author: HAZOURI, J.

text:
    Noreen DOWS and Gregory Dows, individually, and in their capacity as natural parents and guardians of Christopher Dows, a minor, Appellants, v. NIKE, INC., The Sports Authority, Inc., and The Sports Authority Florida, Inc., Appellees.
    No. 4D02-695.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.
    Rehearing Denied June 17, 2003.

      Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and Julie A. Hager, Fort Lauderdale, for Appellants.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for Appellees.
   HAZOURI, J.

Noreen Dows and Gregory Dows, individually and in their capacity as natural parents and guardian of Christopher Dows, a minor, (Dows) appeal from an order enforcing a settlement agreement with Nike, Inc., The Sports Authority, Inc. and The Sports Authority Florida, Inc. (Nike). We reverse.

Dows made a claim against Nike for an injury to Christopher’s right foot primarily located in the area of his heel. Dows claimed that Nike had manufactured and sold a defective sneaker, containing a foreign metal object that allegedly caused Christopher to suffer from osteomyelitis to the heel resulting in serious permanent injuries. Prior to filing suit, the parties entered into a presuit mediation agreement. The mediation agreement consisted of a handwritten document that purports to recognize that the value of the claim was dependent upon whether Christopher had ever suffered from osteomyelitis in his heel as a result of the injury and, if so, whether he would require further treatment for osteomyelitis. The mediation agreement established a three-tiered settlement structure that was dependent upon an independent examining physician’s opinions on the nature and prognosis of the injury.

The three scenarios contemplated in the mediation agreement provided that Nike would pay: a) $50,000 in the event that the independent physician determined that Christopher had never suffered from os-teomyelitis at any time; b) $100,000 if the independent physician determined that Christopher suffered from osteomyelitis as a result of the incident and that the osteo-myelitis would not return; and c) $800,000 if the independent physician determined that Christopher continued to have a latent condition of osteomyelitis that required further treatment. This agreement further provided that counsel for Dows and counsel for Nike would enter into a formalized agreement and submit the same for client approval. Over the next several months, the parties drafted, redrafted, and executed a typewritten settlement agreement which was completed and signed by all parties in June of 2000.

The settlement agreement provided that the independent physician would be agreed upon by both parties, given all the records and asked to submit a report on Christopher’s condition in addition to answering specific questions drafted by the parties. Specifically, the settlement agreement provided as follows:

4. The parties will also request the selected physician to respond to specific written questions regarding the condition of the minor child. The parties will agree to the exact question [sic] and their precise phrasing. The questions will include the following areas of inquiry:
(a) Within a reasonable degree of medical probability, did the minor ever suffer from osteomyelitis caused by the incident that occurred on or about August 29,1996?
(b) If the minor child suffered from os-teomyelitis, will he require any further treatment to the injured area within a reasonable degree of medical probability?
5. (a) In the event the elected physician answers in the negative to question 5(a), claimant and his guardian agree to accept Fifty Thousand and no/100 Dollars ($50,000.00) in full and final settlement of this case.
(b) In the event the selected physician answers in the negative to question 5(b), claimant and his guardian agree to accept One Hundred Thousand and no/100 Dollars ($100,000.00) in full and final settlement of the case.
(c) In the event the selected physician answers in the affirmative to question 5(b), claimant and his guardian agree to accept Three Hundred Thousand and No/100 Dollars ($800,000.00) in full and final settlement of all claims.

Nike’s counsel originally proposed that question 4(b) be phrased as follows: “If the minor child suffered from osteomyeli-tis, will he require further treatment in the future within a reasonable degree of medical probability.” However, in a letter dated March 16, 2000, Dows’s counsel requested that question 4(b) be phrased as it appears in the settlement agreement.

Dr. John Delahay was chosen by the parties as the independent physician. After the parties agreed upon the questions to ask the doctor, Nike’s counsel wrote to Dr. Delahay as follows:

Dear Dr. Delahay:
We have previously made arrangements for you to evaluate Christopher Dows in the matter referenced above. The appointment for your independent medical examination is scheduled for July 21, 2000 at 10:30 A.M.
In addition to your independent medical examination findings and opinions, we are asking you to answer the questions set forth below:
(1.) Within a reasonable degree of medical probability, did the minor ever suffer from osteomyelitis caused by the incident that occurred on or about August 29,1996?
(2.) If the minor child suffered from os-teomyelitis, will he require any further treatment to the injured area within a reasonable degree of medical probability?
We would greatly appreciate it if your independent medical examination report would specifically answer those two (2) questions in addition to your other findings and opinions.
Thank you for your cooperation in this regard.
Very truly yours,
/s/ Dennis M. O’Hara

On August 1, 2000, Dr. Delahay issued a report indicating that Christopher had suffered from superficial osteomyelitis, and was left with a bony exostosis as a result of that infection. Dr. Delahay commented that he believed Christopher would “benefit by removal of this bony spur on the Plantar surface of the heel.”

Upon receipt of Dr. Delahay’s report, Dows’s counsel, Gary Gelch, wrote a letter to Nike’s counsel, Dennis O’Hara, dated August 7, 2000, stating in pertinent part:

Based upon Dr. Delahay’s summary, it is clear that he believes Christopher has osteomyelitis as a result of the incident that occurred on or about August 29, 1996. Furthermore, Dr. Delahay states that Christopher will benefit from the surgical removal of the bony spur that is on the heel that was caused by the infection.
Based upon Dr. Delahay’s report, the undersigned and Mrs. Dows, on behalf of her minor son, Christopher, feel that Christopher is entitled to $300,000 pursuant to paragraph 5 of the settlement agreement.
O’Hara responded, via a letter dated August 8, 2000, and expressed some “confusion” as to whether Dr. Delahay’s report adequately answered the questions posed in the letter setting up the medical examination. O’Hara’s letter of August 8, 2000, does not express the nature of his “confusion” but proposed sending another letter to Dr. Delahay in order to eliminate the “confusion.” With Gelch’s agreement, O’Hara sent the following letter dated August 9, 2000, to Dr. Delahay:
Dear Dr. Delahay:
There has been confusion with regard to your August 1, 2000 report concerning Christopher Dows. In order to eliminate this confusion both the family of Christopher Dows and Nike, Inc. request that you answer the following questions in a YES or NO manner. Those specific questions are:
1. Within a reasonable degree of medical probability, did the minor ever suffer from osteomyelitis caused by the incident that occurred on or about August 28,1996?
2. If the minor child suffered from os-teomyelitis, will he require any further treatment to the injured area within a reasonable degree of medical probability?
Would you kindly send the responses to this office with a copy to Attorney Gary Gelch whose address is 350 East Las Olas Boulevard, Suite 1440, Fort Laud-erdale, FL 33301.
Thank you for your cooperation in this regard.
Very truly yours,
Dennis M. O’Hara

Dr. Delahay responded by answering question one “yes” and question two “no,” but qualified his answer to question two with a parenthetical which stated “not for osteomyelitis, that is cured.” Mrs. Dows subsequently faxed a letter to Dr. Delahay, seeking clarification to his answer to question two. The letter stated: “We are not asking if further treatment of osteomyeli-tis is required, we are asking if any further treatment to the injured area is required within a reasonable degree of medical probability.” Dr. Delahay responded to the letter by answering “no” to question two without any reference to further treatment or removal of the bony spur on the Plantar surface of Christopher’s heel.

Based upon Dr. Delahay’s response to O’Hara’s letter of August 8, 2000, and his response to Mrs. Dows’s subsequent fax, Nike contended that Dows was entitled to only $100,000 in settlement of the claim. However, Dows insisted that the settlement agreement was clear that if Christopher needed any further treatment to the injured area, Nike was obligated to pay $800,000. The parties were unable to agree as to the correct interpretation of their settlement agreement. Thereafter, Dows filed suit against Nike for the personal injuries sustained by Christopher as a result of the incident of August 29, 1996. Nike filed an answer which included inter alia the affirmative defense that the claim was barred by the settlement between the parties as to all claims asserted by Dows.

Both Dows and Nike filed motions to compel and/or motions to enforce settlement. Prior to the hearing on the motion to enforce settlement, Dows took Dr. Dela-hay’s deposition. The deposition clearly reflects that based upon the medical records and the physical examination of Christopher, within a reasonable degree of medical probability: Christopher did, in fact, have osteomyelitis as a result of the incident of August 29, 1996; the osteo-myelitis is now cured and not probable to cause him any problems in the future; but, as a result of the osteomyelitis, he will require further treatment to the injured area because of the bony spur which formed in the injured area.

Both sides contended that there was no ambiguity in the settlement agreement, and therefore it should be enforced. However, each side argued that they should prevail based on their interpretation of the plain meaning of the settlement agreement. Nike argued that Dows was only entitled to $100,000 because Dr. Delahay had answered the question that was a product of paragraph 4(a) of the settlement agreement “yes” and in response to the question that was a product of 4(b), Dr. Delahay had' answered that the osteo-myelitis was cured and that Christopher did not need further treatment for osteo-myelitis. Dows argued, on the other hand, that Dr. Delahay had unequivocally answered the question prompted by paragraph 4(b) of the settlement agreement in the affirmative and determined within a reasonable degree of medical probability that Christopher would require further treatment to the injured area and that the “further treatment required” was not dependent upon a continuation of osteomyeli-tis. The trial court agreed with the position taken by Nike and entered a final order, on February 12, 2002, enforcing settlement in the amount of $100,000. In its final order, the trial court found as follows:

The settlement agreement between the parties is clear and unambiguous. The parties have received the answer of Dr. Delahay to the questions presented him, with the answer to question 4(b) being “NO.” The answers of Dr. Delahay to the two questions posed him control the matter of settlement between the parties. The court further finds that Dr. Delahay was agreed to by all parties, and that the plaintiff, Mrs. Dows, specifically asked for clarification of his original response, which clarification was an unqualified “NO” answer to question 4(b).

