author: WHATLEY, Judge.

text:
    STATE of Florida, Appellant, v. James HEATH, Appellee.
    No. 2D02-5116.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Stephen B. Fisher, Assistant Public Defender, Bartow, for Appellee.
   WHATLEY, Judge.

The State of Florida appeals an order dismissing its petition for commitment filed pursuant to the Jimmy Ryce Act. § 394.915, Fla. Stat. (2001). We reverse.

James Heath was adjudicated guilty pursuant to a plea agreement on eight counts of attempted sexual battery on a child under twelve years old, eight counts of committing a lewd act, and five counts of contributing to the delinquency of a minor. Heath completed the incarcerative portion of his sentence on June 1, 2001, and was to be placed on probation. On May 30, 2001, the State filed a civil petition for commitment under section 394.915.

On July 16, 2002, Heath filed a motion asking the court to enforce the plea agreement and dismiss the petition. He claimed the subsequent filing of the civil commitment petition violated his plea agreement and was a breach of contract. On November 21, 2002, relying on the ruling in Harris v. State, 27 Fla. L. Weekly D946, - So.2d -, 2002 WL 731699 (Fla. 1st DCA Apr.26, 2002), review granted, 854 So.2d 660 (Fla.2003), the circuit court granted Heath’s motion and dismissed the petition.

Thereafter, in Murray v. Regier, 27 Fla. L. Weekly S1008, - So.2d -, 2002 WL 31728885 (Fla. Dec. 5, 2002), the Florida Supreme Court examined this issue and held that “any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on a subsequent involuntary civil commitment for control, care, and treatment.” See State v. Klein, 851 So.2d 274 (Fla. 5th DCA 2003); Garcia v. State, 847 So.2d 980 (Fla. 4th DCA 2002). Consequently, Heath’s plea agreement in his criminal case did not foreclose the subsequent involuntary civil commitment, and the circuit court erred in dismissing the State’s petition.

Accordingly, we reverse the order granting Heath’s motion to enforce the plea agreement and dismissing the petition for involuntary commitment, and we remand with directions to deny Heath’s motion.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

      . The mandate in Murray v. Regier, 27 Fla. L. Weekly S1008, - So.2d -, 2002 WL 31728885 (Fla. Dec. 5, 2002), has been stayed pending the disposition of State v. Harris, Case No. SC02-2172, and State v. Gentes, Case No. SC02-2440.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    In the Interest of H.H. and R.W., minor children. J.H., Appellant, v. Department of Children and Family Services, Appellee.
    Nos. 2D03-2376, 2D03-2538.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2004.

      J.H. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   DAVIS, Judge.

J.H., the Mother, challenges three orders of the circuit court, which deemed the respective relative placements of her daughters, H.H. and R.W., to be permanent placements and terminated the supervision of the Department of Children and Family Services (the Department). We reverse.

The children were adjudicated dependent on October 30, 2002; the older daughter, H.H., was placed with a maternal aunt and uncle, while the younger daughter, R.W., was placed with her biological father in Montana. The most recent case plan had a goal of reunification, and the Mother filed several motions seeking reunification. The trial court, however, denied each, finding that the Mother was not in compliance with her case plan. At only one of the reunification hearings did the trial court specify how the Mother was noncompliant, instructing her to participate in visits with her oldest daughter. Five weeks later, the Mother again moved for reunification, citing five consecutive weekly visits with H.H., but the trial court again denied the motion.

In the trial court’s final orders placing the children in long-term placements, it found that the Mother had not substantially complied with her case plan tasks. However, the trial court also included a list of the tasks and noted by each that the Mother was in compliance.

Compliance with a case plan with a goal of reunification “requires that the child be returned to his parent(s) ‘if the court is satisfied that reunification will not be detrimental to the child’s safety, well-being, and physical, mental, and emotional health.’ ” B.D.E. v. Dep’t of Children & Family Servs., 829 So.2d 359, 360 (Fla. 1st DCA 2002) (quoting § 39.701(8)(b), Fla. Stat. (2001)); see also In re M.C., 796 So.2d 566, 568 (Fla. 2d DCA 2001). Additionally, “[w]e will not reverse an order that determines permanency by directing long-term placement with a relative if there is competent, substantial evidence to support it.” In re J.C., 805 So.2d 1094, 1096 (Fla. 2d DCA 2002).

The only evidence in the record before us that the Mother was noncompliant with her case plan is the case worker’s testimony that the Mother had not visited her daughters. However, in its orders the trial court noted that the Mother had since participated in weekly visits with H.H., and R.W. remained in Montana with her biological father. Accordingly, the record does not support the trial court’s finding of substantial noncompliance.

However, Florida courts have held that even where the trial court’s finding regarding compliance is not supported by competent, substantial evidence, long-term placement can be affirmed if the trial court’s order, on objectively reasonable grounds, makes a finding that reunification would be detrimental to the child’s safety, well-being, and physical, mental, and emotional health. See B.D.E., 829 So.2d at 363. Although the trial court here stated in its order that reunification was “contrary to the welfare of the children because the home situation presents a substantial and immediate danger to the children” and that “there is continued need for out-of-home placement to ensure the child[ren]’s health, safety and well-being,” these conclusions are not based on any specific findings and, therefore, are not reasonably objective.

Because we conclude that the trial court abused its discretion, see R.F. v. Dep’t of Children & Families, 844 So.2d 821, 823 (Fla. 5th DCA 2003), we reverse and remand with instructions to reinstate the most recent case plan, which had a goal of reunification. Such case plan would not bar the trial court from granting relative long-term placement at some point in the future upon a proper showing of noncompliance or that reunification would be a detriment to the children’s safety, well-being, and physical, mental, and emotional health.

Reversed and remanded with instructions.

ALTENBERND, C.J., and SILBERMAN, J., Concur.


author: FULMER, Judge.

text:
    Johnnie Mack GRAHAM, JR., Petitioner, v. STATE of Florida, Respondent.
    No. 2D03-3009.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2004.
    Johnnie Mack Graham, Jr., pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Respondent.
   FULMER, Judge.

Johnnie Mack Graham, Jr., has filed a petition alleging ineffective assistance of appellate counsel filed pursuant to Florida Rule of Appellate Procedure 9.141(c). Graham raises two issues, only one of which has merit, and upon which we grant relief.

On June 26, 2000, Graham was convicted of a second-degree murder committed on August 16, 1998. His sentence points totaled 361.8 and the maximum recommended sentence under the guidelines was 417.2 months. The trial court, without stating reasons for departure, sentenced Graham to life in prison. Section 921.001(6), Florida Statutes (1997), provides that “[departures from the recommended sentences established in the guidelines are articulated in writing.” A court may impose a life sentence without written explanation if the total sentence points are 363 or greater, § 921.0014(2); however, Graham’s sentencing points totaled 361.8. The State agrees that, had appellate counsel raised this issue on direct appeal, Graham would have been entitled to resentencing within the guidelines.

The record is clear, and the State concedes, that Graham is entitled to resen-tencing. Accordingly, this petition is granted. We reverse the sentence and remand for the trial court to resentence Graham pursuant to the sentencing guidelines.

Petition granted, sentence reversed, remanded for resentencing.

SILBERMAN and WALLACE, JJ., Concur.


text:
    Clarence LOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4057.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2004.
   WHATLEY, Judge.

Clarence Lott seeks review of the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court summarily denied his motion without any explanation or record attachments. It also failed to inform Lott of his right to appeal within thirty days. Accordingly, we reverse and remand for reconsideration of Lott’s motion in accordance with our opinion in Suleiman v. State, 861 So.2d 1175 (Fla. 2d DCA 2003). If the trial court again summarily denies the motion, it must set forth its rationale and attach any relevant portions of the record which support its denial.

Reversed and remanded.

SILBERMAN and WALLACE, JJ„ Concur.


author: PER CURIAM.

text:
    Nathaniel WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-11.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and Michael J. Neimand, Assistant Public Defender, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

This appeal recurs upon a mandate issued by the Supreme Court of Florida on December 11, 2003. We vacate the harmless error analysis portion of our previous opinion, recorded at 834 So.2d 923, and conform in all respects to the opinion of the Supreme Court recorded at 863 So.2d 1189 (Fla.2003). As directed by that opinion and mandate we now apply the principles announced in Goodwin v. State, 751 So.2d 537 (Fla.1999), and State v. DiGuilio, 491 So.2d 1129 (Fla.1986), and reconsider this matter under the DiGuilio harmless error standard.

Accordingly, we hereby affirm the conviction and sentence under review finding that, although the trial court abused its discretion in not permitting the defense to elicit the fact that Hunt had been expelled from the police explorers, there was no reasonable possibility that this error affected the verdict. We therefore, affirm.


text:
    Ronald GARMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3006.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Ronald Garmon, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See State of Florida v. Enmund, 476 So.2d 165 (Fla.1985).


text:
    Antonio VEGA, Appellant, v. Luisa VEGA, Appellee.
    No. 3D003-1202.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Louis C. Arslanian (Ft.Lauderdale), for appellant.
    Gustavo J. Garcia-Montes, for appellee.
    Before GODERICH, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


author: SALCINES, Judge. ■

text:
    BRASOTA MORTGAGE COMPANY, INC., Petitioner, v. TOWN OF LONGBOAT KEY, Florida, Respondent.
    No. 2D03-3100.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2004.

