text:
    W.W. PLASTERING, INCORPORATED, a Florida corporation, Appellant, v. CHISM CONSTRUCTION INC., a Florida corporation; Wayne R. Chism, individually; Lorie L. McCarroll, individually; Daniel J. Gallagher, individually; and Marion D. Gallagher, individually, Appellees.
    No. 1D03-2626.
    District Court of Appeal of Florida, First District.
    March 5, 2004.

      John R. Stiefel, Jr., of Holbrook, Akel, Cold, Stiefel & Ray, P.A., Jacksonville, for Appellant.
    Clyde W. Davis, Fernandina Beach, for Appellees.
   PER CURIAM.

The appellant attempted to foreclose a construction lien by suit filed in county court, after which the appellees transferred the construction lien to a security bond pursuant to section 713.24, Florida Statutes (2000). The appellant dismissed its action against the construction lien and then filed, again in the county court, an amended complaint against the security bond. After more than one year had passed from the date that the lien was transferred to security, the appellees were granted a request to move their counterclaim to circuit court in order to seek damages beyond the county court’s jurisdiction. After the matter was transferred to circuit court, the appellees moved to dismiss the appellant’s action against the security bond on the basis that the appellant had not timely initiated an action against the security bond in a court of competent jurisdiction as required by sections 713.22 and 713.24(4), Florida Statutes (2000). We affirm the circuit court’s order granting the appellees’ motion to dismiss with prejudice the appellant’s action against the security bond.

Circuit courts have exclusive jurisdiction over actions against liens transferred to security bonds. See § 713.24(3), Fla. Stat. (2000); see also Current Control, Inc. v. Bankers Ins. Co., 679 So.2d 78, 78-79 (Fla. 5th DCA 1996); Stel-Den of America, Inc. v. Roof Structures, Inc., 438 So.2d 882, 884 (Fla. 4th DCA 1983). Moreover, unless an owner elects to shorten the time for filing an action against a bond by following the procedures set forth in section 713.22(2), Florida Statutes, an action against a transferred lien must be filed — in the circuit court — within one year of the date that the transferred lien is recorded or the security must be returned. See §§ 713.22(1) & (2); 713.24(4), Fla. Stat. (2000). Florida construction lien laws must be strictly construed. See, e.g., Stunkel v. Gazebo Landscaping Design, Inc., 660 So.2d 623, 625 (Fla.1995). Thus, even though the appellant’s original action against the construction lien was properly within the county court’s jurisdiction, the county court lost jurisdiction over the matter as soon as the construction lien was transferred to a security bond.

Because the county court did not have jurisdiction over the action against a security bond and because the appellant did not timely move the action to circuit court, the circuit court’s order dismissing the action with prejudice is AFFIRMED.

DAVIS, BENTON and BROWNING, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FLORIDA SOCIETY OF ANESTHESIOLOGISTS, INC., Appellant, v. FLORIDA ACADEMY OF COSMETIC SURGERY, INC., and The Florida Department of Health, Board of Medicine, Appellees.
    No. 1D03-4637.
    District Court of Appeal of Florida, First District.
    March 5, 2004.
    Jerome Wayne Hoffman, Lawrence E. Sellers, Jr., and Susan L: Kelsey of Holland & Knight, Tallahassee, for Appellant.
    Alfred W. Clark, Tallahassee; and Edward A. Tellechea, Office of the Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of November 7, 2003, the Court has determined that the order on appeal is not immediately reviewable. See Charter Medical-Jacksonville, Inc. v. Community Psychiatric Centers of Florida, Inc., 482 So.2d 437 (Fla. 1st DCA 1985); see also Federal Property Management Corp. v. Health Care and Retirement Corp. of America, 462 So.2d 493 (Fla. 1st DCA 1984). Accordingly, the appeal is hereby dismissed.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Richard L. SOBI and Karen L. Sukiennik, Appellants, v. WALTON COUNTY, Florida, Appellee.
    No. 1D03-4961.
    District Court of Appeal of Florida, First District.
    March 5, 2004.
    Appellants, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Timothy M. Warner of Warner & Mallory, Panama City, for Appellee.
   PER CURIAM.

Upon consideration, the Court has determined that the order on appeal is not a final order. See Benton v. Moore, 655 So.2d 1272 (Fla. 1st DCA 1995). Accordingly, the appellee’s motion to dismiss is granted and the appeal is hereby dismissed for lack of jurisdiction.

BARFIELD, KAHN and HAWKES, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Jimmy Lee NEWSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2408.
    District Court of Appeal of Florida, Second District.
    March 5, 2004.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Jimmy Lee Newson challenges his judgment and sentence for burglary, aggravated assault, and petit theft. We affirm in all respects except for the written judgment, which we remand for correction of a scrivener’s error.

The trial court orally imposed concurrent sentences of ten years’ imprisonment. The written judgment, however, reflects consecutive sentences for a total of twenty years’ imprisonment. The State admits that the written sentence is inconsistent with the oral pronouncement. This error is not the result of a judicial determination, but rather a scrivener’s error in the preparation of the written document. See Fla. R. Crim. P. 3.800 court commentary. Accordingly, we remand with directions that this scrivener’s error be corrected.

Affirmed; remanded to correct scrivener’s error.

SILBERMAN and COVINGTON, JJ., concur.


author: VAN NORTWICK, J.

text:
    Calvin THOMPSON, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 1D03-2975.
    District Court of Appeal of Florida, First District.
    March 5, 2004.

      Esther A. Zaretsky, West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General and Toni C. Bernstein and William H. Branch, Assistant Attorneys General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Calvin Thompson appeals a non-final order denying his motion to quash service of process in this support-administrative paternity action filed by the Department of Revenue. We reverse and remand for an evidentiary hearing pursuant to Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502-03 (Fla.1989).

Pursuant to section 409.2564, Florida Statutes (2002), the- Department filed an action to establish and enforce child support for Thompson’s four year-old daughter. The petition was served at 625 F Covenant Drive, Belle Glade, Florida 33430, and accepted by Thompson’s wife. Thompson filed a motion to dismiss/quash for lack of service of process stating that he was not present at the Belle Glade address and was not personally served. In his attached affidavit, Thompson stated that he has been separated from his wife, that he has not resided at that address for over three years, and that he did not authorize anyone to accept service of process on his behalf.

The trial court entered an order ruling that any jurisdictional defect could be cured by mailing a copy of the petition and accompanying documents to Thompson’s attorney, “who has made a general appearance.” The Department correctly concedes that the jurisdictional defect cannot be cured in the manner suggested by the trial court and that Thompson’s argument that the trial court lacked personal jurisdiction was not waived because Thompson neither took affirmative action nor sought affirmative relief prior to raising the alleged defect. See Coto-Ojeda v. Samuel, 642 So.2d 587, 588 (Fla. 3d DCA 1994)(Cope, J., specially concurring).

Turning to the merits, “[sjection 48.031 expressly requires that substituted service be at the person’s usual place of abode.” Shurman v. Atlantic Mortgage & Investment Corp., 795 So.2d 952, 954 (Fla.2001). The requirement “usual place of abode” means “the place where the defendant is actually living at the time of service.” Id., citing State ex rel. Merritt v. Heffernan, 142 Fla. 496, 195 So. 145, 147 (1940). The burden of proof to sustain .the validity of service of process is upon the person who seeks to invoke the jurisdiction of the court and, without proper service of process, the court lacks personal jurisdiction over the defendant. M.J.W. v. Department of Children and Families, 825 So.2d 1038, 1041 (Fla. 1st DCA 2002).

“[A] process server’s return of service on a defendant which is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.” Telf Corp. v. Gomez, 671 So.2d 818 (Fla. 3d DCA 1996). Although simple denial of service is not sufficient, id. at 819, Thompson’s motion and affidavit are based on the fact that the service did not comply with section 48.031 and was therefore legally deficient. National Safety Associates, Inc. v. Allstate Insurance Co., 799 So.2d 316, 317 (Fla. 2d DCA 2001). Thompson’s affidavit makes a prima facie showing that he was not served at his usual place of abode by valid substituted service. See, e.g., S.H. v. Department of Children and Families, 837 So.2d 1117, 1118 (Fla. 4th DCA 2003)(invalidating substituted service on father at mother’s address, where mother’s residence was not father’s “usual place of abode” at the time of service); Gonzalez v. Totalbank, 472 So.2d 861 (Fla. 3d DCA 1985)(invalidating substituted service when wife was separated from husband and not living at address where service was attempted). Having raised the issue of personal jurisdiction, Thompson’s motion and accompanying affidavit placed the burden on the Department to establish the validity of service of process. M.J.W., 825 So.2d at 1041. Accordingly, the cause is reversed and remanded for an evidentiary hearing to determine whether the attempted service of Thompson pursuant to section 48.031, Florida Statutes (2003), was valid. See Venetian Salami, 554 So.2d at 502-03; Mowrey Elevator of Florida, Inc. v. Automated Integration, 745 So.2d 1046, 1047-48 (Fla. 1st DCA 1999).

REVERSED and REMANDED.

KAHN and BENTON, JJ., concur.


author: STRINGER, Judge.

text:
    SARASOTA COUNTY, Florida, a political subdivision of the State of Florida, and The Board of County Commissioners of Sarasota County, Florida, Petitioners, v. BDR INVESTMENTS, L.L.C., a Florida limited liability company, and Rodney Krebs, Respondents.
    No. 2D03-4262.
    District Court of Appeal of Florida, Second District.
    March 5, 2004.

      Jorge L. Fernandez, County Attorney, and Gary K. Oldehoff, Assistant County Attorney, Sarasota, for Petitioners.

      Michael J. Furen and Mark C. Dungan of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Respondents.
   STRINGER, Judge.

