text:
    Bobby L. GRAHAM, Petitioner, v. Ken JENNE, Sheriff in and for Broward County, Florida, Respondent.
    No. 4D02-4590.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.

      Alan H. Schreiber, Public Defender, and Donald J. Cannarozzi, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Charlie Crist, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Bobby Graham petitions this court for a writ of habeas corpus claiming that he was improperly committed in order to restore his competency to proceed with trial. We agree that the trial court erred in ordering his involuntary commitment to the Department of Children and Families (“DCF”) and grant the petition.

Graham, age thirty-eight and a deaf mute since birth, communicates using limited sign language. He allegedly entered a home, took property, and then pawned it. Graham was later arrested for burglary and dealing in stolen property. Belie/ing him incompetent to proceed, given Ira-ham’s deafness and linguistic deficiency, his attorney sought the court’s appointment of experts to determine Graham’s competency pursuant to Florida Rule of Criminal Procedure 3.211.

The trial court held several hearings to determine Graham’s competency to proceed. At the first hearing, a forensic psychologist said that he tested Graham’s I.Q. and determined that he was neither mentally retarded nor suffering from any mental illness.

Another expert, a clinical psychologist who worked with the deaf, testified that her testing of Graham revealed low cognitive functioning and a low average intelligence. This expert further testified that while Graham was neither mentally retarded nor suffering from any mental illness, he was not competent to proceed given his inability to process abstract concepts and terms used in a legal setting, such as “judge” or “jury.” She opined that Graham’s intellectual functioning suggested he was capable of learning, but that his trial would have to be conducted in a very slow, methodical way. She believed that Graham was not a danger to himself or to others and that he did not meet the criteria for involuntary commitment.

Lastly, a psychologist with expertise in deaf culture testified that Graham would not be able to understand the most basic legal terms such as “jury,” “prosecutor,” or “judge,” since his limited sign language did not contain such words. The psychologist testified that Graham generally understood the charges against him, but that he could not participate in his own defense. He also agreed that Graham was not mentally retarded and did not suffer from any mental illness. He thought it unlikely that Graham would ever gain competency.

The trial court initially indicated it would keep Graham in the county jail and have a psychologist attempt to work with him to gain competence to stand trial or enter a plea. After counsel objected to using the county jail as a holding facility, the court then ordered Graham to be held at the county jail on the basis that his past criminal history made him a “danger to the community.” The court deferred its ruling on Graham’s competency.

A week later, the trial court entered an order finding that Graham had no mental illness, but was borderline mentally retarded. The court ruled that Graham lacked the capacity to consult with his attorney with a reasonable degree of rational understanding and that he also lacked the communication and comprehension skills necessary to meet the basic due process standards to stand trial. The trial court declared him incompetent to proceed. The court also determined that Graham met the statutory definition of “retardation” under section 916.106(12), Florida Statutes (2001), given his significantly sub-average general intellectual functioning. The court committed him to DCF for training appropriate for his form of retardation and his physical handicap of deafness.

DCF moved to intervene so that it could appeal the court’s order. Graham’s counsel, in turn, moved for rehearing arguing that the expert’s testimony at the hearing indicated Graham did not meet the criteria for involuntary confinement. Thereafter, the trial court entered an order granting DCF’s motion to intervene and stayed its earlier order adjudging Graham incompetent to proceed.

At a later status hearing, Graham’s counsel advised the court that the state had offered a plea bargain. Counsel indicated that despite his exhaustive efforts, he was unable to get Graham to understand the concepts involved in entering a plea. Counsel did not think Graham understood the rights he would waive by accepting the state’s offer. Counsel then called one of the previous experts, who testified that Graham did not meet the criteria for involuntary commitment because he did not pose an imminent risk of danger to himself or others. He stated that Graham had no plan to harm himself or anyone else.

A licensed clinical social worker also testified that she would work with Graham weekly and try, if possible, to give him the linguistic tools that he needed to be legally competent. The state advised the court that Graham had six prior burglaries, and asserted that Graham appeared to be following the proceeding. The court spoke with Graham, commented that he was exaggerating his disability and questioned whether Graham was feigning the extent of his lack of understanding. The trial court then continued the matter and appointed another psychologist to evaluate his competency.

The court also received a written report prepared by a DCF staff psychologist which indicated Graham’s recent I.Q. scores were “above the level of Mental Retardation” and that “there [were] no significant deficits in [his] overall social adaptive functioning.”

At the third hearing, the court-appointed expert testified that Graham was incompetent to proceed, but did not meet the criteria for involuntary hospitalization. The psychologist recommended that Graham be sent to a county facility where DCF could be brought in to teach him the necessary signing language to restore his competency. The court asked the expert witness to elaborate on her conclusion that Graham was not a danger to himself or to others as defined by the criteria for involuntary hospitalization. The expert did not believe Graham to be directly violent, but thought, in an indirect way, that he could harm himself or someone else. She told the court that given Graham’s deafness and his propensity to commit burglaries, he could find himself in a home where he may not hear the residents and could be shot, or if he saw that he was being discovered, he might attempt to leave and inadvertently harm someone else. She did not believe Graham was feigning his mental deficiencies and was uncertain whether he would ever be restored to competency.

At the conclusion of this hearing the court declared Graham incompetent to proceed. The court ordered Graham to be committed into the custody of DCF and housed at a custodial facility that would administer treatment to restore his competency to proceed. In its order, the court determined: “For purposes of commitment and treatment, the Defendant’s form of linguistic incompetence is analogous to mental retardation albeit the Defendant does not meet the statutory definition.” The court further found that Graham was a danger to the community, noting that his record reflected seven prior felony convictions, six of which were burglaries, and that if left to his own devices, he would again endanger the citizens of Broward County by committing another burglary.

Graham, who remains in custody at the Broward County Jail awaiting transfer to a DCF facility, now petitions this court for a writ of habeas corpus discharging him from his involuntary commitment.

Florida Rule of Criminal Procedure 3.212(c)(3)(A) provides that a defendant may be “committed for treatment to restore a defendant’s competence to proceed” if the “defendant meets the criteria for commitment as set forth by statute.” Chapter 916, governs the involuntary commitment of mentally deficient and mentally ill defendants. The statute is divided into three parts: Part I provides general provisions; Part II establishes forensic services for persons who are mentally ill; and Part III provides forensic services for those who are retarded or autistic. The terms “retardation,” “mental illness,” and “incompetent to proceed,” are defined by statute. See § 916.106(9), (11)-(12), Fla. Stat. (2002). If an accused is mentally ill or retarded and is adjudicated incompetent to proceed, he or she may be involuntarily committed under either Part II or Part III of Chapter 916.

In Part II, section 916.13 authorizes a court to involuntarily commit an accused who is adjudicated mentally ill and incompetent to proceed. In Part III, the court’s authority to order the involuntary commitment of someone who is retarded and adjudicated incompetent to proceed is governed by section 916.302.

There is no doubt that Graham is “incompetent to proceed” as that term is defined in section 916.106(9). A number of psychologists agreed that Graham is incompetent to proceed given his deafness from birth and his inability to understand the proceedings against him.

A crucial question is whether Graham is mentally ill or retarded. If either, a court is authorized to order his involuntary commitment under Parts II or III. If not, Chapter 916 does not permit a court to order a defendant committed simply because he is incompetent to proceed.

The trial court determined that Graham was “borderline retarded.” The court improperly analogized prelinguistic deafness and low intelligence with mental retardation, as defined in section 916.106(12). Three experts testified that Graham was not mentally retarded or suffering from mental illness. One psychologist, whose expertise is deaf culture, testified that persons born deaf do not learn abstract concepts that are used in the legal system because their language has no signs for even the most basic legal terminology. Another explained that Graham cannot process abstract concepts and that he cannot understand the terms that are used in a legal setting. Intelligence testing revealed that Graham’s I.Q. is “above the level of Mental Retardation.” Equating his linguistic deficiency and low I.Q. scores with mental retardation is not supported by the record and contravenes the definition of “retardation” found in section 916.106(12).

Even if Graham met the definition of “retarded,” the trial court would not have been able to commit him because his previous non-violent burglaries did not rise to the level of danger required by section 916.302(l)(b). Before a retarded, incompetent defendant can be involuntarily committed, section 916.302(l)(b) requires clear and convincing evidence that “[t]here is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting or threatening such harm.” § 916.302(l)(b), Fla. Stat. (2002). Several experts testified that Graham did not present a threat to himself or others. There was no evidence that Graham was a violent person who would directly harm himself or others.

We reject the sheriffs argument that section 916.13 authorizes Graham’s commitment because this statute envisions two groups that may be involuntarily committed'—those who are deemed incompetent to proceed because they are “mentally ill” under section 916.13(l)(a), and those who are deemed incompetent to proceed for some other reason under section 916.13(l)(b).

Such an interpretation ignores the well-established principle that statutes are to be read in their entirety. See Burdick v. State, 594 So.2d 267 (Fla.1992). “A basic principle of statutory construction requires that ‘all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another.’ ” M.W. v. Davis, 756 So.2d 90, 101 (Fla.2000) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)) (emphasis in original). Additionally, “[s]tatutes which authorize the deprivation of an individual’s liberty must be strictly construed.” Lee v. State, 546 So.2d 436, 437 (Fla. 5th DCA1989).