Dows contends that the trial court erred by enforcing the settlement agreement requiring Nike to pay $100,000 rather than $300,000. We agree.

Construction of a contract is a matter of law, so an appellate court is free to reassess the contract and arrive at a conclusion different from the trial court. Therefore, we may consider de novo whether the contract terms are unambiguous. See Sugar Cane Growers Coop. of Fla. Inc. v. Pinnock, 735 So.2d 530, 534-35 (Fla. 4th DCA 1999). It is fundamental that where a contract is clear and unambiguous in its terms, the court may not give those terms any meaning beyond the plain meaning of the words contained therein. See Burns v. Barfield, 732 So.2d 1202, 1205 (Fla. 4th DCA 1999). Where the terms are unambiguous, the parties’ intent must be discerned from the four corners of the document. Id.; see also Barakat v. Broward County Hous. Auth., 771 So.2d 1193, 1194 (Fla. 4th DCA 2000). In the absence of ambiguity, the language itself is the best evidence of the parties’ intent and the plain meaning controls. See Barakat, 771 So.2d at 1194.

In Barakat, this court reviewed the applicable portions of the BCHA’s Resolution dealing with termination and severance pay of a County housing authority employee, and determined that the employer could not terminate the employee without cause. If terminated, the employee was entitled to severance pay in the amount due, as if the contract had run its full length. In reversing the trial court’s final judgment in favor of the employer, this court concluded the trial court’s finding that the employee was not entitled to severance pay was directly contrary to the plain language of the Resolution, reasoning:

It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain. Dickerson Florida Inc. v. McPeek, 651 So.2d 186, 187 (Fla. 4th DCA 1995). A fundamental tenet of contract law is that parties are free to contract, even when one side negotiates a harsh bargain. Green v. Life & Health of Am., 704 So.2d 1386, 1391 (Fla.1998). Had the BCHA wanted to provide for severance pay only when Barakat was terminated without cause, it could have made that a requirement in the Resolution.

Id. at 1195.

In the instant case, the two questions the parties asked Dr. Delahay to answer were:

(1.) Within a reasonable degree of medical probability, did the minor ever suffer from osteomyelitis caused by the incident that occurred on or about August 29, 1996?;
(2.) If the minor child suffered from osteomyelitis, will he require any further treatment to the injured area within a reasonable degree of medical probability? (emphasis added).

The definition of “any,” as the third district explained in Acceleration National Service Corp. v. Brickell Financial Services Motor Club, Inc., 541 So.2d 738, 739 (Fla. 3rd DCA 1989), means “one or another without restriction or exception;” often synonymous with “either,” “every” or “all.” The questions above clearly demonstrate that the parties wanted to know if the minor ever suffered from osteomyelitis caused by the incident, i.e., from the point of the injury until the date of Dr. Dela-hay’s examination and, assuming that the minor child did suffer from osteomyelitis at some point in the past, would there ever be a need for any future treatment to the area that was injured. This was “without restriction or exception.”

It is simply not reasonable to read a limitation into question two that the future treatment sought by the question was restricted to future treatment for osteomyel-itis only. Had the defendants wanted to restrict the higher settlement figure to the child’s need for future treatment for osteo-myelitis only, they could have easily inserted such a limitation into the Settlement Agreement. Certainly, if such limitation were meant, the parties could have specifically inserted the limiting words, “will he require any further treatment for osteo-myelitis.” Instead, the parties simply asked for a “report” regarding the injury, causation and future treatment. Dr. Dela-hay furnished a report, answering all of •those questions. He unequivocally agreed that Christopher would likely require surgery on his heel for the exostosis, a secondary condition to the osteomyelitis.

In seeking to enforce the settlement, defendants provided the trial court with the parties’ handwritten mediation agreement in an effort to demonstrate that the parties intended to impose this limitation on the future treatment question as noted in paragraph five of defendants’ Motion to Compel and/or Motion to Enforce Settlement:

The paramount issue of concern was whether the Plaintiff ever had osteo-myelitis and if so, whether the osteo-myelitis had resolved, or in the alternative, would require ongoing treatment for an osteomyelitic condition.

By the plain language of the initial agreement, however, it is clear that the selected physician would answer mutually agreeable questions the parties would draft at a later date.

Settlement agreements are not considered final when the record establishes the parties’ intent to take further action prior to the completion of a binding agreement. See Williams v. Ingram, 605 So.2d 890, 893 (Fla. 1st DCA 1992). Where essential terms of an agreement remain open, and subject to future negotiation, there can be no enforceable contract. See Suggs v. Defranco’s, Inc., 626 So.2d 1100, 1101 (Fla. 1st DCA 1993). The handwritten mediation document evinced the parties agreement to agree. It also clearly evinced the parties’ intent to take further action prior to completing the binding agreement. As such, there was clearly no enforceable settlement at the time of mediation. See Williams, 605 So.2d at 893. The agreement did not become final and enforceable until the parties completed their negotiations on the language of the settlement questions and reduced them to writing in the final agreement. The subsequent negotiations, and the final agreement superceded the “conceptual settlement” achieved during mediation. Therefore, the pre-suit mediation agreement is not the controlling document for this court’s consideration.

In enforcing the low end of this settlement, the trial judge advised that it considered the settlement agreement to go beyond the August 1st report and included the answers given by the doctor to the questions that the parties asked of him (i.e., in the letters dated August 9th and 14th). The trial court explained:

Each time, the doctor has responded and answered no. It’s my understanding by the parties that it’s the answer to those questions, as opposed to anything else, that may be in a report or anything else that may be said that was going to determine that acceptance of which the settlement agreement was to be imposed by the parties.
I also specifically find that together, you all selected the doctor that was used and I think that that’s important in the determination and acceptance as opposed to someone saying that the doctor didn’t understand. It was this doctor that was agreed to by all parties, also by the plaintiffs, with or without counsel, and however it was drawn up or however it was done, again, it specifically asked for clarification that the plaintiffs are asking this court to render today and the doctor, once again, circled no, so I find that the answer to question number two, because apparently there is no question one, it is clearly no by the doctor, which means that I find the settlement agreement enforceable. (Emphasis added).

While the parties agreed to be bound by the answers to the specific questions delineated in the settlement agreement, the plain language of question two simply asked that if Christopher had suffered from osteomyelitis, would he require any further treatment to the injured area, i.e. his heel. Dr. Delahay plainly answered that question “yes.” It was only upon reinterpreting the meaning of the second question, as if Christopher would require future treatment only for osteomyelitis, that he answered the question “no.”

When Dr. Delahay responded to the August 8th and August 9th letters from the respective parties, he felt obligated to give a qualified answer to question two which asked: “If the minor child suffered from osteomyelitis, will he require any further treatment to the injured area within a reasonable degree of medical probability?” Dr. Delahay responded “no” but then wrote in parentheses, “not for osteomyeli-tis, that is cured.” Then, a week later, on August 14th, Dr. Delahay simply answered question two with an unequivocal “no.” While Dr. Delahay admitted that Christopher was likely to require additional treatment for his heel, he subsequently answered that Christopher would not need future treatment because the child at the time of examination did not suffer from osteomyelitis, and therefore would not require future treatment specifically for os-teomyelitis. In Dr. Delahay’s deposition, he stated that he was told by Nike’s counsel that he “could not qualify [his] response,” and “was put in [a] box” regarding his answer. Placing the doctor in a box was a unilateral modification to the settlement agreement.

The unilateral modification of á contract is unenforceable. See Levinson v. Carnival Corp., 725 So.2d 1160, 1162 (Fla. 3d DCA 1998). Any subsequent modification requires consent and a meeting of the minds of the parties to the contract whose rights or responsibilities are sought to be affected by the modification. Id; see also Binninger v. Hutchinson, 355 So.2d 863, 865 (Fla. 1st DCA 1978). Dr. Delahay was not a signatory to the settlement agreement and, therefore, his interpretation or reinterpretation on what was meant to be inquired about in question two is irrelevant. Furthermore, Dows never agreed that O’Hara’s desire to clear up his “confusion” concerning Dr. Delahay’s report of August 1, 2000, would in any way alter or amend the settlement agreement.

We, therefore, find the trial court erred' in compelling the $100,000 settlement and reverse the final order and direct the trial court to enter an order directing Nike to pay $300,000 to the Dows.

STONE and GROSS, JJ., concur.

      . Osteomyelitis is an infection of the bone.

      . The parties agree that paragraph 5 has a typographical error in that it should refer to 4(a) and 4(b).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alex COOKSHOT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-205.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied June 19, 2003.
    Alex Cookshot, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

This is an appeal from an order denying a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Although the clerk of the circuit court could not locate the notice of appeal which appellant filed in October 2002, we received a copy of the notice of appeal and appellant’s initial brief on October 15, 2002. The notice was filed within thirty days of the order being appealed. Therefore, even without the notice being sent from the clerk of the circuit court, we deem the copy of the notice as the institution of proceedings, transfer the same to the circuit court, see Fla. R.App. P. 9.040(b)(1), and deem appellant’s appeal timely filed.

