author: STEVENSON, J.

text:
    Ronald WALTON, Appellant, v. HEALTH CARE DISTRICT OF PALM BEACH COUNTY, FLORIDA, Appellee.
    No. 4D02-1173.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.

      Carey E. Klein and John N. Buso, West Palm Beach, for appellant.
    Rachelle R. McBride and Jay T. Jam-beck of Sachs, Sax & Klein, P.A., Boca Raton, for appellee.
   STEVENSON, J.

Appellant, Ronald Walton, was hired by the Health Care District of Palm Beach County (the “District”) to work as a registered nurse at the Palm Beach County Home. After Walton was dismissed from his position, he filed a three-count complaint against the District for wrongful termination (count I), violation of due process (count II) and violation of the Fair Labor Standards Act (count III). The trial court dismissed all three counts with prejudice on the ground that the only remedy available to Walton was to file a petition for writ of certiorari seeking review of the termination decision and the time for filing the petition had passed. We reverse the dismissal with -prejudice as to counts I and III and affirm the dismissal of count II.

Before addressing the viability of Walton’s individual causes of action, it is first necessary to consider the notion that certiorari was the only remedy available to Walton and that he could not bring an independent cause of action. In his complaint, Walton alleged that he received a written notice pursuant to the District’s internal personnel policy advising him of the District’s intentions to dismiss him for “continued negligence and misconduct.” Walton then wrote a rebuttal letter to Barbara Landy, chief administrator of the District. After what Walton alleges was an “inadequate and unfair hearing” before Ms. Landy, Walton was fired. The District contends that since Walton is a government employee terminated as the consequence of a quasi-judicial proceeding, his sole recourse was to seek review of the termination decision by filing a petition for writ of certiorari within thirty days.

The District did not cite any authority directly on point for the proposition that a public employee cannot maintain an independent cause of action concerning his termination. Our research has revealed case law holding that if a public employee has availed himself of available administrative procedures and been afforded a quasi-judicial hearing, then he may not file an independent action collaterally attacking the employer’s decision, see Bass v. Metro Dade County Dep’t of Corr. & Rehab., 798 So.2d 835 (Fla. 3d DCA 2001); the remedy in that instance would be to seek review of the employer’s decision in the circuit court sitting in its appellate capacity. See City of Miami Springs v. Barad, 448 So.2d 510 (Fla. 3d DCA 1983). Consequently, the question that is determinative of Walton’s ability to maintain an independent cause of action is whether the District’s decision to terminate him was quasi-judicial.

The District argues that its termination decision was quasi-judicial, citing the allegations in Walton’s complaint that he was afforded notice and a hearing. Whether a termination decision is quasi-judicial turns, however, not upon whether the employee was provided notice and a hearing, but, instead, upon whether the employee was entitled to such notice and hearing. See Terry v. Bd. of Trs. of City Pension Fund, 854 So.2d 273, 275 (Fla. 4th DCA 2003); see also Anoll v. Pomerance, 363 So.2d 329, 331 (Fla.1978)(stating that “a judgment becomes judicial or quasi-judicial, as distinguished from executive, when notice and hearing are required and the judgment of the board is contingent on the showing made at the hearing”)(emphasis added); Vazquez v. Hous. Auth. of City of Homestead, 774 So.2d 813 (Fla. 3d DCA 2000)(holding that the City’s voluntarily affording employee counsel and a hearing did not render the executive director’s demotion decision quasi-judicial); Bldg.Code Advisory Bd. v. S. Bldg. Prods., Inc., 622 So.2d 10, 13 (Fla. 4th DCA 1993)(holding that the fact that advisory board afforded a hearing with “some of the trappings of a formal hearing” did not make the board’s decision quasi-judicial as there was no requirement for notice or a hearing).

The Health Care District of Palm Beach County is a special taxing district created by special law that operates solely within Palm Beach County. See Ch. 87-450, at 68-86, Laws of Fla. The parties have not cited nor have we found any statute or ordinance requiring that an employee of a special taxing district be afforded notice and an opportunity to be heard prior to termination. Consequently, we must con-elude that the District’s decision to dismiss Walton was not quasi-judicial. Cf. Stansberry v. City of Lake Helen, 425 So.2d 1157, 1158 (Fla. 5th DCA 1982)(holding that since there were no civil service laws or other ordinances requiring notice of, or a hearing on, the discharge of a city employee, any determination to discharge the petitioner, a city book-keeper, was a “legislative or executive action, not quasi-judicial,” and thus not subject to certiorari review).

Because the District’s termination decision was not quasi-judicial in nature and Walton is not barred from maintaining an independent cause of action concerning his dismissal, the issue then becomes whether the allegations of Walton’s complaint were sufficient to state a cause of action and, if not, whether they could be cured by amendment.

In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. A court may not go, beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true. All reasonable inferences must be drawn in favor of the pleader. “Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, the ruling on a motion to dismiss for failure to state a cause of action is subject to de novo standard of review.”

Lost Tree Vill. Corp. v. City of Vero Beach, 838 So.2d 561, 569 (Fla. 4th DCA 2002)(quoting Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001) (citations omitted)).

In count I, Walton seeks to state a cause of action for wrongful termination. In dismissing Walton’s complaint with prejudice, the trial court found that Walton was an “at will” employee. Under Florida law, if Walton is indeed an “at will” employee, then he can be terminated for any or no reason and, thus, as a matter of law could not state a cause of action for wrongful termination. See Mayo v. Highland Park Hosp. Corp., 460 So.2d 571 (Fla.3d DCA 1984). For his part, Walton does not challenge this proposition of law, but, instead, argues that the trial court improperly went beyond the four corners of the complaint in making this determination.

Walton alleged in count I that on December 13, 1999, he was hired by the District to work as a registered nurse. The complaint further alleges that Walton was employed under “an oral agreement,” was a “non-probationary, permanent employee” and that the terms of his employment are governed by the District’s policies and procedures manual. The allegations regarding the oral agreement and his “permanent” status do not serve to take Walton, outside of “at will” employment status. See Muller v. Stromberg Carlson Corp., 427 So.2d 266 (Fla. 2d DCA 1983); see also Gibbs v. H.J. Heinz Co., 536 So.2d 370 (Fla. 5th DCA 1988); Bryant v. Shands Teaching Hosp. & Clinics, Inc., 479 So.2d 165, 167 n. 2 (Fla. 1st DCA 1985). Walton’s allegations that the terms of his employment are governed by the District’s policies and procedures manual are, however, a different matter.

While Florida’s courts have expressed a decided reluctance to find that provisions in an employee handbook or policies and procedures manual rise to the level of enforceable contract rights, the courts have acknowledged it is possible for such handbooks or manuals to create enforceable rights if there is “language in the employee manual expressly providing that the manual constitutes a separate employment agreement” or the parties have reached a mutual agreement to this effect. Quaker Oats Co. v. Jewell, 818 So.2d 574, 578 (Fla. 5th DCA 2002), review denied, 837 So.2d 410 (Fla.2003). As written, the allegations of Walton’s complaint do not indicate that there was express language in the employee handbook or policies and procedures manual which would make the manual a separate employment agreement with termination appropriate only upon the conditions stated. Thus, the trial court correctly dismissed count I. Nevertheless, since Walton has not yet been afforded even a single opportunity to amend his complaint to state a cause of action for wrongful termination, we hold that the dismissal with prejudice was in error and that he should be afforded such opportunity on remand.

In count II, Walton attempts to state a federal procedural due process claim predicated upon an alleged deprivation of a property and liberty interest. Even assuming that Walton can amend his complaint to allege that the language of the policies and procedures manual gives rise to a property interest in his employment and that he has alleged the essential elements of a cause of action for deprivation of a liberty interest, Walton cannot state a federal procedural due process claim if adequate state remedies are available to him. See Cotton v. Jackson, 216 F.3d 1328 (11th Cir.2000); McKinney v. Pate, 20 F.3d 1550, 1562-64 (11th Cir.1994). Adequate state remedies are available to Walton.

We acknowledge that neither an appeal nor certiorari review are available to Walton to challenge a quasi-executive decision of an administrative body. The Health Care District of Palm Beach County is a special taxing district created by special law and, consequently, is not an “agency” within the meaning of the Administrative Procedure Act (APA), rendering an appeal to the district courts of appeal unavailable. See Eckert v. Bd. of Comm’rs of N. Broward Hosp. Dist., 720 So.2d 1151 (Fla. 4th DCA 1998). The circuit court’s appellate jurisdiction is limited to “administrative action if provided by general law,” see Fla. R.App. P. 9.030(c)(1)(C), and “administrative action” is limited to agency action under the Administrative Procedure Act and quasi-judicial decisions of administrative bodies not subject to the APA, see Fla. RApp. P. 9.020(a).

Nevertheless, a suit for declaratory or injunctive relief is available for Walton to challenge the District’s actions:

“[W]here agencies and boards have acted in a quasi-executive or quasi-legislative capacity, the proper method of attack is a suit in circuit court for declaratory or injunctive relief on grounds that the action taken is arbitrary, capricious, confiscatory or viola-tive of constitutional guarantees.”

Bldg.Code Advisory Bd., 622 So.2d at 13 (quoting Bd. of County Comm’rs of Hillsborough County v. Casa Dev. Ltd., II, 332 So.2d 651, 654 (Fla. 2d DCA 1976)); see also Cotton, 216 F.3d at 1332-33 (holding that availability of state law remedies, such as a defamation claim or declaratory judgment action, or, if neither of these were available-a writ of mandamus, precluded terminated employee from stating federal due process claim predicated upon deprivation of liberty interest). Consequently, we affirm the dismissal with prejudice of count II.