      Peter J. Mackey and Matthew B. Taylor of Mackey Law Group, P.A., Bradenton, for Petitioner.
    William R. Pomeroy, Sarasota, for Respondent.
   SALCINES, Judge. ■

Brasota Mortgage Company, Inc., requests certiorari review of an order of the circuit court, sitting in its appellate capacity, which dismissed its original petition for writ of certiorari. Brasota Mortgage filed the petition in circuit court to review the denial of its request for approval of a subdivision plat by the planning and zoning board of the Town of Longboat Key, Florida. We grant the petition and quash the order.

The posture of the case before this court is commonly referred to as a “second-tier” certiorari. As the supreme court noted in Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003), after a zoning board rules on an application for a special zoning exception, the parties may twice seek review in the court system. Id. at 198. First, a party may seek certiorari review at the circuit court level. This “first-tier” review is a matter of right. Id.

At the circuit court level, the court must determine “(1) whether procedural due process is accorded, (2) whether the essential requirements of the law have been observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence.” City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982).

In the present case, the circuit court order does not set forth the reasons' for the dismissal of the petition for writ of certiorari other than to state “the Petitioner has failed to demonstrate a preliminary basis for relief.” The order cites to Florida Rule of Appellate Procedure 9.100(h); Tomeu v. Palm Beach County, 430 So.2d 601 (Fla. 4th DCA 1983); and Wingate v. State, Department of Highway Safety and Motor Vehicles, 442 So.2d 1023 (Fla. 5th DCA 1983). These cases do not enlighten this court concerning the circuit court’s reasoning for dismissing the petition. Instead, they set forth the standard of review in second-tier certiorari proceedings. From the record before us, it appears that the circuit court applied the incorrect standard when it reviewed the decision of the planning and zoning board. As mentioned above, the first-tier certiorari is a matter of right for the petitioner seeking review of an administrative decision.

Parties seek “second-tier” certiora-ri review of the circuit court decision by petitioning for review in the district court. Second-tier certiorari review is not a matter of right and is similar in scope to common law certiorari review. See Omnipoint Holdings, 863 So.2d at 199. The scope of the district court’s review on second-tier certiorari is limited to whether the circuit court (1) afforded procedural due process, and (2) applied the correct law. Id. This court may not review the record to determine whether the underlying agency decision is supported by competent, substantial evidence. Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092-93 (Fla.2000).

The circuit court did not apply the correct law when it apparently utilized the second-tier standard of review rather than considering the petition to which Brasota was entitled as a matter of right under the standard set forth in Vaillant, 419 So.2d at 626. Accordingly, the petition for writ of certiorari is granted and the circuit court order dismissing the petition for certiorari is quashed.

Petition granted; order quashed.

WHATLEY and SILBERMAN, JJ., Concur.


author: CANADY, Judge. ALTENBERND, Chief Judge,

text:
    Jerry D. ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-180.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2004.
   CANADY, Judge.

Jerry D. Anderson appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because we conclude that there has been no conclusive showing that Anderson is entitled to no relief, we remand to the trial court for further proceedings.

Anderson makes claims based on ineffective assistance of counsel and an error in the sentencing guidelines scoresheet used in his sentencing. We conclude that the trial court’s summary denial of Anderson’s ineffective-assistance-of-counsel claims should be affirmed and will not further address those claims. We conclude, however, that the summary denial of Anderson’s scoresheet-error claim should be reversed.

In April 1997, Anderson was charged by information with attempted murder in the second degree — a violation of section 782.04(2), Florida Statutes (supp.1996)— for an offense that allegedly occurred on March 8, 1997. In October 1997, Anderson entered a no contest plea and was sentenced to two years’ community control followed by five years’ probation. In April 2000, Anderson was charged with a probation violation. In February 2001, he was found guilty and sentenced to ninety months in prison.

The sentencing court utilized a Florida Rule of Criminal Procedure 3.990(a) sentencing guidelines scoresheet — the score-sheet used under the 1994 guidelines, which are applicable to the charged offense. The scoresheet used by the sentencing court reflects 137 total sentence points and a sentencing range of 81.75 to 136.25 months.

The scoresheet error alleged by Anderson relates to the scoring of the primary offense level. For reasons that are not discernable from the record before us, the offense of attempted murder in the second degree charged against Anderson was scored as a level 9 offense (91 points). As the postconviction court recognized, this scoring of the primary offense level was an error which resulted in an increase in the total sentence points calculated on the scoresheet.

The scoring of an inchoate crime — such as attempted second-degree murder — is based on the offense level that would have been applicable had the crime been completed. Under the applicable statutes, second-degree murder was a level 10 offense and attempted second-degree murder should have been scored at two offense levels below the completed crime. See § 921.0012, Fla. Stat. (Supp.1994); § 777.04(4)(a), Fla. Stat. (1993); see also Fla. R.Crim. P. 3.702(d)(6). Anderson’s correct primary offense level thus was level 8 rather than the level 9 reflected on the scoresheet used by the sentencing court. With the primary offense scored correctly at level 8 (74 points), Anderson’s score-sheet would reflect 120 total sentence points and a sentencing range of 69 to 115 months.

The postconviction trial court concluded that Anderson “was not adversely affected” by the scoresheet error because the ninety-month sentence previously imposed “is within the corrected range.” In reaching the conclusion that Anderson was not entitled to relief, the postconviction court relied on Heggs v. State, 759 So.2d 620 (Fla.2000), and Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001). In Heggs, which invalidated the statute adopting the 1995 sentencing guidelines, the supreme court held that “if a person’s sentence imposed under the 1995 guidelines could have been imposed under the 1994 guidelines (without a departure), then that person shall not be entitled to relief under our decision here.” 759 So.2d at 627. In Hummel, the First District stated that the supreme court had in Heggs “announced a new harmless error analysis to be applied in dealing with scoresheet inaccuracies.” 782 So.2d at 451. The First District thus concluded that the Heggs standard for determining whether a defendant is entitled to relief is generally applicable to claims based on scoresheet errors and not limited to errors arising from the use of the invalid 1994 guidelines.

This court has, however, not understood Heggs as establishing such a generally applicable standard for determining whether scoresheet errors require resen-tencing. On the contrary, in Voss v. State, 808 So.2d 282 (Fla. 2d DCA 2002), Collins v. State, 788 So.2d 1109 (Fla. 2d DCA 2001), and Bigham v. State, 761 So.2d 431 (Fla. 2d DCA 2000) — which were decided after Heggs — we have adhered to the view that a scoresheet error, like the error shown by Anderson, requires resentencing unless it can be shown conclusively that the same sentence would have been imposed if the corrected scoresheet had been used by the sentencing court. See also Sprankle v. State, 662 So.2d 736, 737 (Fla. 2d DCA 1995) (holding that scoresheet error was basis for relief under motion to correct illegal sentence even where sentence imposed using incorrect scoresheet was “still within the permitted range of punishment” under the correct scoresheet and stating that “[w]hen a corrected score-sheet places the defendant in a different cell, the error cannot be presumed to be harmless, unless the record conclusively demonstrates that the trial court would have given the same sentence had it known the correct score”).

In sum, we employ the would-have-been-imposed standard for determining whether scoresheet errors require resentencing, while the First District under Hummel uses the could-have-been-imposed standard adopted from Heggs. Anderson would not be entitled to relief under the could-have-been-imposed standard articulated in Hummel. But he is entitled to relief under the would-have-been-imposed standard utilized in this district because there has been no conclusive showing that the trial court would have imposed the same sentence if it had utilized a correctly calculated scoresheet.

We recognize that the sentencing transcript or other record documents may conclusively demonstrate that the sentence imposed was not affected by the score-sheet error. If the trial court determines on remand that the record conclusively refutes Anderson’s claim, it will be necessary for the trial court to enter a new order denying relief and to attach to the order the portions of the sentencing transcript or other record documents that conclusively show that Anderson is not entitled to relief. Otherwise, Anderson must be resentenced using a corrected score-sheet.

We acknowledge that our decisions in Voss, Collins, and Bigham are inconsistent with the First District’s decision in Hum-mel, and therefore certify direct conflict pursuant to article V, section 3(b)(4), Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi).

Reversed and remanded with instructions; conflict certified.

DAVIS, J., Concurs.

ALTENBERND, C.J., Concurs with opinion.

ALTENBERND, Chief Judge,

Concurring.

I fully concur in this opinion; however, I am not convinced that the standard currently utilized by either the First District or the Second District to determine the harmfulness of a scoresheet error is the optimal standard. I believe there is a middle ground that would be a better standard to determine whether a scoresheet error warrants resentencing. This issue is important because it affects virtually all scoresheet errors for offenses , committed after 1993.

In the era when scoresheets had cells, a scoresheet error was treated as harmless error if the error was insufficient to move the sentence from one cell to another. See Sellers v. State, 578 So.2d 339 (Fla. 1st DCA 1991); see also Fla. R.Crim. P. 3.988(c). Because most cells contained a range of twenty or more points, it was common for an error of fifteen points to be harmless, while an error of more than twenty-five points was usually harmful.

