author: HAZOURI, J.

text:
    Theron A. TOSON, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4467.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

The issue we address in this case is whether, after an open guilty plea to the court, a defendant may be adjudicated and sentenced for both grand theft and dealing in the property stolen in the theft. Applying section 812.025, Florida Statutes (2001), we hold that there may not be two convictions, and reverse and remand for resentencing.

Theron Toson appeals from his conviction and sentence in circuit court case number 02-1925 CFA02 and his sentences in case numbers 01-12121 CFA02 and 01-13048 CFA02.

Toson was charged by three informa-tions filed in the Fifteenth Judicial Circuit as follows: case number 01-12121 CFA02, with burglary of a dwelling (count I), grand theft (count II), and loitering or prowling (count III); in case number 01-13048 CFA02, with burglary of a dwelling (count I), and petit theft (count II); and in case number 02-1925 CFA02, with burglary of a dwelling (count I), grand theft (count II), and three counts of dealing in stolen property (counts III-V).

On October 16, 2002, Toson entered open pleas as charged. During the plea colloquy the State presented its factual basis for the offenses charged. The court found that the plea was entered freely and voluntarily and accepted the plea. In case number 02-1925 CFA02, the State’s factual basis for the plea was set forth as follows:

[O]n or between December the 21st, 2001, and January the 6th of 2002, the defendant did knowingly enter a dwelling, the home of Patricia Gillette with the intent to commit an offense therein, that offense was to commit theft, and he did take items from the home of Patricia Gillette, in an amount greater than $100 with the intent to permanently deprive her of that property, including computer equipment, tools, a video recorder, stereo equipment, fan, telephone, other household items, a bicycle, a television, jewelry and took that from the dwelling. He also took property, namely a musical instrument which was property the defendant should have known was stolen, and endeavored to traffic in it by pawning it.
He also took computer equipment on or about January the 4th, 2002, and pawned it, knowing it was stolen, and on January 16th, 2002, he took jewelry to a pawn shop and knew it was stolen. And he pawned that item.
Count three, the dealing in stolen property, occurred on January 3rd, 2002, and the theft was also on or between December 21st, 2001, and January 6th, 2002. All events occurring in Palm Beach County.

The trial court adjudicated Toson guilty on all counts. He was sentenced to concurrent terms with credit for 283 days time served as follows: in case number 01-12121 CFA02, on count I to a mandatory minimum term of fifteen years in prison as a prison releasee reoffender, on count II to five years in prison, and on count III to time served; in case number 01-13048 CFA02, on count I to a minimum mandatory term of fifteen years in prison as a prison releasee reoffender, and on count II to 283 days time served; and in case number 02-1925 CFA02, on count I to a minimum mandatory term of fifteen years in prison as a prison releasee reoffender, on count II to five years in prison, and on counts III, IV and V to 92.25 months in prison on each count.

Toson argues that he was improperly convicted of the three counts of dealing in stolen property in case number 02-1925 CFA02 because the counts of dealing in stolen property and count of grand theft involved the stealing of the same property during the same scheme or course of conduct. Section 812.025 prohibits the trial court from adjudicating him guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct.

Toson raises this argument for the first time on direct appeal. The State contends that Toson is precluded from raising this issue since he entered pleas of guilty to the charges. The State relies on Florida Rule of Appellate Procedure 9.140(b)(2), which identifies when an appeal from a guilty or nolo contendere plea is permitted. Toson responds that the dual convictions for grand theft and dealing in stolen property constitute fundamental error.

We agree. Under this open plea to the court, the convictions of both grand theft and dealing in stolen property constitute fundamental error that may be raised for the first time on appeal.

Section 812.025 expressly prohibits a trial court from adjudicating a defendant guilty of theft and dealing in stolen property in connection with one scheme or course of conduct. That Toson’s convictions and sentences were the result of an open plea of guilt to the charges against him does not alter the result. See Hall v. State, 826 So.2d 268, 271 (Fla.2002); see also Eugene v. State, 828 So.2d 1055 (Fla. 4th DCA 2002). Although in Hall the plea was nolo contendere, the holding in Hall is equally applicable to an open guilty plea, as it is accepted by the trial court in the same manner as a nolo contendere plea. See Fla. R.Crim. P. 3.170, 3.171, and 3.172.

In the instant case, the information, the probable cause affidavit, and the factual basis presented, established that the grand theft and three charges of dealing in stolen property to which Toson was making his open pleas, all involved the same property stolen in the course of a burglary of Patricia Gillette’s home. Toson testified at the plea hearing, without contradiction, that he sold the stolen items in order to support his crack cocaine addiction.

This court, in Blair v. State, 667 So.2d 834 (Fla. 4th DCA 1996), addressed a similar fact situation. In Blair, the information charged the defendant with stealing jewelry on one date and dealing in the same jewelry on the same date or sometime thereafter. The State was unable to prove the theft of the jewelry and the dealing of the same jewelry were distinct and unrelated criminal incidents. Our court stated as follows:

While we recognize that additional acts will always be required to dispose of the property in question, the legislative purpose of the section [812.025] is to prevent dual convictions in connection with one scheme or course of conduct. Absent something more to purposefully interrupt the two crimes by an unquestionably disjunctive period of time or series of events, defendant’s conviction for one of the offenses must be set aside.

Id. at 841.

Although section 812.025 does not provide a definition for what constitutes “one scheme or course of conduct,” our supreme court discussed the legislative history leading up to the enactment of section 812.025 and the intent of the legislation in Hall. After discussing the legislative history, the Florida Supreme Court in Hall stated:

It appears that the dealing in stolen property statute and the theft statute address two different evils. The former is directed toward the criminal network of thieves and fences who knowingly deal in the redistribution of stolen property, whereas the theft statute is directed toward those persons who steal for personal use and for whom redistribution is incidental.

826 So.2d at 271.

Quoting with approval from Grimes v. State, 477 So.2d 649, 650 (Fla. 1st DCA 1985), the court further stated:

[EJvidence of theft only, with the intent personally to put the stolen item or items to normal use, constitutes only the crime of theft and not the crime of trafficking or dealing in stolen property within the meaning of chapter 812, Florida Statutes, even if the normal use is achieved by some form of transfer, distribution, dispensation, or disposition of the item.

Hall, 826 So.2d at 271.

The court, thereafter, concluded that section 812.025 allows the State to charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts, but the trier of fact must then determine whether the defendant is a common thief who steals property with the intent to appropriate such property to his own use or to the use of a person not entitled to the use of the property or whether the defendant traffics or endeavors to traffic in stolen property. Id. Finally, the court concluded:

The linchpin of section 812.025 is the defendant’s intended use of the stolen property. The legislative scheme allows this element to be developed at trial and it is upon this evidence that the trier of fact may find the defendant guilty of one or the other offense, but not both. The legislative scheme is clear and the same legislative rationale militates against allowing a defendant to plead guilty to inconsistent counts, i.e., stealing property with intent to use under section 812.014 or stealing property with intent to traffic in stolen goods pursuant to section 812.019. Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea of nolo contendere to both counts. Legislative history leads us to believe that this comports with legislative intent. Thus, we find that section 812.025 prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo contendere.

Id.

