grandmother and her husband. The Mother was sentenced to prison in April 2002, and the children remained in the custody of the paternal grandmother through the time of the adjudicatory hearing in February 2003.

To reverse a trial court’s determination that its finding of abandonment is supported by clear and convincing evidence, the appellate court must determine as a matter of law that no reasonable person could agree with the trial court’s determination. See F.C., Sr. v. State, Dep’t of Children & Families (In re F.C., Jr.), 780 So.2d 159,162 (Fla. 2d DCA 2001) (citing Deese v. Dep’t of Health & Rehabilitative Services (In re A.L.W.), 590 So.2d 984, 985 (Fla. 1st DCA 1991)). The task of the appellate court is not to conduct a de novo review and reweigh the evidence. G.W.B. v. J.S.W. (In re Adoption of Baby E.A.W.), 658 So .2d 961, 967 (Fla.1995).

In this case, the trial court’s findings regarding abandonment related solely to the Mother’s conduct after she was incarcerated. Incarceration may be a factor in support of a finding of abandonment, but it cannot be the only factor. J.T. v. Dep’t of Children & Family Servs. (In re T.B.), 819 So.2d 270, 272 (Fla. 2d DCA 2002) (citing W.T.J. v. E.W.R., 721 So.2d 728, 725 (Fla.1998)). This court has held that it is “improper to terminate parental rights if a parent is unable to financially provide for the child or to assume parental obligations due to incarceration.” Id. There is no evidence in the record that the Mother was able to provide support for the children while incarcerated. In addition, the trial court overlooked undisputed and corroborated testimony that the Mother communicated with the children by telephone to the fullest extent permitted by the children’s custodian and that she regularly sent the children cards while she was incarcerated. Although the trial court was of the opinion that the Mother’s efforts were only marginal efforts that did not evince a settled purpose to assume all parental duties, see § 89.01(1), its finding of abandonment does not reflect that it was based on any factor other than the Mother’s incarceration. Cf. M.A. v. Dep’t of Children & Families, 814 So.2d 1244, 1245-46 (Fla. 5th DCA 2002) (affirming termination of parental rights for abandonment where the father did not write any letters when imprisoned, did not request visitation with the children when out of prison, did not express concern for the children, and did not make an effort to provide for them in five years). Therefore, the trial court’s finding that the Mother abandoned the children was clearly erroneous.

However, the trial court found that the Department proved an alternative and independent ground for terminating the Mother’s parental rights pursuant to section 39.806(l)(c). To prove the grounds for terminating parental rights under section 39.806(l)(e), the trial court must find that the children’s lives, safety, well-being, or physical, mental, or emotional health would be threatened by continued interaction with the parent, regardless of the provision of services. “In essence, the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent.” R.W.W. v. State, Dep’t of Children & Families (In re C.W.W.), 788 So.2d 1020, 1023 (Fla. 2d DCA 2001); O.M. v. Dep’t of Children & Family Servs. (In re G.C.A.), 863 So.2d 476, 479 (Fla. 2d DCA 2004).

Supporting termination on this ground, the trial court repeated its findings related to the Mother’s incarceration, which occurred after the Mother stole $3000 worth of jewelry from her mother and was convicted of burglary of a dwelling and possession of methamphetamine. In addition, the trial court described the Mother’s failure to comply with the tasks of two case plans given to the Mother in April and June 2001. Among the Mother’s tasks were to obtain and maintain adequate income and stable housing, complete various types of counseling, and obtain a substance abuse evaluation and follow recommendations for treatment. Competent, substantial evidence adduced at the adjudicatory hearing linked the breach of these case plans to the threat of harm to the children posed by the Mother’s inability to provide a stable living arrangement, which in the past had adversely impacted the children’s well-being and mental or emotional health. The Mother’s breach of the case plans, together with her incarceration, evidence of mental illness, and evidence of drug use that was interrupted only by her incarceration, demonstrated that her continuing involvement with the children would result in harmful instability in their lives regardless of the provision of services.

Although the Mother testified that she sought and obtained counseling and vocational training while in prison and was making plans for job placement after prison, she offered no documentary evidence corroborating these efforts. An appellate court cannot question the trial court’s assessment of the witnesses’ credibility. L.C. v. Dep’t of Children & Family Servs. (In re A.C.), 848 So.2d 433, 433 (Fla. 2d DCA 2003).

The Mother does not challenge the trial court’s findings regarding the children’s manifest best interests pursuant to section 39.810, and we find no basis to reverse. We have considered other matters raised by the Mother and find them without merit.

Conclusion

For the reasons described above, the final judgment terminating the Mother’s parental rights is affirmed as to B.N., A.N., and R.N. and reversed as to E.D. Our reversal as to E.D. is based on the state of the record at the time this case came to our court. On remand, the Department must consider whether, in light of this opinion and the facts as they exist after remand, to offer the Mother a case plan with a goal of reunification. After remand, if circumstances exist that satisfy the statutory requirements for termination without such a plan, the Department may proceed accordingly. If the Department offers the Mother a case plan and she fails to comply, the Department may again petition to terminate her parental rights. '

Affirmed in part, reversed in part, and remanded.

CASANUEVA and COVINGTON, JJ„ Concur.

      . We are informed that during pendency of this appeal, the Department initiated a search for E.D.’s father.

      . Section 39.811(6) provides:
      The parental rights of one parent may be severed without severing the parental rights of the other parent only under the following circumstances:
      (a) If the child has only one surviving parent;
      (b) If the identity of a prospective parent has been established as unknown after sworn testimony;
      (c) If the parent whose rights are being terminated became a parent through a single-parent adoption;
      (d) If the protection of the child demands termination of the rights of a single parent; or
      (e)If the parent whose rights are being terminated meets any of the criteria specified in s. 39.806(l)(d) and (f)-(i).
      Notably, the grounds cited in the final judgment for terminating the Mother's rights to E.D. — abandonment under section 39.806(l)(b) and conduct threatening the child’s well-being under section 39.806(l)(c) — are not included in the criteria specified in section 39.81 l(6)(e). Because the Department did not allege, argue, or present evidence attempting to prove the requirements of section 39.81 l(6)(d), we express no opinion on the relationship between the ground for termination under section 39.806(l)(c) and the permitted disposition under section 39.81 l(6)(d).

      . In O.M., this court referenced a test of "three sequential requirements” that echoed the First District's test of "three sequential evidentiary requirements” that must be met before termination of parental rights can occur under section 39.806(1)(c). 863 So.2d at 479. In M.H. v. Dep’t of Children & Families, 866 So.2d 220, 222-23 (Fla. 1st DCA 2004) (opinion on clarification) (citations omitted), the First District described the requirements:
      First, the trial court must find the children's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services....
      Second, if the court finds the children would be threatened with harm, despite the provision of services, [the Department] must then prove there is no reasonable basis to believe the parent will improve....
      Finally, [the Department] must show termination is the least restrictive means of protecting the children from serious harm.
      We do not read M.H. or O.M. as suggesting that proof of termination as the least restrictive means is required to prove a statutory ground for termination under section 39.806(l)(c). Rather, chapter 39 requires proof of a ground for termination under section 39.806 and proof that termination is in the manifest best interests of the child pursuant to section 39.810. "Beyond these statutory requirements, the termination of parental rights is subject to a constitutional requirement,” which is that termination is the least restrictive means of protecting the child from serious harm. V.W. v. Dep’t of Children & Family Servs. (In re L.B.W.), 863 So.2d 480, 483 (Fla. 2d DCA 2004) (citing Padgett v.

        Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991)).

      . The Department did not assert section 39.806(l)(e) as a ground for termination. Thus the Mother’s failure to comply with the case plans, standing alone, did not constitute evidence of continuing abuse, neglect, or abandonment.


text:
    Dwight JOHNSON-BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2245.
    District Court of Appeal of Florida, Fifth District.
    Aug. 17, 2004.
    Rehearing Denied Oct. 4, 2004.
    Dwight Johnson-Baker, Daytona Beach, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Alvarez v. State, 358 So.2d 10, 12 (Fla.1978).

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


author: ALTENBERND, Chief Judge.

text:
    Paul E. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1416.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2004.
   ALTENBERND, Chief Judge.

Paul E. Allen appeals an order denying his motion for return of property. He claims that he was arrested on June 30, 1993, and that numerous items of personal property were seized from his residence at that time. Thereafter he was tried and convicted of various offenses and sentenced to forty years’ imprisonment. His convictions and sentences were affirmed in 1996. See Allen v. State, 688 So.2d 918 (Fla. 2d DCA 1996).

In conjunction with this prosecution, Combined Law Enforcement Against Narcotics (CLEAN) filed a forfeiture action against Mr. Allen and obtained a judgment for two pickup trucks and a car phone. Mr. Allen does not contest this forfeiture judgment. Instead, he is arguing that numerous other items of personal property were taken from him that were not contraband or evidence and that they were never returned to him.