In 1994, the law changed and cells were replaced by a sentencing system that permitted the trial court to adjust a sentence upward or downward twenty-five percent from a term of months established by the scoresheet. Thus, the scoresheet created one broad cell for use in most cases. Under this system, a one-point error entitles a prisoner to relief if he or she received the maximum permissible sentence. Alternatively, depending upon the test used to determine harmfulness, a large error can entitle a prisoner to no relief if he or she received a sentence in the middle or lower portion of the range.

In 1998, the law changed again. Under the new Criminal Punishment Code, if a sentence of imprisonment is authorized, the maximum sentence is never less than the statutory maximum and the scoresheet determines the lowest permissible sentence in the absence of a reason for a downward departure sentence. See § 921.002, Fla. Stat. (Supp.1998); see also Fla. R.Crim. P. 3.704.

If one relies on Heggs, 759 So.2d at 627, to determine the harmfulness of a score-sheet error, then under the 1994-95 law the error must often be very large before it is harmful. Under the Criminal Punishment Code, the sentence would have to exceed the statutory maximum before it was deemed harmful. In essence, the scoresheet,.error is harmful only if it renders the sentence facially illegal. This standard seems too high. It compels prisoners to serve sentences that were entered in error and that would almost certainly not have been entered if the trial judge had relied upon a correct scoresheet.

On the other hand, this court’s decisions in Voss, 808 So.2d at 282-83, Collins, 800 So.2d at 661, and Bigham, 841 So.2d at 645, arguably apply a DiGuilio standard in the context of a postconvietion proceeding. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Those decisions prohibit the trial court from denying a postconviction motion unless the attachments show conclusively that the trial judge would have imposed the same sentence despite the error. On direct appeal, the State is required to prove that a preserved sentencing error was harmless beyond a reasonable doubt. See Johnson v. State, 855 So.2d 1157 (Fla. 4th DCA 2003). This is a reasonable standard on direct appeal. However, in the context of a postconviction motion, the defendant should have a threshold burden to establish that an error was harmful.

The courts cannot impose a structure of cells upon the more recent sentencing systems. It seems to me, however, that we might establish a level of error at which the sentencing was presumptively harmful. In this case, for example, the midpoint of the range under the scoresheet used at sentencing was 109 months. The correct midpoint was ninety-two months. His sentence was ninety months. The seventeen-point shift in the midpoint is an error of about fifteen percent on the first score-sheet. That is enough to convince me that it is probable that the trial judge would have imposed a lesser sentence had he used a correct scoresheet. I would suggest that any scoresheet error that reduced the midpoint of the scoresheet by ten percent or more should be treated as presumptively harmful with the burden placed on the State to establish that the error was harmless beyond a reasonable doubt. On the other hand, any error less than ten percent should be treated as presumptively harmless with the burden placed upon the defendant to establish that the error was actually harmful in his or her case.

      . I would note that if the supreme court decides to adopt the First District’s approach to these cases, it can soon remove the reference to an "incorrect calculation" from Florida Rule of Criminal Procedure 3.800(a) because the only calculations that will be subject to correction will be those that also produce an illegal sentence for purposes of rule 3.800(a).


author: STRINGER, Judge.

text:
    Enden A. REED, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2696.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2004.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Enden A. Reed seeks review of the judgment and sentence entered after the trial court found Reed in violation of his probation. Reed argues that the court abused its discretion in determining that he willfully and substantially violated conditions two, nine, twenty-four, and twenty-seven of his probation. We agree and reverse.

Condition two

The State charged that Reed violated condition two by being $555.30 behind in payments for costs of supervision and by failing to maintain full-time employment. Reed’s probation officer testified that Reed owes $555.30 for costs of supervision, but the State did not provide any testimony to show that Reed had the means to pay these costs. Reed testified that he did not have the means to pay his costs of supervision because he was unemployed and his rent was $400 per month. He also testified that he had no electricity or car and that he was receiving food stamps.

A violation of probation must be willful and substantial to warrant revocation of probation. Glasier v. State, 849 So.2d 444, 445 (Fla. 2d DCA 2003). When the State seeks to prove a violation of probation for failure to pay costs of supervision, it must offer evidence of the defendant’s ability to pay to show that the violation was willful. Id. at 445; Stevens v. State, 823 So.2d 319, 322 (Fla. 2d DCA 2002). It is not sufficient for the State to merely provide evidence of the amount the defendant is in arrears. Id. In this case, the State presented no evidence aside from Reed’s probation officer’s testimony regarding the amount he was in arrears on his costs of supervision. Therefore, the trial court abused its discretion in finding that Reed had violated his probation for being $555.30 behind in payments for costs of supervision.

A probation condition requiring a defendant to maintain full-time employment is fundamental error because factors out of the defendant’s control could prevent completion of this requirement. See White v. State, 619 So.2d 429, 431 (Fla. 1st DCA 1993); Evans v. State, 608 So.2d 90, 91 (Fla. 1st DCA 1992); Walls v. State, 596 So.2d 811, 812 (Fla. 4th DCA 1992). A trial court may not revoke probation for violation of a condition that is invalid. White, 619 So.2d at 431. Accordingly, the trial court abused its discretion in finding that Reed had violated his probation for failing to maintain full-time employment.

Condition nine

The State charged that Reed violated condition nine by failing to work diligently and at a lawful occupation. The record reflects that, since May 2002, Reed has been actively seeking employment and has in fact held two separate positions over several months. Reed was terminated from one of his positions for requesting time off to attend a funeral, and the second place of employment had no full-time positions available. Although Reed was unemployed at the time the affidavit of violation of probation had been filed, he was attending a vocational school. Therefore, any violation of probation for Reed’s failure to “work diligently at a lawful occupation” is not willful.

Condition twenty-four

The State charged that Reed violated condition twenty-four by being $2650 behind on his child support payments for his daughter to his ex-wife. However, the trial court found that Reed violated his probation by failing to provide support for a child different from the one named in the affidavit of violation of probation. Accordingly, the trial court abused its discretion in finding that Reed had violated condition twenty-four of his probation.

Condition twenty-seven

The State charged that Reed violated condition twenty-seven by having two unexcused absences from sex offender counseling and being $550 behind in payments for sex offender counseling. Condition twenty-seven of Reed’s probation requires that he “enter, participate, and successfully complete sex offender treatment as directed by the court.” Reed’s probation officer testified, and Reed admitted, that he missed two sessions of his sex offender counseling in October and November 2002. However, there was no testimony that Reed had been discharged from the program or had otherwise stopped attending sessions. Reed testified that he missed the two group meetings because he was at the hospital and dentist. His mother corroborated his testimony. Reed also testified that he showed the therapist in charge of his group his doctors’ notes and believed the therapist had excused the absences. Reed’s absence from a few sessions, without more, does not give rise to a willful and substantial violation of probation. See Lynom v. State, 816 So.2d 1218, 1220 (Fla. 2d DCA 2002).

As for Reed’s failure to make the payments for sex offender counseling, the State presented no evidence aside from Reed’s probation officer’s testimony regarding the amount he was in arrears on his payments for sex offender counseling. Accordingly, the trial court abused its discretion in finding that Reed had violated his probation based on his sex offender payment arrearage. Glasier, 849 So.2d at 445; Stevens, 823 So.2d at 322.

Because the trial court abused its discretion in determining that Reed willfully and substantially violated conditions two, nine, twenty-four, and twenty-seven of his probation, we reverse Reed’s judgment and sentence.

Reversed.

NORTHCUTT and COVINGTON, JJ., Concur.

      . This is in contrast to the lawful requirement that the defendant seek full-time employment. See Vezina v. State, 644 So.2d 602, 603 (Fla. 1st DCA 1994).

      . Reed was placed on probation in August 1999, but the probation officer who testified took over his case in May 2002.


author: SALCINES, Judge.

text:
    Allen Paul EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2668.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2004.
   SALCINES, Judge.

Allen Paul Edwards challenges the order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Edwards raises four grounds for relief. We affirm without comment three of his claims, reverse the remaining claim, and remand.

In 2000, Edwards was convicted of four counts of burglary of a dwelling and was sentenced as a prison releasee reoffender to consecutive terms of fifteen years in prison. This court affirmed his convictions and sentences without prejudice to his filing a postconviction motion alleging ineffective assistance of counsel because counsel failed to preserve several issues for review. Edwards v. State, 788 So.2d 1108 (Fla. 2d DCA 2001). In 2002, Edwards filed a petition for writ of habeas corpus which was treated as a petition alleging ineffective assistance of appellate counsel. This court denied the petition in an order which stated the following:

As the State properly acknowledges, petitioner’s prison releasee reoffender sentences for multiple counts of burglary of an unoccupied dwelling are illegal under State v. Huggins, 802 So.2d 276 (Fla.2001). Petitioner is therefore entitled to be resentenced on all four burglary convictions. However the error has never been raised in the trial court. We therefore conclude that the proper method for petitioner to obtain relief is by motion to correct illegal sentence filed in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(a).

Edwards claims that he filed such a motion in the trial court, but he concedes that he may have mailed it to the wrong address as he has never received anything from the trial court. On May 6, 2003, he filed this motion pursuant to rule 3.850.

Edwards now alleges that his sentences are illegal under Huggins because the Prison Releasee Reoffender statute did not allow enhancement when the dwelling was unoccupied, as in this case. The trial court denied relief stating “the written sentences do not indicate that they were imposed pursuant to the provisions of the prison releasee reoffender statute and the fifteen year sentence was not a departure sentence pursuant to the applicable provision of the criminal punishment code, section 921.002(g), Fla. Stat. (1999).” The transcript of the sentencing proceeding indicates that this is not correct and reveals that prison releasee reoffender sentences were imposed.