We reverse counts II, III, IV and V, and remand to the circuit court for resentenc-ing consistent with this opinion. See Eugene v. State, 828 So.2d 1055 (Fla. 4th DCA 2002). We also order resentencing in cases 01-12121 CFA02 and 01-13048 CFA02 on a scoresheet corrected to reflect the resentencing in 02-1925 CFA02.

WARNER and GROSS, JJ„ concur.

      . Section 812.025, Florida Statutes (2001), states:
      Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jonathan TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-250.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Jonathan Torres, Caryville, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order denying post-conviction relief. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).

STONE, GROSS and TAYLOR, JJ., concur.


text:
    Geronimo GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2119.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Gerónimo Garcia, Century, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s 3.800(a) motion. See Hernandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002). To the extent the motion claimed credit for additional time served, this affirmance is without prejudice to appellant’s right to file a legally sufficient motion seeking credit in the trial court or to pursue his administrative remedies with the Department of Corrections, whichever is appropriate. See e.g., Perkins v. State, 839 So.2d 797 (Fla. 4th DCA 2003).

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


text:
    Duane Eugene OWEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3676.
    District Court of Appeal of Florida, Fourth District.
    Jan. 14, 2004.
    Duane Eugene Owen, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Celia A. Terenzio, Assis-taut Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Duane Euguene Owen seeks review of an order that denied his Florida Rule of Criminal Procedure 8.800 motion. Owen argued that his 1986 sentences are illegal in light of the Florida Supreme Court’s decision in Smith v. State, 537 So.2d 982 (Fla.1989). Smith held the sentencing guidelines unconstitutional for offenses committed before July 1, 1984. In essence, before July 1, 1984, a trial court lacked legal authority to impose a guidelines sentence. A defendant could become eligible for parole if not sentenced pursuant to the guidelines. Id.See also Kunkel v. State, 765 So.2d 244 (Fla. 1st DCA 2000).

Owen’s offense dates predate July 1, 1984. Owen’s motion is legally sufficient as he alleged that he was not given the opportunity to elect to be sentenced under the law prior to the establishment of sentencing guidelines, under which he would be eligible for parole. We reject the state’s claim of harmless error, and reverse and remand for the trial court to consider the claim on the merits.

STEVENSON, HAZOURI and MAY, JJ., concur.

      . Leonard v. State, 760 So.2d 114, 116 n. 4 (Fla.2000).


author: GRIFFIN, J.

text:
    Stephen J. CANTIN, Appellant, v. ST. PAUL FIRE & MARINE, etc., et al., Appellees.
    No. 5D03-326.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2004.

      Geoffrey B. Dobson, of Dobson & Brown, P.A., St. Augustine, for Appellant.
    Justin D. Jacobson, of Jacobson, Sobo & Moselle, Plantation, for Appellees.
   GRIFFIN, J.

This is the appeal of a summary final judgment in an automobile accident case. The motion for summary judgment was predicated on an affidavit of an employee of St. Paul Fire & Marine [“St. Paul”] and upon appellant, Steven J. Cantin’s [“Can-tin”], failure to respond to certain requests for admission propounded by St. Paul.

Suit was filed on February 1, 2002. Cantin, pro se, responded to the complaint by letter denying liability and expressing that the accident was the fault of the driver of plaintiffs vehicle. Thereafter, various discovery requests were served on Cantin, including requests for admission. A motion for summary judgment was also filed.

The trial court entered a brief order granting St. Paul’s motion for summary judgment on November 21, 2002. Thereafter, on December 12, St. Paul filed a motion for entry of final judgment, with an attached affidavit of costs and pre-judgment interest.

The following day, counsel appeared for the first time in the litigation on behalf of Cantin, by filing a motion for reconsideration of the order granting the motion for summary judgment. That motion was never ruled upon by the trial judge. On December 17, the trial court signed St. Paul’s proposed final judgment. Counsel for Cantin was not served with a copy of the judgment and did not learn of the entry of the judgment until after expiration of the time for filing a motion for rehearing in the trial court. He filed his notice of appeal on the thirtieth day.

We conclude that two procedural defects require us to reverse and remand for further proceedings. Both defects appear to be the result of the flow and timing of the filings, not any conscious error on the part of the trial court.

First, the trial court should have disposed of appellant’s motion for reconsideration of the order granting the summary judgment prior to entry of the final judgment based upon the order. Second, because appellant had appeared through counsel prior to the entry of the final judgment, counsel should have been served with a copy of the final judgment in order for him to be able to file a motion for rehearing directed to the final judgment. Based upon our review of the court file, we doubt the trial court was actually aware of the motion for reconsideration or the appearance of counsel on Cantin’s behalf. Nevertheless, Cantin is entitled to a decision on his motion for reconsideration and an opportunity to file a motion for rehearing of the final judgment. We accordingly reverse and remand to the trial court where appellant shall have ten days from the date of our mandate to file any motions directed to the judgment.

REVERSED and REMANDED.

PLEUS and ORFINGER, JJ., concur.

      . Plaintiff, St. Paul Fire & Marine, sued as subrogee of its insured, Earl Baynor, Jr. Trucking, to recover losses arising out of a collision that occurred between Baynor's truck and an automobile being operated by appellant Cantin while the vehicle was being towed by another vehicle. The latter vehicle was operated by the second defendant below, William M. Smith.

      . For some reason, the final judgment executed on December 17, 2002, was not filed until December 23, 2002.


text:
    Jonathan J. HENRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-523.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See § 812.015(l)(c), Fla. Stat. (2002); Scott v. State, 519 So.2d 734 (Fla. 3d DCA 1988).

GRIFFIN, PLEUS and ORFINGER, JJ., concur.


text:
    Joel TILLER, A/K/A Jay Taylor, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2417.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2004.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

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

PETERSON, THOMPSON and PALMER, JJ., concur.


text:
    Karlton Keith JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2020.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

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

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


author: PER-CURIAM.

text:
    PREFERRED RESORT MAIN GATE, L.P., etc., et al., Appellants, v. Bob DAY, etc., et al., Appellees.
    No. 5D03-1594 to 5D03-1597.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2004.
    Gregory J. Orcutt and Matthew C. Lucas, of Bricklemyer, Smolker & Bolves, P.A., Tampa, for Appellants.
    Loren E. Levy, of The Levy Law Firm, Tallahassee, for Appellees.
   PER-CURIAM.

AFFIRMED. Wal-Mart Stores v. Day, 742 So.2d 408 (Fla. 5th DCA 1999).

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


text:
    James A. CARMICHAEL, Appellant/Cross-Appellee, v. Jerry Lou CARMICHAEL, Appellee/Cross-Appellant.
    No. 5D03-1395.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2004.
    Robert L. Appleget, Jr., of Robert Ap-pleget, Jr., P.A., Ocala, for Appellant/Cross-Appellee.
    Denise VanNess of VanNess & VanNess, P.A., Crystal River, and Norman D. Levin, P.A., Longwood, for Appel-lee/Cross-Appellant.
   PER CURIAM.

AFFIRMED. See Casto v. Casto, 508 So.2d 330 (Fla.1987).

SHARP, W., and MONACO, JJ., and SMITH, M. T., Associate Judge, concur.


text:
    Rakesh LALOO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1020.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2004.
    James B. Gibson, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

SAWAYA, C.J., SHARP, W., and PALMER, JJ., concur.


author: WOLF, C.J.

text:
    Aaron L. WHITFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2179.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, C.J.

The appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging he is due an additional 19 days of jail credit. The appellant alleges he was in jail from April 2, 1999, through May 17, 1999, and January 21, 2000, through April 28, 2000, awaiting sentencing, for a total of 142 days, rather than the 123 days claimed by the State. The trial court denied the claim, relying on the dates of incarceration supplied by the State. While this information, which is not from the court file, provided a legally insufficient basis to deny the claim, we affirm because the original rule 3.800(a) motion fails to allege “that the court records demonstrate on their face an entitlement to that relief.” Fla. R.Crim. P. 3.800(a). See Jackson v. State, 803 So.2d 842 (Fla. 1st DCA 2001).

In Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998), we held that a facially sufficient rule 3.800 motion to correct an illegal sentence must allege where and how the court records demonstrate entitlement to relief. In cases involving an allegation of a sentencing illegality based on insufficient jail credit, we have held that a motion is sufficient which alleges that there is a jail card or certificate demonstrating appellant’s entitlement to relief. See, e.g., Clark v. State, 851 So.2d 826 (Fla. 1st DCA 2003). In the instant case, however, appellant makes no allegation that such a document appears in the record. We affirm based on Baker.

ALLEN and DAVIS, JJ., CONCUR.


text:
    Lonnie W. JACOBS, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4548.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Anne C. Conely, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). We certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

ALLEN, WEBSTER and BENTON, JJ., concur.


text:
    Gustavo A. MORALES, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and Benton Express, Inc., Appellees.
    No. 3D03-2450.
    District Court of Appeal of Florida, Third District.
    Jan. 21, 2004.

      Gustavo A. Morales, in proper person.
    John D. Maher, Tallahassee, for appel-lee, Commission.
    Before SCHWARTZ, C.J., and COPE, and WELLS, JJ.
   PER CURIAM.

Claimant Gustavo A. Morales appeals the denial of unemployment compensation benefits. Claimant was employed as a truck driver for a trucking company from July 15, 2001, through April 14, 2003, working approximately 50 hours per week. The findings of the appeals referee establish that on several occasions, the claimant had come to work and found there was no work available. On April 14, 2003, the claimant came to work and found that his time card was not in the rack. He asked his dispatcher what was going on and was referred to the manager. The manager was not in, so the claimant waited for him for four hours. At approximately noon, the manager came in and told the claimant that there was no work available for that day. The claimant asked who was going to pay him for the time he had spent waiting, and the manager told him that “if [claimant] did not like it he could quit.” Claimant did not return to work and thereafter sought unemployment compensation.

The appeals referee hearing the case concluded that the claimant was disqualified from receiving benefits because he voluntarily left employment without good cause attributable to the employer. See § 443.101(l)(a), Fla. Stat. (2003). The claimant timely appealed the referee’s decision to the Unemployment Appeals Commission (UAC). By an order entered on August 20, 2003, the UAC affirmed the referee’s decision.

The UAC maintains that claimant has failed to carry his burden of demonstrating reversible error. We disagree. As stated in Advanced Mobilehome Systems, Inc. v. Unemployment Appeals Com’n, 663 So.2d 1382, 1387 (Fla. 4th DCA 1995):

An individual is disqualified from receiving unemployment compensation benefits in Florida if the employee voluntarily leaves employment without good cause attributable to the employer. § 443.101(1), Fla.Stat. (1993). “To voluntarily leave employment for good cause, the cause must be one which would reasonably impel the average able-bodied qualified worker to give up his or her employment. Uniweld Prods. Inc. v. Industrial Relations Comm’n, Fla. Dep’t of Commerce, Tallahassee, 277 So.2d 827, 829 (Fla. 4th DCA 1973), and cases cited therein. “The applicable standards are the standards of reasonableness as applied to the average man or woman, and not to the su-persensitive.” Id.
The burden is on the claimant to prove that he has met the statutory eligibility requirements, which includes good cause for leaving his job. Id. This court has recognized that it is not “good cause attributable to the employer” if a claimant leaves because he does not like the working conditions, unless the working conditions “constitute unfair or unreasonable demands upon a claimant such that a reasonably prudent person would leave.” Sollecito v. Hollywood Lincoln Mercury, Inc., 450 So.2d 928 (Fla. 4th DCA 1984).

(Emphasis added). See 55A Fla. Jur.2d Unemployment Compensation § 75 (2003)(observing an employer’s failure to provide its employees with a tolerable work environment is good cause for leaving employment attributable to the employer).

Here, in place was a continuing condition where the claimant repeatedly appeared for work only to be told that none was to be had, and where he had been required to wait a number of hours just to find out that there was no work available. When he complained about not being paid for coming to work and then waiting hours to be told that work was not available, he was told that he could quit. These circumstances amounted to a work condition that would impel the average able-bodied qualified worker to give up employment. Accordingly,, the order below rejecting claimant’s application for unemployment compensation is reversed with directions to grant the benefits claimed.

      . The terminal manager who so advised Morales did not testify before the hearing referee. The human resources department manager testified that she did not know what happened between the manager and Morales only that company records showed that a termination notice in company files stated that Morales left voluntarily without notice.
      Morales testified that the company often had no work for him/and that on his last day he was told by 'the terminal manager that “they didn't have no work,’’ and that he should "go to the unemployment....”


text:
    Kevin T. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3724.
    District Court of Appeal of Florida, Fifth District.
    Jan. 23, 2004.
    Kevin T. Daniels, Bristol, Pro se.
    Charles J.- Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant challenges the lower court order that summarily denied his motion for post-conviction relief brought pursuant to rule 3.850, Florida Rules of Criminal Procedure. The court denied Appellant’s motion as successive but failed to attach portions of the record supporting this determination. For that reason, we reverse and remand with instructions that the lower court attach the necessary portions of the record which show that the motion is successive or that the allegations are otherwise refuted. Alternatively, an evi-dentiary hearing should be held to address the merits of the motion.

REVERSED and REMANDED.

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Ernest BROWN, Petitioner, v. PUBLIC DEFENDER’S OFFICE FOR The FOURTH JUDICIAL CIRCUIT, Respondent.
    No. 1D03-3469.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2004.
    Ernest Brown, pro se, petitioner.
    Louis 0. Frost, Jr., Public Defender, and Ward L. Metzger, Assistant Public Defender, for respondent.
    Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for State of Florida.
   PER CURIAM.

DENIED. See Brown v. Vocelle, 630 So.2d 1257 (Fla. 4th DCA 1994); Ridge v. Adams, 643 So.2d 116 (Fla. 5th DCA 1994).

BOOTH, KAHN and PADOVANO, JJ., concur.


text:
    John HALL, Appellant, v. TALLAHASSEE MEMORIAL REGIONAL MEDICAL CENTER, etc., Appellee.
    No. 1D03-4852.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2004.
    John Hall, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

DISMISSED. See Audi v. Federal Nat'l Mortgage Ass’n, 685 So.2d 102 (Fla. 4th DCA 1997).

BOOTH, KAHN and PADOVANO, JJ., concur.


author: Wallace; judge.

text:
    Randall S. THOMAS, Appellant, v. UNITED PARCEL SERVICE, INC., and Unemployment Appeals Commission, Appellees.
    No. 2D03-1455.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2004.

      Terence J. Daly, Tampa, for Appellant.
    Dennis M. McClelland and Elizabeth K. Fite of Holland & Knight LLP, Tampa, for Appellee United Parcel Service, Inc.
    No appearance for Appellee Unemployment Appeals Commission.
   Wallace; judge.