Section 916.13(l)(a)-(c), Florida Statutes (2002), addresses the involuntary commitment of those defendants deemed incompetent to proceed because they are mentally ill. The absence of the word “and” before subsection (b) does nothing to change the plain meaning of section 916.13 and does not create another group of individuals, apart from the mentally ill, who may be committed. The drafter’s use of a semicolon at the end of section 916.13(l)(a)2. does not signify a complete break between subsections (a) and (b), but a close relationship between the two. See William Strunii, Jr. & E.B. White, The Elements of Style pt. I, § 5 (3d ed.1979). The use of “and” at the end of subsection (b) indicates that subsection (c) is the last component of the list of requirements for involuntary commitment contained in section 916.13(1).

Here there was a lack of clear and convincing evidence that Graham was suffering from a “mental illness” as defined in section 916.106(11), or that there was a “substantial likelihood that in the near future” Graham would “inflict serious bodily harm on” himself or another person. § 916.13(l)(a)2„ Fla. Stat. (2002).

Graham is incompetent to proceed to trial because he is a deaf mute and his sign language skills do not include legal terms required for him to either enter a plea or proceed to trial. He does not meet the requirements of Chapter 916 for involuntary commitment to DCF.

However, Florida Rule of Criminal Procedure 3.212 provides other options. Rule 3.212(c)(2) states that if an incompetent defendant is incarcerated, “the court may order treatment to be administered at the custodial facility.” This means that an incompetent defendant who satisfies the requirements for pretrial detention may be treated at the facility where he is being held prior to trial. Rule 3.212(d) allows a court to order appropriate release conditions for up to a year, including outpatient treatment at an appropriate local facility and reporting for further evaluation, if a defendant is not mentally competent but does not meet the criteria for commitment.

Accordingly, we grant Graham’s petition for writ of habeas corpus and remand this matter to the trial court for further proceedings consistent with our decision.

KLEIN, SHAHOOD and GROSS, JJ., concur.

      . DCF’s Program Office of Developmental Disabilities Statement to the Circuit Court of the Seventeenth Judicial Circuit, dated July 16, 2002.

      . Section 916.106(12), Florida Statutes (2002), provides:
      ''Retardation” means significantly subaver-age general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. “Significantly subaverage general intellectual functioning,” for the purpose of this definition, means performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the department. “Adaptive behavior,” for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of the individual's age, cultural group, and community.


source: Caselaw Access Project

author: COPE, J.

license: Public Domain

text:
    Dale Levetter OZELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-914.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.

      Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   COPE, J.

Dale Levetter Ozell appeals his conviction for sale of cocaine within one-thousand feet of a school. Finding no fundamental error in the jury instruction, we affirm.

Miami-Dade County police officers conducted an undercover surveillance of an area where hand-to-hand drug sales were taking place near a school. During the afternoon, the surveillance officer (who was stationed in a van) saw Linda Mullins ride to the street corner on her bicycle. She spoke to the defendant, who went into an apartment building and returned. He handed her an object which she took in her right hand and she gave the defendant money.

Ms. Mullins rode away on her bicycle. The surveillance officer radioed a “take down” instruction to other officers, who intercepted Ms. Mullins. When Ms. Mullins saw the police officers, she threw down an object to the ground from her right hand. It proved to be a small ziplock baggie containing a single rock of cocaine. In order not to disclose the existence of the surveillance operation, the police officers elected not to arrest the defendant until a later date.

At trial, the witnesses were the three officers who performed the surveillance and arrested Ms. Mullins. The defense argued that the police officers were mistaken in their identification of the defendant. The defense also argued that there must be reasonable doubt in the case because the surveillance officer could not actually see what the object was which was handed to Ms. Mullins. The defense hypothesized that Ms. Mullins may have had the cocaine in her hand when she rode up to the defendant.

Prior to the closing arguments, the court distributed the written proposed jury instructions to the parties. They provided, in pertinent part:

Before you can find the defendant guilty of Sale or Delivery of Cocaine within 1000 feet of a School the State must prove the following three elements beyond a reasonable doubt:
1. The Defendant sold or delivered
2. a controlled substance, that is, cocaine.
3. in, on, or within 1000 feet of the real property comprising a public or private elementary, middle, or secondary school.

The court allowed the parties time to review the proposed instructions. Neither side had an objection to the just-quoted instruction.

The defendant was convicted as charged. He has appealed.

The defendant begins with the assumption that in this case, the trial court used the standard jury insteuction entitled “Contraband in Specified Locations F.S. 893.13(l)(c)(d) and (e).” Under that particular instruction, the instruction should have contained a fourth element: “4. (Defendant) had knowledge of the presence of the substance.” West’s Florida Criminal Laws and Rules 2001, at 1456-57.

It turns out, however, that in West’s Florida Criminal Law and Rules 2001, there is a second standard jury instruction dealing with the same subject. It is entitled “Drug Abuse — Possession on or Near School F.S. 893.13(l)(e).” Id. at 1458-59. It appears probable that the latter instruction should have been deleted after the Florida Supreme Court adopted the first-cited instruction. Compare Standard Jury Instructions-Criminal Cases, 765 So.2d 692, 700-02 (Fla.2000) with, In re: Standard Jury Instructions in Criminal Cases, 543 So.2d 1205, 1207-08 (Fla.1989). Under the latter jury instruction, “If the defense seeks to show a lack of knowledge as to the nature of a particular drug, an additional instruction may be required.” West’s Florida Criminal Law and Rules 2001 at 1459 (citation and emphasis omitted). In the present case there was no such request.

The defendant argues that in this case the State was required to prove that the defendant handed Ms. Mullins cocaine, and knew that the substance was cocaine when he did it. He contends that it was fundamental error to fail to give an instruction that the defendant knew the substance was cocaine. Under the circumstances of this case, we do not agree.

The Florida Supreme Court considered a similar situation in State v. Delva, 575 So.2d 643 (Fla.1991). In that case, a package of cocaine was under the front seat of the car Delva was driving and he had a cocaine pricing list in his wallet. Id. at 645. The defense was that others had access to the car and that Delva himself did not know the package of cocaine was even in the car. Id.

The Florida Supreme Court rejected the argument that the omission of this part of the jury instructions constituted fundamental error:

There was no suggestion that Delva was arguing that while he knew of the existence of the package he did not know what it contained.... 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.

Id. The present case is very similar to, and controlled by, Delva.

The defense argues that reversal is required under Blunt v. State, 831 So.2d 770 (Fla. 4th DCA 2002). We disagree and conclude that Davis v. State, 839 So.2d 734 (Fla. 4th DCA 2003), is on point.

Affirmed.

       We urge the Florida Supreme Court Committee on Standard Jury Instructions in Criminal Cases to review the quoted jury instructions with a view to clarifying whether the instruction entitled "Drug Abuse — Possession on or Near School F.S. 893.13(l)(e)” should have been deleted at the time the new standard jury instruction was approved in 2000. 765 So.2d at 700. It may also be prudent to review the neighboring instructions so as to eliminate any others that may be obsolete or contain obsolete statutory references.


text:
    Alberto LAFERTA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-181.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   COPE, J.

Alberto Laferta appeals the sentence imposed upon him after the conclusion of a jury trial. We reverse the sentencing order and remand for resentencing.

Defendant-appellant Laferta was convicted of armed burglary, conspiracy to commit armed burglary, and conspiracy to commit kidnapping. The police conducted a sting operation in which they successfully arrested the defendant and co-defendants who were planning to commit the theft of a tractor trailer containing a shipment of computers. The defendant was to be the driver of one of the getaway vehicles.

Prior to the trial of this case, the defendant’s probation was revoked in another case and he was sentenced to a term of twenty-four years.

In the instant case, the State offered the defendant a plea of twenty-four years concurrent with the twenty-four-year sentence on the probation revocation case. This included the right to withdraw the plea in the instant case should the sentence in the probation revocation case be overturned on appeal.

In a bench conference, the prosecutor and defense counsel advised the judge regarding the status of the plea negotiation. When the defendant arrived in court, the judge stated, in part:

It is my understanding that the State of Florida is willing to give you what is called a concurrent sentence on this case that would run at the same time [as] the sentence you have already gotten in the previous case.
So, in other words, you would not serve any more time than you have already gotten, and this way you have some chance at having a life outside the prison system. Because if you are convicted in this case, because of your prior record, I have very little choice in what I have to do. Whatever sentence I might give you, if you are found guilty in this case, would be added to the sentence that you have already gotten, which would essentially mean that you would not survive to walk out of prison alive.
Now, as you might think, that is a tremendous burden for you. Now, we are not talking here about guilt or innocence or anything [like] that. We are past that. You are in a situation now where you have this opportunity that the State has offered you to have some life outside the prison system.
I want you to think about that. Consult with your lawyer and tell me what it is you want to do because you are' — your risk is much more than an ordinary person who comes in front of the Court.
Even if I think you are a nice fellow, I don’t have a choice. If the jury finds you guilty, I have to give you additional time, an enormous amount, an amount that if you get it you would not survive.
So, with those things in mind, please talk with your lawyer.
(Discussion off the record)
MR. MANGONE: Your Honor, Mr. Laferta is insisting on proceeding to trial.
THE COURT: All right. Mr. Lafer-ta, it does not matter to me what you do. I don’t have to serve the time or pay the fíne, but you realize what you are throwing away?
THE DEFENDANT: Yes, I do realize, Your Honor.
THE COURT: You want to spend the rest of your life in jail?
THE DEFENDANT: Yes, sir. T am going to go to trial. I am going on with the trial.
THE COURT: All right. Can you tell me, for my own edification, why you are insisting on this?
THE DEFENDANT: Tell him that I want to go with this. I want to finish this, and I want to know what the problem is.
THE COURT: Do you understand what you are looking at?
THE DEFENDANT: I understand everything perfectly well.
THE COURT: All right.