Our record appears to be incomplete, but it does contain an “amended” motion to return property filed by Mr. Allen’s attorney in February 1998 and court minutes from 1998 and 2000 indicating that hearings were held on this motion at which “no action” was taken. Mr. Allen’s attorney apparently withdrew from the case before this matter was resolved. In July 2001, Mr. Allen prepared and submitted an order on return of property that lists all of the claimed property. It was his belief that a circuit court judge had ruled in his favor, but nothing in the record confirms that belief. The circuit court did not enter this order.

In January 2004, Mr. Allen wrote the circuit court in an effort to have his order entered. Apparently in response, on March 4, 2004, the trial court entered an order denying the motion for return of property. The only explanation provided for the denial of the motion is the statement that the “record contains no evidence of any court order granting return of property to Defendant and a prior civil ease forfeits property from the Defendant to the State.” Although that recitation appears correct, it does not resolve the merits of the motion that has been pending for six years.

We express no opinion on the merits of this motion but reverse this order and remand for further proceedings. The trial court may find helpful Judge Wallace’s recent explanation of the procedures applicable to such a motion. See Bolden v. State, 875 So.2d 780 (Fla. 2d DCA 2004).

Reversed and remanded.

CASANUEVA and STRINGER, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Karl T. BROWNING and Jeffrey Brant Bullard, Individually, Appellants, v. Brian K. SCOTT and Debra C. Scott, Individually and as Husband and Wife, Appellees.
    Nos. 2D03-4583, 2D03-5695.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2004.
    Douglas M. Fraley of Molhem & Fraley, P.A., Tampa, for Appellants.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach; and Robert E. Gordon and Daniel G. Williams of Gordon & Doner, P.A., Palm Beach Gardens, for Appellees.
   NORTHCUTT, Judge.

In these consolidated appeals, Karl Browning and Jeffrey Bullard challenge a final judgment in favor of Mr. and Mrs. Scott for damages arising from an accident and an order awarding attorney’s fees to Mr. Scott based on a proposal for settlement. We affirm the damages judgment without discussion, but we reverse the attorney’s fee award.

Section 768.79(3), Florida Statutes (2000), and Florida Rule of Civil Procedure 1.442(d) state that an offer of judgment or a proposal for settlement shall be served on the opposing party but shall not be filed unless accepted or unless filing is necessary to enforce the statute or the rule. As Mr. Scott admitted below and on appeal, his proposal for settlement was filed prematurely, in violation of the express requirements of the statute and rule. This court has previously held that a prematurely filed settlement proposal is void. Bottcher v. Walsh, 834 So.2d 183 (Fla. 2d DCA 2002). Therefore, we reverse the award of attorney’s fees.

Case number 2D03-4583 is affirmed. Case number 2D03-5695 is reversed.

CANADY and WALLACE, JJ., Concur.


text:
    Emmanuel DIAZ, Petitioner, v. STATE of Florida, Respondent.
    No. 2D04-738.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2004.
    Craig A. Huffman, Tampa, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ron Napolitano and C. Suzanne Bechard, Assistant Attorneys General, Tampa, for Respondent.
   PER CURIAM.

Emmanuel Diaz petitions this court for a writ of habeas corpus. In the petition, he alleges that the trial court illegally sentenced him to sixty days in the county jail for violating the drug pretrial intervention program (PTI). By previous unpublished order, we directed that Mr. Diaz be immediately released pending further review of the petition. We now grant the petition and quash the order requiring Mr. Diaz to serve sixty days in jail as a sanction for violating PTI. We conclude that the trial court has no authority to impose a term of imprisonment without a resumption of normal criminal proceedings.

Mr. Diaz was charged with possession of marijuana with intent to deliver and possession of drug paraphernalia. He entered PTI, waived speedy trial, and executed the contract titled “Drug Court Agreement,” which the State required that he sign prior to providing him the opportunity to participate in the program. Paragraph twenty-four of the contract states: “The Defendant agrees that noncompliance with the program may result in judicial sanctions to include county jail time.” Mr. Diaz violated the conditions of PTI on three prior occasions but was continued in the program. The Department of Corrections filed a fourth violation report, and the trial court conducted a hearing to determine whether Mr. Diaz had again violated the conditions of PTI. After finding that Mr. Diaz had in fact violated the conditions of the program, the trial court sentenced him to sixty days in the county jail and ordered him discharged from the program once his sixty-day county jail sentence was served. The trial court stated that the sixty-day county jail sentence was for “doing absolutely nothing in this program.” Mr. Diaz subsequently filed this petition.

In the petition, Mr. Diaz argues that his confinement is illegal because there is no statutory authorization for the imposition of a jail sentence upon violation of PTI. We agree. The pretrial intervention program is governed by section 948.08, Florida Statutes (2003). The only “sanctions” available to the trial court for failure to abide by the conditions of PTI are contained in section 948.08(6)(c)(l). That section states: “If the trial court finds that the defendant has not successfully completed the pretrial intervention program, the court may order the person to continue in education and treatment or order that the charges revert to normal channels for prosecution.”

The jail sentence imposed by the trial court in the present case is an illegal sentence. The supreme court has defined an illegal sentence for purposes of Florida Rule of Criminal Procedure 3.800(a) to include a sentence which imposes a punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. See Carter v. State, 786 So.2d 1173, 1178 (Fla.2001). Simply stated, a trial judge may not impose a jail sentence for breach of contract when the party has never been convicted of a crime. The fact that Mr. Diaz signed a contract with the State agreeing that he could be sentenced to county jail for noncompliance with PTI is of no import because “[a] criminal defendant may not agree to the imposition of an illegal sentence.” Morales v. State, 712 So.2d 474, 474 (Fla. 2d DCA 1998).

The petition for writ of habeas corpus is granted, and the directive of the trial court sentencing Mr. Diaz to sixty days in the county jail is quashed.

ON THE MOTION FOR REHEARING

The State filed a motion for rehearing or clarification in this case. It did not dispute the result in this specific case but suggested that incarceration in a county jail could be used in certain circumstances as a sanction when an offender in a pretrial intervention program violated the conditions of the program or the terms of a local administrative order. This court ordered additional briefing and permitted the Florida Association of Drug Court Professionals (FADCP) to file an amicus brief on rehearing.

The FADCP’s brief demonstrates the effectiveness of the drug court program and states that “incarceration is a sanction vital to the success of drug court.” This court is aware of the success of drug courts and does not wish to cripple their effectiveness. On the other hand, we continue to believe that breach of the terms of an agreement between the State and someone merely accused of a crime cannot generally be enforced by a term of imprisonment in the county jail.

Our opinion does not address a conviction for direct or indirect criminal contempt. Thus, we are not deciding whether contempt can or cannot be used as a method to enforce a pretrial intervention agreement. The administrators of these worthwhile programs need to give additional thought to the methods used to enforce pretrial intervention agreements. It may be that the legislature needs to review the adequacy of the statutory enforcement provisions.

ALTENBERND, C.J., and WHATLEY and CASANUEVA, JJ„ Concur.


author: COVINGTON, Judge.

text:
    Mark POPE, Appellant, v. Kay QUATTELBAUM, f/k/a Kay Pope, Appellee.
    No. 2D04-528.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2004.
    Carl Edward Patrick, Sarasota, for Appellant.
    Kathi B. Halvorsen, Sarasota, for Appel-lee.
   COVINGTON, Judge.

Mark Pope appeals the trial court’s order adjudicating him in civil contempt for failure to pay child support and ordering indefinite incarceration with a $25,000 purge condition. Pope resides in Colorado and is not presently in custody. Because he did not attend the hearing, he did not present evidence as to his present ability to pay the purge amount. Because the trial court erred by failing to comply with Florida Family Law Rule of Procedure 12.615 in two respects, we reverse and remand for the trial court to issue an amended order.

First, the order does not include a recitation of the factual basis, as required by rule 12.615(e), for its finding that Pope had the present ability to pay the purge amount. See Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla.1985); Bresch v. Henderson, 761 So.2d 449, 451 (Fla. 2d DCA 2000). Second, the order incorrectly worded the writ of bodily attachment it imposed pursuant to rule 12.615(c)(2)(B). The writ of bodily attachment procedure provided in rule 12.615(e) is designed to assure that a nonappearing obligor is afforded due process. See Dep’t of Revenue ex rel. Meade v. Meade, 827 So.2d 1093, 1094 (Fla. 2d DCA 2002); Pompey v. Cochran, 685 So.2d 1007, 1015 (Fla. 4th DCA 1997). Such a writ should direct that the contemnor “be brought before the court within 48 hours for a hearing on whether the alleged contemnor has the present ability to pay.” Fla. Fam. L.R.P. 12.615(c)(2)(B). The writ issued here directs only that Pope be taken into custody and confined in the Sarasota County Jail unless he pays the purge amount. It omits any provision for an ability-to-pay hearing before incarceration.

We reverse and remand with directions for the trial court to enter an amended order consistent with this opinion.

