text:
    Angela HARRIS, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 1D02-0655.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    Ben R. Patterson of Patterson & Trayn-ham, Tallahassee, for Appellant.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Angela Harris appeals the denial of unemployment compensation benefits. We find that the record lacks competent substantial evidence to support the referee’s finding that Harris committed an offense that would disqualify her from employment under section 435.04, Florida Statutes (2001). Harris is eligible for unemployment compensation because the employer failed to meet its burden of proof. Accordingly, we reverse and remand with instructions to grant the benefits due under Chapter 443, Florida Statutes.

REVERSED and REMANDED.

ALLEN, C.J., and BENTON and HAWKES, JJ., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terry JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-503.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2003.
    Terry Johnson, Lowell, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See LaFleur v. State, 812 So.2d 545 (Fla. 4th DCA 2002); Hope v. State, 766 So.2d 343 (Fla. 5th DCA 2000).

PALMER, ORFINGER and MONACO, JJ., concur.


text:
    Robert W. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-352.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2003.

      Robert W. Jackson, Lake Butler, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Jackson v. State, 817 So.2d 959 (Fla. 5th DCA 2002).

PETERSON, GRIFFIN and PALMER, JJ., concur.


text:
    Rafael GRANADOS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-345.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2003.
    Rafael Granados, Bushnell, Pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Crabtree v. State, 624 So.2d 743 (Fla. 5th DCA 1993).

PETERSON, MONACO and TORPY, JJ., concur.


text:
    Robert ETHERIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2934.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2003.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Maddox v. State, 760 So.2d 89 (Fla.2000); Washington v. State, 814 So.2d 1187 (Fla. 5th DCA), review dismissed, 831 So.2d 675 (Fla.2002).

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


text:
    Raygon LUDD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2397.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2003.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Taylor Rush, Assistant Attorney General, Daytona Beach, for Appellant.
   PER CURIAM.

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

SHARP, W., SAWAYA and PLEUS, JJ., concur.


text:
    Ricardo THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-292.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2003.
    Harley I. Gutin, Cocoa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rolling v. State, 825 So.2d 293 (Fla.2002); Valle v. State, 778 So.2d 960 (Fla.2001).

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


author: CASANUEVA, Judge.

text:
    Richard W. COLWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2297.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

We review a conviction and sentence following revocation of Richard W. Col-well’s probation. Mr. Colwell asserts that there was insufficient evidence for the trial court to find that he violated condition five of his probation by committing a new offense of domestic battery. We reverse.

The State presented only one witness at the revocation hearing to substantiate the domestic battery, the deputy who responded to a 911 call at a convenience store. At the convenience store, the deputy encountered Mr. Colwell’s wife, who had placed the call from the public phone there. The deputy testified that Mrs. Colwell told her that Mr. Colwell had grabbed her and that she was afraid to go back to the house. The deputy described Mrs. Colwell’s condition as intoxicated, hysterical, very frantic and excited, although she was not crying. The deputy observed a faint red mark on Mrs. Colwell’s neck, which Mrs. Colwell said had resulted from Mr. Colwell grabbing her there. According to the deputy, Mrs. Colwell did not say when the incident happened, only that it had just occurred. Neither Mr. nor Mrs. Colwell testified at the hearing.

Mr. Colwell contends that his revocation was based on inadmissible hearsay and other insufficient evidence and it was, therefore, error to revoke his probation. We agree with his contention.

The transcript from the revocation hearing shows that the trial court properly recognized the distinction between hearsay that is admissible at a criminal trial based on an exception to the hearsay rule and inadmissible hearsay. The general rule is that hearsay evidence that would be inadmissible in a criminal trial cannot form the sole basis for revoking probation. Gammon v. State, 778 So.2d 390, 392 (Fla. 2d DCA 2001). The deputy’s testimony about Mrs. Colwell’s statements was clearly hearsay, but the trial court declined to rule whether, as argued by the State, it was admissible as an exception to the hearsay rule as an excited utterance. Instead the trial court found that there was additional evidence to prove the domestic battery — the red mark on Mrs. Colwell’s neck that was consistent with her statements to the deputy and her hysterical demeanor. As a matter of law, this additional evidence was insufficient to sustain the revocation.

In Bales v. State, 793 So.2d 87 (Fla. 2d DCA 2001), we addressed a similar set of facts. At the defendant’s revocation hearing, a police officer testified that the defendant’s girlfriend said the defendant had punched her in the face and pushed her. The officer had also observed some redness on her elbow. Based on this evidence, the trial court concluded that the defendant had battered his girlfriend. In reversing, we held the officer’s description of the girlfriend’s statement was insufficient as pure hearsay to prove the battery. We did not address whether the girlfriend’s statement coupled with the officer’s observation of redness on her elbow was sufficient because the trial court’s determination was premised only on the girlfriend’s statement as reported by the officer.

However, this issue was presented in Blair v. State, 805 So.2d 873 (Fla. 2d DCA 2001), in which we reversed a revocation of probation due to insufficient evidence. In Blair, the prosecution presented only limited evidence to prove the defendant had violated his probation by committing a domestic battery on his wife. The deputy who responded to the crime scene testified to statements the victim made. The victim told the deputy that the defendant grabbed her arm and wrist and dragged her through the house. The deputy also testified to observing the disarrayed condition of the house. Recognizing that although hearsay evidence is admissible in a probation revocation hearing, it cannot be the sole evidentiary basis for revocation, we concluded the evidence was legally insufficient:

The record reveals the only evidence linking Blair to the commission of a battery was the hearsay testimony of the deputy concerning what the victim said had occurred. While the victim’s physical state and appearance of the residence suggested to the deputy that a struggle had occurred, the deputy’s observations could not connect Blair to the alleged battery.

Id. at 876-77.

Similarly, in Mr. Colwell’s case, while the faint red mark on Mrs. Colwell’s neck and her behavior may have suggested that improper contact occurred, the deputy’s observations alone did not provide a sufficient evidentiary link to the perpetrator of the alleged domestic battery. That the red mark on her neck may have resulted from Mr. Colwell grabbing her suffers from the same hearsay deficiency as the remainder of the deputy’s testimony. Furthermore, Mrs. Colwell’s hysterical demeanor may have been due to her intoxicated state; her hysteria does not otherwise prove the domestic battery.

Because the State presented insufficient evidence to support a finding that Mr. Colwell violated condition five by committing domestic battery on his wife, we hold the trial court erred in revoking his probation. Accordingly, we reverse and vacate the revocation order, the judgment, and the sentence, and remand for the trial court to restore Mr. Colwell to probation.

Reversed and remanded with instructions.

FULMER and KELLY, JJ., Concur.

      . § 90.803, Fla. Stat. (2001)

      . Had the trial court ruled that the hearsay fell within the excited utterance exception, we doubt whether we could have sustained that decision based on Bales v. State, 793 So.2d 87 (Fla. 2d DCA 2001), and section 90.803(2). Even assuming the battery had "just occurred,” as the deputy reported Mrs. Colwell said, there was too little evidence that Mrs. Colwell was still under the effect of the startling occurrence, as she had time to leave her home, go to the convenience store, call the police, and wait for the deputy’s arrival.


author: SCHWARTZ, Chief Judge.

text:
    MIAMI-DADE POLICE DEPARTMENT, Appellant, v. William F. MARTINEZ, and In re Forfeiture of 101,100.00 in United States Currency, Appellee.
    No. 3D01-3391.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Judith E. Secher, for appellant.
    Barrett, Rogers & Associates and William L. Rogers, Miami, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and FLETCHER, JJ.
   SCHWARTZ, Chief Judge.

The Miami-Dade Police Department, the petitioner in a proceeding for the forfeiture of $101,100.00 which allegedly belonged to the appellee William Martinez, appeals from an order suppressing the money on Fourth Amendment grounds. Specifically, although it is undisputed that the cash was found during a search to which the owner and occupant of the premises, Mrs. Victoria Cepeda, Martinez’s mother, voluntarily consented, the trial court held that (a) the searching officers’ alleged misrepresentation that the object of their proposed search was only for weapons, rather than for money and drugs, invalidated the consent and (b) the actions of the officers who — in the presence of and without objection from Mrs. Cepeda — opened a duct taped cereal box which contained the money and which was itself found within an open lock box inside a safe, exceeded the scope of even a valid consent thus requiring suppression. We reverse upon the holdings that both of these determinations are contrary to the law.

I.