TR. 114-16 (emphasis added).

The case proceeded to trial and the defendant was convicted as charged. At sentencing, the guidelines scoresheet provided a minimum sentence of 13.36 years. Defense counsel advised the court that the co-defendants (who had entered plea bargains) had all received sentences of five years or less, followed by a term of probation.

The trial court imposed a sentence of life imprisonment as a habitual offender. This appeal follows.

We conclude that the sentencing order must be reversed under State v. Warner, 762 So.2d 507 (Fla.2000), which states in part:

To avoid the potential for coercion, a judge must neither state nor imply alternative sentencing possibilities which hinge upon future procedural choices, such as the exercise of a defendant’s right to trial. A record must be made of all plea discussions involving the court.

Id. at 514 (emphasis added); see also Nairn v. State, 837 So.2d 519 (Fla. 3d DCA 2003); McRoy v. State, 834 So.2d 275 (Fla. 5th DCA 2002); Prado v. State, 816 So.2d 1155 (Fla. 3d DCA 2002); Charles v. State, 816 So.2d 731 (Fla. 3d DCA 2002); Byrd v. State, 794 So.2d 671 (Fla. 5th DCA 2001), review granted, 817 So.2d 850 (Fla.2002).

The conclusion is inescapable that the court became an advocate for the State’s plea offer of twenty-four years concurrent time. Further, the message was quite clear that if the defendant insisted on going to trial, he would be confronted with lengthy consecutive time up to and including life imprisonment. The life sentence was ultimately imposed.

The State argues that additional facts emerged so as to justify the life sentence. See Warner, 762 So.2d at 514 (“A judge’s preliminary evaluation of the case is not binding, since additional facts may emerge prior to sentencing which properly inform the judge’s sentencing discretion.”).

However, the record does not support the State’s argument in this case. As indicated in the colloquy quoted above, the court was already aware of the defendant’s prior record, and the State has not pointed to any other material information which could have influenced the sentencing decision.

We reverse the sentencing order and remand the cause for imposition of the sentence the State offered in the plea bargain: twenty-four years concurrent with the sentence imposed for the revocation of probation. Nairn; McRoy, 834 So.2d at 277; Prado, 816 So.2d at 1157; Charles, 816 So.2d at 735; Byrd v. State, 794 So.2d at 673; McDonald v. State, 751 So.2d 56, 60 (Fla. 2d DCA 1999). The defendant need not be present.

In view of this ruling, the second point on appeal is moot.

Reversed and remanded for resentenc-ing.

      . Although immaterial here, the trial court later corrected that sentence to a term of 8.6 years.

      . The defense has requested the remedy of resentencing to the twenty-four year plea offer. The State has made no argument for any other remedy. This remedy is consistent with this court's procedure in the recent cases of Charles v. State, 816 So.2d at 735 and Prado v. State, 816 So.2d at 1157.
      The Second District has suggested that this court has not been entirely consistent with regard to the remedy where vindictive sentencing has been established. See McDonald v. State, 751 So.2d at 59-60. Since there is no dispute between the parties on the correct remedy in this case, we need not attempt to harmonize the other Third District cases.


author: SALCINES, Judge.

text:
    Terry E. SURRATT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3700.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
   SALCINES, Judge.

Terry E. Surratt appeals the summary denial of his motion to compel the Florida Department of Corrections to correct his first name on his commitment papers and records. We affirm. Surratt must pursue this claim administratively at the Department of Corrections first. If he is not satisfied with the ruling of the Department of Corrections, and his administrative remedies are exhausted, he can then file a petition for mandamus in the circuit court in the county in which he is housed. See Clements v. State, 761 So.2d 1245 (Fla. 2d DCA 2000).

Affirmed without prejudice.

FULMER and DAVIS, JJ., Concur.


author: COVINGTON, Judge.

text:
    Chad KRUEGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3184.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
   COVINGTON, Judge.

Chad L. Krueger appeals the summary denial of his 3.850 motion in which he alleged that two of his convictions violated the Double Jeopardy clause. The trial court previously entered an order vacating these convictions and sentences but never entered an amended judgment and sentence reflecting the correction. Counts two and four have been stricken. We now direct the trial court to enter an amended judgment and sentence. Accordingly, we affirm and remand for correction of the scrivener’s error. We affirm without comment all other claims.

NORTHCUTT and SALCINES, JJ., Concur.


author: CANADY, Judge.

text:
    STATE of Florida, Appellant, v. Dalia FERNANDEZ, Appellee.
    No. 2D02-1588.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellant.
    Karen S. Beavin of Sparkman & Quinn, Naples, for Appellee.
   CANADY, Judge.

The State charged Dalia Fernandez with a violation of section 827.071(5), Florida Statutes (2000), for possessing a photograph of her six-year-old grandson holding his unclothed, erect sexual organ. Concluding that the photograph “as a matter of law fails to meet the statutory requirement necessary to deem the photograph child pornography,” the trial court dismissed the charge, and the State now appeals. The standard of review is de novo, and the dismissal of the charge must be reversed unless the evidence and the inferences from it — when viewed most favorably to the State — do not establish a prima facie case. State v. Pasko, 815 So.2d 680 (Fla. 2d DCA 2002). Because a jury could properly conclude that the photo depicts sexual conduct as defined by the statute, we reverse.

Section 827.071(5) states in pertinent part that “[i]t is unlawful for any person to knowingly possess a photograph ... which, in whole or in part, he or she knows to include any sexual conduct by a child.” Section 827.071(l)(g) defines sexual conduct in pertinent part as “masturbation” and “actual lewd exhibition of the genitals.” In Pasko, this court reversed the dismissal of an information charging seventy-seven violations of section 827.071(5) based on posed photographs of nude girls. Although recognizing that “nudity alone does not constitute sexual conduct,” this court held that the photographs and inferences drawn from them provided the minimum proof to establish a prima facie violation of the statute. Pasko, 815 So.2d at 681. Likewise in this case, the photo is sufficient to show a prima facie violation of the statute. See Schmitt v. State, 590 So.2d 404, 410-11 (Fla.1991) (“[I]t is evident beyond all doubt that any type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents and whether or not that conduct originates from a parent.”). Accordingly, the trial court’s order of dismissal is reversed, and the ease is remanded for further proceedings.

Reversed and remanded.

FULMER and SALCINES, JJ., Concur.


author: SHAHOOD, J.

text:
    Quintan C. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3328.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, Michael J. Neimand, Assistant Attorney General, and Frank Kearns, Pro Bono Legal Intern, Nova Southeastern Law School, Fort Lauderdale, for appellee.
   SHAHOOD, J.

Appellant, Quinton C. Smith, appeals his conviction and sentence following his revocation of probation hearing. The trial court found by a preponderance of the evidence that appellant willfully and substantially violated the terms and conditions of his probation based on various counts charged. We affirm appellant’s conviction and sentence in all respects except count III, which we strike since it was based solely on hearsay evidence.

Count III of the amended affidavit of violation of probation charged that appellant violated his probation by knowingly associating with a person engaged in criminal activity. That count alleged that appellant was in a vehicle driven by Lizcha Ruff, who was on probation and was driving with a suspended license. Other than the probation officer’s hearsay testimony that appellant associated with Ruff, a convicted felon, there was no other evidence supporting such violation.

Hearsay evidence, while admissible in probation revocation proceedings, cannot constitute the sole basis for a finding of violation of probation. See Sagner v. State, 776 So.2d 1088 (Fla. 4th DCA 2001); see also Render v. State, 755 So.2d 653 (Fla. 4th DCA 1998).

Affirmed; remanded to trial court to strike count III as a basis for revoking appellant’s probation.

WARNER and TAYLOR, JJ., concur.


author: ALTENBERND, Chief Judge.

text:
    Jeffrey WARRICK, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3951.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.

      James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, Bartow, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Jeffrey Warrick appeals the revocation of his probation and the sentence imposed upon revocation. We affirm the judgment and sentence without prejudice to any right Warrick may have to file a timely and facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.800 or 3.850 concerning his jail credit.

Affirmed.

NORTHCUTT and SALCINES, JJ., Concur.


author: WARNER, J.

text:
    Louise BRANCH, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-4244.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.

      Charlie Crist, Attorney General, Tallahassee, and Marni A. Bryson, Assistant Attorney General, Fort Lauderdale, for appellee.
   WARNER, J.

We affirm the trial court’s order revoking appellant’s probation and sentence. The court’s order is supported by its finding that appellant violated her probation conditions by using marijuana.

Condition K(5), the condition appellant was alleged to have violated, requires appellant to “not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician.” Appellant tested positive for marijuana in her system. This is circumstantial evidence of the possession of drugs.

Appellant argues the outside testing lab report of drugs in her system was hearsay. We disagree. The lab report was admitted through the testimony of the custodian of the record, and appellant failed to preserve the specific objection that she now makes to this evidence. Regardless, the probation officer conducted an in-office “presumptive test” which showed the presence of marijuana in appellant’s system. Therefore, not only was the outside test report admissible, but it was not the only evidence of appellant’s drug use. See Monroe v. State, 679 So.2d 50, 52 n. 2 (Fla. 1st DCA 1996).

The trial court also determined appellant committed two other violations of probation, but the affidavit supporting those violations is not in the record. The state withdrew these violations at the first hearing, and the court erred in allowing the state to reinstate them at the second hearing. Therefore, the revocation on these grounds is in error. See Meadows v. State, 747 So.2d 1043, 1044 (Fla. 4th DCA 2000). However, these remaining violations were insubstantial and we conclude the court would have revoked appellant’s probation based solely upon her use of marijuana. We affirm the court’s order.