Sarasota County and the Board of County Commissioners of Sarasota County (together “Sarasota County”) seek certiorari review of the circuit court’s order granting the petition for writ of certiorari filed by BDR Investments, L.L.C., and Rodney Krebs (together “BDR”) and quashing the Board’s denial of BDR’s rezoning petition. Because the circuit court failed to apply the correct law, we quash the order and remand for a redetermination of this cause.

This proceeding concerns a petition filed by BDR seeking the rezoning of a 1280-acre tract of land from “open use rural” to “open use estate” so as to allow for the maximum residential density permitted under the Sarasota County Comprehensive Plan. In October 2002, the Board unanimously voted to deny the rezoning petition. The Board’s resolution states two reasons for its denial of the rezoning petition: (1) the petition is inconsistent with the Comprehensive Plan, and (2) the petition does not comply with the applicable zoning regulations. BDR then petitioned the circuit court for a writ of certiorari, and the circuit court quashed the Board’s decision.

The standard of review of decisions by the circuit court on petitions for writ of certiorari, which is known as “second-tier” certiorari review, is whether the circuit court (1) afforded the parties procedural due process .and (2) applied the correct law. Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000) (citing City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982)). Sarasota County does not claim that the circuit court failed to afford the parties procedural due process. Instead, Sarasota County argues that the circuit court failed to apply the correct law in granting BDR’s petition for writ of certiorari and quashing the Board’s denial of BDR’s rezoning petition.

In its “first-tier” certiorari review of a quasi-judicial zoning decision, the circuit court reviews the record to determine whether (1) the board afforded the parties procedural due process, (2) the board observed the essential requirements of the law, and (3) the board’s decision is supported by competent substantial evidence. City of Dania, 761 So.2d at 1092 (citing City of Deerfield Beach, 419 So.2d at 626). In this case, the circuit court held that the Board deprived BDR of due process and departed from the essential requirements of the law by basing its decision to deny the rezoning petition on a land-use plan that had been adopted by the county but was not yet in effect (“the 2050 Plan”). The court also held that the record does not contain competent substantial evidence to support the Board’s decision.

The supreme court has clarified the analysis to be applied by a board in ruling on a landowner’s petition to rezone property. See Bd. of County Comm’rs of Brevard, County v. Snyder, 627 So.2d 469 (Fla.1993). It is the landowner’s initial burden to prove that the petition is consistent with the comprehensive plan and that it complies with the applicable zoning ordinance’s procedural requirements. Id. at 476. Then the burden shifts to the government to show that there is a legitimate public purpose behind maintaining the existing zoning classification. Id. If the government meets this burden, the board should deny the petition. Id.

As a part of its review on “first-tier” certiorari review in the circuit court, the court must determine if there was competent substantial evidence presented to the board to support its determination. Id. Thus, the circuit court will be presented with two issues: (1) whether competent substantial evidence supports a determination of whether the requested zoning is consistent with the comprehensive plan and complies with the applicable zoning ordinance’s procedural requirements; and (2) whether competent substantial evidence supports a determination of whether there is a legitimate public purpose behind maintaining the existing zoning classification. Town of Manalapan v. Gyongyosi, 828 So.2d 1029, 1033 (Fla. 4th DCA 2002).

In this case, the circuit court partially addressed the first issue and completely failed to address the second. The court based its holding that competent substantial evidence did not support the Board’s denial of the rezoning petition solely on its conclusion that competent substantial evidence did not support the Board’s finding that the rezoning petition was inconsistent with the Comprehensive Plan. However, the circuit court did not consider whether competent substantial evidence supported a determination that (1) the requested rezoning does not comply with the applicable zoning ordinance’s procedural requirements or (2) there is a legitimate public purpose behind maintaining the existing zoning classification. These determinations may have supported a denial of the rezoning petition even if the requested rezoning was consistent with the Comprehensive Plan.

As for the circuit court’s holding that the Board failed to afford procedural due process and departed from the essential requirements of the law by basing its decision on the 2050 Plan, the court appears to be combining the two prongs of “first-tier” certiorari review into one. A finding that the Board departed from the essential requirements of the law by failing to apply the correct law does not automatically result in a failure to afford procedural due process. Furthermore, the court’s conclusion that the Board failed to apply the correct law should have been based on the court’s application of Snyder to the findings articulated by the Board, not on a de novo review of the record to determine the true basis of the Board’s ruling.

Accordingly, the circuit court failed to apply the correct law. We therefore grant the petition for certiorari, quash the circuit court’s order, and remand for further proceedings. On remand, the circuit court should apply the standard of review articulated in Snyder in ruling on BDR’s petition for writ of certiorari.

SILBERMAN and CANADY, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Michael DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2309.
    District Court of Appeal of Florida, Second District.
    March 5, 2004.

      Victoria L. Bloomer of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Michael Davis appeals the revocation of his community control and argues that the State failed to prove that he willfully and substantially violated the conditions of his community control. We agree and reverse.

Davis was on community control for various crimes when, in February 2002, the State filed an affidavit of violation alleging that he violated several conditions of his community control order. Following an evidentiary hearing, the trial court concluded that Davis violated conditions 8, 12, 38, 39, 40, and 41, and it revoked Davis’s community control and sentenced him to prison.

In order to support the revocation of community control, the State must prove that the defendant’s violations were willful and substantial. Brown v. State, 813 So.2d 202, 203 (Fla. 2d DCA 2002). The trial court must determine whether the violations were willful and substantial and supported by the greater weight of the evidence or, stated differently, whether the defendant made reasonable efforts to comply with the terms and conditions of community control. See State v. Carter, 835 So.2d 259, 261 (Fla.2002); McCoy v. State, 730 So.2d 803, 804 (Fla. 2d DCA 1999). The defendant’s failure to comply does not, in every instance, establish a willful and substantial violation justifying revocation as “[t]here may be circumstances where revocation is patently unfair.” Carter, 835 So.2d at 262. The trial court has broad discretion to determine whether there has been a willful and substantial violation, and our review of the trial court’s determination is for abuse of discretion. Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003).

Concerning condition 8, which required Davis to “work diligently at a lawful occupation and support any dependents to the best of [his] ability,” Davis had been working at a restaurant. In September 2001 the restaurant closed and Davis lost his job. Davis obtained employment at another restaurant in December 2001, but he lost that job within one month.

Davis’s community control officer filed an affidavit of violation about a month and a half after Davis lost the second job. The affidavit alleged that Davis failed to gain lawful employment as instructed by the officer.

At the revocation hearing, the State failed to present any evidence that Davis had not diligently looked for work between September 2001, after he lost the first restaurant job, and December 2001, when he was hired at the second restaurant. The State also did not establish why Davis left the second restaurant; the community control officer only testified that he was uncertain whether Davis quit or was terminated. The officer acknowledged that Davis sought and obtained permission to look for another job before the affidavit of violation was filed, and Davis successfully obtained another job before an arrest warrant was issued on the alleged violation.

Davis argues, and we agree, that the State failed to establish a knowing and willful violation of condition 8. Davis maintained employment during much of the pertinent time frame addressed by the evidence, and when he was unemployed he searched for and obtained new employment. Because the evidence did not establish a violation, we reverse the trial court’s finding of a violation of condition 8. See Taylor v. State, 509 So.2d 1288 (Fla. 3d DCA 1987).

Regarding condition 12, which required Davis to remain at an approved location, the affidavit of violation alleged that on January 30, 2002, Davis was seen at a store when he should have been at the Department of Highway Safety and Motor Vehicles (DMV). The affidavit stated that Davis did not have permission to deviate from his approved schedule.

The evidence presented at the revocation hearing established that on January 30, 2002, Davis had permission to perform a job search between 8 a.m. and 2 or 3 p.m., and he had permission to go to the DMV between 10 a.m. and 2 p.m. to get a new license. At 11:16 a.m., a community control officer observed Davis start to enter a music store, and he notified Davis’s supervising officer.

The supervising officer testified that Davis’s permission to go to the DMV took precedence over his performing a job search; however, the officer could not recall whether he had ever told this to Davis. The officer also could not recall whether he had ever discussed with Davis what to do if two activities overlapped on the schedule. Finally, the officer could not recall whether he had ever asked Davis where he had gone on January 30, 2002, or whether he had asked Davis for any explanation regarding what had happened on that date.

Davis correctly argues that the evidence does not support the finding of a violation of condition 12. At the time in question, Davis had permission to search for a-job and to go to the DMV. The State did not establish whether Davis went to the DMV, failed to go to the DMV, finished his task at the DMV and returned to his job search, or failed to undertake the job search. Moreover, there was no evidence that Davis was doing anything that was not authorized or that he was instructed to remain at the DMV during the entire period from 10 a.m. until 2 p.m. Because the State did not establish a violation of condition 12, the trial court’s finding of a violation of that condition is reversed.

Concerning conditions 38, 39, 40, and 41, which required Davis to pay certain court-ordered costs, the State established that Davis was in arrears in paying those costs. Davis’s supervising officer testified that in his view, a person who is able to get a job has the ability to pay. He stated that Davis was to pay a certain amount each month, but he acknowledged that Davis had until the end of his supervision to fully pay the costs. The State presented no other evidence concerning Davis’s ability to make the required payments.

Davis’s mother testified on his behalf. She stated that Davis was not earning enough money to pay his bills for living expenses, including his child support obligations, and that she was helping him pay his bills. She testified that after the affidavit of violation was filed, she paid some of the court-ordered costs that Davis owed.

Davis again argues that the State failed to establish any willful violation of the conditions of community control. We agree. Evidence that a defendant has failed to make required payments is, by itself, insufficient to support a revocation of community control. The State must also present evidence establishing that the defendant was able to pay in order to demonstrate the willful nature of the violation. See Glasier v. State, 849 So.2d 444, 445 (Fla. 2d DCA 2003); McCoy, 730 So.2d at 804.

