text:
    Tywaun JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-951.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.

      Carey Haughwout, Public Defender, Ellen Griffin and Peggy Natale, Assistant Public Defenders, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Richard I. Polin, Assistant Attorney General, Miami, for appel-lee.
   PER CURIAM.

Tywaun Jackson appeals a final judgment of involuntary commitment to a secure mental health facility under section 394.917, Florida Statutes (1999), the “Jimmy Ryce Act” (the Ryce Act). We affirm, addressing only appellant’s constitutional challenges to the Ryce Act and his contention that certain evidence presented to the jury failed to satisfy the Frye test.

In challenging the judgment of commitment entered after a jury verdict, appellant argues that the Jimmy Ryce Act (the Ryce Act) is unconstitutional in that it violates double jeopardy and constitutes an ex post facto law, violates substantive and procedural due process protections, and violates his equal protection rights. In Westerheide v. State, 831 So.2d 93 (Fla.2002), the Florida Supreme Court upheld the Ryce Act’s constitutionality, rejecting the same arguments raised by appellant.

Appellant also argues that the Ryce Act deprives him of a right to privacy guaranteed by the Florida Constitution in that it waives privileged communication. The psychotherapist-patient privilege, listed in section 90.503(2), Florida Statutes, has been abrogated by the Legislature in Ryce Act proceedings. See § 394.9155(3), Fla. Stat. (2001). Privileges exist in Florida by virtue of either express statutory or constitutional provisions. As the supreme court noted in Westerheide, the Legislature has determined that the psychotherapist-patient privilege should not be recognized in Ryce Act proceedings to protect the patient and the public. See Westerheide, 831 So.2d at 103.

We conclude that the provisions which waive confidentiality during the treatment process do not render the Ryce Act a violation of the right to privacy. “The right of privacy does not confer a complete immunity from governmental regulation and will yield to compelling governmental interests.” Winfield v. Div. of Pari-Mutuel Wagering, Dep’t of Bus. Regulation, 477 So.2d 544 (Fla.1985). The right of privacy is a fundamental right and it demands a compelling state interest standard. Id at 547. The state has to justify the intrusion on privacy, and “[t]he burden can be met by demonstrating that the challenged regulation serves a compelling state interest and accomplishes its goal through the use of the least intrusive means.” Id. “Before the right of privacy is attached and the delineated standard applied, a reasonable expectation of privacy must exist.” Id. “Although a person’s subjective expectation of privacy is one consideration in deciding whether a constitutional right attaches, the final determination of an expectation’s legitimacy takes a more global view, placing the individual in the context of a society and the values that the society seeks to foster.” Brd of County Comm’rs of Palm Beach County v. D.B., 784 So.2d 585, 590 (Fla. 4th DCA 2001).

Although a patient’s medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution, the state has a compelling interest in the “long-term control, care, and treatment” of sexually violent predators and accomplishes its goal through the use of the least intrusive means. See State v. Johnson, 814 So.2d 390, 393 (Fla.2002)(holding constitutional right to privacy protects medical records).

Section 394.921 provides:

In order to protect the public, relevant information and records that are otherwise confidential or privileged shall be released to the agency with jurisdiction, to a multidisciplinary team, or to the state attorney for the purpose of meeting the notice requirements of this part and determining whether a person is or continues to be a sexually violent predator. A person, agency, or entity receiving information under this section which is confidential and exempt from the provisions of s. 119.07(1) must maintain the confidentiality of that information. Such information does not lose its confidential status due to its release under this section.

(Emphasis supplied). The plain language of the statute imposes a duty to safeguard the confidential nature of information received and used by the government in determining whether a person is or continues to be a sexually violent predator. In this instance the state’s legitimate access to medical and psychological records outweighs Jackson’s right to privacy.

Appellant further asserts that the Ryce Act violates his right against self-incrimination. We find no merit to this argument. See In re Beverly, 342 So.2d 481, 487-88 (Fla.1977)(“The Fifth Amendment privilege is not designed to protect any disclosures which are made by a mental patient during a psychiatric examination and which will lead only to an assessment of his mental or emotional condition. The privilege has no application in commitment proceedings so long as the proceedings do not entangle him in any criminal prosecution.”).

Finally, appellant argues that the trial court erred in admitting expert testimony, based upon actuarial instruments, to predict his likelihood of reoffending, because the instruments failed to satisfy the Frye test for novel scientific evidence. We conclude that the trial court did not err in determining that the actuaríais are generally accepted in the relevant scientific community as part of the overall risk assessment for sexual predators. See generally In Detention of Strauss, 106 Wash.App. 1, 20 P.3d 1022 (2001)(upholding admissibility of MnSost, RRASOR, and VRAG, actuarial instruments that demonstrate likelihood to reoffend; instruments generally accepted in relevant scientific community).

Accordingly, we affirm the judgment of commitment.

AFFIRMED.

STEVENSON, TAYLOR, JJ., and OWEN, WILLIAM C., Senior Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Valerie MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-74.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Valerie Monroe, appellant, appeals the revocation of her community control and sentence for violating a condition of her community control. The state concedes that the trial court lacked jurisdiction to consider a violation of community control as to the misdemeanor count in appellant’s original sentence as the affidavit of violation was filed after the expiration of her probationary period.

It is well settled that upon the expiration of the probationary period the court no longer has jurisdiction over the defendant. See Francois v. State, 695 So.2d 695, 697 (Fla.1997); accord McAvoy v. State, 760 So.2d 1120, 1120 (Fla. 4th DCA 2000). As the state concedes, the court lacked jurisdiction to entertain a violation of her community control as to count II where her community control on that count had expired in 1993. Accordingly, we hold appellant’s community control had expired, divesting the court of jurisdiction to consider the violation of community control as to that count.

Next, appellant argues her sentence requires reversal because the trial court failed to enter a separate written order of revocation specifying the violation upon which the court’s sentence is based. See Roper v. State, 747 So.2d 1038, 1038 (Fla. 4th DCA 1999). We disagree and hold the court’s amended sentence satisfies this requirement where it specifically revokes appellant’s probation and identifies the condition appellant violated.

Accordingly, we reverse the revocation and the sentence as to count II only based upon the trial court’s lack of jurisdiction.

Reversed and remanded.

WARNER, KLEIN and STEVENSON, JJ., concur.


author: STEVENSON, J.

text:
    Joseph PICCIONI, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2225.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.

      Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Meredith L. Balo, Assistant Attorney General, Fort Lauderdale, for appellee.
   STEVENSON, J.

Joseph Piccioni, the appellant, was charged with and convicted of burglary of a dwelling. At trial, Piccioni’s counsel asked that the court instruct the jury on the lesser-included offense of trespass. The judge refused and Piccioni now appeals that ruling. We find merit in Pic-cioni’s claim, reverse his conviction and remand for a new trial.

Trespass is a category two permissive lesser-included offense of burglary of a dwelling. See Henig v. State, 820 So.2d 1037, 1039 (Fla. 4th DCA 2002); see also In re Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 131 (Fla.1998). When requested by the defendant, an instruction on a category two permissive lesser-included offense must be given where “(1) the information alleges all of the statutory elements of the permissive lesser-included offense, and (2) there is some evidence adduced at trial establishing all of the elements.” Wimberly v. State, 697 So.2d 1272, 1273 (Fla. 4th DCA 1997); see also Amado v. State, 585 So.2d 282, 282 (Fla.1991).

Both of these requirements were satisfied in the instant case. The amended information alleged that Piccioni “did unlawfully enter or remain in a structure, to wit: a dwelling, or the curtilage thereof, ..., property of Michael Hohlman, with intent to commit therein the offense of Theft....” In Henig v. State, this court held that similar language was sufficient to allege the statutory elements of trespass. See 820 So.2d at 1038-39. There was also evidence at trial to establish a trespass as Piccioni’s fingerprint was found on the kitchen window screen and the victim testified that Piccioni did not have permission to be on the property or in his home. The fact that there was additional evidence suggesting that Piccioni was guilty of the greater crime is immaterial. See Gillespie v. State, 440 So.2d 8, 10 (Fla. 1st DCA 1983)(“Even if the evidence is overwhelming that the defendant is guilty of the crime with which he is charged, the court must give a charge on a lesser included offense as to which there is any evidence.”); see also Amado, 585 So.2d at 282-83 (holding that where defendant was charged with drug trafficking for possessing more than twenty-eight grams of cocaine, the fact that the evidence was overwhelming that quantity of drugs exceeded twenty-eight grams did not eliminate defendant’s entitlement to instruction on lesser-included offense of simple possession).

Since Piccioni was entitled to the instruction, the only question that remains is whether its absence from the trial requires reversal. The failure 'to instruct the jury on a permissive lesser-included offense can sometimes be harmless error. See Henig, 820 So.2d at 1039. Where the absent lesser-included offense is only one step removed from the charged offense, however, the failure to give the requested instruction is reversible error per se. See State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978); Morris v. State, 658 So.2d 155, 156 (Fla. 1st DCA 1995). The instant case falls into this latter category. Accordingly, we reverse Piccioni’s conviction for burglary of a dwelling and remand for a new trial.

REVERSED and REMANDED.

KLEIN and TAYLOR, JJ., concur.


text:
    Victor V. VEROLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-5018.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Benedict P. Kuehne of Sale & Kuehne, P.A., Miami, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm as to both issues raised. As to appellant’s second issue, we affirm based on Baker v. State, 616 So.2d 571 (Fla. 5th DCA 1993).

AFFIRMED.