Because Edwards was sentenced as a prison releasee reoffender for the burglaries of unoccupied dwellings, his sentences as a prison releasee reoffender are illegal. See State v. Huggins, 802 So.2d 276 (Fla.2001). Accordingly, we reverse the order of the trial court and remand for resen-tencing pursuant to Huggins.

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

STRINGER and KELLY, JJ„ Concur.


author: WALLACE, Judge.

text:
    Neil H. SANDERS, II, Appellant, v. Gracie Murray LAIRD, Appellee.
    No. 2D03-2374.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2004.

      Stanford R. Solomon of The Solomon TroPP Law GrouP’ RA'> TaraPa’ for APPel" ^arR..
    Christopher L. Griffin of Foley & Lardner> Tampa; for Appellee,
   WALLACE, Judge.

After finding Neil H. Sanders, II, in civil contempt for failing to comply with the support provisions of a final judgment dissolving his marriage to Gracie Murray Laird, the circuit court issued an amended writ of bodily attachment directed to any and all law enforcement agencies in the United States commanding them to arrest Sanders and hold him for transportation to Tampa, Florida. Pursuant to Florida Rule of Appellate Procedure 9.040(c), we choose to treat Sanders’ appeal as a petition for writ of prohibition. We grant the petition because the circuit court exceeded its authority by issuing a writ of bodily attachment intended to have nationwide applicability.

Facts and Procedural History

The parties were divorced on May 3, 1994, in Hillsborough County, Florida. This case represents the sixth appearance of the parties in this court. On December 19, 2001, the circuit court entered the Order on Hearing of October 29, 2001. This order provided, in pertinent part:

8. The court finds that the former husband [Sanders] is in civil contempt of this court for his willful refusal to comply with his court ordered obligations to pay permanent alimony for support to the former wife [Laird], and for failing to maintain the life insurance coverage on his life as required by the amended final order.
9. The former husband is again ordered to immediately comply with all provisions of the amended final order. Failing his full and complete compliance with same within ten days from the entry of this order the court shall issue a writ of bodily attachment for the arrest of the former husband to determine an appropriate sentence and sanction for this contempt of court. The principal balance of the unpaid alimony accruing through June of 1999 in the amount of $95,718.17 is bearing simple interest at the legal rate, currently 11 percent annually, or $877.42 per month.

Sanders, who lives in Ohio, apparently failed to comply.

On May 21, 2003, the circuit court issued the amended writ of bodily attachment that is the subject of this case. Omitting the caption, formal parts, and information intended to assist law enforcement personnel in identifying Sanders, the amended writ is set forth in full below:

AMENDED WRIT OF BODILY ATTACHMENT
TO: ANY AND ALL LAW ENFORCEMENT AGENCIES IN THE UNITED STATES
You are hereby commanded to arrest Neil H. Sanders, II, if he can be found in your county, or jurisdiction, and to have him held for transportation so that he can appear before the undersigned Judge of our Circuit Court, Civil Division, in and for Hillsborough County, Florida, at the Court House in Tampa, Florida to answer unto the Order on Hearing of October 29, 2001.
And have you there and then this Writ.
Service and execution of this Writ may be made on any day of the week and any time of the day or night.
Bond fixed at $144,648.60.

Prohibition

Sanders contends that the circuit court is attempting to act in excess of its authority by issuing a writ of bodily attachment intended to be served outside the State of Florida. “Prohibition is an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside its jurisdiction.” Mandico v. Taos Constr., Inc., 605 So.2d 850, 853 (Fla.1992). When it is shown that a lower court is without jurisdiction or attempting to act in excess of its jurisdiction, prohibition may be granted. English v. McCrary, 348 So.2d 293, 296 (Fla.1977). “Prohibition will be invoked only in emergency cases to forestall an impending present injury where person seeking writ has no other appropriate and adequate legal remedy.” Id. at 297.

In this case, we are informed that the circuit court entered an order staying the execution and enforcement of the amended writ simultaneously with its issuance pending review in this court. If the circuit court lifts the stay and directs the execution and enforcement of the writ, Sanders may sustain injury resulting from an unauthorized arrest and incarceration in Ohio or other jurisdiction outside the State of Florida for which he has no other appropriate and adequate legal remedy. Because of the damage to Sanders which is likely to follow the circuit court’s proposed course of action without authority of law, it is appropriate to issue the writ of prohibition. See McCrary, 348 So.2d at 297.

Writs of Bodily Attachment

Florida Family Law Rule of Procedure 12.615(e) contemplates the use of the writ of bodily attachment to bring before the court a contemnor who has failed to comply with the purge provisions of a civil contempt order. The use of the writ is constitutional if the person is brought before the court within forty-eight hours and the court finds that the contemnor still has the ability to comply with the purge provision before ordering incarceration. See Amendments to the Florida Family Law Rules of Procedure, 723 So.2d 208, 212-15 (Fla.1998); Dep’t of Revenue v. Meade, 827 So.2d 1093, 1094 (Fla. 2d DCA 2002). The statutory provisions, governing the issuance of a writ of bodily attachment in connection with a court-ordered support obligation appear in section 61.11(2), Florida Statutes (2002). See generally Michael R. Walsh, Enforcement in Florida Proceedings After Dissolution of Marriage § 3.29 (Fla. Bar CLE 6th ed.2002).

The Question of Extraterritorial Jurisdiction

The parties have not directed our attention to, and our independent résearch has not disclosed, any Florida case that addresses the question of whether a Florida circuit court has the authority to issue a writ of bodily attachment to be executed and enforced outside the State of Florida. In this regard, the very brief decision in the case of Bess v. Reno, 563 So.2d 95 (Fla. 3d DCA 1990), is of some interest. In Bess, the Third District held that a trial court did not err in “refusing, in effect, to mandamus the state attorney to institute extradition proceedings to enforce a. prior court order for bodily attachment issued in a post dissolution of marriage proceeding involving delinquent alimony and child support payments.” Id. at 96. In its opinion in Bess, the Third District did not address the authority of the circuit court to issue a writ of bodily attachment with extraterritorial effect. Therefore, we turn to an examination of the provisions of section 61.11(2) for additional guidance.

A review of section 61.11(2) reveals that it contains numerous Florida-specific references. First, section 61.11(2)(a) requires that the writ must include “information on the respondent’s physical description and location as is required for entry of the writ into the Florida Crime Information Center telecommunications system.” Pursuant to subsection (c):

Upon receipt of a writ from the clerk of the court, the sheriff [of the county in which the writ is issued] shall enter the information on any unserved writ into the Florida Crime Information Center telecommunications system to make the information available to other law en-foreement agencies within the state. The writ shall be enforceable in all counties of the state.

Further, the statute gives specific directions to Florida law enforcement regarding payments to purge civil contempt:

(d) Upon receipt of the purge payment, the receiving agency shall provide the subject with a written receipt acknowledging such payment, which must be carried on the person of the respondent for a period of at least 30 days from the date of payment as proof of such payment. A sheriff receiving such payment shall forward the funds to the sheriff who entered the information about the writ into the Florida Crime Information Center telecommunications system and who shall forward the funds to the appropriate clerk of court.
(e) After a writ is modified, purged, recalled, terminated, or otherwise rendered ineffective by ruling of the court, the clerk of the court shall notify the sheriff receiving the original writ. That agency shall modify or cancel the entry in the Florida Crime Information Center telecommunications system in accordance with such notification.

§ 61.11(2)(d), (e). In light of these repeated Florida-specific directions, the execution and enforcement of a writ of bodily attachment in compliance with the statutory directives would be impossible of performance outside the State of Florida. For this reason, we conclude that section 61.11(2) must be construed as limiting the authority of the circuit courts to issue writs of bodily attachment to within the State of Florida.

We find additional support for our conclusion in the statutory mechanism for Florida law enforcement agencies to be notified once the writ is rendered ineffective so that the contemnor is not subject to repeated arrest on the same writ once the contempt has been purged. Such a mechanism does not exist for authorities outside Florida. One may imagine the following-scenario if the stay of the execution and enforcement of the writ were to be lifted in this case: Sanders could be arrested in Ohio, brought to Tampa expeditiously, and immediately purge his contempt. Upon his return to Ohio — or travel anywhere else in the United States — Sanders would be subject to arrest by law enforcement agencies ignorant of his purge. In that event, Sanders would be unjustly deprived of his liberty until the arresting agency might contact the appropriate Florida agency to inquire concerning the status of the writ. Therefore, section 61.11(2) should be construed to limit the authority of the circuit courts to issue writs of bodily attachment to within Florida so as not to diminish the statute’s procedural safeguards against an unwarranted arrest.

The legislature may set forth or limit by statute the sanctions circuit courts may use to punish contempt as long as the legislature does not eliminate the ability of circuit courts to apply the inherent power of contempt. Walker v. Bentley, 678 So.2d 1265, 1267 (Fla.1996) (citing A.A. v. Rolle, 604 So.2d 813, 815 (Fla.1992)). In Walker, the supreme court found that the legislature intruded upon judicial power when it enacted legislation purporting to divest courts of the power to impose indirect criminal contempt sanctions for specific conduct. By contrast, section 61.11(2) does not intrude upon inherent judicial power to impose civil contempt sanctions in connection with court-ordered obligations. Rather, it is a valid limitation on judicial authority over the manner of enforcing civil contempt sanctions by the use of a writ of bodily attachment.