CASANUEVA and WALLACE, JJ., Concur.


text:
    Christopher BENTLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2893.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Christopher Bentley, Belle Glade, pro se.
    No appearance required for appellee.
   PER CURIAM.

Bentley appeals the summary denial of his rule 3.800(a) motion which sought additional jail credit. Bentley’s motion is facially insufficient because it does not explain why or how he is entitled to additional credit. Parent v. State, 825 So.2d 514 (Fla. 4th DCA 2002).

We affirm without prejudice to file a facially sufficient motion.

STONE, WARNER and SHAHOOD, JJ., concur.


text:
    Willio Jean LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2549.
    District Court of Appeal of Florida, Fourth District.
    Aug. 18, 2004.
    Rehearing Denied Oct. 22, 2004.
    Willio Jean Louis, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s rights to refile his motion, for post-conviction relief, in the time remaining under the law, alleging the necessary facts to support his claim of affirmative misadvice of counsel under Smith v. State, 784 So.2d 460 (Fla. 4th DCA 2000). See Bivens v. State, 840 So.2d 355 (Fla. 4th DCA 2003).

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


author: SALCINES, Judge.

text:
    Paul Alexander CLAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1306.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2004.
   SALCINES, Judge.

Paul Alexander Clayton challenges the order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm, without comment, the summary denial of two of the grounds for relief presented in Clayton’s motion. We reverse that portion of the trial court’s order summarily denying the remaining ground, and we remand for further proceedings.

According to his motion, Clayton was convicted, after jury trial, of sale of cocaine within 1000 feet of a school and possession of cocaine with intent to sell within 1000 feet of a school. Clayton alleged that counsel was ineffective for failing to call his alibi witness at trial. Clayton further alleged that he provided counsel with the name of his roommate, Eddie Fullwally, Jr., and the address of his roommate, 225 Colorado Avenue, Lakeland. He claimed that Fullwally was available to testify and that he would have testified that Clayton was at the Lakeland residence “showering and getting ready for dinner at the time of the alleged drug sale in Bartow.” Clayton alleged that he was not arrested at the time of the offense, but was arrested at a later date.

Clayton presented a facially sufficient postconviction claim that counsel was ineffective in failing to call an alibi witness at trial. See Jacobs v. State, 29 Fla. L. Weekly S319, 320-321 (Fla. June 24, 2004). The trial court denied the motion, finding that the trial court record demonstrated that Fullwally was not at the address Clayton provided. The trial court attached portions of the record showing that the State attempted to subpoena Fullwally for deposition but were unable to do so because the address listed did not exist. However, the address on the State subpoena was 225 Colorado Street, not Colorado Avenue. In his motion, Clayton alleges that he advised counsel that Fullwally’s address was 225 Colorado Avenue. Attached to the trial court’s order is Clayton’s amended discovery disclosure which listed Fullwally’s address as 225 Colorado Avenue.

Thus, we conclude that the attachments to the trial court’s order do not refute Clayton’s claim that counsel was ineffective for failing to call Fullwally as an alibi witness. On remand, if the trial court record does not conclusively rebut Clayton’s claim, the trial court shall conduct an evidentiary hearing on the matter. See Jacobs, 29 Fla. L. Weekly at S321.

Affirmed in part, reversed in part, and remanded for further proceedings.

NORTHCUTT and COVINGTON, JJ., Concur.


text:
    Betty CULLEN, Appellant, v. Thomas CULLEN, Appellee.
    No. 2D02-Z5698.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2004.

      Rebecca Zung Clough and Victoria Ho of Asbell & Ho, P.A., Naples, for Appellant.
    David F. Garber of Garber, Hooley & Holloway, LLP, Naples, for Appellee.
   NORTHCUTT, Judge.

Betty Cullen challenges the financial aspects of the judgment dissolving her marriage to Thomas Cullen. Insofar as the judgment identifies and distributes the parties’ assets, we affirm without further discussion. However, the failure of the circuit court to make adequate findings undermines its denial of Mrs. Cullen’s prayers for periodic alimony and attorneys’ fees. We reverse and remand for reconsideration of these claims. We also direct the circuit court to grant Mrs. Cullen’s request to have her former name restored.

The circuit court denied Mrs. Cullen’s request for alimony, finding simply that “she has indicated an ability [to] earn funds, provide for herself and that this is a short term marriage.” All of these things are true. However, the court failed to make findings regarding the other economic factors listed in section 61.08, Florida Statutes (2002). The most important omission related to the financial impact of Mrs. Cullen’s several physical maladies, the most serious of which was breast cancer. At the time of the final hearing, her cancer had been treated, apparently successfully. But Mrs. Cullen presented evidence of burdensome ongoing medication expenses associated with this and her other conditions. If that evidence was accurate, it is unlikely that Mrs. Cullen could support herself on her earnings.

To be sure, that this marriage lasted only seven years militates against awarding alimony. But the short duration of a marriage does not preclude such an award. Volosin v. Volosin, 382 So.2d 733 (Fla. 2d DCA 1980). Indeed, ample case law demonstrates that a number of circumstances may justify an alimony award notwithstanding that the marriage was a short one. See, e.g., Reeves v. Reeves, 821 So.2d 333 (Fla. 5th DCA 2002) (holding that alimony award was justified by former wife’s need to care for disabled child); Gallinar v. Gallinar, 763 So.2d 447 (Fla. 3d DCA 2000) (finding justification for alimony award in wife’s psychiatric condition); Lagstrom v. Lagstrom, 662 So.2d 756 (Fla. 4th DCA 1995) (holding that circuit court was within its discretion to award alimony to severe depressive). Because the circuit court failed to make the findings required by the statute, we are unable to determine whether the court abused its discretion by denying alimony in this case. See Solomon v. Solomon, 861 So.2d 1218 (Fla. 2d DCA 2003). Therefore, we reverse this aspect of the final judgment and remand with directions to revisit the alimony question in light of all relevant economic factors. If need be, the court may take additional evidence on this issue. Its ultimate determination shall be accompanied by written findings of fact as required by section 61.08.

The circuit court denied Mrs. Cullen’s prayer for attorneys’ fees because she “has indicated an ability to pay her own attorneys fees[.]” This conclusion wás based on the court’s observation that Mrs. Cullen had, in fact, paid fees to attorneys during the litigation. Evidence in our record reflects that she did so by depleting her assets. See Kendall v. Kendall, 677 So.2d 48, 49 (Fla. 4th DCA 1996) (observing that spouse’s need of assistance to prevent inequitable diminution of her share of equitable distribution is valid consideration on attorneys’ fees entitlement). Moreover, the mere fact that a party has paid fees, or has some ability to pay fees, does not control. It is not necessary that one spouse be completely unable to pay attorneys’ fees for the circuit court to require the other spouse to pay them. Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). The purpose of an attorneys’ fee award under section 61.16, Florida Statutes (2002), is to ensure that both parties will have a similar ability to obtain competent legal counsel. To do so, the court must look to each spouse’s need for suit money versus each party’s respective ability to pay. Id. Because the final judgment contains no findings regarding the parties’ overall finances, we are unable to determine whether the court correctly denied the fee claim based on the parties’ relative financial circumstances. For this reason, we reverse this ruling and remand with directions to reconsider the attorneys’ fee issue and to make findings of fact sufficient to permit review of its decision.

Finally, on remand the circuit court shall grant Mrs. Cullen’s prayer to have her former name restored. See Green v. Green, 672 So.2d 49 (Fla. 4th DCA 1996).

Affirmed in part, reversed in part, and remanded for further proceedings.

KELLY and WALLACE, JJ., Concur.

      . Although the parties were able to settle several aspects of their financial dispute, they were unable to agree on Mrs. Cullen's request for an interest in Mr. Cullen’s premarital pension. Evidence below disclosed that if she had been granted even a nominal share of the pension she would have been eligible for insurance that would have substantially reduced the financial impact of her ongoing medical expenses.


text:
    Ramon PEREZ, III, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D02-4801, 2D02-5193.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2004.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

In these consolidated appeals, Ramon Perez, III, challenges two orders that altered his probation. The first order— signed on November 7, 2000, but not rendered until February 22, 2001 — extended Perez’s probationary period by one year, so that the probationary period would expire on October 7, 2002. Perez argues that there was no willful, substantial violation of probation for which the court could have modified his probation. The second order — rendered on January 28, 2003— revoked Perez’s probation and sentenced him to seven years’ imprisonment. Perez argues that the trial court lacked jurisdiction to enter this order because the extension of the probationary period by the first order was error and thus the probationary period expired before the second affidavit of violation was filed. We conclude that the trial court improperly modified Perez’s probation in the first order because there was no willful, substantial violation of the terms of his probation. Consequently, absent the one-year extension, the trial court lacked jurisdiction to enter its second order revoking Perez’s probation. Therefore, we reverse both orders.