Randall S. Thomas was denied unemployment compensation benefits based on the referee’s finding that he was terminated as a result of misconduct connected with work. The Unemployment Appeals Commission (UAC) upheld the referee’s decision. Thomas challenges the ’ order and argues that his actions did not amount to misconduct that would support the denial of benefits. We agree and reverse.

Thomas was employed as a pre-loader with United Parcel Service (UPS) beginning in August 1998. On May 21, 2002, Thomas’ manager heard from another employee that Thomas had a camera in the workplace. A security representative and the manager asked Thomas if they could search his book bag, which he carried to and from work. When Thomas refused to open his bag, he was asked again. He refused again. When Thomas was told that he could not take pictures in the workplace, he denied doing so.

On June 4, 2002, another employee informed the manager that he observed Thomas with a camera in the workplace and that he had put it in a bag. The security representative and the manager called Thomas into the manager’s office. They asked Thomas if he had a camera, and he responded in the negative. They asked if they could search his bag, but Thomas refused.r The manager told Thomas that he would issue a warning letter if Thomas refused. ■ Thomas again refused to let the manager search his bag. The manager then informed Thomas that he could be suspended, if he still refused. After Thomas refused a search the third time, the manager discharged Thomas for insubordination.

In her conclusions of law, the referee determined that UPS terminated Thomas for misconduct within the meaning of the unemployment statute. The referee determined that UPS had a right to protect its proprietary interest in ensuring that its customers’ packages are properly handled. Because of this interest, the referee reasoned that Thomas demonstrated insubordinate behavior by not submitting to a sharch. In making this determination, the referee gave consideration to the fact that UPS had no posted policy regarding the search of employees’ personal belongings. However, the referee concluded that even if the policy was not posted, Thomas had notice of the policy oii May 21, 2002, when UPS first asked to search his bag.

The UAC affirmed the referee’s decision that Thomas was disqualified from receiving benefits. However, in a dissenting opinion, Chairman ;Forst , concluded that UPS did not -meet its burden, of establishing that Thomas was terminated, on the basis of misconduct connected with work. One of Chairman Forst’s concerns with the referee’s decision was:

The employer failed to provide evidence that it had informed its employees that it might search their personal belongings. The referee excuses this lack of a policy by noting that the claimant “had notice of this policy” because the employer had previously sought to search his bag. Yet, the employer has acknowledged that it does not have such a “policy.”

The issue we confront is whether Thomas’ refusal to submit to a search of his personal belongings constitutes misconduct connected with his work. In deciding this issue, we recognize that this court cannot reweigh the evidence or substitute its judgment for that of the UAC as to any disputed finding of fact. Doyle v. Fla. Unemployment Appeals Comm’n, 635 So.2d 1028 (Fla. 2d DCA 1994). Furthermore, this court cannot overturn a UAC decision unless the record lacks competent, substantial evidence to support the action. Id.

An employee terminated for misconduct connected to his work is not entitled to unemployment compensation benefits. § 443.101(l)(a), Fla. Stat. (2002). Section 443.036(29) defines “misconduct” as including, but not limited to:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

Under well-established law, this statute is to be liberally interpreted in favor of an employee, and its disqualifying provisions are to be construed narrowly in determining whether the employee’s actions support the denial of benefits. See Mason v. Load King Mfg. Co., 758 So.2d 649 (Fla.2000). It is also well established that the employer has the burden of proving that the employee was terminated for misconduct in connection with his work. Id.; see also Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935 (Fla. 2d DCA 2001); Doyle, 635 So.2d at 1031. To meet its burden, “the employer must show more than an employee’s inefficiency, unsatisfactory conduct, or failure to perform in the work-place.” Id.

Although case law in Florida has not addressed the termination of an employee based on his refusal to consent to a search of his personal belongings, Florida courts have addressed an employer’s enforcement of a workplace policy not in effect at the time of the employee’s hiring. See AAA Gold Coast Moving & Storage, Inc. v. Weiss, 654 So.2d 281 (Fla. 4th DCA 1995); Vaughn v. Fla. Unemployment Appeals Comm’n, 482 So.2d 593 (Fla. 4th DCA 1986); Swope v. Fla. Indus. Comm’n Unemployment Comp. Bd. of Review, 159 So.2d 653 (Fla. 3d DCA 1963). When, at the time an employee was hired, the employer had no preset policy with which the employee was required to comply as a condition of continued employment, refusal to comply with the policy at the employer’s request does not constitute misconduct within the meaning of the unemployment statute. Vaughn, 482 So.2d at 594; see § 443.036(29)(a); Swope, 159 So.2d at 654.

In the context of drug testing, in the absence of a preset policy, an employer may still require an employee to submit to a drug test if there is a “reasonable suspicion” that the employee is using illegal drugs. AAA Gold Coast Moving & Storage, 654 So.2d at 282 (citing Fowler v. Unemployment Appeals Comm’n, 537 So.2d 162 (Fla. 5th DCA 1989)). When reasonable suspicion exists, failure to submit to a drug test, after being warned that failure to do .so may result in dismissal, constitutes a deliberate disregard of the employer’s interests. Id.

The “reasonable suspicion” exception was created in City of Palm Bay v. Bauman, 475 So.2d 1322 (Fla. 5th DCA 1985), in which the court upheld a city policy requiring police and firefighters to submit to a urinalysis test at set times throughout their employment. When the court validated the policy, it expressed the importance of having a competent police and firefighter force because the work requires and the public’s safety demands complete mental and physical functioning. Additionally, the court supported its holding based upon the city’s assertion that the city had a right to insist that its law enforcers not be law breakers. Id. at 1326.

The interests the Fifth District was trying to promote by creating the “reasonable suspicion” exception in drug testing cases do not exist in the present case. The only reason that UPS wanted to conduct the search was to determine if Thomas had a camera in his book bag. The public interest in preventing cameras in the workplace is substantially less important than the need to ensure a drug-free police force. We conclude that the “reasonable suspicion” exception should not be extended to searches such as the one conducted in the present case.

Because the “reasonable suspicion” exception should not apply in this case, the only matter to be resolved is whether UPS enforced a policy that was not in existence at the time Thomas was hired. UPS’ admission that it had no policy regarding the search of its employees and their personal effects leads to the conclusion that Thomas’ refusal to submit to the search cannot be considered a deliberate violation or disregard of the standards of behavior which UPS had the right to expect.

Thomas’ refusal to submit to the requested search may have reflected poor judgment. UPS was not unreasonable in deeming it a sufficient basis to terminate his employment. Nevertheless, an action warranting termination does not automatically constitute misconduct precluding unemployment compensation. See Pascarelli v. Unemployment Appeals Comm’n, 664 So.2d 1089, 1091 (Fla. 5th DCA 1995). Because the facts relied on by the referee and the UAC do not support the conclusion that Thomas engaged in misconduct that warranted the denial of unemployment compensation benefits, we reverse with instructions that Thomas be provided with unemployment benefits to the extent that he otherwise qualifies for them.

Reversed and remanded.

SALCINES and STRINGER, JJ., Concur.