Here, not only did the State fail to establish that Davis had the financial ability to pay the court-awarded costs but also Davis presented evidence demonstrating that he lacked the financial ability to pay the costs. See Hanania v. State, 855 So.2d 92, 94 (Fla. 2d DCA 2003). Moreover, there was no showing that Davis had the ability to earn more than he had been earning or that he was willfully failing to acquire or maintain employment. See Winfield, v. State, 406 So.2d 50, 52 (Fla. 1st DCA 1981).

Because the record demonstrates that the State failed to establish that Davis willfully and substantially violated the conditions of his community control, we reverse the revocation order. We note that as a result of the erroneous revocation of Davis’s community control, Davis was sentenced to a prison term. From the record before us it appears likely that Davis has completed his sentence. Accordingly, on remand, if Davis has completed his sentence, then the trial court shall discharge him. If Davis has not completed his sentence, then the trial court shall reinstate him to supervision and credit him with all time served in jail and in prison because of these proceedings. See McCoy, 730 So.2d at 804.

Reversed and remanded with instructions.

ALTENBERND, C.J., and WALLACE, J., Concur.


author: NORTHCUTT, Judge.

text:
    Ralph BRUECKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2576.
    District Court of Appeal of Florida, Second District.
    March 5, 2004.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

The State charged Ralph Brueekman with lewd and lascivious molestation. See § 800.04(5)(b), Fla. Stat. (2001). We affirm without discussion Brueckman’s contention that the circuit court erred by admitting child hearsay, see § 90.803(23), Fla. Stat. (2001), and by admitting his confession under section 92.565, Florida Statutes (2001). We also affirm Brueckman’s challenge to the constitutionality of section 775.21, Florida Statutes (2001). See Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), review granted, 859 So.2d 514 (Fla.2003).

ALTENBERND, C.J., and WHATLEY, J., Concur.


text:
    Phyliss MASCOLO, Petitioner, v. James V. CROSBY, Jr., Secretary, Department of Corrections, and Orlando Rodriguez, Warden, Gadsden Correctional Facility, Respondents.
    No. 1D03-5438.
    District Court of Appeal of Florida, First District.
    March 5, 2004.
    ■Phyliss Mascólo, pro se, petitioner.

      No appearance for respondents.
   PER CURIAM.

DISMISSED. Fla. R.App. P. 9.100(c)(1)

WEBSTER, LEWIS and HAWKES, JJ., concur.


author: GROSS, J.

text:
    STATE of Florida, Appellant, v. Joseph MONTELLO and Steven P. Costa, Appellees.
    Nos. 4D03-112, 4D03-359.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Richard Valuntas and Donna L. Eng, Assistant Attorneys General, West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for appellee Joseph Montello.
    Anthony M. Livoti, Jr., Fort Lauder-dale, for appellee Steven P. Costa.
   GROSS, J.

In this consolidated appeal, the state challenges county and circuit court orders granting motions to suppress urine test results obtained from appellees, Joseph Montello and Steven P. Costa, pursuant to Florida’s implied consent statute.

Although noting their disagreement with State v. Bodden, 27 Fla. L. Weekly D2382, — So.2d —, 2002 WL 31421575 (Fla. 2d DCA Oct.30, 2002), review granted, 853 So.2d 1071 (Fla. Sept.15, 2003), the trial courts granted the motions to suppress because they were bound by it.

We reverse and adopt the reasoning of State v. Pierre, 854 So.2d 231 (Fla. 5th DCA 2003). As did the court in Pierre, we rephrase the question certified by the county court:

Does section 316.1932, Florida Statutes (2002), require that urine testing procedures first be “approved” by the Florida Department of Law Enforcement before they may be administered to persons who are suspected of DUI?

Id. at 232. Consistent with Pierre, we answer the question in the negative and certify conflict with Bodden.

To Pierre’s reasoning, we add the following observations that support the conclusion that urine tests need not be “approved” by the Florida Department of Law Enforcement (FDLE) to be admissible under the implied consent statute.

The plain meaning of statutory language is the first consideration of statutory construction. See Fla. Convalescent Ctrs. v. Somberg, 840 So.2d 998, 1000 (Fla.2003). “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Id. (citation omitted). The statute at issue in this case, Bodden, and Pierre, is section 316.1932(l)(a)l., Florida Statutes (2002) which stated:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances....

(Emphasis added).

Pierre points out that Chapter 316 “makes a distinction between the two tests [urine and “approved chemical test”] in numerous places throughout the statute, evincing that urine tests are not merely subsets of ‘chemical tests.’ ” 854 So.2d at 232-33. Section 316.1932(l)(a)l. distinguishes between urine and breath tests. One sentence began: “The chemical or physical breath test must be incidental to a lawful arrest _” § 316.1932(l)(a)l., Fla. Stat. (2002). A few lines later, the statute read: “The urine test shall be administered at a detention facility....” Id. The separation of “urine test” from “chemical or physical breath test” in these two sentences indicates a legislative intent to treat the two items separately.

The distinction between breath and urine tests is further demonstrated by the structure of the last sentence in section 316.1932(l)(a)l.:

The refusal to submit to a chemical or physical breath test or to a urine test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.

(Emphasis added). This language indicates a separation of urine tests from chemical or physical breath tests; otherwise the statute would have no reason to include the emphasized words.

It is well-settled that all parts of a statute must be read together, such that the statute is consistent in its entirety. See T.R. v. State, 677 So.2d 270, 271 (Fla.1996). “A statutory phrase should ... be viewed not only in its internal context within the section, but in harmony with interlocking statutes.” WFTV, Inc. v. Wilken, 675 So.2d 674, 679 (Fla. 4th DCA 1996).

Bodden indicated that it was following this principle of statutory construction “in reading section 316.1932(1)(a)(1) in conjunction with sections 316.1932(1)(b)(2) and 316.1932(1)(f)(1)” to “conclude that an ‘approved’ urine test is one in which the method of administration and the analysis of the test are ‘performed substantially according to methods approved by’ the FDLE.” 27 Fla. L. Weekly at D2382-83, — So.2d at —. Bodden did not explain how a reading of those statutes led to its decision. Our examination of Chapter 316 leads us to draw the opposite conclusion.

Section 316.1932(l)(f)l. explicitly gave FDLE the authority to create rules for breath and blood testing. No statute directs FDLE to establish rules for urine testing for non-commercial drivers. Moreover, other sections in Chapter 316 clearly link FDLE’s authority to promulgate regulations with breath and blood testing, but not urine tests. See § 316.1932(l)(a)2., Fla. Stat. (2002) (“The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions and related provisions located in this chapter ....”) (emphasis added); § 316.1932(l)(b)2., Fla. Stat. (2002) (“An analysis of a person’s breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement.”) (emphasis added); § 316.1933(2)(b), Fla. Stat. (2002) (“A chemical analysis of the person’s blood to determine the alcoholic content thereof must have been performed substantially in accordance with methods approved by the Department of Law Enforcement ....”) (emphasis added); § 316.1934(3), Fla. Stat. (2002) (“A chemical analysis of a person’s blood to determine alcoholic content or a chemical or physical test of a person’s breath, in order to be considered valid under this section [addressing the presumption of impairment for the “amount of alcohol in the person’s blood or breath at the time alleged, as shown by chemical analysis of the person’s blood, or by chemical or physical test of the person’s breath”] must have been performed substantially in accordance with methods approved by the Department of Law Enforcement ....”) (emphasis added).

In requiring urine tests that comply with rules promulgated by FDLE, Bodden creates a statutory paradox. Nowhere in Chapter 316 has the legislature given FDLE the authority to promulgate rules for urine testing for non-commercial drivers. FDLE has no inherent rulemaking authority: “A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute.” § 120.536(1), Fla. Stat. (2002). To implement Bodden’s requirement that urine testing be “approved” by FDLE, further legislation would be required to give FDLE the authority to promulgate rules. The statute should not be read in a way that renders it inoperative without further legislation.

Finally, in 2003, the legislature amended section 316.1932(l)(a) in a way that unambiguously reflects the legislative intent to exempt urine testing from any FDLE approval requirement. Ch.2003-54, § 1, at 415-16, Laws of Fla. Staff analysis from the house versions of the bill indicates that the impetus for the new legislation was a disagreement with Bodden. Fla. H.R. Comm, on Tests for Alcohol, Chemical Substances, or Controlled Substances, HB 947 (2003) Staff Analysis 2 (final Apr. 2, 2003).

It is proper to consider the 2003 legislation in arriving at the correct interpretation of 316.1932(1)(a)1. See Barns v. State, 768 So.2d 529, 532-33 (Fla. 4th DCA 2000). As the supreme court has noted:

The rule seems to be well established [that] the interpretation of a statute by the legislative department goes far to remove doubt as to the meaning of the law. The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation.

Gay v. Canada Dry Bottling Co. of Fla., 59 So.2d 788, 790 (Fla.1952) (quoting Gen. Petroleum Corp. of Cal. v. Smith, 62 Ariz. 239, 157 P.2d 356, 360 (1945)). The 2003 legislation supports Pierre.

REVERSED AND REMANDED.

STONE and HAZOURI, JJ„ concur.

      . The statute, as noted below, has been substantially amended in response to Bodden, in this past legislative session.

      . See § 316.1934(2).


text:
    STATE of Florida, Appellant, v. Zane MOORE, Appellee.
    No. 4D03-691.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellant.
    Nelson T. Pena, Miami Lakes, for appel-lee.
   PER CURIAM.

This case is reversed and remanded to the county court for further proceedings consistent with the opinion in State v. Montello & Costa, 867 So.2d 613, 2004 WL 432748 (Fla. 4th DCA Mar.10, 2004).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Sherod Dion LUKE, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2005.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.
    Scott K. Spivack of Scott K. Spivack, P.A., Lakeland, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for appellee.
   PER CURIAM.