Finally, in count III, Walton alleges a violation of section 215 of the Fair Labor Standards Act, which provides in relevant part:

(a) ... [I]t shall be unlawful for any person-
(2) to violate any of the provisions of section 206 [governing minimum wage] or section 207 [providing that if employee works more than 40 hours he must be paid overtime at rate of 1~% times regular rate] of this title ...;
(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter ...;
(5) to violate any of the provisions of section 211(c) [requiring employers to make and keep records of the wages and hours worked by employees] of this title, ... or to make any statement, report, or record filed or kept pursuant to the provisions of such section ... knowing such statement, report, or record to be false in a material respect.

29 U.S.C.A. § 215(a)(2)-(3), (5) (1998).

Walton’s count for violation of § 215 alleged: (1) that he was advised by his supervisor that he would not be paid for overtime worked and that his time records would be manually changed to avoid payment of any overtime; (2) that he told his supervisor that such acts were a violation of the Fair Labor Standards Act and would be reported to the authorities; and (3) that shortly after this conversation, he received notice that he was going to be dismissed. Walton does not allege that he actually worked overtime and was not paid, he does not allege that the employer actually altered his time records, and he does not allege that he actually filed a complaint regarding his employer’s overtime practices. Consequently, the trial court was correct in its dismissal of count III. As with count I, Walton should be afforded the opportunity to amend count III of his complaint to state a cause of action for violation of 29 U.S.C.A. § 215.

AFFIRMED in part, REVERSED in part, and REMANDED.

STONE and WARNER, JJ., concur.

      . The closest case cited by the District was Gow v. Dade County, 371 So.2d 493 (Fla. 3d DCA 1979). There, a county employee filed suit in circuit court after he was dismissed. The brief opinion simply affirms the trial court’s entry of summary judgment on the ground that ''[a]ppellate review was solely authorized in this instance by petition for writ of certiorari.” Id. at 493. The only authority cited for this proposition was section 2-47 of the 1978 version of the Code of Metropolitan Dade County, Florida. Id.

      . Because the majority of the allegations center around inadequate notice of the charges resulting in Walton’s termination and an inadequate hearing, we treat his claim as one involving a violation of "procedural” due process rights. To the extent that the complaint could be read to allege a claim for violation of "substantive” due process rights, it was properly dismissed with prejudice. See City of Lauderhill v. Rhames, 864 So.2d 432, 2003 WL 22399699 (Fla. 4th DCA Oct.22, 2003); see also McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir.1994)(holding that in “non-legislative cases, only procedural due process claims are available to pretextually terminated employees”).

      . See, e.g., Nelson v. Mustian, 502 F.Supp. 698, 706 (N.D.Fla.1980)(holding that employee handbook allowing "termination for cause” gave rise to property interest in employment).

        . See, e.g., Buxton v. City of Plant City, Fla., 871 F.2d 1037, 1042 (11th Cir.1989), where the court stated that
      Due process protection from deprivations of liberty extend beyond the sort of formal constraints imposed by the criminal process. Although the Supreme Court has not defined "liberty” with any great precision, that term is not confined to mere freedom from bodily restraint.
      The court went on to recognize that a public employee's constitutionally protected "liberty” interest may be impinged where the employing governmental unit, in taking adverse action, publicly and falsely attaches a "badge of infamy” to the employee without a reasonable opportunity for name clearing. Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Janice A. HEPBURN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 4D03-1645.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Rehearing Denied Jan. 30, 2004.
    Janice A. Hepburn, Boynton Beach, pro se.
    John D. Maher, Tallahassee, for appellee Uneployment Appeals Commission.
   PER CURIAM.

AFFIRMED. See Fla. R.App. P. 9.315(a).

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


text:
    A.W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4899.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Carey Haughwout, Public Defender, and Aan T. Lipson, 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.

A.W., adjudicated delinquent upon his violation of probation, appeals the disposition order on grounds that the trial court erred in committing him to a high-risk residential facility which was a departure from the Department of Juvenile Justice’s (“DJJ”) recommendation. Because we find the trial court’s departure was not supported by the evidence, we reverse and remand.

A.W. pled guilty to a charge of grand theft auto and was placed on probation. Another charge of burglary of a conveyance was nolle prossed. On April 4, 2002, an Affidavit/Petition for Violation of Probation was filed, alleging that A.W. failed to meet the conditions of his probation. Specifically, the affidavit stated that A.W. failed to perform sixty hours of community service work, failed to enroll in school, and failed to make weekly contact with his probation officer. The affidavit also stated that A.W. left his last known residence without first obtaining the consent of his probation officer. At the time, A.W. was supposed to be living with his mother, but his mother stated that A.W. was living with his father.

On April 23, 2002, A.W. entered into a plea agreement, pleading guilty to the violation of probation and leaving the disposition open. The DJJ filed a predisposition report (“PDR”) on May 8, 2002. In the PDR, the DJJ recommended that A.W. be adjudicated delinquent and placed in a low-risk residential facility.

While awaiting his disposition hearing, another Affidavit/Petition for Violation of Probation was filed, alleging that A.W. violated his curfew. A hearing was eventually held for both violations of probation on October 2, 2002. The trial court dismissed the second Affidavit/Petition for Violation of Probation. The trial court, however, adjudicated A.W. delinquent and committed him to a high-risk residential program on the basis of the first violation of probation, finding that the high-risk residential program was the most appropriate placement for A.W. as it would provide him with “opportunities he needs in order for him to have any chance at any meaningful rehabilitation.” The trial court found that the less restrictive placement recommended by the DJJ would not be sufficient.

The trial court stated that its reasons for departing from the DJJ’s recommendation and imposing a more restrictive placement are (1) A.W. is not in school, is not receiving any vocational training and does not have a full-time job despite repeated encouragement that he participate in one of .these, (2) A.W. is “an abuser of illegal substances, given his age,” (3) A.W. “is on probation for a felony,” (4) A.W. was “before the [cjourt that day for violating ... probation,” and (5) the trial court did not think that the mother had sufficient control over A.W. to motivate him to go to school, obtain full-time employment or avoid illegal substances. A.W. objected to the court’s departure from the DJJ’s recommendation and now appeals.

A trial court’s decision to depart from the DJJ’s recommendation is reviewed under an abuse of discretion standard and must be supported by competent and substantial evidence. S.L.K. v. State, 776 So.2d 1062, 1064 (Fla. 4th DCA 2001) (citing A.C.N. v. State, 727 So.2d 368, 369 (Fla. 1st DCA 1999)). Thus, while this Court has stated that a trial court is not required to articulate “the ‘characteristics of the restrictiveness level imposed vis-avis the needs of the juvenile,’ ” K.S. v. State, 835 So.2d 350, 352 (Fla. 4th DCA 2003), there still must be evidence in the record to support the trial court’s departure. In this case, neither the trial court’s findings nor the record sufficiently support A.W.’s commitment to a high-risk residential facility.

The statute defines high-risk residential programs as:

[p]rograms or program models ... [which] are residential and shall not allow youth to have access to the community. Facilities are hardware-secure with perimeter fencing and locking doors. Facilities shall provide 24-hour awake supervision, custody, care, and treatment of residents. Youth assessed and classified for this level of placement require close supervision in a structured residential setting. Placement in programs at this level is prompted by a concern for public safety that outweighs placement in programs at lower commitment levels. The staff at a facility at this commitment level may seclude a child who is a physical threat to himself or herself or others. Mechanical restraint may also be used when necessary. The facility may provide for single cell occupancy.

§ 985.03(45)(c), Fla. Stat. (2002).

In other cases where the trial court committed the child to a high-risk residential facility, evidence existed in the record which supported the need to place the child in the high-risk facility. In K.S., this Court found that a child should be placed in a high-risk residential program, contrary to the DJJ’s recommendation, where the child was a flight risk and her conduct exposed her to danger. 835 So.2d at 350, 352. The court stated that a high-risk facility was necessary to “ ‘secure’ the juvenile for her own protection as well as that of the public.” Id. at 352. In C.T. v. State, 819 So.2d 869, 872 (Fla. 4th DCA 2002), this Court approved the placement of a child in a high-risk residential program, despite the DJJ’s recommendation that she be placed in a moderate-risk program, because the child had violent tendencies and was a flight risk. The court in A.J. v. State, 826 So.2d 528, 529-31 (Fla. 5th DCA 2002), approved the placement of a child in a high-risk residential facility, rather than the moderate-risk program recommended by the DJJ, where the child had ten previous offenses, many of which were violent, and the child had previously been committed to a moderate-risk facility and had gone on to commit other offenses after being released from the program.

In this case, the record does not contain competent and substantial evidence that A.W. is a danger to the public and needs to be in a facility that is “hardware-secure with perimeter fencing and locking doors” with “24-hour awake supervision.” See § 985.03(45)(c). Accordingly, we reverse and remand.

REVERSED and REMANDED.

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


text:
    Keith KALNAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4538.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, 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.
   STEVENSON, J.

After the trial court denied his motion to suppress, Keith Kalnas entered a nolo con-tendere plea to charges of burglary and grand theft, expressly reserving the right to appeal the trial court’s ruling. In this appeal, Kalnas argues that the anonymous tip provided to police was not sufficient to justify an investigatory stop. We agree and reverse.