It is clearly established that the mere fact that, as the trial judge found, Mrs. Cepeda’s consent may have been induced by a deception as to what the officers were really looking for does not poison a consensual search which, as was plainly the ease here, was otherwise voluntary under the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); People v. Zamora, 940 P.2d 939 (Colo.Ct.App.1996); Dormezil v. State, 754 So.2d 168 (Fla. 5th DCA 2000), review denied, 805 So.2d 805 (Fla.2001). To the contrary, “deception, standing alone does not invalidate consent.” Zamora, 940 P.2d at 942 (emphasis added). For example, in Zamora, the court upheld a consent search induced by misrepresentation of the officers, who were actually searching for evidence of an assault in the defendant’s apartment, that they merely wanted to look at the apartment’s layout to aid in an investigation of a domestic dispute in an adjacent one. Similarly, in United States v. Andrews, 746 F.2d 247 (5th Cir.1984), cert, denied, 471 U.S. 1021, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985), overruled on other grounds, United States v. Hurtado, 905 F.2d 74 (5th Cir.1990), a misrepresentation that the federal agents wanted to see the defendant’s sawed off shotgun to try to connect it with a robbery, when their actual purpose was to establish the illegal possession of the firearm itself did not taint the defendant’s consent. Accord Schneck-loth, 412 U.S. at 218, 93 S.Ct. 2041; United States v. Carter, 884 F.2d 368, 375 (8th Cir.l989)(stating rule that deception “standing alone” does not invalidate consent). See generally People v. Santistev-an, 715 P.2d 792 (Colo.1986), cert, denied, 479 U.S. 965,107 S.Ct. 468, 93 L.Ed.2d 412 (1986)(misrepresentation by police about the purpose of a search may weigh against a finding of consent but does not invalidate consent); State v. Johnson, 253 Kan. 356, 856 P.2d 134 (1993)(poliee could obtain consent to search by claiming they were looking for a third party); State v. Watson, 416 So.2d 919 (La.l982)(police may search suitcase for drugs by obtaining owner’s consent to search suitcase for identification); Commonwealth v. Morrison, 275 Pa.Super. 454, 418 A.2d 1378 (1980)(police may misrepresent both identity and purpose to obtain consent to enter home), cert, denied, 449 U.S. 1080, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981).

II.

We find similar error in the conclusion that the scope of the search exceeded Mrs. Cepeda’s consent, valid or not. To the contrary, because the search was of no greater intensity than they represented they would in fact make, the officers did not impermissibly go beyond its lawful scope. In other words the officers could have reasonably concluded that the weapons they were allegedly searching for, see supra note 1, could have been in the safe or the closed metal box which was within that safe, or in the cardboard box within the metal one.

When a warrantless search is conducted pursuant to consent, the police “have no more authority than that reasonably conferred by the terms of the consent.” Dominguez v. State, 616 So.2d 506 (Fla. 3d DCA 1993)(quoting State v. Wells, 539 So.2d 464, 467 (Fla.1989), ajfd on other grounds, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)), review denied, 624 So.2d 268 (1993). The standard for measuring the scope of a consent is one of objective reasonableness, what an ordinary reasonable person would understand, under all the circumstances, including the purported purpose of the search, was the scope of consent between the officer and the consenting person. See Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991).

There is no doubt that Cepeda had authority to allow the search of a safe in her bedroom to which she had the combination, and in which she kept gold and her jewelry. Even if her consent were limited to weapons as Cepeda alleges, the safe, and the metal box within the safe, were reasonably capable of containing weapons or their parts. We find therefore that this consent extended to containers within the safe as well as a matter of law.

Our conclusion to this effect is dictated by State v. Martin, 635 So.2d 1036 (Fla. 3d DCA 1994). In that case, the police had arrested the defendant and then obtained his wife’s consent to search their home for stolen property. A police officer found a jewelry bag in a master bedroom closet and asked the defendant’s wife whose bag it was. She replied only that she “hadn’t seen it.” The officer then opened the bag and found property later identified as having been stolen in the robbery. The trial court granted the defendant’s motion to suppress the bag and its contents finding that the consent to search was valid but did not extend to the container in the closet. This court reversed on the finding that the wife had authority to consent to the search through her joint control and common authority over the premises, that the bag was within the scope of consent because it was within an area authorized to be searched, and was reasonably capable of containing the stolen property. 635 So.2d at 1038. The court noted that the wife, like Ms. Cepeda, was present during the search and had the opportunity to limit the scope or discontinue it, but did not do so. See United States v. McSween, 53 F.3d 684, 688 n. 5 (5th Cir.l995)(“[W]e are unwilling to read Jimeno to hold ... that enforcement officials must conduct all searches in plain view of the suspect, and in a manner slowly enough that he may withdraw or delimit his consent at any time during the search.”), cert, denied, 516 U.S. 874, 116 S.Ct. 199, 133 L.Ed.2d 133 (1995).

Because cases like Martin apply even when there is an alleged misrepresentation as to the purpose of the search, see United States v. White, 706 F.2d 806 (7th Cir. 1983)(scope of consent to search for drugs extended to bag containing stolen money and officer’s subjective intent to search for money immaterial); State v. Watson, 416 So.2d 919, 921 (La.l982)(“[T]he police may have slightly misstated their purpose, but the scope of the search was of no greater intensity than they represented they would make.”), we think that Martin requires reversal on this point. Accord United States v. Mendoza-Gonzalez, 318 F.3d 663 (5th Cir.2003)(scope of defendant’s consent to look in back of truck not exceeded by officers’ slicing through tape on cardboard box and looking in where slicing accomplished with minimal force, did not impair box’s functionality, and did not affect contents); United States v. Flores, 63 F.3d 1342 (5th Cir.l995)(scope of consent to search car not exceeded where officers unscrewed vent covers from interior panels of car), cert, denied, 519 U.S. 825, 117 S.Ct. 87,136 L.Ed.2d 43 (1996).

III.

For these reasons, there was no Fourth Amendment violation, and the order below is therefore reversed. The cause is remanded for denial of the motion to suppress and for further proceedings consistent herewith.

Reversed and remanded.

      .We note that many of the trial court's factual determinations are shockingly inconsistent with the realities of the situation. For example, there is no rational explanation why the officers, including a Secret Service agent who was there specifically to look for counterfeit currency — a $100 counterfeit bill was actually found — and who testified that they had correctly stated their intentions to Ms. Cepeda, would have, as she contrarily testified, claimed that they were looking only for weapons: a finding which would obviate the factual and legal conclusions that a mis representation spoiled the consent and that the search exceeded the consent. In these and several other respects, we think that the facts as found below may be so offensive to the "appellate conscience and ... so obviously contrary to the manifest justice of the case” that they should not be relied upon. Miller v. First American Bank and Trust, 607 So.2d 483, 484 (Fla. 4th DCA 1992); see Florida Nat'l Bank v. Sherouse, 80 Fla. 405, 406, 86 So. 279, 279 (1920)("[I]f a decree is manifestly against the weight of the evidence, or contrary to the legal effect of the evidence, then it becomes the duty of the appellate court to reverse the same.”); Newman v. Smith, 77 Fla. 633, 650, 82 So. 236, 241 (1918)("Where the finding of a trial judge is contrary to the legal effect of the evidence on the issues made the appellate court should reverse the finding, even though the trial judge personally saw and heard the witnesses testify, and even though there were conflicts in the testimony, and there was some evidence tending to support the finding.”); Branam v. Aqua-Clear Pools, Inc., 672 So.2d 69 (Fla. 3d DCA 1996); Ziontz v. Ocean Trail Unit Owners Ass’n, Inc., 663 So.2d 1334 (Fla. 3d DCA 1993).
      We are content, however, to malee this observation only in dictum and place it only in a footnote because even accepting the trial judge's findings, reversal is nevertheless required.

      . In the light of Mrs. Cepeda’s testimony that she was simply "nervous” prior to her consent and gave no other indication of undue pressure by the officers, there is nothing to support the trial court’s finding that the officers' presence resulted in a "coercive and misleading atmosphere.” Compare United States v. Gillespie, 650 F.2d 127 (7th Cir. 1981), cert, denied, 458 U.S. 1111, 102 S.Ct. 3495, 73 L.Ed.2d 1374 (1981)(no voluntary consent where defendant confronted at his door by five FBI agents and police officers with drawn shotguns and revolvers, stating that they were looking for fugitives); Norman v. State, 379 So.2d 643 (Fla.l980)(coercive setting and consent involuntary where the result of initial illegal police activity and defendant not free to leave); Lockwood v. State, 470 So.2d 822 (Fla. 2nd DCA 1985)(consent coerced where defendant threatened with removal of children).

      . As pointed out in W.R. LaFave, 3 Search and Seizure: A Treatise on the Fourth Amendment § 8.2(n), at 710 (3d ed.1996), this rule, adopted by the Supreme Court in Schneckloth, is deemed essentially the same as the test in confession cases. Burch v. State, 343 So.2d 831 (Fla. 1977); Loredo v. State, 836 So.2d 1103 (Fla. 2d DCA 2003); State v. Manning, 506 So.2d 1094 (Fla. 3d DCA 1987).


author: NORTHCUTT, Judge.

text:
    Michael SPUZA, M.D., Appellant, v. DEPARTMENT OF HEALTH and Board of Medicine, Appellees.
    No. 2D02-19.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.

      Jon M. Pellett of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for Appellant.
    Pamela H. Page, Senior Attorney, Department of Health, Tallahassee, for Ap-pellee.
   NORTHCUTT, Judge.