Conclusion

We conclude that the circuit court exceeded its authority pursuant to section 61.11(2) in issuing a writ of bodily attachment intended to be executed and enforced outside the State of Florida. Accordingly, the circuit court is prohibited from lifting the stay of the execution and enforcement of the amended writ and from taking any other action that would give force and effect to the amended writ. Further, the circuit court is prohibited from issuing or enforcing any writ of bodily attachment providing for the arrest of Sanders outside the State of Florida.

The petition for writ of prohibition is granted.

ALTENBERND, C.J., and KELLY, J., Concur.

      . See Sanders v. Laird, 829 So.2d 219 (Fla. 2d DCA 2002) (table decision); Sanders v. Laird, 736 So.2d 1192 (Fla. 2d DCA 1999) (table decision); Sanders v. Laird, 722 So.2d 202 (Fla. 2d DCA 1998) (table decision); Sanders v. Laird, 677 So.2d 905 (Fla. 2d DCA 1996); Sanders v. Laird, 636 So.2d 515 (Fla. 2d DCA 1994) (table decision).

      . Sanders did not appeal the Order on Hearing of October 29, 2001, and the propriety of that order is not before us. However, in order that an omission to discuss the matter will not be interpreted as indicating approval, we merely note that the order fails to comply with Florida Family Law Rule of Procedure 12.615 in several material respects. See generally Marconi v. Walther, 819 So.2d 936 (Fla. 2d DCA 2002); Giallanza v. Dep’t of Revenue, 799 So.2d 256 (Fla. 2d DCA 2001); Bresch v. Henderson, 761 So.2d 449 (Fla. 2d DCA 2000). We also observe that the circuit court cannot impose a "sentence” as a sanction for a civil contempt. If the court orders incarceration or another coercive sanction as a means to seek compliance with a court order in a civil contempt proceeding, it must provide the contemnor with an opportunity for the purge of the contempt based on the con-temnor’s present ability to pay. Fla. Fam. L.R.P. 12.615(d)(2), (e); Marconi, 819 So.2d at 938; Bresch, 761 So.2d at 450-51. In the context of the enforcement of a court-ordered support obligation, a sentence of imprisonment or other sanctions may properly be imposed only for an indirect criminal contempt. See Fla. R.Crim. P. 3.840; Blalock v. Rice, 707 So.2d 738, 741 (Fla. 2d DCA 1997). See generally Bowen v. Bowen, 471 So.2d 1274 (Fla.1985) (discussing the differences between civil contempt and indirect criminal contempt in the enforcement of court-ordered support obligations).


text:
    Dorothy FLOYD, Appellant, v. AREA HOUSING COMMISSION, Appellee.
    No. 1D03-5118.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.
    Dorothy Floyd, pro se, appellant.
    J. Lofton Westmoreland of Moore, Hill & Westmoreland, Pensacola, for appellee.
   PER CURIAM.

DISMISSED. Jones v. Cannon, 750 So.2d 108 (Fla. 1st DCA 1999).

WOLF, C.J., ERVIN and WEBSTER, JJ., concur.


text:
    Samuel LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4306.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Arrowood, v. State, 843 So.2d 940, 941 (Fla. 1st DCA 2003) (observing that a jury’s finding of DUI with serious bodily injuries supports the imposition of severe victim injury points).

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    William Thomas BEDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2481.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse the trial court’s summary denial of the appellant’s facially sufficient postconviction claim that his trial counsel was ineffective for failing to investigate evidence that the appellant asserts would have proven his innocence. On remand, the trial court should either hold an evi-dentiary hearing or attach record excerpts sufficient to refute the appellant’s claims.

ERVIN, DAVIS and BROWNING, JJ, concur.


text:
    ORANGE COUNTY PUBLIC SCHOOLS and United Self Insured Services, Petitioners, v. Ramon CRUZ, Respondent.
    No. 1D04-0003.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.
    Kimberly L. George of Moore, Peterson & Zeitler, P.A, Orlando, for petitioners.
    No appearance for respondent.
   PER CURIAM.

DENIED. Petitioners have failed to establish that they have suffered irreparable harm that cannot be remedied on direct appeal. Accordingly, the petition for writ of certiorari is denied.

ERVIN, BARFIELD and POLSTON, JJ., concur.


text:
    Joseph K. NAUGHTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-636.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2004.
    Nancy Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant in this direct criminal appeal challenges his convictions and sentences for three counts of attempted second degree murder. The appellant’s convictions and sentences are affirmed, but this case is remanded for the trial court to correct the written sentencing documents to reflect that all counts are to be served concurrently, as orally pronounced by the trial court.

ALLEN, WEBSTER and BENTON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    David MARTY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3560.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2004.
   NORTHCUTT, Judge.

David Marty appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

Marty pleaded guilty to aggravated assault, attempted manslaughter, shooting at, within, or into a building, and minor in possession of a firearm. He was subsequently sentenced to a three-year minimum mandatory prison term for the aggravated assault count and received five years probation, to run concurrently, on the counts of attempted manslaughter and shooting at, within, or into a building. He received county jail with time served on the minor in possession of a firearm charge. On May 29, 2002, Marty admitted to a violation of the terms of his probation for the counts of attempted manslaughter and shooting at, within, or into a building. The trial court then sentenced him to 81.35 months in prison, which was the minimum sentence within the calculations of the sentencing guidelines scoresheet.

Marty claims his scoresheet was improperly calculated because it incorrectly listed his May 29, 1998, conviction for aggravated assault as an additional offense. This resulted in an additional eighteen points being improperly added to his scoresheet. The trial court admits this error and asserts that because the corrected score-sheet would result in a range between 67.95 and 113.25 months, the sentence of 81.35 months imposed on Marty is legal because it is still within the sentencing guidelines. There is nothing in the record to conclusively demonstrate that Marty would have received 81.35 months under the corrected sentencing guidelines. Therefore, Marty is entitled to be resen-tenced using an accurate scoresheet. See Walker v. State, 807 So.2d 177 (Fla. 2d DCA 2002).

Accordingly, we reverse and remand for the trial court to resentence Marty under the corrected scoresheet.

Reversed and remanded.

SALCINES and KELLY, JJ., Concur.


text:
    Lisa Marie LEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3655.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hornbuckle v. State, 864 So.2d 1203 (Fla. 5th DCA 2004).

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


text:
    Wayne Settle MARECLE, Appellant, v. Sandra Kay MARECLE, Appellee.
    No. 5D02-4061.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.
    David E. Olson of David E. Olson, P.A., New Port Richey, for Appellant.
    William Whitehead, III, Brooksville, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

THOMPSON, PLEUS and PALMER, JJ., concur.


text:
    Johnny GREER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-828.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.
    James B. Gibson, Public Defender, and Thomas L. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ndow v. State, 864 So.2d 1248 (Fla. 5th DCA 2004).

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


text:
    Gary BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1652.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Gore v. State, 552 So.2d 1185 (Fla. 5th DCA 1989).

PETERSON, PALMER and ORFINGER, JJ., concur.


text:
    Curtis HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2001.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.
    Curtis Hamilton, Lowell, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Edwards v. State, 760 So.2d 226 (Fla. 5th DCA 2000).

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


text:
    Carl D. MEINTZER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2288.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Carl Meintzer, Jr., Jasper, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Lynch v. State, 293 So.2d 44 (Fla.1974).

GRIFFIN, PALMER and MONACO, JJ., concur.


text:
    Sean JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2529.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Sean Johnson, Cocoa, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Tony L. POOLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-227.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.

      Tony L. Poole, Orlando, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Poole v. State, 798 So.2d 748 (Fla. 5th DCA 2001); Poole v. State, 845 So.2d 215 (Fla. 5th DCA 2003); and Poole v. State, 848 So.2d 339 (Fla. 5th DCA 2003).

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


text:
    Roger D. HOGLAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-373.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2004.
    Roger D. Hoglan, Okeechobee, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Nowell v. State, 742 So.2d 345 (Fla. 5th DCA 1999); Dennis v. State, 754 So.2d 857 (Fla. 3d DCA 2000).

SHARP, W., THOMPSON and MONACO, JJ., concur.


text:
    Samantha STEVINS, Petitioner, v. COLLIER COUNTY, Respondent.
    No. 2D03-2077.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2004.
    Samantha Stevins, pro se.
    Jennifer A. Belpedio, Office of the County Attorney, Naples, for Respondent.
   PER CURIAM.

Samantha Stevins has filed a petition for writ of certiorari seeking review of the trial court’s order vacating a prior order appointing Stevins as private counsel for an indigent defendant. The order under review is a final order because it conclusively determines the parties’ rights and requires no further judicial action. Therefore, pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat the petition for writ of certiorari as a final appeal subject to review under Florida Rule of Appellate Procedure 9.030(b)(1)(A). See State v. Gaines, 770 So.2d 1221 (Fla.2000) (discussing the test employed by an appellate court to determine the finality of an order). We affirm the order.