After hearing testimony of the arresting officer at the motion to suppress hearing, the trial court made the following findings: [T]he Fort Lauderdale Police Department received an anonymous tip advising that a white male wearing bluejeans, a white shirt and a blue visor was trying doorknobs in the area of 1109 Northeast 17th Terrace.
Within two minutes after the issuance of a BOLO, based on the anonymous tip, Officer Michael Moniz located the defendant, Keith Kalnas, within one block of the — of 1109 Northeast 17th Terrace.
At that time, Mr. Kalnas was observed to be a white male, wearing bluejeans and a blue visor. And he was further observed walking toward the area of 1109 Northeast 17th Terrace.
The court further finds that there had been several reported burglaries in that particular area.

Based on the foregoing facts, the trial court concluded that “the anonymous tip was sufficient to justify an investigatory stop as the Court finds that there is indicia of reliability.”

This case requires the court to once again focus its attention on the much-maligned, and equally praised, “anonymous tipster.” The supreme court in J.L. v. State, 727 So.2d 204 (Fla.1998), succinctly stated when an anonymous tip can provide the basis for well-founded suspicion:

[A]n anonymous tip can provide the basis for reasonable suspicion, provided that it can be established that the tip is reliable. A tip’s reliability can be established in a number of different ways. A tip may describe suspicious details concerning conduct that is presently occurring or is about to occur in the future (i.e., a call received after midnight, on a warm summer evening, stating, “A person is carrying a gun; that person is wearing a ski mask and a long trench coat and is approaching a convenience store.”). Verification by the police of the suspicious details clearly provides the police with the requisite reasonable suspicion to make a Terry stop.
The more difficult case involves those tips which allege criminal conduct, but only describe “innocent details of identification,” for which the details in and of themselves are in no way incriminating or indicative of criminal behavior. Innocent detail tips merely provide the police with verifiable details which are completely innocent in nature (i.e., a tip similar to the one in this case, which only describes innocuous clothing, location, etc.). Nevertheless, innocent detail tips can still prove to be reliable and be the foundation for reasonable suspicion.

Id. at 206-07 (citations omitted).

The anonymous tipster, here, gave detailed information of the crime being committed — attempted trespass or burglary (the defendant was “trying” various doors in the neighborhood) — and provided a detailed description of the subject. Yet, when the police officer arrived on the scene, he was only able to verify the innocent details of identification. The officer was unable to confirm or verify any of the allegations concerning the commission of a criminal offense. We find that this situation fits more within those types of cases which require independent police investigation in order to establish the tip’s reliability. See, e.g., J.L., 727 So.2d at 205-06 (finding that the anonymous tip stating that several young black males were standing at a specified bus stop, and that one was wearing a plaid shirt and carrying a gun, was insufficient to justify a Terry stop, absent indication that police independently observed suspicious or illegal conduct).

This case is somewhat analogous to L.M. v. State, 694 So.2d 118 (Fla. 3d DCA 1997). There, the officer testified that around 7:00 p.m., she and another officer were patrolling when they received a radio dispatch regarding a theft in progress. See id. at 119. The dispatch gave information from an anonymous tip, indicating that two African-American youths were burglarizing a car in a fenced-in church parking lot two blocks from the officer’s location. See id. Within a minute of the call, the officer turned the corner and immediately observed the youths, wearing clothing fitting the BOLO description, walking on the sidewalk adjacent to the church. The youths were not involved in any criminal activity. See id.

As the officers approached, the youths changed the direction in which they were walking. See id. The officer drove up to the youths, and detained them by parking her car in such a way as to block them. The officer instructed the youths to put their hands on the hood of the car and conducted a pat-down, during which she felt a hard, broad object. See id. Under these facts, the court found that the anonymous tip did not give rise to reasonable suspicion sufficient to justify the temporary detention of the youths since the tip was not corroborated by independent police investigation. See id. at 120.

Returning to the instant case, the anonymous tip relayed to Officer Moniz was that a white male had been observed trying door knobs in a residential neighborhood. The suspect was alleged to be wearing a white shirt, bluejeans and a blue visor. Officer Moniz responded to the call and noticed Kalnas wearing a white shirt, bluejeans and a visor, about a block or so away from the area where the tipster indicated that the man had been trying doors. Kalnas was walking with another man, at a normal pace, near the parking lot of a Burger King. Officer Moniz did not observe Kalnas trying any door knobs or engaged in any other suspicious behavior.

Here, Officer Moniz was required to uncover something more than just a verification of the innocent details of identification in order to establish the reliability of this anonymous tip. Of course, Officer Moniz could have properly engaged appellant in a voluntary police-citizen encounter in order to further investigate the call, but instead, as correctly found by the trial judge, Mon-iz instituted an investigatory stop and detention. Officer Moniz’s failure to confirm the reliability of the tip makes Kalnas’s detention, and the subsequent discovery of contraband, illegal. Thus, the trial court’s finding that “the anonymous tip was sufficient to justify an investigatory stop” was error. We reverse and find that the items seized incident to Kalnas’s arrest should have been suppressed.

REVERSED and REMANDED.

POLEN and SHAHOOD, JJ., concur.

      . The tipster, although a self-proclaimed "resident of the neighborhood," left no identifying information and cannot be considered a "citizen informant,” which would itself raise the level of reliability of the tip.


text:
    Allister O. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-2830.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Robert C. Buschel of Buschel Carter Schwartzreich & Yates, Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner, Allister Williams, was charged on January 16, 2002, with grand theft and unauthorized possession of identification card/drivers’ license. Petitioner filed a motion for discharge pursuant to Florida Rule of Criminal Procedure 3.191(b). The trial court denied his motion. He now seeks a writ prohibiting further prosecution. Because the speedy trial period had expired and no delay attributable to the accused was shown, we grant the writ and remand the matter to the trial court for an order discharging petitioner.

Florida’s speedy trial rule is embodied in Florida Rule of Criminal Procedure 3.191. Subsection (b) of this rule authorizes an accused to demand a trial within sixty days from indictment or charging information by filing a demand for speedy trial. The trial court must then hold a calendar call within five days at which time it must set the case for trial to be held within five to forty-five days. If trial has not commenced within fifty days of an accused’s demand, the accused may then seek to avail himself of the remedy set forth in subdivision (p) of the rule.

Subsection (p) permits the accused to file a notice of expiration of speedy trial time. The trial court must then hold a hearing within five days and order the accused brought to trial within ten days unless the court finds that one of the reasons set forth in subsection (j) exists. Under subsection (j) the court does not have to order an accused be brought to trial within ten days if the court has previously ordered an extension that has not yet expired, the delay in holding the trial has been caused by the accused, co-defendant or their counsel, the accused was unavailable for trial, or the demand for speedy trial is invalid. Assuming none of these circumstances exist, the trial court must order the accused brought to trial within ten days. If not brought to trial within this period, the accused is entitled to be discharged upon appropriate motion provided the delay is not attributable to the accused. See Fla. R.Crim. P. 3.191(p).

On January 15, 2003, a year after being charged by information, petitioner filed his demand for speedy trial with the presiding judge pursuant to rule 3.191(b). On March 5, 2003, the presiding judge transferred the case to a successor judge. On March 13, 2003, the successor judge set the case for a May 19, 2003 jury trial. Petitioner filed his notice of expiration of speedy trial on March 18, 2003, pursuant to rule 3.191(b). The parties appeared before the successor judge at his 8:30 a.m. calendar call on May 19, 2003, and petitioner moved the court for his discharge. The State briefly explained that no hearing was ever held within five days because the case was in transit between the two courtrooms. The court did not delve into the merits of petitioner’s claim, but postponed this matter until the following day.

At the next day’s hearing, petitioner’s counsel informed the court that he filed his demand for speedy trial on January 15, 2003, but no calendar call had been held within five days as rule 3.191(b)(1) required. He further explained that after he filed a notice of expiration of speedy trial on March 18, 2003, the original judge scheduled a hearing within five days, but when both parties appeared in his courtroom, the judge determined that the successor judge should hear the matter and suggested defense counsel call the successor judge’s office to schedule petitioner’s five-day hearing. Counsel explained that he left a detailed message but that the successor judge’s office never called him back.

The trial court did not hold the required calendar call within five days after petitioner filed his demand for speedy trial. See Fla. R.Crim. P. 3.191(b)(1). Nor did the State bring petitioner to trial within fifteen days of when he filed his notice of expiration of speedy trial. The court scheduled Petitioner’s trial for May 19, 2003. The parties appeared before the successor judge on that date. By this time, 124 days had elapsed from the date petitioner filed his demand for speedy trial. The State, however, was not ready to commence trial on that date and petitioner moved for his discharge.

The State should have monitored the judicial logistics of the accused’s prosecution more attentively so as to ensure that it complied with the requirements of rule 3.191. It was the State’s duty to bring petitioner to trial within the prescribed time period; consequently, petitioner’s motion for discharge should have been granted. See Stuart v. State, 360 So.2d 406 (Fla.1978) (it is the State, and not the defendant, that has the obligation to see that the time periods within the rule are followed); Massey v. Graziano, 564 So.2d 287 (Fla. 5th DCA 1990) (“Under the current speedy trial rule, the duty rests on the State to afford a defendant a hearing, and, if necessary, a trial within the window period provided by rule 3.191. The State’s failure to perform this duty results in the trial court’s loss of jurisdiction to conduct a trial on the charges.”).

The petition for writ of prohibition is granted and this matter is remanded to the trial court with directions to discharge petitioner.

PETITION GRANTED; REMANDED TO TRIAL COURT WITH DIRECTIONS.