The Department of Health revoked Dr. Michael Spuza’s license to practice medicine after an informal proceeding. See § 120.57(2), Fla. Stat. (2001). Spuza contends the Department should have given him a formal hearing. We agree and reverse for further proceedings.

Before this administrative license revocation proceeding began, Spuza was arrested on federal charges of receiving kickbacks in exchange for Medicare referrals and for conspiracy to defraud the United States. Spuza pleaded not guilty to these criminal charges, but was found guilty after a trial. He appealed his conviction and sentence to the Eleventh Circuit Court of Appeals. In that appeal, the government conceded that Spuza had not fraudulently billed the Medicare program or falsified any medical records. The Eleventh Circuit concluded that the government had not proved Spuza’s conduct caused harm to the Medicare program. United States v. Liss, 265 F.3d 1220 (11th Cir.2001). It upheld Spuza’s conviction, but vacated his sentence.

When Florida’s Agency for Health Care Administration learned of the charges against Spuza it began an investigation on behalf of the Department. After Spuza’s conviction, the Agency presented his case to the Board of Medicine for a determination of probable cause. The Board concluded there was probable cause to believe that Spuza had violated section 458.331(l)(c), Florida Statutes (2001), and it directed the Department to file an administrative complaint against Spuza’s license. Section 458.331(l)(e) provides:

(1) The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
(c) Being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine.

Spuza was served with the complaint and an Election of Rights form. The form stated that if Spuza disputed any material facts alleged in the complaint he could request a formal hearing and the appointment of an administrative law judge. Spu-za notified the Department that he disputed all material facts in the complaint and that he requested a formal hearing. The Agency responded that its prosecutor had determined there was no dispute of material fact because it had a copy of Spuza’s conviction. It advised Spuza that if he had any evidence disputing the facts in the complaint, he should forward that evidence to the Agency within five days of the date of the letter. If the Agency did not. hear from Spuza, it advised it would forward Spuza’s case to the Board of Medicine for an informal hearing. Without waiting for a response from Spuza, the Agency forwarded his case to the Board for an informal hearing. It also filed a motion for final order, alleging that there were no disputed material facts because of the conviction.

Spuza, through counsel, objected to the informal hearing. He submitted materials and a written argument stating the basis of his request for a formal hearing. His lengthy filing disputed both whether his conviction “related to the practice of medicine” and whether the Medicare program had been harmed by his conduct, an issue of fact relating to the penalty that could be imposed under Florida Administrative Code Rule 64B8-8.001.

Despite Spuza’s objections, the Board considered his case at an informal hearing and revoked his medical license. During the hearing, Spuza again asked the Board to terminate the proceeding and refer the matter for a formal hearing, but the Board refused. The final order revoking Spuza’s license stated that the Board had considered both aggravating and mitigating factors in reaching its decision, but it did not state what these factors were. The order noted that Spuza had requested a formal hearing, but the Board did not find any dispute in the material facts.

The Department took the position that Spuza’s conviction, in itself, was sufficient to prove a violation of section 458.331(l)(c), that there were no disputes of fact, and that a formal hearing under section 120.57(1) was; not required. It cited McGraw v. Department of State, Division of Licensing, 491 So.2d 1193 (Fla. 1st DCA 1986), in support of its position. The McGraw court held that “[t]o the extent that appellant sought to relitigate the question of his guilt regarding the subject offense,” a formal hearing was unnecessary. But Spuza was not attempting to relitigate his convictions. Rather, he claimed that the convictions did not “relate!] to the practice of medicine or the ability to practice medicine.” See § 458.331(l)(c). While the certified copy of the conviction certainly established that Spuza was found guilty of crimes, it did not, in itself, establish that the crimes were related to the practice of medicine. See § 458.305(3) (defining the practice of medicine to mean “the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition”). We conclude that Spuza raised questions of law and fact that required an evidentiary hearing. The Department erred in denying him the formal hearing he so adamantly requested. See Hernandez v. Dept, of State, Div. of Licensing, 546 So.2d 1174 (Fla. 3d DCA 1989).

In addition, at the informal hearing before the Board, material disputes of fact arose concerning whether Spuza’s crimes warranted the penalty the Board imposed. Spuza’s counsel argued that Spuza’s crimes had not caused any harm to the Medicare program and that he should not be disciplined on that basis. The transcript of the hearing reflects that some Board members relied on the amount of restitution ordered in the criminal case to determine the appropriate penalty. See Fla. Admin. Code R. 64B8-8.001(c). But, as Spuza’s counsel pointed out, in its review of Spuza’s conviction the Eleventh Circuit concluded that the government had offered no evidence that the Medicare program suffered any loss attributable to the kickbacks Spuza accepted. 265 F.3d at 1232. The amount of Spuza’s restitution was based on those kickbacks, not on any loss to Medicare. The Board should have terminated the proceeding and convened a formal hearing. See Klein v. Dep’t of Bus. & Prof l Regulation, 625 So.2d 1237, 1238-39 (Fla. 2d DCA 1993); see also Mixon v. Dep’t of State, Div. of Licensing, 686 So.2d 755, 756 (Fla. 1st DCA 1997).

We reverse the order revoking Spuza’s license to practice medicine, and we remand with directions to grant him a formal hearing under section 120.57(1).

FULMER, J. and THREADGILL, EDWARD F„ SENIOR JUDGE, Concur.


author: FULMER, Judge.

text:
    Phillip D. COOPER, Appellant, v. BRAKORA & ASSOCIATES, INC., a Florida corporation, Appellee.
    No. 2D01-4685.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.
    William M. Midyette, III, of Peterson & Myers, P.A., Lakeland, for Appellant.
    Edward F. Gagain, III, and Dale T. Golden of Marshall, Dennehey, Warner, Coleman & Goggin, Tampa, for Appellee.
   FULMER, Judge.

Phillip Cooper appeals the dismissal with prejudice of his claim for negligent misrepresentation against Brakora & Associates, an appraiser hired by Barnett Bank to help it evaluate Cooper’s mortgage loan application in conjunction with his purchase of residential property. The trial court based its dismissal on the lack of privity between these two parties. While dismissal was correct, we disagree with the trial court’s reasoning. Thus we write to explain our conclusion that Cooper cannot state a claim for negligent misrepresentation against Brakora because the appraisal was intended to assist in the loan transaction, not in the purchase and sale transaction.

Cooper entered into a contract on February 5, 1998, to purchase a ten-year-old house. The buyer and seller in this transaction used a standard form contract for purchase and sale prepared jointly by the Florida Association of Realtors and The Florida Bar. Cooper agreed to pay approximately $165,000 for the house. The contract provided that the house was being purchased “as-is,” and no amount was entered in the provision governing maximum repair costs.

Brakora was retained by Barnett Bank to perform an appraisal in conjunction with Cooper’s application for a mortgage loan. Brakora viewed the house and prepared a Uniform Residential Appraisal Report on February 17, 1998. The appraisal report was submitted on a Freddie Mac Form 70 6-93, and it is typical of the appraisal obtained for virtually any residential mortgage in Florida. In the “Description of Improvements” section of the form, Brako-ra’s report used one-word descriptions of the condition of the property and stated “drywall/good,” “wood/good,” and “2-Sto-ry/good.” Concerning the quality of construction, it stated “FRMV/good.” It described the overall condition as “good.” Brakora made these entries for the purpose of determining an appraisal. It appraised the .house at $173,000. The appraisal contained typical disclaimers and limitations including the statement: “The Appraiser assumes that there are no hidden or unapparent conditions of the property, subsoil, or structures, which would render it more or less valuable. The Appraiser assumes no responsibility for such conditions, or for engineering which might be required to discover such factors.”

The purchase and sale contract had a typical termite clause that permitted Cooper to obtain an inspection. An inspection was performed on February 17, 1998, by Groover Exterminating Company. This inspection disclosed active subterranean termites, moisture damage adjacent to a fireplace, and roof leaks throughout the attic. As a result, the sellers treated the house for termites prior to the closing and arranged for Federated Construction & Homes, Inc., to répair the termite damage. Federated allegedly represented that it had fixed all of the termite damage. Cooper also retained Watson’s Office Supply, d/b/a Home Services of America, to inspect this house prior to the closing. The inspector prepared a lengthy, detailed report but did not find any major problem with the house. Thereafter, Cooper closed on the real estate contract.

As alleged in his complaint, “approximately nine (9) months after the closing, Cooper discovered expansive termite damage throughout the residence which had occurred prior to the closing, and which necessitated approximately $50,000 to reasonably repair the termite damage.” Cooper is seeking to recover this $50,000. He has sued the sellers for breach of contract and negligent misrepresentation; Federated for negligent misrepresentation and unfair trade practices; and Watson’s Office Supply for breach of contract. None of these claims are involved in this appeal. For whatever reason, Cooper has not sued the termite inspector.