SHAHOOD and TAYLOR, JJ., concur.


author: POLEN, C.J.

text:
    Angel RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-4423.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Steven R. Parrish, Assistant Attorney General, Fort Lauderdale, for appellee.
   POLEN, C.J.

Angel Rivera’s conviction for robbery is affirmed. The State concedes, and we agree, that the trial court erred in designating Rivera as both an habitual felony offender and as a three-time violent felony offender. See Oberst v. State, 796 So.2d 1263 (Fla. 4th DCA 2001)(legislature did not intend dual designation under § 775.084); § 775.084(l)(a),(c), Fla. Stat. (2000). Accordingly, we reverse Rivera’s dual designation and remand for resen-tencing where the trial court may sentence Rivera as either an habitual felony offender or as a three-time violent felony offender. See Oberst, 796 So.2d at 1265; Works v. State, 814 So.2d 1198 (Fla. 2d DCA 2002).

REVERSED and REMANDED for re-sentencing.

STONE and TAYLOR, JJ., concur.


author: PER CURIAM.

text:
    A.C., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1073.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s restitution order. However, we modify that portion of the order that required appellant to begin paying restitution on March 15, 2002, at a time when appellant was committed to a level six program. We modify that portion of the restitution order to provide that appellant shall begin paying restitution at a rate of $30 per month upon securing employment and that he shall make every reasonable effort to secure employment upon release from the level six program. See In re B.S., 616 So.2d 1231 (Fla. 4th DCA 1993); Rimmer v. State, 601 So.2d 318 (Fla. 5th DCA 1992).

STONE, GROSS and MAY, JJ., concur.


text:
    Vincent FOGGY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1199.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.

      Carey Haughwout, Public Defender, and Tara Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

The defendant, Vincent Foggy, appeals the order of the circuit court revoking his probation. After a review of the record, we reverse the trial court’s findings that Foggy willfully violated his probation by failing to pay court costs and costs of supervision (conditions 11 and 2, respectively) and by failing to work diligently at a lawful occupation (condition 7). There was no evidence presented on these issues which would show a willful and substantial violation of the conditions of probation. We affirm the trial court’s findings that Foggy violated condition 3 (failing to make reasonable efforts to procure the consent of his probation officer prior to moving) and condition 18 (unauthorized contact with a child under the age of eighteen).

We reverse and remand for the trial court to consider whether probation revocation is still warranted in view of this decision. See Meadows v. State, 747 So.2d 1043, 1045 (Fla. 4th DCA 2000)(remanding case to trial court for reconsideration where one of two probation violations had been reversed, and it was not apparent that the trial court would have revoked probation based on the remaining violation)(citing Antoine v. State, 684 So.2d 266, 267 (Fla. 4th DCA 1996)).

REVERSED and REMANDED.

FARMER, STEVENSON and HAZOURI, JJ., concur.


text:
    Pearline LOVEMORE, as Personal Representative of the Estate of Roy Lovemore, Petitioner, v. ST. LUCIE COUNTY WELFARE ASSOCIATION, INC., as licensee of Abbiejean Russell Care Center, Lawnwood Medical Center, Inc., d/b/a Lawnwood Regional Medical Center, and HCA-The Healthcare Company, Respondents.
    No. 4D02-4440.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.

      Philip D. Parrish of Philip D. Parrish, P.A., Miami, and Petosa & Fernandez, P.L., Boca Raton, for petitioner.
    Michele I. Nelson of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., West Palm Beach, for respondent Abbieje-an Russell Care Center.
   PER CURIAM.

The petition for writ of certiorari is denied; the trial court did not depart from the essential requirements of law in compelling better answers to one defendant’s second set of supplemental interrogatories because the order on review complied with this court’s opinion in Gardner v. Manor Care of Boca Raton, Inc., 831 So.2d 676 (Fla. 4th DCA 2002).

We certify conflict with Herbert W. Acken, M.D., P.A. v. Northup, 827 So.2d 1070 (Fla. 2d DCA 2002).

STEVENSON, SHAHOOD and HAZOURI, JJ., concur.

      . As was also the case in Gardner, the interrogatories asked Petitioner, the plaintiff in the pending action for nursing home neglect and abuse, whether any Agency for Health Care Administration (AHCA) surveys were relevant to the issues and if so to list which one is relevant and the manner in which Petitioner contends it has relevance.


text:
    A.A., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4096.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Frank A. Kreidler, Lake Worth, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the order under review. We find no due process violation. Section 985.231(l)(d), Florida Statutes (2001) does not preclude appellant or his parents from receiving copies of documents reflecting his “treatment plan progress and adjustment-related issues.” The trial court’s order required that such documents be furnished to appellant’s parents and lawyer.

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    CENTURY AMERICAN CASUALTY COMPANY, a foreign profit corporation, Appellant, v. FLORIDA TROPICAL, INC., a Florida corporation, Appellee.
    No. 4D02-1795.
    District Court of Appeal of Florida, Fourth District.
    Feb. 12, 2003.
    Melissa D. Munroe of Sears & Munroe, Orlando, for appellant.

      Timothy D. Kenney of Timothy H. Ken-ney, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellee, Florida Tropical, Inc., filed suit against appellant, Century American Casualty Company, as the surety who issued the Florida Motor Vehicle Dealer bond for Fairway Auto Group, Inc. The trial court granted appellee’s motion for summary judgment ordering appellant to pay appellee’s damages. Appellant filed this appeal arguing that there are genuine issues of material fact remaining which preclude summary judgment. We agree.

Appellee’s complaint alleges that New Fairway Auto Group, Inc., purchased two vehicles from appellee and paid for them with checks which were returned for insufficient funds. Appellee sued appellant, the surety that issued the Florida Motor Vehicle Dealer bond for Fairway Auto Group, Inc. It is further alleged that H. Lee Folk, the sole stockholder of Fairway, sold the company to others who incorporated under the name of New Fairway Auto Group, Inc. New Fairway is alleged to have operated under Fairway’s license and its surety bond at the time it purchased the vehicles from appellee with the bad cheeks.

We find that there remain genuine issues of material fact as to whether there is an agency relationship between Fairway and New Fairway and whether Fairway permitted New Fairway to operate under Fairway’s license. See Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    Ariel BUENO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2953.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Ariel Bueno, in proper person.
    Charlie Crist, Attorney General and Mark Rosenblatt, Assistant Attorney General, for appellee.
    Before GODERICH and GREEN, JJ. and NESBITT, Senior Judge.
   PER CURIAM.

We affirm the order denying the appellant’s motion for post-conviction relief where the record conclusively refutes the appellant’s arguments and/or such arguments were waived by virtue of his plea agreement. The state properly concedes, however, that the appellant is entitled to an additional 16 days of jail credits. Accordingly, we affirm the order, but remand for the imposition of 16 additional days of jail credit for the appellant.


author: WEBSTER, J.

text:
    EIGHT HUNDRED, INC., Petitioner, v. FLORIDA DEPARTMENT OF REVENUE, Respondent.
    No. 1D02-3144.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2003.

      Thomas F. Egan of Thomas F. Egan, P.A., Orlando, for Petitioner.
    Charlie Crist, Attorney General; John Mika, Assistant Attorney General, Tallahassee, for Respondent.
   WEBSTER, J.

Petitioner seeks review of an order entered by an administrative law judge directing a certified public accountant previously retained by it to appear at a deposition and bring with him documents identified in a subpoena duces te-cum. The effect of that order was to reject an accountant-client privilege asserted by petitioner on the ground that petitioner had waived that privilege. We conclude that the order constitutes a departure from the essential requirements of law, and that it will cause material injury to petitioner for which the remedy of appeal following the conclusion of the administrative proceedings will be inadequate. Accordingly, we grant the petition and quash the order.

We have jurisdiction. See § 120.68(1), Fla. Stat. (2001) (“A preliminary, procedural, or intermediate order of the agency or of an administrative law judge of the Division of Administrative Hearings is immediately reviewable if review of the final agency decision would not provide an adequate remedy”); art. V, § 4(b)(2), Fla. Const. (“District courts of appeal shall have the power of direct review of administrative action, as prescribed by general law”). Our jurisdiction is invoked by filing “[a] petition to review non-final agency action under the Administrative Procedure Act,” as specified in Florida Rule of Appellate Procedure 9.100(c)(3). We have previously said that our scope of review in such a matter “is analogous to and no broader than the right of review by common law writ of certiora-ri.” Charlotte County v. Gen. Dev. Utils., Inc., 653 So.2d 1081, 1084 (Fla. 1st DCA 1995). To be entitled to relief from a non-final order pursuant to a petition seeking a common law writ of certiorari, “the petitioner must demonstrate that the trial court departed from the essential requirements of the law, thereby causing irreparable injury which cannot be adequately remedied on appeal following final judgment.” Belair v. Drew, 770 So.2d 1164, 1166 (Fla.2000). “An order compelling discovery over a claim that the evidence is privileged is generally reviewable under section 120.68(1), because the harm cannot be remedied on review of the final order.” State Dep’t of Transp. v. OHM Remediation Serus. Corp., 772 So.2d 572, 573 (Fla. 1st DCA 2000).