SHAHOOD, GROSS, JJ., and MAASS, ELIZABETH T., Associate Judge, concur.


author: GROSS, J.

text:
    STATE of Florida, Appellant, v. MARK MARKS, P.A., and Carl Borgan, Appellees.
    Nos. 4D01-4622, 4D02-658.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.

      Richard E. Doran, Attorney General, Tallahassee, and Richard L. Polin, Senior Assistant Attorney General, Miami, for appellant.
    H. Dohn Williams, Jr., and Irene Porter of Hicks, Anderson & Kneaie, P.A., Miami, for appellees.
   GROSS, J.

The issue in this case is whether criminal defendants charged as principals in the perjury of another are entitled to the benefits of the defense contained at section 837.07, Florida Statutes (Supp.1990), when the actual perjurer recants his testimony. We hold that the statutory defense applies to such defendants and affirm the order of dismissal entered by the circuit court.

Appellees Mark Marks and Carl Borgan were attorneys accused of multiple counts of perjury. The state charged appellees as principals to the perjury of their client, Howard Drinks. As to all counts, the state alleged that Marks and Borgan “aided, abetted, and counseled” them client to make false statements under oath in a discovery deposition in a personal injury case. At a later deposition in the same personal injury case, Drinks recanted the perjurious statements. The perjury had no effect on the underlying personal injury case.

Marks and Borgan filed motions to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4). The state’s traverse disputed the motion’s legal conclusion that the recantation inured to ap-pellees’ benefit. The trial court granted the motions to dismiss, concluding that because there was no offense of perjury-due to the recantation, the appellees could not be charged with aiding and abetting a nonexistent offense. The state appeals...

The defendants were charged with violating section 837.02(1), Florida Statutes (1989). That statute stated: “Whoever makes a false statement, which he does not believe to be true, under oath in an official proceeding in regard to any material matter shall be guilty of a felony of the third degree.... ” The state charged Marks and Borgan as principals under section 777.011, Florida Statutes (1989). That statute treats those who aid, abet, or counsel another to commit a crime the same as if they had committed the crime themselves.

Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense.

Id.; see also Potts v. State, 430 So.2d 900, 902 (Fla.1982).

In 1990, the legislature passed section 837.07, which provided for recantation as a defense to perjury:

Recantation shall be a defense to any prosecution for perjury or false statement only if the person making the false statement admits such statement to be false in the shme continuous proceeding or matter, and:
(1) The false statement has not substantially affected the proceeding; or
(2) Such admission is made before it has become manifest that such false statement has been or will be exposed.

(Emphasis added). Section 837.07 makes the defense applicable to “any” prosecution for perjury. The rule of lenity requires this statute to be construed “most favorably to the accused.” § 775.021, Fla. Stat. (1989). The term “any,” when used in a statute is “all-inclusive” and unambiguous. See Clark v. State, 790 So.2d 1030, 1032 (Fla.2001) (stating that “the term ‘any defendant’ in the Act is ‘all-inclusive [and] require[es] no statutory interpretation.’ ”) (quoting Young v. State, 719 So.2d 1010, 1011 (Fla. 4th DCA 1998) (citing Auto Owners Ins. Co. v. Conquest, 658 So.2d 928, 929 (Fla.1995))). Under these rules of construction, “any'prosecution for perjury” includes prosecutions for perjury by way of the “principals” statute, section 777.011. Therefore, Drinks’s recantation precludes the perjury charges in this case.

This interpretation of section 837.07 is consistent with the application of the defense prior to the enactment of the statute. Florida’s common law held that recantation was a defense to perjury, even when it became “manifest that such falsity [had] been or [would] be exposed.” Carter v. State, 384 So.2d 1255, 1257 (Fla.1980); see also Brannen v. State, 94 Fla. 656, 114 So. 429, 431 (1927). Carter was a case where the defendant chiropractor was a plaintiffs witness in a personal injury case. The day after his deposition, he wrote the defense attorney a letter correcting his deposition testimony. The state charged the chiropractor with perjury, based on his deposition testimony. The supreme court held that the recantation in the letter was a defense to perjury, even though the recantation came after the prospect that the false testimony would be revealed by the defense attorney. The supreme court wrote:

Dr. Carter corrected the facts he had related in his deposition promptly and voluntarily. He gained nothing from the false statement made. No one was prejudiced by his false statement and the proceedings were not affected thereby. His subsequent testimony was consistent with the recanted version. Under these circumstances, the fear of being caught should not vitiate the defense of recantation.

Carter, 384 So.2d at 1257-58 (footnote omitted).

If anything, section 837.07 is an expansion of the common law defense. The statutory defense operates when either “[t]he false statement has not substantially affected the proceeding” or when “[s]uch admission is made before it has become manifest that such false statement has been or will be exposed.” § 837.07(1), (2). CaHer appears to have required that the underlying proceedings not be affected for the defense to be operative. Section 837.07 allows the recantation defense even where the underlying proceeding has been “substantially affected,” as long as the admission came before exposure or threat of exposure of the perjury.

The effect of a valid recantation under section 837.07 is the same as that under the common law defense. Carter expressly adopted Judge Cross’s dissenting opinion in State v. Carter, 364 So.2d 1249, 1250 (Fla. 4th DCA 1978), which indicated that when a recantation is effective, “then the offense of perjury has not been committed.” Carter, 384 So.2d at 1258. Florida has rejected the view that the crime of perjury is complete when the false statement is made. See United States v. Norris, 300 U.S. 564, 574-75, 57 S.Ct. 535, 81 L.Ed. 808 (1937) (citing Brannen).

We also reject the state’s argument that the trial court’s dismissal of the perjury charges was erroneous because the defendants could still have been convicted of solicitation of perjury as a lesser included offense of the crimes charged. The information did not charge solicitation under section 777.04(2), Florida Statutes (1989). The issue of whether solicitation was a lesser included offense in this case was not preserved for appeal; the prosecutor did not raise the argument in the circuit court. See § 924.051(1)(b), (3), Fla. Stat. (2002). There is no fundamental error. In a non-capital case, the failure to instruct the jury of even a necessarily lesser included offense is not fundamental' error. Jones v. State, 484 So.2d 577, 579 (Fla.1986). A different result cannot apply here. If the state sought a conviction under the solicitation statute, the state had the obligation to disclose that theory of prosecution at the time the trial court was considering the motion to dismiss in order to preserve the issue for appeal.

AFFIRMED.

STONE, J., and STERN, KENNETH D., Associate Judge, concur.


author: KLEIN, J.

text:
    Maurice A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4041.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, Fort Lauderdale, for appellee.
   KLEIN, J.

In Chicone v. State, 684 So.2d 736 (Fla.1996), our supreme court held that knowledge that the substance is illegal is an element of the crime of drug possession and that failure to so instruct the jury, when the instruction is requested, is error. In this case such an instruction was not requested, but appellant argues that it was fundamental error. We agree that it was under the facts in this case.

Appellant was driving with a passenger, when an officer initiated a stop for a traffic infraction. While the vehicles were still moving, the officer observed white objects being thrown from the passenger’s window which turned out to be cocaine in baggies. Additional drugs were found on both the driver’s and passenger’s sides of the floor of the car.

The passenger testified that neither of them owned the car, but that after appellant noticed the officer following them, appellant told the passenger to roll down the window and appellant threw the items out of the car. Appellant, who made his own opening statement, stated that he was not the owner of the car, and that it had been loaned to the passenger. He also said that he had no knowledge of the contents of the vehicle and that the passenger was merely attempting to exculpate himself.

In closing argument, both sides acknowledged that the issues were whether appellant had control of the drugs and whether he had knowledge of the illegality of the substance. Appellant did not request a Chicone guilty knowledge instruction, and such an instruction was not given. He appeals his convictions for possessing cocaine, heroin and marijuana, as well as other offenses, but only argues one point, whether the court committed fundamental error in not giving the instruction.

Whether the failure to give such an instruction can be fundamental error, where knowledge that the substance is an illegal drug is in issue, appears to be a question of first impression. It was held not to be fundamental error in State v. Delva, 575 So.2d 643, 645 (Fla.1991), because the court determined that guilty knowledge was not an issue in that case. The court explained:

Because knowledge that the substance in the package was cocaine was not at issue as a defense, the failure to instruct the jury on that element of the crime could not be fundamental error and could only be preserved for appeal by a proper objection.

The present case, in which guilty knowledge was an issue, is therefore distinguishable from Delva.

In Scott v. State, 808 So.2d 166, 169, 170-71 (Fla.2002), our supreme court clarified its holding in Chicone:

[Gjuilty knowledge of the illicit nature of the possessed substance is an element of the offense of possession of a controlled substance. The State has the burden of proof in any prosecution to demonstrate each element of the offense beyond a reasonable doubt. Since knowledge is an element of the offense, the State has the burden of proving the defendant’s possession was knowing. Moreover, the jury is entitled to be instructed on the elements of an offense.

It has long been the rule in Florida that failure to instruct the jury on an essential element of an offense can be fundamental error. See Croft v. State, 117 Fla. 832, 158 So. 454 (1935); Westerheide v. State, 831 So.2d 93(Fla.2002). We know from Delva, however, that this error is not always a fundamental one. As the Delva court explained:

“[Fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal. [citations omitted]

Delva, 575 So.2d at 644-45 (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)).