In addition to these parties, Cooper has sued Brakora & Associates, attempting to allege a claim for negligent misrepresentation as set forth in the Restatement (Second) of Torts § 552 (1977). Cooper has sued Brakora on the theory that “good” in the appraisal report was false information negligently supplied that caused him to sustain the $50,000 economic loss. He maintains that a non-negligent appraiser, during a standard inspection for a residential appraisal, would and should have found the termite damage that he himself did not discover for nine months. The trial court dismissed this action against Brakora with prejudice because no privity existed between Brakora and Cooper. However, privity is not dispositive of a claim under section 552, which sets forth “the circumstances under which [certain professionals] may be held hable in negligence to persons who are not in contractual privity.” First Fla. Bank, N.A. v. Max Mitchell & Co., 558 So.2d 9, 14 (Fla.1990). Nevertheless, Cooper’s claim against Brakora was properly dismissed because the detailed allegations in this case do not state a claim for negligent misrepresentation under section 552, which provides:

§ 552. Information Negligently Supplied for the Guidance of Others
(1) One who, in the course of his business, profession or employment, or any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable rebanee upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.

Cooper argues that Brakora’s duty to exercise reasonable care and competence in rendering the appraisal is extended to him under section 552 because Brakora knew that Cooper was the buyer of the property appraised and that he was a party to the loan transaction the appraisal was intended to influence. Thus, Cooper contends that he is within the “group of persons” the appraisal report was intended to benefit and guide. Brakora argues that although the report noted that the borrower was Cooper, the report was prepared for the benefit of the Bank, not Cooper. Brakora further argues that there are no allegations in Cooper’s complaint that Bra-kora knew Barnett Bank intended for Cooper to rely on the appraisal or that Brako-ra knew Barnett Bank intended for Cooper to rely on the information contained in the report.

To support his claim, Cooper relies on First State Savings Bank v. Albright & Associates of Ocala, Inc., 561 So.2d 1326 (Fla. 5th DCA 1990), disapproved on other grounds, Garden v. Frier, 602 So.2d 1273 (Fla.1992). In Albright, an appraiser was retained by the purchasers of a real estate development project to provide an accurate appraisal of the project. The appraisal specifically stated that its objective was to estimate the fair market value of the project for mortgage financing. It was part of the information provided to the bank for its consideration of whether a loan secured by the property should be made. An update prepared by the appraiser was addressed directly to the president of the bank. The Albright court adopted section 552 as setting forth the circumstances under which an appraiser may be held liable for negligence to third parties in the absence of privity and concluded that the bank did have a cause of action for negligence against the appraiser. Brakora argues that while Albright addresses the duties an appraiser owes to individuals with whom the appraiser is not in contractual privity, it is distinguishable and does not support Cooper’s claim.

We agree that the facts in Albright do not support Cooper’s claim. In the language of section 552, Brakora appraised Cooper’s house to provide “information for the guidance of’ the Bank and possibly Cooper in their “business transaction.” But the business transaction was a secured loan, not the purchase of a house. It is noteworthy that the contract for purchase and sale in this case was not conditioned on an appraisal. It was merely conditioned on Cooper obtaining a commitment to finance $146,250 of the purchase price at customary terms. Barnett Bank retained Brakora to help it evaluate the risk that it might undertake by agreeing to loan this amount to Cooper. Thus, the appraisal was not created to help Cooper decide whether $165,000, which he had already contracted to pay, was a fair price. At best, it was created to help both the Bank and Cooper decide whether they should enter into a mortgagor/mortgagee relationship. If the Bank, for example, had agreed to issue the necessary commitment based on Cooper’s good credit reputation, he could not have relied on the financing clause to avoid closing on this house even if an appraisal had evaluated the house at $100,000.

The tort theory announced in section 552 could easily overwhelm the law of contracts if it is not a limited theory. In a typical real estate transaction, the parties bargain for a distribution of risk and liability in exchange for monetary or other considerations, and this bargained-for exchange establishes some certainty that benefits both our legal system and the economy. This is particularly true for parties who are not the buyer, seller, or their immediate agents. Although the duties established by the law of negligence may play an appropriate role in commerce, section 552 will create great uncertainty unless the concept of a business transaction is narrowly defined. Accordingly, the “transaction” associated with an appraisal that is obtained purely for financing purposes after a contract for sale has been executed is the loan transaction. To permit section 552 to create a tort claim against a residential appraiser under the circumstances of this case would expand the meaning of “transaction” beyond that contemplated in the ordinary business relationship within which an appraisal for a lender is performed.

We conclude that Cooper cannot allege a section 552 claim against Brakora for the expense associated with repairing termite damage discovered after Cooper purchased his house. Assuming that Brakora negligently supplied false information indirectly to Cooper, this information was provided exclusively for a loan transaction, not for the transaction between the buyer and seller of the real estate. Cooper has not been economically damaged in his loan transaction with the bank. Accordingly, he has no viable claim against Brakora in this case.

Affirmed.

COVINGTON, J. and THREADGILL, EDWARD F., SENIOR JUDGE, Concur.

      . Although this case was dismissed on the pleadings, the pleadings are detailed and incorporate many relevant exhibits. Thus, the basic factual allegations, in the light most favorable to Cooper, are well established in this case.


text:
    DEPARTMENT OF REVENUE o/b/o Denise L. CLARK, Appellant, v. John WELLS, Jr., Appellee.
    No. 2D01-1871.
    District Court of Appeal of Florida, Second District.
    March 5, 2003.
    Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   FULMER, Judge.

The Department of Revenue (DOR) appeals the trial court’s order declining to hold John Wells, Jr., in contempt for failure to pay child support. DOR argues that the trial court violated Florida Family Law Rule of Procedure 12.491 by rejecting the hearing officer’s recommended order in its entirety rather than exercising one of the options set forth in rule 12.491(f). We agree and, therefore, reverse.

The orders entered in this case by the hearing officer and the trial court are virtually identical to the orders entered in Department of Revenue ex rel. Greene v. Bush, 838 So.2d 653 (Fla. 2d DCA 2003). Likewise, the issues raised in this appeal are the same. For the reasons explained in Bush, we reverse and remand for further proceedings.

Reversed and remanded.

WHATLEY and CASANUEVA, JJ., Concur.


text:
    Octavio Arnulfo HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1870.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General and John Barker, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Octavio Arnulfo Hernandez appeals his conviction for murder in the second degree with a deadly weapon, and requests a new trial.

On this appeal, Hernandez claims that he wants to challenge the trial court’s refusal of an additional peremptory challenge. The parties agree that due to court reporter carelessness, the transcript of the voir dire proceeding is missing and unable to be retrieved or reconstructed. In addition, the parties have been unable to reconstruct the record. Consequently, Hernandez is unable to receive meaningful appellate review, and is thus, entitled to a new trial. See Delap v. State, 350 So.2d 462, 463 (Fla.1977)(holding that where portions of the trial transcripts are unavailable, can not be reconstructed, and are necessary for a complete appellate review, a motion for a new trial should be granted); see also Swain v. State, 701 So.2d 675 (Fla. 3d DCA 1997)(granting new trial where voir dire transcript could not be recovered); Blasco v. State, 680 So.2d 1052 (Fla. 3d DCA 1996)(same); Rozier v. State 669 So.2d 353 (Fla. 3d DCA 1996)(same).

Reversed and remanded for a new trial.


text:
    David ZIER, a/k/a, David Michael Zier, Appellant, v. Nedra ZIER, Hillard Jack Cantley, and Virginia M. Cantley, Appellees.
    No. 3D01-3364.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    David Zier, in proper person.
    Hershoff, Lupion & Mulick and Kurt Von Gonten, for appellees.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

The trial court acted well within its discretion in ruling that the appellant former husband must reimburse the appellee former wife for attorney’s fees expended in compelling compliance with the final judgment and ruling that these fees will come from the former husband’s share of the proceeds of the sale of the parties’ home. See Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997); Meloan v. Coverdale, 525 So.2d 935, 937 (Fla. 3d DCA 1988).

Affirmed.


text:
    CITY OF HOMESTEAD, Appellant, v. Lin BROCKINGTON, Appellee.
    No. 3D02-749.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Kuvin & Stettin, and Eric L. Stettin (Fort Lauderdale), for appellant.
    Kaplan and Freedman, and Joel A. Kap-lan, Miami; Deutsch & Blumberg, and James C. Blecke, Miami, for appellee.
    Before SCHWAKTZ, C.J., GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Spicy v. City of Miami, 280 So.2d 419 (Fla.1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 869, 38 L.Ed.2d 755 (1974); LeGrand v. Dean, 564 So.2d 510 (Fla. 5th DCA 1990), rev. denied, 576 So.2d 288 (Fla.1991); Donner v. Hetherington, 399 So.2d 1011 (Fla. 3d DCA 1981).


text:
    Torrance JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2733.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Rehearing Denied April 4, 2003.
    Torrance Jones, in proper person.
    Charlie Crist, Attorney General, for ap-pellee.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

The opinion filed November 27, 2002, is withdrawn, and the following is substituted in its place:

Torrance Jones appeals an order denying his motion for postconviction relief. We affirm. “[N]either the trial court nor counsel has a duty to advise a defendant that the defendant’s plea in a pending case may have sentence enhancing consequences on a sentence imposed for a crime committed in the future.” Major v. State, 814 So.2d 424, 431 (Fla.2002). This court also bars postconviction relief even if counsel gives affirmative misadviee regarding the sentence enhancing consequences of a plea for a new crime committed in the future. Rhodes v. State, 701 So.2d 388 (Fla. 3d DCA 1997); see also Ford v. State, 753 So.2d 595 (Fla. 3d DCA 2000). That is so for practical, and public policy, reasons. “[T]he defendant is under a legal duty to refrain from committing further crimes. It makes no difference whether the defendant is given correct, or incorrect, advice regarding the possibility of enhanced punishment.” Scott v. State, 813 So.2d 1025, 1026-27 (Fla. 3d DCA 2002).