In response to the assertion that certain testimony and documents requested were protected by the accountant-client privilege, respondent filed a speaking motion seeking a determination that the privilege had been waived. Copies of documents were attached as exhibits to the motion. A telephonic hearing was held on respondent’s motion. During that hearing, respondent’s counsel made several representations regarding the facts pertinent to a determination of whether petitioner had waived its accountant-client privilege. However, no evidence was offered. Petitioner’s counsel repeatedly disputed the accuracy of the factual representations, and objected on several occasions that no evidence was being presented by respondent, and that respondent’s representations regarding the facts were not evidence. He also stated that the proper approach, procedurally, would be to hold an evidentiary hearing, at which respondent might present any evidence it had to establish that the privilege had been waived, and his client might produce evidence in opposition. The administrative law judge disregarded those objections, and ruled, based upon the documents attached as exhibits to the motion and the representations of respondent’s counsel, that the privilege had been waived. This was error.

Respondent conceded that the testimony and documents it sought would be protected by the accountant-client privilege had petitioner not waived that privilege. “When communications appear on their face to be privileged, the party seeking disclosure bears the burden of proving that they are not.” Shell Oil Co. v. Par Four P’ship, 638 So.2d 1050, 1050 (Fla. 5th DCA 1994). We have previously said that, “tflust as the proponent of the privilege has the burden of proof as to facts which give rise to the privilege, the party seeking to abrogate the privilege has the burden to prove facts which would make an exception to the privilege applicable” by “a preponderance of the evidence.” First Union Nat’l Bank v. Turney, 824 So.2d 172, 183 n. 9, 184 (Fla. 1st DCA 2001), review denied, 828 So.2d 385 (Fla.2002). Representations by an attorney for one of the parties regarding the facts, and documents attached as exhibits to a motion, do not constitute evidence. To permit a determination of whether petitioner had waived its accountant-client privilege to be made in such a manner notwithstanding petitioner’s repeated objections would amount to a deprivation of procedural due process of law. See Horning-Keating v. State, 777 So.2d 438, 446 (Fla. 5th DCA 2001) (opinion of Pleus, J.) (compelling testimony notwithstanding the assertion of an attorney-client privilege, based upon unsworn statements, would constitute a denial of due process of law; a full evidentiary hearing is required).

Because the administrative law judge ruled that the accountant-client privilege had been waived without holding an evi-dentiary hearing, and without receiving any evidence to support respondent’s claim, we conclude that the order constitutes a departure from the essential requirements of law. We conclude, further, that, unless set aside, the order will cause irreparable injury which cannot be remedied on appeal following entry of the final order. See, e.g., Strasser v. Yalamanchi, 669 So.2d 1142, 1145 (Fla. 4th DCA 1996) (an irreparable injury occurs when confidential information is ordered disclosed because, once disclosed, the information cannot be “taken back”). Accordingly, we grant the petition and quash the order.

DAVIS and VAN NORTWICK, JJ., concur.


text:
    Jasmine SCOTT, by and through her parents and natural guardians, Daryl SCOTT and Temple Scott, and Daryl Scott and Temple Scott, individually, Appellant, v. WOMEN’S MEDICAL GROUP, P.A., a Florida Corporation, and Joan M. Macksey, M.D., Appellee.
    No. 1D02-4513.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2003.
    Rodney S. Margol and C. Rufus Pennington, Jacksonville, for Appellant.
    Ralph O. Anderson, and Mark Hicks, Miami, and Kelly B. Mathis, Jacksonville, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated December 3, 2002, we dismiss this appeal for lack of jurisdiction. The order on appeal, Order Denying Without Prejudice Plaintiffs’ Motion for Attorney’s Fees, dated October 10, 2002, is neither a final order nor a nonfinal order appealable pursuant to Florida Rules of Appellate Procedure, 9.130(a)(4) (2002).

Final attorney’s fees orders are appealable as separate final judgments. See Saye v. Pieschacon, 750 So.2d 759, 761 (Fla. 1st DCA 2000); BDO Seidman, L.L.P. v. British Car Auctions, Inc., 789 So.2d 1019, 1019-20 (Fla. 4th DCA 2001). However, the order being appealed is not a final attorney’s fee order, because it denies the appellants’ motion without prejudice to revisit the issue in the same suit when the Supreme Court resolves the conflict. See Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991). Additionally, an order that purports to become final at a later date is not final. See, e.g. United Water Florida, Inc. v. Florida Public Service Commission, 728 So.2d 1250 (Fla. 1st DCA 1999); Ponton v. Gross, 576 So.2d 910 (Fla. 1st DCA 1991).

The instant order is not an appealable nonfinal order under rule 9.130(a)(4), because it contemplates a future final order, either granting or denying the appellants’ motion with finality, at which point the appellants will have the right to appeal that final order. See Craven v. Skate N Space, Inc., 691 So.2d 25 (Fla. 1st DCA 1997); Maryland Casualty Co. v. Century Construction Corp., 656 So.2d 611 (Fla. 1st DCA 1995).

DISMISSED.

BARFIELD, POLSTON, and HAWKES, JJ., concur.


author: POLSTON, J.

text:
    Betty R. MASON, Appellant, v. HOME SHOPPING NETWORK and RSKCo., Appellees.
    No. 1D02-0301.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2003.
    Ivan Matusek, Esquire of Matusek, McKnight, Poluse & Cangro, P.A., St. Pe-tersburg, for Appellant.
    William J. Cook, Esquire and Ryan Christopher Rodems, Esquire of Barker, Rodems & Cook, P.A., Tampa, for Appel-lees.
   POLSTON, J.

Appellant Betty Mason (“claimant”) injured her back and shoulder on August 26, 1997. Thereafter, she reached maximum medical improvement (“MMI”) for her back injury on December 20, 2000 and she reached MMI for her shoulder injury on January .3, 2001. On March 13, 2001, claimant injured her ankle. The parties stipulate that the ankle injury arises from the August 26, 1997 industrial accident. There is no indication in the record that claimant has reached overall MMI. Claimant seeks temporary total and temporary partial disability benefits beginning March 13, 2001, which was denied by the Judge of Compensation Claims (“JCC”).

Because there is no indication that claimant has reached overall MMI, the JCC erred in denying the claim on the basis that the ankle injury did not cause wage loss. See Rojas v. United Sheet Metal, 832 So.2d 174 (Fla. 1st DCA 2002)(reversing the JCC’s denial of temporary partial benefits because the claimant was not at overall MMI, even though the claimant was at physical MMI and had no work restrictions from the subsequent psychiatric injuries); Korody v. Quality Steel and Claims Center, 694 So.2d 40 (Fla. 1st DCA 1997).

The JCC did not determine whether there is a causal connection between a work-related injury and a resulting wage loss for her claim, see Vencor Hospital v. Ahles, 727 So.2d 968 (Fla. 1st DCA 1998), therefore we do not reach that issue. Rojas, 832 So.2d at 175.

REVERSED and REMANDED.

DAVIS and BENTON, JJ., concur.


author: ORFINGER, J.

text:
    SHEOAH HIGHLANDS, INC., et al., Appellants/Cross-Appellees, v. Vernon DAUGHERTY, et al., Appellees/Cross-Appellants.
    Nos. 5D01-3181, 5D02-277.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.

      Charles Tyler Cone of Fowler White Boggs Banker, P.A., Tampa, for Appellant/Cross-Appellees.
    William H. Morrison of Baldwin & Morrison, P.A., Fern Park, for Appel-lee/Cross-Appellants.
   ORFINGER, J.

Vernon Daugherty, the owner of a unit at the Sheoah Highlands condominium, brought suit against Sheoah Highlands, Inc., the condominium’s governing association (Association), and its board of directors, alleging that the Association failed to enforce the declaration of condominium. Specifically, Daugherty alleged that the Association allowed certain unit owners to erect screened enclosures on the condominium’s common property contrary to the provisions of the declaration. Following a bench trial on stipulated facts, the court ordered the Association to remove two of the five encroaching enclosures and to pay Daugherty’s attorney’s fees. The Association appeals, arguing that (a) Daugherty’s claims were barred by the statute of limitations; (b) the judgment was erroneous because it affects parties not before the court; (c) Daugherty’s complaint failed to state a cause of action; and (d) Daugherty’s claim for attorney’s fees was not adequately pled. On cross-appeal, Daugherty contends the trial court erred in finding that his derivative cause of action failed and in not ordering the Association to seek the removal of all five of the encroaching enclosures. We affirm in part and reverse in part.

FACTS

Daugherty purchased unit 40-30 in the Sheoah Highlands Condominium in 1981. At the time he purchased his unit, three owners had erected screened enclosures on the condominium’s common property adjacent to their units. A fourth enclosure was built adjacent to unit 40-25 in 1996, and a fifth adjacent to unit 40-29 in 1998. The Association’s board approved the construction of all five enclosures.

Daugherty’s concern about the enclosures dated back to at least 1991 when he wrote to the Association’s president, asking that no enclosure be constructed adjacent to the unit below him. In reply, the president of the Association advised Daugherty that Lee Rhydderch, the owner of the unit below Daugherty’s, “has no plans now or in the future to add to her porch.” Apparently, Rhydderch’s plans changed because in 1998, she constructed a screened enclosure on the common area below Daugherty’s unit. After Rhydderch built her enclosure, Daugherty, through counsel, again wrote to the Association asking the Association to “take immediate action to remove these improper buildings.” Daugherty contended that the use of common property by one unit owner, to the exclusion of all others, violated the declaration of condominium. After the board failed to respond to a second demand, Daugherty filed suit seeking “a temporary and permanent injunction mandating that the [Association] take steps to remove the extensions or erections installed on ‘common areas.’ ” The Association answered and asserted various defenses, including the statute of limitations.