Sherod Dion Luke appeals his judgment and sentence for conspiracy to commit robbery. We affirm the conviction but remand to correct a scrivener’s error in the judgment. The judgment erroneously lists Mr. Luke’s conviction as conspiracy to commit robbery with a firearm, a second-degree felony. The State concedes that the judgment should reflect the actual charge and conviction of conspiracy to commit robbery, a third-degree felony. See § 777.04, Fla. Stat. (2000).

Affirmed; remanded to correct scrivener’s error.

ALTENBERND, C.J., and WHATLEY and NORTHCUTT, JJ., Concur.


author: FULMER, Judge.

text:
    Anthony SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3558.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for ap-pellee.
   FULMER, Judge.

Anthony Smith appeals his convictions for armed burglary and armed robbery, both of which occurred on February 17, 2001. We affirm his conviction for armed robbery without discussion. However, we reverse his conviction for armed burglary and remand for a new trial. On remand, the trial court is also directed to consider whether the outcome of the armed burglary charge necessitates resentencing on the armed robbery charge and, if so, to resen-tence Smith accordingly.

Smith argues that the trial court committed fundamental error by instructing the jury that burglary could be committed by “remaining in” a structure, contrary to the rule announced in Delgado v. State, 776 So.2d 238 (Fla.2000), in which the supreme court held that “the ‘remaining in’ language applies only in situations where the remaining in was done surreptitiously.” 776 So.2d at 240. We agree. There was no evidence presented in Smith’s trial that would support a “surreptitious remaining.”

In concluding that Delgado applies in Smith’s case, we align ourselves with the views expressed by the First District Court of Appeal in Foster v. State, 861 So.2d 434 (Fla. 1st DCA 2002), clarified on reh’g, (Dec. 24, 2003), and likewise certify the following question as one of great public importance:

HAS SECTION ONE OF CHAPTER 2001-58, LAWS OF FLORIDA, LEGISLATIVELY OVERRULED DELGADO V. STATE, 776 So.2d 233 (Fla. 2000), AS TO CASES NOT FINAL AT THE TIME OF SUCH DECISION IN WHICH THE OFFENSES WERE COMMITTED ON OR AFTER FEBRUARY 1, 2000, THEREBY PERMITTING A TRIAL COURT TO INSTRUCT A JURY THAT IT MAY FIND A DEFENDANT GUILTY OF BURGLARY, DESPITE EVIDENCE SHOWING A LEGAL ENTRY INTO THE PREMISES AND THAT AN OFFENSE WAS COMMITTED THEREIN WHILE THE DEFENDANT REMAINED WITHIN NON-SURREPTITIOUSLY?

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

WALLACE, J., and DANAHY, PAUL W., Senior Judge, concur.


author: WHATLEY, Judge.

text:
    Jose Hernandez GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5359.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for appel-lee.
   WHATLEY, Judge.

Jose Hernandez Garcia argues, and the State concedes, that the trial court erred in dismissing his motion to withdraw plea because he filed a notice of appeal before the court ruled on his motion. Florida Rule of Appellate Procedure 9.020(h)(3) provides in pertinent part that a pending motion to withdraw plea “shall not be affected by the filing of a notice of appeal from a judgment of guilt. In such instance, the notice of appeal shall be treated as prematurely filed and the appeal held in abeyance until the filing of a signed, written order disposing of such motion.”

Accordingly, we reverse the order dismissing Garcia’s motion to withdraw plea and remand with directions for the trial court to rule on said motion.

Reversed and remanded with directions.

ALTENBERND, C.J., and NORTHCUTT, J., concur.


text:
    David Lee LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-527.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for appellee.
   PER CURIAM.

We affirm David Lee Leonard’s convictions and those sentences entered pursuant to the written stipulation of the State and defense counsel to resolve the sentencing error raised by Leonard in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b).

Affirmed.

ALTENBERND, C.J., and WHATLEY, and NORTHCUTT, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Donna Lynne PELLICCIA, Appellant, v. Herbert ARCE, Jr., Appellee.
    No. 2D03-724.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.

      Donna Lynne Pelliecia, pro se.
    Pamela Taylor Karlson of Rhoades & Karlson, P.A., Sebring (withdrew after briefing), for Appellee.
    Herbert Arce, Jr., pro se.
   CASANUEVA, Judge.

Donna Lynne Pelliecia, the mother of the child at the center of this custody and visitation dispute, appeals the trial court’s order adjudging her in contempt and granting the natural father, Herbert Arce, Jr., certain relief, including make-up visitation and changing primary residential responsibility to him. Although Ms. Pelliecia asserts the trial court committed several errors, we find only one requires reversal. In all other respects, we affirm.

As a sanction for Ms. Pelliccia’s contempt of a prior order on visitation, the trial court ordered her to return the child to Florida for make-up visitation with Mr. Arce and, should she fail to do so, the primary residential responsibility of the parties’ minor child would “automatically transfer” to Mr. Arce. On appeal, Ms. Pel-liceia contends that it was error to change the custody of the child as her punishment. Mr. Arce responds that the transfer is authorized by section 61.13(4)(c)(5), Florida Statutes (2002). Section 61.13(4)(c)(5) provides that, as a sanction for a custodial parent’s refusal to honor the noncustodial parent’s visitation rights, the court may award primary residence of the child to the noncustodial parent “if the award is in the best interests of the child.” Although Mr. Arce correctly cites the law, we find it not applicable to these circumstances.

The proceedings that resulted in the trial court’s order that automatically changed custody were commenced not by a petition to modify custody but, rather, by Mr. Arce’s filing a motion for contempt and other relief. In the motion’s prayer for relief, he sought to change the primary residential custody of the minor child from Ms. Pelliecia to himself. But neither the body of the motion nor its prayer for relief asserted it would be in their child’s best interest to modify primary residential custody. Additionally, the motion for contempt sought to incorporate the contents of a motion for rehearing or, in the alternative, motion for emergency relief from judgment which he had filed much earlier in the case, after the trial court had permitted Ms. Pelliecia to relocate with the child from Florida to another state. The issue of changing primary residential custody has not been litigated.

In LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131, 1132-33 (Fla. 2d DCA 1999), this court concluded that a transfer of custody was an inappropriate penalty for an indirect civil contempt arising from a violation of court-ordered visitation. There, as here, due process concerns were implicated when a party was not properly put on notice that a change of custody was being sought. As the general purpose of an order finding civil contempt is to obtain compliance with a prior order, changing child custody in such an order does not accomplish this goal.

Moreover, we are concerned that in all these proceedings there is no indication that the child’s best interests have been considered. The language of the order indicates that the purpose of the automatic transfer of primary residential custody was to insure compliance with the court’s order on make-up visitation. The record on appeal does not show that the change of custody was entered because it was in the best interests of the minor child to do so. Thus, pursuant to LaLoggia, it was error for the trial court to change the primary residential custody under the pleadings and facts of this case.

Affirmed in part; reversed in part; and remanded with instructions to strike that portion of the order changing the primary residential custody of the child to Mr. Arce.

CANADY and WALLACE, JJ., Concur.


text:
    Phillip DINES, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2040.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   WHATLEY, Judge.

We affirm Phillip Dines’ conviction of one count of burglary and two counts of dealing in stolen property. We remand, however, with directions that Dines’ sentences be corrected to conform to the trial court’s oral pronouncement that his prison terms are to run concurrently.

Affirmed; remanded with directions.

ALTENBERND, C.J., and NORTHCUTT, J., Concur.


text:
    Clifford J. PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2580.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Clifford Pittman appeals a new judgment and sentence entered after the circuit court revoked his probation for driving while license suspended as a habitual offender. Mr. Pittman entered a plea of admission to the violations listed in the affidavit of violation of probation. The circuit court entered a new judgment and sentence indicating that Mr. Pittman had violated probation in this case, thus providing this court with jurisdiction to review the revocation. However, the court did not enter a formal order revoking Mr. Pittman’s probation and listing the specific conditions violated. We affirm the revocation, but because there was some confusion at the change of plea hearing, we remand for the circuit court to enter an order revoking probation that specifies that Mr. Pittman admitted violating conditions 1, 2, 3, 5, 8, and 9 of his probation, as charged in the affidavit of violation. Mr. Pittman’s admission did not include the new law violation of burglary.

Affirmed but remanded with instructions.

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

      . Mr. Pittman's notice of appeal referenced two trial court case numbers: the revocation of probation addressed here and a separate judgment and sentence for burglary. However, Mr. Pittman’s brief challenges only the revocation of probation case.


author: CANADY, Judge.

text:
    PEREZ & PEREZ, M.D., P.A., Petitioner, v. Kenneth E. HOLDER, Respondent.
    No. 2D03-3199.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.

      Thomas John Dandar of Dandar & Dan-dar, P.A., Tampa, for Petitioner.
    J. Meredith Wester and Angela C. Ca-bassa of Mechanik Nuccio Williams Hearne & Wester, P.A., Lutz, for Respondent.
   CANADY, Judge.

Perez & Perez, M.D., P.A., petitions for review of an order of the circuit court dismissing an appeal of a county court order for failure to timely submit an initial brief. Because we conclude that the circuit court denied the petitioner procedural due process and departed from the essential requirements of law, we grant the petition.

Before the petitioner’s initial brief was due and while the petitioner was attempting to obtain approval of a statement of evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4), the circuit court granted a sixty-day extension of the deadline for the filing of the initial brief. During the time that the petitioner was proceeding pursuant to rule 9.200(b)(4), the extension for filing the initial brief expired, and the petitioner’s counsel faded to file a motion for a further extension. Five days following the expiration of the deadline, the circuit court entered a sua sponte order dismissing the appeal.

The petitioner moved to vacate the dismissal, explaining that there had been a delay in the record supplementation and stating that the brief was “99% complete,” lacking only record citations from the record as supplemented by the statement of evidence. The circuit court responded to this motion approximately one month later with an order that, based upon the date on the face of the order, provided six days to file the initial brief and listed a deadline for filing the brief that was a legal holiday. The brief was ultimately filed by the petitioner’s counsel four days after the deadline.