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


text:
    William PETTIT, Petitioner, v. James CROSBY, Florida Department of Corrections, Secretary, Respondent.
    No. 1D03-0888.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.
    William Pettit, pro se, petitioner.
    Charlie Crist, Attorney General, and To-bey Schultz, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Petitioner seeks review of the circuit court’s order denying his petition for writ of mandamus in which he sought expungement of two disciplinary reports issued by the Department of Corrections and restoration of lost gain-time. We deny relief in all respects but one. We find that the circuit court departed from the essential requirements of law in determining that petitioner had not been denied his right to call witnesses at the disciplinary hearing.

Petitioner complied with the pleading requirements for raising a mandamus claim regarding the denial of his request for witnesses at the prison disciplinary hearing. See Holcomb v. Department of Corrections, 609 So.2d 751 (Fla. 1st DCA 1992). He identified the witnesses, explained why he had requested them at the hearing and not during the investigation, proffered their testimony, and explained why the testimony was relevant and material. Moreover, the reason given by the Department for denying the request was inadequate. Thus, the circuit court departed from the essential requirements of the law in denying petitioner’s claim. See Mariah v. Moore, 765 So.2d 929 (Fla. 1st DCA 2000). We grant the petition and remand to the circuit court for further proceedings consistent with this opinion.

ALLEN, DAVIS and BENTON, JJ., concur.

      . In the circuit court, the Department contended that the witnesses were not allowed because they were involved in an investigation that was unrelated to the disciplinary infractions, but did not contest the testimony proffered by petitioner. Before this court, the Department now disputes petitioner’s allegation that he requested the witnesses at the disciplinary hearing. However, because the Department did not contest petitioner's allegation in the mandamus proceeding, the allegation was admitted as true and may not be challenged in this court. See Holcomb v. Department of Corrections, 609 So.2d 751 (Fla. 1st DCA 1992).


text:
    Kenneth SPARKMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3660.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2003.
    Rehearing Denied Jan. 15, 2004.
    Kenneth Sparkman, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Glenn, 558 So.2d 4 (Fla.1990) (holding modification in law of double jeopardy does not apply retroactively); State v. Jensen, 557 So.2d 23 (Fla.1990) (stating decision finding convictions for trafficking and possession of same cocaine violate double jeopardy doesn’t apply retroactively).

GRIFFIN, THOMPSON and PLEUS, JJ., concur.


author: PALMER, J.

text:
    Glenda Q. MAHANEY, Appellant, v. Mary Ann KING, Appellee.
    No. 5D03-137.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2003.
    Rehearing Denied Jan. 14, 2004.
    Glenda Mahaney, Mount Dora, pro se.
    No appearance for Appellee.
   PALMER, J.

In this pro se appeal, Glenda Mahaney appeals the non-final order entered by the trial court granting appellee Mary King’s motion to disburse funds from the court registry. We dismiss this appeal on the basis of lack of jurisdiction because the appeal was taken from a non-final, non-appealable order. See Philip Morris Inc. v. Jett, 802 So.2d 353 (Fla. 3d DCA 2001), rev. denied, 821 So.2d 300 (Fla.2002)(explaining that where a post-judgment motion triggers a new proceeding with disputed issues to be resolved by trial court and which will culminate in a final order, the issues raised will be appealable when final judgment is entered). In so ruling, we note that the dismissal is without prejudice to Mahaney^ entitlement to appeal the issues raised sub judice once a final disbursement order is entered.

DISMISSED.

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


text:
    Stephen Lewis SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D00-4308, 2D01-971.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    Rehearing Denied Jan. 21, 2004.
    Robert A. Norgard, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Stephen Lewis Smith appeals the trial court’s order which granted the State’s motion to clarify sentence and the amended sentences imposed pursuant to that order. The trial court’s order purportedly corrected a clerical error in the sentencing documents. We conclude that the record does not reflect that there was a clerical error to be corrected and reverse the trial court’s order.

On March 2, 1989, Smith entered a no contest plea to two counts of organized fraud, forty-eight counts of sale of unregistered securities, and forty-eight counts of sale of securities by an unregistered dealer. The total sentence imposed was fifteen years’ imprisonment followed by ten years’ probation.

Due to prison overcrowding, on May 4, 1993, Smith was released from prison by order of the Parole Commission, and he began serving his probationary term. An affidavit of violation of probation was filed, and on June 22, 2000, the trial court found Smith to be in violation of his probation. At that time, Smith had served the prison sentences and probationary sentences for all convictions except for the concurrent terms of ten years’ probation imposed for the organized fraud counts.

Sentencing hearings were conducted, and on September 8, 2000, the trial court imposed split sentences of fourteen years’ imprisonment followed by fifteen years’ probation for one count of organized fraud and thirteen years’ imprisonment followed by fifteen years’ probation for the second count of organized fraud. The prison sentences were made to run consecutively while the probationary sentences were to run concurrently. A total sentence of twenty-seven years’ imprisonment followed by fifteen years’ probation was imposed.

On November 17, 2000, a document entitled “State’s Emergency Motion to Clarify Sentence” was filed. In the motion, the State informed the trial court that the Department of Corrections had released Smith from custody on November 9, 2000, based on gaintime credits. The State indicated, “Essentially, the Department applied approximately sixteen years credit against the séntence imposed on each count separately instead of the sentence as a whole. Consequently, the Department decided that the Defendant had served his entire sentence as of the date he was sentenced, September 8, 2000, and released the defendant upon expiration' of sentence.”

In response to the motion, the trial court entered an order on December 1, 2000, granting the motion to clarify sentence and fashioned new sentences which provided for Smith’s confinement in prison. The trial court characterized its action as that of correcting clerical errors to properly reflect the oral pronouncement made at sentencing.

After careful review of the record before us, we hold that there was no clerical error to be corrected. It appears that the trial court did not fully understand the impact that the sentences originally imposed would have. As clearly stated in the recent supreme court opinion of Ashley v. State, 850 So.2d 1265, 1268-69 (Fla.2003), the trial court did not have the authority to alter'the sentences. It appears that the trial court’s actions were motivated by its concern for the rights of the victims and the losses they had suffered as a result of Smith’s fraud.

Accordingly, we are compelled to reverse the order granting the motion to clarify sentence, remand for the trial court to vacate the sentences imposed on December 1, 2000, and direct that the sentences imposed on September 8, 2000, be reinstated.

Reversed and remanded with directions.

NORTHCUTT, SALCINES, and STRINGER, JJ., concur.


text:
    In re GUARDIANSHIP OF Thelma KING, an incapacitated person. James L. Essenson, Appellant, v. Lutheran Services Florida, Inc., as Guardian of Thelma King; and Lynn King, Appellees.
    No. 2D03-1901.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2003.
    Barbara Jane Welch of the Law Firm of James L. Essenson, Sarasota, for Appellant.

      Fred E. Moore of the Law Firm of Bowman, George, Scheb, Tóale & Robinson, P.A., Sarasota, for Appellees. ■
   PER CURIAM.

Attorney James Essenson appeals the trial court’s denial of his motion for appellate attorney’s fees for representing Thelma King in the appeal of the order adjudicating her incapacitated and appointing Lutheran Services Florida, Inc., as her guardian. We reverse.

After Essenson completed his duties as Thelma King’s court-appointed counsel in the incapacity proceeding, he filed a motion for appointment as appellate counsel. In that motion, Essenson stated he believed there were “colorable issues for appeal.” The trial court. issued an order appointing Essenson as appellate counsel and directing guardian Lutheran Services to reimburse him for the filing fees on appeal and for the cost of the trial transcript and record. Subsequently, Essen-son prosecuted Thelma King’s ' appeal. While the appeal was pending, the trial court issued an order discharging him from all duties as counsel for the Ward except for the pending “appeal of the court’s finding of incapacity and the appointment of Lutheran Services, Florida, Inc., as Guardian of the Person and Property of the Ward.”

This court per curiam affirmed Thelma King’s adjudication of incapacity and the appointment of Lutheran Services as her guardian. Essenson petitioned the trial court for an order authorizing payment of appellate attorney’s fees and costs. In the postappeal hearing on appellate attorney’s fees, the trial court denied Essenson’s petition, ruling that the appeal did not benefit the Ward because Essenson did not prevail. The probate court’s order denying Essenson’s petition states:

[H]aving examined the file in this proceeding and having considered the evidence presented finds that the services rendered by James L. Essenson with regard to the appeal of the determination of incapacity and appointment of guardian were not in the Ward’s best interests.

Florida cases in which fees have been denied to court-appointed representatives appear to be only those in which he or she was found to have exceeded the scope of appointment. See, e.g., In re Guardianship of Jansen, 405 So.2d 1074, 1077 (Fla. 2d DCA 1981) (reversing fee award for guardian’s work investigating ward’s physical competency where appointment was limited to representation of ward’s financial interests in certain federal litigation). In this case, however, Essen-son did not exceed the scope of his appointment as the Ward’s counsel for the appeal. There is no evidence that the trial judge limited his appointment for the appeal in any way.

Essenson testified at the fee hearing that he appealed in good faith, that there were valid issues on appeal, and that there was lively discussion at oral argument. He testified that Ward Thelma King, his client, was upset by the incapacity order and asked him to appeal it. An incapacitated ward still has the right to access to the courts and to counsel. § 744.3216(1)00, (l), Fla. Stat. (2008).