After a bench trial, the trial court entered judgment in favor of Daugherty, finding that the enclosures constructed in 1996 and 1998 constituted an improper use of the condominium’s common elements, while concluding that Daugherty’s claim failed as to the other enclosures based on the statute of limitations. The trial court found that the enclosures constructed adjacent to units 40-25 and 40-29 “were built in areas of common elements and under the terms of the declaration of condominium, the Association is responsible for the maintenance and operation of common elements,” and that the “original terms of the declaration of condominium expressly state that no alteration or addition can be made to the common elements.” Based on these findings, the trial court found that “the enclosures built adjacent to units 40-25 and 40-29 violate the terms of the declaration of condominium and must be removed by the Association under its duty to maintain the common elements.” In addition to ordering the Association to remove two of the enclosures, the court also awarded Daugherty’s attorney’s fees.

THE STATUTE OF LIMITATIONS

Section 95.11, Florida Statutes (1998), provides, in relevant part:

Actions other than for recovery of real property shall be commenced as follows:
(2) Within five years.—
(b) A legal or equitable action on a contract....
(5) Within one year.—
(a) An action for specific performance of a contract.

Relying on Ferola v. Blue Reef Holding Corp., Inc., 719 So.2d 389 (Fla. 4th DCA 1998), the Association argues that Daugherty’s claim for injunctive relief was substantively a claim for specific performance of the declaration of condominium, and, as a result, the action was barred by the one-year statute of limitations period for specific performance. See § 95.11(5)(a), Fla. Stat. (1999). On cross-appeal, Daugherty argues that no statute of limitations bar's the enforcement of a violation of the declaration of condominium.

In Ferola, the plaintiffs, owners of a lot in a development, filed suit against the developer, alleging that the developer violated the declaration of covenants and restrictions by constructing townhouses on a designated recreation area, failing to provide amenities for the recreation area, and failing to maintain common areas. The fourth district court, in holding that the Ferolas’ claim was barred by the statute of limitations, concluded that their claim for injunctive relief was, in substance, a claim for specific performance of a contract, and, therefore, the one-year limitation period applied. That conclusion was reached because “[a]n injunction against the breach of a contract is a negative decree of specific performance of the agreement....” Seaboard Oil Co. v. Donovan, 99 Fla. 1296, 128 So. 821, 825 (1930). See Fla. Jai Alai, Inc. v. S. Catering Servs., Inc., 388 So.2d 1076, 1078 (Fla. 5th DCA 1980). Put another way, an injunction against the breach of a contract is a remedy by way of negative specific performance. See 48 Fla. Jur.2d Specific Performance § 3 (2000).

Daugherty argues that it can equally be said that enforcement of the rights and duties set forth in the declaration of condominium is “a legal or equitable action on a contract” within the scope of section 95.11(2)(b). “For purposes of a statute of limitations, an action derives from a contract ... when a contract contains an undertaking to do the thing for the nonperformance for which the action is brought....” 54 C.J.S. Limitations of Actions § 48 (1987). “[I]f a contract is the source of substantive rights or duties, the contract statute of limitations applies.... ” Id.

We believe that reasonable arguments can be made supporting the application of either statute of limitations. “The nature of the cause of action or of the rights sued upon is the test by which to determine which statute of limitation applies ....” 51 Am. Jur.2d Limitation of Actions § 90 (2000). “Where a statute of limitations shortens the existing period of time the statute is generally construed strictly, and where there is reasonable doubt as to legislative intent, the preference is to allow the longer period of time.” Baskerville-Donovan Eng’rs, Inc. v. Pensacola Executive House Condo. Ass’n, Inc., 581 So.2d 1301, 1303 (Fla.1991). If there is doubt as to the applicability of a statute of limitations, the question is generally resolved in favor of the claimant. J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla.1994); 51 Am.Jur.2d Limitation of Actions § 92 (2000) (“As a matter of policy, if there is a substantial question or reasonable dispute as to which two or more statutes of limitation ... should be applied, the doubt should be resolved in favor of the application of the statute containing the longest limitation period.”)

Applying the foregoing analysis to the matter before us, we conclude that because there is a reasonable question as to which statute of limitations should apply to Daugherty’s claim, we resolve the doubt in favor of the application of the statute containing the longer limitation period. See J.B. We conclude that the trial judge was correct in allowing Daugherty’s action to proceed as to the enclosures constructed in 1996 and thereafter, while barring his action regarding the other enclosures.

INDISPENSABLE PARTIES

The Association next argues that the trial court erred by entering an injunction, requiring the Association to remove the enclosures built by two unit-owners who were not parties to the litigation. The Association’s argument is premised on the notion that the circuit court lacks jurisdiction to enter a judgment that affects persons not parties to the action. Daugherty contends that his action did not seek relief against individual unit owners; rather, it was an action against the Association demanding that the Association take action against the unit owners.

While Daugherty accurately characterizes the relief sought in his amended complaint, the trial court’s judgment required the Association to “remove the enclosures ... from the common areas and restore the common elements to the their original condition prior to the commencement of construction on the enclosures.” The court did not order the Association to bring an action against the offending unit owners seeking the removal of the enclosures; it simply ordered the removal of their enclosures.

A court is without jurisdiction to issue an injunction which would interfere with the rights of those who are not parties to the action. An injunction can lie only when its scope is limited in effect to the rights of parties before the court. Street v. Sugerman, 177 So.2d 526 (Fla. 3d DCA 1965); Fontainebleau Hotel Corp. v. City of Miami Beach, 172 So.2d 255 (Fla. 3d DCA 1965). “The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of a suit, must be made parties either as complainants or defendants so that a complete decree may be made binding upon all parties.” Oakland Props. Corp. v. Hogan, 96 Fla. 40, 117 So. 846, 848 (1928) (emphasis added). See Robinson v. Howe, 35 Fla. 73, 17 So. 368, 370 (1895); Brady v. Myers, 413 So.2d 466, 467 (Fla. 4th DCA 1982).

Here, Daugherty sued the Association and the members of the board of the Association in their representative capacities. He did not sue the members of the board in their individual capacities or those who own the enclosures; yet, the relief awarded by the trial court requires the Association to remove the enclosures at units 40-25 and 40-29, the property of persons not parties to the suit. Although the injunctive relief awarded in the trial court’s amended final judgment is directed only to the Association, it cannot be said that the removal of the enclosures by Association would not affect and interfere with the rights of the owners of these units. Because the injunction affects the rights of persons not before the court, it was error for the trial court to order the removal of the enclosures in the amended final judgment. On remand, the trial court should direct the Association to enforce the provisions of the declaration of condominium and to take all appropriate action to remove the enclosures adjacent to units 40-25 and 40-29, as Daugherty requested in his amended complaint.

ATTORNEY’S FEES

Daugherty’s amended complaint alleged that he “has been required to retain the services of [an attorney] in the prosecution of this matter and is indebted to [the attorney] for the same.” The Association contends that the trial court erred in awarding Daugherty attorney’s fees because the complaint failed to plead any contractual or statutory basis for an award of fees. Daugherty argues that the award of attorney’s fees was properly pled pursuant to the declaration of condominium, which allows the prevailing party to recover such fees in the event of an enforcement action.

“[A] claim for attorney’s fees, whether based on statute or contract, must be pled.” Stockman v. Downs, 573 So.2d 835, 837 (Fla.1991). “Stockman is to be read to hold that the failure to set forth a claim for attorney fees in a complaint, answer, or counterclaim, if filed, constitutes a waiver.” Green v. Sun Harbor Homeowners’ Ass’n, Inc., 730 So.2d 1261, 1263 (Fla.1998). See Starkey v. Linn, 723 So.2d 333, 336 (Fla. 5th DCA 1998). While this court has held that a party seeking an award of fees must specifically plead the correct entitlement, the supreme court recently held that a general request for attorney’s fees is sufficient, and that the failure to plead the specific statutory or contractual basis for such a claim does not result in waiver of the claim. Canfield v. Cantele, 837 So.2d 371, 373, (2002). Daugherty made a general request for attorney’s fees in his complaint. That was sufficient. Id. The trial court was therefore correct in awarding Daugherty’s attorney’s fees.

CONCLUSION

We find no merit in the remaining issues raised on appeal or on cross-appeal. We affirm the judgment insofar as it concludes that Daugherty’s action was not barred by the statute of limitations with respect to the enclosures built adjacent to units 40-25 and 40-29, that such enclosures violate the declaration of condominium, and were improperly approved by the board of directors. We conclude that the trial court correctly awarded attorney’s fees based on the pleading requirement of Stockman, as clarified by Caufield. We also conclude that the trial court lacked jurisdiction to direct the Association to remove the enclosures because substantial interests of non-parties would be affected.

Accordingly, we affirm the final judgment in part, reverse in part, and remand for further proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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

      . The three enclosures built prior to 1981 were adjacent to units 50-33, 50-35, and 70-41. The record is somewhat confused about whether the fourth enclosure built in 1996 was adjacent to unit 40-25 or unit 40-27, but for purposes of this appeal, we assume that it was built adjacent to unit 40-25, as set forth in Sheoah’s initial brief.

      . In Woodside Village Condominium Association, Inc. v. Jahren, 806 So.2d 452, 455-56 (Fla.2002), the supreme court citing Pepe v. Whispering Sands Condominium Association, Inc., 351 So.2d 755, 757-58 (Fla. 2d DCA 1977), explained:
      A declaration of a condominium is more than a mere contract spelling out mutual rights and obligations of the parties thereto-it assumes some of the attributes of a covenant running with the land, circumscribing the extent and limits of the enjoyment and use of real property. Stated otherwise, it spells out the true extent of the purchased, and thus granted, use interest therein. Absent consent, or an amendment of the declaration of condominium as may be provided for in such declaration, or as may be provided by statute in the absence of such a provision, this enjoyment and use cannot be impaired or diminished.
      (Footnotes omitted).