Approximately one week after the initial brief was filed, the respondent, Kenneth E. Holder, moved to dismiss the appeal because of the tardiness of the initial brief. The petitioner filed a response to this motion in which it claimed that, due to the holiday and the weekend which had immediately preceded the holiday, its counsel did not receive the order until after the deadline. More than two weeks after the brief was filed, the circuit court entered an order dismissing the appeal as a sanction for failing to timely file the brief.

In considering the petition for certiorari review, we acknowledge the limited circumstances under which it is appropriate for a district court to review an appellate decision of a circuit court. “ ‘It is well-established that certiorari should not be used as a vehicle for a second appeal in a typical case tried in county court.’ ” Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000) (quoting Stilson v. Allstate Ins. Co., 692 So.2d 979, 982 (Fla. 2d DCA 1997)). Certiorari “is limited to those instances where the lower court [i.e., the circuit court] did not afford procedural due process or departed from the essential requirements of law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003) (citing Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 525 (Fla.1995)). There is a departure from the essential requirements of law justifying certiorari review “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id.

When reviewing a circuit court’s dismissal of an appeal for failure to file a timely brief, this court has noted that it has declined to dismiss an appeal even when it dealt with an attorney

who filed a notice of appeal, was granted an extension of time to file a brief, failed to file the brief timely, failed to comply with this court’s order to show cause, and still was not prepared to file the initial brief in the case when ordered to appear before the court to explain his failures to comply with previous court orders.

Hastings v. State, 640 So.2d 115, 116 (Fla. 2d DCA 1994) (citing Moose v. State, 519 So.2d 61, 62 (Fla. 2d DCA 1988)). We also reiterated in Hastings that “we generally seek to avoid the harsh result of dismissal,] which can result in the sins of the attorney being visited upon the client.” Hastings, 640 So.2d at 116 (quoting Moose, 519 So.2d at 62). Although Hastings was a criminal case, its holding has been applied in the , civil context. See Magier v. Solomon & Benedict, P.A., 704 So.2d 685 (Fla. 2d DCA 1997); see also Summers v. Blanton, 853 So.2d 1108 (Fla. 1st DCA 2003) (detailing extensive abuses — including numerous appellate rules violations— that did not lead to dismissal).

Hastings clearly establishes as a principle of law that dismissals for the tardy filing of a brief are highly disfavored. Applying the principle articulated in Hastings to the petitioner’s counsel’s relatively minor negligence, which consisted largely of neglecting to file a motion for an extension of time to file the initial brief while the record was being supplemented, we conclude that the circuit court’s dismissal of the appeal' — -a drastic sanction imposed on petitioner for counsel’s failure — constituted “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Kaklamanos, 843 So.2d at 889.

We also conclude that the notice provided by the order that both vacated the dismissal and set the final deadline for the filing of the initial brief violated the requirements of due process. Due process requires that a court imposing a deadline on a litigant for the performance of a particular act give the litigant reasonable notice of the deadline before the deadline arrives. See United Auto. Ins. Co. v. Total Rehab & Medical Ctr., 870 So.2d 866, 869, 2004 WL 231799 (Fla. 3d DCA Feb.4, 2004) (“[Cjonsiderations of fairness dictate that if a failure to file the brief by the deadline may subject the appeal to dismissal, there must [be] fair warning of that fact in advance.”).

We therefore grant the petition for writ of certiorari. We quash the trial court’s order and direct that the appeal be reinstated.

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

      . We note that our disposition of this case does not preclude the imposition by the circuit court of an appropriate lesser sanction.


text:
    Francisco GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3389.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.
   PER CURIAM.

Affirmed. See Wright v. State, 864 So.2d 1153 (Fla. 2d DCA 2003) (en banc); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000). As this court did in Wright, we certify direct conflict with Kirtsey v. State, 855 So.2d 177 (Fla. 1st DCA 2003); Hernandez v. State, 825 So.2d 513 (Fla. 4th DCA 2002); Bingham v. State, 813 So.2d 1021 (Fla. 1st DCA 2002); Thames v. State, 769 So.2d 448 (Fla. 1st DCA 2000); Hampton v. State, 764 So.2d 829 (Fla. 1st DCA 2000); and Macias v. State, 614 So.2d 1216 (Fla. 3d DCA 1993).

Affirmed; conflict certified.

NORTHCUTT, COVINGTON, and WALLACE, JJ., concur.


text:
    Theodore HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3863.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.
   PER CURIAM.

Affirmed. See Wright v. State, 864 So.2d 1153 (Fla. 2d DCA 2003) (en banc). As this court did in Wright, we certify direct conflict with Kirtsey v. State, 855 So.2d 177 (Fla. 1st DCA 2003); Hernandez v. State, 825 So.2d 513 (Fla. 4th DCA 2002); Bingham v. State, 813 So.2d 1021 (Fla. 1st DCA 2002); Thames v. State, 769 So.2d 448 (Fla. 1st DCA 2000); Hampton v. State, 764 So.2d 829 (Fla. 1st DCA 2000); and Macias v. State, 614 So.2d 1216 (Fla. 3d DCA 1993).

Affirmed; conflict certified.

NORTHCUTT, COVINGTON, and WALLACE, JJ., concur.


text:
    Kenneth WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4064.
    District Court of Appeal of Florida, Second District.
    March 10, 2004.
    Kenneth Washington, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Kenneth Washington appeals the denial of his motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he sought credit for prior prison time served upon his resentencing for a violation of probation. We reverse because the State concedes that the trial court erred in denying the motion and that Washington has not received the proper credit from the Department of Corrections.

The State concedes that the trial court denied Washington’s motion based upon incorrect information supplied by a classification officer on June 10, 2003, in response to Washington’s inmate request. The State contends that, in fact, Washington has not been given credit for the prior 1878 days of prison time served and has only received credit for the 457 days that the trial court specifically ordered.

Based upon the State’s concession of error, we reverse and remand for the trial court to award Washington credit for time served in prison prior to beginning the probationary portion of his sentence, as well as credit for time served in jail. See Swain v. State, 845 So.2d 314 (Fla. 2d DCA 2003); Layman v. State, 787 So.2d 44 (Fla. 2d DCA 2001).

Reversed and remanded.

STRINGER and SILBERMAN, JJ., concur.


text:
    Maria T. THORNHILL, Appellant, v. ADMIRAL FARRAGUT CONDOMINIUM APARTMENTS ASSOCIATION, INC., Appellee.
    No. 3D03-1208.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Maria T. Thornhill, in proper person.
    Sutton & Montoto and John Sutton, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   PER CURIAM.

The issues raised by the appellant have already been decided against her in Admiral Farragut Condominium Apartments Ass’n v. Thornhill, 838 So.2d 1162 (Fla. 3d DCA 2002)(table). Therefore, the judgment under review is affirmed.


text:
    Fitzroy SALESMAN, Appellant, v. THE SCHOOL BOARD OF MIAMI-DADE COUNTY, Florida, Appellee.
    No. 3D03-1917.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Herdman & Sakellarides and Mark Herdman (Palm Harbor), for appellant.
    Melinda L. McNichols, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Our review of this case, including our viewing of the videotape filed with the court, discloses that the hearing officer’s findings of fact are supported by substantial competent evidence. Accordingly we must affirm the school board’s determination herein. Cohen v. School Bd. of Dade County, Fla., 450 So.2d 1238, at 1241 (Fla. 3d DCA 1984).

Affirmed.


text:
    Contrell Leo FLOYD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-3234.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Erin Kinney Zack, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and WELLS and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Rivera v. State, 840 So.2d 284 (Fla. 5th DCA 2003). The State’s request for certification is denied.


text:
    Luis A. FIGUEROA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-290.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.

      Luis A. Figueroa, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. The unsigned motion for DNA Evidence Examination does not comply with rule 3.853, Fla. R.Crim. P., but instead attempts to argue ineffective assistance of counsel.


text:
    Raul DEL TORO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-66.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Raul Del Toro, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Finding that the appellant’s sentence is not illegal, we affirm the order being reviewed.


text:
    Jose VILLAVICENCIO, Appellant, v. SIEMENS POWER TRANSMISSION, AND DISTRIBUTION, INC., Appellee.
    No. 3D03-2791.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    J.H. Zidell, for appellant.
    Thomas R. Brice and McGuire Woods (Jacksonville), for appellee.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   PER CURIAM.

In this action for retaliatory discharge under section 440.205, Florida Statutes (2001), the trial court entered summary judgment on the ground that the plaintiff made neither a “valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law” so as to invoke the protection of the statute. § 440.205, Fla. Stat. (2001). We agree and affirm.


text:
    VIRGINIA INVESTMENT FUND LIMITED PARTNERSHIP, formerly Known as International Financial Management Associates Limited Partnership, a Delaware limited partnership, James River Capital Corp., a Delaware corporation, Paul H. Saunders, individually, and Kevin M. Brandt, individually, Appellants, v. James NOLAN, Appellee.
    No. 3D03-2031.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Sidley, Austin, Brown & Wood, LLP, and Thomas K. Cauley, Jr., and Brian A. McAleenan (Chicago, Ill.); Sullivan & Rivero, P.A. and Lisa Berlow-Lehner, for appellants.
    Hall, David, and Joseph, P.A. and Christopher M. David, for appellee.
    Before GODERICH, GREEN, and WELLS, JJ.
   PER CURIAM.

Finding that the trial court did not abuse its discretion in denying the appellant/defendant’s motion for attorney’s fees pursuant to section 57.105, Florida Statutes (2000), we affirm. See Thomas v. Perkins, 723 So.2d 293, 294 (Fla. 3d DCA 1998) (holding that an order granting or denying attorney’s fees is reviewed on an abuse of discretion standard). See also Strothman v. Henderson Mental Health Ctr., Inc., 425 So.2d 1185 (Fla. 4th DCA 1983) (finding the mere failure of party to state cause of action in its original or amended pleadings not sufficient, in and of itself, to support sanctions under section 57.105); Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999) (holding that ruling of trial court will be upheld even if court reached right result but for wrong reason).