On the merits, appellant claims that his sentence is illegal under State v. Thompson, 750 So.2d 643, 649 (Fla.1999), which sustained a constitutional single subject challenge to the violent career criminal provisions enacted by chapter 95-182. However, appellant was not sentenced as a violent career criminal but as a habitual felony offender. The supreme court declared only those portions of section 775.084, Florida Statutes (1995), enacted in chapter 95-182, as being unconstitutional, not the previously enacted portions. Therefore, Thompson had no effect on appellant’s sentence. See Tiger v. State, 764 So.2d 824, 824 (Fla. 4th DCA 2000).

Affirmed.

GUNTHER, WARNER and STEVENSON, JJ., concur.


text:
    James MARX, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2473.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied June 19, 2003.
    Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Koczwara, 837 So.2d 591 (Fla. 2d DCA 2003).

KLEIN, SHAHOOD and GROSS, JJ., concur.


text:
    Raymond John ELLIOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2751.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Raymond John Elliott, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to petitioner seeking habeas relief in the circuit court of the county in which he is incarcerated. See Magnus v. State, 738 So.2d 446 (Fla. 4th DCA 1999).

SHAHOOD, HAZOURI and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    Joseph S. FABRIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-6.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied June 17, 2008.
    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.
   KLEIN, J.

Appellant was convicted of aggravated battery with a deadly weapon, but argues that the trial court erred in restricting his impeachment of the key witness. We reverse.

Appellant and the victim, who had been dating, went out for dinner and drinks. The victim, who was taking two antidepressants and a mood stabilizer, had three screwdrivers and two beers. When appellant drove the victim home about 5:30 A.M. they had a heated argument after which he apparently pulled her out of the car onto the pavement. While he was driving away she was struck by his car and injured. The primary issue at trial was whether appellant had intentionally struck her or if she had stepped in front of the car. The theory of defense was that the victim had become intoxicated and violent as a result of the alcohol and medicine.

The victim admitted on direct examination that she had a pending charge against her for battery and criminal mischief. The trial court ruled, however, that appellant could not cross-examine her about the details from which that charge arose, which involved a violent confrontation with a different man while she was intoxicated.

Appellant was attempting to cross-examine the victim about the prior incident to show that she had a propensity to be violent while on the medicine and alcohol, and also to impeach her testimony in this trial that she never drank alcohol to excess while she was on her medication. The trial court may have interpreted the defense s argument as involving only propensity and, if that had been the only ground, we would affirm. Appellant also argued, however, that he was entitled to impeach her denial that she had never abused alcohol while on her medication. We agree with the appellant that this requires reversal. The only eyewitnesses were the victim and the appellant, and the victim’s credibility was of crucial importance. Reversed.

POLEN, C.J., and GROSS, J., concur.


text:
    Victor William PUNALES, Appellant, v. Heather Ann PUNALES, Appellee.
    Nos. 4D01-4750, 4D02-2120.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2003.
    Rehearing Denied June 11, 2003.
    Leon R. Margules of Entin, Margules & Della Fera, P.A., Fort Lauderdale, for appellant.
    Gary S. Israel, West Palm Beach, for appellee.
   PER CURIAM.

Victor and Heather Puñales sought the dissolution of their marriage in the Fifteenth Judicial Circuit. Judge Ronald Alvarez presided over the trial. A Final Judgment of Dissolution of Marriage was entered, but due to Judge Alvarez’s unavailability, the judgment was signed by Senior Judge Howard H. Harrison. Judge Harrison did not hear evidence in the case and apparently did not review evidence or transcripts before entering the judgment.

Generally, “a successor judge may not enter an order or judgment based upon evidence heard by the predecessor.” Beattie v. Beattie, 536 So.2d 1078, 1079 (Fla. 4th DCA 1988) (citations omitted). A stipulation between the parties allowing the successor judge to act may overcome this presumption. Smith v. Silberman, 586 So.2d 467, 468 (Fla. 3d DCA 1991) (citations omitted). Furthermore, even if a proposed judgment were prepared by the predecessor judge, the successor judge could not sign and enter the judgment without hearing the evidence. Hartney v. Piedmont Tech., Inc., 814 So.2d 1217, 1218 (Fla. 1st DCA 2002) (citation omitted).

There is no evidence that the parties signed a stipulation in this case allowing Judge Harrison to enter the Final Judgment of Dissolution of Marriage. Additionally, even if Judge Alvarez drafted the judgment, Judge Harrison could not sign it without first hearing all of the evidence. Therefore, the general rule applies, and Judge Harrison erred in entering a final judgment in this case.

In conclusion, due to the deficiency in the judgment, this case must be reversed and remanded.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

POLEN, C.J., GUNTHER and SHAHOOD, JJ., concur.


author: FULMER, Judge.

text:
    Marshall PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1564.
    District Court of Appeal of Florida, Second District.
    May 21, 2003.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

We affirm the trial court’s order denying Mr. Porter’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. On appeal, Mr. Porter argues for the first time that his sentences violate the plea agreement. This affirmance is without prejudice to any right Mr. Porter may have to raise this claim in the trial court.

Affirmed.

DAVIS and KELLY, JJ., Concur.


author: SHAHOOD, J.

text:
    R.R., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1898.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.
    Rehearing Denied June 20, 2003.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, R.R., appeals the Disposition Order entered against him on the charge of possession of marijuana less than 20 grams. Specifically, appellant urges that the trial court erred in denying his motion for judgment of acquittal after the state failed to introduce into evidence the alleged controlled substance. We reverse and remand with directions that appellant’s conviction be vacated and appellant be discharged.

During a random vehicle search, at Wellington High School, a canine alerted to the presence of drugs in appellant’s vehicle. Appellant was summoned to the parking lot and consented to a search of his vehicle. The smell of burnt marijuana was noticeable when the door was opened. The search yielded a plastic cigar case containing a brown leafy substance, and rolling papers. In addition, there was, what appeared to be, residue of marijuana on the armrest of the door and the floor board. A field test on the brown, leafy substance confirmed that it was marijuana. As a result, appellant was arrested.

At trial, the state attempted to have a chemist testify, based upon a report containing appellant’s name, that the substance tested positive for marijuana and what the amount was. The court sustained a defense objection to the testimony based on the fact that there was no physical evidence introduced.

After the state rested, having presented only the testimony of the arresting officer, defense counsel moved for judgment of acquittal. She argued that, despite the officer’s testimony that he smelled marijuana and the evidence that the substance field tested positive for marijuana, appellant was entitled to judgment of acquittal based on the State’s failure to produce the physical evidence, the marijuana. The court denied that motion, as well as a renewed motion at the close of the case.

Appellant argues here that the trial court erred in denying his motion for judgment of acquittal based on the state’s failure to introduce the marijuana into evidence where there was no evidence that it was not available. When a defendant is charged with possession of a controlled substance, that substance must be introduced into evidence if it is available. G.E.G. v. State, 417 So.2d 975, 977 (Fla.1982). An exception to the rule is if it was unavoidably destroyed during testing. Id. at 977 n. 2. When the state fails to introduce the controlled substance into evidence, it has the burden of proving that the substance was unavoidably destroyed during testing. See Marrisette v. State, 780 So.2d 1020, 1021 (Fla. 4th DCA 2001). When the state fails to meet this burden, judgment of acquittal should be entered on the possession charge. See id.

Accordingly, we reverse and remand with directions that appellant’s conviction be vacated and that he be discharged.

REVERSED AND REMANDED WITH DIRECTIONS.

GUNTHER and TAYLOR, JJ., concur.


text:
    Dr. Robert MONTANO, M.D., Appellant, v. STATE of Florida DEPARTMENT OF HEALTH, Appellee.
    No. 4D02-4106.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.
    K.P. Jones of Jones '& Wolfe, P.A., Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Fort Lauder-dale, for appellee.
   PER CURIAM.

Because Appellant did not recover a judgment in the case below, we reverse the award of costs. § 57.041, Fla. Stat. (2002) (“The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment .... ”). Regarding the other issues on appeal, we affirm.

AFFIRMED in part, REVERSED in part.

GUNTHER, KLEIN and TAYLOR, JJ., concur.


author: VILLANTI, Judge.

text:
    William J. PLOTT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3088.
    District Court of Appeal of Florida, Second District.
    May 23, 2003.

      William J. Plott, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Seig, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

William Plott challenges the trial court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of relief on grounds two through five and ground seven without comment. We also affirm the denial of relief as to ground six because the testimony presented at the evidentiary hearing on this ground was sufficient to establish that Plott’s trial counsel was not ineffective as alleged. However, because the allegations in ground one of Plott’s motion were facially sufficient and not procedurally barred, we reverse and remand for an evidentiary hearing on that ground.

In 1997, Plott was convicted of one count of aggravated assault with a firearm and four counts of armed sexual battery. On direct appeal from that conviction, Plott’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Plott filed a pro se brief arguing that the trial court erred by not holding an evidentiary hearing on his motion to suppress the victim’s identification of Plott as her assailant. This court affirmed Plott’s convictions and sentences without opinion. Plott v. State, 731 So.2d 1285 (Fla. 2d DCA 1999) (table).