The Fourth District Court of Appeal has decided differently. See Jones v. State, 814 So.2d 446 (Fla. 4th DCA 2001); Smith v. State, 784 So.2d 460 (Fla. 4th DCA 2000). As we did in McPhee v. State, 823 So.2d 160 (Fla. 3d DCA 2002), Wallace v. State, 833 So.2d 796 (Fla. 3d DCA 2002), and Cifuentes v. State, 816 So.2d 804 (Fla. 3d DCA 2002), we certify direct conflict with Smith. See also Bates v. State, 818 So.2d 626 (Fla. 1st DCA 2002)(conflict certified); Stansel v. State, 825 So.2d 1007 (Fla. 2d DCA 2002)(same).

Rehearing granted; affirmed; direct conflict certified.


author: FLETCHER, Judge.

text:
    Yudi YERO, as Personal Representative of the Estate of Juan Suarez, Deceased, Appellant, v. MIAMI-DADE COUNTY, Montenay-Dade Ltd., and Montenay Power Corp., Appellees.
    No. 3D01-823.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Leeds, Colby & Paris; Lauri Waldman Ross, Miami, for appellant.
    Kubicki Draper and Angela C. Flowers, Miami, for appellees.
    Before COPE, GODERICH, and FLETCHER, JJ.
   FLETCHER, Judge.

Yudi Yero, the Personal Representative of the Estate of Juan Suarez, Deceased, seeks to reverse an adverse final summary judgment. We affirm.

Yero’s husband, Juan Suarez, was an employee of HBH Industrial Service [HBH], a subcontractor engaged to repair certain trash conveyors (trommels) at Miami-Dade County’s [County] Resource Recovery Plant [RRP] facility. The RRP is a trash recycling, burning, and landfill facility owned by the County. As the premises owner the County had contracted with Florida Power Corporation to use the premises to produce electricity and sell it to Florida Power Corporation. Monte-nay is under contract with the County for the operational management of the RRP.

While performing his duties as an HBH employee Suarez was electrocuted. Yero filed a multiple-count wrongful death action against Montenay and the County alleging negligent maintenance of the work site, failure to adopt and maintain adequate safety standards, failure to supervise, and failure to warn. The County and Montenay defended on the basis that the claims against them were barred by workers’ compensation immunity.

We agree with the trial court, which correctly determined that the County and Montenay are entitled to workers’ compensation immunity pursuant to section 440.10(l)(b), Florida Statutes (1995). That section provides:

“In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.” [e.s.]

HBH, as previously noted, is an independent subcontractor hired by Montenay to fulfill one of Montenay’s contractual obligations to the County, i.e., maintaining the trommels. This subcontract relationship made Montenay a statutory employer of the employees of HBH. See Gator Freightways, Inc. v. Roberts, 550 So.2d 1117 (Fla.1989). HBH, however, secured the payment of workers’ compensation for its own employees and upon Suarez’s death HBH’s workers’ compensation carrier paid benefits to Yero. Under these circumstances Montenay is immune from suit.

As to the County, its 440.10(l)(b) immunity arises out of its having contracted with Florida Power Corporation. The contractual arrangement requires the County to maintain and utilize the premises to generate electricity and sell it to Florida Power Corporation. This makes the County a contractor within the meaning of the statute. See Miami-Dade County v. Acosta, 757 So.2d 539 (Fla. 3d DCA 2000). As HBH secured payment of workers’ compensation, the County is immune from suit.

Affirmed.

      . Montenay-Dade, Ltd. and its general partner Montenay Power Corporation are related entities but separate defendants, and will be referred to jointly as "Montenay."


text:
    Marc Jean PAUL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2664.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Marc Jean Paul, in proper person.
    Charlie Crist, Attorney General, Marni A. Bryson, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Marc Jean Paul appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm and certify direct conflict.

Defendant-appellant Paul entered into a plea bargain whereby he was sentenced to eighteen years incarceration with a nine-year minimum mandatory term, to resolve four pending cases. At the time of the plea negotiation, his scoresheet was prepared under the 1995 guidelines. The defendant’s guidelines range was from twenty-six years to forty-three years, eight months. Thus, the plea bargain was for a below guidelines sentence.

Subsequently the Florida Supreme Court announced Heggs v. State, 759 So.2d 620 (Fla.2000), which found the 1995 sentencing guidelines unconstitutional for crimes committed on or after October 1, 1995 and before May 24, 1997. Trapp v. State, 760 So.2d 924 (Fla.2000). The defendant’s crimes are within the window period.

The defendant states that his plea was involuntary, because he relied on the unconstitutional 1995 guidelines in his negotiation. The defendant alleges that under the 1994 sentencing guidelines, his sentence would have been a maximum of 16.3 years. He contends that he based his plea on misinformation and that the plea is involuntary.

This court has held that a defendant is not entitled to relief under Heggs on an involuntariness theory. Foster v. State, 794 So.2d 731 (Fla. 3d DCA 2001). As we did in Foster, we certify direct conflict with Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000), and Mortimer v. State, 770 So.2d 743 (Fla. 4th DCA 2000).

Affirmed; conflict certified.


text:
    Nelson MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2524.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before LEVY, and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Nelson Martinez seeks reversal of an order of revocation of probation because it was signed by a judge other than the one who presided at the probation violation hearing. We affirm.

The written order conforms exactly with the oral findings of the presiding judge and the sentence imposed by him. See Peeples v. State, 831 So.2d 365 (Fla. 3d DCA 1976). The written order thus does not prejudice Martinez. Id. at 366. We distinguish this case from Acker v. State, 823 So.2d 875 (Fla. 2d DCA 2002) because Acker does not state whether the judge who presided at the revocation hearing orally revoked probation and imposed a sentence.

However, the State properly concedes that Martinez’s sentence for grand theft exceeded the statutorily permissible maximum. We agree and therefore reverse Martinez’s sentence on that count only and remand for resentencing. See Akins v. State, 816 So.2d 735 (Fla. 3d DCA 2002).

Affirmed in part, reversed in part and remanded.


text:
    Michael J. SATZ, State Attorney, and the State of Florida, Appellant, v. Lawrence RUNION, Appellee.
    No. 4D02-3225.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Rehearing Denied March 12, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Maria J. Patullo, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State Attorney for the Seventeenth Judicial Circuit, Michael J. Satz, and the State of Florida appeal an order of the criminal circuit court, which granted the defendant’s motion to enforce a plea agreement and ordered the state attorney to dismiss civil commitment proceedings under the Jimmy Ryce Act. We treat this appeal as a petition for certiorari. State v. Stapleton, 764 So.2d 886 (Fla. 4th DCA 2000); State v. Pettis, 520 So.2d 250 (Fla. 1988).

The trial court’s order deviated from the essential requirements of the law and will result in irreparable harm. As this Court has recently noted, “any bargain a defendant may strike in a plea agreement in a criminal case could have no bearing on a subsequent involuntary commitment under the Jimmy Ryce Act....” Krischer v. Farts, 838 So.2d 600 at 602 (Fla. 4th DCA 2003) (citing Murray v. Regier, 27 Fla. L. Weekly S1008, — So.2d-, 2002 WL 31728885 (Fla. Dec. 5, 2002)). The petition is granted and the trial court’s order is quashed.

STEVENSON, GROSS and MAY, JJ., concur.


author: PER CURIAM. GREEN, J. COPE, J.

text:
    Fernando FOLCHI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-829.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Bennett H. Brummer, Public Defender and Manuel Alvarez, Assistant Attorney General, for appellant.
    Charlie Crist, Attorney General and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).

GREEN, J.

(specially concurring).

I realize that I am bound by the doctrine of stare decisis to affirm the defendant’s conviction and sentence in this case. However, in accordance with my dissent in State v. Franklin, 836 So.2d 1112 (3d DCA 2003), I believe that Chapter Law 99-188, Laws of Florida, is violative of the single subject requirement of the Florida Constitution. See Art. Ill, § 6, Fla. Const.; see also Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

COPE, J.

(specially concurring).

While obliged to follow the majority opinion in State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), for the reasons I expressed in my dissent in that case chapter 99-188, Laws of Florida, violates the single subject requirement of the Florida Constitution. For the reasons stated in my dissenting opinion in State v. Barnes, 836 So.2d 1126 (Fla. 3d DCA 2003), the mandatory minimum sentence involved in this case cannot lawfully be imposed.


text:
    Andrew Arnold PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-790.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Bennett Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before JORGENSON, GERSTEN, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based on appellee State of Florida’s confession of error filed in this cause, the trial court’s summary denial of Perez’s post-conviction claim that his counsel was ineffective for failure to advise the court of Perez’s use of prescription medications is reversed and the cause is remanded for an evidentiary hearing on this issue.