Stevins was a part-time employee of the Public Defender of the Twentieth Judicial Circuit. As part of her duties for the public defender, she was assigned to represent one of the defendants in a racketeering case that went to trial in Collier County. During the period of time Stevins was employed by the public defender, she asked the trial court to appoint her to represent the indigent defendant as private counsel, and the court entered such an order. The record reveals that Stevins was not appointed as private counsel at the inception of the case, nor did the public defender’s office seek to withdraw from the case before Stevins filed her motion for appointment. Therefore, the order appointing Stevins as private counsel in the case was not authorized. See Escambia County v. Behr, 384 So.2d 147 (Fla.1980); see also §§ 27.53(2)-(3), .54(4), Fla. Stat. (2002). Because there was no legal basis for the court’s appointment of Stevins to the case, we conclude that the trial court did not err in correcting its prior action. Accordingly, we affirm the order vacating the prior order appointing Stevins as counsel.

Affirmed.

DAVIS, SILBERMAN, and WALLACE, JJ„ Concur.


author: COVINGTON, Judge.

text:
    Troy E. DANIEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1514.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2004.
    James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   COVINGTON, Judge.

Troy E. Daniel appeals the trial court’s denial, without an evidentiary hearing, of a motion to withdraw a guilty plea. Daniel’s motion alleged that his trial counsel misad-vised him regarding sentencing. Because the record fails to show that Daniel is not entitled to relief, we reverse and remand for an evidentiary hearing. See Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003) (citing State v. Leroux, 689 So.2d 235, 237 (Fla.1996)). Since a motion to withdraw a plea pursuant to rule 3.170(i) is a “critical stage” in which the defendant is entitled to effective assistance of counsel, Brown v. State, 835 So.2d 402, 403 (Fla. 2d DCA 2003), we remand with directions that the trial court appoint conflict-free counsel for the evidentiary hearing.

Reversed and remanded.

SALCINES and WALLACE, JJ, Concur.


text:
    Gerardo GARCIA, Appellant, v. HUMANA MEDICAL PLAN, INC., Appellee.
    No. 3D03-421.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2004.

      Lyons & Farrar and L. Daniel Ferrer, Coral Gables, for appellant.
    Conrad & Scherer and Vanessa A. Reynolds and Susanne E. Reidhammer, Fort Lauderdale, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

We reverse the trial court’s entry of final summary judgment and remand the cause for reconsideration by the trial court in light of Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842 (Fla.2003), which was not available to the trial court at the time of entry of the final summary judgment.

Reversed and remanded.


text:
    Alan LIEBERMAN and Diane Lieberman d/b/a Angler Hotel Partners, Appellants, v. PIANETA MIAMI, INC., a Florida Corporation, Appellee.
    No. 3D03-462.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2004.
    Greenberg Traurig, P.A., and Alan T. Dimond, and Elliot H. Scherker, and Elliot B. Kula, Miami, and Lisa J. Jama, for appellants.
    Broad and Cassel, and Franklin Zemel, and John Cooney, Fort Lauderdale, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., Jr., Senior Judge.
   PER CURIAM.

This is an appeal from a final judgment after a jury trial against appellants/defendants, Alan and Diane Lieberman, quieting title, granting ejectment and finding appel-lee/plaintiff, Pianeta Miami, Inc., liable for unjust enrichment. The trial court reserved jurisdiction for a trial to determine the amount of unjust enrichment. For the reasons given below, we affirm.

The Liebermans argue on appeal that the jury was unduly influenced by admission of references to (1) Mr. Lieberman’s 1984 criminal conviction for Medicaid fraud and (2) his net worth. Assuming arguendo that the reference to either of these matters was error, we conclude that the Lie-bermans were not prejudiced by them. The fraud conviction was mentioned only once during the three-week trial and was not a feature of the trial. As to the revelation of Lieberman’s net worth, we find that it was not prejudicial when viewed in the context of other testimony heard by the jury. We conclude that there is no reasonable possibility that the claimed errors contributed to the verdict and therefore find them to be harmless. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Pianeta cross-appeals the trial court’s directed verdict in favor of the Liebermans on its fraud claim and the court’s summary judgment for the Liebermans on its negligence claim. We find no merit in Piane-ta’s cross-appeal and affirm.

Affirmed.


text:
    Dedrick T. ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2171.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2004.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Foxx v. The State of Florida, 680 So.2d 1064 (Fla. 3d DCA 1996).


text:
    Kathy M. LAYFIELD, Appellant, v. Jerrold A. WISH, et al., Appellees.
    No. 3D03-2964.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2004.
    Greenberg Traurig, P.A., and Stacey P. Dougan, Miami; and Richard J. Preira, Miami Beach; and Kathy M. Layfield, for appellant.
    Keith D. Diamond, P.A., and Keith D. Diamond, Miami, for appellees.
    Before GERSTEN, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

The Petition for Writ of Certiorari is treated as a Notice of Appeal and the decisions of the circuit court releasing monies to Intervenor and denying the motion for rehearing are affirmed.


author: LEVY, Judge.

text:
    The STATE of Florida, Appellant, v. Antonio Ramon RODRIGUEZ, Appellee.
    No. 3D02-1292.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2004.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellant.
    Humberto R. Dominguez, Miami, for ap-pellee.
    Before SCHWARTZ, C.J., LEVY and SHEVIN, JJ.
   LEVY, Judge.

The State of Florida appeals from a sentence imposed pursuant to a plea to a lesser included offense. We reverse.

On September 15, 2000, the State filed an Information against the Defendant, charging him with one count of cannabis trafficking. The Defendant entered a plea of no contest to the lesser included offense of possession of marijuana with intent to deliver. The trial court found the Defendant guilty, withheld adjudication, and imposed one year of community control followed by one year of probation. The Defendant was required to perform 300 hours of community service with the possibility of converting the last six months of community control to probation. This appeal follows.

The State contends that the trial court erred in accepting a plea to the lesser included offense without the consent of the prosecutor. We agree. Florida Rule of Criminal Procedure 3.170(h) states that a defendant “may plead guilty to any lesser offense than that charged that is included in the offense charged in the indictment or information or to any lesser degree of the offense charged” with the consent of the trial court and of the prosecutor. The Record does not indicate any agreement by the State to the reduced charge. Thus, the trial court improvidently accepted the plea to the lesser included offense absent consent from the State. Accordingly, this case is reversed and remanded to the trial court for proceedings consistent with this Opinion.

Reversed.


text:
    James ABERCROMBIE and Erin Abercrombie, Appellants, v. POLK COUNTY, a political subdivision of the State of Florida; Florida Leisure Communities Corporation, a Florida corporation; and The Huntington National Bank of Florida, a national banking corporation, as trustee of the Ralph L. Fletcher Rollover Individual Retirement Account, Appellees.
    No. 2D03-4738.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2004.
    Denise N. Murphy of Hardin & Murphy, P.A., Lakeland, for Appellants.
    Anne T. Gibson, Assistant County Attorney, Bartow, for Appellee Polk County.
    Amanda Peralta Jarret and Natasha S.W. Rieger of Clark, Campbell & Ma-whinney, P.A., Lakeland, for Appellee Florida Leisure Communities.
    No appearance for Appellee The Huntington National Bank of Florida.
   PER CURIAM.

This matter is converted to a petition for writ of certiorari which we deny on the merits.

SALCINES, COVINGTON, and WALLACE, JJ., Concur.


author: GUNTHER, J.

text:
    Edmund SHIBBLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4035.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   GUNTHER, J.

Edmund Shibble was convicted of two counts of aggravated battery with a deadly weapon and sentenced to two fifteen-year consecutive sentences of imprisonment. He appeals his convictions and sentences on two grounds, including one asserting a discovery violation related to the impeachment of an expert witness. We find only this ground of merit, and will discuss it in this opinion.

On July 31, 2000, Shibble was living at Lakeside Apartments in Fort Lauderdale. Shibble was regularly disruptive at the complex, and following a yelling incident around 8:00 p.m., Lakeside Management determined that it was necessary to evict Shibble. At 11:00 p.m., Lakeside manager Richard Abravaya went to Shibble’s apartment to notify him that he was being evicted. Tenant Joseph Churchville accompanied Abravaya for unclear reasons. Abravaya knocked on Shibble’s door and called his name, but received no response. Abravaya heard loud noises emanating from the apartment so he increased the volume of his knocking. Shibble’s roommate, Derrick Hoven, opened the door with Shibble standing next to him. Shib-ble then stabbed Abravaya and Church-ville before either entered the apartment.

At trial, Shibble raised an insanity defense. Shibble called Dr. Michael Walczak to testify as an expert in forensic neurop-sychology. Following review of medical records and eight hours of examination, Walczak testified that he concluded Shib-ble suffered from several mental conditions and was insane at the time of the stabbings. Walczak was the only expert scheduled to be called by Shibble in support of his insanity defense.

On cross-examination, the State questioned Walczak as follows:

PROSECUTOR: What about recommending doctors that would support your own position? Have you ever done that?
WALCZAK: No. I recommended doctors that I know have knowledge of the things we’re talking about in certain types of injuries. I never recommend doctors because I believe they would support my opinion.
PROSECUTOR: What about recommending doctors because you believe that they might support your opinion in providing a positive outcome for somebody?
WALCZAK: No.
PROSECUTOR: Never done that?
WALCZAK: No. As a matter of fact, I would refer somebody to an EEG specialist because I know that person has specialty in that area, which is what I wanted to do in this case here.