After mandate issued from this court, Plott filed his rule 3.850 motion raising seven grounds for relief. In ground one of the motion, Plott alleged that his trial counsel, Mr. Schaefer, was ineffective for fading to adequately prepare for the hearing on the motion to suppress. Plott’s motion alleged that the victim gave an affidavit which read in part:

On September 17th Det. Ribuchuk contacted me to set an apt. [sic] to look at pictures of suspects, we made an apt. [sic] for the 18th @ 8:30 am. On the morning of the 18th as I was reading the newspaper and read a report of a man being arrested in a separate charge and noticed many similarities to my case— for instance his name being William and an alias of Jason — and my attacker has referred to himself as ‘Willie” at one point — and then at another time as Jason — and the fact that he had used a knife on his victim when I got out of his Jeep at my hotel I. had observed a knife beside my seat on the floor — a very long bladed one that looked to be a filet knife — [a]nyway when shown the group of six photos, I was positive photo # 6 was my attacker and identified him as such....

Based on the contents of this affidavit, Mr. Schaefer filed a motion to suppress the victim’s identification of Plott on the ground that the identification was tainted because the victim had seen the article and Plott’s photo in the newspaper before she made the identification. In anticipation of the hearing on this motion, Mr. Schaefer obtained the September 18,1996, edition of the Bradenton Herald. However, despite the fact that Plott’s photo had also appeared in the September 16 and 17 editions of the Bradenton Herald, Mr. Schae-fer did not obtain these newspapers.

According to Plott’s rule 3.850 motion, immediately before the hearing on the motion to suppress, Mr. Schaefer noticed for the first time that the victim’s affidavit was dated and notarized on September 17 rather than September 18. Therefore, if the notary stamp was correct, the victim’s affidavit was incorrect as to the date she saw the article and photo. Thus, if the remainder of the affidavit was correct, the victim would have seen the article and Plott’s photo in either the September 16 or 17 editions of the Bradenton Herald.

When Mr. Schaefer brought this discrepancy to the court’s attention before the start of the hearing, the State told the trial court that, contrary to the substance of the victim’s affidavit, she had identified Plott on September 17, the date of the notary stamp. The State argued that this fact made the article and photo in the September 18 paper irrelevant. In response, Mr. Schaefer pointed out that the victim could have seen the photo on either September 16 or 17. However, when Mr. Schaefer could produce nothing to show that Plott’s photo was in any paper other than the September 18 edition, the trial court denied the motion to suppress without hearing any evidence. In his rule 3.850 motion, Plott argued that Mr. Schae-fer was ineffective for failing to obtain all of the newspaper articles and for failing to bring them to the hearing.

In summarily denying relief on this ground, the trial court held that this issue was procedurally barred because it was raised on direct appeal. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (holding that claims raised on direct appeal are procedurally barred from consideration in a rule 3.850 motion). However, the issue raised on direct appeal was the trial court’s failure to hold an evidentiary hearing, not counsel’s failure to prepare for the hearing. Therefore, contrary to the trial court’s ruling, this issue was not raised on direct appeal and is not procedurally barred.

In support of the trial court’s ruling, the State argues that Plott’s motion was facially insufficient because he submitted no proof of his claim that his picture was in the September 16 and 17 editions of the Bradenton Herald. However, Plott is not required to submit proof of his claim with his rule 3.850 motion. Rather, Plott must simply make facially sufficient factual allegations, which he did in this ground.

Because the issue raised in ground one is not procedurally barred and because Plott’s allegations in that ground are facially sufficient, we reverse and remand for an evidentiary hearing on that ground only. We affirm the trial court’s order in all other respects.

Affirmed in part; reversed in part and remanded for an evidentiary hearing.

CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge, concur.


author:
PER CURIAM.
      ERVIN, J.,

text:
    Broderick MONGO, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3626.
    District Court of Appeal of Florida, First District.
    May 23, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the summary denial of his motion for post conviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Appellant raised two bases for post conviction relief. We determine one of the issues was properly addressed by the trial court and affirm without further discussion. The second issue is whether appellant’s plea was involuntary due to ineffective assistance of counsel because counsel failed to object to an unnecessary substitution of judges at the time of sentencing. This issue was not addressed by the trial court. We, nevertheless, affirm because we ascertain from the appellate record that appellant’s petition fails to sufficiently allege the prejudicial effect of counsel’s ineffectiveness on appellant’s plea. Roulhac v. State, 746 So.2d 1207 (Fla. 1st DCA 1999).

Appellant entered a plea of nolo contendere to a charge of resisting an officer with violence and battery upon a law enforcement officer. The appellant was sentenced within the terms outlined by the plea agreement to five years’ imprisonment' to run consecutively with the sentence he was already serving. According to allegations contained within appellant’s motion for post conviction relief, he was sentenced by a different judge from the one who accepted the plea agreement. No objection was raised to the procedure at that time and no direct appeal was filed. The relief sought by appellant’s motion is to allow him to withdraw his negotiated plea. We find no basis for the court to grant this relief.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) the Supreme Court of the United States set forth the standards for courts in evaluating claims of ineffective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

This standard applies when the case has been tried and has been reiterated by Florida courts many times. See, e.g., Thompson v. State, 759 So.2d 650 (Fla.2000).

This standard has been applied in the context of the entry of a plea to require the defendant to show that he was prejudiced by entering the guilty plea. See State v. Seraphin, 818 So.2d 485 (Fla.2002). Failure to sufficiently allege the prejudice prong will result in affirmance of summary dismissals.

In the instant case, appellant has failed to demonstrate any prejudice related to the entry of his plea: The motion in the present case alleges no mistaken advice by defense counsel, only that appellant “would not have plead[ed] to the charges had he known that Judge Smith was not going to be imposing the sentence for the court.” This falls short. The motion contains no well-pleaded allegation that the plea was not given freely or knowingly. Taking what is alleged as true, see Haynes v. State, 729 So.2d 498, 499 (Fla. 1st DCA 1999) (“[T]he reviewing court must assume the truth of the allegations set forth in the motion and determine from that premise whether the prisoner has presented a pri-ma facie claim for relief.”), the defendant’s unwarranted assumption about who the sentencing judge would be did not render the plea the product of duress, or involuntary in any way.

Nor is a plea entered on the assumption that a particular judge will pronounce sentence unknowing in any way material to the plea. In the nature of things, a pleading defendant has no assurance that a particular judge will be alive and well when time comes for sentencing. As a matter of law, appellant’s claim that trial counsel’s performance after the plea was entered was deficient for failure to object to a successor judge at sentencing can go to the validity only of the sentence, not the plea. The trial court properly denied the relief appellant sought, viz., to be “allow[ed] ... to withdraw the ... plea.”

The judgment of the trial court is affirmed.

WOLF and BENTON, JJ., concur; ERVIN, J., concurs and dissents with opinion.

ERVIN, J.,

concurring and dissenting.

I join the majority in its disposition of appellant’s ineffective assistance of counsel claim relating to the minimum mandatory sentence; however, I cannot agree to affirm the summary denial of appellant’s ineffectiveness claim relating to the substitute judge, and for that reason I dissent.

As explained in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to challenges to guilty pleas based on ineffective assistance of counsel. The majority does not discuss the first prong, pertaining to counsel’s deficient conduct, but I conclude that appellant adequately satisfied this requirement by alleging that his lawyer failed to object to the substitution of judges at sentencing in the absence of any explanation as to why a substitute judge was required. See Fla. R.Crim. P. 3.700(c); Lawley v. State, 377 So.2d 824 (Fla. 1st DCA 1979); Clemons v. State, 816 So.2d 1180 (Fla. 2d DCA 2002).

As for the second prong relating to prejudice, the focus of the inquiry is on “whether counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Hill, 474 U.S. at 59, 106 S.Ct. 366. Accord State v. Seraphin, 818 So.2d 485, 491 (Fla.2002) (concluding that, in situations involving counsel’s alleged failure to inform the defendant about the deportation consequences of a plea, a defendant need show only that “he or she would not have entered the plea”); Mason v. State, 742 So.2d 370, 371 (Fla. 1st DCA 1999) (quoting Hill as stating that the prejudice prong “is satisfied by an allegation ‘that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial’ ”); Kasper v. State, 828 So.2d 1047, 1048 (Fla. 1st DCA 2002) (concluding that defendant, who had entered plea based on misadvice regarding the statutory maximum sentence, established prejudice by alleging he would have gone to trial but for the ineffectiveness of counsel).

The majority has disposed of this case based upon its conclusion that appellant “failed to demonstrate any prejudice related to the entry of his plea.” To the contrary, I conclude that appellant’s allegations are sufficient to warrant something other than the summary denial of his motion, whether by an evidentiary hearing or the attachment of additional records. Appellant alleged that Judge Smith presided at the time he changed his plea from guilty to not guilty, but that his successor, Judge Lott, who may or may not have possessed knowledge of his case, presided at sentencing. He alleged also that defense counsel failed to object to his being sentenced by Judge Lott without a showing of necessity or emergency warranting the substitution of judges. Appellant concluded by stating “he would not have plead[ed] to the charges had he known that Judge Smith was not going to be impossing [sic] the sentence for the court; but he would, instead, have gone to trial.”’ Appellant requested that he be allowed to withdraw the involuntary plea.

The above allegations, in my judgment, are sufficient to satisfy the prejudice prong of the Strickland test, as it applies to requests to withdraw involuntary pleas based upon ineffective assistance of counsel. By stating that he would not have entered a plea had he known Judge Smith would not sentence him, and that he would have taken his chances on the charges with a jury rather than face sentencing by Judge Lott based upon a plea, appellant has made out a prima facie claim that counsel’s deficient performance affected the outcome of the plea process under Hill, Seraphin, Mason and Kasper

      . If a defendant properly objects to use of a successor judge, thereby preserving the error for appeal, the defendant is entitled to relief on direct appeal. See Madrigal v. State, 683 So.2d 1093 (Fla. 4th DCA 1996). Even on direct appeal, however, the correct remedy is resentencing by the original judge or an explanation of why that judge could not preside, not withdrawal of the plea as sought by appellant in the instant case. Clemons v. State, 816 So.2d 1180 (Fla. 2d DCA 2002); Lawley v. State, 377 So.2d 824 (Fla. 1st DCA 1979).