Being found incapacitated places the same stigma on a person as being forced to reside in a mental hospital. One no longer has the autonomy afforded to adults to contract, to determine what is done with his or her funds and property, or to make decisions about what is done with his or her person....
[W]hen the state takes away “a person’s right to personal freedom, minimal due process requires proper written notice and a hearing at which the alleged incompetent may appear to present evidence in his/her own behalf.” Other factors such as [t]he opportunity to confront and cross-examine adverse witnesses before a neutral decision-maker, representation by counsel, findings by a preponderance of the evidence, and a record sufficient to permit meaningful appellate review are concomitant rights in this context that are also required and “cannot be abridged without compliance with due process of law....
“[G]uardianship proceedings must comport with constitutional notions of substantial justice and fair play.”

Joan L. O’Sullivan, “Role of the Attorney for the Alleged Incapacitated Person,” 31 Stetson L.Rev. 687, 702, 706 (2002).

Since the ward’s power to contract can be removed by the court as a result of the incapacity adjudication,

in many instances the ward’s counsel [after the adjudication] must be contracted for by the ward’s guardians or appointed by the court, and an attorney who renders services solely at the request of the ward does so with the risk of nonpayment.... The better practice is to seek a specific court order either permitting the representation or specifically appointing counsel.

Edward A. Shipe, “Fees and Other Costs in Guardianship Proceedings,” Florida Guardianship Practice 23-1 (4th ed.2002) (citing In re Guardianship of Bockmuller, 602 So.2d 608 (Fla. 2d DCA 1992)). In this case, Essenson did not render appellate services based solely on the Ward’s request; rather, he followed the “better practice” and proceeded based on a trial court order specifically appointing him counsel for the Ward’s appeal. If counsel were to proceed without such a court order, counsel would be proceeding at his or her own risk.

Therefore, we reverse the trial court’s order ruling Essenson was not entitled to attorney’s fees and costs and remand for the trial court to determine the amount of fees and costs Essenson should be awarded based on the factors in section 744.108, Florida Statute (2003).

Reversed.

ALTENBERND, C.J., and DAVIS, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: SILBERMAN, Judge.

text:
    William E. TEAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1446.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2003.
    Rehearing Denied Jan. 14, 2004.
   SILBERMAN, Judge.

William E. Teal challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He argues that he did not qualify for a habitual felony offender sentence because he did not have the necessary predicate convictions. As explained below, we disagree and affirm the sentence. Regarding Teal’s claims that the judgment and sentence did not conform to the oral pronouncement and that the sentencing court erred in using a revised scoresheet, we affirm without discussion.

In 1992, in trial court case number 91-20507, Teal was adjudicated guilty of robbery and placed on two years of community control followed by two years of probation. He later pleaded guilty to a violation of probation and was sentenced to thirty months in prison. After he filed a petition for reconsideration of sentence, Teal’s sentence was vacated and he was again placed on two years of community control followed by two years of probation. He later violated his community control and was sentenced to 5.5 years of imprisonment.

In the present case, in January 1997 Teal was sentenced as a habitual felony offender to 22.5 years in prison consecutive to his sentence of 5.5 years in case number 91-20507. Teal subsequently filed a motion to correct illegal sentence alleging that he lacked the necessary predicate offenses for the habitual felony offender sentence. The State relied on Teal’s 1992 conviction in case number 91-20507, together with a 1991 conviction for kidnapping, as the two predicate convictions for habitualization.

In his motion, Teal claimed that it was improper to use the conviction in case number 91-20507 as a predicate conviction because the trial court originally placed him on community control. He contended that placement on community control was not a sentence; instead, he asserted that he received a sentence in case number 91-20507 only after the trial court found him guilty of violating his community control and imposed the sentence of 5.5 years in prison. Teal further argued that because the prison sentence in case number 91-20507 was imposed on the same day that he was convicted and habitualized in the present case, the conviction in case number 91-20507 was not a proper predicate for habitualization pursuant to section 775.084(5), Florida Statutes (2002). We disagree.

As this court stated in McCall v. State, No. 2D03-1225, 862 So.2d 807, 2003 WL 22849397 (Fla. 2d DCA Dec.3, 2003), “[w]hen it enacted the habitual felony offender statute, the legislature intended that once a defendant had twice been convicted with sanctions the third conviction would be enhanced. We find that a sentence, as referred to in section 775.084, includes the sanction of probation.” We conclude that the same analysis applies to a sanction of community control, and therefore, Teal’s 1992 conviction and placement on community control in case number 91-20507 could properly serve as a predicate conviction for habitualization in the present case.

Accordingly, we affirm the order of the trial court and, as we did in McCall, certify conflict with Richardson v. State, 28 Fla. L. Weekly D1716, — So.2d -, 2008 WL 21697171 (Fla. 4th DCA July 23, 2008).

Affirmed; conflict certified.

ALTENBERND, C.J., and DAVIS, J., Concur.


author: COVINGTON, Judge. VILLANTI, Judge,

text:
    CAROLE KING, Appellant, v. FERGESON, SKIPPER, SHAW, KEYSER, BARON, and TIRABASSI, P.A., Appellee.
    No. 2D02-4857.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2003.
    Carl E. Patrick of The Law Office of Carl E. Patrick, Sarasota, for Appellant.
    Douglas R. Bald of Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., Sarasota, for Appellee.
   COVINGTON, Judge.

Carole King appeals the trial court’s order granting Fergeson, Skipper, Shaw, Key-ser, Baron, and Tirabassi, P.A.’s, motion for attorney’s fees, pursuant to section 744.108(2), Florida Statutes (2002), in a guardianship proceeding involving Carole King’s mother, Thelma King. We reverse.

Carole King is one of three daughters of Thelma King. Daughter Elizabeth King-Gilliam filed the initial petition to determine the incapacity of Thelma King and for appointment of a guardian. Daughter Lynn King filed a counter-petition for appointment of a plenary guardian of person and property and an application for appointment as guardian. After the parties stipulated Thelma King was incapacitated as to property, Carole King filed a petition for appointment as guardian. The trial court determined Thelma King to be partially incapacitated as to person and totally incapacitated as to property and appointed Lutheran Services as her guardian.

Following these proceedings, the trial court awarded attorney’s fees and costs from the ward’s estate to Lynn King’s attorneys, Fergeson, Skipper, “for services of benefit to the ward.” Fergeson, Skipper filed two different petitions for attorney’s fees covering its services for two different periods of the proceedings. The second petition was served on Lynn King herself and guardian Lutheran Services’ counsel but not on Carole King or her counsel.

Carole King argues that the trial court’s final order authorizing payment of attorney’s fees and expenses should be vacated because it was entered without notice to her. Carole King filed in the trial court a motion for relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(4) on that ground. The trial court was divested of jurisdiction to proceed on the motion for relief from judgment once this court’s jurisdiction was invoked by the filing of the notice of appeal from the final judgment. See Local Consumer Enters. Corp. v. Hadley, 404 So.2d 1155, 1156 (Fla. 2d DCA 1981); Walker v. Walker, 401 So.2d 872, 873 (Fla. 2d DCA 1981).

Carole King was an active participant in the underlying litigation and thus should have been served with the petition for attorney’s fees and costs. Accordingly, we reverse the judgment for attorney’s fees and costs and remand without prejudice to Fergeson, Skipper’s renewing the motion with proper notice.

CANADY, J., Concurs.

VILLANTI, J., Concurs specially.

VILLANTI, Judge,

Specially concurring.

I fully concur in the majority’s decision to remand this case to the trial court for a new hearing with proper notice to all interested parties. I write to address the issue of entitlement to attorney’s fees because that issue is likely to arise again on remand.

Section 744.108(1) limits attorney’s fees to those incurred by “an attorney who has rendered services to the ward or to the guardian on the ward’s behalf’ and to those fees and costs “incurred on behalf of the ward.” Section 744.108(2) then lists nine factors that the trial court must consider in making an award of attorney’s fees. Nothing in either section 744.108(1) or 744.108(2) entitles a party to an award of attorney’s fees from the ward’s estate simply because that party’s position prevailed in the trial court. However, it appears from the transcript of the hearing that the trial court believed that Fergeson, Skipper’s efforts were “on behalf of the ward” because the guardian it advocated was ultimately appointed by the court. This is an improper basis for an award of attorney’s fees from the ward’s estate.

In this appeal, Fergeson, Skipper argues that the attorney’s fees in question were not awarded under section 744.108(1) but rather were awarded under the common law, which allows for an award of attorney’s fees when the attorney’s services benefitted the ward or the estate. See Metzger v. First Nat’l Bank of Clearwater, 585 So.2d 372, 373-74 (Fla. 2d DCA 1991); In re Guardianship of Dean, 319 So.2d 589, 591 (Fla. 2d DCA 1975). I see two problems with this argument. First, the trial court’s order specifically references the criteria set forth in section 744.108(2). Thus, it appears that the trial court did, in fact, consider the statute in making its award.

Second, both Metzger and Dean require that the services in question be beneficial to the ward or the ward’s estate. Metzger, 585 So.2d at 373 (allowing an award of attorney’s fees because the efforts to avoid dividing certain joint bank accounts conferred a benefit on the guardianship estate); Dean, 319 So.2d at 591 (affirming an award of attorney’s fees because the petitioner’s efforts benefitted both the ward and his estate). As noted by the majority, there is language in the order awarding fees referencing a “benefit to the ward”; however, there are no corresponding findings of fact to justify this conclusion, and there is no evidence in the record to support such a finding.