      . We might be confronted with a different case if the record revealed that UPS singled out Thomas for a search of his personal effects based upon a “reasonable suspicion” that his alleged possession of a camera involved specific wrongful conduct detrimental to UPS' interests that also serve the public interest, e.g., removing merchandise from customers' packages or taking photographs in the workplace in violation of a company policy to protect the confidentiality of its customers. However, that is not the situation before us, and we express no opinion thereon.


text:
    Gregory Allen COTHRON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3407.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2004.
    Gregory Allen Cothron, Lake City, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hartline v. State, 806 So.2d 595 (Fla. 5th DCA 2002).

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


text:
    Clarence L. FORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2346.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2004.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

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

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


text:
    Thomas CRAMER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1828.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2004.
    James B. Gibson, Public Defender, and Jane C. Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Nixon v. State, 857 So.2d 172 (Fla.2003); Blanco v. State, 702 So.2d 1250 (Fla.1997).

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


text:
    Juan DeSANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-798.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2004.
    James B. Gibson, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See F.B. v. State, 852 So.2d 226 (Fla.2003) and Avila v. State, 781 So.2d 413 (Fla. 4th DCA 2001).

GRIFFIN, THOMPSON and PLEUS, JJ., concur.


text:
    Rodney P. SCHWAB, Appellant, v. Linda C. SCHWAB and M.A. Regoni, Inc., etc., Appellees.
    No. 1D03-3182.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.
    Leonard E. Ireland, Jr., of Clayton-Johnston, P.A., Gainesville, Attorney for Appellant.
    David A. Barrett of Barrett & Associates, Tallahassee, Attorney for Appellee Linda C. Schwab.
   PER CURIAM.

As this Court has recently reversed the Final Judgment of Dissolution of Marriage on the issue of security for the payment of alimony and attorney’s fees, Schwab v. Schwab, 864 So.2d 82 (Fla. 1st DCA 2003), this appeal of the post-judgment order granting the motion to compel such security is dismissed as moot.

DISMISSED.

BOOTH, PADOVANO and BROWNING, JJ., concur.


text:
    Wesley Allen BRIGGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-2941.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.
    Wesley Allen Briggs, pro se, petitioner.
    Charlie Crist, Attorney General, and Shasta W. Kruse and Karen M. Holland, Assistant Attorneys General, Tallahassee, for respondent.
   PER CURIAM.

By petition for writ of mandamus, Wesley Allen Briggs seeks an order compelling the Circuit Court of Washington County to rule on his pending motion to correct illegal sentence in case number 4-84-55-CF. The motion was filed by Briggs in April 2003. In response to an order of this court, the state advises that it can show no cause why mandamus relief should not be granted. Accordingly, the petition for writ of mandamus is granted, and the circuit court is directed to enter an order within 30 days disposing of the motion to correct illegal sentence.

BOOTH, KAHN and PADOVANO, JJ., concur.


text:
    Major HIGHMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4447.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2004.
    Nancy A. Daniels, Public Defender, and Judith Dougherty Hall, Assistant Public Defender, Quincy, for petitioner.
    Charlie Crist, Attorney General, and Karen Armstrong, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Major Highman’s request for belated appeal from the judgment and sentence rendered on August 26, 2003, in Gadsden County Circuit Court case number 03-102CFA is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BOOTH, KAHN and PADOVANO, JJ., concur.


author: SHARP, W., J.

text:
    Joseph FRITZNER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-4067.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.
    Joseph Fritzner, Indiantown, pro se.
    No Appearance for Appellee.
   SHARP, W., J.

Fritzner appeals from the trial court’s summary denial of his amended motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm because Fritzner failed to affirmatively allege that his claim of an illegal sentence can be determined from the face of the record. See McKowen v. State, 816 So.2d 1254 (Fla. 5th DCA 2002). However, as in McKowen, our affirmance is without prejudice to Fritzner to file á facially sufficient motion pursuant to rule 3.800(a).

AFFIRMED.

SAWAYA, C.J., and PLEUS, J., concur.


text:
    Horace HANKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3827.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 2004.
    Horace Hankerson, Raiford, pro se.
    Charles. J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Horace Lee Hankerson appeals the summary denial of his motion filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. Hankerson was convicted of aggravated fleeing or attempting to elude a , police officer and received a sentence of 145.75 months in the Department of Corrections. He now complains that the sentence was improperly imposed under the 1995 version of the sentencing guidelines, a version held to be unconstitutional in Heggs v. State, 759 So.2d 620 (Fla.2000). He also alleges that his offense occurred within the window period for raising a Heggs claim, and that his sentence would have been a departure under the 1994 guidelines.

The trial court determined that Hanker-son was actually sentenced pursuant to the habitual felony offender statute rather than the sentencing guidelines. In support of that determination, the trial court made reference to a certain page in the sentencing hearing transcript. However, that page is not attached to the court’s order and the court did not otherwise indicate that it was supposed to be attached. Further, the written sentence attached to Hankerson’s notice of appeal does not show that the spaces for sentencing him as an habitual felony offender were checked off.

The attorney general in its response to this court candidly acknowledges that the trial court judge “did not attach any documentation in support of his order denying relief.” The record supporting the denial of relief under rule 3.800(a) must be attached to the trial court’s order if a prima facie claim is alleged. E.g., Bunch v. State, 622 So.2d 525 (Fla. 5th DCA 1993); see also Thomas v. State, 634 So.2d 175 (Fla. 1st DCA 1994).

We reverse and remand for attachments of documents to the order refuting Han-kerson’s claim, or for an evidentiary hearing.

REVERSED AND REMANDED.

PETERSON, GRIFFIN and PALMER, JJ., concur.

      . See Trapp v. State, 760 So.2d 924 (Fla.2000).


text:
    ADV-CARE PHARMACY, INC., Petitioner, v. STATE of Florida, Department of Health, Respondent.
    No. 1D04-0287.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2004.
    Katherine E. Giddings, Edward S. Jaf-fry, Mallory E. Horne and Clifford W. Mayhall of Katz, Kutter, Alderman & Bryant, Tallahassee, for petitioner.
    William Large, General Counsel, Pamela H. Page and Paula A. Willis, Assistant General Counsel, Tallahassee, for respondent.
   PER CURIAM.

The petition for review of nonfinal action is denied because petitioner has not demonstrated an injury which cannot be remedied on appeal from a final order. Corn v. Department of Legal Affairs, 368 So.2d 591 (Fla.1979).

ERVIN, BARFIELD and POLSTON, JJ., concur.


author: BARFIELD, J.

text:
    ESCAMBIA COUNTY, Florida, Appellant/Cross-Appellee, v. Earnest STANBERRY, Jr., Appellee/Cross-Appellant.
    Nos. 1D02-4558, 1D02-4559.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2004.

      Charles V. Peppier, Escambia County Attorney’s Office, Pensacola, for Appellant.
    Lisa S. Minshew, Pensacola, for Appel-lee.
   ON MOTION FOR CLARIFICATION

BARFIELD, J.

We withdraw our opinion filed on November 19, 2003, and substitute the following opinion. We reject the argument of the cross-appellant regarding the applicability of section 768.28, Florida Statutes, to the claims of nuisance and trespass. We find no reversible error except for the trial court’s instruction to the jury regarding real property damages, which we find to have been an incorrect statement of the law which led the jury to a finding that was not supported by the evidence. We therefore REVERSE the $225,000.00 award of damages for “cost of repair or replacement of the damaged property,” and REMAND the case to the trial court for a new trial on this element of damages. In all other respects, the final judgment awarding damages is AFFIRMED.