      . The state in fact concedes error as to this issue and agrees that reversal and remand are required.


author: NORTHCUTT, Judge.

text:
    Scotty D. BOZEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-832.
    District Court of Appeal of Florida, Second District.
    May 23, 2003.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Senior Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Pursuant to a negotiated plea agreement, Scotty Bozeman pleaded no contest to seventeen counts charged in five cases. Under the agreement, he received three fifteen-year Prison Releasee Reoffender sentences for one count of aggravated assault of a law enforcement officer with a deadly weapon and for two counts of burglary of a dwelling, and five-year sentences for the remaining felony counts, all concurrent. Bozeman’s appellate counsel filed an Anders brief suggesting the possibility of sentencing error in connection with the PRR sentences.

The burglary of a dwelling charged in count one of case number CF00-07225 was committed on November 13, 2000, when a PRR sentence could be imposed only if the burgled dwelling was occupied. See State v. Huggins, 802 So.2d 276 (Fla.2001). The record contains no evidence that the dwelling was occupied, and the State advises that it does not object to striking the PRR designation as to that count.

Accordingly, we reverse and remand with instructions to strike the PRR designation from the sentence imposed for count one of case number CF00-07225. Otherwise, we affirm.

STRINGER and COVINGTON, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: COVINGTON, Judge.

text:
    Johnny Edward BRANHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-157.
    District Court of Appeal of Florida, Second District.
    May 28, 2003.
   COVINGTON, Judge.

Johnny Edward Branham challenges the summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the motion is not conclusively refuted by the record attachments, we reverse.

Branham pleaded guilty to four counts of armed robbery. Branham confessed to the crimes after a poiice interrogation. Branham claims that counsel was ineffective for failing to move to suppress this confession when counsel knew that it was obtained through threats and coercion. The trial court denied the motion and attached a transcript of Branham’s taped confession. This transcript indicates that Branham was questioned by police for almost five hours before the tape recorder was turned on.

Branham’s claim is not conclusively refuted by the transcript of his confession. If Branham’s attorney had filed a motion to suppress, the trial court would have been required to make a determination on the issue of whether Branham was coerced or threatened during the five hours of questioning prior to the tape recording. “Rule 3.850 explicitly requires that the record ‘conclusively’ rebut an otherwise cognizable claim if it is to be denied without a hearing.” State v. Leroux, 689 So.2d 235, 237 (Fla.1996); see also Flowers v. State, 793 So.2d 36 (Fla. 2d DCA 2001).

Accordingly, we reverse the summary denial and remand for the trial court to either attach portions of the record that conclusively refute Branham’s allegations or hold an evidentiary hearing.

Reversed and remanded.

STRINGER and CANADY, JJ., Concur.


text:
    Sandra GRAHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5456.
    District Court of Appeal of Florida, Second District.
    May 28, 2003.
   PER CURIAM.

Sandra Graham appeals the dismissal of her motion for postconviction relief seeking jail time credit filed pursuant to Florida Rule of Criminal Procedure 3.850. Previously, in Graham v. State, 825 So.2d 492 (Fla. 2d DCA 2002), this court affirmed the denial of Graham’s rule 3.800(a) motion seeking jail credit “without prejudice to any right Graham may have to file a timely motion pursuant to Florida Rule of Criminal Procedure 3.850 if she wishes to challenge the factual accuracy of the trial court’s records concerning the dates she was in jail.” Id. Graham did file a timely rule 3.850 motion, but the trial court incorrectly dismissed Graham’s motion as successive. We reverse and remand for the trial court to consider Graham’s motion on its merits.

We note that, as filed, Graham’s rule 3.850 motion does not contain detailed allegations challenging the factual accuracy of the records concerning the dates she was in jail. However, her sworn brief filed with this court does. A timely-filed rule 3.850 motion, prior to the trial court’s disposition of the motion, may be amended with sworn allegations relevant to the issue or issues raised in the motion, even after the two-year time period for filing a timely rule 3.850 motion has expired. See Rogers v. State, 782 So.2d 373, 376 n. 7 (Fla.2001) (stating that “the two-year time limitation does not preclude the enlargement of issues raised in a timely-filed initial motion for postconviction relief’); see also Norris v. State, 832 So.2d 969, 970 (Fla. 2d DCA 2002) (stating that “a defendant may amend a rule 3.850 motion if the trial court has not yet ruled on the motion”).

Reversed and remanded.

NORTHCUTT, CASANUEVA, and SALCINES, JJ., concur.


text:
    Wanda KEARNEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1185.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marni A. Bryson, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

Wanda Kearney (“Kearney”) was charged with unlawfully intercepting an oral communication and perjury in an unofficial proceeding. A jury acquitted Kearney of the intercepting charge, but convicted her of the perjury charge. She appeals the perjury conviction on three grounds, only one of which need be addressed.

Kearney was employed as a campus monitor at a high school. Apparently, a teacher filed a complaint against Kearney alleging that she had made some defamatory remarks regarding the teacher’s personal life. As a result, Kearney was called into a conference by one of the assistant principals. Upon leaving this conference, she was upset and allegedly told a colleague that the next time she met with the assistant principal, she was going to tape record the conversation.

Soon thereafter, Kearney was summoned to the office to meet with the principal. She allegedly placed a tape recorder into her waistband before departing for the conference. After the conference, she allegedly played the tape for her colleague. The principal later learned of the tape through the grapevine, and was piqued because she had not given Kearney permission to tape the private conference. The teacher’s complaint along with the alleged taping incident were reported to the school board for review.

Kearney met with a school board investigator regarding both claims. She was questioned under oath and in the presence of her union representative. Kearney denied taping the conversation at this investigatory proceeding, and it is from this denial that the perjury charge stems.

Kearney contends that the perjury conviction should be reversed because the prosecutor improperly commented during closing argument on her invocation of the rights to remain silent and be free from unreasonable searches and seizures. Two comments are at issue. The first comment states:

The Defense says, where’s the tape? The State should present the tape to you. That’s a ridiculous argument, and the reason why it’s a ridiculous argument is because the Defense fully knows well that the State doesn’t have the tape. The Defense fully knows well that there’s something called the Fifth Amendment, self-incrimination, and the Fourth Amendment, the right against illegal searches and seizures.

The second comment is a bit more dramatic in nature:

And that the government can’t just bust down somebody’s door and say, we’re taking everything out of your house. The government can’t just grab somebody by the hand and say, get over here, sit down, you’re going to tell us what we want to know. We can’t do it. We can’t do it.
So the Defense says why doesn’t the government have the tape. We don’t have the tape because it’s not in our possession. Who’s possession is it in? Right there.

This case illustrates another thing the government cannot do, and that is comment on the defendant’s rights to remain silent and be free from unreasonable searches and seizures. In fact, “any comment on, or which is fairly susceptible of being interpreted as referring to, a defendant’s failure to testify is error and strongly discouraged.” State v. Marshall, 476 So.2d 150, 153 (Fla.1985). Under this rubric, this Court has repeatedly demonstrated a low tolerance for closing argument remarks that even remotely or abstractly comment on the defendant’s right to remain silent. See Anderson v. State, 711 So.2d 230 (Fla. 4th DCA 1998); Smith v. State, 681 So.2d 894 (Fla. 4th DCA 1996); Varona v. State, 674 So.2d 823 (Fla. 4th DCA 1996).

Closing argument remarks on a defendant’s right to be free from unreasonable searches and seizures are not regarded any more favorably. In fact, comments on the Fourth Amendment and Fifth Amendment are considered “constitutional error of the same magnitude.” Gomez v. State, 572 So.2d 952, 952 (Fla. 5th DCA 1991).

In the present case, it is clear that the first comment explicitly highlighted the Fourth and Fifth Amendments as impediments to the prosecution’s ability to produce the tape. The second comment is even more egregious in nature, due to its sheer dramatic effect. This comment cites the constitutional restraints placed on the government as an obstacle to the prosecution of the case, and then points a finger at Kearney for invoking the constitutional protections intended to shield her from governmental abuse. These comments, on their face, are “fairly susceptible” of being read as impermissible comments on the defendant’s constitutional rights.

The State contends, nonetheless, that these remarks were permissible based on the fair reply doctrine. The State cites Broge v. State, 288 So.2d 280 (Fla. 4th DCA 1974), in support of this argument. The charges in Broge stemmed from a riot, and the defense undertook a campaign of argument intended to goad the prosecution into making the fatal error of commenting on the defendant’s constitutional rights. Id. at 281. This Court concluded that prosecutorial comments on the Fifth Amendment were not error in the case, but instead appropriate to balance the implications raised by defense misconduct. Id.

Additionally, the fair reply doctrine is limited in scope. In Hazelwood v. State, 658 So.2d 1241 (Fla. 4th DCA 1995), the prosecutor stated that both parties had subpoena power and suggested that other witnesses existed who would corroborate the State’s case. Id. at 1242. This Court decided that it was not error to explain the subpoena power, but that it was error to go one step further ■ and claim uncalled witnesses would bolster the State’s case. Id.