The record shows that the ward stipulated, early in the proceedings to having a guardian of her property appointed. The primary dispute amongst the ward’s children was over who that guardian should be. Lynn King initially advocated having herself appointed guardian. When her siblings objected and offered themselves as guardians, Lynn King suggested Lutheran Services as a possible guardian. Ultimately, the trial court appointed Lutheran Services. However, when seeking attorney’s fees, Lynn King offered no evidence to demonstrate how having Lutheran Services as guardian rather than some other person or entity constituted a “benefit to the ward.” Moreover, she presented no evidence to establish how having the ward’s personal rights, in addition to her property rights, removed was to the ward’s benefit. On the record before this court, I do not see how the trial court could have awarded fees on the basis that Lynn King’s efforts in getting a specific guardian appointed “benefitted the ward.”

As a general proposition, if an interested party hires an attorney to contest any aspect of an incapacity proceeding, including who should be appointed guardian, he or she does so with no assurance that the fees will be reimbursed if a guardianship is ultimately established. This is especially true in an involuntary guardianship proceeding, in which the ward usually does not consent to the hiring of attorneys for any purpose.

As the record exists now, there is no evidence that Fergeson, Skipper performed any services “on behalf of the ward” to entitle it to an award of attorney’s fees under section 744.108, nor is there any evidence that Fergeson, Skipper performed any services that benefitted the ward or her estate. Therefore, on remand, the trial court should require some evidence that the services at issue were incurred on behalf of or benefitted Thelma King or her estate before it may find that Fergeson, Skipper is entitled to an award of fees from the guardianship estate.


author: FULMER, Judge.

text:
    EDWARD W. SLOVAK, Appellant, v. STATE OF FLORIDA, Appellee.
    No. 2D03-755.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2003.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Edward W. Slovak appeals the revocation of his probation and argues that his termination from a sex offender treatment program was not a willful and substantial violation. We agree and reverse.

In 1998, Slovak pleaded guilty to committing a lewd and lascivious act on a child under sixteen and to harboring a runaway. Slovak was placed on one year of community control followed by three years of probation with a condition requiring that Slovak “attend sex offender counseling.”

In June 2002, an affidavit was filed alleging that Slovak violated probation because he was terminated from sex offender counseling. The affidavit also alleged that Slovak failed to pay some costs of supervision and failed to meet his probation officer at a specified time, but the trial court rejected these allegations after hearing the evidence. At the hearing, Slovak testified that he had attended sex offender counseling for four years and had only one absence, which was excused. Slovak further testified that he participated the best he could but his participation was hampered because he was uncomfortable with the issues raised by the group. The program director testified that he terminated Slovak from the program in June 2002 because Slovak attended but did not really participate in the group therapy. Slovak testified, and the program director agreed, that Slovak was placed in a counseling group whose members had committed more serious offenses that were different from Slovak’s offense.

Slovak argues that the evidence does not show a willful and substantial violation of the condition that he attend sex offender counseling. We agree. See Lawson v. State, 845 So.2d 349, 350 (Fla. 2d DCA 2003) (reversing because evidence failed to show willful and substantial violation of probation when defendant had near perfect attendance record at sex offender counseling). Accordingly, we reverse.

Reversed and remanded.

DAVIS and KELLY, JJ., Concur.


author: ROSENBERG, ROBERT A., Associate Judge.

text:
    Julie LEVINE, Appellant, v. Herbert KEASTER, Appellee.
    No. 4D03-648.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2003.

      James A. Herb of Herb & Mednick, P.A., Boca Raton, for appellant.
    Michael J. Lavery of Michael J. Lavery, P.A., Boynton Beach, for appellee.
   ROSENBERG, ROBERT A., Associate Judge.

This unnecessarily contentious (and convoluted) matter is before this court on issues related to attorneys’ fees. This court has jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(1)(A) and 9.110(a)(1).

Herbert Keaster, appellee, filed suit against Julie Levine, appellant, alleging causes of action for the unauthorized recording, use, and disclosure of private telephone conversations. A default was entered against Levine. Levine subsequently filed a Motion to Quash Service of Process and Set Aside Default. Attached to the motion was an affidavit alleging that she did not reside at the New Jersey address where service of process was made. The trial court denied the motion without prejudice and scheduled an evi-dentiary hearing. Levine appealed the trial court’s order (case number 4D02-1939). This court relinquished jurisdiction for the subsequent evidentiary hearing.

Keaster, while the appeal was pending, filed a Motion to Strike/Motion for Contempt in the trial court alleging that Levine had perjured herself in the affidavit. On August 14, 2002, the trial court held a hearing on the motion. At the hearing, the trial court learned that Levine’s attorney had communicated with her at the New Jersey address where service was made. This contradicted Levine’s statement in her affidavit that she did not reside, and moreover, never resided at that address. The trial court issued an Order To Show Cause why she should not be held in civil contempt and be sanctioned. A hearing was held on October 10, 2002, but Levine failed to appear. On October 29, 2002, the court entered an Order holding Levine in civil contempt and imposing attorneys’ fees, costs and sanctions. The Order states as follows: “Defendant Julie Levine failed to attend the hearing or present any credible firsthand evidence to justify her conduct with regard to submitting a perjured Affidavit to this Court.” In addition, the trial court determined that Keaster was entitled to attorneys’ fees and costs, and placed a $1,000 sanction on Levine.

Levine filed a Supplemental Notice of Appeal of a Non-Final Order in Case No. 4D02-1939, appealing the October 29, 2002 order. This court dismissed that appeal but left the original appeal pending. Levine then filed a motion for rehearing of the October 29, 2002 order which was denied by the trial court.

Keaster subsequently filed a Motion to Determine Amount of Plaintiffs Attorney’s Fees. A hearing was held and on January 7, 2003, Keaster’s attorney submitted an affidavit attesting to the amount of attorneys’ fees expended. The affidavit stated that the total amount of attorneys’ fees was $20,412.36 and the total amount of costs was $1,284.30. At the hearing, Keaster presented the testimony of Jeff Brown, an expert witness who had reviewed the pleadings and motions that were filed in the case. He testified that reasonable attorneys’ fees for the matter were $25,000. Levine presented no evidence or rebuttal testimony. The trial court entered an order in favor of Keaster awarding attorneys’ fees of $24,000, costs of $1,284.30 and expert fees of $1,500. Levine again filed a motion for rehearing which was denied by the trial court.

The specific matters raised on appeal are:

1. Whether the trial court committed reversible error in finding that Keaster was entitled to attorney’s fees, costs, and expert witness fees.
2. Whether the trial court committed reversible error in determining the amount of attorney’s fees awarded.

We affirm the. trial court on the first issue, and reverse on the second.

I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR IN FINDING THAT APPELLEE WAS ENTITLED TO ATTORNEYS’ FEES

Levine argues that the trial court committed the following reversible errors in determining Keaster was entitled to attorneys’ fees and costs:

A. Denying due process by holding a hearing, effectively, on two day’s notice, and denying motions for continuance;
B. Denying due process by overruling the objections at the August 14, 2002 hearing, on the grounds that Levine was in default on the main action;
C. Granting Keaster the relief he requested at the August 14, 2002 hearing when he submitted no admissible evidence.
D. Entering an order dated September 9, 2002, prepared by the attorney for Keaster, which contained various findings of fact and case citations not pronounced by the trial court;
E. Including in that order findings of fact, where no documents or testimony were put into evidence before the trial court.
F. Denying due process by entering the September 9, 2002 order, setting another hearing on the issue of contempt, finding that her affidavit was false, and specifically placing the burden on Levine to “show why she should not be held in civil contempt for filing a false affidavit in this court and why this Court should not impose sanctions upon her as a result of that conduct.”
G. Denying due process by entering the October 29, 2002 contempt order, following the October 10, 2002 hearing in which appellee failed to carry the burden of proof by failing to submit evidence in its case in chief, and where the only testimony was by the mother of appellant regarding Levine’s residence address.

The court finds the issue of entitlement to fees is properly before this court. The goal of civil contempt is remedial and for the benefit of the complainant. See Levey v. D’Angelo, 819 So.2d 864, 867 (Fla. 4th DCA 2002). If a party is found in contempt, it is proper for the court to compensate the injured party by assessing attorney’s fees for the contempt proceedings. See Lake Worth Utils. Auth. v. Haverhill Gardens, Ltd., 415 So.2d 125 (Fla. 4th DCA 1982). Compensation must be based upon evidence of an injured party’s actual loss. See Levey, 819 So.2d at 868. In the instant case, the trial court found that as a direct result of Levine’s conduct, Keaster had been unnecessarily compelled to expend attorney’s fees for representation emanating from the filing of Levine’s fraudulent affidavit on March 11, 2002. The arguments raised by Levine, on this issue, are unsupported or insupportable, and in any event unpersuasive. Accordingly, the trial court was within its authority to order Levine to pay attorneys’ fees. Its decision to do so is affirmed.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DETERMINING THE AMOUNT OF ATTORNEY’S FEES

In her second point on appeal, Levine argues that the trial court made the following reversible errors regarding the amount of attorney’s fees awarded to Keaster:

A. Failing to set forth findings as to the reasonable number of hours and the reasonable hourly rate, as required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985);
B. Awarding an amount of fees in excess of that agreed to between appellee and his counsel, in violation of Perez-Borroto v. Brea, 544 So.2d 1022 (Fla.1989);
C. Awarding a fee for time spent by Keaster’s attorney in preparing two orders when the time was spent to:
(1) Add findings of fact and statements of law, not pronounced by the court; and
(2) In an attempt to try to make the orders “appeal proof.”