What we glean from Delva is that the failure to instruct on an essential element of a crime may be fundamental error in some cases but not in others, depending on the factual issues. This would be consistent with Florida Supreme Court decisions emphasizing that in order to be a fundamental error, an error must be significant. As the court observed in Maddox v. State, 760 So.2d 89, 95-96 (Fla.2000):

[T]he Court has described fundamental error as error that “goes to the foundation of the case or the merits of the cause of action.” J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998); see State v. Smith, 240 So.2d 807, 810-11 (Fla.1970); see also Gudinas v. State, 693 So.2d 953, 961 (Fla.1997) (“Fundamental error is ‘error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ”) (quoting Archer v. State, 673 So.2d 17, 20 (Fla.1996), which was quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)). This Court has also defined fundamental error as one “where the interests of justice present a compelling demand for its application.” Sochor v. State, 619 So.2d 285, 290 (Fla.1993) (quoting Ray v. State, 403 So.2d 956, 960 (Fla.1981)); see Smith v. State, 521 So.2d 106, 108 (Fla.1988).

See also Sochor v. State, 619 So.2d 285, 290 (Fla.1993)(fundamental error amounts to a denial of due process).

In Scott, 808 So.2d 166, our supreme court held that if a guilty knowledge instruction is requested, and guilty knowledge is an issue, the failure to give such an instruction cannot be harmless. Because such an instruction was requested in Scott, the court did not have to address whether it was fundamental error; however, the fact that the court held that it could not be harmless leads us to conclude that this is the significant type of error which would be fundamental in the present case.

The state argues that even a fundamental error can be harmless. Although there are cases from this court which have analyzed fundamental error for harmlessness, see, e.g., Anderson v. State, 780 So.2d 1012 (Fla. 4th DCA 2001), this practice is not supported by precedent. In Delva, 575 So.2d at 645, the Florida Supreme Court analyzed the significance of the error before determining if the error was fundamental. The Delva court concluded that because there was no issue about guilty knowledge, the error in not instructing on the element of the crime did not reach the level of fundamental error. We have found no Florida Supreme Court cases which have found an error to be fundamental, but harmless.

An error is harmless if “there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). An error which is so significant as to be fundamental under Maddox cannot also be harmless..

We reverse the drug possession related convictions for a new trial, affirming only the conviction for driving with a suspended license.

STEVENSON and TAYLOR, JJ, concur.

      . See Richard J. Sanders, Unpreserved Issues in Criminal Appeals, 76-AUG Fla. B.J. 51 n. 18 (2002), which concludes that opinions from this court which have engaged in a harmless error analysis of fundamental error are aberrations. The assumption that fundamental errors can still be harmless may have arisen from the fact that constitutional errors, which are not necessarily fundamental errors, can be harmless, DiGuilio, and can be waived. Ray v. State, 403 So.2d 956 (Fla.1981).
      In United States v. Young, 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the Court observed that engaging in a harmless error analysis of a fundamental error “is contrary to the ... intention behind [the fundamental error rule], and one that courts have studiously avoided and commentators have properly criticized” (citation omitted). See also 3A Charles A. Wright, Federal Practice and Procedure § 856, at 344 (2d ed.1982) (such a practice constitutes "a strange doctrine”).

      . In Reed v. State, 783 So.2d 1192 (Fla. 1st DCA 2001), the first district concluded that our supreme court found fundamental error to be subject to harmless error review in State v. Clark, 614 So.2d 453 (Fla.1992). Although that is one possible interpretation of Clark, it is not necessarily the only one, because footnote 1 in Clark suggests that the court considered the error to be a constitutional error rather than a fundamental one. In addition, the certified question being reviewed in Clark was limited to the issue of whether a violation of the Sixth Amendment right to confront and cross-examine witnesses could be harmless. The court answered that this constitutional error could be harmless, but it was not harmless under the facts.


text:
    Wayne LUKE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-985.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Wayne Luke, Immokalee, pro se.
    Richard E. Doran, Attorney General, Tallahassee, and Richard Yaluntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant entered a no contest plea to a drug possession charge on September 25, 2001. On September 26, he filed a pro se motion to withdraw his plea claiming ineffective assistance of counsel. Among the grounds alleged was the claim that appellant’s trial counsel had “manipulated [him] into pleading no contest.” The trial court denied the motion to vacate the plea without holding an evidentiary hearing. Based on Ventura v. State, 820 So.2d 1026 (Fla. 4th DCA 2002), and Simeton v. State, 734 So.2d 446 (Fla. 4th DCA 1999), we remand this case for an evidentiary hearing on appellant’s motion to withdraw his plea.

SHAHOOD, GROSS, JJ„ and MAASS, ELIZABETH T., Associate Judge, concur.


text:
    Cindy A. KELLY a/k/a Cydney A. Kelly, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3097.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Richard W. Springer of Richard W. Springer, P.A., Palm Springs, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the summary denial of her motion for postconviction relief, pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, she seeks to vacate and set aside her plea and sentence and alleges that defense counsel affirmatively misadvised her that certain licenses she possessed would not be affected by her entry of a nolo contendere plea to the charge of resisting arrest with violence because the trial court would withhold adjudication. In fact, her Class C and E licenses have been revoked and her Class R license is subject to revocation.

The State has responded that she was given a full hearing by the agency prior to its decision to revoke her licenses, where she was able to present mitigating circumstances to establish her claim of self defense. Thus, the state concludes that the revocation of her licenses was not a direct effect of her plea and she should not be able to withdraw it. We disagree.

In Ghanavati v. State, 820 So.2d 989 (Fla. 4th DCA 2002), this court held that a defendant may be entitled to withdraw a plea when the plea was entered in reliance on affirmative misadvice and results in prejudice even if the misdadvice concerns collateral consequences. We can see no meaningful distinction between the facts of this case and Ghanavati. See also Weir v. State, 823 So.2d 245 (Fla. 4th DCA 2002). We therefore reverse and remand the ease for an evidentiary hearing.

STONE, WARNER and MAY, JJ„ concur.


text:
    Baruch SCHAKED, individually and as Trustee for Schaked, Inc., Appellant, v. Ernesto A. BATTAGLIA, Appellee.
    No. 4D02-38.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Edward R. Curtis of Curtis & Curtis, P.A., Fort Lauderdale, for appellant.
    Ceeile Hatfield of The Law Office of Cecile Hatfield, Miami, for appellee.
   PER CURIAM.

We affirm the final judgement for attorney’s fees and costs in all respects but one. We reverse the award of $1,500 as part of the taxable costs of $16,185.26, since that award was included as part of the award for the expert witness fee.

Affirmed in part; reversed in part, and remanded.

SHAHOOD, GROSS, JJ., and MAASS, ELIZABETH T., Associate Judge, concur.


text:
    Daniel KIRBY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4517.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Melissa Minsk Donoho of Law Offices of Melissa Minsk Donoho, Fort Lauderdale, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s filing a 3.850 proceeding.

SHAHOOD, GROSS, JJ., and MAASS, ELIZABETH T., Associate Judge, concur.


text:
    Claudia CHERA and Michael Chera, as the general partners of Chera Realty & Development Co. of Brooklyn, a New York General Partnership, Appellants, v. Paul TARTELL and Jodi Tartell, Steven Chera, Victor Chera and Charles Chera, as the General Partners of Chera Realty & Development Co. of Brooklyn, a New York General Partnership, The Keyes Company, a Florida corporation, Sheila Amster, James L. Dentico, Truly Nolen Exterminating, Inc., a Florida corporation, Jane L. Berman, and Landmark IV Realty, Inc., a Florida corporation, Appellees.
    No. 4D01-4231.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.

      Larry M. Mesches of Koeppel, Gottlieb, Mesches, Herzfeld & Rubin and Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellants.
    Clifford B. Hark of Hark & Associates, P.A., Hollywood, for appellees Paul Tartell and Jodi Tartell.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant appellants’ motion for rehearing/clarification, withdraw our previously filed opinion, Chera v. Tartell, No. 4D01-4231 (Fla. 4th DCA November 13, 2002), and substitute the following.

Appellants, Claudia and Michael Chera, appeal the trial court’s order granting ap-pellees, Paul and Jodi Tartell’s, Motion to Enforce Settlement Agreement and the trial court’s denial of their Motion for Rehearing. We reverse.

On September 1, 1999, appellees and appellants settled a lawsuit they had pending. Pursuant to their settlement agreement, appellants were to pay appellees a total of $52,500. The first $12,500 was payable upon execution of the agreement, with the $40,000 balance payable in monthly installments of $2,000 beginning September 1, 1999, through April 1, 2001. If appellants failed to make the payments when due, appellees were to provide notice of default to appellants’ attorney. If payment was not made within ten days thereafter, upon submission of an affidavit of default, appellees would be entitled to entry of a $100,000 judgment, plus attorney’s fees and costs.

On October 28, 1999, the parties filed a joint motion asking the court to approve their settlement agreement. The court did so in an order that retained jurisdiction to enforce the agreement’s terms.

After appellants made the payments required by the settlement agreement for one year, on October 30, 2000, appellees filed a Motion to Enforce Settlement Agreement, claiming that they had not received the September and October 2000 payments. They declared the settlement agreement in default and requested that judgment be entered in favor of appellees and against appellants for $100,000, plus attorney’s fees and costs.

Appellants filed a response which alleged that appellees had changed their address without notifying appellants. This resulted in appellants not knowing until late September 2000 that the August 2000 check had not been received by appellees. The check that had been sent for the September 2000 payment was also returned to appellants marked unknown (“Unk”) and stamped by the post office as “RETURNED FOR BETTER ADDRESS.” Once appellees gave appellants a new address, appellants sent appellees the October 2000 payment at that address, but appellees claimed they never received it. The returned September 2000 payment was re-sent by appellants’ attorney to ap-pellees’ new address on October 12, 2000, but again appellees claimed they never received it. On October 30, 2000, the same day that appellees filed their Motion to Enforce Settlement Agreement, appellants sent replacement checks for the September and October 2000 payments through Federal Express mail services to appel-lees’ new address. Appellants also sent a check for the next month’s payment, November 2000. Appellants stopped payment on the missing checks.