The First Order

In 2000, the State alleged that Perez violated a condition of his probation — that he will present himself for random testing for the presence of drugs/alcohol at the request of his community control/probation officer — because he failed to report to the probation office on July 19, 2000, between 4 p.m. and 5 p.m., as instructed by his probation officer. At the evidentiary hearing, Perez testified that he had been working that day and had followed his supervisor’s orders to work through lunch and to clean out his truck. Only after asking someone what time it was did Perez realize at 4:30 p.m. that he was running late. Perez called his probation officer and informed her that he would be arriving late. At 5:20 p.m., Perez arrived at the probation office. However, upon Perez’s arrival, the officer requested that he return the next day to complete the drug test. Perez reported to the probation office the next morning as instructed and completed the drug test. The test results were negative for the presence of illegal substances. Nevertheless, the trial court found that Perez violated his probation by failing to report as instructed between 4 p.m. and 5 p.m. on July 19, 2000. Based upon its finding, the trial court modified Perez’s probation by extending it for one year.

Pursuant to section 948.06, Florida Statutes (2000), the trial court may modify the terms and conditions of probation by extending the probationary period upon notice of the alleged violation, a hearing, and proof that the defendant has violated the terms and conditions of probation. See Clark v. State, 579 So.2d 109 (Fla.1991); Weidmann v. State, 582 So.2d 1251 (Fla. 2d DCA 1991); Russo v. State, 603 So.2d 1353 (Fla. 1st DCA 1992). However, in order for the trial court to modify the terms and conditions of probation by extending the probationary period, the State must prove that the defendant’s violation was willful and substantial. Hanania v. State, 855 So.2d 92, 94 (Fla. 2d DCA 2003). This court has recently explained:

The trial court must determine whether the violations were willful and substantial and supported by the greater weight of the evidence or, stated differently, whether the defendant made reasonable efforts to comply with the terms and conditions of probation. See State v. Carter, 835 So.2d 259, 261 (Fla.2002); Davis v. State, 867 So.2d 608, 610 (Fla. 2d DCA 2004).

Oates v. State, 872 So.2d 351, 353 (Fla. 2d DCA 2004). The trial court has broad discretion to determine whether there has been a willful and substantial violation, and our review of the trial court’s determination is for abuse of discretion. Hanania, 855 So.2d at 94.

A single failure to report to a probation officer may, under certain circumstances, justify a revocation of a defendant’s probation. See Ermatinger v. State, 866 So.2d 698, 699 (Fla. 2d DCA 2003). Nevertheless, the facts in the present case do not support the modification. Perez’s failure to report to the probation office between 4 p.m. and 5 p.m. cannot be viewed as a substantial violation in light of the fact that he did report only twenty minutes late. Moreover, the only reason that the drug test was not performed that day was that the probation officer requested that it be performed the following day. The reason Perez was required to report to the office was so that a drug test could be performed; this purpose was achieved. Therefore, we conclude that the State failed to prove that Perez willfully and substantially violated his probation.

The Second Order

Perez argues that the trial court lacked jurisdiction to revoke his probation in 2002 because the revocation process was not set in motion prior to the expiration of his probationary period. We agree. See Francois v. State, 695 So.2d 695 (Fla.1997); Morgan v. State, 757 So.2d 618 (Fla. 2d DCA 2000).

Accordingly, we reverse both orders and remand this case to the trial court to vacate its order extending Perez’s probation by one year and to vacate its order revoking Perez’s probation and the resulting judgment and sentence.

Reversed and remanded.

DAVIS, CANADY, and WALLACE, JJ., Concur.

      . We review the first order pursuant to an order granting Perez a belated appeal.


text:
    Charles B. JERNIGAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2746.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2004.
    James Marion Moorman, Public Defender, and Deana K. Marshall, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Charles Jernigan appeals the revocation of his probation for nine violations. We affirm the revocation but remand for correction of the written revocation order. The trial court did not find that Jernigan violated condition (6) of his probation; however, the written order of revocation listed condition (6) as one of the bases for revocation. It is well-settled that the written order of revocation must conform to the oral pronouncements made at the revocation hearing. See Williams v. State, 764 So.2d 757, 758 (Fla. 2d DCA 2000). Accordingly, we remand with directions that the order of revocation be corrected to conform to the trial court’s oral pronouncement.

Affirmed in part; remanded with directions.

FULMER, SILBERMAN, and KELLY, JJ., Concur.


author: DAVIS, Judge.

text:
    William H. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1216.
    District Court of Appeal of Florida, Second District.
    Aug. 25, 2004.
    Rehearing Denied Sept. 16, 2004.

      Nevin A. Weiner of Nevin A. Weiner, P.A., Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

William H. Thomas challenges three orders: (1) his January 13, 2003, judgment and sentence; (2) the February 13, 2003, trial court order striking his motion to withdraw plea; and (3) the February 21, 2003, order denying his motion for reconsideration of the February 13, 2003, order. We affirm the February 13 and February 21, 2003, orders. However, because we do not have jurisdiction to review Thomas’ January 13, 2003, judgment and sentence, we dismiss the appeal of that order without prejudice to any right Thomas might have to file a motion pursuant to Florida Rule of Criminal Procedure 3.850 or a petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

On January 13, 2003, the trial court entered a judgment finding Thomas guilty of two counts of third-degree felony possession of child pornography and sentencing him to two consecutive five-year terms of sex offender probation. On January 10 and January 13, 2003, Thomas’ attorney of record filed motions to modify sentence. Subsequently, on January 16 and January 24, 2003, another attorney, who had not filed an appearance in the case, filed motions to withdraw Thomas’ plea. On February 13, 2003, the trial court entered an order striking both motions to withdraw plea as nullities because they were filed by an attorney not of record in the case.

In an attempt to correct the problem, on February 20, 2003, the attorney not of record filed a notice of appearance and a motion for reconsideration of the February 13, 2003, order striking the motions to withdraw plea. However, by the time he filed the motion and notice, the thirty-day time period for filing a motion to withdraw plea had expired. On February 21, 2003, the trial court entered an order denying the motion for reconsideration because it was not an authorized motion under Florida Rule of Criminal Procedure 3.170(0-

On February 25, 2003, the trial court conducted a hearing on the motion to modify sentence filed by Thomas’ attorney of record, and on February 28, 2003, the court entered an order ruling on that motion.

On March 10, 2003, Thomas, through the attorney who had not béen of record initially, filed a notice of appeal, challenging the January 13, 2003, judgment and sentence, the February 13, 2003, order striking the motion to withdraw plea, and the February 21, 2003, order denying the motion for reconsideration.

The March 10, 2003, notice of appeal is timely as to both the February 13, 2003, order and the February 21, 2003, order, but not as to the January 13, 2003, judgment and sentence because none of the postjudgment motions filed by either attorney tolled the time for filing a notice of appeal. Unlike motions to correct sentencing errors, motions to modify sentences do not toll the time for filing a notice of appeal. See Fla. R.Crim. P. 3.800(b) & (c). Additionally, pursuant to Pasco County v. Quail Hollow Properties, Inc., 693 So.2d 82 (Fla. 2d DCA 1997), the trial court correctly declared the two motions to withdraw plea to be nullities because they were not filed by an attorney of record. Although Pasco County is a civil case, the analysis employed there appears to apply equally in the criminal arena insofar as the analysis was based in large part on Florida Rule of Judicial Administration 2.060(h), which sets forth the requirements for attorneys who wish to appear in all legal proceedings, regardless of whether they are criminal or civil. Because the motions to withdraw plea here are legal nullities, they did not operate to toll the time for appeal.

Furthermore, by the time that the attorney who was not of record filed his notice of appearance along with his second motion to withdraw plea, the time for filing a motion to withdraw plea had expired. Therefore, that motion could not toll the time for appeal. Moreover, the trial court properly refused to consider the attorney’s motion for reconsideration on the grounds that it was not an authorized motion. See Bridges v. State, 863 So.2d 366 (Fla. 5th DCA 2003). Accordingly, we conclude that the notice of appeal is untimely as to the January 13, 2003, judgment and sentence, and we dismiss the appeal as to that order.

We now turn to the merits of the February 13 and February 21, 2003, orders, as to which we do have jurisdiction. As we noted above, pursuant to Pasco County, 693 So.2d 82, the February 13, 2003, ruling was correct in dismissing the two motions to withdraw plea as nullities for the attorney’s failure to file a notice of appearance. Additionally, pursuant to Bridges, 863 So.2d 366, the February 21, 2003, order properly denied the motion for reconsideration as an unauthorized motion under rule 3.170(i). We therefore affirm the February 13 and 21, 2003, orders.

In conclusion, we dismiss for lack of jurisdiction the appeal of the January 13, 2003, judgment and sentence without prejudice to any right Thomas might have to file a motion pursuant to rule 3.850 or a petition for belated appeal pursuant to rule 9.141(c); we affirm the two February orders.

CANADY and WALLACE, JJ„ Concur.