Point A

In computing attorneys’ fees, the trial judge should (1) determine the number of hours reasonably expended on the litigation; (2) determine the reasonable hourly rate for this type of litigation; (3)multiply the result of (1) and (2); and, when appropriate, (4) adjust the fee on the basis of the nature of the litigation or the representation. See Rowe, 472 So.2d at 1151. It is mandatory that an order awarding attorney’s fees set forth findings as to the time reasonably expended, the hourly rate, and other factors considered, if any. See Wolfe v. Nazaire, 758 So.2d 730 (Fla. 4th DCA 2000). In the instant case, the trial court’s order violates this rule because it does not set forth any factual findings regarding the time expended, the hourly rate, or any other factors considered.

Moreover, this case is distinguishable from Blits v. Renaissance Cruises, Inc., 647 So.2d 971 (Fla. 4th DCA 1994), where this court found that the failure to have more explicit findings was harmless error. There are no statements in the record here, either in the order, or in the hearing transcript, explaining the basis for the attorneys’ fees award. Therefore, it is not clear if the trial court followed the appropriate formula set out in Rowe.

This court thus reverses the decision of the trial court and remands for the entry of a written order containing the necessary findings. The trial court need not, however, hold a new evidentiary hearing if it is able to enter a written order from its notes or a transcript of the pertinent hearing. See Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003).

Point B

Levine argues that it was error for the trial court to award Keaster an amount of attorneys’ fees approximately $4,000 higher than the amount reflected in the affidavit provided by Keaster’s attorney. She argues this violates the Florida Supreme Court’s holding in Perez-Borroto, that a trial court is limited by a non-contingent fee agreement between the attorney and the client when the trial court applies the principles set forth in Rowe. Levine contends that the affidavit submitted by Keaster’s attorney is reflective of the actual fee that would be charged to Keaster, and therefore, the trial court erred in awarding an amount in excess of that. However, in the instant case, there was no evidence of any fee agreement between Keaster and his attorney. The trial court is thus free to award an amount of attorney’s fees that it deems reasonable.

In determining reasonableness, the trial court can consider many criteria including:

1) The time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly;
2) The likelihood, apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
3) The fee customarily charged in the locality for similar legal services.
4) The amount involved and the results obtained.
5) The time limitations imposed by the client or by the circumstances.
6) The nature and length of the professional relationship with the client.
7) The experience, reputation, and ability of the lawyer or lawyers performing the services.'
8) Whether the fee is fixed or contingent.

See Rowe, 472 So.2d at 1150 n. 6. Any one of the factors could have affected the determination of a reasonable fee under the circumstances.

In Centex-Rooney Construction Co. v. Martin County, 725 So.2d 1255 (Fla. 4th DCA 1999), this court stated that the time “reasonably expended” by counsel means the time that ordinarily would be spent by lawyers in the community to resolve this particular type of dispute. It is not necessarily the number of hours actually expended in the case. Accordingly, the trial court was not limited by the amount reflected in the attorney’s affidavit. It was allowed to consider other factors in determining a reasonable fee.

Here, the expert witness testified he thought the attorney’s hourly rate was low, and estimated that a reasonable fee amount was closer to $25,000. This could have provided the basis for the trial court’s decision. However, since there are no findings in the record to support the award, it is not clear if the trial court meant to award a higher amount or if it was simply a mathematical mistake. Without any findings, this court cannot conduct a review. The issue should be addressed by the trial court on remand.

Point C

Levine argues that Keaster should not be entitled to attorneys’ fees for the time that his attorney spent “preparing orders.” She contends these fees were not reasonably expended.

It is well-settled that the determination of an award of attorneys’ fees is within the sound discretion of the trial court and will not be disturbed on appeal, absent a showing of a clear abuse of that discretion. See Centex-Rooney, 725 So.2d at 1258. Further, the trial court may consider the facts and circumstances of the case when determining whether fees were reasonably expended.

Although the fee applicant has the burden of establishing its entitlement to an award of attorneys’ fees, the opponent of the fee has the burden of pointing out with specificity which hours should be deducted. See Centex-Rooney, 725 So.2d at 1259. Here, Levine’s counsel questioned the expert witness regarding whether he thought it was appropriate that so much time was spent on preparing orders. The expert testified that he thought it was appropriate, and moreover common, for lawyers to spend time drafting orders that explain the trial court’s findings of fact, and conclusions of law, and provide supporting case citations. At no point did Levine specifically request the trial court deduct those hours as improper.

This court finds it was within the trial court’s discretion to award Keaster what it deemed to be a reasonable fee for the preparation of any orders that his attorney was requested to prepare.

Conclusion

The only orders reviewed in this appeal are the January 7, 2003 and January 27, 2003 orders relating to attorneys’ fees. We affirm the trial court in finding entitlement to attorneys’ fees, but reverse the fee award for lack of compliance with Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

STONE and POLEN, JJ., concur.

      . Julie Levine, in her Notice of Appeal appealed four orders: 1) January 7, 2003 Order awarding Herbert Keaster attorneys’ fees, costs and expert witness fees; 2) January 27, 2003 Order Denying Rehearing; 3) September 9, 2002 Order To Show Cause; and 4) October 29, 2002 Order Holding Levine in Civil Contempt and Imposing Attorneys’ Fees, Costs and Sanctions. Keaster thereafter filed a Motion To Dismiss Appeal. This court granted the Motion To Dismiss relating to Levine’s appeal of the September 9, 2002, and October 29, 2002 orders, but denied the motion as to the January 7, 2003 and January 27, 2003 orders.

      . On April 2, 2003, this court issued a per curiam opinion affirming the trial court's order denying without prejudice the Motion to Quash Service of Process and Set Aside Default, and granting appellee attorneys’ fees. See Levine v. Keaster, 845 So.2d 208 (Fla. 4th DCA 2003).

      . The trial court’s order finding Levine in civil contempt is not at issue here. The only matter now pending before this court is whether the trial court erred in awarding Keaster attorneys' fees and costs based on a finding of civil contempt.

      . In addition, the trial court may have erred by not specifying indirect criminal contempt. The general purpose of civil contempt is to coerce action or inaction. Levine, however, was being "punished” for lying in her affidavit to the trial court. The goal of criminal contempt is to vindicate the authority of the court and/or otherwise punish for conduct offensive to the public. See Levey v. D’Angelo, 819 So.2d 864, 868 (Fla. 4th DCA 2002) (discussion of distinction between civil contempt and criminal contempt). In addition, the trial court in the instant case placed sanctions in the amount of $1,000 on Levine for her failure to appear. Flat, unconditional fines are typically considered to be criminal sanctions. Id.

      . An attorney's fee award does not become final and ripe for review until the amount is set. See Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994). Here, the fee award was set. A notice of appeal from the order setting the amount of attorney's fees raises the issue of entitlement pursuant to Florida Rule of Appellate Procedure 9.110(h).


author: NESBITT, Senior Judge.

text:
    Ramiro URIBE, Appellant, v. Juan Guillermo CORREA, Appellee.
    No. 3D03-614.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.

      Richard J. Burton, Aventura, for appellant.
    Pablo E. Lense, Miami, for appellee.
    Before COPE and LEVY, JJ., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

We reverse the summary judgment entered by the trial court finding Appellant Uribe liable for two worthless checks and imposing treble damages under Section 68.065 Florida Statutes (2002), and remand this matter for a trial on the merits of both the worthless check claim and the counterclaim.

Stating the facts in the light most favorable to appellant, the record shows that Correa and Uribe were 51% and 49% shareholders in a small business which marketed spices. In the summer of 2001 it was decided that Correa would sell his 49% of the business to Uribe for $10,000. Uribe issued two post-dated checks for $5,000 each to Correa, who was told not to deposit the checks until the transaction was complete. The next day the national sales manager of the spice company held an emergency meeting with Uribe and Correa and advised that their business as a distributor was being terminated, that he’d previously told this to Correa, and that the termination was due to Correa’s improper business practices including failure to service customers. This termination effectively ended the business as a going concern. Immediately after the meeting, Uribe, according to his affidavit, told Correa not to deposit the checks and asked him why he hadn’t told Uribe of the prior talks with the national distributor and why he’d tried to cheat Uribe. Uribe told Correa he would not buy his interest in the company. Correa nevertheless thereafter deposited the checks, which were returned for insufficient funds.

Correa provided statutory notice as to each check under Section 68.065, Florida Statutes. When the checks were not thereafter paid, Correa filed suit. Uribe raised equitable defenses to the worthless check claim and filed a counterclaim for fraud, alleging that Correa’s misrepresentations about the status of the company fraudulently induced him to write the checks.

The trial court entered summary judgment in favor of Correa for the face amount and treble damages on each of the $5,000 checks (a total of $40,000, plus interest). The trial court found that the plaintiff met the facial statutory requirements of Section 68.065, noting that there is no exception to the statute for “postdated checks.” The trial court entered a final judgment for Correa which stated that execution should issue, and reserved jurisdiction for purposes of addressing Ur-ibe’s counterclaim. We reverse.

First, we note that given the nature of the claims raised in the main claim and the counterclaim, the final judgment was issued prematurely and should not have been issued until the conclusion of the entire case.

Moreover, in essence, this is a case where the maker has stopped payment on a check rather than a simple insufficient funds case. In instances of stopped payments the statutory liability for treble damages is only triggered if there is an “intent to defraud.” Section 68.065(1), Florida Statutes (2002). Given the sworn allegations of fraud, that the transaction had been terminated as a result of Cor-rea’s dishonest conduct and the failure to honor a directive not to deposit the checks, there were certainly disputed issues of material fact as to the circumstances surrounding this transaction sufficient to preclude summary judgment. See also Zaleski v. Woessner, 659 So.2d 716 (Fla. 5 th DCA 1995)(factual dispute as to whether two dishonored checks had been validly delivered precluded summary judgment).