Appellants stated that they had attempted in good faith to make sure that appel-lees received the payments on time, but they had not been provided with appellees’ new address. Even after appellants became aware of the new address and sent replacement checks, appellees claim they did not receive them. Appellants asserted that appellees were estopped from invoking the default provision in the settlement agreement because any default resulted from appellees’ failure to advise appellants of their new address. After being notified of the fact that payments were not being received, appellants and their counsel had attempted to resolve the issue over the missing checks, and had sent replacement checks for the August through October 2000 missing checks. In addition, they made the November 2000 payment on time.

The trial court heard argument of counsel regarding the issues presented in this case, after which it set an evidentiary hearing with the court sitting as the trier of fact. At the time of the hearing, the evidence showed that appellees had been paid the entire $52,500 owed under the settlement agreement. Testimony was presented that appellants had sent appel-lees replacement checks for August, September, and October 2000, the months that appellees claimed they had not received the checks originally mailed, and that ap-pellees had cashed and deposited those replacement checks. After appellees filed suit on October 30, 2000, appellants continued to send the monthly checks, and appel-lees continued to accept them and cash each and every check, for the months of November 2000 through March 2001. Appellants had also sent appellees the final April 2001 payment, but as of May 1, 2001, fifteen days before trial, appellees had not cashed and deposited that final payment. However, the undisputed evidence was that appellants had mailed that check and appellees presented no evidence that they had not received the check.

The trial court subsequently entered an order granting appellees’ Motion to Enforce Settlement Agreement. The order set forth the parties’ positions, and then found as follows:

18. The Court finds that the [appellants], Chera, failed to make timely payments as required by the parties’ Settlement Agreement and the Court finds that the [appellees], Tartell, followed all conditions precedent, pursuant to the Settlement Agreement, prior to filing their Motion to Enforce Settlement Agreement and for entry of judgment.

The court ordered judgment in the amount of $100,000 to be entered in favor of the appellees and against appellants, and cost and attorney fees is the amount of $11,310. Appellants filed a Motion for Rehearing which was denied.

We have reviewed the entire record and find that the trial court’s determination that appellants were in default is not supported by substantial competent evidence and we, therefore, reverse and direct the trial court to vacate the final judgment and enter judgment for appellants.

REVERSED.

STEVENSON, SHAHOOD and HAZOURI, JJ., concur.


text:
    SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY, Appellant, v. Sarah L. HOOVER, individually and as Personal Representative of the Estate of Robert R. Hoover, deceased, Appellee.
    Nos. 4D01-3020, 4D01-3681.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Leonard E. Ireland, Jr. of Clayton-Johnson, P.A., Gainesville, for appellant.
    Robert J. Gorman of Robert J. Gorman, P.A., Fort Pierce, for appellee.
   PER CURIAM.

The defendant, Southern Farm Bureau Life Insurance Company, appeals a jury verdict, awarding the plaintiff proceeds from a life insurance policy. The plaintiff has cross-appealed the award of attorney’s fees to the defendant on the civil theft claim. Numerous issues have been raised. We affirm the underlying judgment and the award of prejudgment interest. We reverse the award of attorney’s fees and remand the case to the trial court for entry of an order in conformance with Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985) and Executive Square, Ltd. v. Delray Executive Square, Ltd., 553 So.2d 803, 804 (Fla. 4th DCA 1989).

The trial court awarded attorney’s fees to both the plaintiff, pursuant to Section 627.428(1), Florida Statutes (2001), and the defendant, pursuant to Section 812.035(7), Florida Statutes (2001). As to the opposing party, both sides argue that the attorney’s fee order fails to contain the requisite findings of fact and further argue that the record is insufficient to support the fee awards.

We agree that the order is insufficient. First, as it pertains to each attorney, the order fails to contain the amount of time reasonably spent in the litigation and it further fails to state their hourly rates. Rowe, 472 So.2d at 1151; Blits v. Renaissance Cruises, Inc., 647 So.2d 971 (Fla. 4th DCA 1994). And second, the order includes a contingency risk multiplier, but fails to state the grounds justifying its use. See Executive Square, Ltd., 553 So.2d at 804. Both of these deficiencies must be corrected on remand.

We disagree, however, that the record is insufficient to support some form of attorney’s fees award. We have thoroughly reviewed the transcript of the attorney’s fees hearing. The record is replete with testimony and documentary evidence. However, the absence of written findings in the order coupled with a lack of verbal findings on the record requires a reversal. Compare Blits, 647 So.2d at 972 (a written order’s deficiencies may be harmless if the requisite findings are pronounced by the judge on the record).

In all other respects the underlying judgment is affirmed. The case is remanded for further proceedings.

STONE, HAZOURI and MAY, JJ., concur.


text:
    Douglas PETERSON, Petitioner, v. Alexandra ASKLIPIOUS, Respondent.
    No. 4D02-4170.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.

      Robert L. Bogen of the Law Offices of Braverman & Rossi, Boca Raton, for petitioner.
    Randy D. Ellison, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner Douglas Peterson seeks prohibition following a trial court order denying his motion to disqualify the judge presiding in post-judgment domestic proceedings. We grant the petition.

Petitioner was ordered to pay attorney’s fees in connection with an amended final judgment establishing paternity, residence and support. The trial court made a finding of petitioner’s ability to pay the fees at that time. When payment was not made, respondent’s counsel moved for contempt against petitioner. At the hearing, the presiding judge said:

THE COURT: So he’s going to tell me one more time he has no money when I haven’t believed him anytime before that?
PETITIONER’S COUNSEL: Well, he’s entitled. It’s not a matter of what you believe, it’s a matter of ...
THE COURT: Unfortunately, I already made those findings, and I don’t need his testimony.
PETITIONER’S COUNSEL: It’s a matter of the evidence, Your Honor.
THE COURT: Motion for contempt is granted....

The trial court thereupon entered orders granting contempt in favor of respondent’s trial firm and appellate counsel. The court found that petitioner had the ability to pay the purge provision set by the court based on previous hearings on petitioner’s finances, including a hearing held just 90 days earlier. Petitioner is separately appealing the contempt orders.

Petitioner filed a timely motion to disqualify based on these comments attributed to the trial judge. The trial judge denied the motion.

Allegations in a motion to disqualify are reviewed under a de novo standard as to whether the motion is legally sufficient as a matter of law. See § 38.10, Fla. Stat.; Armstrong v. Harris, 773 So.2d 7 (Fla.2000), cert. denied, 532 U.S. 958, 121 S.Ct. 1487, 149 L.Ed.2d 374 (2001). A motion to disqualify is governed in substance by section 38.10, Florida Statutes, and procedurally by rule 2.160, Florida Rules of Judicial Administration. The rule states that “[a] motion to disqualify shall show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.160(d)(1).

Whether the motion is legally sufficient requires a determination as to whether the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. See MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990).

The term “legal sufficiency” encompasses more than mere technical compliance with the rule and the statute; the court must also determine if the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial. Hayslip v. Douglas, 400 So.2d 553, 556 (Fla. 4th DCA 1981).

We find that petitioner met his burden in this case. The motion was legally sufficient. The trial judge’s comments gave petitioner a well founded fear that the judge would not afford petitioner a fair and impartial trial on the contempt motion pending before him. As well, the trial judge is alleged to have been unwilling to afford petitioner the opportunity to be heard on his ability to pay the attorney’s fees previously ordered, a due process right in the contempt proceedings. See Zuchel v. State, 824 So.2d 1044 (Fla. 4th DCA 2002); Wargo v. Wargo, 669 So.2d 1123 (Fla. 4th DCA 1996).

Accordingly, the petition for writ of prohibition is granted. Any orders entered after the filing of the motion for disqualification shall be vacated.

POLEN, C.J., FARMER and MAY, JJ., concur.


text:
    Jose Miguel SALDANE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-234.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before LEVY, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Thompson v. State, 759 So.2d 650, 664 (Fla.2000); Williams v. State, 673 So.2d 960 (Fla. 1st DCA 1996).


text:
    Alberto VIERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1341.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.

      Alberto Viera, for appellant.
    Richard E. Doran, Attorney General and Mark Rosenblatt, Assistant Attorney General, for appellee.
    Before LEVY, GERSTEN, and GREEN, JJ.
   PER CURIAM.

Appellant was charged with, and on May 7, 1997 pled guilty to, sale, manufacture or delivery of cocaine (count 1) and possession of cocaine (count 2). He was then sentenced to ten years imprisonment as a habitual felony offender on both counts. Appellant filed a motion to correct sentence with the trial court, wherein he challenged the legality of his habitual offender sentence on the following three grounds:

1. The habitual offender sentence imposed for count 1, sale of cocaine is an improper departure sentence without written reason.
2. The sentence imposed on count 2 is illegal because a conviction for possession of cocaine cannot be enhanced pursuant to Section 775.084, Fla. Stat. (1995).
3.Appellant must be resentenced using a 1994 sentencing scoresheet because the offenses fall within the applicable window period during which the 1995 guidelines were held unconstitutional.

The trial court granted relief only on issue two by resentencing appellant on count 2 to 42.6 months imprisonment and deleting the habitual offender classification. Appellant took the instant appeal.

As to issue one, the state asserts and we agree that appellant is entitled to no relief inasmuch as the sentencing guidelines are inapplicable to habitual offender sentences. See § 775.084(4)(e) (1995); Nelson v. State, 632 So.2d 206 (Fla. 1st DCA 1994). For that reason, appellant’s sentence for count 1 is not improper.