Affirmed.


author: PER CURIAM. GREEN, J.,

text:
    Robert Pascal ESCANESY, Petitioner, v. Louise BURNARD, Respondent.
    No. 3D03-2492.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Koltun & Lazar and Scott A. Lazar, Miami, for petitioner.
    Kluger, Peretz, Kaplan & Berlin and Michael L. Cotzen and Leslie Press, Miami, for respondent.

      Before SCHWARTZ, C.J., and GREEN, and WELLS, JJ.
   PER CURIAM.

The petition for writ of certiorari is denied.

SCHWARTZ, C.J., and WELLS, J., concur.

GREEN, J.,

dissenting.

Petitioner seeks a writ of certiorari vacating an order which denied his objections to the mother’s first request for production, to the extent that it permitted the mother to obtain his current wife’s financial documents and/or required him to obtain and produce documents of non-parties, in this child support litigation. For the following reasons, I would grant the petition and quash the order under review.

The duty to support a child financially falls on both natural parents. Condon v. Condon, 295 So.2d 681, 683 (Fla. 1st DCA 1974). If there is a showing, by clear and convincing evidence, that a parent cannot fulfill this duty out of his/her own funds, the financial circumstances of the parent’s current spouse are discoverable. Id.See also Birge v. Simpson, 280 So.2d 482, 483 (Fla. 1st DCA 1973) (finding income of step-parent relevant to determine ability of natural parent to pay support). To permit this discovery, however, where there has not been a record showing that the parent cannot meet this financial duty with his own funds, fosters undue harassment to the current family unit and constitutes an “unseemly invasion of the new spouse’s privacy.” Condon, 295 So.2d at 688.

Here, the trial court compelled the petitioner to produce his current wife’s financial statements based solely on a magazine article and the argument and representations of the mother’s counsel. This alone is not evidence, let alone clear and convincing evidence, and justifies our certiorari intervention. See Fla. E. Coast Ry., L.L.C. v. Jones, 847 So.2d 1118, 1119 (Fla. 1st DCA 2003) (finding certiorari appropriate where court’s ruling work product discoverable based solely on assertions counsel departed from essential requirement of law and caused material harm because the disclosure of this information could not be remedied on final appeal).

      . In addition, I believe that the petitioner was also improperly ordered to produce the documents of a non-party corporation. Rule 1.350(a), specifically permits a party to request another party

      (1) to produce and permit the party making the request ... to inspect and copy any designated documents ... that are in the possession, custody, or control of the party to whom the request is directed!)]
      Fla. R. Civ. P. 1.350(a)(1). Since there has been no finding that the documents sought from the non-parties are in the possession and/or control of the petitioner, I believe that this order was also in error. Such information, however, could, upon proper showing, be obtained through the procedures described in Florida Rule of Civil Procedure 1.351.


author: MONACO, J.

text:
    PALADYNE CORP., Appellant, v. Ronald Lynn WEINDRUCH, Appellee.
    Nos. 5D03-1567, 5D03-2011.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.

      Steven E. Brust and Roger K. Gannam of Smith, Gambrell & Russell, LLP, Jacksonville, for Appellant.
    Patricia R. Sigman of Sigman & Sigman, P.A., Altamonte Springs, and T. Robert Reid of T. Robert Reid, P.C., Atlanta, Georgia, for Appellee.
   MONACO, J.

There are a number of maxims that govern the interpretation of -contracts. Among these are the rules of construction requiring courts to read provisions of a contract harmoniously in order to give effect to all portions,of the contract, and to give effect to every term in the agreement. See, e.g., City of Homestead v. Johnson, 760 So.2d 80, 83 (Fla.2000). We conclude that the trial court failed to apply these principles, and as a result, misinterpreted the employment contract contested by the parties in this case. Accordingly, we reverse.

Paladyne Corporation appeals two final judgments in favor of the appellee, Ronald Lynn Weindruch. The first judgment awards damages to Mr. Weindruch for severance pay in the amount of $137,500, among several other awards which are not being contested in this appeal. The second judgment awards attorney’s fees for Mr. Weindruch, including fees for the time spent litigating the amount of fees. We will consider the issues raised by each judgment separately.

I. Interpretation of the Contract.

Mr. Weindruch began working for Pala-dyne in 1997. On February 1, 2000, while he was president of the corporation, Mr. Weindruch entered into a written employment agreement (the “Agreement”), with Paladyne. Paragraph 2 of the Agreement, entitled “Term,” states in pertinent part:

Term. Subject to the provisions for the termination as hereafter provided, the term of this Agreement shall begin on the date hereof and shall terminate on January 31, 2001. Thereafter, this Agreement shall be automatically renewed for successive one-year terms unless either party notifies the other of non-renewal at least 30 days prior to the expiration of the then current term. The compensation and other benefits provided for herein shall be subject to annual review and adjustment where appropriate by the Company’s Board of Directors.

Paragraph 10, entitled “Termination,” sets out a number of ways that termination of the Agreement can be effected:

(i) Without Cause. Without cause, the Company may terminate this Agreement at any time upon 30 days written notice to the Employee. In such event, the Employee shall continue to receive Regular Compensation throughout the current Agreement period plus one additional year as more fully explained in Section 2 of this Agreement. The Employee shall be entitled to any bonuses fully accrued through the termination date.
(ii) With Cause. The Company may terminate the employment of the Employee hereunder immediately upon written notice thereof in the event of material fraud or dishonesty by the Employee in connection with his employment or if the Employee is convicted of a felony. In such event, the Company shall pay the Employee only such compensation as shall have Fully Accrued on the date of termination.
(iii)Termination by Employee. The Employee may terminate this Agreement at any time upon 30 days prior written notice to the Company. In such event, the Employee shall be entitled to receive his compensation only to the extent Fully Accrued on the date of termination.

Paladyne merged with E-commerce Support Centers, Inc., in late 2000 or early 2001, and Mr. Weindruch found himself with a new position in the surviving company entitled Executive Vice President— Business Development. On December 27, 2001, Paladyne elected to send Mr. Wein-druch written notice of its intent pursuant to paragraph 2 not to renew the Agreement for the term that would have begun on February 1, 2002, and declined to pay him any severance pay.

Mr. Weindruch sued Paladyne for breach of contract, alleging that as he was effectively “terminated” from his employment without cause under paragraph 10(i), he was entitled to severance pay for one year of “Regular Compensation,” totaling $137,500. The case proceeded to nonjury trial. Because the trial court concluded that the Agreement was unambiguous, no extrinsic evidence was heard, except with respect to certain matters that are not germane to this discussion. The able trial judge concluded as a matter of law that the non-renewal of the Agreement under paragraph 2 was equivalent to a termination without cause under paragraph 10(i), and that Mr. Weindruch was, therefore, entitled to receive damages in the amount of his severance pay.

Because the meaning of a contract and its effect are matters of law, we review cases concerning the interpretation of contract provisions by a de novo standard. See Dows v. Nike, Inc., 846 So.2d 595 (Fla. 4th DCA 2003); see also Paoli v. Natherson & Co., P.A., 750 So.2d 46 (Fla. 2d DCA 1999). Using this standard, we disagree with the conclusion that the non-renewal or expiration provision and the termination without cause provision were the same.

We noted at the outset that whenever possible, courts should give effect to all provisions of a contract. See Johnson, 760 So.2d at 84; Inter-Active Servs. v. Heathrow Master Ass’n, 721 So.2d 433, 435 (Fla. 5th DCA 1998). The construction placed on this contract by the trial court, however, essentially renders paragraph 2 of the document meaningless. We have adopted in similar cases' the time-honored rule of construction that, “Where the contract is susceptible to an interpretation that gives effect to all of its provisions, the court should select that interpretation over an alternative interpretation that relies on negation of some of the contractual provisions.” See, e.g., Inter-Active Servs., 721 So.2d at 435. There would be no point in having a non-renewal provision if the effect of not renewing the contract is identical to the effect of terminating the contract under paragraph 10(i). If the parties had intended severance pay to be a consequence of Paladyne’s non-renewal, then they certainly could have agreed to do so with language to that effect in paragraph 2. As they did not, the clear meaning of these provisions is that there would be a severance package upon a termination under paragraph 10(i), but there would be no severance pay at the expiration of the contract term.

In Pitney-Bowes, Inc. v. Mestre, 517 F.Supp. 52 (S.D.Fla.1981), a federal district court construed a contract that used the separate terms “expiration” and “termination” to describe ways that the contract could end, and concluded that expiration was not equivalent to termination. Specifically, the court stated that:

By agreeing in that paragraph “that expiration of this agreement, or its termination pursuant to terms hereof, shall not in ’any way affect the operation [of ■preceding provisions],” it is apparent that the parties viewed the terms to possess distinct, if not mutually exclusive, meanings. Thus, whatever else the term “expiration” means, the Court concludes that, based upon a facial reading of the Amendment, that word was not meant to be synonymous with ‘termination’ as used in paragraph 11(b).

Pitney-Bowes, 517 F.Supp. at 64. The same reasoning applies to the present contract. A facial reading of the two provisions leads us to the conclusion that the word “non-renewal” was not meant to be synonymous with “termination.”

Mr. Weindruch argues that because the two provisions under consideration cross reference each other, they were intended to require severance pay no matter how Paladyne chose to end the contract, except in the case of a termination for cause. The plain language of the provisions reflect, however, that the cross references have the limited purpose of defining the life of the contract.

We conclude, therefore, that trial court erred in finding in favor of Mr. Weindruch on the issue of severance damages.