The State then began questioning Walczak about his evaluation of a defendant in an unrelated case, Nigel Dickson. The prosecutor had obtained a copy of Walczak’s confidential report regarding Dickson from Dickson’s attorney, as she was also prosecuting Dickson’s case.

In further questioning Walczak about whether it was never his practice to recommend doctors who would give positive outcomes for his clients, the prosecutor attempted to have Walczak identify the Dickson report as one he had prepared and signed. Shibble’s counsel objected to questioning related to the Dickson report on the grounds of relevance and discovery violation. During the bench conference, the trial court, without conducting a Richardson hearing, overruled the objection based on the State’s argument that: (1) the report was no longer confidential and thus discoverable due to Dickson’s disclosure and (2) there is an exception to the Richardson rule for impeachment evidence.

After refreshing Walczak’s recollection with the Dickson report, the prosecutor proceeded to question him about the statement in the Dickson report:

PROSECUTOR: In evaluating Mr. Dickson isn’t it true that you told his attorney at the end that it would be prudent to have other evaluations performed in hope to get a collection of insane reports that you believe is reasonable. You told his attorney the problem he faces is that some doctors may be cursory in their approach and see only the personality disorder, possibly pick up on the attempt to deceive, and ignore the clinical diagnosis that’s present. You then tell his attorney to call you if he needs to know suggestions for doctors that would give him a positive outcome.
WALCZAK: Correct.
PROSECUTOR: It’s still your testimony that you don’t do that?
WALCZAK: It doesn’t come across that way. I spoke with [Dickson’s attorney] about that and told her I was referring her to two psychologists who specialized in that disorder he showed me.
PROSECUTOR: Well, are you disputing the words that are on here?
WALCZAK: No. I’m not disputing the words.
PROSECUTOR: So you could recommend doctors who would provide her with a positive outcome?
WALCZAK: What I believe would be people who understand it versus somebody who would just do a cursory interview.

Shibble’s counsel’s request to place the entire page containing the statement on which this line of questioning was based or the full report in evidence so that the context of Walczak’s statement could be considered was denied.

On re-direct, Walczak explained that the Dickson statement meant that he would refer a defendant to a doctor that would do a full examination, creating a medically-positive outcome for the defendant. Because of the State’s impeachment method, the door was opened for Shibble’s counsel to question Walczak regarding how often he finds a defendant insane. Walczak responded that he averages two insanity diagnoses per year.

The State called Dr. John Spencer as a psychological expert. Spencer testified that he did not review Shibble’s medical records and that he spent only forty-five minutes examining Shibble, but concluded Shibble was not insane at the time of the crime.

In closing argument, the State re-emphasized Walczak’s statement in the Dickson report:

PROSECUTOR: Don’t think for a second that this person who when I showed him his report that he had done on another defendant when he had no idea that would come back to bite him in his behind. I showed him the report. I said did you evaluate this defendant? Yes. Is that your report? Yes. Authored by you? Yes. Did you sign it? Yes. Right there at the bottom if you need recommendations for other doctors that will guarantee — guarantee. That’s a pretty strong word. Guarantee you positive results, let me know. If you need recommendations for other doctors that will guarantee you a positive result, let me know. Should you believe anything he said?

During deliberations, the jury requested a copy of the page of the Dickson report containing Walczak’s statement, but was not permitted to review the page because it had never been admitted into evidence. The jury then convicted Shibble.

Shibble contends that the trial court erred by overruling the objection to the Dickson report, because the use of the report as a basis for cross-examination questioning constituted a harmful discovery violation. Florida Rule of Criminal Procedure 3.220(b)(l)(K) requires the State to disclose any tangible papers intended for use at trial that are not obtained from or do not belong to the defendant. The impact of this discovery violation, or any discovery violation, should be considered at a Richardson hearing. See Acosta v. State, 856 So.2d 1143 (Fla. 4th DCA 2003). There is no exception to the Richardson hearing requirement for impeachment evidence. Portner v. State, 802 So.2d 442, 446 (Fla. 4th DCA 2001); Guerrie v. State, 649 So.2d 928, 929 (Fla. 4th DCA 1995).

The State contends that any error in allowing questioning based on the report or failing to conduct a Richardson hearing was harmless because the impeachment method allowed for testimony that Walc-zak averages two insanity diagnoses per year.

We conclude that the use of the Dickson report as a basis for questioning by the prosecutor was a clear discovery violation, as the report had not been disclosed to the defense and was not taken from the defendant’s possession or belongings in contravention of Rule 3.220(b)(l)(K). As a result, the trial court erred by not conducting a Richardson hearing prior to ruling on the admissibility of the Dickson report.

We recognize that the failure to conduct a Richardson hearing is no longer considered per se reversible error. State v. Schopp, 653 So.2d 1016, 1020 (Fla.1995); Portner, 802 So.2d at 446. However, we conclude, that in this case, the failure to conduct a Richardson hearing was not harmless. As the Florida Supreme Court held:

In determining whether a Richardson violation is harmless, the appellate court must consider whether there is a reasonable possibility that the discovery violation procedurally prejudiced the defense. As used in this context, the defense is procedurally prejudiced if there is a reasonable possibility that the defendant’s trial preparation or strategy would have been materially different had the violation not occurred.

Schopp, 653 So.2d at 1020.

We conclude that there was a reasonable possibility that the Dickson report procedurally prejudiced Shibble because it went to the very heart of his defense. Shibble’s defense strategy was insanity and he selected a single expert witness to support that theory. The prosecutor’s line of questioning purportedly based on a single statement from the Dickson report, never itself read to the jury, enabled Walczak’s credibility to be challenged without any opportunity for preparation to meet the challenge or retain an additional expert to corroborate the insanity defense.

The error cannot be deemed harmless because not only did the prosecutor reemphasize the Dickson statement in closing argument, but also referred to it as a guarantee, a word which was never used during cross-examination. Additionally, the jurors specifically asked to review the report and examine the statement with their own eyes and minds. As a result, it can be assumed that the questioning based on the prosecutor’s interpretation of the statement influenced the jury’s verdict, without Shibble being permitted to introduce the report into evidence so that the context of the expert’s comments could be evaluated by the jury.

Therefore, the State’s reliance on the undisclosed report cannot be considered harmless. We reverse and remand on this point, and affirm in all other respects.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for a new trial.

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

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: PER CURIAM. FARMER, C.J.,

text:
    Lyndell A. WARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4161.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.

      Lyndell A. Ward, Vero Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Lyndell Ward appeals an order denying his pro se motion to correct illegal sentence. The state’s supplementation of the order with portions of the record is insufficient to support the trial court’s summary denial. See Fernandez v. State, 758 So.2d 1199, 1200 (Fla. 4th DCA 2000); Frank v. State, 697 So.2d 584 (Fla. 4th DCA 1997). Accordingly, the order is reversed and remanded for further consideration. See Shaw v. State, 826 So.2d 515 (Fla. 4th DCA 2002). Any subsequent denial shall be supported with attachments of portions of the record refuting the claim.

STONE and GROSS, JJ., concurs.

FARMER, C.J., dissents with opinion.

FARMER, C.J.,

dissenting.

I dissent for two reasons. First, when defendant violated his probation the plea agreement was no longer controlling, and the trial judge was free to resentence defendant to any sentence that might have been lawfully imposed the first time. Second, even if defendant could continue to claim the benefit of a youthful offender plea agreement after violating the ensuing probation, this defendant’s claim of illegal sentence cannot be decided without an evi-dentiary hearing to ascertain whether there was such a plea agreement and establish what it provided. Rule 3.800 does not allow evidentiary hearings on motions to correct illegal sentences thereunder.

My first reason is based on section 948.06(1), authoritatively construed in Poore v. State, 531 So.2d 161 (Fla.1988). Poore was a youthful offender case, like this one. The court made clear there that unless the sentence originally imposed is a true split sentence, under the statute upon violation of probation the court may impose any lawful sentence that might have been handed down at the first sentencing. 531 So.2d at 164. To the same effect is our own decision in Lacey v. State, 831 So.2d 1267 (Fla. 4th DCA 2002), with which today’s decision conflicts. For that reason, the trial judge was free to exceed youthful offender limits when defendant violated his probation. See also Hernandez v. State, 740 So.2d 1245 (Fla. 3d DCA 1999) (upon violation of defendant’s probation, trial court was permitted to impose any sentence it might have imposed at the time of the initial sentence).

Second, even if the above were not applicable the right to youthful offender sentencing is not apparent from the face of the record and thus an evidentiary hearing is necessary to prove up the youthful offender plea agreement. In State v. Callaway, 658 So.2d 983 (Fla.1995), the court held that:

“A rule 3.800 motion can be filed at any time, even decades after a sentence has been imposed, and as such, its subject matter is limited to those sentencing issues that can be resolved as a matter of law without an evidentiary determination.” [c.o.]

658 So.2d at 988; see also Carter v. State, 786 So.2d 1173, 1180 (Fla.2001) (“Because the error in sentencing Carter as a habitual offender for a life felony is apparent on the face of the record, Carter is entitled to relief pursuant to rule 3.800(a).”). If a hearing with evidence is necessary to determine the issue, then the sentence may not be corrected under rule 3.800 as illegal. Callaway, 658 So.2d at 988 (“Resolution of the issue will require an evidentiary determination and thus should be dealt with under rule 3.850 which specifically provides for an evidentiary hearing.”).