As to issue three, the State, however, properly concedes that appellant is entitled to relief in the form of resentencing when the trial court resentenced appellant on count 2 to 42.6 months, it improperly utilized a 1995 guidelines scoresheet. The appellant’s offenses were committed on September 6, 1996, and fell within the window period during which the 1995 guidelines were declared unconstitutional. See Heggs v. State, 759 So.2d 620 (Fla.2000); Trapp v. State, 760 So.2d 924 (Fla.2000). Accordingly, he is entitled to be resentenced under the 1994 guidelines. Since the 42.6 months imprisonment sentence falls outside the 1994 recommended guideline range, the appellant is entitled to be resentenced. See Toomajan v. State, 785 So.2d 1275 (Fla. 5th DCA 2001); Willis v. State, 785 So.2d 698 (Fla. 1st DCA 2001).

Reversed and remanded for resentenc-ing.


text:
    Onaray Vashon JORDAN a/k/a Onaray Vashom Jordan, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1770.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Onaray Vashon Jordan, in proper person.
    Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Onaray Vashon Jordan appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We reverse and remand for a hearing.

Defendant Jordan entered into a plea bargain with regard to five 1993 cases. He received a thirty-five-year sentence, as agreed.

Defendant-appellant Jordan alleges that he received affirmative misadvice from his trial counsel at the time he entered his plea. He states his trial counsel told him that he would be eligible for basic gain time and incentive gain time. According to the defendant, his counsel advised him that he could expect to serve about twelve years of the thirty-five-year sentence.

The defendant asserts that in October 2001, he was advised by the Department of Corrections that he was not eligible for basic gain time on one of the charges, sexual battery. See § 794.011(7), Fla. Stat. (1993). The defendant asserts that he will be required to serve all, or most, of the thirty-five year term.

The defendant has attached to his motion a memorandum he received from the Department of Corrections on October 10, 2001, advising him of this ineligibility for basic gain time. He filed his postconviction motion shortly thereafter, in January of 2002. His motion asserts that he did not previously know this information.

The State argues that the defendant must have known this information at an earlier date because the defendant has previously filed postconviction motions seeking additional credit for jail time served before sentencing. We reject the State’s argument on this point. The request for additional credit for jail time served does not involve any issue regarding Department of Corrections gain time.

The Department argues that the defendant must necessarily have been given information regarding his tentative release date at an earlier time while he was in the prison system, which would have alerted him to this issue. However, there is nothing in the record before us which conclusively refutes this claim.

Under State v. Leroux, 689 So.2d 235 (Fla.1996), affirmative misadvice regarding the amount of time to be served on an agreed sentence can be a basis for post-conviction relief. Id. at 238; see also Fisher v. State, 824 So.2d 1050 (Fla. 3d DCA 2002); Bauder v. State, 768 So.2d 1232 (Fla. 3d DCA 2000); Gonzales v. State, 766 So.2d 452 (Fla. 3d DCA 2000); Carter v. State, 752 So.2d 725 (Fla. 3d DCA 2000); Bell v. State, 746 So.2d 515 (Fla. 3d DCA 1999); Rensoli v. State, 718 So.2d 1278 (Fla. 3d DCA 1998).

We reverse and remand this matter for an evidentiary hearing on (1) the issue of the timeliness of the defendant’s motion, and (2) if timely, the merits of the defendant’s claim.

Reversed and remanded for further proceedings consistent herewith.


author: SCHWARTZ, Chief Judge. COPE, J.

text:
    S.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1553.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.

      Bennett H. Brummer, Public Defender and Andrew Stanton, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General and Richard L. Polin, Assistant Attorney General and Sarah B. Belter and Joseph Bro-phy, Certified Legal Interns, for appellee.
    Before SCHWARTZ, C.J., COPE and GODERICH, JJ.
   SCHWARTZ, Chief Judge.

This is an appeal from an adjudication of delinquency based upon findings that the seventeen year-old male respondent, S.P., was guilty of loitering and prowling and resisting the arrest for that offense without violence. We reverse.

I.

Under the decided cases, the behavior which formed the basis of the charge, which consisted of the boy’s being seen by the arresting officer “standing over by [a cemetery] wall, by the bushes, crouched down by the bushes” near several vehicles visiting the cemetery at two o’clock on Christmas Day afternoon, was insufficient to establish the elements of loitering and prowling as required by section 856.021, Florida Statutes (2001). State v. Ecker, 311 So.2d 104 (Fla.1975), cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975); Gonzalez v. State, 828 So.2d 496 (Fla. 3d DCA 2002); T.W. v. State, 675 So.2d 1018 (Fla. 2d DCA 1996); L.C. v. State, 516 So.2d 95 (Fla. 3d DCA 1987); D.A. v. State, 471 So.2d 147 (Fla. 3d DCA 1985); L.S. v. State, 449 So.2d 1305 (Fla. 3d DCA 1984). Simply stated, his actions, perhaps even more clearly than in such cases as D.A. and L.S., did not amount either (a) to “aberrant and suspicious criminal conduct which comes close to, but falls short of, the actual commission or attempted commission of a substantive crime,” or (b) “point toward the commission or attempted commission of a crime against a person or a crime against certain property in the vicinity.” D.A., 471 So.2d at 151, 152.

II.

Since the arrest for loitering and prowling was therefore invalid the charge of resisting that arrest likewise cannot stand. D.A. v. State, 636 So.2d 863 (Fla. 3d DCA 1994); Lee v. State, 368 So.2d 395 (Fla. 3d DCA 1979), cert. denied, 378 So.2d 349 (Fla.1979).

For these reasons the adjudications under review are reversed with directions to dismiss the proceeding.

Reversed and remanded with directions.

GODERICH, J., concurs.

COPE, J.

(dissenting).

The adjudication of delinquency should be affirmed.

The arresting officer testified:

A. I was at a cemetery visiting my grandfather’s grave with my mom and my dad. They were in different cars, and I was in my car. I was in an off-duty capacity. I was in my personal van, my personal truck.
When we came out to 18th Avenue, and there was a car in front of me, and the car wasn’t going. There was no traffic, so normally you look to see whether the person is not paying attention to their driving.
I see the driver and the passengers were looking over the left. I look over to the left. I see the Defendant standing over by the wall, by the bushes, crouched down by the bushes.
When I looked over there, he stood up and he walked across, right across the street.

Tr. 5-6.

As stated in footnote one of the majority opinion, S.P. crossed the street, walked through a gas station, and then returned to the original location. The officer testified:

He walked over to the bushes, and he crouched down in the bushes as vehicles were coming into the cemetery. He was crouching down in the bushes.
At that point, I got out of my car. I had my wallet in my hand. I walked over to the bushes where he was. I shoved my badge and ID in his face, and I grabbed him, and told him to stand up.

Tr. 7.

The arresting officer flagged down a uniformed officer in a patrol car.

THE WITNESS: When the other officer drove up, he had his hands on the car. I asked for ID. He didn’t have ID, but when he started talking, he had something in his mouth. I couldn’t tell what it was.
I ordered him to open his mouth. Whatever it was, he swallowed. I have no idea what it was that he had in his mouth at the time. At that point, he was Mirandized with [Officer] Rob Williams there making sure that he wasn’t going to run.
I Mirandized him. He refused any statements. Based on the totality of the circumstances, and the fact that he didn’t dispel my alarm, I arrested him for loitering and prowling, and resisting. Rob Williams transported him to the station for me.
Q. What were you concerned for?
A. I was concerned for the people that were visiting in the cemetery. Traditionally, what was taking place is that a lot of people come visit their relatives in the cemetery, and usually the windows are down because they walk right over to the grave.
The car could get burglarized, or people get robbed while they’re in the cemetery, specifically during the holidays, like Christmas and New Year’s, et cet-era, Memorial Day. And there’s a lot of people visiting the cemetery.

Tr. 10-11,17-18.

The loitering or prowling statute states:

(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicihity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself or herself, or manifestly endeavors to conceal himself or herself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, pri- or to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself or herself and explain his or her presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.

§ 856.021, Fla. Stat. (2001) (emphasis added).

It must be proved that “the defendant loitered or prowled in a place, at a time, or in a manner not usual for law-abiding individuals ... [and that] such loitering and prowling were under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” State v. Ecker, 311 So.2d 104, 106 (Fla.1975).

A commonsense reading of the statute supports the adjudication of delinquency in this case. S.P. was crouching in the bushes close to cars which were driving in and out of the cemetery. The officer had the entirely reasonable concern that S.P. was concealing himself close to the vehicles so that he could steal from them.

The majority opinion relies on D.A. v. State, 471 So.2d 147 (Fla. 3d DCA 1985), but the logic of that case supports affir-mance in this one. The court in D.A. stated:

As to the first element, it must be established that the defendant engaged in incipient criminal behavior which law-abiding people do not usually engage in due to the time, place, or manner of the conduct involved. The gist of this element is aberrant and suspicious criminal conduct which comes close to, but falls short of, the actual commission or attempted commission of a substantive crime. It does not, however, involve behavior which constitutes no threat of immediate, future criminal activity. See Model Penal Code § 250.6 comment at 388-91 (1980).
In this connection, the statute is forward-looking, rather than backward-looking in nature. Its purpose is to punish a certain type of incipient criminal behavior before it ripens into the commission or attempted commission of a substantive criminal act....
As to the second element, which is the heart of the offense, it must be established that the defendant engaged in conduct that warranted a justifiable or reasonable alarm or immediate concern for the safety of persons or property in the vicinity. The gist of this element is that the aberrant or incipient criminal behavior, stated above, must be alarming in nature; that is, it must threaten the physical safety of persons in the area or the safety of property in the area. It is not enough that the subject criminal behavior point towards the commission or attempted commission of any type of substantive crime; it must point toward the commission or attempted commission of a crime against a person or a crime against certain property in the vicinity. It must, in a word, amount to an imminent breach of the peace or an imminent threat to public safety. State v. Ecker, supra at 109, 110; Model Penal Code § 250.6 comment, supra.