The award of attorney fees and costs based on section 768.79, Florida Statutes, is VACATED and the trial court is ordered to determine, after a final judgment has been rendered on remand, whether the appellee is entitled to attorney fees.

BENTON, and VAN NORTWICK, JJ., Concur.


text:
    Elvira C. BALGOS, P.T., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF PHYSICAL THERAPY, Appellee.
    No. 1D03-5184.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2004.
    Jon M. Pellet of Barr, Murman, Tonelli, Slother & Sleet, Tampa, for appellant.
    Charlie Crist, Attorney General, and Christine M. Thorson, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. See W.T. Holding, Inc. v. State Agency for Health Care Administration, 682 So.2d 1224 (Fla. 4th DCA 1996).

WOLF, C.J., ALLEN and DAVIS, JJ., concur.


text:
    Barbara J. WRIGHT-LONG, Appellant, v. WELLINGTON MANOR and Constitution State Service Company, Appellees.
    No. 1D03-4613.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2004.

      Joey D. Oquist of Joey D. Oquist & Associates, P.A., and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellant.
    Daniel J. Ewin of Dubbeld & Kaelber, P.A., St. Petersburg, for appellees.
   PER CURIAM.

Appellant’s notice of appeal was not filed within 30 days of the date the order to be reviewed was mailed by the lower tribunal to the parties, and we therefore dismiss this appeal for lack of jurisdiction. See Fla. R.App. P. 9.180(b)(2). To the extent appellant contends that she detrimentally relied on the erroneous date contained in the certificate of service accompanying the lower tribunal’s order (which error was corrected through issuance of an amended certificate of service), she may seek relief under the authority of Millinger v. Broward County Mental Health Division and Risk Management, 672 So.2d 24 (Fla.1996). Because factual disputes will almost certainly arise concerning the question of whether appellant’s reliance was reasonable and justified under the circumstances, any such claim for relief shall be presented to the lower tribunal for its consideration and disposition.

APPEAL DISMISSED.

BOOTH, PADOVANO and BROWNING, JJ., concur.


author: COVINGTON, Judge.

text:
    Clarence FRETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2466.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2004.

      James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   COVINGTON, Judge.

Clarence Frett was tried and found guilty of two counts of robbery with a firearm, resisting arrest without violence, and possession of cocaine. On appeal he argues that his conviction should be reversed because he was not present during a critical stage of the criminal proceedings against him. We agree and remand for a new trial.

About a month before his trial was to begin, Frett filed a motion to dismiss his court-appointed counsel, Tracy Lee. A hearing was held in which Frett, Lee, and the prosecutor were present. In essence, Frett argued to the court that since his attorney “did not want to fight” his case, he should be removed. During the hearing Lee also asked that he be dismissed as Frett’s counsel, noting that he was concerned that he would be the subject of a bar grievance. However, the court inquired of both Lee and Frett and concluded that Lee’s representation of Frett was adequate. Consequently, the court did not allow Lee to withdraw.

The morning of trial, Lee asked for an ex parte communication with the court. While the prosecutor was advised that a dialogue between Lee and the court was about to take place, Frett was not likewise informed. During the ex parte hearing, Lee moved to withdraw as Frett’s counsel because he was “very concerned about [his] ability to effectively represent him.”

According to Lee, there were two reasons why he should be allowed to withdraw as Frett’s lawyer. First, Frett had, indeed, filed the bar grievance complaint against him, and second, he believed that Frett was possibly going to perjure himself on the witness stand. Lee told the court that not only would he have difficulty cross-examining witnesses, but that he would not be able to call Frett to testify in light of the information that Frett had given him. Consequently, Lee did not think that he could ethically represent his client.

In denying the motion to withdraw, the trial court informed Lee that he needed to admonish his client to tell the truth. The trial court further advised Lee of the proper protocol to follow if he believed his client would be offering or had, in fact, given perjured testimony. At the conclusion of the ex parte hearing, Frett was brought back into the courtroom. The trial court noted that there had been an ex parte discussion, but Frett was not informed of its nature or substance.

Frett contends that because he was not present at the “private conference” between the court and his counsel, he was denied his right to a fair trial. In reviewing this matter, we begin with the premise that Frett “is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). Thus, we must determine whether the “in camera discussion could have had an effect on the fairness of the proceedings against [the defendant].” Rose v. State, 617 So.2d 291, 296 (Fla.1993).

Because he was not present at the ex parte hearing, Frett did not know that Lee was “very concerned” about his ability to be an effective advocate. Although Frett was aware that Lee previously had asked to withdraw from the case, Lee had told the court at that time that he wanted to withdraw because of Frett’s allegations against him and his fears that Frett might file a bar grievance. Lee never stated at that earlier hearing that he had any doubt as to his ability to adequately represent Frett. At the ex parte hearing, however, a different scenario emerged. While Lee did tell the court that he wanted to withdraw because Frett had, in fact, filed the threatened bar grievance against him, Lee’s primary concern was that he could no longer be an effective advocate for Frett.

Frett was prejudiced by his absence at the hearing since he was denied a crucial piece of information — Lee’s statement that in light of the circumstances he could not be effective. While we can only speculate as to whether Frett would have requested to represent himself if he had been privy to Lee’s sentiments, “it is certain that he was not fairly treated by being subjected, in his absence, to what was said by his counsel to the court.” People v. Blye, 233 Cal.App.2d 143, 43 Cal.Rptr. 231, 236 (1965).

This case is different from Rose, 617 So.2d 291, relied on by the State at oral argument. Rose argued that prejudicial error had occurred based on an ex parte conversation between his attorney and the court. Id. at 296. As in the instant case, the attorney had asked for permission to withdraw, citing a number of reasons including the fact that “he was beginning to lose confidence in himself.” Id. at 295. The trial judge told defense counsel to “think about the matter” and that she would allow the lawyer to withdraw if his doubts would “undercut his representation.” Id. In contrast to the case at bar, however, the defense counsel in Rose subsequently “determined that he could overcome his negative feelings and their differences, and he indicated that he would continue on the case.” Id.

While Rose had a lawyer who had been given the opportunity to withdraw from representation and chose to stay, Frett did not. In fact, Frett continued to have a lawyer who was “very concerned” about his ability to do a good job for his client. Frett was entitled to know this information. That way, Frett could decide if he wanted Lee to remain on the case or if he wanted to move to dismiss his counsel and take advantage of the opportunity to represent himself. Because he was not present at the stage of the proceedings where this critical information was disclosed, Frett’s due process rights were violated. He is entitled to a new trial.

In light of our remand for new trial, we need not address Frett’s request that the $2 court cost be stricken from the written judgment. We do note that the State conceded error on this point and agreed that the scrivener’s error should be corrected.

We therefore reverse Frett’s conviction and remand for a new trial.

Reversed and remanded.

STRINGER and KELLY, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Earl Lee TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4151.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2004.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Earl Tucker appeals his habitual violent felony offender sentence of ten years in prison for robbery. We reverse and remand for resentencing.