Our decisions in Fernandez v. State, 758 So.2d 1199 (Fla. 4th DCA 2000), and Frank v. State, 697 So.2d 584 (Fla. 4th DCA 1997), do not support the conclusion that “the State’s supplementation of the order [denying relief under rule 3.800] is insufficient to support the trial court’s summary denial.” Those cases involved motions under rule 3.850, so they have no bearing on motions under rule 3.800. Under rule 3.800 there is no requirement for orders denying the motion to attach portions of the record refuting it. Nor is there any prohibition on “summary” denials of relief under rule 3.800, as there is under rule 3.850. Indeed all rule 3.800 motions must be summarily acted upon, that is without evidentiary hearing. Callaway, 658 So.2d at 988. In this case, the record on its face supports the sentences.

Shaw v. State, 826 So.2d 515 (Fla. 4th DCA 2002), is an inexplicable eccentricity. The record on its face there did not support a conclusion that the sentence was illegal, so reversal was improper under section 948.06(1) and Poore. Any dictum in Shaw that orders under rule 3.800 require attachment of record portions refuting the motion is similarly in error. We should recede from Shaw.

It is important to remember that there are other ways to attack a sentence besides rule 3.800. A sentence may be erroneous or improper, for example, because defendant did not qualify for a habitual offender sentence. The remedy for this error is a direct appeal or relief under rule 3.850. But erroneous or improper sentences are not illegal sentences within the meaning of rule 3.800 as explained in Carter. 786 So.2d at 1181 (“a sentence is ‘illegal’ if it ‘imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances’....”); see also Callaway, 658 So.2d at 987-88 (“there are three different types of sentencing errors: (1) an ‘erroneous sentence’ which is correctable on direct appeal; (2) an ‘unlawful sentence’ which is correctable only after an eviden-tiary hearing under rule 3.850; and (3) an ‘illegal sentence’ in which the error must be corrected as a matter of law in a rule 3.800 proceeding.”). Unless facts that can be disclosed only in an evidentiary hearing under rule 3.850 show that defendant did not qualify for an enhanced sentence under the habitual offender statutes, such a sentence would be proper and lawful.

The denial of defendant’s motion for relief under rule 3.800 would not itself bar the filing of a rule 3.850 motion for relief from a sentence imposed after a probation violation. State v. McBride, 848 So.2d 287 (Fla.2003) (“[R]ule 3.800 expressly rejects application of res judicata principles to such motions.”). Such a denial would mean only that an illegality was not patent from the record. McBride, 848 So.2d at 292 (“collateral estoppel will not be invoked to bar relief [under rule 3.800] where its application would result in a manifest injustice.”). A defendant might be barred for some other reason from seeking sentencing relief under rule 3.850, but if so the state would have to demonstrate that preclusion when such a motion were filed.

In this case, if defendant’s violation of probation did not eliminate the plea agreement’s youthful offender sentencing, I might have agreed to an affirmance that was without prejudice for the trial court, upon remand, to treat the motion now as an application under rule 3.850 and to proceed accordingly. Because the violation of probation eliminated the plea agreement, however, there is no reason to do so. The trial court must be affirmed.

      . § 948.06(1), Fla. Stat. (2003).


author: STEVENSON, J.

text:
    SAFEGUARD MANAGEMENT, INC. and The Oceanview/Lakeview Trust, Appellants, v. Maria E. PINEDO, Appellee.
    No. 4D01-5070.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Marlene S. Reiss of Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A., Miami, for appellants.
    Raymond Paparella of Spiegel & Utrera, P.A., Miami, for appellee.
   STEVENSON, J.

Appellee, Maria Pinedo, slipped and fell while preparing to take a shower and brought negligence and spoliation of evidence claims against both the owner of the apartment complex and the management company. Pinedo resolved the case against the owner non-judicially, but went to trial on the claims against the management company, resulting in a verdict in her favor on the spoliation claim. We reverse the jury verdict entered in favor of appellee on her spoliation claim because an independent cause of action for spoliation was improper in the context of her case.

Pinedo was a guest in an apartment complex owned by The Oceanview/Lake-view Trust and managed by Safeguard Management, Inc., appellants. While preparing to take a shower, she slipped and fell on water which had accumulated on the bathroom floor. In her amended complaint, Pinedo alleged one count of negligence against both Safeguard Management and The Oceanview/Lakeview Trust. Pinedo averred that appellants were negligent in failing to repair, after notice, the leaky shower head and bathtub faucet which caused water to accumulate on the floor, causing her fall and accompanying injuries. She further alleged that she hit her head on the toilet, which aggravated her injuries because it had an improperly fitted rim and a jagged-edged reservoir.

Pinedo, her counsel, and expert were allowed to inspect the bathroom following the accident. Appellants, who had hired a contractor prior to the accident to update the fixtures in the entire apartment complex, subsequently replaced and discarded the toilet that caused Pinedo’s injuries. Judy Ray, the general manager for the apartment complex, testified that the toilet was not preserved because she was informed that Pinedo had completed her testing in the bathroom.

As a result of appellants’ failure to preserve the toilet, Pinedo added one count of spoliation against both appellants. The spoliation count alleged that appellants failed to preserve the toilet even though their counsel had given Pinedo verbal assurance that they would. Pinedo alleged that, although she had inspected the bathroom and taken pictures of the toilet, the evidence collected was not of sufficient quality to render an accurate portrayal of the toilet’s rim, reservoir, and jagged edge. Her expert also stated that, without the toilet, he could not duplicate the conditions necessary to demonstrate that the tank’s rim was of an improper fit or that the leaky faucets caused the fall.

At the close of the evidence, the court instructed the jury that they should consider Pinedo’s spoliation claim if they found for appellants and against Pinedo on her negligence claim. The jury ultimately returned a verdict against Pinedo on the negligence claim and in her favor on the spoliation claim.

During the pendency of the parties’ appeal, this court issued an opinion on the topic of spoliation claims in the first-party context. See Martino v. Wal-Mart Stores, Inc., 835 So.2d 1251 (Fla. 4th DCA 2003); see also Jost v. Lakeland Reg’l Med. Ctr., Inc., 844 So.2d 656 (Fla. 2d DCA 2003): While we recognize that the parties did not have the benefit of Martino at the time of trial, we are required to apply the law as it exists at the time of the appeal, rather than that which existed when the case was tried. See Fla. Patient’s Comp. Fund v. Von Stetina, 474 So.2d 783, 787 (Fla.1985); Kocha & Jones, P.A. v. Greenwald, 660 So.2d 1074, 1075 (Fla. 4th DCA 1995)(citing Lowe v. Price, 437 So.2d 142 (Fla.1983)). We find Martino to be directly applicable to the instant case and to require reversal.

In Martino, we addressed whether an independent cause of action for spoliation of evidence is proper when the defendant in the spoliation claim is also the defendant in the underlying claim that was allegedly impaired by the loss or destruction of the evidence. See 835 So.2d at 1254. There, the plaintiffs initial claims were based upon negligent maintenance and negligent mode of operation theories. The complaint was later amended to add a distinct claim for spoliation of evidence, predicated upon the defendant’s failure to preserve the shopping cart that caused the plaintiffs injuries and the security video that may have recorded the accident. See id. at 1253.

This court concluded that, because of “the adverse inferences and the myriad of other available sanctions” available to remedy the wrong suffered by the plaintiff as the result of the loss of evidence, an independent cause of action for spoliation of evidence is unnecessary and will not lie where the alleged spoliator and defendant in the underlying litigation are one and the same. Id. at 1256. Nevertheless, we remanded for a new trial on the negligent maintenance theory because the trial judge erroneously resolved this claim as a matter of law. The court held that, at a minimum, the missing shopping cart entitled plaintiff to an adverse inference regarding the cart’s condition, and, thus, the factual issue of negligent maintenance should have been resolved by the jury. See id.

As was the case in Martino, it was improper for Pinedo to maintain a cause of action predicated upon negligence and an independent cause of action for spoliation where the defendants in each claim were the same. Because the law at the time of trial would have allowed Pinedo to maintain both a spoliation of evidence claim and a negligence claim against appellants, we believe that allowing a new trial, on only the negligence claim, is the just result. If the trial had not included the spoliation count, Pinedo might very well have argued below that the failure to produce the toilet entitled her to an adverse inference unfavorable to appellants or shifted the burden of proof, creating a rebuttable presumption of negligence. See Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701 (Fla. 4th DCA 1995); N.H. Ins. Co. v. Royal Ins. Co., 559 So.2d 102 (Fla. 4th DCA 1990); see also Pub. Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla.1987). Although these remedies were available to Pinedo prior to the Martino opinion, due to the existence of the spoliation claim, they may very well have been strategically less attractive to Pinedo at the trial. Further, the fact that Pinedo prevailed on the spoliation claim suggests that the jury accepted the notion that the loss or destruction of the toilet significantly impaired the ability of Pinedo to prove her case.

Accordingly, we reverse the entry of judgment in Pinedo’s favor on the spoliation of evidence claim and reverse and remand for retrial on the negligence claim. In light of our reversal on this basis, we need not address appellants’ other claims of error.

REVERSED and REMANDED.

STONE and WARNER, JJ., concur.