D.A., 471 So.2d at 151-52.

There are reported cases regarding juveniles who are located in bushes, but those cases are clearly distinguishable from the present one. The D.A. court said:

[I]n In re O.W., 423 So.2d 1029 (Fla. 4th DCA 1982), where a loitering and prowling adjudication was reversed, the police observed the juvenile, a 13-year-old boy, running with two companions from some bushes across a vacant field during school hours on a school day. When stopped, the boys stated they were skipping school. The court found, in effect, that the first element of the offense had not been established because climbing trees, playing in bushes, and running through woods and fields were not unusual activities for a 13-year-old boy; plainly, the juvenile was skipping school and his activity in no way pointed toward immediate, future criminal conduct. In L.S. v. State, 449 So.2d 1305 (Fla. 3d DCA 1984), this court, citing O.W., supra, reached a similar result where the juvenile, a 14-year-old boy, was observed crouching in the bushes near an expressway exit. A loitering and prowling adjudication was reversed on the basis that such playful activity was plainly not unusual for a 14-year-old boy and did not point to future criminal activity. Moreover, neither the fact that past drug transactions had taken place in the field through which O.W. ran, nor that past robberies and purse snatches had taken place at the expressway exit where L.S. was observed, changed the results in these cases because, if it had, children living in high crime areas would be precluded from playing and frolicking in many parts of their neighborhoods. Also in V.S. v. State, 446 So.2d 232 (Fla. 3d DCA 1984), this court reversed a loitering and prowling adjudication involving a juvenile who was stopped on the street based solely on a police “hunch.” Being out on the street, in itself, is plainly harmless behavior and, without more, poses no threat of immediate future criminal activity.

D.A., 471 So.2d at 152.

The State correctly points out that in the reported cases, the juveniles were younger in age — thirteen or fourteen years old — and playing in a group in an area where such activity could reasonably be accomplished. In the present case, by contrast, this is an older juvenile — age seventeen — who is not playing in a group but instead is hiding himself, alone, in bushes in close proximity to persons arriving and departing through the cemetery entrance. The officer’s immediate concern for the safety of the persons or property of the cemetery visitors was entirely reasonable, and S.P. never dispelled that concern.

The adjudication of delinquency should be affirmed.

      . The officer described what the respondent did thereafter:
      When I looked over there, he stood up, and he walked across, right across the street. Across 18th Avenue, there’s a 7-11.
      * * *
      I saw him walk straight across. He started walking around the gas island. He did two big circles around the gas island. This car left. I then went, because of the suspicious activity, I went, and I parked right in front of the 7-11.

      At that point, when all the cars left, he walked over to — There's a triangle-shaped median that has bushes in it in the center, right in front of the cemetery. He walked over to the bushes, and he crouched down in the bushes as vehicles were coming into the cemetery. He was crouching down in the bushes.


author: COBB, J.

text:
    Colleen L. McGHEE, Appellant, v. STERLING CASINO LINES, L.P., Appellee.
    No. 5D02-608.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.

      Thomas H. Yardley, Cocoa, for Appellant.
    Patty Spivey of Hayden and Milliken, P.A., Cape Canaveral, for Appellee.
   COBB, J.

Colleen McGhee, plaintiff below, appeals from an adverse final judgment entered pursuant to the entry of summary judgment for the defendant, Sterling Casino Lines, L.P. (Sterling).

Sterling’s motion for summary judgment on McGhee’s discrimination claim was based on the theory that McGhee’s action had not been filed in accordance with the time periods contained in section 760.11, Florida Statutes (1999). In accordance with a work-sharing agreement between the United States Equal Employment Opportunity Commission (EEOC) and Florida Commission on Human Relations (FCHR), each agency appointed the other as its “agent for the purpose of receiving, drafting and filing charges”. The agreement provides that “EEOC’s receipt of charges on the [FCHR’s] behalf will automatically initiate the proceedings of both EEOC and [FCHR]”. The agreement was in effect when Sterling terminated McGhee from employment on November 20,1998 and ninety-one days later, on February 19,1999, McGhee delivered an affidavit to the Miami office of the EEOC alleging that her firing was discriminatory and requesting the dual filling of a discrimination charge with the FCHR.

Approximately eight months later, on October 28, 1999, McGhee contacted the EEOC by letter, advised it that more than 180 days had passed and asked for a “right to sue” letter from the agency. The EEOC had mislaid McGhee’s paperwork and after discovering the original correspondence informed her by letter dated December 6, 1999, that her discrimination charge would be docketed “the date of its initial receipt”. By this correspondence the EEOC enclosed what it labeled a “sample charge of discrimination format for future use”. McGhee’s attorney was further advised to have his client date and sign five copies of EEOC Form 5 which contained the charge of discrimination. On December 17, 1999, McGhee executed EEOC Form 5 and submitted it to the EEOC, again requesting dual filing with the FCHR. EEOC records reflect that the agency received Form 5 on December 27, 1999 and sent notice of the charge to the FCHR. Sterling was notified and on January 21, 2000 filed a response to the EEOC’s notice.

On January 28, 2000 the EEOC issued a formal determination finding that “more than 180 days have passed since the filing of this charge” and notified McGhee it was terminating the investigation. On April 6, 2000, pursuant to section 760.11(8), Florida Statutes (1999), the instant lawsuit was filed. Sterling’s motion for summary judgment was predicated on McGhee’s failure to wait 180 days for the FCHR to make a determination under section 760.11 prior to filing her lawsuit. The affidavit of James Colon, coordinator of EEOC’s Miami office recites that his office acts as agent for the FCHR and processes charges for it. The trial court granted Sterling’s motion for summary judgment, finding that McGhee failed to file the proper form (Form 5) for dual' filing with the FCHR until December 27, 1999 and that suit was filed prematurely, prior to expiration of the 180 day period.

McGhee’s position is that the FCHR appointed the EEOC as its agent for purposes of filing state court discrimination claims and that since the EEOC authorized suit to be filed, it was timely filed even though because of an EEOC error, her discrimination charge was actually received by the FCHR less than 180 days before suit was filed. McGhee maintains that Wells Fargo Guard Services, Inc. of Florida v. Lehman, 799 So.2d 252 (Fla. 3d DCA 2001) supports her position.

Sterling counters that Wells Fargo is distinguishable and that the trial court correctly relied on an earlier Third District decision, Sweeney v. Florida Power and Light Co., 725 So.2d 380 (Fla. 3d DCA 1998). Sterling’s position is that to permit a claimant to proceed without having waited the required 180 day period would allow her to circumvent the possibility of a dismissal leaving the sole remedy of an administrative hearing. § 760.11(7), Fla. Stat. See Ayers v. Wal-Mart Stores, Inc., 941 F.Supp. 1163 (M.D.Fla.1996).

Wells Fargo involved a situation where the plaintiff, Lehman filed an employment discrimination claim with the EEOC on September 6, 1995 but failed to specifically request dual filing with the FCHR. Lehman’s attorney wrote to the EEOC the next day and requested dual filing with the FCHR but inexplicably the FCHR did not receive a copy of the complaint from the EEOC until September 25, 1995. Lehman filed his lawsuit after receiving a “right to sue” notice from the EEOC dated February 23, 1996, approximately 180 days from the September 6 filing but less than 180 days from the. September 25 receipt of the claim by the FCHR.

In rejecting the defendant’s contention that suit was premature, the Third District, relying on the work-sharing agreement between the EEOC and FCHR which designated each other as its agent for the purpose of receiving workplace discrimination charges, explained:

This language indicates that when the EEOC receives a complaint, it is deemed to be filed a that time, and not on the later date when a copy is received by the FCHR ...
* * *
Because courts ’generally defer to an agency’s interpretation of the statutes it is charged with administering, we now hold that when a charge is dually filed with the EEOC and the FCHR, the date of filing with the EEOC shall also be considered the date of filing with the FCHR. See Dawkins v. BellSouth Telecomms., Inc., 53 F.Supp.2d 1356, 1360 (M.D.Fla.1999) (because plaintiff indicated to the EEOC that she wished her complaint to be dually filed with the FCHR, plaintiff will be deemed to have filed with the FCHR on the same date as filing with the EEOC). Thus, as Lehman’s charge was dually filed with both agencies, and his complaint was filed 180 days after filing a charge with the EEOC, Lehman’s complaint was not brought prematurely and the trial court properly denied Wells Fargo’s motion to dismiss.

799 So.2d at 254.

The court distinguished its earlier decision in Sweeney where it had affirmed the dismissal of the plaintiffs complaint which had been filed more than 180 days after filing with the EEOC but less than 180 days after receipt of the claim by the FCHR. The court had held that the 180 days required by section 760.11, Florida Statutes, began to run when the FCHR received a copy of the claim, not when the claim was filed with the EEOC. The court harmonized its two decisions, explaining:

[I]n Sweeney, the FCHR received a copy of the claim pursuant to a work-sharing agreement, not at the plaintiffs request, and there was no indication that the plaintiff wished to dually file his claim with the FCHR. Additionally, the Sweeney court did not have the benefit of the actual text of the work-sharing agreement, nor of explanatory affidavits, as we do here.