      . See, e.g., Stomar, Inc. v. Lucky Seven Riverboat Co., L.L.C., 821 So.2d 1183, 1187 (Fla. 4th DCA 2002) (finding that because the individual defendants were acting in their representative capacity on behalf of the limited liability company in executing the brokerage agreement, the circuit court did not have personal jurisdiction over them).


text:
    Michael Terrance DYKE, Appellant, v. Ann Doreen DYKE, et al., Appellee.
    No. 5D01-2183.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.

      Michael B. Swindle, Winter Park, for Appellant.
    Linda Logan Bryan of Miller, Shine & Bryan, P.L., St. Augustine, for Appellee.
   ORFINGER, J.

The former husband, Michael Terrance Dyke, appeals the trial court’s order denying his motion to set aside a final judgment of dissolution of marriage filed pursuant to Florida Family Law Rule of Procedure 12.540. We affirm.

Dyke and his former wife, Ann Doreen Dyke, began dissolution proceedings in 1995 when the former wife filed a petition for dissolution of marriage. Although hospitalized in a psychiatric facility at the time he was served with the dissolution papers, the former husband retained counsel and filed an answer and counterclaim for dissolution, alimony, equitable distribution, and a partition of the parties’ real and personal property. At the time of the final hearing in March, 1997, the former husband was again hospitalized in a psychiatric facility in England. As a result, he did not attend the final hearing and was not represented because his counsel had previously withdrawn. A final judgment of dissolution was entered in April, 1997, awarding to the former wife what the former husband now contends was substantially all of the parties’ property.

More than three years after the final judgment was entered, the former husband filed a motion to set the judgment aside, alleging fraud. He further alleged that the former wife’s failure to file the financial affidavit required by Florida Family Law Rule of Procedure 12.285(d)(1), rendered the final judgment void. The trial court dismissed as untimely the former husband’s allegations of fraud and concluded that the failure of a party to file a financial affidavit in a dissolution proceeding did not deprive the court of jurisdiction to consider the dissolution petition, thereby rendering the judgment void. We agree.

Rule 12.540 provides that Florida Rule of Civil Procedure 1.540 governs proceedings seeking relief from judgments, decrees, or orders in family law proceedings. Rule 1.540(b) provides:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (S) not more than 1 year after the judgment, decree, order, or 'proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

(emphasis added). However, unlike rule 1.540, rule 12.540 provides that there is no time limit on actions seeking to set áside a judgment in a family case when the basis is alleged to be a fraudulent financial affidavit.

The former wife argues that the former husband’s motion to set aside is untimely based on the one-year limitation period set forth in rule 1.540. The former husband argues that because rule 1.540 “does not limit the power of a court to entertain an independent action or to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud on the court,” there is no limitation on when an action, such as his, can be filed.

We believe that any action seeking relief from a final judgment based on fraud, if older than one year, must be brought as an independent action. As the court observed in Gordon v. Gordon, 625 So.2d 59, 63-64 (Fla. 4th DCA 1993):

There is language in the supreme court’s opinion [DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984)] that admittedly might lead one to believe that a motion under the rule [(1.540)], rather than an independent action, alleging extrinsic fraud on the court might properly be filed more than one year after the entry of judgment. We do not think that is what the court meant in DeClaire, however. Properly understood, we think the court has construed the rule to require that all frauds on the court older than one year must be brought as an independent action, and not by motion in the original action.

Accord Mocegui v. Public Serv. Mut. Ins. Co., 821 So.2d 1189 (Fla. 3d DCA 2002) (trial court lacked jurisdiction to set aside a judgment under Rule 1.540(b) more than one year after the judgment was entered). We agree with Gordon and Mocegui. We believe the supreme court made clear in DeClaire v. Yohanan, 453 So.2d 375, 378 (Fla.1984), that relief from judgment based on “any type of fraud” must be sought within one year after entry of the judgment under Rule 1.540(b). We hold, as did the court in Gordon, that all frauds on the court older than one year must be brought as an independent action and not by motion in the original action. Because the former husband has filed such an independent action, he has an available forum to consider his allegations of fraud.

Finally, the former husband argues that the former wife’s failure to file the financial affidavit required by Florida Family Rule of Procedure 12.285(d)(1) renders the judgment void. That argument is premised on the notion that the failure to file a financial affidavit is akin to filing a fraudulent affidavit. Accepting that view would “negatively impact the finality of judgments.... [Sjuch an expansion ... is contrary to the public policy favoring the termination of litigation after trial and appeal of the court’s judgment.” Cerniglia v. Cerniglia, 679 So.2d 1160, 1164 (Fla.1996). While it may have been error for the court to proceed without a financial affidavit from the former wife, we conclude that the lack of such an affidavit does not deprive the trial court of jurisdiction and that any error was waived by the failure of the husband to object at the time of the final hearing. See Vaccaro v. Vaccaro, 677 So.2d 918 (Fla. 5th DCA 1996). Accordingly, we affirm the trial court’s order without prejudice to the former husband’s independent action seeking relief from the judgment.

AFFIRMED.

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

      .Rule 12.540 states:
      Florida Rule of Civil Procedure 1.540 shall govern general provisions concerning relief from judgment, decrees, or orders, except that there shall be no time limit for motions based on fraudulent financial affidavits in marital or paternity cases.

      . An exception to the one-year limit would be an action based on a fraudulent financial affidavit. Fla. Fam. L.R.P. 12.540.

      . See Anderson v. Anderson, No. 00-59, - So.2d -, 2003 WL 60544 (Fla. Jan. 9, 2003) (recognizing the one year window provided by rule 1.540 for filing motions for relief from judgment based on allegations of fraud).

      . The original dissolution proceedings were handled by a predecessor judge.


text:
    Joseph STAFFORD and Kathleen Stafford, Appellants, v. WAYNE FRIER MANUFACTURED HOME, etc., et al., Appellees.
    No. 5D02-1569.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.
    Kevin K. Dixon of Brannen, Stillwell & Perrin, P.A., Inverness, for Appellants.
    Frank C. Amatea, Ocala, for Appellees.
   PER CURIAM.

This is an appeal of a non-final order granting the motion of Wayne Frier Manufactured Home Center of Homosassa Springs, Inc. and Wayne Frier Mobile Home Sales, Inc. to submit an amended complaint of Joseph and Kathleen Stafford to arbitration. Millicent and Albert K. Morrell, Sr. are co-plaintiffs with the Staffords in Morrell v. Wayne Frier Manufactured Home Center, 834 So.2d 395 (Fla. 5th DCA 2003) in which the facts of this case are described.

The decision in Morrell is dispositive of the issue in this case. We vacate the May 7, 2002 order submitting the amended complaint to arbitration and remand to the circuit court for further proceedings.

REVERSED and REMANDED; ORDER VACATED PETERSON, PLEUS and PALMER, JJ., concur.


author: SHARP, W., J.

text:
    Brian Keith SCHIRMER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-184.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.

      James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Schirmer appeals from his judgments and sentences for aggravated battery with a deadly weapon or causing great bodily harm, and attempted second degree murder with a weapon. He argues the dual convictions for these two crimes violate the double jeopardy provisions of state and federal constitutions. We affirm.

The evidence in this case established that Schirmer and the victim became angry and engaged in a shoving match in the victim’s kitchen. The victim ordered Schirmer, a guest in the victim’s house, to leave the property. The victim left the kitchen for a short time. When he returned, Schirmer stabbed him in the lower abdomen. Thus the two criminal charges relate to the same act — stabbing the victim with a knife, one time.

In Gresham v. State, 725 So.2d 419 (Fla. 4th DCA 1999), under nearly identical facts (except in that case there were multiple stabs with a knife), the court held that pursuant to section 775.0231(4)(a), two convictions for the same act could not stand because the aggravated battery count was a category 2 lesser included offense of attempted second degree murder. Fla. Std.. Jury Instr. (Crim.) 372. However, the exception in section 775.021(4)(b)3 for lesser included offenses applies only to category one or necessarily lesser included offenses and not to category two or permissive lesser included offenses. Gordon v. State, 780 So.2d 17 (Fla.2001); Aiken v. State, 742 So.2d 811 (Fla. 2d DCA 1999). In this case, there is no category one or necessarily lesser included offense involved.

Further, we are bound by our decision in McKowen v. State, 792 So.2d 1251 (Fla. 5th DCA 2001) in which we held that convictions for battery on a law enforcement officer and attempted second degree murder, based on the defendant’s attack on the officer with a knife, did not violate double jeopardy principles. We found that the two crimes had different required elements and determined one did not “subsume” the other.

The same analysis controls in this case. The elements for aggravated battery are: 1) the defendant committed a battery against a victim, and 2) in committing the battery, the defendant intentionally or knowingly caused great bodily harm, permanent disability or permanent disfigurement to the victim or used a deadly weapon. Although murder entails bodily injury, that is not a necessary component of attempted murder. Brown v. State, 761 So.2d 1135 (Fla. 1st DCA 2000), approved, 781 So.2d 1083 (Fla.2001). And, attempted second degree murder requires proof of an act which could have resulted in death — an element not required for aggravated battery.

AFFIRMED.

ORFINGER, J., and COBB, W.H., Senior Judge, concur.

      . § 784.045(l)(a)l. and 2., Fla. Stat.

      . § 782.04(2); § 777.04;. § 775.087, Fla. Stat.

      .U.S. Const. Amend V; Fla. Const., art 1 § 9.