      . Although the Fifth District determined in Hides v. Hicks, 715 So.2d 304 (Fla. 5th DCA 1998), that striking such a motion as a nullity is improper, we are bound by this court’s determination in Pasco County.


text:
    Cory PETRUNY, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2053.
    District Court of Appeal of Florida, Fourth District.
    Aug. 25, 2004.
    Cory Petruny, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Cory Petruny appeals the summary denial of his motion to correct illegal sentence filed pursuant to rule 3.800(a). We reverse, remand, and certify conflict with McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003).

Citing this court’s Richardson decision, Petruny argues that his habitual felony offender sentence is illegal since the predicate convictions used to habitualize him were not sequential. See Richardson v. State, 2003 WL 21697171, 884 So.2d 950 (Fla. 4th DCA July 23, 2003), supplemented on reh’g, 2003 WL 21697171, 884 So.2d 950 (Fla. 4th DCA Jan.14, 2004); Puskac v. State, 872 So.2d 1008 (Fla. 4th DCA 2004). As the record supports his claim, we reverse and remand. On remand, the state may introduce evidence of other qualifying convictions which would allow for a habitual felony offender sentence, should any exist. See Puskac, 872 So.2d at 1008. Additionally, we again certify conflict with McCall and subsequent cases from the Second District Court of Appeal.

GUNTHER, WARNER and GROSS, JJ., concur.

      . See, e.g., Ey v. State, 2004 WL 2008503, 884 So.2d 376 (Fla. 2d DCA Sept. 10, 2004), and cases cited therein.


text:
    Russell INSKO, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1490.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2004.
    Rehearing Denied Oct. 8, 2004.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

A jury convicted Russell Insko of lewd and lascivious conduct for soliciting a person under sixteen years old. He seeks a new trial, claiming error because the court permitted the State to introduce Williams rule testimony about a similar incident involving another youth. We hold that the prejudicial .effect of a portion of the challenged evidence outweighed any probative value it had in this case. See § 90.403, Fla. Stat. (2001). We reverse and remand for a new trial.

The victim in this case, J.S., testified that he and a few friends were fishing at a local lake when a two-toned, maroon car stopped near them. The car departed but drove by them several more times. The driver again stopped the car and called out “you boys are lboking mighty fine today.” Once more the car drove away but returned. The driver then asked if any of the boys wanted to receive oral sex. J.S. believed the man was serious, and that scared him. The driver never got out of the car and, at some point, left the area. J.S. told his parents what happened when he returned home.

J.S. then began to notice the car in his neighborhood. About three days after the incident at the lake, the car drove by him as he walked to his school bus stop. Several days later, J.S. and his mother observed the car in a church parking lot. They went into the church and J.S. recognized the man who had propositioned him. The church minister identified the man as Insko. The victim’s mother relayed this information to the police, who eventually arrested Insko. When questioned, Insko admitted he had driven by the boys at the lake, but he denied asking if anyone wanted oral sex.

The State’s Williams rule evidence involved an encounter between Insko and a then-fifteen-year-old boy named Lewis. At the trial in this case, Lewis testified that in 1997 he was walking down a sidewalk when a man drove up and blocked his path. The man asked Lewis if he wanted oral sex but Lewis declined. As Lewis walked past the car, he noticed that the man was masturbating. Lewis obtained the car’s license tag number and reported the event to the police. Officer Hall testified that she determined Insko was a suspect based on the license plate number and Lewis’s identification of him from a photo-pak. Once arrested, Insko confessed. His confession tallied with Lewis’s description of the incident, including the fact that he had been masturbating in his car. The jury in this prosecution heard the tape of the statement Insko made to the police in connection with the Lewis incident.

Insko allegedly committed the present crime in November 2001. Effective July 1, 2001, the legislature amended section 90.404 to add the following provision:

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

§ 90.404(2)(b)(l), Fla. Stat. (2001). Child molestation is defined as “conduct proscribed by s. 794.011 or s. 800.04 when committed against a person 16 years of age or younger.” § 90.404(2)(b)(2). In this case Insko was charged under section 800.04(6)(a)(2) and (b) and the victim was thirteen at the time of the incident; thus section 90.404(2)(b) applies.

By enacting section 90.404(2)(b), the legislature intended to relax and simplify the rules concerning admissibility of Williams rule evidence in child molestation cases. See McLean v. State, 854 So.2d 796, 801 (Fla. 2d DCA 2003). But even under this relaxed standard, the circuit court still must perform its gatekeeping function under section 90.403, that is, it must weigh the probative value of the evidence against its prejudicial effect. See id. at 802; see also Fla. S. Comm, on Judiciary, CS for SB 2012 (2001) Staff Analysis 4 (Apr. 18, 2001) (on file with comm.) (“However the evidence would still be subject to the s. 90.403, F.S., scrutiny of weighing its probative value against its prejudicial effect.”). The record in this case does not reveal whether the court made this required finding. The hearing was not transcribed and the court’s written order did not address the probative value or prejudicial effect of the evidence. We have considered remanding to the circuit court, but in our review of the evidence we have discerned that a portion of it was so prejudicial that its admission was an abuse of discretion.

The State’s notice of intent to rely on Williams rule evidence asserted that the evidence was relevant for the purpose of showing modus operandi, intent, identity, and to rebut any defenses. Lewis’s and Officer Hall’s testimony that Insko previously approached a fifteen-year old boy in a car and asked the boy if he wanted oral sex was probative evidence of modus operandi and intent. Cf. Williams v. State, 621 So.2d 413, 414 (Fla.1993) (stating that when the purpose of the evidence is to show a common plan or scheme, “it is generally the similarity between the charged offense and the other crime or act that gives the evidence probative value”). While the evidence was certainly prejudicial to Insko because it tended to suggest he committed the crime charged in this case, its probative value was not outweighed.

The evidence about Insko’s masturbation, however, had minimal probative value. In this case, Insko was accused only of solicitation, not of committing any lewd acts in a child’s presence. The victim testified that Insko was about ten feet away when he made the salacious inquiry. The masturbation evidence simply exposed Insko’s bad character. As such, it should have been excluded. See id. at 416 (stating that other crime evidence is inadmissible when it is relevant to show nothing more than bad character or propensity to commit a crime).

We reverse and remand for a new trial. The Williams rule evidence concerning In-sko’s solicitation of Lewis may be admitted at the trial, but any evidence concerning Insko’s masturbation during that incident must be excluded.

STRINGER and COVINGTON, JJ., concur.

      . The State charged Insko with a second-degree felony under section 800.04(6)(a)(2) and (b), Florida Statutes (2001), lewd and lascivious conduct by a defendant aged eighteen or above. The jurors found him guilty of the lesser-included third-degree felony of lewd and lascivious conduct by a defendant under the age of eighteen. § 800.04(6)(c).

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . Ch. 01-221, § 2, at 1939, Laws of Fla.

      . In McLean we held section 90.404(2)(b) constitutional in cases where identity was not in dispute. That is the case here. Insko admitted to the investigating officer that he was at the lake, that he saw the boys fishing and drove by them several times. He does not dispute he was the man the victim saw. Instead, he contends that he did not ask if the victim wanted oral sex.

      .As we have previously discussed, identity was not at issue in this case. Insko’s written objection to the introduction of Williams rule evidence at tried conceded that "identity is not a material issue.”


text:
    George S. PITTS, Appellant, v. Jody R. PITTS, Appellee.
    No. 1D03-4504.
    District Court of Appeal of Florida, First District.
    Sept. 1, 2004.
    Rhonda S. Clyatt, Panama City, Attorney for Appellant.
    William M. Atkinson, Jr., Panama City, Attorney for Appellee.
   PER CURIAM.

This is an appeal from a final order of dissolution of marriage and distribution of asséts. Because there is competent, substantial evidence to support the trial court’s determination that Bay Land Development was a marital asset, we affirm the judgment below.

AFFIRMED.

ERVIN, BOOTH and KAHN, JJ., concur.


text:
    Bennie Frank SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2465.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2004.
   NORTHCUTT, Judge.

We affirm the summary denial of Bennie Frank Smith’s motion for jail credit without prejudice to his refiling a motion for postconviction relief showing entitlement to additional jail time credit pursuant to Gethers v. State, 838 So.2d 504 (Fla.2003) (“Only if the prisoner is subject to release but is being held because a detainer has been lodged can it be said that the prisoner is in custody pursuant to the detainer.”). Such motion must “affirmatively allege[] that the court records demonstrate on their face an entitlement to that relief.” See Fla. R.Crim. P. 3.800(a).

Affirmed.

ALTENBERND, C.J., and COVINGTON, J., Concur.


text:
    Kasim McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2773.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2004.
   PER CURIAM.

Affirmed. See McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003). As we did in McCall, we certify conflict with Richardson v. State, 884 So.2d 950, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003).

DAVIS, COVINGTON, and KELLY, JJ., Concur.


text:
    Martin MOURRA, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D02-5704, 2D02-5705, 2D02-5803.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 2004.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.