Id.

The Wells Fargo decision, being predicated upon well settled rules of agency and administrative law, governs here. McGhee filed her claim by affidavit with the EEOC and sought dual filing with the FCHR. The EEOC, while initially misplacing the paperwork, ultimately found it and deemed that the filing would be docketed as of the date of its initial receipt. Given the agency relationship between the two administrative entities, the date of filing with the EEOC is deemed the date of fifing with the FCHR.

We reject Sterling’s argument, accepted by the trial court, that McGhee’s initial filing with the EEOC was insufficient to accomplish a dual filing because EEOC Form 5 had not been completed. Sterling cites to no statute, agency rule or court decision expressing that EEOC Form 5 must be completed to initiate a valid dual filing of a discrimination charge. Indeed, while the EEOC instructed McGhee to execute Form 5, the EEOC expressly stated that the discrimination charge would be docketed “the date of its initial receipt”. Further on January 28, 2000, the EEOC issued its formal determination that “more than 180 days have passed since the filing of this charge”, even though only 42 days had passed since McGhee executed and submitted Form 5 to the EEOC. The EEOC thus did not consider McGhee’s February 19, 1999 filing of her discrimination charge by affidavit to be defective in any way and the well settled rule that courts should defer to an agency’s interpretation of the statutes and rules it is charged with administering applies to this determination.

The trial court, at Sterling’s urging, relied on provisions in the work-sharing agreement in ruling that completion of Form 5 was necessary for a claim to be deemed dual filed. In particular, paragraph D of the agreement provides:

For charges that are to be dual-filed, each Agency will use EEOC Charge Form 5 (or alternatively, an employment discrimination charge form which within statutory limitations, is acceptable in form and content to EEOC and the FEPA) to draft charges. Specifically, each agency will forward an Affidavit taken at the time of intake and copy of the Charge Information Form. When a charge is taken based on disability, the nature of the disability shall not be disclosed on the face of the charge.

This provision, as with the remainder of the agreement, relates to the administrative processing of claims between the two agencies. The paragraph does not expressly provide that a charge will not be deemed dual filed until Form 5 is executed and filed by the claimant. Sterling references no rule of the EEOC or the FCHR so providing. Since Chapter 760 is remedial and should be liberally construed to effectuate its purpose, Joshua v. City of Gainesville, 768 So.2d 432 (Fla.2000), the work-sharing agreement should not be interpreted as elevating an apparent matter of administrative convenience among agencies into an immutable jurisdictional filing date which directly impacts when a lawsuit may be brought.

The trial court erred in concluding that McGhee’s claim could not be considered dually filed until Form 5 had been completed and returned. The date of filing with the EEOC is to be considered the date of filing with the FCHR. Wells Fargo, 799 So.2d at 254. McGhee’s action was not brought prematurely and the trial court erroneously entered summary judgment for Sterling.

REVERSED AND REMANDED.

SHARP, W. and ROUSE, JR., R. K., Associate Judge, concur.

      . Under the Florida law in effect at the time McGhee's claim arose, a person who claimed a violation of the Florida Civil Rights Act was required to file a complaint with the FCHR within 365 days of the alleged violation. § 760.11, Fla. Stat. (1999). The claimant then had to wait -180 days for the agency to investigate and determine whether there was reasonable cause to believe that a discriminatory practice occurred. § 760.11(3), Fla. Stat. Only upon a finding of reasonable cause could a lawsuit be filed.

      . Section 760.11(1) Florida Statutes provided that a complaint alleging discrimination be verified, name the person responsible for the violation and describe the violation by way of a "short and plain statement of the facts describing the violation and the relief sought”. McGhee’s February 19, 1999 affidavit filed with the EEOC met these requirements. It also complied with Title VII of the Civil Rights Act of 1964, as amended. See 42 U.S.C. § 2000e — 5 (b).

      . See Beach v. Great Western Bank, 692 So.2d 146, 149 (Fla.1997) ("an agency's interpretation of its own regulations has traditionally been accorded considerable respect").

      . The EEOC’s formal rules do not mention Form 5. See 29 C.F.R. § § 1601.6-1601.14. Indeed 29 C.F.R. § 1601.9 entitled "Form of charge” merely provides "A charge shall be in writing and signed and shall be verified".


author: ORFINGER, R. B., J.

text:
    Marques Mandred HAYDEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-879.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.

      Paula C. Coffman, Orlando, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, R. B., J.

Following a restaurant robbery in December, 2000, Marques Hayden was arrested and charged by information with the offense of robbery with a firearm and a mask in violation of sections 812.13(2)(a), 775.087(2), and 775.0845, Florida Statutes (2000). The information alleged that while both Hayden and his co-defendant, Dant-rell Deon Riley, wore masks during the robbery, only Riley carried or possessed a firearm.

Hayden subsequently pled no contest to the charge, and, in exchange for truthful testimony against his co-defendant, the State dismissed the other charges pending against him. While Hayden and the State had no agreement regarding sentencing, it was understood that youthful offender sentencing was to be an option available to the court.

At the plea hearing, the State provided the following factual basis to support the plea:

On December 22nd, Marcus Hayden and Dantrell Riley, with a gun and masks, went into Long John Silver restaurant, committed a robbery. There were some employees that were pushed around and dragged around until they opened the safe.
Mr. Hayden and Mr. Riley, after getting the money, left in a fleeing car that was driven by Lee Richardson. A police officer happened to be nearby, and a high-speed chase 'ensued. The car crashed. Mr. Riley and Mr. Hayden were passengers and Mr. Richardson was the driver. And recovered inside were two knit caps, two pairs of gloves, and a handgun were [sic] found right next to the car. This occurred in Orange County, Florida.

The trial court advised Hayden that unless a youthful offender sentence was imposed, his sentence would be no less than the ten-year minimum mandatory sentence required by section 775.087(2)(a)(l), up to life in prison. Hayden acknowledged that he understood the range of potential sentences, and the court then accepted his píea. Subsequently, Hayden was sentenced to twenty years in prison with the court imposing the ten-year minimum mandatory sentence required by section 775.087(2)(a)(l) for possession of a firearm during the commission of a felony.

On appeal, Hayden argues that because the State’s information failed to allege that he personally possessed a firearm during the commission of the felony, the ten-year minimum mandatory term required by section 775.087(2)(a)(i) is inapplicable to him. We affirm because the issue was not preserved for appeal.

While Hayden correctly asserts that we have held that the State must plead and prove that the defendant had actual physical possession of the firearm during the commission of the felony before the court can impose the section 775.087(2) minimum mandatory sentence, see Demps v. State, 649 So.2d 938 (Fla. 5th DCA 1995), Hayden failed to preserve the issue either by raising it below or by filing a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b). Instead, Hayden argues that imposing the minimum mandatory provision on him con-' stitutes fundamental error that can be corrected on appeal even though not preserved below. We disagree.

As Hayden argues, imposing the minimum mandatory provisions of section 775.087(2) constitutes a sentencing error because the information failed to allege that he personally possessed a firearm. However, as we held in Capre v. State, 773 So.2d 92, 92 (Fla. 5th DCA 2000), “sentencing errors occurring after the effective date of amended rule 3.800(b), even fundamental ones, are barred if not raised at trial or in post-trial proceedings pursuant to rule 3.800.” The sentencing error in this case occurred after the effective date of amended rule 3.800(b). As the first district explained in Harvey v. State, 786 So.2d 28, 32 (Fla. 1st DCA), review granted, 797 So.2d 585 (Fla.2001):

For those defendants who had available the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b), the supreme court stated it envisioned those amendments as “eliminat[ing] the problem of unpreserved sentencing errors raised on direct appeal because the time in which a defendant can file a motion to correct a sentencing error in the trial court is expanded to the time the first appellate brief is filed.” Maddox [v. State], 760 So.2d [89] at 94 [ (Fla.2000) ]. These statements are a clear signal to the criminal defense bar that no unpre-served sentencing errors will be entertained on appeal if the defendant had available to him the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedural 3.800(b).

We agree with Harvey that the limiting language in Maddox, when considered in conjunction with the 1996 Criminal Appeal Reform Act and the amendments to Florida Rule of Criminal Procedure 3.800(b), clearly stands for the proposition that un-preserved sentencing errors, even fundamental errors, will no longer be entertained on appeal.

AFFIRMED.

SHARP, W. and GRIFFIN, JJ., concur.

      . Specifically, in relevant part, the information alleged "in the course of committing said robbery Dantrell Deon Riley did actually possess and carry a firearm, and Dantrell Deon Riley and Marques Mandred Hayden did wear a hood, mask, or other device that concealed the identity of the defendant."

      . A "sentencing error” includes "harmful errors in orders entered as a result of the sentencing process. This includes errors in orders of probation, orders of community control, cost and restitution orders, as well as orders within the sentence itself.” See Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.140, & 9.600, 761 So.2d 1015, 1017 (Fla.1999), reh’g granted, 761 So.2d at 1025 (Fla.2000).

      . The factual basis offered by the State to . support the plea also fails to assert that Hayden personally possessed a firearm during the commission of the robbery.


text:
    Thomas MILLER and Randall O. Reder, Appellants, v. HILLSBOROUGH COUNTY, State of Florida, Appellee.
    No. 2D01-5271.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.
    Randall O. Reder of Randall O. Reder, P.A., Tampa, for Appellants.
    Paul D. Johnston, Assistant County Attorney, Tampa, for Appellee.
   PER CURIAM.