Reversed and remanded.


text:
    Betty BERNAY f/k/a Betty Goldfarb and Marlene Cohn, Appellants, v. Raquel WOOLIN and The Estate of Martin Woolin, Appellees.
    No. 3D02-2556.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Kluger, Peretz, Kaplan & Berlin, and Bruce A. Katzen, and Alan J. Kluger, and Adam R. Shevin, and D. Fernando Boba-dilla, for appellants.
    Holland & Knight, and Daniel S. Pearson, and Barbara M. Arco, Miami, and Christopher Boyett, for appellees.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Golden Shores Prop., LLC. v. Santopietro, 792 So.2d 644 (Fla. 3d DCA 2001).


author: RAMIREZ, J.

text:
    Jorge ARTIME, Appellant, v. Marc C. BROTMAN, et al., Appellees.
    No. 3D02-2406.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.

      Dunn, Johnson, Dunn & Rose, and Neil Rose, Hollywood; and Stephen G. Hertz, Miami Beach, for appellant.
    Sonneborn, Rutter, Cooney & Klingen-smith, and William T. Viergever, West Palm Beach, for appellees.
    Before GREEN, and RAMIREZ, JJ„ and NESBITT, Senior Judge.
   RAMIREZ, J.

Jorge Artime appeals the dismissal of his cause of action for lack of prosecution. Because we conclude that the operative event is the filing of the motion to dismiss for lack of prosecution, we reverse the trial court’s dismissal.

In 1989, attorney Marc C. Brotman filed a lawsuit on Artime’s behalf against Bruce Lamberto and others, and obtained a jury verdict for $32,000 with interest. The trial court entered final judgment on April 24, 1995 in Artime’s favor against Lamberto. This Court reversed, holding that Artime had failed to demonstrate record activity in the lawsuit for more than a year. See Lamberto v. Artime, 672 So.2d 886 (Fla. 3d DCA 1996).

On September 2, 1998, Artime sued ap-pellees Marc C. Brotman, Joel R. Wolpe, Mark A. Liebowitz, and Steven R. Berger, for legal malpractice. Artime alleged that the defendants negligently permitted a period in excess of one year to expire during the pendency of the lawsuit without record activity by the filing of pleadings, order of court or otherwise. As fate would have it, Artime’s new counsel also neglected to prosecute the case diligently and another year elapsed without record activity.

On July 10, 2002, Brotman moved to dismiss for lack of prosecution. But as Lao-tzu wrote: “Good fortune lieth within bad, and bad fortune within good.” Instead of filing the motion, defense counsel mailed it to Artime’s counsel. Upon receipt of the motion, Artime’s counsel promptly filed a notice of trial on July 12, 2002, three days before the defendants’ motion was filed at the courthouse. At the hearing on the defendants’ motion to dismiss, the trial court dismissed Artime’s lawsuit for lack of prosecution because the defendants served their motion before Ar-time filed his notice.

The defendants argue that the trial court properly dismissed the case because the measurement for the one year lack of prosecution time period is based upon the date of service of the motion to dismiss and not the date on which the motion is filed. They rely upon the language contained in the 2002 Florida Supreme Court Model Final Judgment of Dismissal, Form 1.989, which states “for a period of 1 year before serving the motion.”

Rule 1.420(e), Florida Rules of Civil Procedure (2002), provides in pertinent part:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person.

(emphasis added). Thus, the language of the rule uses filing, not service, as the operative event to determine record activity. Nevertheless, the defendants argue that we should use service of the motion, not filing, as the operative event. This would create however, an incongruous and confusing situation for the courts when considering dismissal under rule 1.420(e) because they would look to the filing date for pleadings, but the date of service for motions. We decline defendants’ invitation to muddle what, we believe, has been clear in the rule and the case law.

As the Florida Supreme Court recently stated in Metropolitan Dade County v. Hall, 784 So.2d 1087, 1090 (Fla.2001), rule 1.420(e) provides that actions be dismissed “if it appears on the face of the record that there was no activity within the past year. This requires only a review of the record. There is either activity on the face of the record or there is not.” (emphasis supplied). The rule has engendered sufficient litigation without creating a situation where we look to the face of the record for activity and to the date of service for motions to dismiss for lack of such activity. Thus, it is not surprising that the cases have a priori used filing as the operative event. Frohman v. Bar-Or, 660 So.2d 633, 636-37 (Fla.1995) (explaining that the one-year period should “be measured backwards from the time preceding the filing of the motion to dismiss for lack of prosecution.”) (emphasis supplied); Carter v. DeCarion, 400 So.2d 621, 522 (Fla. 3d DCA 1981)(stating that rule 1.420(e) is not self executing and requires the filing of a motion to dismiss or court action before a cause may be dismissed); Kear-ney v. Ross, 743 So.2d 678, 580 (Fla. 4th DCA 1999)(“The ‘one year’ period specified in rule 1.420(e) is to be measured by calculating the time between the date of the last record activity and the date of the filing of the motion to dismiss.”) (emphasis supplied); Peterzell v. James Urbach, M.D., P.A., 497 So.2d 921, 922 (Fla. 5th DCA 1986)(holding that rule 1.420 was not properly triggered when despite one year lack of activity, notice for trial was filed before motion to dismiss was filed). The filing of a motion to dismiss for lack of prosecution is thus the critical act which must be performed prior to the dismissal of an action for inactivity during the preceding one year. Frohman, 660 So.2d at 636; Carter, 400 So.2d at 522.

In this case, Artime filed his notice of trial three days before the defendants filed their motion to dismiss. This constitutes record activity within one year preceding the filing of the motion to dismiss. Although the language contained in Florida Supreme Court Form 1.989 does not mention the filing of the motion as the time period in which to begin to measure inactivity, we cannot favor language in a form over the clear language of the rule and long standing case law to the contrary. The trial court therefore erred as a matter of law in dismissing the case for lack of prosecution.

Reversed and remanded.

      . Sixth Centuiy B.C. Chinese philosopher; Trans. Number 8, The Columbia World of Quotations 1996, (Columbia University Press).


text:
    Bill G. ZELAYA, Appellant, v. ATRIM ELECTRIC, INC., Appellee.
    No. 3D02-2404.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    J.H. Zidell, for appellant.
    Maloy Castro Morales and Marleen Co-lominas and Luisa M. Linares and John H. Ruiz, Miami, for appellee.
    Before JORGENSON, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

A former employee appeals from an order granting his former employer’s motion for summary judgment in an action to recover overtime wages. For the following reasons, we reverse.

Appellant was employed by appellee as an electrician from May 1996 through February 1998. Neither appellant nor appel-lee kept records of the hours that appellant worked. Appellant filed the instant action under the Fair Labor Standards Act, claiming that he was never paid overtime wages despite the fact that on several occasions he worked beyond the normal 40-hour week. 29 U.S.C. § 207(a)(1) provides:

[N]o employer shall employ any of his employees who in any workweek is engaged in commerce ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

Appellant was deposed and filed an affidavit in support of his claim. He asserted that for the first three months of his employment he was paid by the hour and thereafter was paid by the job. In his deposition, appellant could not indicate the weeks he worked overtime. In his affidavit, filed in opposition to appellee’s motion for summary judgment, appellant states that he worked from approximately 7:30 a.m. till about 6 p.m. six days a week for the entire period of his employment. The trial court granted appellee’s motion for summary judgment, seemingly because appellant was unable to specify the exact amount of overtime claimed. This appeal followed.

Despite appellant’s inability to produce time records, he must be given an opportunity to offer proof that he worked overtime and was improperly compensated. The United States Supreme Court addressed this issue head on in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946):

An employee who brings suit under ... the [Fair Labor Standards] Act for ... unpaid overtime compensation ... has the burden of proving that he performed work for which he was not properly compensated.... Due regard must be given to the fact that it is the employer who has the duty under ... the Act to keep proper records of wages, hours and other conditions and practices of employment and who is in position to know and to produce the most probative facts concerning the nature and amount of work performed....
When the employer has kept proper and accurate records the employee may easily discharge his burden by securing the production of those records. But where the employer’s records are inaccurate or inadequate and the employee cannot offer convincing substitutes a more difficult problem arises. The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work. Such a result would place a premium on an employer’s failure to keep proper records in conformity with his statutory duty; it would allow the employer to keep the benefits of an employee’s labors without paying due compensation as contemplated by the Fair Labor Standards Act. In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

Id. at 686-88, 66 S.Ct. 1187.

If appellant is successful, then the burden to refute appellant’s evidence will shift to appellee. Accordingly, the trial court’s order granting final summary judgment is reversed.