In the present case, the defense did question the existence of the tape in its closing argument. However, this was to be expected in a case alleging that an illegal tape had been produced, because without the tape, the charge is less convincing. Furthermore, the defense did not pepper its entire argument with repeated statements regarding the whereabouts of the tape that were intended to push the prosecution toward fatal error. Even if this were not the case, and even assuming it was acceptable for the prosecution to explain the function of the Fourth and Fifth Amendments, it was beyond the scope of fair reply to beleaguer the constitutional restraints and protections implicit in any criminal case and then point a finger at Kearney for having a greater appreciation of the Constitution.

Finally, it must be determined whether the wholly impermissible closing argument remarks in this case warrant the reversal of Kearney’s perjury conviction. The “fairly susceptible” rule is subject to harmless error analysis. Marshall, 476 So.2d at 158. The harmless error test as defined in State v. DiGuilio, 491 So.2d 1129 (Fla.1986), provides:

It is clear that comments on silence are high risk errors because there is a substantial likelihood that meaningful comments will vitiate the right to a fair trial by influencing the jury verdict.

Id. at 1136. In determining whether the risky remarks in the present case were harmless, the effect of the remarks on the jury must be considered. Goodwin v. State, 751 So.2d 587, 542 (Fla.1999).

Kearney’s case is a one person said, another person said, scenario. She claims she did not make the tape, one of her colleagues claims she heard the tape, and no one is known to be in possession of the tape. Additionally, because she was acquitted of the intercepting charge, it is clear that the jury did not believe the State presented a case of overwhelming guilt against Kearney in that instance. Yet, for some reason, she was still convicted of perjury for claiming she did not make that very tape. Kearney asserts that this illogical outcome is due to the effects of the prosecutorial comments on her constitutional rights. The jury was presented with an indictment of Kearney’s credibility, because the comments created the impression that she made the tape, perjured herself by denying its existence, and refused to cooperate with the investigation by not delivering the tape. Kear-ney was entitled to assert her constitutional rights, and because it cannot be said with assurance that the impermissible prosecutorial comments did not influence the jury on the perjury charge, the prosecutor’s error in this case cannot be said to be harmless.

In light of the prosecutor’s impermissible comments on Kearney’s Fourth and Fifth Amendment rights, her perjury conviction must be reversed and remanded for a new trial. We affirm all other aspects of this appeal without comment.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR A NEW TRIAL.

GUNTHER, TAYLOR, JJ., and TOBIN, VICTOR, Associate Judge, concur.


text:
    Frederick HUDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-573.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See State v. Lampley, 817 So.2d 989 (Fla. 4th DCA 2002).

STONE, STEVENSON and MAY, JJ., concur.


author: WARNER, J.

text:
    A.G., the natural father of C.G., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D01-3817.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.

      A.G., Sunrise, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

WARNER, J.

Appellant appeals an order denying his motion for relief from a final disposition order in a dependency proceeding. The order was determined to be a disposition order by prior opinion of this court. Because manifest and continuing injustice will occur if our prior opinion is not reconsidered, we conclude that the order was not a disposition order and reverse the trial court’s denial of relief.

This dependency case has made many appearances in our court in the father’s attempt to appeal an order of adjudication of dependency of his child, C.G. See A.G. v. Dep’t of Children & Family Servs., 745 So.2d 1158 (Fla. 4th DCA 2000); A.G. v. Dep’t of Children & Family Servs., 716 So.2d 792 (Fla. 4th DCA 1998). Although this court determined the father’s appeal was untimely from the order of adjudication entered November 21, 1994, see A.G. v. Dep’t of Children & Family Servs., 707 So.2d 972, 972 (Fla. 4th DCA 1998), the supreme court quashed our decision, concluding that the issue of dependency could be appealed either from the entry of the order of adjudication or the entry of the order of disposition. See A.G. v. Dep’t of Children & Family Servs., 731 So.2d 1260, 1261-62 (Fla.1999). On remand, we determined that the order of adjudication also constituted the order of disposition. See A.G., 745 So.2d at 1159. Thus, the appeal was untimely even under the supreme court opinion.

Within a year of the conclusion of all proceedings in our court and petitions for review in the supreme court, appellant filed a motion to vacate the 1994 order as an order of disposition, claiming it was void for lack of notice. He farther alleged that the hearing was not noticed for disposition and that he could not have known that a “disposition” was occurring, triggering his right to appeal. He attached the transcript of the hearing which resulted in the order. The trial court denied relief, stating that the “proper venue” for the motion was in the appellate court. He timely appealed this order.

Having carefully reviewed the transcript of the proceedings in this case, as well as the other filings, we conclude that appellant established a case for relief from the “order of disposition,” which we designated in our prior opinions. This appeal compels us to reconsider the law of the case as established in our prior opinions. Pursuant to A.G., 731 So.2d 1260, we previously held that the adjudication order of November 21, 1994, was also the final “order of disposition,” upon which appellant’s right to appeal the issue of dependency ripened. See A.G., 745 So.2d at 1159.

In Strazzulla v. Hendrick, 177 So.2d 1, 3-4 (Fla.1965), the court considered whether an appellate court had authority to reconsider and reverse a previous ruling that has become the law of the case. In concluding that a court does have limited discretion to reconsider and correct prior rulings, the court stated,

[A]n appellate court should reconsider a point of law previously decided on a former appeal only as a matter of grace, and not as a matter of right; and that an exception to the general rule binding the parties to ‘the law of the case’ at the retrial and at all subsequent proceedings should not be made except in unusual circumstances and for the most cogent reasons — and always, of course, only where ‘manifest injustice’ will result from a strict and rigid adherence to the rule.

Id. at 4.

The second district considered this principle in connection with a motion for relief from judgment in a child adoption case. See In re Adoption of Baby Girl C, 511 So.2d 345 (Fla. 2d DCA 1987). A trial court had denied a petition for adoption which was affirmed on appeal. The adoptive parents filed a motion for relief from judgment on several grounds which the trial court denied. See id. at 348. On appeal from the order denying the motion for relief from judgment, the second district acknowledged that it was not bound absolutely to follow the law of the case, as established by the prior affirmance, if the court considered that to affirm the present appeal would result in manifest injustice, citing to Strazzulla. See id. at 349. However, the court ultimately determined that there would be no manifest injustice in affirming its previous ruling and that to recede from the prior rule would result in a substantive legal rule with which the court did not agree. See id. This case supports the proposition that an appellate court may reconsider its prior ruling on a motion for relief from judgment if, to refuse to do so, would create a manifest injustice.

Our court applied the same rationale in Logue v. Logue, 766 So.2d 313, 314 (Fla. 4th DCA 2000), when reconsidering a child support provision in a final judgment of dissolution previously affirmed on appeal. The issue resurfaced when the husband filed a motion for relief from judgment contending that the court erred in computing his child support obligation. While we noted that ordinarily we would not revisit a judgment which had been affirmed on appeal, we explained that “if the final judgment contained an error that was manifestly unjust, then this court may now rectify that mistake. This is a seldom used but important appellate power.” Id. (citations omitted). We corrected the child support calculations, “[bjecause of the manifest and continuing injustice which would occur” should the court not correct the error. Id. at 315.

The fifth district also exercised its “grace” when it reconsidered a prior order of indirect criminal contempt against a wife which had been affirmed on appeal. See Dolin v. Dolin, 654 So.2d 223 (Fla. 5th DCA 1995). While the wife’s appeal was pending, the husband persuaded the trial court to correct the appealed order to hold the wife in civil contempt of court. After the appellate court affirmed the original order, the husband argued that the appeal of the second order was duplicative because the prior order had been affirmed. See id. at 224-25. Because the prior panel had not considered the propriety of the order of indirect criminal contempt on due process grounds or on failure to follow the rules of criminal procedure, the court decided to address the issue to avoid a manifest injustice. Relying on Strazzulla, therefore, the second panel quashed the prior order of indirect criminal contempt. See id. at 225.

In like manner, we conclude our prior ruling that the order of November 21, 1994, was the final disposition order triggering the father’s right to appeal the order of adjudication was in error and that manifest injustice would continue to occur should it not be corrected. While we described the hearing in 1994 as a disposition hearing, see A.G. v. Dept., 716 So.2d at 794, we have reviewed the transcript and now know that the hearing was not a disposition hearing within the meaning of Florida Rule of Juvenile Procedure 8.340. The hearing actually addressed the status of the mother as to her other children, not C.G. The court did not address any issues of disposition. From the transcript, it is clear that the court expected the Department to do a complete investigation of the children so that the court would know what was in their best interests. The judge stated, “I don’t want to take a guess what’s in their best interests. We’re going to need to know from evidence.” Later, he said to the new investigator assigned to the case, “this lady from HRS has her homework ... Miss Holmes. You’re going to get on this matter, and I think it’s very important, and I’m glad you are.”

The order entered on November 21, 1994, adjudicated all of the children to be dependent. In handwritten language added at the bottom of the order, it stated, “[t]he minor child [C.G.] is placed in the temporary custody of her father [A.G.] under the protective [sic] of HRS.” (Emphasis added). Nowhere in the order is the word “disposition” even used. As appellant noted, this order was more akin to supplying an “alternative pending disposition” as provided in Rule 8.335, than the “final” disposition contemplated in Rule 8.340 and section 39.408(3), Florida Statutes (1993). Section 39.408(4) further provides that the parent “shall be given reasonable notice of all hearings provided for under that section.” ■ (Emphasis added). No notice of a disposition hearing was ever given. In fact, the hearing at which the children were adjudicated dependent was noticed as a “status conference.” The order entered on November 21, 1994, was not the disposition order which would trigger the right to appeal in accordance with the supreme court’s holding in A.G., 781 So.2d at 1261-62.