In this appeal from a “Final Judgment as to Attorney’s Fees,” Randall O. Reder, appellate counsel for Thomas Miller, challenges the constitutionality of the Thirteenth Judicial circuit’s administrative order establishing a $60 hourly rate for court-appointed attorney’s fees. We treat the appeal as a petition for writ of certio-rari. See Fla. R.App. P. 9.040(c). We deny the petition based on Sheppard & White, P.A. v. City of Jacksonville, 827 So.2d 925 (Fla.2002).

FULMER, DAVIS, and COVINGTON, JJ., Concur.


author: GREEN, OLIVER L., Senior Judge.

text:
    Marshall A. HUMPHREY, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2062.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appel-lee.
   GREEN, OLIVER L., Senior Judge.

Marshall A. Humphrey challenges the sentence imposed upon revocation of his probation. Humphrey argues, and the State properly concedes, that the trial court erred in not granting Humphrey credit against his sentence for all the time he previously served, as required by Tripp v. State, 622 So.2d 941 (Fla.1993). Therefore, we reverse Humphrey’s sentence and remand for resentencing.

Reversed and remanded.

ALTENBERND and COVINGTON, JJ., Concur.


author: SHARP, W., J.

text:
    J.M., Mother OF D.F., N.F., and S.F., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D02-2375.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2002.

      Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Jodi Abramowitz, Orlando, for Appellee.
   SHARP, W., J.

J.M., the mother of three children, D.F., N.F., and S.F., appeals from an order terminating her parental rights to those children. The children were removed from J.M. and placed in the custody of the Department of Children and Families in December 1998. On March 6, 2002, the Department filed a petition to terminate J.M.’s parental rights to these children. Because the Department failed to properly and timely serve J.M. with service of process through publication as required by section 49.09, we reverse and remand for further proceedings.

During the ongoing dependency proceedings, the Department (as well as the attorney appointed to represent J.M.) lost contact with J.M. The Department then filed a petition to terminate J.M.’s parental rights and an affidavit, alleging it was unable to determine the residence or whereabouts of J.M., despite numerous inquiries, and it could not personally serve her. On the same day, the Department filed a summons and notice that an advisory hearing would be held on May 22, 2002. Copies of the termination petition and notice were sent to J.M.’s attorney. Because the Department could not effect personal service on J.M., it published a notice of action in the Orlando Sentinel on April 28, May 5, May 15 and May 19, 2002.

J.M. did not appear at the May 22, 2002 advisory hearing and a default was entered against her. At a later hearing, J.M.’s attorney appeared and asked the judge to set aside the default. The judge refused and proceeded with the hearing. After presentation of testimony from the Department’s witnesses, J.M.’s attorney requested a continuance until she could contact J.M. The judge denied the motion for a continuance and found that termination was in the best interest of the children. The order terminating J.M.’s parental rights was filed on June 12, 2002.

Chapter 39 establishes the statutory framework for terminating parental rights. Section 39.801 provides for notice, service of process and termination of parental rights for failure to appear:

(1) All procedures, including petitions, pleadings, subpoenas, summonses, and hearings, in termination of parental rights proceedings shall be according to the Florida Rules of Juvenile Procedure unless otherwise provided by law.
(3) Before the court may terminate parental rights, in addition to the other requirements set forth in this part, the following requirements must be met:
(a) Notice of the date, time, and place of the advisory hearing for the petition to terminate parental rights and a copy of the petition must be personally served upon the following persons, specifically notifying them that a petition has been filed:
1. The parents of the child.
* * *
The document containing the notice to respond or appear must contain, in type at least as large as the type in the balance of the document, the following or substantially similar language: “FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS OF THIS CHILD (OR CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED, YOU MAY LOSE ALL LEGAL RIGHTS AS A PARENT TO THE CHILD OR CHILDREN NAMED IN THE PETITION ATTACHED TO THIS NOTICE.”
(b) If a party required to be served with notice as prescribed in paragraph (a) cannot be served, notice of hearings must be given as prescribed by the rules of civil procedure, and service of process must be made as specified by law or civil actions.
(d) If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice .... (emphasis supplied)

Florida Rule of Juvenile Procedure 8.505 contains virtually the same provisions.

J.M. could not be located and thus the Department attempted to serve her through publication of the notice in a local newspaper. Florida Rule of Juvenile Procedure 8.505(c) and section 39.801(3)(b), Florida Statutes, both provide that parties upon whom personal service of process cannot be affected shall be served by publication as provided by law. Section 49.011(13), Florida Statutes, provides for service of process by publication in termination of parental rights cases. Specifically, section 49.09 provides for the notice and return day:

The notice of action ... shall require the defendant to file written defenses with the clerk of the court and to serve a copy not later than the date fixed in the said notice, which date shall be not less than 28 nor more than 60 days after the first publication of the notice on plaintiff of his or her attorney whose name and address shall appear in or be annexed to said notice .... (emphasis added).

In this case, the' first publication of the notice occurred on April 28, less than 28 days before the advisory hearing on May 22.

The Department argues that notice was sufficient because J.M.’s attorney was timely served with notice of the hearing, relying on M.E. v. Florida Department of Children and Family, 728 So.2d 367 (Fla. 3d DCA 1999). In M.E., counsel had been appointed to represent the mother in termination proceedings. The case was scheduled for calendar call in June of 1996 and proceeded to trial in July of 1996. Before trial, counsel told the court she had difficulty contacting the mother and was not sure her client knew of the trial date. Counsel did not request a continuance to try to locate the mother.

At the conclusion of the trial, the judge terminated the mother’s parental rights. She moved for rehearing, stating she was unaware of the trial date and wanted to testify. The court denied her motion. On appeal, the mother argued the Department had to personally serve the mother with notice of the trial date. The Third District Court of Appeal rejected this argument.

Florida Rule of Juvenile Procedure 8.505(a) requires personal service of the petition for termination of parental rights along with notice of the date, time, and place of the advisory hearing. Thereafter, “[ujnless the court orders otherwise, every pleading, order, and paper filed in the action after the initial petition, shall be served on each party or the party’s attorney.” Fla. R. Juv. P. 8.225(c)(3) (emphasis in original).
Where counsel has been appointed for the defendant parent, it is sufficient for notices, including the notice of trial, to be given to counsel. Notice to counsel is notice to the parent. See Fla. R. Jud. Admin. 2.060(m). (“In all matters concerning the prosecution or defense of any proceeding in the court, the attorney of record shall be the agent of the client, and any notice by or to the attorney or act by the attorney in the proceeding shall be accepted as the act of or notice to the client.”) ...
It is the responsibility of the parent to stay in reasonable touch with the attorney regarding the progress of the case and to advise the attorney of any change of address. Further, it is essential that the client provide counsel with some reasonably reliable means to contact the client when needed, whether it be at home, work, or some other point of contact. Prior to the hearing in this case, appointed counsel went physically to look for the mother at the mother’s last known address, but she had moved. Certainly the client had a duty to advise the attorney of her change of address, (footnote omitted)

728 So.2d at 368.

Both rule 8.225 and rule 8.505 are in Part II of the Juvenile Rules governing dependency and termination proceedings. However rule 8.225 is located under the general provisions, and rule 8.505 is found under the specific provisions relating to termination of parental rights. As such, the more specific rule should control over the general rule. Further, as pointed out in M.E., the notice in that case was not the initial petition for termination of parental rights and notice of the date, time and place of the advisory hearing.

Rule 8.505(a) as well as section 39.801, Florida Statutes, quoted above, both require that the parents of a child in a termination case be personally served with a copy of the petition and notice of the date, time and place of the advisory hearing. Thus, service of the petition and notice of the advisory hearing on a parent’s attorney is not sufficient.

With regard to what constitutes constructive service on a missing parent, rule 8.505(c) requires publication “as provided by law,” and section 39.801(3) requires service of process as specified by law or civil actions. Both refer back to section 49.09, which as quoted above, mandates the first notice be filed not less than 28 days before the served party is required to respond.

We agree with the First District’s opinion in D.P. Termination of parental rights involves fundamental rights and strict adherence to the notice requirements and time deadlines in the statute and rules insures that parents have a full opportunity to prepare and appear at these important proceedings. See also Grier v. Florida, Department of Children and Families, 710 So.2d 1384 (Fla. 3d DCA 1998). Termination should proceed only if the Department strictly conforms to the applicable statutes and rules. In the Interest of D.A.H., 390 So.2d 379 (Fla. 5th DCA 1980). See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Since the required personal service on J.M. was not effective due to the failure to file the first publication timely, and because personal service was mandated, we have no choice but to reverse the order of termination. We do not address the merits of this case.

REVERSED and REMANDED for Further Proceedings.

GRIFFIN and ORFINGER, JJ., concur.

      . The Department cites a dependency case, L.W. v. Florida, Department of Children and Family Services, 829 So.2d 938, 2002 WL 31306644 (Fla. 3d DCA Oct. 16, 2002), which relies on M.E. for the proposition that notice to counsel is sufficient. In that case, however, the parent was aware of the original hearing date but simply chose not to attend.
      The Department also cites a termination case, M.A. v. Florida, Department of Children and Family Services, 760 So.2d 249 (Fla. 3d DCA 2000), for the proposition that the mother had ample time to move to have the record reopened so that she could testify or seek other relief. In that case, the mother and counsel attended a calendar call and were told to be ready for trial during a certain week. Again, the mother simply did not appear for the trial. Defective notice was not an issue in either case.

      . See, e.g. Butterworth v. Tropic Casino Cruises, Inc., 796 So.2d 1283 (Fla. 5th DCA 2001) (statute of specific application controls over a statute of general application); Brown v. State, 639 So.2d 634 (Fla. 5th DCA 1994)(spe-cific rule controls over general rule).