Tucker’s sentence was the result of a negotiated plea. During the sentencing hearing, the State referred to what it characterized as Department of Corrections documents and certified convictions, which the trial court apparently had before it, to support Tucker’s status as a habitual violent felony offender. That documentation, however, is not contained in our record. After Tucker was sentenced in accordance with the plea agreement, he filed a notice of appeal. Later, he filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

In his motion, Tucker alleged that the date of the robbery for which he was sentenced as a habitual violent felony offender did not occur within five years of the date of his prior conviction or release from prison for one of the felonies listed in section 775.084(l)(b), Florida Statutes (2002). It appears from our record that the trial court did not rule on the motion within sixty days; thus, we treat the motion as denied. See O’Neill v. State, 841 So.2d 629 (Fla. 2d DCA 2003); Jackson v. State, 793 So.2d 117 (Fla. 2d DCA 2001).

A defendant cannot stipulate to habitual offender sentencing “when the underlying substantive offenses necessary for such a sentence do not exist.” Lee v. State, 731 So.2d 71, 73 (Fla. 2d DCA 1999). In Lee, this court determined that “[i]f a defendant who has been sentenced as a habitual offender can prove that his prior offenses do not qualify him as a habitual offender, he will have established that his sentence is illegal.” Id. The court further recognized that “[a] defendant cannot authorize the trial court to impose an illegal sentence, even by virtue of a plea agreement.” Id.

Here, the parties agree that our record does not establish whether Tucker’s prior offenses qualify him as a habitual violent felony offender, and the State concedes that the case must be remanded to the trial court. Accordingly, we reverse the sentence and remand for resentencing. On remand, the trial court may impose the same sentence that it had previously imposed, provided that the evidence used to prove that Tucker qualifies for a habitual violent felony offender sentence is made a part of the trial court record.

If the trial court determines that Tucker does not qualify as a habitual violent felony offender, then the State would have the option of enforcing the plea bargain of a ten-year sentence without the habitual offender designation, or going back to “square one” in the plea bargain process. See Ford v. State, 595 So.2d 266, 267 (Fla. 5th DCA 1992), cited in Lee, 731 So.2d at 74.

Accordingly, we remand the cause to the trial court for further proceedings consistent with this opinion.

CASANUEVA and SALCINES, JJ., Concur.

      . With respect to the remedy on remand, we note the following. In a direct appeal reversing an illegal sentence resulting from a negotiated plea, this court concluded that "Q]ust as a defendant is not bound by a misconceived bargain, the state likewise is not bound to accept a sentence it did not bargain for.” Forshee v. State, 579 So.2d 388, 389 (Fla. 2d DCA 1991). We stated that the appropriate remedy "is to set aside the plea and reinstate the original charge.” Id.

      Similarly, in a postconviction proceeding challenging an illegal sentence resulting from a negotiated plea, this court vacated the sentence and directed that on remand, if the State did not agree to the reduced sentence, then the defendant "must be allowed to withdraw his plea.” Howell v. State, 764 So.2d 780, 781 (Fla. 2d DCA 2000). However, in Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003), this court affirmed the denial of post-conviction relief sought pursuant to rule 3.800. Although the negotiated plea resulted in an illegal sentence, we stated that "[b]e-cause a plea withdrawal is a potential consequence in this case, Nedd must seek relief under rule 3.850.” Id. at 665. The State would then have the option "to either agree to a resentencing or withdraw from the plea agreement and proceed to trial on the original charges.” Id.

      Although Nedd may be inconsistent with Howell, it is distinguishable from the present case. Nedd involved a postconviction proceeding in which the defendant was not represented by counsel; he was likely unaware that the correction of his sentence could result in the withdrawal of the plea agreement and trial on the original charge. Here, as in Forshee, Tucker has taken a direct appeal challenging his sentence, and he is represented by counsel. Furthermore, in its answer brief the State asserted and put Tucker on notice that if, on remand, the State could not establish that Tucker qualified for habitual violent felony offender treatment, then the State would not be bound by the plea agreement and could take Tucker to trial.


text:
    Patricia L. FARNUM, Appellant, v. J.C. PENNEY CORPORATION and Florida Unemployment Appeals Commission, et al., Appellees.
    No. 3D03-967.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    MaryJo A. Mosca, for appellant.
    John D. Maher, Tallahassee, for Unemployment Appeals Commission.
    Before COPE, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

Affirmed. See Washington v. Burdines, 422 So.2d 932 (Fla. 3d DCA 1982).


text:
    Leo C. HOLLINGSWORTH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1290.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge.
   PER CURIAM.

Because no reversible error has been demonstrated in the trial below, the conviction and sentence are affirmed, without prejudice, however, to the maintenance of a Rule 3.850 proceeding on grounds of inadequacy of counsel.


text:
    Eddie L. COWART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-740.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Eddie L.-Cowart, in proper person.
    Charles J. Crist, Jr., Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J, and COPE and SHEVIN, JJ.
   PER CURIAM.

Eddie Lee Cowart appeals an order denying his motion for postconviction relief. We remand for an evidentiary hearing (or attachment of record excerpts refuting his claim) on. one issue only. As we interpret the motion, defendant-appellant Cowart contends that his trial counsel affirmatively misadvised him that he did not qualify as a habitual offender. The defendant maintains that based on this misadvice, he rejected a favorable twenty-four-month plea offer which had been made by the State. Upon conviction the court sentenced him to twenty years as a habitual offender. As the record now before us does not conclusively refute the defendant’s claim, we remand for an evidentiary hearing on that issue ■ only. See Fla. RApp. P. 9.141(b)(2)(D). We express no opinion on the merits of the claim.

We affirm the trial court’s rejection of the defendant’s remaining claims.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.


text:
    Shawn SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-660.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Leonard J. Cooperman, Miami, for appellant.
    Charles J. Christ, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   On Rehearing Granted

PER CURIAM.

Upon consideration of the State’s motion for rehearing, we withdraw our previous opinion and substitute the following opinion.

On examining the plea colloquy from Miami-Dade County Circuit Court case number 97-8596, a fair reading is that defendant-appellant Smith entered his plea on count 4 to the crime as charged. It follows that the defendant qualifies as a habitual violent felony offender.

Affirmed.


text:
    P & R SMITH CORPORATION and Perfecto Gerardo Smith, Appellants, v. Aitor GOYARROLA and Ileana Mirabal, Appellees.
    No. 3D03-547.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Luis E. Ordonez and Frances F. Guasch, for appellants.
    Jeffery A. Sarrow, Plantation, for appel-lees.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

The defendants, P & R Smith Corporation and Perfecto Gerardo Smith, appeal from an adverse final order striking their claim for attorney’s fees and costs. We reverse.

In the underlying personal injury action, the trial court entered final judgment pursuant to a jury verdict on May 6, 2002. As required by Rule 1.525, Florida Rules of Civil Procedure, on May 9, 2002, within thirty days of the filing of the final judgment, the defendants filed their motion to tax costs and attorney’s fees based on an offer of judgment. On October 11, 2002, the defendants filed affidavits itemizing the attorney’s fees and costs incurred in the defense of the action. The plaintiffs filed a motion to strike the defendants’ motion for attorney’s fees and costs contending that it was a “bare bones” motion and that the supporting affidavits had not been filed within thirty days of the filing of the final judgment as required by rule 1.525. The trial court granted the plaintiffs’ motion to strike stating that the defendants failed to timely file any supporting documentation. The defendants’ appeal follows.