      . See § 322.34(5), Fla. Stat. (2002).

   ALTENBERND, Chief Judge.

Martin Mourra appeals his judgment and sentence for the offense of habitual driving while license suspended. He also appeals two orders revoking his probation in two other cases and imposing concurrent five-year terms of imprisonment, again each for the crime of habitual driving while license suspended. The judgment, sentences, and orders are all the result of pleas that Mr. Mourra entered on November 14, 2002. We affirm the judgment, sentences, and orders revoking probation.

After the sentencing hearing and entry of the judgment, sentences, and orders revoking probation, but prior to filing a notice of appeal, Mr. Mourra filed a pro se motion to withdraw his pleas pursuant to Florida Rule of Criminal Procedure 3.170(7 ). Mr. Mourra filed this pro se motion at a time when he was represented by counsel. The trial court, utilizing procedures comparable to those used to deny a postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, summarily denied the motion without a hearing and attached the transcript of the plea hearing to refute the allegations in the motion. We conclude that the trial court should not have considered the merits of this motion, but should have stricken it as unauthorized. We write to explain the reasons why such pro se motions should normally be stricken.

Rule 3.170(Z) provides:

Motion to Withdraw the Plea after Sentencing. A defendant who pleads guilty or nolo contendere without expressly reserving the right .to appeal a legally dispositive issue may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140 (b) (2) (A) (ii)(a)

Rule 3.170© was adopted in 1997 as part of the Florida Supreme Court’s attempt to effectuate the Criminal Appeal Reform Act. See In re Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103, 1105 (Fla.1996); Padgett v. State, 743 So.2d 70, 73 (Fla. 4th DCA 1999). In In re Amendments, the supreme court explained:

Consistent with the legislature’s philosophy of attempting to resolve more issues at the trial court level, we are also promulgating Florida Rule of Criminal Procedure 3.170(2), which authorizes the filing of a motion to withdraw plea after sentencing within thirty days from the rendition of the sentence, but only on the grounds recognized by Robinson [v. State, 373 So.2d 898 (Fla.1979)] or otherwise provided by law.

696 So.2d at 1105. Thus, the filing of a rule 3.170(2) motion was intended to occur as a part of the initial criminal proceedings. It is a critical stage of those proceedings during which the defendant is entitled to counsel. Padgett, 743 So.2d at 72.

One of the benefits of. rule 3.170(?) is that it provides the defendant with the right to seek to withdraw a plea at a time when the defendant is still represented by counsel. See Fla. R.Crim. P. 3.111(e). Moreover, this motion stays rendition of the final order for appellate purposes. See Fla. R.App. P. 9.020(h). Thus, if the motion is denied, the defendant is not unrepresented on the appeal of this issue because the denial of the order is reviewed as part of the direct appeal. This rule effectively gives a defendant a right to counsel for the first postconviction motion and for the appeal that may flow from that motion.

This benefit, however, may not be entirely cost-free. Some of the grounds for relief under rule 3.170(2) are also grounds for relief under rule 3.850. It has long been the rule that a prisoner may not raise an issue in a motion filed pursuant to rule 3.850 if the matter was or could have been raised on direct appeal. See rule 3.850(c); Jenkins v. State, 794 So.2d 654 (Fla. 2d DCA 2001); Jones v. State, 832 So.2d 207, 208 (Fla. 1st DCA 2002). Thus, although the case law is not well developed, the creation of rule 3.170(2) may significantly limit the issues that can be raised under rule 3.850 regarding the withdrawal of a plea. See, e.g., Barnhill v. State, 828 So.2d 405 (Fla. 5th DCA 2002) (stating that defendant who failed to file 3.170(2) motion was “constrained ... to limit his [postconviction] challenge regarding the voluntariness of his plea to allegations regarding the ineffectiveness of defense counsel”); Jackson v. State, 801 So.2d 1024 (Fla. 5th DCA 2001) (holding that failure to file rule 3.170(2) motion did not preclude claim that counsel was ineffective in failing to file motion to withdraw plea); see also Dow v. State, 823 So.2d 830, 832 (Fla. 2d DCA 2002) (Altenbernd, C.J., concurring) (opining that defendant who becomes aware of involuntary nature of his plea immediately upon sentencing should be constrained to raise the issue within thirty days under rule 3.170(Z)).

On the other hand, a defendant may appeal a violation of a plea agreement or an involuntary plea on direct appeal only “if preserved by a motion to withdraw plea.” Fla. R.App. P. 9.140(b)(2)(A)(ii). It is possible that a defendant cannot and should not raise an unpreserved violation of a plea agreement or an involuntary plea on direct appeal, but should wait to challenge those issues using the established procedures of rule 3.850. See Dooley v. State, 789 So.2d 1082 (Fla. 1st DCA 2001) (rejecting State’s argument that defendant was precluded from raising claim regarding involuntary nature of his plea in rule 3.850 motion because defendant had opportunity to raise claim in timely rule 3.170(Z) motion); cf. Rogers v. State, 864 So.2d 521 (Fla. 5th DCA 2004) (recognizing that claims that could not have been known on date plea was entered, such as claims regarding failure to inform defendant of threat of deportation, could not be precluded by failure to file timely 3.170(Z) motion).

Until the case law develops more fully in this area, it is safer for defendants and their trial counsel to assume that many issues regarding involuntary pleas or violation of plea agreements must, if known at the time of sentencing, be raised in a motion pursuant to section 3.170(Z) because they may no longer be raised in a rule 3.850 motion except under the more demanding procedural rules and the more difficult burden of persuasion that apply to claims of ineffective assistance of counsel. In essence, a defendant who has not sought relief pursuant to rule 3.170(Z) but thereafter files a motion pursuant to rule 3.850 may often be limited to a claim that trial counsel was ineffective for failure to file a timely motion pursuant to rule 3.170(0- '

Given the purpose of these motions as explained in In re Amendments and their possible preclusive effects, trial courts should not generally accept pro se motions under this rule. If a defendant is represented by a licensed and trained attorney, a defendant should not be expected to, file pro se motions within a narrow window, particularly when doing so could easily prejudice his or her case. Instead of filing such a pro se motion, a defendant should make a timely request to his or her attorney to file the motion.

There are also practical reasons to require counsel to file these motions when they can be filed in good faith. Pro se motions are often filed without proper service and without the knowledge of the lawyer who is still representing the defendant. As a result, these motions often do not receive correct processing in the trial court. For example, if counsel files a notice of appeal a few days after the client files a motion for relief under rule 3.170(Z), the motion frequently appears in the appellate record without resolution in the trial court.

As recently reiterated by the Florida Supreme Court, a defendant does not have a constitutional right to “hybrid” representation — that is, to be represented both by counsel and by himself. See Logan v. State, 846 So.2d 472, 474 (Fla.2003). Thus, pleadings filed by a criminal defendant who is represented by counsel are generally treated as a nullity, id. at 476 (citing Lewis v. State, 766 So.2d 288, 289 (Fla. 4th DCA 2000)), unless they include some unequivocal request to discharge counsel, Logan, 846 So.2d at 477-78. The same rule should generally apply to pro se motions pursuant to rule 3.170(Z).

In this case, Mr. Mourra’s pro se motion to withdraw his pleas was filed at a time when he was represented by counsel. Although the motion may have indicated some dissatisfaction with his attorney, it did not seek to discharge him. Mr. Mour-ra’s motion should have been stricken and treated as a nullity. See Harris v. State, 818 So.2d 567, 568-69 (Fla. 2d DCA 2002).

We note that the circuit court denied the motion as facially insufficient, utilizing the procedures specified in rule 3.850. There are cases from this court that analyze motions to withdraw pleas pursuant to rule 3.170(Z) in a manner similar to the analysis used for motions to withdraw pleas pursuant to rule 3.850. See, e.g., Iaconetti v. State, 869 So.2d 695, 699 (Fla. 2d DCA 2004); Harris, 818 So.2d 567. These cases consider whether a rule 3.170(i) motion states a facially sufficient claim for relief or whether the claim is conclusively refuted by the record. There is some logic to this approach. However, this analysis springs in large part from the specific procedures expressly set forth in rule 3.850. No such procedures are included within rule 3.170(£). Thus, it is possible that trial courts should simply conduct hearings on these motions more akin to the hearings held on other motions prior to direct appeal. Further, the attachments to an order denying a rule 3.170(£) motion utilizing the rule 3.850 procedures invariably duplicate the record already provided in a direct appeal. Because we conclude the motion should have been stricken, we need not address whether the circuit court properly used these procedures.

Affirmed with directions to strike the rule 3.170(Z) motion on remand.

KELLY and VILLANTI, JJ., Concur.

      . Mr. Mourra's motion mistakenly referred to subsection (f) of rule 3.170, which provides for the withdrawal of pleas prior to sentencing. Because the motion was filed after sentencing but within thirty days from the entry of the judgments, the trial court properly treated the motion as one filed in accordance with rule 3.170(1). See Hulett v. State, 830 So.2d 243, 244 (Fla. 4th DCA 2002).