Based upon these deficiencies, we hold a manifest injustice has occurred in two respects. First, appellant was deprived of the very right of appeal that he fought to establish. The supreme court determined that in a dependency proceeding where “[t]he statutory scheme is ambiguous in terms of alerting those affected as to the need to appeal,” a party may appeal the issue of dependency either from the order of adjudication or from the later disposition order. A.G. v. Dep’t, 731 So.2d at 1261-62. Our previous ruling prevented appellant from exercising his right to appeal, which the supreme court sought to preserve, by our holding that the adjudication order was also a disposition order. We thus deprived appellant of his constitutional right to appeal. See Art. V, § 4(b)(1), Fla. Const. Second, the injustice is continuing, as in Logue, 766 So.2d at 315. Although the Department has long since stopped providing services to appellant and C.G., the trial court continues to retain jurisdiction until C.G. is eighteen. Therefore, the state remains free to reopen this case based upon the order of adjudication sought to be appealed by appellant. Appellant’s arguments as to the correctness of that order are far from frivolous. A cursory review of the order reveals substantial issues as to the validity of the finding that C.G. is a dependent child.

An additional policy reason also supports our reconsideration of our prior rulings. By deeming this ambiguous order as an appealable order of disposition, we are encouraging imprecision in the drafting of such orders which ill serves the individuals involved in the court system. Both now, and at the time of the adjudication in this case, the Juvenile Rules provided forms for orders of adjudication and disposition. See Fla. R. Juv. P. 8.965 and 8.966 (1993). The closer judges adhere to the forms, the clearer it is for the parties to know and understand their rights, including their right to appeal such orders. Parties should not be left guessing when their right to appeal commences.

A.G. has been persistent and sincere in his efforts to reheve himself and his child of the state’s continued presence in their fives. It has been a long road, made longer by our various rulings. For the foregoing reasons, we reconsider the “law of the case” and hold that A.G. is entitled to relief from the order entered on November 21, 1994, to the extent that it was deemed by us to be a disposition order as to C.G., ripe for appeal. No notice was given of any “disposition” proceeding in connection with that order. As the supreme court stated in Rogers v. First National Bank at Winter Park, 232 So.2d 377, 378 (Fla.1970):

When viewed in its totality, the series of events that transpired below call for a liberal application of Rule 1.540(b), especially since it appears that the rules for notice were not complied with. While our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice.

Reversed and remanded for further proceedings.

STEVENSON and SHAHOOD, JJ., concur.

      . Our determination also was inconsistent with our opinion in 1998 in which we held that the appeal from the order of adjudication was untimely. See A.G., 707 So.2d at 972. Had we considered the order as both an order of adjudication and disposition, then we would have ruled the order was untimely as to both. There would have been no need to certify conflict.

      . We note that if the trial court had terminated its jurisdiction when the Department ceased providing services, we would have concluded that a continuing injustice was not occurring, and thus, no need to reconsider the law of the case. We also would point out that the proceedings in this case subsequent to the 1994 order, including the placement of the children in foster care, all dealt with the other children who were the subject of the dependency proceedings. This appeal deals only with the order as it affects A.G. and C.G.

      .Of course, in this case, the trial judge never determined that he intended his order to be a disposition order. Rather, that determination was made by this court.


author: GROSS, J.

text:
    Kevin Dale HOLLINGSHEAD, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2135.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Kevin Hollingshead timely appeals an order finding him in violation of his probation. We affirm.

On February 12, 1999, Hollingshead was charged by information with trafficking between twenty-eight and thirty kilograms of hydrocodone. On August 20, 1999, he entered a plea of nolo contendere and was placed on probation for a period of seven years. Condition eight of the terras of his probation provided: “You will promptly and truthfully answer all inquiries directed to you by the Court or your officer, and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.”

On October 4, 2001, the Department of Corrections filed an affidavit of violation of probation, alleging that appellant had violated condition eight by

failing] to follow verbal and personal instructions given to him on September 4, 2001, instructing him personally to recontact this officer on September 6, 2001, to advise him of his specific whereabouts and if he would be gainfully employed, and the subject has failed to do so and he has not done so as of September 10, 2001. His whereabouts are unknown as of September 11, 2001.

An evidentiary hearing was held on April 4, 2002.

Vivian Bryant, appellant’s probation officer, assumed responsibility for supervising him on July 24, 2001. Two days later, Ms. Bryant explained to appellant all of the terms and conditions of probation, as well as the consequences of failing to follow these terms and conditions.

On September 4, 2001, after learning that appellant would be staying at a temporary address for two days due to the recent loss of his job, Ms. Bryant instructed appellant that he needed to report to her in-person on September 7th for a face-to-face meeting for appellant to tell her where- his new residence and employment were going to be.

The appellant did not report to Bryant as instructed. On September 11, 2001, she filed a violation of probation affidavit. On September 13, 2001, appellant called Bryant, who instructed him to report the next day. However, appellant never reported to Bryant in person.

On cross-examination, defense counsel asked Bryant if she remembered stating, in the affidavit seeking violation of probation, that she had informed appellant to report by September 6th. Ms. Bryant said it was possible she may have made a mistake, as her written notes indicated the date was actually September 7th. The state then rested its case.

Appellant testified that he lost his job and housing, which he had as part of his employment, in early September. He informed Bryant of this on September 4th. Appellant told Bryant that he was moving in with a friend and gave her a telephone number where he could be reached. He claimed that Bryant “didn’t tell [him] anything about contacting her [on the 6th or the 7th].” Appellant said that the conversation ended with the understanding he would contact Ms. Bryant if anything changed with his employment or housing situation.

Appellant acknowledged calling Bryant on September 13th, at which time she told him that he was supposed to have reported to her on September 6th or 7th. Appellant repeated his claim that she never told him of this reporting requirement at any time before this conversation on the 13th. After Bryant told appellant that he had vió-lated his probation, he stopped reporting and was subsequently arrested on November 5th, 2001.

In closing argument, defense counsel argued that appellant could not be found to have violated condition eight by failing to report on September 6th, because according to Ms. Bryant’s testimony, she instructed appellant to report on September 7th. The state argued that this discrepancy was merely a scrivener’s error and that appellant had suffered no prejudice through the discrepancy in dates. Neither party offered any authority to the court.

The trial court found that Bryant directed appellant to report on September 7th and that he failed to report, concluding that appellant had willfully and substantially violated his probation by failing to comply with condition eight.

At the sentencing hearing, despite finding appellant to be in violation of probation, the trial court decided against sending him to prison, instead choosing to continue the terms of appellant’s probation.

The failure to follow routine supervisory instructions given by a probation officer is a proper ground for a violation of probation. See Roff v. State, 644 So.2d 166, 167 (Fla. 4th DCA 1994). However, appellant argues that because there is a discrepancy between the reporting date in the affidavit of violation of probation [September 6th] and the date by which Bryant testified that she instructed appellant to report [September 7th], the affidavit is fatally flawed, such that “the trial court abused its discretion by finding appellant in violation of probation.”

Because appellant suffered no prejudice as a result of the discrepancy in dates, the mix-up amounts to nothing more than harmless error.

An allegation of violation of probation need not be set forth with the same specificity required for an indictment or information. See Costanz v. State, 740 So.2d 71, 72 (Fla. 4th DCA 1999); Burton v. State, 651 So.2d 793, 794 (Fla. 1st DCA 1995). Nonetheless, even under the law applicable to indictments, appellant would not be entitled to a reversal. Setting forth the legal considerations that apply to this type of case, Florida Rule of Criminal Procedure 3.140(o) states:

(o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

To say that the discrepancy in dates precludes the finding of a violation of probation is to ignore both the substance of Rule 3.140(o) and the fact that appellant here suffered no harm due to the scrivener’s error. See Craig v. State, 585 So.2d 278, 280-81 (Fla.1991) (finding that one-day discrepancy in murder indictment, which conflicted with evidence adduced at trial concerning date of crime, was not prejudicial where defendant deposed numerous witnesses and substantially knew sequence of events that ran over the two days in question); Tingley v. State, 549 So.2d 649, 651 (Fla.1989) (noting that date and time is ordinarily not a substantive part of an indictment or information and that there may be a variance between the dates proved at trial and those alleged in the indictment as long as: “(1) the crime was committed before the return date of the indictment; (2) the crime was committed within the applicable statute of limitations; and (3) the defendant has been neither ... surprised nor hampered in preparing his defense”).

AFFIRMED.

KLEIN and SHAHOOD, JJ., concur.

      . The Department alleged seven different grounds in support of revoking appellant’s probation. At the conclusion of the evidentia-ry hearing, the state announced that it was proceeding on only three of these seven grounds, violations of conditions three, seven, and eight. The trial court ultimately concluded that the evidence did not warrant revocation of probation for either conditions three or seven, leaving the violation of condition eight as the only issue before this court on appeal.


text:
    Nathaniel KIMBROUGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-288.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

WARNER, J.

The state moves for rehearing, citing two cases from foreign jurisdictions that it contends conflict with our holding. However, each case is distinguishable.