The defendants contend that the trial court erred by striking their motion for attorney’s fees and costs where rule 1.525 only requires that the motion for attorney’s fees and costs be filed within thirty days of the filing of final judgment but is silent as to the timing of the filing of any supporting documentation.

Rule 1.525, titled “Motions for Costs and Attorney’s Fees,” provides as follows:

Any party seeking a judgment taxing costs, attorney’s fees or both shall serve a motion within 30 days after the filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

(emphasis added).

Because the rule is silent as to the timing of the filing of the supporting documentation, the trial court erred by striking the defendants’ motion based solely upon the failure to file supporting documentation within thirty days of the filing of the final judgment as this is not required by Rule 1.525.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    Norton BLOOM, Appellant, v. Sandra KONNER, Appellee.
    No. 3D02-3226.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Ruden, MeClosky, Smith, Schuster & Russell and John H. Pelzer and Kristie J. Myers, Fort Lauderdale, for appellant.
    Akerman Senterfitt and David R. Car-lisle and Nancy A. Copperthwaite, Miami, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Given that the appellant’s noncompliance with the court order regarding the deposit was called to the attention of appellant in ample time to cure the deficiency, and he did not do so, we conclude that the trial court acted within its discretion in enforcing the explicit terms of its earlier order. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980).

Affirmed.


text:
    Leonel BONILLA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2157.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Barbara A. Zappi, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J. and BARKDULL, THOMAS H., JR., Senior Judge.
   PER CURIAM.

On the authority of San Martin v. State, 820 So.2d 403 (Fla. 3d DCA 2002), the conviction below is reversed and the cause remanded for a new trial before another judge.


text:
    Anthony HAMMOND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1344.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ and WELLS, JJ.
   PER CURIAM.

Affirmed. Anthony Hammond appeals his conviction of aggravated assault with a deadly weapon challenging the constitutionality of section 775.051, Florida Statutes (1999). For the reasons stated in Barrett v. State, 862 So.2d 44 (Fla. 2d DCA 2003) and Cue v. State, 834 So.2d 378 (Fla. 4th DCA 2003), review denied, 847 So.2d 975 (Fla.2003), we reject this argument. We likewise find no merit in Hammond’s two other arguments.


text:
    Manuel ALFARO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2412.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Manuel Alfaro, in proper person.
    Charles J. Crist, Jr., Attorney General, and Jill K. Traína, Assistant Attorney General, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Manuel Alfaro appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Defendant-appellant Alfaro alleges that after he was arrested, he was offered a thirty-nine-month plea bargain which he did not accept because his appointed counsel failed to explain that the offered sentence would be shortened by gain time and credit for jail time served. He contends that had this been explained, he would have accepted the plea.

The defendant later accepted a less favorable plea bargain which was offered by the court, consisting of five years incarceration followed by community control and probation. The materials in the limited record now before us do not conclusively confirm or refute the existence of the earlier thirty-nine-month plea offer which the defendant claims the State made.

Since the record does not at this point conclusively refute the defendant’s claim, we remand the case for an evidentiary hearing or attachment of record excerpts conclusively refuting the defendant’s claim. See Fla. R.App. P. 9.141(b)(2)(d); Fla. R.Crim. P. 3.850(d); Margiotti v. State, 844 So.2d 829, 830 (Fla. 3d DCA 2003). We express no opinion on the merits of the defendant’s claim but only say at this point that the record now before us does not conclusively refute it.

Reversed and remanded for further proceedings consistent herewith.


text:
    Donald Lee FOX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3254.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Donald Lee Fox, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, GERSTEN and WELLS, JJ.
   PER CURIAM.

Affirmed. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


text:
    Quinton E. MOSLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-108.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 2004.
    Quinton E. Mosley, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER, RAMIREZ and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P, 3.850(b)(1).


author: FULMER, Judge.

text:
    D.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-434.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2004.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

D.H. was found guilty of burglary of a dwelling and grand theft of the third degree. He challenges the sufficiency of the evidence for the grand theft charge, arguing that the State failed to prove the value of the stolen property. We agree that the testimony was insufficient to meet the State’s burden of proof and, therefore, reverse and remand for the trial court to reduce the grand theft to petit theft.

The State was required to prove that the value of the stolen property at the time of the theft was $300 or more. See § 812.014(2)(c)(l), Fla. Stat. (2002); Pickett v. State, 839 So.2d 860, 861 (Fla. 2d DCA 2003). “Value may be established by direct testimony of fair market value or through evidence of the original market cost of the property, the manner in which the items were used, the condition and quality of the items, and the percentage of depreciation of the items since their purchase.” Pickett, 839 So.2d at 861-62.

The victim of the theft testified that her home was broken into and numerous items were taken, including a DVD player, computers, a Sony PlayStation 2, video games, jewelry, matchbox cars, baseball cards, cameras, and children’s toys. She had paid $199.99 for the PlayStation 2 and paid between $14.99 and $39.99 for the various games. She thought she had six or seven games. The matchbox cars ranged in price from 69 cents to 99 cents each and she had 100 cars. No other testimony was adduced concerning the value of the items taken.

Although there was some testimony of the original • cost of some of the items taken, there was no testimony of fair market value, of thé manner in which the items were used, of the condition or quality, nor the percentage of depreciation. A number of cases have been reversed under circumstances similar to these. See Pickett, 839 So.2d 860; Weatherspoon v. State, 419 So.2d 404 (Fla. 2d DCA 1982); Soderman v. State, 844 So.2d 823 (Fla. 5th DCA 2003); I.T. v. State, 796 So.2d 1220 (Fla. 4th DCA 2001); Randolph v. State, 608 So.2d 573 (Fla. 5th DCA 1992). We reject the State’s argument that the description of the items stolen, by their sheer number and type, indicates a value over $300. See Doane v. State, 847 So.2d 1015, 1018 (Fla. 5th DCA 2003).

Reversed and remanded.

NORTHCUTT and. CASANUEVA, JJ., concur. ,


text:
    Warren R. MARTIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1322.
    District Court of Appeal of Florida, Fifth District.
    Feb. 6, 2004.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Attorney General, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm. See Miller v. State, 861 So.2d 1283 (Fla. 5th DCA 2004). As we did in Miller, we certify conflict with Espindola v. State, 855 So.2d 1281 (Fla. 3d DCA 2003).

AFFIRMED; CONFLICT CERTIFIED.

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


author: KIMBALL, J.,

text:
    Phyllis K. Roby DOERR, et al v. MOBIL OIL CORPORATION, et al.
    No. 2004-CC-0190.
    Supreme Court of Louisiana.
    Jan. 20, 2004.
   In Re Mobil Oil Corporation et al; Chalmette Refining L.L.C.—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. C, Nos. 83912; to the Court of Appeal, Fourth Circuit, No. 2004-C-0104

Writ granted.

KIMBALL, J., dissents and assigns reasons.

JOHNSON, J., would deny the writ application.

KIMBALL, J.,

dissenting.

I respectfully dissent. Notwithstanding the ad hoc judge’s failure to properly withdraw from this case, Judge Cresap has been duly elected to preside over the 34th Judicial District Court, Division “C,” for the Parish of St. Bernard, the division in which this case arose. This court’s original order appointing the ad hoc judge was necessary because of impediments that no longer exist. Consequently, the order should be recalled and the case should be heard by the duly elected judge of Division “C” who is ready, willing and able to hear it.

For these reasons, I respectfully dissent.