      . Of course, the issues raised in a rule 3.170(Z) motion may generate a conflict between the original trial lawyer and his or her client. Under those circumstances, the court may be required to appoint substitute counsel for the purpose of resolving the motion. See laconetti v. State, 869 So.2d 695, 699 (Fla. 2d DCA 2004); Daniel v. State, 865 So.2d 661 (Fla. 2d DCA 2004).

      . Florida Rule of Appellate Procedure 9.020(h)(3) does not deem such a motion abandoned by a premature appeal. The appellate court is actually supposed to hold the appeal in abeyance until the trial court renders an order disposing of the rule 3.170(7) motion.

      . We are not inclined to believe that an allegation of misadvice without a motion to discharge trial counsel is sufficient to justify a pro se pleading that might have unintended preclusive effect on postconviction proceedings. But see Peterson v. State, 881 So.2d 1129 (Fla. 4th DCA 2004).


author: CANADY, Judge.

text:
    Jonathan SHORTRIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5811.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 2004.
   CANADY, Judge.

Jonathan Shortridge challenges the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the two claims raised by Shortridge relate to convictions and not sentences, they are not cognizable under rule 3.800(a). See Rudolf v. State, 851 So.2d 839 (Fla. 2d DCA 2003). One of the issues raised by Shortridge is a challenge based on the procedure used by the trial court to merge two convictions into a single conviction for first-degree murder. We do not reach the issue— related to Shortridge’s conviction for first-degree murder — of whether the procedure used by the trial court was proper. We affirm the trial court’s order denying the rule 3.800(a) motion to correct illegal sentence.

Affirmed.

WHATLEY and SALCINES, JJ., Concur.


author: KELLY, Judge.

text:
    Randy ROUNDTREE, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-532.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 2004.
   KELLY, Judge.

Randy Roundtree challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment as to grounds one, two, three, five, and six of the motion. Because Roundtree made facially sufficient claims for relief in grounds four and seven, we reverse and remand.

Roundtree was found guilty by a jury of armed robbery and sentenced to thirty years in prison as a Prison Releasee Reof-fender (PRR).

In ground four of his motion, Roundtree alleged that his codefendant had just recently admitted that he had not testified on Roundtree’s behalf because he had been coerced by the State. Roundtree alleged that his codefendant would have testified that Roundtree had no role in planning or committing the robbery and that Roundtree had no knowledge that a robbery would take place. Roundtree alleged that this testimony would have refuted the State’s argument that Roundtree acted as a lookout during the robbery. These allegations are sufficient to state a prima facie claim of newly discovered evidence. See McLin v. State, 827 So.2d 948 (Fla.2002); Keen v. State, 855 So.2d 117 (Fla. 2d DCA 2003). It appears that the trial court denied Roundtree’s claim because he failed to attach an affidavit. However, rule 3.850 does not require the filing of supporting affidavits; it only requires a brief statement of facts in support of the motion. See Valle v. State, 705 So.2d 1331 (Fla.1997); Smith v. State, 837 So.2d 1185 (Fla. 4th DCA 2003). Accordingly, we reverse and remand for the trial court to hold an evidentiary hearing on this ground.

In ground seven of his motion, Roundtree alleged that before trial, the State offered a sentence of fifty-four months in prison in exchange for a nolo contendere plea. Roundtree alleged that his trial counsel was ineffective during the plea negotiation because she failed to advise Roundtree that he could face an enhanced sentence as- a PRR if he rejected the offer. Roundtree also alleged that he would have accepted the plea offer had he been properly advised of the possible penalties and that acceptance of the offer would have resulted in a lesser sentence of fifty-four months in prison with no PRR designation. This is a facially sufficient claim of ineffective assistance of counsel. See Murphy v. State, 869 So.2d 1228 (Fla. 2d DCA 2004). The trial court’s order did not refute this claim. Accordingly, we reverse and remand for the trial court to reconsider the claim and either attach portions of the record that conclusively refute the claim or conduct an evidentiary hearing.

Reversed and remanded.

WHATLEY and SALCINES, JJ., concur.


text:
    John Lewis SWANSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-2431.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 2004.
   COVINGTON, Judge.

John Lewis Swanson seeks review of the order summarily denying his motion to correct illegal sentence. The claim that he brings is more appropriately presented in a motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.850. Accordingly, we affirm without prejudice to any right he may have to file such a motion.

Affirmed.

WHATLEY and SALCINES, JJ., Concur.


text:
    OSMO TEC SACV CO., a Florida corporation; Roger Biset; and Jose Cervera, Appellants, v. CRANE ENVIRONMENTAL, INC., a Delaware corporation, Appellee.
    No. 2D03-498.
    District Court of Appeal of Florida, Second District.
    Sept. 8, 2004.
    Daniel Joy of Law Office of Daniel Joy and Thomas C. Valentine of Valentine & Gorman, Sarasota, for Appellants.
    Lawrence P. Bermis and Michael S. McCauley of Kirkland & Ellis, Los Ange-les, California, and Digna B. French of Steel Hector & Davis LLP, Miami, for Appellee.
   CANADY, Judge.

BY ORDER OF THE COURT:

Appellee’s motion for rehearing en banc is denied.

Appellee’s motion for rehearing is granted in part. The opinion dated December 19, 2003, is -withdrawn, and the attached opinion is substituted therefor.

No additional motions for rehearing will be entertained.

I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

The appellants, Osmo Tec SACV Co., Roger Biset, and Jose Cervera, appeal an order finding them in contempt for violating an injunction entered in a lawsuit to which they were not parties. Because we conclude that the appellants did not violate the injunction, we reverse.

I. BACKGROUND

The injunction that the appellants were found to have violated resulted from litigation filed by Crane Environmental, Inc., the appellee, against Edward Closuit, My-riam Murphy, and Andalite Industries, Inc., who are not parties to this appeal. Crane Environmental’s suit alleged violations of noncompete agreements entered in connection with Crane Environmental’s purchase of Environmental Products USA, Inc. (EP USA), a company that manufactured water filtration systems. Closuit and Murphy, who are husband and wife, both had roles in the leadership of EP USA before it was sold, and both served terms as its president. As a part of the sale of EP USA, a number of persons, including Closuit and Murphy, agreed to five-year noncompete agreements with Crane Environmental. After the sale, Crane Environmental employed Closuit for a short time, but ultimately his relationship with Crane Environmental soured and his employment ended.

Shortly following Closuit’s departure from Crane Environmental, Closuit and Murphy reentered the water filtration business. They incorporated Andalite Industries and registered “Haliant Technologies” as a fictitious name for the corporation. Under that name, Andalite Industries began selling water filtration systems similar to those produced by EP USA and Crane Environmental.

Crane Environmental filed suit and requested a temporary injunction to prevent violation of the noncompete agreement. The trial court entered a temporary injunction, requiring that “Andalite Industries/Haliant Technologies,” Edward Clo-suit, and Myriam Murphy cease business operations pertaining to reverse osmosis water filtration systems, “whether through Haliant or a third party.” Further, the court required that those parties cease and desist from soliciting Crane Environmental employees and from using Crane Environmental’s proprietary information and marketing materials with depictions of Crane Environmental products.

After this injunction was issued, Murphy and Closuit entered into negotiations with Crane Environmental concerning an orderly shut-down of Andalite Industries’ water filtration business under the terms of the temporary injunction. At the same time, Closuit and Murphy made arrangements— without informing Crane Environmental— to sell the assets of Andalite Industries’ Haliant Technologies division to Osmo Tec. Osmo Tec purchased virtually all of the assets used by Andalite Industries for its water filtration business. The purchase agreement transferred various items of capital equipment and inventory and also provided for the transfer of intangible property, including the fictitious name “Haliant Technologies” and the internet address and telephone numbers used in Andalite Industries’ water filtration business.

When it discovered that Andalite Industries had sold these assets, Crane Environmental moved to have Closuit, Murphy, Andalite Industries, and the appellants held in contempt for violating the temporary injunction. This motion was filed in conjunction with the lawsuit against Clo-suit, Murphy, and Andalite Industries to which the appellants were not parties. In the motion for contempt, Crane Environmental argued that Osmo Tec was in contempt for continuing Andalite Industries’ water filtration business. Crane Environmental also moved for a contempt order against Biset and Cervera, alleging that Biset managed Osmo Tec’s operation and that Cervera was the owner of Osmo Tec.