       In arguing to affirm the summary judgment, appellee principally relies on a portion of appellant’s deposition in which, when taken out of context, appellant appears to concede that if he were entitled to overtime he would have complained. Looking at the entirety of the exchange between appellant and counsel for appellee, it appears that appellant was altogether confused by the manner in which counsel for appellee was questioning him. We find that this testimony, standing alone, is insufficient to support the trial court's order.


text:
    Jack SHARPE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-867.
    District Court of Appeal of Florida, Third District.
    March 5, 2003.
    Jack Sharpe, in proper person.
    Charlie Crist, Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Geohagen v. State, 639 So.2d 611 (Fla.1994); King v. State, 597 So.2d 309 (Fla. 2d DCA 1992).


author: PALMER, J. MONACO, J.,

text:
    STATE of Florida, Appellant, v. Alan Wayne DAVIS, Appellee.
    No. 5D01-3732.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellee.
   PALMER, J.

The State appeals the trial court’s order dismissing the count of the information charging Alan Wayne Davis with illegal dumping in violation of section 403.413(4)(c) of the Florida Statutes (2000). Concluding that the trial court erred in ruling that the statute excludes property owners from prosecution for dumping on their own land, we reverse.

Davis was charged by information with, among other things, illegally dumping Utter on his property. He filed a motion to dismiss the illegal dumping charge, claiming that the statute did not prohibit owners from dumping on their own private property. The trial court agreed and therefore granted Davis’ motion to dismiss the count.

Florida’s litter law, section 403.413 of the Florida Statutes (2000), is contained in the Environmental Control section of the Florida Statutes Chapter 403, Part I, Pollution Control. The Legislature explained its intent regarding pollution control as follows:

403.021 Legislative declaration; Public policy.—
(6) The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of the air or water resources in the state and which are or may be detrimental to human, animal, aquatic, or plant life, or to property, or unreasonably interfere with the comfortable enjoyment of life or property be increased to ensure conservation of natural resources; to ensure a continued safe environment; to ensure purity of air and water; to ensure domestic water supplies; to ensure protection and preservation of the public health, safety, welfare, and economic well-being; to ensure and provide for recreational and wildlife needs as the population increases and the economy expands; and to ensure a continuing growth of the economy and industrial development.

§ 403.021(6), Fla. Stat. (2000). The litter law which Davis was charged with violating reads, in pertinent part, as follows:

403.413 Florida Litter Law

(4) DUMPING LITTER PROHIBITED Unless otherwise authorized by law or permit, it is unlawful for any person to dump litter in any manner or amount:
* % *
(c) In or on any private property, unless prior consent of the owner has been given and unless such litter will not cause a public nuisance or be in violation of any other state or local law, rule, or regulation.

§ 403.413(4)(c), Fla. Stat. (2000).

The statute plainly states it is unlawful for “any person” to dump litter in or on any private property without differentiating such persons between owners and non-owners of property. In the instant case, Davis clearly qualifies as being “any person”. Thus, in dismissing the charge against Davis, the trial court improperly went beyond the plain reading of the statute in an attempt to uncover a legislative intent that the private property in question must be the property of another.

In so ruling, the trial court first concluded that the statute intended that the property owner be a “victim” of the crime of dumping and then proceeded to interpret the facts in this case as failing to create such a victim because Davis dumped on his own property. The trial court explained its reasoning as follows:

Clearly, the prohibited activity is the dumping of litter, either on public property, waterways, or private property. However, one is allowed to “dump litter” on private property if the owner of the property agrees, but the litter dumped cannot cause a public nuisance or violate any law. Therefore, the statute creates a victim. The owner of private property who has litter dumped on his property without his consent is a victim. Similarly, the owner of private property who gives consent to the dumping becomes a victim if the dumping creates a nuisance. Obviously no one would give permission to a person to create a public nuisance on his private property.

We disagree. The statute merely defines the illegal activity — it does not create a victim.

Second, the trial court concluded that the legislature did not intend to create a felony public nuisance statute, which would be the result in the instant case since the violation under which Davis is charged is a public nuisance statute. Again, a plain reading of the statute authorizes prosecution if the dumping is in violation of any other state or local law, rule, or regulation. Here, Davis was charged with violating both section 823.01 of the Florida Statutes and the Seminole County Code, each of which qualifies as being “any other state or local law, rule or regulation.”

Finally, the trial court explained that as further evidence that the legislature did not intend for a private property owner to be prosecuted for violating section 408.413(4)(c), section 403.413(6)© of the Florida Statutes requires the defendant to pay damages if convicted of the felony violation of the statute, together with court costs and attorney’s fees. The actual wording of section 403.413(6)© is as follows:

§ 403.413 Florida Litter Law
(6) PENALTIES; ENFORCEMENT. -
© If a person sustains damages arising out of a violation of this section that is punishable as a felony, a court, in a civil action for such damages, shall order the person to pay the injured party threefold the actual damages or $200, whichever amount is greater. In addition, the court shall order the person to pay the injured party’s court costs and attorney’s fees. A final judgment rendered in a criminal proceeding against a defendant under this section estops the defendant from asserting any issue in a subsequent civil action under this paragraph which he or she would be estopped from asserting if such judgment were rendered in the civil action unless the criminal judgment was based upon a plea of no contest or nolo contendere.

§ 403.413(6)©, Fla. Stat. (2000)(emphasis added). Here, the trial court disregarded the word “if’ at the beginning of this section. “If a person sustains damages” does not mean another person is required to sustain damages in order for a prosecution to be instituted under this statute. Paragraph (6)(f) simply provides additional remedies for a situation where one person dumps on a second person’s property and that second person sustains damages.

Additionally, the trial court reasoned that because section 403.413(6)(h) of the Florida Statutes relieves the State of the burden of proving that the “person did not have the right or authority to dump the litter or that the litter caused a public nuisance”, it is further evidence that the legislature intended that the private property upon which the litter was dumped be the private property of another. Section 403.413(6)(h) provides:

§ 403.413 Florida Litter Law.—

(6) PENALTIES; ENFORCEMENT.—
(h) In the criminal trial of a person charged with violating this section, the state does not have the burden of proving that the person did not have the right or authority to dump the Utter or raw human waste or that Utter or raw human waste dumped on private property causes a public nuisance. The defendant has the burden of proving that he or she had authority to dump the Utter or raw human waste and that the Utter or raw human waste dumped does not cause a pubUc nuisance.

§ 413.413(6)(h), Fla. Stat. (2000). This subsection simply does not support the trial court’s conclusion.

REVERSED and REMANDED.

PLEUS, J., concurs.

MONACO, J., concurs speciaUy, with opinion.

MONACO, J.,

concurring specially.

I do not disagree with the weU-reasoned opinion of the majority. I write only to express my view that the reason the trial court erred in dismissing the count of the information that charged the defendant with iUegal dumping in violation of § 403.413(4)(c), Florida Statutes, is that it did not read the statute conjunctively.

The statute, entitled “Florida Litter Law,” states as follows:

(4) DUMPING LITTER PROHIBITED — Unless otherwise authorized by law or permit, it is unlawful for any person to dump Utter in any manner or amount:
(c) In and on any private property, unless prior consent of the owner has been given and unless such Utter will not cause a public nuisance or be in violation of any other state or local law, rule, or regulation. (Emphasis suppUed).

The trial court reasoned logically that the property owner would not deny himself the consent to dump Utter on his own property if that denial meant that he would be subject to criminal prosecution. That is not, however, all that the statute says. If one is going to dump Utter on one’s own property, consent being presumed, that dumping must not cause a public nuisance or otherwise violate laws, rules or regulations. If it does, it violates the statute.

The State should have been given the opportunity to prove that the defendant caused a nuisance or committed the violations regardless of presumed consent, and the count of the information charging this offense should not have been dismissed.


author: SHARP, W., J.

text:
    Charlie T. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-27.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Charlie T. Washington, Lake City, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Washington appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

Washington’s original convictions and sentences were affirmed on appeal. See Washington v. State, 768 So.2d 463 (Fla. 5th DCA 2000). He then began the collateral challenges:

1. Washington filed a motion pursuant to rule 3.850 which was denied and the denial was affirmed on appeal. See Washington v. State, 800 So.2d 321 (Fla. 5th DCA 2001).
2. Washington filed a motion pursuant to rule 3.800(a) which was denied and the denial was affirmed on appeal. See Washington v. State, 814 So.2d 1063 (Fla. 5th DCA 2002).
3. Washington filed a motion pursuant to rule 3.850, which was denied and the denial was affirmed on appeal. See Washington v. State, 833 So.2d 155 (Fla. 5th DCA 2002).
4. Evidently Washington also filed a second motion pursuant to rule 3.800(a) which was denied, but no appeal has been taken, and a motion to modify sentence which was also denied.

In this third rule 3.800(a) proceeding, Washington’s claims are unclear, but he alleges as best we can decipher, that his sentences are improper departures and illegal because they exceed the guidelines. These are the same issues raised and rejected in Washington’s prior rule 3.800(a) proceeding. Thus, they are successive and improper. See McBride v. State, 810 So.2d 1019 (Fla. 5th DCA), rev. granted, 825 So.2d 935 (Fla.2002).