II. Attorney’s Fees.

Mr. Weindruch recovered damages on a number of claims that are not contested in this appeal. At the conclusion of the proceedings the trial court awarded attorney’s fees in favor of Mr. Weindruch on the authority of Paragraph 17 of the contract between the parties, as well as section 448.08, Florida Statutes (2003). Paragraph 17 of the contract reads as follows:

Attorney’s Fees. In the event of any litigation or arbitration proceeding arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and expenses from the losing party, whether incurred before suit is brought, before or at trail (sic) or the arbitration proceeding, on appeal or in insolvency proceedings.

Section 448.08 entitled, “Attorney’s fees for successful litigants in actions for unpaid wages,” indicates that “The court may award to the prevailing party in an action for unpaid wages costs of the action and a reasonable attorney’s fee.” Inasmuch as we have reversed the final judgment of the trial court on the matter of severance damages, but recognizing that Mr. Weindruch was successful on several of his other causes of action, we remand the attorney’s fees issue to the trial court for a determination regarding which party is the prevailing party, and for a reassessment of fees upon the making of that decision, and in light of our ruling. See Cardinal Inv. Group, Inc. v. Giles, 813 So.2d 262, 263 (Fla. 4th DCA 2002).

We note, however, that the trial court awarded fees to Mr. Weindruch for the time spent in litigating the amount of attorney’s fees to be awarded. Because this issue is likely to arise again after remand, we address it in the context of the present appeal.

In this regard, we agree with the position of the Second District Court of Appeal, which applied the Supreme Court of Florida’s decision in State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830 (Fla.1993), to cases arising under section 448.08. In National Portland Cement Co. v. Goudie, 718 So.2d 274, 275 (Fla. 2d DCA 1998), the Second District held that the prevailing party is entitled under section 448.08 to attorney’s fees to establish entitlement to such an award, but not to establish the amount of the award. In fact, all appellate courts but the First District appear to agree that fees are not awardable for establishing the amount of the fee. See, e.g., Mediplex Const. of Fla. v. Schaub, 856 So.2d 13 (Fla. 4th DCA 2003); North Dade Church of God, Inc. v. JM Statewide, Inc., 851 So.2d 194 (Fla. 3d DCA 2003); Barron Chase Sec., Inc. v. Moser, 794 So.2d 649 (Fla. 2d DCA 2001); Mangel v. Bob Dance Dodge, Inc., 739 So.2d 720 (Fla. 5th DCA 1999); Seminole County v. Butler, 676 So.2d 451 (Fla. 5th DCA), review denied, 686 So.2d 581 (Fla.1996). Contra, Diaz v. Santa Fe Healthcare, Inc., 642 So.2d 765 (Fla. 1st DCA 1994).

Mr. Weindruch attempts to avoid the holding in these cases by suggesting that his attorney’s fee contract gives him an interest in the recovery of the fee. First of all, we find nothing in the attorney’s fee contract that would avoid the holding of Palma. Secondly, as we pointed out in Mangel, the litigant’s fee arrangement with his or her attorney is “not determinative of the fees he is entitled to recover as reasonable attorney’s fees.” Mangel, 739 So.2d at 724.

In summary, therefore, we reverse the determination that Mr. Weindruch was entitled to recover severance pay as damages, and remand for entry of a judgment in favor of Paladyne to conform to our holding. In addition, we reverse the award of attorney’s fees for Mr. Wein-druch, and remand for a determination of which party prevailed in this action. Finally, to avoid further litigation on this point, we hold that in reassessing fees the trial court should not grant fees to either party for the time taken to litigate the amount of the award.

REVERSED and REMANDED.

SAWAYA, C.J., and GRIFFIN, J., ■ concur.


author: PETERSON, J.

text:
    STATE of Florida, Appellant, v. Anthony D. JORDAN, Appellee.
    No. 5D03-1350.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.
    Charles'J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
    James B. Gibson, Public Defender, and Thomas'-J. Lukashow, Assistant Public Defender, Daytona Beach,' for Appellant.
   PETERSON, J.

.The State appeals a downward departure sentence imposed upon Anthony D. Jordan .who was arrested by a Seminole County Sheriffs deputy as Jordan was exiting a residence carrying a pink piggy bank and walking towards a purple vehicle parked in the driveway. The deputy’s sus: picion was - aroused because an attempted burglary had occurred at the same residence six days earlier.

After pleading guilty to burglary of a dwelling and grand theft, the court imposed a downward departure sentence instead of the lowest possible sentence of 37.65 months incarceration. . The court reasoned that the unsophisticated manner in which the crime was committed together with Jordan’s expression of remorse warranted the suspension of the two five-year terms of incarceration, and imposed ten years probation instead.

The trial judge’s reasoning is deficient in that section 921.0026(2)(j), Florida Statutes (2003), requires three prongs for departure. More specifically, section 921.0026(2)(j) mandates that: (1) the crime was committed in an unsophisticated manner; (2) the defendant has shown remorse; and (3) the crime was an isolated incident. E.g., State v. Thompson, 844 So.2d 814 (Fla. 5th DCA 2003). Jordan’s score sheet indicated that his convictions for burglary of a dwelling, a second-degree felony, and grand theft in the instant case, a third-degree felony, were not isolated incidents. Jordan had previously been convicted of ten prior felonies and four misdemeanors.

The State objected to the departure at sentencing by stating that “... the State would object to the court’s imposition of the downward departure sentence. The State doesn’t feel the prongs have been met by the defense.” The court then asked if there was “[ajnything further from the defense?” After hearing no response, the court then proceeded to sentence Jordan. Jordan now complains that the State’s objection was not specific enough, but the record does not indicate that either the court or Jordan’s counsel failed to understand the grounds for the objection. The reason for making an objection at the trial level is to bring an alleged error to the trial court’s attention so that the court can consider the matter. The record does not indicate that there was any doubt in either the court’s or the defense counsel’s minds about the grounds for the objection in the instant case.

Sentencing courts are not exclusively bound to the departure reasons promulgated in section 921.0026, but we do not believe that the Legislature intended that sentencing courts adopt, a new mitigating circumstance by simply eliminating one of the prongs of a statutorily enumerated reason for departure.

We quash the sentence and remand for sentencing within the guidelines.

SENTENCE QUASHED and REMANDED.

PLEUS and ORFINGER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jose Luis DELEON, Appellee.
    No. 5D03-1349.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
   PER CURIAM.

Jose Luis Deleon entered a plea of guilty to the. sale of cocaine and possession of cocaine in violation of sections 893.13(l)(a)l and (6)(c), Florida Statutes (2001). Although his score sheet provided for a period of 22.8 months as the lowest possible prison sentence, the trial court departed downward by imposing a sentence of two five-year periods of probation to be served concurrently. The court’s reason for the departure was the “unsophisticated nature of the offense.” The State appeals the downward departure.

Section 921.0026(2)(j), Florida Statutes (2001), provides that one of the nonexclusive grounds for departure is that “the offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” All three enumerated elements of section 921.0026(2)©, that the offense was 1) committed in an unsophisticated manner; 2) an isolated incident; and 3) the defendant must show remorse, must exist to constitute a basis for downward departure. E.g., State v. Thompson, 844 So.2d 814 (Fla. 5th DCA 2003). The three required elements of section 921.0026(2)© must be supported by the record. Id. at 815.

Here, the trial court only found that Deleon’s offense was unsophisticated in nature but failed to find that Deleon’s offense was an isolated incident or that he was remorseful. Deleon’s offense could not have been characterized as isolated because his score sheet reflected previous offenses including four third-degree felonies, one second-degree felony and various misdemeanors. One of those felonies was for possession of cocaine and the others included tampering with evidence, felony assault, dealing in stolen property and grand theft. Additionally, the fact that Deleon was riding a bicycle when he sold his cocaine to an undercover policeman does not appear to us to be an unsophisticated way to transport cocaine to a location for sale.

The sentence is vacated and we remand to the trial court for re-sentencing.

REVERSED and REMANDED.

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


text:
    Mary BAKARANIA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1969.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.
    Robert Wesley, Public Defender, and Gisela Then Caceres, Assistant Public Defender, Orlando, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the Order and Amended Order entered on July 2, 2003, which vacated an earlier order. The State concedes error in that the trial court did not have jurisdiction due to an intervening Notice of Appeal. See Haines v. State, 805 So.2d 972 (Fla. 2d DCA 2001). Appellant’s remaining point on appeal is moot.

The Order and Amended. Order dated July 2, 2003, are vacated.

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Ronald R. REDOUTEY, Appellant, v. Sheriff Ed DEAN, Appellee.
    No. 5D03-2175.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.
    Ronald R. Redoutey, Century, Pro Se.
    Daniel Kuhn, General Counsel, Office of Marion County Sheriff, Ocala, and Loren E. Levy of The Levy Law Firm, Tallahassee, for Appellee.
   PER CURIAM.

Ronald Redoutey appeals the denial by the trial court of his petition for writ of mandamus. We affirm the denial in all respects, save one. Because it appears that Mr. Redoutey falls within the definition of a “working prisoner,” he is entitled to a credit of thirty cents per day “on account of fines and costs adjudged against him or her.” See § 951.15, Fla. Stat. (2003). Thus we reverse in part, and remand to the trial court with instructions to grant the writ of mandamus with respect to the per diem charge.

AFFIRMED in part, REVERSED in part, and remanded with instructions.

PETERSON, THOMPSON, and MONACO, JJ., concur.


text:
    CDL and Gallagher Bassett Services, Inc., Appellants, v. Oscar COREA, Appellee.
    No. 1D03-0245.
    District Court of Appeal of Florida, First District.
    March 16, 2004.
    John P. Daly and Loren W. Fender of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellants.
    Dean Burnetti, Lakeland, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, CDL and Gallagher Bassett Services, Inc. (employer/carrier) challenge a final order awarding workers’ compensation benefits to Oscar Corea, the claimant and appellee. The appellants argue that the Judge of Compensation Claims (JCC) erred in finding that Corea’s false and misleading statements regarding his current physical health and post-accident employment did not preclude payment of workers’ compensation benefits pursuant to section 440.09(4), Florida Statutes (1999). This section precludes all benefits to an employee who knowingly or intentionally provides any false, fraudulent, or misleading oral or written statements for the purpose of obtaining benefits under Chapter 440. See also § 440.105(4)(b)l, Florida Statutes (1999). Because the JCC misapplied section 440.09(4), we reverse and remand the case for further proceedings.