      . See Fla. Std. Jury Instr. (Crim) 122; § 784.045(l)(a)l and 2, Fla. Stat.


text:
    Donald V. ARCHAMBAULT, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3297.
    District Court of Appeal of Florida, Fifth District.
    Feb. 14, 2003.
    Donald V. Archambault, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The defendant contends in his Rule 3.800(a) appeal that he was improperly denied jail time credit. The state concedes a mathematical error appears to have been made by the trial court. Accordingly, we reverse and remand this case to the lower court for correction of jail time credit.

REVERSED AND REMANDED.

GRIFFIN, J. and COBB, W. and HARRIS, C., Senior Judges, concur.


author: WHATLEY, Judge.

text:
    Leroy McDUFFY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2580.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2003.
   WHATLEY, Judge.

Leroy McDuffy appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion McDuffy raised seven claims of ineffective assistance of counsel. We affirm the trial court’s summary denial of claims four, five, six, and seven. We reverse for further proceedings on claims one through three.

In 1997, a jury convicted McDuffy of aggravated battery. The victim in the case was a woman with whom McDuffy lived. McDuffy’s first three claims in his rule 3.850 motion were related. However, the claims asserted that his trial counsel was ineffective for failing to file a motion to suppress because the police made a warrantless entry into the home without consent or exigent circumstances.

The trial court denied all three claims finding they were refuted by the record. It attached the testimony of the victim, the victim’s seven-year-old son, and two police officers to support the denial. The testimony showed that the victim was interviewed at the hospital by one officer. She claimed her injuries were the result of a falling accident in her home. Specifically, the victim told the officer that she fell through a glass coffee table. It shattered and caused her lacerations. She stated that she had called McDuffy to come stay with her son at home while another friend took her to the hospital.

Skeptical of her story, the officer told the victim he was going to her home to see if the glass coffee table was broken. Two officers went to the home and knocked on the door. The victim’s minor son opened the door and let the officers enter. McDuffy, apparently inebriated, was sleeping on the couch and could not be awakened for several minutes. One of the officers did a protective sweep of the entire home and saw a bloody knife on the kitchen counter.

In McDuffy’s case, nothing in the record attachments provided by the trial court shows that the victim actually and voluntarily consented to the officers’ entry into her home without first obtaining a warrant or that the child could or did consent to entry into the home. See Saavedra v. State, 622 So.2d 952, 956-958 (Fla.1993) (holding that absent consent or exigent circumstances, the police may not make a warrantless entry into a home to make a felony arrest or to search for specific objects, and discussing the requirements of consent and the validity of a minor’s consent); see also Cooper v. State, 706 So.2d 369, 371-372 (Fla. 2d DCA 1998) (holding that even when the police are aware of a minor’s identity and know that he is an occupant of the home, the very fact that he is a minor calls for further inquiry before the police may reasonably believe that he possesses authority to grant them entry).

Furthermore, nothing in the record supports the entry and search on grounds of exigent circumstances. In the absence of exigent circumstances or permission, the police clearly may not enter a home without a search warrant simply because they think they have probable cause to believe evidence of a crime may be found therein. See Butler v. State, 697 So.2d 907, 908 (Fla. 2d DCA 1997). The decision to forego a warrant does not provide officers with exigent circumstances to make a warrantless search of a constitutionally protected area. See Burt v. State, 821 So.2d 437, 438-439 (Fla. 2d DCA 2002).

This case also involved a protective sweep of the home. To support such a search, a police officer must articulate facts sufficient to warrant a reasonable belief that the home harbored dangerous criminals. See Runge v. State, 701 So.2d 1182, 1185-1186 (Fla. 2d DCA 1997); Beauchamp v. State, 742 So.2d 431 (Fla. 2d DCA 1999). There were no such facts apparent in McDuffy’s case based on the record we have before us.

Because the record attachments by the trial court do not conclusively refute McDuffy’s claims, we reverse and remand for an evidentiary hearing on the issue of whether counsel was ineffective for failing to file a motion to suppress. See Gaston v. State, 735 So.2d 566, 567 (Fla. 2d DCA 1999).

Affirmed in part, reversed in part, and remanded.

DAVIS and CANADY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Katherine KOCZWARA, Appellee.
    No. 2D02-1833.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2003.

      Charlie Crist, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellee.
   CANADY, Judge.

The State charged Katherine Koczwara with unauthorized possession of a driver’s license in violation of section 322.212, Florida Statutes (2001), based on her possession of two driver’s licenses with altered license numbers. Koczwara’s motion pursuant to Florida Rule of Criminal Procedure 3.190(c)(4) to dismiss the charge was granted by the trial court based on its conclusion that section 322.212 does not prohibit the possession of a driver’s license with an altered license number. The State appeals the trial court’s order which is now subject to de novo review. State v. Pasko, 815 So.2d 680 (Fla. 2d DCA 2002), review denied, No. SC02-1198, 835 So.2d 268 (Fla. Dec.27, 2002). We disagree with the trial court’s interpretation of the governing statutory provision and therefore reverse the dismissal.

Koczwara’s motion to dismiss stated that “three (3) driver’s licenses belonging to Ms. Koczwara” were found by an officer of the Lakeland Police Department in Koc-zwara’s vehicle. Koczwara’s motion further stated that “[t]he first driver’s license was unaltered in any way,” that “[t]he second driver’s license had two of the driver’s license numbers altered,” and that the third license “had only one of the driver’s license numbers altered.” Finally, the motion stated that “[n]either Ms. Koczwara’s name, address, or date of birth was altered on any of these driver’s licenses.” Koc-zwara contended — and the trial court agreed — that these undisputed facts do not establish a prima facie case of a violation of section 322.212.

Section 322.212(l)(a) makes it unlawful for any person:
(a) Knowingly to have in his or her possession or to display any blank, forged, stolen, fictitious, counterfeit, or unlawfully issued driver’s license or identification card or any instrument in the similitude of a driver’s license or identification card unless possession by such person has been duly authorized by the department!!]

In support of her position that this subsection does not cover the possession of a driver’s license with an altered license number, Koczwara cites the prohibition against the possession of a driver’s license with an altered date of birth contained in section 322.212(5)(b): “It is unlawful for any person to have in his or her possession a driver’s license or identification card upon which the date of birth has been altered.” Koczwara argues that since no reference is made in the statute to other types of alterations, the only prohibition in section 322.212 relating to altered licenses is the prohibition on the possession of licenses with an altered date of birth. Under the interpretation advanced by Koc-zwara, it would be lawful for a person to possess a license that had been altered by changing the name, address, or photograph, as well as the license number. This reading of the statute urged by Koc-zwara — and apparently accepted by the trial court — is inconsistent with the plain meaning of the text.

The prohibitions contained in section 322.212(l)(a) — particularly the prohibitions on knowing possession of a “forged” or “fictitious” license — cover the possession of a driver’s license with an altered license number. Both “forged” and “fictitious” denote unauthorized changes made to a document that cause the document to convey information that is not true. The core meaning of “forgery” is “falsely making or altering a writing.” Random House Unabridged Dictionary 751 (2d ed.1993) (emphasis supplied); see also Dictionary of Modem Legal Usage 369 (2d ed.1995) (“forgery = a false document, or false part of a document, that someone has tried to make look genuine”) (emphasis supplied). Similarly, “fictitious” means “having the character of a fiction; pretended; ... false, not genuine.” Black’s Law Dictionary 624 (6th ed.1990). Accordingly, a driver’s license need not be entirely fabricated to be forged or fictitious. Material alterations to a license will create a forged or fictitious license. And a driver’s license with a falsely altered license number is as much a forged or fictitious license as a license with a false name, a false address, or a false photograph. Knowing possession of a license on which such basic identifying information has been altered is a violation of section 322.212(l)(a).

Section 322.212(5)(b) does establish a separate offense for possession of a driver’s license with an altered birth date, but it does not transform the plain meaning of “forged” and “fictitious” in section 322.212(l)(a). A violation of section 322.212(5)(b) is punishable pursuant to section 322.212(6) as a misdemeanor of the second degree. This penalty is symmetrical with the misdemeanor penalty imposed by section 322.212(6) for violations involving “giving a false age in any application for a driver’s license” under section 322.212(5)(a). Section 322.212(6) thus imposes misdemeanor, penalties for offenses related to false birth dates on licenses, rather than the felony penalties that it imposes for all the other offenses related to licenses established in section 322.212. Section 322.212(5)(b) simply carves out one type of offense involving alteration of a driver’s license to make that type of offense subject to punishment less severe than the punishment meted out for other offenses under the statute. It neither explicitly nor implicitly removes other types of offenses involving altered driver’s licenses from the scope of the conduct plainly prohibited by section 322.212(l)(a).

Koezwara also argues that the prosecution of a case for possession of a forged driver’s license requires that the State establish a “specific intent to injure or defraud.” Although the general prohibition against the forgery of various documents (not including driver’s licenses) in section 831.01, Florida Statutes (2001), contains an express requirement that the forgery be committed “with intent to injure or defraud,” no similar requirement is found in section 322.212. In the absence of legislative provision for such a specific intent element of the offense created in section 322.212, it would be improper to require that the State charge and prove the existence of the specific intent to injure or defraud. See Reynolds v. State, 27 Fla. L. Weekly S1050, S1050, — So.2d -, 2002 WL 31856732 (Fla. Dec. 19, 2002) (discussing legislature’s “broad authority to determine any requirement for intent in the definition of a crime”).

Because the trial court erred by dismissing the charge against Koezwara, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

FULMER and SALCINES, JJ., Concur.