It is a waste of judicial attention and effort for trial courts and appellate courts to have to consider such repetitive motions filed by convicted defendants. We warn Washington against filing additional motions or proceedings seeking repetitive relief, or relief which should have been brought or sought in direct appeal proceedings or prior motions. If successive and repetitive relief from his convictions are brought in the future they may result in sanctions, including an order from this court barring him from filing additional collateral attacks on those convictions and sentences without obtaining the co-signature and endorsement by a person licensed to practice law in this state. See Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995). See also State v. Spencer, 751 So.2d 47 (Fla.1999).

AFFIRMED.

THOMPSON, CJ., and PETERSON, J., concur.


text:
    Christopher CARR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-127.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Christopher Carr, South Bay, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Carr appeals from the denial of Ms motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), seeking to correct an illegal sentence. His conviction and sentence were affirmed on appeal. See Carr v. State, 656 So.2d 1294 (Fla. 5th DCA 1995). He also filed two previous motions for post-conviction relief which were denied. See Carr v. State, 698 So.2d 1233 (Fla. 5th DCA 1997); Carr v. State, 693 So.2d 559 (Fla. 5th DCA 1997).

Carr also filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) asserting the trial court erroneously scored Ms juvenile record and arrest records wMch did not result in a conviction. This court affirmed the trial court’s denial of relief. See Carr v. State, 719 So.2d 301 (Fla. 5th DCA 1998).

In this proceeding, the second motion filed pursuant to rule 3.800(a), Carr asserts the trial court erred in calculating his juvenile record and arrests that did not result in a conviction. The trial court correctly denied his motion as successive. See McBride v. State, 810 So.2d 1019 (Fla. 5th DCA), rev. granted, 825 So.2d 935 (Fla.2002). It is improper and a waste of precious judicial resources for a defendant to file successive, repetitive motions for collateral relief, which have been considered by the trial and appellate courts on the merits and denied.

We warn Carr that additional collateral attacks on his convictions and sentences, if successive and improper, may result in sanctions, including an order from this court barring him from filing additional collateral attacks on those convictions and sentences without obtaining the co-signature and endorsement by a person licensed to practice law in this state. See Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995). See also State v. Spencer, 751 So.2d 47 (Fla.1999).

AFFIRMED.

THOMPSON, C.J., and GRIFFIN, J., concur.


author: TORPY, J.

text:
    James Michael THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2096.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.

      Larry H. Colleton, of Larry H. Colleton, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant pled guilty to two counts of lewd, lascivious or indecent assault or act upon a child under the age of sixteen and, pursuant to agreement with the State, was sentenced to two years of community control, followed by ten years of supervised probation. After Appellant violated his community control a second time, the trial court, on November 15, 2000, imposed sentence as follows: “181.6 months DOC suspended upon successful completion of one year sex offender community control followed by twelve years sex offender probation.” Appellant thereafter violated his community control again and the trial court then imposed a sentence of fifteen years as to Count I and nine years, eight months, as to Count II, with the sentence imposed on Count II to run consecutive with the sentence imposed as to Count I for a total period of incarceration of twenty-four years, eight months. Appellant raises two points on appeal, only one of which we determine to have merit. Appellant contends that, because the trial court’s sentence exceeded the suspended portion of the sentence previously imposed, the sentence is illegal. We agree and reverse.

Appellant’s November 15, 2000, suspended sentence constituted a “true split sentence.” State v. Powell, 703 So.2d 444 (Fla.1997). Accordingly, under Poore v. State, 531 So.2d 161 (Fla.1988), the trial court was limited, upon revocation of Appellant’s community control, to imposing a sentence of 181.6 months. As noted in Poore:

The possibility of the violation already had been considered, albeit prospectively, when the judge determined the total period of incarceration and suspended a portion of that sentence, during which the defendant would be on probation. In effect, the judge has sentenced in advance for the contingency of a probation violation, and will not later be permitted to change his or her mind on that question.

Id. at 165. We reverse and remand for the imposition of an incarcerative sentence of 181.6 months.

REVERSED and REMANDED for re-sentencing.

GRIFFIN and PALMER, JJ„ concur.


author: GRIFFIN, J.

text:
    Manuela MARSHALL, Appellant, v. STATE of Florida, et al., Appellees.
    No. 5D02-1615.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Manuela Marshall, Lowell, pro se.
    Susan Schwartz, Assistant General Counsel, for Appellee, Department of Corrections.

      No Appearance for Appellee, State of Florida.
   GRIFFIN, J.

Appellant, Manuela Marshall [“Marshall”], appeals the denial of a petition for writ of mandamus directed to the Florida Department of Corrections [“DOC”] to compel the award of gain time under section 944.275(3)(a), Florida Statutes (1981). Marshall is not entitled to issuance of a writ of mandamus directing the DOC to award her six days gain time for work performance “over and above that which may normally be expected.” Even if her performance had been exemplary, and even if she is correct that the DOC’s interpretation of the statute is unduly narrow, the award is plainly discretionary. Mandamus does not lie to compel the exercise of discretion in a particular fashion or to establish a right.

AFFIRMED.

TORPY, J., and COBB, W„ Senior Judge, concur.


author: PLEUS, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. M.G., Mother of K.G. and P.G., Children, Appellee.
    No. 5D02-1079.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.
    Charles D. Peters, Orlando, for Appellant.
    Robert R. Berry and Gregory W. Eisen-menger, of Eisenmenger, Berry & Peters, P.A., Orlando, for Appellee.
   PLEUS, J.

The Department of Children and Families appeals an order awarding $1500 in attorney’s fees to M.G., the mother of two children the Department was seeking to have declared dependent.

The Department sheltered M.G.’s two children. A dependency petition was filed and after pretrial skirmishing was completed and discovery undertaken, the trial court scheduled trial for Wednesday, December 26, 2001. On the morning of December 26, the Department filed a motion for continuance which in essence said that it could begin the trial, but all of its witnesses were not available so it would need a continuance after the first day of trial.

The able trial judge told the Department that the case would not be tried piecemeal. She told them to either start and finish without interruption or she would continue and reschedule. The Department asked for and was given a continuance.

M.G.’s lawyer stepped in and told the court, “Judge, I worked over Christmas to get ready for a trial that was supposed to start today. Had the Department moved last week for a continuance, I would not have spent that time.” The judge said, “I agree and I’ll hold a hearing on attorney’s fees.” The court did, and M.G. was awarded $1500 in attorney’s fees for five hours of work.

The trial court did not abuse its discretion when it concluded that a continuance was necessary so the issue of dependency could be fully and properly litigated. See In re Gregory, 313 So.2d 735 (Fla.1975). It was not the request for a continuance, however, but its timing that led to the assessment, of attorney’s fees against the Department.

In Flea Market USA, Inc. v. Cohen, 490 So.2d 210 (Fla. 3d DCA 1986), the Third District ruled that a party which sought and obtained a continuance just before trial could be required to pay attorney’s fees occasioned by the delay. Judge Schwartz wrote in Cohen:

We find no abuse of discretion in the order under review, which conditioned granting the appellant’s eve of trial motion for continuance upon the payment of the appellee’s attorney’s fees caused by the delay.

490 So.2d at 210.

While the Department objected to the assessment of fees, it never withdrew its morning of trial motion for continuance and availed itself of the benefit of the continuance, admitting a continuance was essential to the effective presentation of its case. Under these circumstances, the trial court had the authority to assess attorney’s fees occasioned by the belated request for a continuance.

Because the attorney’s fees were awarded in conjunction with the granting of the Department’s motion for continuance, we reject the Department’s contention that the absence of a contractual or statutory basis for the recovery of attorney’s fees is fatal to the award. Likewise, Moakley v. Smallwood, 826 So.2d 221 (Fla.2002), has no application to the assessment of fees because this was not a situation involving imposition of sanctions for an attorney’s vexatious, bad faith conduct.

Finally, the amount of the award is supported by substantial competent evidence. Accordingly, the order assessing attorney’s fees against the Department in the amount of $1500 is affirmed.

AFFIRMED.

GRIFFIN, J, and COBB, W., Senior Judge, concur.


text:
    Wade BARKER, Appellant, v. Brenda BARKER, Appellee.
    No. 5D02-1027.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2003.

      Madonna H. Whittaker, Altamonte Springs, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Wade Barker appeals a final judgment awarding him custody of the parties’ two minor children, B.F.B. and K.A.B. He alleges, inter alia, that the trial court’s judgment confused the names of the two children, that there were omissions on the visitation schedule attached to the final judgment and that the court further erred in not entering an income deduction order. Brenda Barker does not dispute these claims.

We affirm the trial court’s custody determination and reverse for correction of judgment in regard to the names of the two children and the omissions on the visitation schedule. We further direct the trial court to file an income deduction order against the mother pursuant to section 61.1301, Florida Statutes (2002).

AFFIRMED IN PART; REVERSED IN PART.

PETERSON, PALMER and TORPY, JJ., concur.