Corea injured his lower back in the scope and course of his employment at CDL while loading boxes into a trailer on February 13,1999, and was diagnosed with cervical/thoracolumbar strain. After his initial diagnosis, Corea returned to work intermittently from March 1999, until he voluntarily terminated his employment on January 8, 2000. Corea was placed at maximum medical improvement on November 12, 1999, with a seven percent permanent impairment rating.

Corea sought temporary total and/or temporary partial benefits from February 13, 1999, to November 1, 1999, and continuing permanent total disability benefits and permanent total supplemental benefits beginning November 1, 1999. Corea also sought medical care and treatment for the nature of the injury and process of recovery as well as costs and attorney’s fees.

The claim proceeded to a hearing before the JCC who received evidence from CDL that Corea had obtained post-accident employment with another company, Weaver Cast, where he allegedly worked off and on from June 14, 1999, through October 21, 2000. CDL also produced evidence that Corea was engaged in physically demanding work via the testimony of Weaver Cast’s vice president and a videotape of Corea performing a variety of physical tasks. Corea maintained that the accident left him permanently and totally disabled, and incapable of dutiful employment. Co-rea further testified that he had not worked for Weaver Cast following the accident, but that his brother had obtained employment with Weaver Cast using Co-rea’s identity.

The JCC rejected Corea’s testimony and concluded that Corea had in fact been employed by Weaver Cast, as alleged, and that his testimony to the contrary was untruthful. Particularly, the JCC found it too coincidental that the periods of time Corea was alleged to have worked for Weaver Cast correlated with Corea’s periods of absenteeism at CDL. The JCC further found that Corea had exaggerated his injuries for the benefit of the court and ruled that Corea was physically capable of engaging in full-time gainful employment. The JCC concluded, however, Corea’s conduct did not “rise to the level of fraud as contemplated by Florida Statutes, § 440.105(4)(b)” and, thus, his actions were not sanctionable under sections 440.105(4)(b) and 440.09(4). The JCC awarded Corea temporary partial benefits for the period of time between the date of the accident and the date of maximum medical improvement, in addition to continued palliative medical care, costs and attorney’s fees. In so doing, the JCC erred.

As we have explained in a decision issued after the JCC entered the order on appeal, under section 440.09(4), knowingly false, incomplete, or misleading statements of material fact made by a claimant during workers’ compensation proceedings regarding his current state of health or post-accident employment are deemed to be made in support of the claimant’s claim for benefits. See Village Apartments v. Hernandez, 856 So.2d 1140, 1141-42 (Fla. 1st DCA 2003). Here, the JCC referenced several statements made by Corea in depositions and at the hearing that appeared to be false or misleading. If Corea knew at the time he made the material statements in advancement of his claim for workers’ compensation benefits that the statements were false, incomplete or misleading, then Corea would forfeit his right to all benefits, pursuant to section 440.09(4). Id.

Accordingly, we reverse and remand for the JCC to conduct a fact-finding hearing to determine whether Corea knowingly or intentionally made any false, incomplete, or misleading statements concerning facts material to his claim for workers’ compensation benefits. If the JCC finds that Corea had reason to know that his statements regarding his current injuries and post-accident employment were false or misleading at the time the statements were made, or that he intended to make such statements in support of his claim for benefits, then the JCC should rule that the statements fall within the scope of section 440.105(4)(b)l. See Hernandez, 856 So.2d at 1142.

REVERSED and REMANDED with instructions for further proceedings.

KAHN, BENTON AND VAN NORTWICK, JJ., concur.


author: WOLF, C.J.

text:
    Robert McDOWELL, Appellant/Cross-Appellee, v. Linda McDOWELL, Appellee/Cross-Appellant.
    No. 1D02-5032.
    District Court of Appeal of Florida, First District.
    March 16, 2004.
    Christopher L. Craun, Lake City, for appellant/cross-appellee.
    Robert A. Sandow, Live Oak, for appel-lee/cross-appellant.
   WOLF, C.J.

A number of issues are raised by the former husband and former wife in this appeal and cross-appeal from a final judgment of dissolution of marriage. Only the issues dealing with valuation of the family business, Columbia A-Flex, have merit. We affirm the trial court’s finding that the business was a marital asset. However, both parties dispute the valuation as to this marital asset. It is unclear from the record how the trial court reached its determination as to the value of this asset. The trial court also misidentified the date of the filing of the petition for dissolution of marriage which it determined was the correct date of valuation for the business. We, therefore, reverse the trial court’s finding as to this asset and remand for specific findings as to how the court arrived at the original valuation of the business, or for a new valuation of the business, and for adjustment of the scheme of equitable distribution as necessitated by any new valuation. In all other respects the decision of the trial court is affirmed.

PADOVANO and POLSTON, JJ., concur.


text:
    Randy HENDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3339.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    Patrick C. Rastatter of Glass & Rastat-ter, P.A., Fort Lauderdale, for Appellant.
    Charles' J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

Pursuant to appellee’s, State of Florida, second amended concession of error, this case is reversed and remanded to the trial court for resentencing. See Byrd v. State, 853 So.2d 1103 (Fla. 4th DCA 2003).

REVERSED AND REMANDED.

STONE, SHAHOOD and TAYLOR, JJ., concur.


text:
    Velecta PARAMOUNT, an International corporation, Appellant, v. Michael GILBERT, individually, and International Styling Tools, Inc., a Florida corporation, jointly and severally, Appellees.
    No. 4D03-1634.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    Guy B. Bailey, Jr., and John E. Hughes, III, of Bailey & Dawes, L.C., Miami, for appellant.
    Cort A. Neimark of Neimark & Nadel, P.A., Fort Lauderdale, for appellee Michael Gilbert.
   PER CURIAM.

Pursuant to section 68.065(1), Florida Statutes (2001), appellant Velecta Paramount brought an action against appellee Michael Gilbert, in his individual capacity. Section 68.065(1) applies in “any civil action brought for the purpose of collecting a check.” Appellant’s “civil action” to collect the check was based on section 673.4011(1), Florida Statutes (2001), which creates liability “on an instrument.” The check at issue is an instrument. See § 673.1041(5)-(6), Fla. Stat. (2001). In this case, section 673.4021(3), Florida Statutes (2001) operates to relieve Gilbert of personal liability on the check. See Serna v. Milanese, Inc., 643 So.2d 36, 38 (Fla. 3d DCA 1994). If Gilbert is not liable on the check, section 68.065(1) does not create a separate cause of action which can be the basis of liability.

AFFIRMED.

STONE, GROSS and HAZOURI, JJ., concur.


text:
    David SAWYER, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2141.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.

      John J. Anastasio, Port St. Lucie, for appellant.
    Charles J. Crist, Jr., Attorney General, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of driving after his license had been permanently revoked, a violation of section 322.341, Florida Statutes (2000). We affirmed his conviction in Sawyer v. State, 819 So.2d 966 (Fla. 4th DCA 2002); however, that decision has now been reversed and remanded for reconsideration. Sawyer v. State, 867 So.2d 402, 2004 WL 351467 (Fla. Feb.26, 2004). We therefore reverse appellant's conviction. If the jury was instructed on lesser offenses in this case, appellant may be retried on such offenses. State v. Wilson, 680 So.2d 411 (Fla.1996).

POLEN, KLEIN and TAYLOR, JJ., concur.


text:
    Paul COPELAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-676.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2004.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This is appellant’s Anders appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm appellant’s conviction and sentence, Leonard v. State, 760 So.2d 114 (Fla.2000); Maddox v. State, 760 So.2d 89 (Fla.2000); Robinson v. State, 373 So.2d 898 (Fla.1979); Garrett v. State, 788 So.2d 328 (Fla. 4th DCA 2001), without prejudice to any right appellant has to raise issues concerning the voluntary nature of his plea in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The notice of appeal divested the trial court of jurisdiction to rule on appellant’s motion to withdraw plea. McCray v. State, 840 So.2d 274 (Fla. 4th DCA), rev. denied, 851 So.2d 729 (Fla.2003).

FARMER, C.J., STONE and KLEIN, JJ., concur.


text:
    Jacques ALTERMA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-679.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.

      Bennett H. Brummer, Public Defender, and Ada Manzano Avallone, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General,, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See State v. White, 418 So.2d 411 (Fla. 2d DCA 1982).


text:
    The STATE of Florida, Appellant, v. Marling ALFARO, Appellee.
    No. 3D03-745.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellant.
    Martin G. McCarthy, for appellee.
    Before GERSTEN, FLETCHER, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See State v. Seraphin, 818 So.2d 485 (Fla.2002).


text:
    Celia ZAPATA, et al., Appellant, v. CITY OF HOMESTEAD, etc., Appellee.
    No. 3D03-1052.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    William F. Sullivan, TV, Lighthouse Point, for appellant.
    Kuvin & Stettin and Eric L. Stettin, Fort Lauderdale, for appellee.
    Before SCHWARTZ, C.J., and LEVY, J., and HARRIS, CHARLES, Senior Judge.
   PER CURIAM.

Affirmed. See Prieto v. Miami-Dade County, 803 So.2d 780 (Fla. 3d DCA 2001), review denied, 823 So.2d 125 (Fla.2002); Metropolitan Dade County v. Ivanov, 689 So.2d 1267 (Fla. 3d DCA 1997), review denied, 698 So.2d 543 (Fla.1997); Ameijeiras v. Metropolitan Dade County, 534 So.2d 812 (Fla. 3d DCA 1988), review denied, 542 So.2d 1332 (Fla.1989).