Finally, we note that the defense of equitable estoppel applies to a case like this. Otherwise, a party could institute a fraud and receive treble damages under the worthless check statute, where the only damages available to the victim of the fraud would be the claim for the underlying amount of the check. Thus, the architect of the fraud would still make a profit on the fraud. See, e.g., Florida Dep’t of Health and Rehabilitative Servs. v. S.A.P., 835 So.2d 1091, 1096 (Fla.2003)(“Equitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position.”)

We do not express any opinion on the ultimate disposition of the factual issues revealed by the record. We simply hold that the issues preclude summary judgment and require resolution of all of the claims before the court.

Reversed and remanded for further proceedings consistent herewith.

      . The trial court's decision to bifurcate is subject to an abuse of discretion standard of review. Roseman v. Town Square Ass’n, Inc., 810 So.2d 516 (Fla. 4th DCA 2001), rev. denied 832 So.2d 105 (Fla.2002).

      . Further, it is not entirely clear from the record and the check copies, but Uribe maintains that Correa deposited one or both of the checks before the postdate on the checks. Correa argues that we have held in Alvarez v. Alvarez, 800 So.2d 280 (Fla. 3d DCA 2001), that the statute applies to a postdated check. However, in Alvarez, the postdated check was deposited after the postdate. Thus, the check had become payable in accordance with its terms. This is not the case where a postdated check is given with the understanding that it will not be deposited until the date of the check, and the recipient then breaks the promise and prematurely deposits the check. Such inequitable conduct would not support the collection of treble damages under the statute.


author: TORPY, J.

text:
    HOUSEHOLD FINANCE AND MORTGAGE COMPANY, Appellant, v. Sami OSTA, Country Bridge, Inc., et al., Appellees.
    No. 5D03-1647.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.

      Harlan L. Paul, of Paul & Elkind, P.A., DeLand, for Appellant.
    Howard L. Cauvel, DeLand, for Appel-lees.
   TORPY, J.

In this foreclosure action, Appellant challenges the entry of an order vacating a certificate of title that the Clerk of the Seventh Circuit issued to Appellant. We have jurisdiction. Fla. R.App. P. 9.130(3)(C)(ii).

In September of 2002, Appellant brought a foreclosure action on three parcels owned by Country Ridge, Inc. and Country Bridge, Inc. On March 4, 2003, a partial final summary judgment was entered against these corporate defendants, and a foreclosure sale was scheduled for April 7, 2003. At the sale, Appellant was the high bidder and a certificate of sale was thereupon issued by the Clerk of the Circuit Court. This certificate, filed the same day, noted that the highest and best bid for the property was received by Appellant “to whom the property was sold for $100.00.” There were no objections to the sale.

On April 15, 2003, at 12:36 p.m., Country Ridge and Country Bridge, quit-claimed their interests in the subject parcels to Appellee, Osta, in his individual capacity. Later the same day, Osta filed a petition for bankruptcy. On April 23, 2003, the circuit court clerk issued a certificate of title to Appellant. The certificate specified that no objections to the sale were filed within the time allowed for filing objections. Osta then filed a Motion to Vacate Final Judgment and Certificate of Title. The trial court, on May 6, 2003, entered an order denying the motion to vacate the partial final summary judgment entered on March 4, 2003, but granting the motion to vacate the certificate of title issued on April 23, 2003. On May 13, 2003, Appellant timely filed an appeal of this non-final order challenging only the portion of the order vacating title.

We agree with Appellant that the trial court erred in vacating the certificate of title. Because the mortgagors’ right of redemption ended when the certificate of sale was filed, the clerk properly issued the certificate of title to Appellant notwithstanding the intervening bankruptcy filing by Osta. In re Jaar, 186 B.R. 148, 153-154 (M.D.Fla.1995).

The portion of the trial court’s order vacating issuance of the certificate of title is, therefore, reversed.

REVERSED.

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


author: GRIFFIN, J.

text:
    Derrick WILLIAMS, Petitioner, v. CIRCUIT COURT, 18TH JUDICIAL CIRCUIT, etc., Respondent.
    No. 5D03-3483.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    Derrick Williams, Bushnell, pro se.
    No Appearance for Respondent.
   GRIFFIN, J.

Derrick Williams petitions this court for a writ of mandamus, seeking from the clerk of the Brevard County circuit court free certified copies of several legal documents from his closed criminal case, including the information, written judgment and sentence, affidavits, clerk’s minutes, and the state attorney’s nolle prosequi. He claims that he needs these copies in conjunction with his application for executive clemency. He complains that he is entitled to free copies of these documents under section 940.04, Florida Statutes (2002), but the clerk of the circuit court •will not furnish them.

Section 940.04, Florida Statutes, does entitle an applicant for executive clemency to free certified copies of certain of the documents he presently seeks: “In the event any applicant for executive clemency is required to supply a certified copy of the applicant’s information, indictment, judgment, or sentence, said document shall be furnished by-the clerk of court to the applicant free of charge and without delay.” Under this statute, Williams would not be entitled to free certified copies of the other documents he lists in his petition. Lane v. Gardner, 778 So.2d 1071 (Fla. 5th DCA 2001).

When Williams made his document request, the -clerk of the circuit court responded with an all-purpose form letter, which includes the following: “If you are requesting information regarding ciernen-cy, you need to provide us with a copy of your application for Executive Clemency.” In his petition, Williams objects that the statute does not impose this requirement and that requiring him to supply a copy of the application would cost him money and would thus violate the “free of charge” clause of the statute. We reject this argument. The statute only authorizes documents to be provided free of charge if the Parole Commission’s rule requires the documents and only to an applicant for Executive Clemency. It is reasonable for the clerk to require the requesting party to show that he is an applicant. Moreover, the policy of the clerk is a reasonable one, as it operates to discourage use of the statute as a subterfuge.

WRIT DENIED.

THOMPSON and PALMER, JJ„ concur.


author: MONACO, J.

text:
    Roland Eugene WALKER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3477.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.

      Ronald E. Fox, P.A., Umatilla, for Appellant.
    No appearance for Appellee.
   MONACO, J.

Ronald Eugene Walker appeals the summary denial of his Rule 3.850 motion for post-conviction relief. Mr. Walker asserts sixteen grounds of ineffective assistance of counsel. Although we conclude that Mr. Walker is not entitled to relief on any basis contained in his motion, there are two grounds that merit discussion.

We note at the outset that to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that there is a reasonable probability that, but for counsel’s errors, the result of the trial would have been different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Each act or omission of counsel must be described in detail, must be a substantial and serious deficiency, and must be prejudicial to the extent that the acts or omissions were likely to have affected the outcome of the case. See Knight v. State, 394 So.2d 997 (Fla.1981). Here, the purported errors or omissions of Mr. Walker’s counsel simply do not cross that threshold.

Mr. Walker was convicted of armed robbery and received a twenty year prison sentence, consecutive to another prison sentence imposed in a different case. He alleges that the sentence was vindictive because the State originally offered an eight year sentence, concurrent to the sentence, in his other case, and he argues that his counsel was ineffective in failing to object to the sentence on that basis. Mr. Walker faces two major difficulties with this argument. First, although the offer was made by the prosecutor in open court, a review of the transcript of the trial reflects that the trial judge did not take part in this discussion, and never agreed to, adopted or sanctioned that proposal. Second, Mr. Walker was sentenced by a judge who was different from the judge that tried the case and who actually heard the offer. Under the circumstances there was no “realistic likelihood of vindictiveness,” and it is clear that no presumption of vindictiveness attached to the sentence imposed. See Wilson v. State, 845 So.2d 142 (Fla.2003); Graff v. State, 843 So.2d 1012 (Fla. 5th DCA 2003).

Mr. Walker also alleges that his trial counsel was ineffective with respect to the closing argument given on his behalf. It appears that although Mr. Walker was entitled to the first and last argument in closing, his counsel waived the first argument. Mr. Walker states' in his motion that his counsel did not get his consent to waive that argument before doing so. In addition, he alleges that his counsel was ineffective because he conceded that the armed robbery had occurred.

Mr. Walker’s trial counsel, however, did not concede his guilt. Thus, he did not run afoul of cases such as Taylor v. State, 695 So.2d 1293 (Fla. 4th DCA 1997). Instead, he argued that although the evidence showed that a robbery had been committed, the State failed to prove that Mr. Walker was the person who committed it. This situation is somewhat analogous to cases in which defense counsel makes an “all or nothing” argument without the consent of the defendant. That is to say, the defendant’s attorney argues to the jury that it should ignore any lesser-included offenses, and determine whether or not the defendant committed the primary crime with which he is charged. In Demurjian v. State, 727 So.2d 324, 327 (Fla. 4th DCA 1999), Judge Warner of the Fourth District Court of Appeal noted that:

Unlike cases where defense counsel concedes guilt on a lesser included offense (citation omitted), there is no requirement for counsel to obtain a client’s consent for trial strategy decisions. To require such consent would severely undermine the value of the “constitutionally protected independence of counsel” and would begin the imposition of a set of rules that was rejected by Strickland.

We think that waiving the first closing is another one of those trial strategy decisions that needs to be left to the independent judgment of trial counsel. Indeed, in the present case there was very strong evidence that a robbery had been committed, and conceding that fact did no harm to Mr. Walker. Accordingly, we conclude that the trial court was correct in denying the motion for post-conviction relief on this ground, as well.

AFFIRMED.

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