In State v. Marcy, 165 Vt. 89, 680 A.2d 76 (1996), the tape recorded statement of a domestic violence victim was admitted as a past recollection recorded. The main issue for the court was whether the statement accurately reflected the victim’s knowledge at the time of the incident. See id. at 79. There was “no dispute” that the tape recorded statement was the victim’s, and she indicated that had she talked to the police, she would have tried to be truthful. In addition, the state also relied upon testimony of the victim advocate, who spoke with the victim at the time of the incident, to lay a foundation for the admissibility of the statement. See id. In contrast, the witness in this case would not even identify the taped statement as being his own or indicate that he would have been truthful had he spoken with the police. In short, nothing other than the detective’s testimony that the voice on the taped statement was that of the witness was offered to support the admissibility of the statement. This is insufficient to support the admission of the statement as a past recollection recorded. Likewise, State v. Alvarado, 89 Wash.App. 543, 949 P.2d 831 (1998), is also distinguishable in that the witness in Alvarado admitted making a statement to the police.

Because the witness in this case neither indicated that the statement was made by him nor that it would have been accurate when made, the statement was inadmissible hearsay.

STEVENSON and TAYLOR, JJ., concur.


text:
    Pierre GEDEON a/k/a Peter Gideon, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2546.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.
    Carey Haughwout, Public Defender, and Louis G. Carres, 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.
   PER CURIAM.

AFFIRMED. See State v. Carter, 835 So.2d 259 (Fla.2002).

STONE, STEVENSON and MAY, JJ., concur.


author: STEVENSON, J.

text:
    Earl KELLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3927.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2003.

      Earl Keller, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Earl Keller timely appeals an order of the circuit court summarily denying his motion for postconviction relief. We reverse the trial court’s summary denial as to the fourth ground for relief, and as to such part of the fifth ground as pertains to the fourth ground. We affirm without discussion as to the other grounds.

Pursuant to a negotiated agreement, Keller entered a guilty plea to a number of charges, including carjacking with a weapon and grand theft. Keller’s motion for postconviction relief raised grounds of ineffective assistance of counsel and involuntary plea. Keller claimed that his counsel was ineffective for failing to advise him that his convictions and sentences for both carjacking and grand theft — where the amended information indicated that the grand theft was for the taking of the same motor vehicle which was the subject of the carjacking charge— were a violation of double jeopardy. Grand theft of a motor vehicle is a lesser included offense of carjacking. See Fryer v. State, 732 So.2d 30, 38 (Fla. 5th DCA 1999). In addition, Keller claimed that the plea was involuntarily entered, in part because of counsel’s failure to explain that convictions for both carjacking and grand theft were barred by double jeopardy.

In Weitz v. State, 795 So.2d 1021 (Fla. 2d DCA 2001), the Second District recently held that a defendant stated a facially sufficient claim when he alleged that his negotiated plea was involuntary because his attorney was ineffective in failing to advise him that, absent a voluntary waiver, convictions for both scheme to defraud and grand theft were barred by double jeopardy. Weitz claimed that he would not have entered the plea had he known about the double jeopardy prohibition. Likewise, in Upshaw v. State, 840 So.2d 1064 (Fla. 1st DCA 2003), the court held that the trial court erred in summarily denying defendant’s motion for postconviction relief where defendant claimed that his counsel was ineffective for failing to advise him that his convictions and sentences for trafficking in cocaine and possession of cocaine with the intent to sell violated double jeopardy.

In Upshaw, as in Weitz, the defendant claimed that he would not have entered the plea had he been correctly advised. Here, Keller’s claims were substantially similar to those in Upshaw and Weitz. Accordingly, we reverse and remand for the trial court to either support its denial as to the foregoing grounds with record excerpts conclusively establishing that Keller is entitled to no relief or conduct an evidentiary hearing on the claim. We have reviewed the other issues raised on appeal and find no error.

AFFIRMED in part, REVERSED in part and REMANDED.

GUNTHER and WARNER, JJ., concur.

      . Appellant pled guilty to six offenses in all and was sentenced to thirty years in prison on the first two counts, one of which included the carjacking charge, fifteen years on the next two counts, one of which included the grand theft, and to time served on the remaining counts, all concurrently. Had counsel succeeded in challenging the grand theft charge, appellant's maximum possible sentence would have been life plus thirty-seven years, rather than the life plus sixty-two years that he was advised of in open court.


text:
    Joseph PEPIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-634.
    District Court of Appeal of Florida, First District.
    May 29, 2003.
    Baya Harrison, III, Monticello, for Appellant.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court failed to attach portions of the record to conclusively refute the appellant’s claim that counsel was ineffective for failing to call a witness, we reverse. We affirm all other issues raised in the appellant’s motion without discussion.

The appellant was convicted of two counts of solicitation to commit sexual battery and one count of attempted capital sexual battery and was sentenced to concurrent terms of 25 years’ imprisonment and concurrent terms of 10 years’ sex offender probation. The appellant alleged that his counsel was ineffective for failing to call a witness. In order to assert a facially sufficient claim that counsel was ineffective for failing to call a witness, the appellant must identify the witness, the content of the witness’s expected testimony, and assert how he is prejudiced by the omission of the witness’s testimony. State v. Pelham, 737 So.2d 572, 573 (Fla. 1st DCA 1999). The appellant alleges that counsel should have called Toni Papilhon to testify that the children interacted with the appellant in a “friendly, calm affectionate and confident way” after the alleged offense occurred. The appellant further alleges that he was prejudiced by the omission of this testimony because Ms. Papillion’s testimony would have refuted a police officer’s testimony that the appellant confessed to committing most of the acts. Thus, the appellant alleged a facially sufficient claim of ineffective assistance of counsel for failing to call a witness to testify.

The appellant stated that he testified at trial and denied all of the allegations made by the children, so the jury had to determine who was more credible, the police officer or the appellant. If Ms. Papillion’s testimony would have increased the credibility of the appellant’s testimony, then there is a reasonable probability that her testimony may have changed the outcome of the trial. See Spencer v. State, 842 So.2d 52, 65 (Fla.2003). Because the trial court failed to attach any portion of the record to refute this claim, this claim is reversed and remanded for the attachment of record portions to conclusively refute the appellant’s claim or an evidentiary hearing.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

BOOTH, VAN NORTWICK, and HAWKE S, JJ., concur.


text:
    Thomas J. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1523.
    District Court of Appeal of Florida, First District.
    May 29, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General and Giselle Lylen Rivera, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Thomas J. Thomas, appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion following an evi-dentiary hearing. Appellant filed a timely and facially sufficient motion for appointment of counsel several weeks before the hearing, but it was denied. We reverse.

We repeat that counsel need not be appointed every time there is an evidentiary hearing, but “any doubt about the need for counsel must be resolved in favor of the indigent defendant.” Williams v. State, 472 So.2d 738, 740 (Fla.1985). In this case, we find that the number and complexity of the issues covered at the evidentiary hearing required the appointment of counsel and that the trial court abused its discretion in denying the motion. See Id.; Wheeler v. State, 807 So.2d 94 (Fla. 1st DCA 2002).

Accordingly, we REVERSE and REMAND with instructions to appoint counsel and conduct a new hearing.

WEBSTER, PADOVANO, and HAWKES, JJ., concur.


text:
    Joy GASPARIK, Appellant, v. GELMAN SCIENCES AND TRAVELERS, Appellees.
    No. 1D02-4418.
    District Court of Appeal of Florida, First District.
    May 29, 2003.
    Crystal Collins Spencer of Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    Mary L. Wakeman of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for appellees.
   PER CURIAM.

We relinquished jurisdiction in this matter to the Judge of Compensation Claims with directions to conduct a hearing and make findings of fact concerning the question of whether appellant’s notice of appeal was timely filed. Based on the findings made by the lower tribunal, we conclude that this court’s jurisdiction was not timely invoked, and therefore dismiss the appeal. Because no timely notice of appeal was filed and the notice of cross-appeal was not filed within 30 days of rendition of the order identified therein, the cross-appeal is likewise dismissed.

APPEAL AND CROSS-APPEAL DISMISSED.

ALLEN, C. J., WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Charles D’ASARO and Patricia D’Asaro, Individually and as Survivors of Kathleen Clayton, and Christine Walsh, Individually and as Next Friend of Daniel Walsh and Marisa Walsh, Appellants, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, David B. Struhs, Anderson Columbia Co., Inc., Bobby A. Cooley, Panhandle Land & Timber Company, Inc., Frank A. Darabi and Michael Lenga, Appellees.
    No. 1D03-1184.
    District Court of Appeal of Florida, First District.
    May 29, 2003.
    Richard L. Windsor, Tallahassee, for Appellants.
    Jack Chisolm, Deputy General Counsel, Tallahassee; W. Robert Vezina, III, and Mary P. Vance, Tallahassee, for Appellees.
   PER CURIAM.

Having considered the appellees’ Motion to Dismiss, filed on March 26, 2003, as well as Appellants’ Response to Motion to Dismiss Appeal and Order(s) to Show Cause, filed on April 24, 2003, we GRANT the appellees’ Motion to Dismiss and hereby dismiss this appeal as premature. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). The order on appeal is not a final appealable order because it merely dismissed appellants’ complaint without prejudice to their right to file an amended complaint, which did not bring an end to the judicial labor of the cause. See Tweed v. Bowden, 840 So.2d 1094 (Fla. 1st DCA 2003); Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991).

The appellees’ Motion for Attorneys’ Fees and for Determination of Inapplicability of Notice Provision, filed on April 29, 2003 is DENIED.

BARFIELD, WOLF and DAVIS, JJ., concur.