At the contempt hearing, where the appellants were represented by counsel, the trial court orally concluded that the appellants should be held in contempt, noting that the appellants had knowingly purchased “as [a] going concern” a business that the court had effectively ordered shut down. In its written order (the order on appeal), the court stated that Haliant Technologies’ existence as a business was “the fruit of illicit conduct” and that the appellants had actual knowledge of the injunction enjoining its operations. The contempt penalty imposed against the appellants was an additional injunction specifically enjoining the appellants from “conducting business operations pertaining to [a] membrane-based water purification business through the name Haliant, Hali-ant Technologies!!,] or any derivative thereof’ and also enjoining the use of any of the assets acquired from Andalite Industries in furtherance of a water purification business. The injunction also prohibited the appellants from using the internet address, telephone numbers, software, customer lists, and other intellectual property obtained from Andalite Industries.

II. ANALYSIS

Florida Rule of Civil Procedure 1.610(c) provides:

Every injunction shall specify the reasons for entry, shall describe in reasonable detail the act or acts restrained without reference to a pleading or another document, and shall be binding on the parties to the action, their officers, agents, servants, employees, and attorneys and on those persons in active concert or participation with them who receive actual notice of the injunction.

Two provisions of this rule are particularly pertinent here: (1) an injunction is binding and enforceable against “persons in active concert or participation with” the parties named in an injunction if those persons have “receive[d] actual notice of the injunction,” and (2) “[e]very injunction ... shall describe in reasonable detail the act or acts restrained.”

Corollary to the requirement that enjoined acts be described “in reasonable detail” is the rule that a contempt sanction may not be imposed for the violation of an injunction unless the purportedly contemptuous act clearly contravenes the injunction. See Power Line Components, Inc. v. Mil-Spec Components, Inc., 720 So.2d 546, 548 (Fla. 4th DCA 1998) (“A party may not be held in contempt of an injunction that is ambiguous and could reasonably be interpreted in two ways.”). Moreover, “[a]n essential finding to support contempt is the party’s intent to violate the court order at issue.” Merrill Lynch Trust Co. v. Alzheimer’s Lifeliners Ass’n, 832 So.2d 948, 954 (Fla. 2d DCA 2002) (citing Power Line Components, 720 So.2d at 548).

The appellants do not dispute that they had knowledge of the injunction at issue in this case prior to their purchase of assets from Andalite Industries. Nor do they contest that the assets that Osmo Tec purchased from Andalite Industries permitted the continuance of Andalite Industries’ Ha-liant Technologies’ operations essentially without interruption. Instead, they contend that the injunction enjoining “Andal-ite Industries/Haliant Technologies” from continuing operations did not prohibit the sale of the assets of Andalite Industries to a third party. We agree.

If the trial court intended to prohibit the sale of Andalite Industries’ assets, the temporary injunction does not reflect that intention. The temporary injunction is devoid of a description “in reasonable detail” of the conduct for which the trial court has held the appellants in contempt; there is no basis for concluding that the appellants intended to violate the injunction. Accordingly, the contempt order must be reversed.

From a review of the transcript of the contempt hearing, it is apparent that the trial court’s rationale for finding the appellants in contempt was its belief that the purpose of the injunction was to destroy the ongoing operations of a company that had grown as a result of violations of a valid noncompete agreement. However, that purpose was not reflected in the written order imposing the injunction. The temporary injunction specifically enjoined neither the sale of any asset of Andalite Industries nor the use of the name of Haliant Technologies by any third parties — such as the appellants — in connection with a water filtration business.

Our conclusion is not altered by the fact that the injunction specifically enjoined the activities of “Andalite Industries/Haliant Technologies” and Osmo Tec acquired and used the trade name Haliant Technologies. Obviously Andalite Industries, a Florida corporation, could properly be enjoined. Haliant Technologies, a fictitious name, had no independent legal existence and could not be enjoined; any reference to Haliant Technologies was simply a reference to Andalite Industries. See Riverwalk Apartments, L.P. v. RTM Gen. Contractors, Inc., 779 So.2d 537, 539 (Fla. 2d DCA 2000) (noting that “[a] fictitious name is just that — a fiction involving the name of the real party in interest, and nothing more”). And the reference to Haliant Technologies in the injunction was not sufficient to prohibit the use of that name by a third party such as Osmo Tec.

Additionally, we address the language of the injunction that prohibited Andalite Industries from continuing its water filtration business “whether through Haliant or a third party.” There is no evidence that the sale of assets was an attempt by An-dalite Industries to continue to participate in the water filtration business through a third party. Although Andalite Industries maintains a security interest in the assets it sold to Osmo Tec, this was a natural consequence of the parties’ decision to privately finance the transaction. The amount to be paid to Andalite Industries under the asset purchase agreement is fixed and is not contingent on Osmo Tec’s profits. Under the sale agreement with Osmo Tec, Andalite Industries is not continuing its involvement in the water filtration business.

III. CONCLUSION

Because the provisions of the prior injunction did not prohibit the conduct for which the trial court found the appellants to be in contempt, we reverse the trial court’s contempt order in its entirety and remand for the entry of an order denying the motion for contempt against the appellants.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

      . In its contempt order, the trial court specifically found Osmo Tec and Biset in contempt for violating its prior injunction. It did not explicitly make such a finding as to Cervera. However, the contempt order imposed the same contempt penalty, a second injunction, against Osmo Tec, Biset, and Cervera. We conclude that, at least implicitly, the trial court found Cervera in contempt.


text:
    Thomas DESPART, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-731.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2004.
    Thomas Despart, Arcadia, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Tanguay v. State, 880 So.2d 533 (Fla.2004).

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


text:
    Doneel McNEAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-854.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2004.
    Doneel McNeal, Quincy, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Gore v. State, 784 So.2d 418 (Fla.2001); Dorsey v. State, 847 So.2d 587 (Fla. 5th DCA 2003).

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


text:
    Jeffery POPE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5583.
    District Court of Appeal of Florida, Second District.
    Sept. 10, 2004.
    Rehearing Denied Nov. 9, 2004.

      James Marion Moorman, Public Defender, and Richard P. Albertine Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   CANADY, Judge.

Jeffery Pope appeals his conviction and sentence for a violation of section 790.235, Florida Statutes (2000), which makes it unlawful for a person who meets the criteria for violent career criminal sentencing to possess a firearm. We affirm his conviction without comment. However, we reverse his thirty-five-year sentence because it was not authorized by law.

A violation of section 790.235 is a first-degree felony — a level of offense ordinarily punishable by up to thirty years in prison. See § 775.082(3)(b), Fla. Stat. (2000). Pope was also subject to a fifteen-year minimum mandatory sentence for this offense. See § 790.235(1). Because Pope met the criteria for violent career criminal sentencing under section 775.084(l)(d), the provisions of section 775.084(4)(d)(l) applied, requiring that a life sentence be imposed unless, pursuant to section 775.084(4)(e), the trial court found that the imposition of a violent career criminal sentence was “not necessary for the protection of the public.” If the trial court made such a finding, then “sentence [should have been] imposed without regard to [section 775.084].” § 775.084(4)(e).

In sum, the trial court was required to impose a life sentence unless it found that violent career criminal sentencing was not necessary for the protection of the public. If it found that violent career criminal sentencing was not necessary for the protection of the public, the trial court would have the discretion to impose a sentence of up to thirty years with a minimum mandatory sentence of fifteen years’ imprisonment. Pope’s thirty-five-year sentence did not fall within these parameters.

At the sentencing hearing, the trial court indicated that it was aware that it was departing from the statutory sentencing requirements. The court stated that it believed that Pope was presently a threat to the community, although it suggested that that would most likely not be the case at the end of his sentence. The court also indicated that it would be disproportionate to impose a life sentence for Pope’s offense. When pressed by the State for an explicit finding that a violent career criminal sentence was not necessary for the protection of the public, the court declined to answer the question. The trial court invoked the procedure under section 775.084(3)(c)(5), which requires that the trial court make a record setting forth reasons for its decision not to impose the violent career criminal sentence when it declines to impose such a sentence. But the record shows that the trial court failed to make the finding that the imposition of a violent career sentence was “not necessary for the protection of the public.”

On appeal, both the State and Pope argue that the sentence was improper and should be modified. The State contends that Pope should be given a life sentence. Pope argues that his case should be remanded for resentencing to a term of thirty years or less.

The State correctly points out that the trial court was required to impose a life sentence on Pope unless it found that that sentence was not necessary for the protection of the public. The State failed, however, to file a cross-appeal in this case. Although the issue of the trial court’s failure to impose a life sentence was preserved in the trial court with an appropriate objection, the State has failed to properly present this issue to this court for appellate review. See Guerra v. State, 546 So.2d 133, 134 (Fla. 4th DCA 1989) (holding that State waived sentencing issue by failing to file a cross-appeal). The disposition for which the State argues— imposition of a life sentence — is therefore not now available. The State’s failure to file a cross-appeal has foreclosed that option. Pope correctly argues that the thirty-five-year sentence imposed by the trial court was not available as a sentencing option under any applicable provision of law. We therefore vacate Pope’s sentence and remand for a sentence not exceeding thirty years with a minimum sentence of fifteen years’ incarceration.

Conviction affirmed, sentence vacated, and case remanded for resentencing.

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